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ABKIDGMEKT 
 
 EIvEMEI^TARY LAW 
 
 EMBODYESrO THE 
 
 •GENEKAL PEINCIPLES, RULES AND DEEINITIONS OF LAW, 
 
 TOGETHER WITH THE COMMON MAXIMS AND EtILES 
 
 OF EQUITY JURISPRUDENCE, 
 
 AS STATED IN TIIE 
 
 STANDARD COMMENTARIES OF THE LEADING 
 ENGLISH AND AMBEICAN AUTHOES; 
 
 EMBRACING 
 
 THE SUBJECTS CONTAINED EST 
 
 A REGULAR LAW COURSE. 
 
 COLLECTED AJfD ARRANGED SO AS TO BE 
 
 MOEE EASILY ACQUIRED BY STUDENTS, COMPREHENDED 
 
 BY JUSTICES, AND READILY REVIEWED BY 
 
 YOUNG PRACTITIONERS. 
 
 BY M. E. DUNLAP, 
 
 COUNSELLOR' AT LA IV. 
 
 ST. LOUIS: 
 
 SOULE, THOMAS & WENTWOETH, 
 
 1876. 
 
Entered according to Act of Congress, in the year 1S76, by 
 
 M. E. DUNLAP, 
 in tlie office of the Librarian of Congress, at Washington, 
 
 Electrotyped by Stuassbukger & Bracu, 
 St. Louis, Mo. 
 
PREFACE. 
 
 When Mr. Wilberforce asked the ad\dce of Lord Eldon as: 
 to the course to be pursued by the young Grants in their 
 legal studies, the advice was, "to live the Ufe of a hermit, 
 and work like a horse." That has been, and no doubt still 
 is, sound advice in England, to make a great lawyer ; and 
 in some measure it is, and perhaps will be more so, in the 
 United States. But we are a different race of people, or 
 rather a like race under different circumstances. The la- 
 bor of the profession is not divided here as it is in England, 
 and probably never will be; the consequence is, tliat to 
 make a great lawyer one may have much less learned lore, 
 and must have much more knowledge of men and things in 
 general. 
 
 There is no spot on the earth where the legal profession 
 calls for such varied and extensive acquirements, as it does in 
 this country. A lawyer here, to be eminent, ought to know 
 everything which can be known, for there is no kind of 
 knowledge that he may not be requii-ed to bring into use. 
 With these facts in view, this volume has been prepared to 
 aid the student in the thorough mastery of his course of 
 legal studies, and to some extent obviate the loss of time 
 during his final preparation for admission to the bar ; also 
 to give Iiim some practical hints touching the best methods 
 of acquiring a knowledge of the law and its practice. Many of 
 the Suggestions to Students, herein presented, are taken, 
 like the Abridgment itself, from some of the leading Eng- 
 lish and American writers in the arena of legal scier>ce ; they 
 were found to be so elegantly and learnedly ivritten, that 
 the author felt there was no room left for even slight im- 
 
4 PEEFACE. 
 
 provement ; besides this, age has' given to tliem, as to prec- 
 edents in the law, a veneration and potency unattending 
 later eiforts in the same direction. The chief design o'f this 
 work is to give in the fewest pages, the principles and defi- 
 nitions of law and equity, to furnish a review or note book 
 and vade mecum for Law Students and young practition- 
 ers. It is said that " the substance of any science consists 
 of certain elementary rules or first principles, which, as 
 they are generally the pure dictates of reason, and short 
 and simple in their phi'aseology, find an easy access to the 
 mind. These rules are necessarily numerous, and, with 
 their exceptions, constitute the entire learning of any sci- 
 ence." Principles, owing to the universality of their expres- 
 sion, their reason and application, glide almost imperceptibly 
 into the mind, and, once seated in the memory, seldom 
 or never abandon it. That which is forcibly impressed 
 on the understanding, because fully comprehended, is not 
 liable to forsake us ; hence those rules which have been re- 
 peatedly tested by reason, and successfully applied to an 
 infinite variety of cases, and finally adopted as principles, 
 have a paiticular congeniality with the mind, and are wel- 
 comed to the memory as the offspring of philosophy. This 
 compendium, presenting in a condensed form, pruned of all 
 redundancies, the leading and important principles, rules, and 
 definitions of law and equity, as laid down in the standard 
 elementary works, will be found far more accurate and sys- 
 tematic than notes hastily taken by the student while 
 reading the course, to say nothing of the immense saving of 
 time, and the advantage of print over writing. It contains 
 the pith of all the important branches of the law student's 
 course, accurately collected from Blackstone's Commentaries 
 and leading authors on Evidence, Contracts, Pleadings, and 
 Equity. No index is furnished, because the work is, to some 
 extent, an index itself; besides, it is the desire of the author 
 that the student shall not consider it as a book to be "tasted," 
 merely, but to be thoroughly " chewed and digested ;" he 
 -can scarcely skim it over if he would, for it is the cream of 
 
PEEFACE. 5-. 
 
 the law, gathereii from the purest and highest sources known 
 to legal science, and the diligent student will find it richer 
 to his professional taste as he partakes of it from day to 
 day.. The author wishes here to repeat his closing remarks 
 in the preface to the first edition, that this work is not in- 
 tended as a substitute for text-books, but simply to lighten 
 . the labors and shorten the work of the student when he 
 shall have carefully read the whole course, and commenced, 
 his review, preparatory to final examination for the bar. 
 
 M. E. D. 
 February, 1876. 
 
"The Lord is our judge, the Lord is out law-giver, the Lord is our 
 .King^" Isaiah xxxiii. 
 
 Law. "Her seat is the bosom of God; her voice is the harmony of the 
 world ; all things in heaven and earth do her homage, the very least as feeling 
 her care, and the greatest as not exempt from her power." Hooker. 
 
THE SEVERAL 
 
 n)EPARTMENTS OR BRANCHES OF LA¥ 
 
 MAT BE THUS SHOWN: 
 
 LAWS. 
 
 Between 
 God and Man. 
 
 Between 
 Man and Man 
 
 l^'atural 
 Law. 
 
 Revealed National, or 
 Law. Municipal 
 
 Law. 
 
 International 
 Law. 
 
SIR WILLIAM BLACKSTONE was bom in Cheapaide, London, July 
 10th, 1723, — the third son of a silkman and bowyer. 
 
 Being in early life deprived of both parents, proved, in its consequences, 
 the reverse of misfortune ; as to that circumstance probably he was indebted 
 for his future opportunities for advancement. 
 
 He was educated at Oxford, under the care and assistance of his uncle. 
 Entered the Bar iii 1746 ; and was chosen Vinerian Professor at Oxford in 
 1758. Was a member of Parliament; and in 1770 a judge of the Common 
 Pleas. 
 
 He died February 14th, 1780, in the fifty-seventh year of his age, — a- 
 member of the Established Church. 
 
 Blackstonb began to execute his lectures on the Laws of England in 1753. 
 
 The first volume under the title of Commentaries on the Laws of England 
 appeared in 1765. 
 
COMMENTAEIES 
 
 ON THE 
 
 liAWS OF EXGLAKD, 
 
 BY 
 
 BLACKSTOINTE. 
 
 ABRIDGED. 
 
BLACKSTONE'S 
 
 AERANGEMENT OF THE COMMENTAEIES 
 
 IS AS FOLLOWS ; 
 
 Introdttctioh'. 
 
 Of the study of the law. 
 
 The nature of laws in general. 
 
 The grounds and foundations of the laws of England. 
 
 The countries subject to those laws. 
 
 The objects of the laws of England; which are 
 
 RIOHTS AND WRONGS. 
 
 The Rights op Pbksons, ..... Book I. 
 
 Thb Rights of Things, ..... Book II. 
 
 PurVATB Wkonqs, ...... Book III. 
 
 Public Wkongs, ...... Book IV. 
 
THE KATUEE OF LAWS IE" GEKEEAL. 
 
 liAW is a rule of action prescribed by superior 
 power. 
 
 In its most general and comprehensive sense, it signifies a rule 
 -of action dictated by some superior, and whicli the inferior is 
 bound to obey. It is applied indiscriminately to all kinds of 
 action, wliether animate or inanimate, rational or irrational j as 
 for example, we speak of the laws of motion, of gravitation, of 
 optics, or mechanics, as well as the laws of nature, and of nations. 
 
 In its more confined sense, it denotes the rules, not of action 
 in general, but of human action or conduct; that is, the precepts 
 by which man, a creature endowed with both reason and a free 
 will, is commanded to make use of those faculties in the general 
 TCgulation of his behavior. 
 
 Law is "the perfection of reason : it always intends to con- 
 form thereto, and that which is not reason is not law." 
 
 Justinian reduces the whole doctrine of law to these three 
 general principles : "Live honestly; hurt nobody; and render 
 to everyone his just due." 
 
 Natural la'W is the "Will of our Maker ; and regarded as a 
 Tule of human action or conduct, as prescribed by Him in Na- 
 ture, it is the eternal and immutable law of good and evil, — 
 ■discoverable by the light of reason, and founded in those rela- 
 tions of justice that existed in the nature of things antecedent 
 to any positive precept. 
 
 Divine or revealed la^w, considered as a rule of action, 
 is also the law of nature, imparted by God himself. 
 
 The lav? of nations is a system of rules deducible from 
 reason and natural justice, and established by universal consent, 
 to regulate the conduct and mutual intercourse between inde- 
 pendent states. 
 
 It is also called " that code of public instruction, which defines 
 the rights, and prescribes the duties of nations in their inter- 
 course with each other." 
 
12 BLACKSTONB. 
 
 MUNICIPAL OR CIVIL LAW is "a rule of civil eon- 
 duct prescribed by the supreme power in a state, commanding 
 what is right and prohibiting what is wrong." 
 
 It is called a rule, first, because it is not a transient or 
 sudden order from a superior to, or concerning, a particular per- 
 son ; but something permanent, uniform, and universal ; second, 
 to distinguish it from advice or counsel ; third, to distinguish it 
 from a compact or agreement, for a compact is a promise pro- 
 ceeding from us ; law is a command directed to us. 
 
 It is called a rule of civil conduct, to distinguish it 
 from the natural and revealed law; the former being the rule 
 of moral conduct, and the latter the rule of moral conduct and 
 oi faith. 
 
 It is a rule prescribed, because a bare resolution confined 
 in the breast of the legislator, without manifesting itself by 
 some external sign, can never be properly a law. 
 
 It is prescribed by the supreme power in a state be- 
 cause legislation is the greatest act of superiority that can be 
 exercised by one being over another. 
 
 Society is formed for the protection of individuals j and is 
 founded in their wants and fears. 
 
 Governments and states are formed for the preservation 
 of society. They are all reducible to three regular forms of 
 government, viz : 
 
 A Democracy, — ^which generally has more public virtue, 
 or goodness of intent than other forms, but may be deficient in 
 wisdom to contrive, and strength to execute. 
 
 A Monarchy, — which is the most powerful, and dangerous 
 of all governments. 
 
 An Aristocracy, — which is supposed to have more wisdom 
 than the other forms of government, but less honesty than a 
 republic, and less strength than a monarchy. 
 
 The British form of government partakes of the advantages 
 of these three : the King, or Queen, representing the monarchi- 
 cal form; the House of Lords, the aristocratic form; and the 
 House of Commons, the democratic form, of government ; these 
 three elements united constituting the English Parliament, or 
 supreme power, of that state. 
 
 A law consists of four parts; viz: the declaratory, — 
 which defines what is right and wrong; the directory, — which 
 consists in commanding the observation of right, or prohibiting 
 
BLACKSTONB. 13 
 
 the comniiasioii of wrong; the remedial, — ^whereby a method is 
 pointed oat to recover private rights, or redress private wrongs; 
 and the vindicatory part — which signifies what punishment shall 
 be incurred by wrong-doers; and in this consists the main 
 strength and force of a law. 
 
 To interpret a la'w, we must enquire after the will or in- 
 tention of the maker; which is collected from the words, the 
 context, the subject-matter, the effects and consequences, or the 
 spirit and reason of the law. 
 
 Words are generally to be understood in their most known 
 and usual signification ; their general and popular sense. Terms 
 of art, or technical terms, must be taken according to the accep- 
 tation of the learned in art, trade, and science. 
 
 The context may aid in establishing the meaning of words, 
 still dubious. 
 
 The subject-matter; words are always to be understood 
 as having a regard thereto; — for it is always supposed to be in 
 the eye of the legislator, and all his expressions directed to that 
 end. 
 
 Of the effects and consequences, the rule is, that 
 when words boar either none or a very absurd signification, if 
 literally understood, we must a little deviate from the received 
 sense of them. 
 
 The reason and spirit of a law, considered, is the most 
 universal and effectual way of discovering its true meaning ; or 
 the causes which moved its enactment, — for when the reason 
 ceases, the law itself ought to cease. 
 
 EQUITY arises from this method of interpreting laws, by 
 the reason and spirit of them. Grotius defines equity to be, " the 
 correction of that wherein the law (by reason of its universality) 
 is deficient." 
 
 The object of Equity is, to give a more specific relief 
 than can sometimes be had, through the generality of both the 
 unwritten and written law, in matters of private right. 
 
 Equity depends, essentially, upon the particular circumstances 
 of each case ; hence there can be no established rules and fixed 
 precepts of equity laid down, without destroying its very 
 essence, and reducing it to positive law. 
 
 Courts of Equity are necessary, because when the 
 general decrees of the law come to be applied to particular 
 cases, there should be vested somewhere the power of defining 
 
14 BLACKSTONB. 
 
 those circumstances which, had they been foreseen, the legisla- 
 tor himself would have expressed ; but, the liberty of consider- 
 ing all eases in an equitable light must not be indulged in too- 
 far, lest thereby we destroy all law, and leave the decision of 
 every question entirely in the breast of the judge. 
 
 The purposes for which our courts of equity are es- 
 tablished, and the matters with which they only are conver- 
 sant, are : to detect latent frauds and concealments, which the 
 process of the courts of law is not adapted to reach ; to enforce 
 the execution of such matters of trust and confidence as are 
 binding in conscience, though not cognizable in a court of law; 
 to deliver from such dangers as are owing to misfortune or over- 
 sight ; and to give a relief, more specific and better adapted to- 
 the circumstances of the case, than can always be obtained by 
 the generality of rules of the positive or common law. 
 
 They are only conversant in matters of property, or private 
 right. 
 
 OF THE LAWS OF ENGLAND ; the municipal law of 
 England is divided into two kinds : the lex non scripta, the un- 
 written or common law, and the lex scripta, the written or stat- 
 ute law. 
 
 The un-written or common la'w includes : general customs, 
 or the common law properly so called ; particular customs of cer- 
 tain parts of the kingdom ; and those particular laws that are, by 
 custom, observed only in certain courts and jurisdictions. 
 
 General customs, or the common law, properly so called, 
 are founded upon immemorial universal usage, whereof judi- 
 cial decisions are the evidence; which decisions are preserved 
 in the public records, explained in the year-books and reports, 
 and digested by writers of approved authority. 
 
 The unwritten or common law, then, derives its binding' 
 power and the /orce of law, from long and immemorial usage, and 
 universal reception throughout the kingdom. 
 
 The degree of antiquity necessary in a custom to en- 
 title it to weight and authority is, that it must have been used 
 time out of mind, or in the solemnity of our legal phrase, — tim& 
 whereof the memory of man runneth not to the contrarjr. 
 
 The maxims and customs of the common law are to be known 
 and their validity determined by the judges, in the courts of justice. 
 They are the depositaries of the laws, the living oracles, who 
 
BLACKSTONB. 15 
 
 must decide in all cases of doubt, and who are bound by oath to 
 decide according to the law of the land. 
 
 Of precedents ; the doctrine of the law is, that they must be 
 followed, unless flatly absurd, unjust, unreasonable, or clearly 
 contrary to the divine law; — for, though the reason be not obvi- 
 ous at first view, yet we owe such a deference to former times as 
 not to suppose they acted wholly without due consideration. 
 
 PARTICULAR CUSTOMS are those which are only in 
 use within some particular districts ; as gavel-kind, the customs 
 of London, etc. 
 
 The rules relating to particular customs are : first, they 
 must be proved to exist; secondly, they must appear to be legal; 
 — that is, immemorial, continued, peaceable, reasonable, certain, 
 compulsory, and consistent; and thirdly, they must, when al- 
 lowed, receive a strict construction. 
 
 The seven necessary requisites to make a particular 
 custom good or legal are : first, that it hath been used so long 
 that the memory of man runneth not to the contrary ; secondly, it 
 must have been continued ; for any interrupiion would cause a 
 temporary ceasing, and the revival would give it a new begin- 
 ning, which will be within time of memory, and thereupon the 
 custom will be void; thirdly, it must have been peaceable, 
 and acquiesced in, not subject to contention and dispute ; fourthly, 
 customs must be reasonable,or rather, taken negatively, they must 
 not be unreasonable; fifthly, customs ought to be certain ; sixthly, 
 customs, though established by consent, must be (when so es- 
 tablished) compulsory, and not left to the option of every man, 
 whether he will use them or not ; and seventhly, customs must be 
 consistent with each other ; one custom cannot be set up in op- 
 position to another. 
 
 The decisions of the courts of justice are the evidence of what 
 is common law. 
 
 The law, and the opinion of the judge, are not always convert- 
 ible terms, or one and the same thing ; since it sometimes may 
 happen that the judge may mistake the law. 
 
 The reports containing the decisions of the courts of Eng- 
 land are extant in a regular series from the reign of Edward II 
 (1307) inclusive; and from his lime to that of Henry VIII 
 (1509), they were taken at the expense of the crown, and pub- 
 lished annually, whence they are known as The Year-Books. 
 
 Particular laTWS are such as by special custom, are adopted 
 
16 BLACKSTONB. 
 
 and used only in certain peculiar courts, under the superinten- 
 dence and control of the common and statute law : viz, the Ro- 
 man civil, and canon law. 
 
 By the civil lavr is generally understood the civil or mu- 
 nicipal law of the Eoman empire, as comprised in the Institutes, 
 the Code, and the Digest of the Emperor Justinian, and the novel 
 constitutions of himself and some of his successors. The former 
 were compiled by Tribonian and other lawyers, by direction of 
 Justinian, about A. D. 533. It took them three years, and con- 
 sists of: first, the Institutes, which contain the elements or first 
 principles of the Roman law, in four books ; secondly, the Digests 
 or Pandects, in fifty books, containing the opinions and writings 
 of eminent lawyers ; thirdly, a new Code, or collection of impe- 
 rial constitutions, m twelve books; and fourthly, the Novels, or 
 new constitutions posterior in time to the other books, and 
 amounting to a supplement to the code, containing new decrees 
 of successive emperors : — the whole, forming the body of the 
 Soman Civil Law. 
 
 The canon laTW is a body of Roman ecclesiastical law, re- 
 lating to such matters as that Church either has or claims to 
 have the proper jurisdiction over. It consists of the compiled 
 opinions of the ancient Latin Fathers, the decrees of general 
 councils, and the decretal epistles and bulls or edicts of the Holy 
 See. 
 
 The written or statute law — the lex scripta, — is made by 
 the supreme power in the state, to supply the defects, or amend 
 what is amiss, of the unwritten lawi 
 
 The courts in which the civil and canon laws are permitted to 
 be used, are : the courts of the Arch Bishops and Bishops, and 
 their derivilive officers; the Military Courts; the Admiralty 
 Courts; and the Courts of the Two Universities; but they are 
 all under the superintendency of the Courts of Common Law. 
 
 Statutes, are either general or special, public or private ; and 
 are declaratory of the common law, or remedial of small defects 
 therein 
 
 The rules to be observed in the construction of stat- 
 utes, are : 
 
 1st. There are three points to be considered in the construction 
 of all remedial statutes : viz, the old law, the mischief, and the 
 remedy. 
 
 2d. A statute which treats of things or persons of an inferior 
 
BLACKSTONE, 17 
 
 rank, cannot, by any general words, be extended to those of a 
 superior. 
 
 3d. Penal statutes mnst be construed strictly. 
 
 4th. Statutes against /mu(is, are to be liberally and beneficially 
 expounded. 
 
 5th. One part of a statute must be so construed by another, 
 that the whole may stand, — if possible. 
 
 6th. A saving, totally rejjugnant to the body of the act, is void. 
 
 7th. Where the common law and a statute differ, the common 
 law gives place to the statute ; and an old statute gives place to 
 a new one. 
 
 8th. If a statute that repeals another, is itself repealed after- 
 wards, the first statute is thereby revived, without any formal 
 words for that purpose. 
 
 9th. Acts of parliament derogatory from the power of subse- 
 quent parliaments, bind not. 
 
 lOLh. Acts of parliament that are impossible to be performed, 
 are of no validity. 
 
 THE TERRITORY OF ENGLAND, is divided into Ec- 
 clesiastical, and Civil or Lay. 
 
 The ecclesiastical part is divided into provinces, dioceses, 
 arch-deaconries, rural deaneries and parishes. 
 
 The civil divisions are, into counties or shires, of which 
 Bome are palatine ; then into rapes, lathes, or tithings; next, in- 
 to hundreds or wapentakes; and lastly, into towns, vills, or 
 tithings. Ten families of freeholders made a town or tithing ; ten 
 tithings composed a hundred ; and an indefinite number of these 
 hundreds, formed a county or shire. 
 
 Counties palatine were so called, because the owners there- 
 of had in those counties royal powers as fully as the King in his 
 palace. 
 
 THE OBJECTS OP THE LAWS of England, are Bights 
 and Wrongs. 
 
 Rights are privileges; they are commanded to be observed 
 by law; and are subdivided into the rights of persbns, — being 
 those which concern and are annexed to the persons of men; 
 and the rights of things, — which are such rights as a man may 
 acquire over external objects or things unconnected with his 
 person. 
 
 Wrongs are the privation of right; they are prohibited by law; 
 and are divided into, private wrongs, — which, being infringements 
 
18 BLACKSTONE. 
 
 of particular- rights merely, concern individuals only, and are 
 called civil injuries; and public wrongs, which being breaches of 
 general and j)ublic rights, affect the whole community, and are 
 called crimes, and misdemeanors. 
 
BOOK I.] 
 
 BLACKSTONB. 
 
 19 
 
 ANALYSIS OF BOOK I. 
 
 The Rights of Persons ; which are 
 
 1. Natural persons, whose rights are 
 
 1. Absolute, viz : the enjoyment of 
 ' 1. Personal security, 
 
 2. Personal liberty, 
 ^ 3. Private property. 
 
 2. Pkelative ; as they stand in relations 
 
 1. Public ; as 
 
 1. Magistrates ; who are 
 '1. Supreme, 
 
 f 1. Legislative, viz : the Parliament, 
 [ 2. Executive, viz : the King wherein of his 
 ' 1. Title, 
 
 2. Royal family, 
 
 3. Councils, 
 
 4. Duties, 
 
 5. Prerogative, 
 
 6. Revenue. 
 
 1. Ordinary, viz : 
 / 1. Ecclesiastical, 
 \2. Temporal. 
 
 2. Extraordinary. 
 2. Subordinate. 
 
 2. People ; who are 
 f 1. Aliens, or 
 L 2. Natives ; who are 
 
 / 1. Clergy, and 
 
 \2. Laitv ; who are in a state 
 
 '1. Oivil, 
 
 [ 2. Military, 
 
 [S. Maritime. 
 
 2. Private; as 
 
 1. Master and servant, 
 
 2. Husband and wife, 
 
 3. Parent and child, 
 
 4. Guardian and ward. 
 
 2. Artificial persons, viz : bodies politic, or corporations ; 
 fl. Ecclesiastical, or 
 |_ 2. Lay ; either of which may be 
 
 /I. Aggregate, or 
 12. Sole. 
 
 { 
 
20 BLACKSTOISTB. [book i. 
 
 BOOK I. 
 
 THE RIGHTS OF PERISOIVS, being such as con- 
 cern and are annexed to the persons of men, when the 
 person to whom they belong or are due is regarded, are called 
 (simply) rights, in the popular acceptation ; but when we consider 
 such as are due from every citizen, they are denominated (civil) 
 duties. 
 
 Persons are divided by law, into natural persons, or such as 
 the Grod of nature formed us ; and artificial, or such as are cre- 
 ated by human laws for the purpose of society and government, 
 which are called corporations, or bodies politic. 
 
 The rights of natural persons, are ; absolute, or such as be- 
 long to individuals ; and relative, or such as are incident to them, 
 as members of society. 
 
 The absolute rights of individuals are those rights which 
 are so in their primary and strictest sense ; such as would belong 
 to their persons merely in a state of nature, and which every 
 man is entitled to enjoy, whether out of society or in it. 
 
 To protect individuals in the enjoyment of these absolute 
 rights which were vested in them by the immutable laws of na- 
 ture, is the principal aim of society. 
 
 To maintain and regulate these absolute rights of individuals 
 is the first and primary end of human laws. 
 
 Liberty is the general appellation for the natural rights of 
 man ; and every man gives up a part of his natural liberty, when 
 he enters into society, as the price of so valuable a purchase. 
 
 Political or civil liberty is natural liberty so far restrained 
 by human laws, as is necessary for the good of society. 
 
 The absolute rights of Englishmen have been declared and 
 established, first, by the Charter of Liberties, obtained from 
 King John, called Magna Gharta; afterwards, by the statute con- 
 firmatio chartarium, directing the great charter to be allowed as 
 the common lawj next, by a multitude of corroborating statutes j 
 
BOOK I.] BLACKSTONB. 21 
 
 then, by the Petition of Eight, the habeas corpus act, and other 
 salutary laws passed under Charles II ; again, by the Bill of 
 Eights of 1688 ; and lastly, by the Act of Settlement. 
 
 The absolute rights or civil liberties of men are prin- 
 cipally three : viz, the right of personal security ; the right of 
 personal liberty ; and the right of private jiroperty. 
 
 The right of personal security consists of a person's legal 
 and uninterrupted enjoyment of his life, his limbs, his body, his 
 health, and his reputation. 
 
 By limbs are meant, only those members which may be use- 
 ful to him in fight, and the loss of which alone amounts to may- 
 hem by the common law. 
 
 Duress per minas is where a man, through fear of death or 
 mayhem, is prevailed upon to execute a deed, or to do any other 
 legal act : these may be afterwards avoided, if forced upon him 
 by a well grounded fear of losing his life, or even limbs, in case 
 of his non-compliance. 
 
 Civil death occurs when any man is banished by the process 
 of common law, or abjures the realm, or enters into religion, 1. 
 e. into a monastery and becomes a professed monk ; in which 
 cases he is absolutely dead in law, and his next heir shall have 
 his estate. 
 
 The right of personal liberty consists in the free power of 
 locomotion, without illegal restraint or banishment. 
 
 Lavrful imprisonment is effected by process from the courts 
 of judicature, or by warrant from some legal officer having au- 
 thority to commit to prison ; — which warrant must be in writing, 
 imder the hand and seal of the magistrate, and express the cause 
 of commitment, in order to be examined into by a habeas corpus 
 if necessary. Coke says, " the law judges, like Festus, the Eo- 
 man governor, that it is unreasonable to send a prisoner, and not 
 to signify withal the crimes alleged against him." 
 
 Habeas corpus is a writ requiring the body of a person im- 
 prisoned to be brought before the Court of King's Bench or 
 Common Pleas, who shall determine whether the cause of com- 
 mitment be just. 
 
 The right of private property consists in the free use, en- 
 joyment and disposal of one's acquisitions, without any control 
 or diminution, save only by law. 
 
 The relative rights, or relations of persons, as members of 
 society, are either public or private. 
 
22 BLACKSTOJSTE. [book i. 
 
 THE PITBLIC RELATIONS are those of magistrates and 
 people, the most universal relation by which men are connected 
 together being government. 
 
 Prerogative is that special pre-eminence which the King 
 hath over and above all persons, and out of the ordinary course 
 of the common law, in right of his regal dignitj-. 
 
 The people are divided into natives, or natural-born subjects, 
 aliens, and denizens. 
 
 Aliens are such as are born out of the realm, or allegiance 
 of the King. 
 
 Denizens are such born as aliens, but who have obtained 
 letters patent (naturalization) to make them subjects. 
 
 Natives, or natural-born subjects, are such as are born within 
 the dominions of the crown of England ; that is, within the lige- 
 ance, or, as it is generally called, the allegiance of the King. 
 
 The rights of natives are natural and perpetual ; those 
 of aliens local and temporary only, unless made denizens. 
 
 The natives, or people proper, are divided into the clerical 
 or ecclesiastical, which includes all persons in holy orders or 
 offices J and the laity, which comprehends all the rest of the 
 nation. 
 
 The laity are divided into the civil, the military, and the 
 maritime. 
 
 The civil state is divided into the nobility and commonalty, 
 and includes all the nation except the clergy, the army, and the 
 navy. 
 
 The degrees of the nobility are : dukes, marquises, earls, 
 viscounts, and barons. 
 
 The degrees of the commonalty are : vidames (now quite 
 out of use), knights, colonels, sergeants-at-law, doctors, esquires, 
 gentlemen, yeomen, tradesmen, artificers and laborers. 
 
 Allegiance is the duty of all subjects, being the reciprocal 
 tie or ligamen which binds the subject to the King, in return for 
 that protection which he affords them. 
 
 The oath of allegiance was the oath taken to a superior 
 lord, or lord paramount, only, witliout any saving or exception 
 whatever, to bear faith to one's sovereign lord, in opposition to 
 all men, &c. 
 
 Fealty was the obligation on the part of the vassal to his im- 
 mediate and superior lord. 
 
 The oath of fealty, or the feudal oath of fidelity, was the 
 
BOOK I.] BLACKSTONE. 23 
 
 parent of our oath of allegiance, and was couched in almost the 
 8ame terms as the oath of allegiance, but contained a saving or 
 exception, of the faith or allegiance due to the superior lord, or 
 King; hence it was the oath taken to the inferior lord. 
 
 Homage was the svbmission of the tenant or vassal to his 
 lord, coupled with the oath and promise ; and was performed by 
 openly and humbly kneeling, ungirt, uncovered, and holding up 
 his hands between those of the lord, and swearing that he " be- 
 came his man from this day forward, for life, for limb, and 
 worldly honor, and unto you shall be true and faithful and bear 
 you faith for the land I hold of you," &c., and then received a 
 kiss from his lord. 
 
 THE PRIVATE RELATIONS of persons in society are : 
 those of master and servant, husband and wife, parent and child, 
 and guardian and ward. 
 
 Servants are menial or domestic; apprentices, are usually 
 bound for years ; laborers, are hired by the day or week, and are 
 not part of the family; and stewards, factors, or bailiffs, the law 
 considers as servants pro tempore. 
 
 The master has a property in the service of his servant, and 
 must be answerable for such acts as the servant does by his ex- 
 press or implied command or assent. 
 
 Marriage the law regards in no other light than as a civil 
 contract, and holds it good, where the parties were able, willing, 
 and did actually contract in the proper forms and solemnities 
 required by law. 
 
 Disabilities to marriage, are canonical, or civil. 
 
 Canonical disabilities are : pre-contract ; consanguinity, or 
 blood relationship ; afflnity, or relationship by marriage ; and 
 some corporeal infirmities. They are sufficient, by the ecclesi- 
 astical law, to avoid the marriage in a spiritual court; but in our 
 law, they only make it voidable, and not ipso facto void until sen- 
 tence of nullity be obtained. 
 
 The civil disabilities are : a prior marriage ; want of age ; 
 non-consent of parents or guardians, where requisite ; and want 
 of reason. They render the marriage void ab initio, and not 
 merely voidable. 
 
 Marriage is dissolved by death or divorce. Divorce is of 
 two kinds, a vinculo matrimonii, or from the bond of matrimony, 
 which is total ; and a mensa et thoro or from bed or board, which 
 is partial only. 
 
24 BLACKSTONE. [book i. 
 
 Children are of two sorts, legitimate, and spurious or bastards. 
 
 The duties of parents to their children are : maintenance, 
 protection, and education. 
 
 Legitimate children are those born in lawful wedlock, or 
 within a competent time thereafter. 
 
 Bastards are those born out of lawful matrimony. 
 
 The main end and design of marriage, is to ascertain and fix 
 upon some certain person to whom the care, protection, mainte- 
 nance, and education of children should belong. 
 
 Guardian and iward, a temporary relation between persons 
 which the law hath provided, is a kind of artificial parentage, to 
 supply the deficiency when it happens of the natural. 
 
 "We have guardians by nature, or the parents ; guardians for 
 nurture ; guardians in socage, or by the common law, — which last 
 two are only until the infant attains the age of fourteen, — and 
 guardians by statute, assigned by the father's will. 
 
 Full age in an infant, male or female, is twenty-one ; which 
 age is completed on the day preceding the anniversary of a per- 
 son's birth. 
 
 An infant may be sued only under the protection and join- 
 ing the name of his guardian ; and an infant may sue either by his 
 guardian, or prochein amy or next friend, who is not his guardian, 
 but any person who will undertake the infant's case. 
 
 An infant in respect to his tender years, has various privileges, 
 and various disabilities in law; chiefly with regard to suits, 
 crimes, estates, and contracts. 
 
 An infant in ventre sa mere is considered in law, for many 
 purposes, as born. It is capable of having a legacy, or a sur- 
 render of a copyhold estate, made to it ; it may have a guardian 
 assigned to it; and it is enabled to have an estate limited to its 
 use, and to take afterward, by such limitation, as if it were then 
 actually born. 
 
 CORPORATIONS, bodies politic or corporate, are artificial 
 persons established for preserving in perpetual succession cer- 
 tain rights, which, being conferred on natural persons only, 
 would iail in process of time. 
 
 Their primary division is into aggregate, — consisting of many 
 members ; and sole, — consisting of but one ; as a king, bishop, 
 or parson. 
 
 Corporations sole or aggregate are either ecclesiastical or 
 
BOOKi.] BLACKSTONE. 25 
 
 spiritual, — erected to perpetuate the rights of the church; or 
 lay, as a college, &c. 
 
 LAY CORPORATIONS are cw27,— erected for many tem- 
 poral purposes ; or eleemosynary, — erected to perpetuate the char- 
 ities of the founder. 
 
 Corporations are created generally by act of parliament, 
 by royal charter, and by prescription, — of which the city of 
 London is an instance ; it has existed so long. 
 
 The powers incident to corporations are: to maintain 
 perpetual succession ; to act in their corporate capacity like an 
 individual ; to purchase and hold lands ; to have a common seal, 
 by which the corporation acts and speaks only ; and to make by- 
 laws or private statutes for its own government and regulation. 
 
 A corporation's privileges and disabilities are : it must 
 always appear by attorney, being, as Coke says, " invisible ;" it 
 cannot maintain or be made defendant in a battery or like per- 
 sonal actions ; nor commit crime in its corporate capacity, for it 
 is not liable to corporeal penalties ; it cannot be an executor, or 
 perform any personal duties, for it cannot take the oath of due 
 performance ; it cannot be seized of lands to the use of another, 
 for such kind of confidence is foreign to the end of its institu- 
 tion ; it cannot be committed to prison, outlawed, or excommu- 
 nicated. 
 
 Corporations, as they cannot be arrested, are made to appear 
 by distress on their lands and goods. 
 
 The duty of corporations, is to answer the ends of their insti- 
 tution, which may be enforced by visitations. 
 
 A corporation may be dissolved by act of parliament ; by 
 natural death of all its members; by surrender of its franchises; 
 and by forfeiture of its charter, through negligence or abuse of 
 its franchises. 
 
26 
 
 BLACKSTONB. 
 
 [book II. 
 
 ANALYSIS OF BOOK II. 
 
 The Rights of Things ; which consist in dominion over 
 
 1. Things keal ; in which arc considered 
 
 1. Their several kinds, viz : 
 f 1. Corporeal, or 
 \2. Incorporeal. 
 
 2. The tenures bj' which they may be holden, viz : 
 fl. Ancient, and 
 ( 2. Modern. -^^ 
 
 3. The estates therein ; with respect to 
 '1. The quantity of interest; viz: 
 
 f 1. Freehold, 
 
 f 1. Of inheritance, or 
 \ 2. Not of inheritance, 
 
 2. Less than Freehold, and 
 
 3. On condition, 
 the time of enjoyment ; viz : in 
 '1. Possession, 
 
 2. Eemainder, or 
 
 3. Reversion. 
 The number and connection of the tenants ; who may hold in. 
 
 1. Severalty, 
 
 2. Joint tenancy, 
 
 3. Coparcenar\', or, iu 
 ^4. Common. 
 
 The "title to them ; which may be gained or lost, by 
 
 1. Descent, or by 
 
 2. Purchase, which includes 
 '1. Escheat, 
 
 2. Occupancy, 
 
 3. Prescription, 
 
 4. Forfeiture, and 
 
 5. Alienation, by common assurances ; which are by 
 ^ 1. Deed, or matter in pais ; wherein of its 
 
 f 1. G-eneral nature, and 
 \ 2. Several species. 
 
 2. Matter of record, 
 
 3. Special custom, and by 
 ^4. Devise. 
 
 Things Personal, or chattels ; in which are considered 
 
 1. Their distribution, 
 
 2. Property therein, 
 
 3. Title to them ; which may be gained or lost, by 
 1. Occupancy, 
 
 '2. Prerogative, 
 
 3. Forfeiture, 
 
 4. Custom, 
 
 5. Succession, • 
 
 6. Marriage, 
 
 7. Judgment, 
 
 8. Gift or Grant, 
 
 9. Contract, 
 
 10. Bankruptcy, 
 
 11. Testament, 
 
 12. Administration. 
 
 L 2. 
 
BooKii.] BLACKSTONE. IT 
 
 BOOK II. 
 
 THC: RIOHTS of TMIMOS, are those rights 
 which a man may acquire in and to such external things as 
 are unconnected with his person. 
 
 Property, or the dominion of man over external objects, has- 
 its origin from the Creator, as his gift to mankind. 
 
 The substance of things was, at first, common to all ; yet a tem- 
 porary property in the use of them might even then be acquired 
 and continued by occupancy. In process of time a permanent prop- 
 erty was established in the substance, as well as the use, of things ; 
 which was also originally acquired By occupancy only. 
 
 Lest this property should determine by the owner's derelic- 
 tion, or death, whereby the thing would again become common,, 
 societies have established conveyances, wills, and heirships, in 
 order to continue the property of the first occupant : and where 
 by accident such property becomes discontinued or unknown,, 
 the thing usually results to the sovereign of the state, by virtue 
 of the municipal law. 
 
 Things are divided into things real, and things personal. 
 
 THINGS REAL are such as are of a permanent, fixed, and 
 immovable nature, and cannot be carried out of their place, as- 
 lands and tenements. 
 
 Things personal, are such as goods, money, and other mov- 
 ables, which may attend the owner's person wherever he may 
 choose to go. 
 
 Things real, are usually said to consist in lands, tenements, . 
 and hereditaments. 
 
 Land is a term comprehending all things of a permanent, sub- 
 stantial nature, being a word of very extensive signification. 
 
 JLand has in its legal signification an indefinite extent upwards 
 as well as downwards, cujus est solum ejus est usque ad ccelum ; so 
 that the word land includes not only the face of the earth, but 
 everything under it, or over it; and by the name of land, every-^- 
 thing terrestrial will pass. 
 
•28 BLACKSTONB. [book n. 
 
 Tenement is a word of still greater extent than land, and 
 in its original proper and legal sense, it signifies anything that 
 may he holden, provided it be of a permanent nature, whether it 
 be of a substantial and sensible, or of an unsubstantial, ideal 
 iind. 
 
 Hereditament is by much the largest and most comprehen- 
 sive expression ; for it includes not only lands and tenements, 
 but whatsoever may he inherited, be it corporeal or incorporeal, 
 real, personal or mixed. 
 
 All the several kinds of things real are reducible to one of 
 these three, viz : lands, tenements or hereditaments ; whereof 
 the second includes the first, and the third the first and second. 
 
 Things real may be considered -with reference to their 
 •several kinds ; the tenures by which they may be holden ; the es- 
 tates therein, and their title, or the means of acquiring and los- 
 ing them. 
 
 THE KINDS OF THINGS REAL are corporeal or ineor- 
 j)oreal ; which is also the division of hereditaments — the most com- 
 prehensive denomination of things real. 
 
 Corporeal Hereditaments are such as affect the senses, 
 may be seen and handled by the body; they consist wholly of 
 permanent and suhstantial ohjects, all of which may be compre- 
 hended under the general denomination of land only. 
 
 Incorporeal hereditaments are not the objects of sensa- 
 tion ; can neither be seen nor handled; are creatures of the mind, 
 and exist only in contemplation. They are rights, issuing out of 
 things corporate, whether real or personal ; or concerning, or 
 annexed to, or exercisable within the same. 
 
 They are principally of ten sorts, viz : advowsons, 
 tithes, commons, ways, ofSces, dignities, franchises, corodies or 
 pensions, annuities and rents. 
 
 An advcwson is the right of presentation to a church or ec- 
 clesiastical benefice : either appendant, i. e., annexed to the pos- 
 : session of the manor (lords of manor being originally the only 
 founders and patrons of churches) ; or in gross, as where sepa- 
 rated from the property of the manor and annexed to the person 
 of the owner, and not to his manor or lands. 
 
 Advowsons are also ehher presentative, where the -patron has 
 
 a right of presentation, and to demand of the bishop to institute 
 
 his clerk if qualified ; collative, where the bishop and patron are 
 
 •one and the same, in which case the bishop cannot present to 
 
BOOK II.] BLACKSTONB. 29^ 
 
 liimself, but does by the act of collation ; all that is done by in- 
 stitution and induction, or donative, as where the king, or any 
 subject by his license, doth found a church, and ordains that it 
 shall be merely in the gift or disposal of the patron, subject to 
 his visitations only, and not that of the ordinary, and vested ab- 
 solutely in the clerk by the patron's deed of donation, without 
 presentation, institution, or induction. 
 
 Tithes are the tenth part of the yearly increase arising and 
 renewing from the profits of lands, the stock upon lands, and the: 
 personal industry of the inhabitants. 
 
 "Time of memory" has long ago been ascertained, by law, 
 to commence from the beginning of the reign of Richard II. 
 
 Tithes are either predial, as corn, grass, hops and wood ; mixed, 
 as wool, milk, pigs, &c. ; or personal, as of manual occupations,, 
 trades, fisheries, and the like. 
 
 Common is a right or profit which a man has in the lands 
 of another ; as to feed his beasts, catch fish, dig turf, and the 
 like. It is chiefly of four kinds, viz : 
 
 Common of pasture is a right of feeding one's beasts on 
 another's land; and is either appendant, a.s when inseparably in- 
 cident to the grant of the lands ; appurtenant, where it arises. 
 from no connection of tenure or absolute necessity, but may be 
 annexed to lands, or extended to other beasts besides such as are 
 generally commonable, as hogs, goats, &c., which neither plow 
 nor manure the ground; of vicinage, where the inhabitants of 
 two contiguous townships have intercommoned to prevent suitsj 
 or in gross, where it is annexed to a man's person, instead of to 
 land. 
 
 Common of piscary is a right of fishing in another man's 
 water. 
 
 Comanon of turbary is a right of digging turf on another's 
 ground. 
 
 Common of estovers, or botes, is a right of taking nec- 
 essary wood from off another's estate. 
 
 Ways are a right of passing over another's ground, and has; 
 reference only to private ways. They may be founded on per- 
 mission, grant and prescription; or may arise from act and op- 
 eration of law. 
 
 OfSces are the right to exercise a public or private employ- 
 ment, and to take the fees and emoluments pertaining thereto. 
 
 iJignities are titles to honor, and bear a near relation to offices. 
 
30 LLACKSTOE"E. [book ii. 
 
 Franchises are a royal privilege, or branch of the king's 
 prerogative, subsisting in the hands of the subject. 
 
 Franchise and liberty are used as synonymous terms. 
 
 Corodies are allotments of provisions for one's sustenance, 
 which may be converted into pensions. 
 
 Annuity is a yearly sum of money charged upon the person, 
 and not upon the lands, of the grantor. 
 
 Rents are certain profits issuing yearly out of lands and ten- 
 ements corporeal. The rents at common law were rent-service, 
 rent-charge, and rent-seek. 
 
 Rent-service is so called because it has some corporeal ser- 
 vice incident to it; as, at least, fealty or the feudal oath of fidelity. 
 
 Rent-charge is where the owner of the rent has no future 
 interest or reversion expectant in the land : and it is called a 
 rent-charge, because the land was charged with a distress for the 
 payment of the rent. 
 
 Rent-seek, or barren rent, is a rent reserved by deed, but 
 -without any clause of distress. 
 
 Rents of assise are the certain established rents of the free- 
 holders and ancient copy-holders of a manor, which cannot be 
 departed from or varied. Those of the freeholders were fre- 
 quently called chief-rents, and those of both indifferently denom- 
 inated cjuit-rcnts, because thereby the tenant goes quit and free 
 of all services. When the quit-rents were reserved in silver, 
 they were called white-rents, in contradistinction to rents reserved 
 in work, grain or baser money, which were called black-mail. 
 
 Rack-rent is a rent of the full value of the tenement, or near it. 
 
 A fee-farm rent is a rent-charge issuing out of an estate in 
 fee, of at least one-fourth of the value of the lands at the time of 
 its reservation. 
 
 TENURES BY WHICH THINGS REAL MAY BE 
 HOLDEN. 
 
 The English doctrine of tenjires is derived from the feudal 
 law or system: which had its origin from the military policy of 
 the Northern or Celtic nations, — the Goths, Huns, Franks, Van- 
 dals, Lombards, &c. ; who, all migrating from the same officina 
 gentium, poured themselves in vast quantities into all the regions 
 of Europe, at the declension of the Eoman Empire. Bringing 
 this policy from their own countries, they continued it in their 
 new acquisitions, as the most likely means of securing them. 
 Feuds, j'?e/s, ov fees, — in their original synonymous, — were al- 
 
BOOK 11.] BLACKSTOISTB. 31 
 
 lotments of large districts or parcels of land made by the conquer- 
 ing chief or general, to the superior officers of their armies, and 
 by them dealt out again, in smaller parcels, to the inferior officers 
 and most deserving soldiers, under them. 
 
 The appellation, feud, fief, or fee, signified in the Northern 
 language, a conditional stipend or reward, and the condition an- 
 nexed to them being, that the possessor should do service faith- 
 fully for them, to him who gave them, both at homo and in wars; 
 for which purpose he took the feudal oath of fealty; and in case 
 of breach of this oath or condition the lands reverted to him 
 who granted them. 
 
 The universality and early use of this feudal plan among 
 all those nations, which in complaisance to the Eomans we still 
 call barbarous, may appear from what is recorded of the Cimbri 
 and Teutons, nations of the same ISTorthern origin as those we 
 have been describing, at their first irruption into Italy, about a 
 century before the Christian era. They demanded of the Eomans 
 stipendiary lands or feuds, to be allotted to them, to be hold by 
 military and other personal services, whenever their lord should 
 call upon them. This was evidently the same constitution that 
 displayed itself more fully about seven hundred years afterwards, 
 when the Salii, Burgundians, and Franks, broke in uj)on Gaul 3 
 the Visigoths on Spain, and the Lombards upon Italj-, and intro- 
 duced with themselves this Northern plan of polity, as best serv- 
 ing to distribute and protect the territories they had newly 
 gained. Hence the Emperor Alexander Severus took the hint 
 of dividing lands conquered from the enemy among his generals 
 and victorious soldiery, on condition of receiving military ser- 
 vice from them and their heirs forever. 
 
 The wisdom and efficiency of this policy of the victorious 
 Northerners, alarmed all the princes of Europe, and made them 
 think it necessary to enter into the same plan, with their subjects, 
 whose possession before was perfectly allodial, that is indepen- 
 dent, and held of no superior; and thus in a few years the 
 feudal constitution or doctrine of tenures extended it- 
 self over all the western world, which alteration of landed 
 property in so material a point, drew after it an alteration of 
 laws and customs ; so that the feudal laws soon drove out the 
 Eoman, which had hitherto so universally obtained, but now be- 
 came for many centuries lost and forgotten. 
 But this feudal polity thus by degrees established over all 
 
82 BLACK STOKE. [book ir. 
 
 Europe was not received Tiniversally into that part of the island 
 called England, until the reign of "William the !N'orman; for the 
 Saxons were firmly settled in the island as early as the year 600, 
 and it was not till two centuries after that feuds arrived at full 
 vigor in Europe. 
 
 This introduction of the feudal tenures into England 
 by King William, does not appear to have been effected im- 
 mediately after his conquest, nor by the mere arbitrary will and 
 power of the conqueror, but to have been gradually established 
 by the Roman barons, and others, and afterwards universally 
 consented to by the great council of the nation, long after his 
 title was established, — upon the principle of self-security. 
 
 In consequence of this change, it became a fundamental maxim 
 and necessary •principle, — though in reality a mere fiction, — of our 
 English tenures, " that the King is the universal lord and original 
 proprietor of all the lands in his kingdom, and that no man doth 
 or can possess any part of it, but what has mediately or imme- 
 diately been derived as a gift from him, to be held upon feudal 
 services." 
 
 In this system of tenure, in general, the grantor was called the 
 proprietor, or lord, and retained the dominion or ultimate prop- 
 erty of the feud or fee ; and the grantee who had only the use or 
 possession, was styled the feudatory or vassal ; which was only 
 another name for the tenant or holder of the lands. 
 
 The King, — the original grantor, — was styled the lord para- 
 mount or over all; those who held immediately under him being 
 styled his tenants in capite, or in chief; and they who held under 
 these mesne or middle lords, were styled tenants parvail, or the 
 lowest tenants who made the avail or profit from the land. 
 
 The feudatories were styled pares curtis, or pares curice because 
 the lord was the legislator and judge over his feudatories. 
 
 The manner of granting a feud, was by words of gratuitous 
 and pure donation ; being perfected by the ceremony of corpo- 
 real investiture, or open and notorious delivery of possession in 
 the presence of the other vassals ; called livery of seizin. 
 
 Feuds were not at first hereditary, though frequently 
 granted by favor of the lord^ to the children of the former pos- 
 sessor, till, in process of time it became unusual, and was, 
 therefore, thought hard, to reject the heir, if he were capable to 
 perform the service ; and therefore infants, women, and monks, 
 who were incapable of bearing arms, were also incapable of sue- 
 
BOOK 11.] BLACKSTONB. 33 
 
 ceeding to a genuine feud, and it was for this reason that women 
 did not receive the attention, consideration, or privileges per- 
 taining to property, that men did, and many of their disabilities 
 in law to this Aa.j, may be traced back to this origin ; for previ- 
 ous to the introduction of this system, the privileges of women 
 in England, were generally about the same as those of the men. 
 This succession of the children to their father's feud, or descent 
 of the feud, originally extended to all the males alike ; but being 
 found inconvenient, and also tending to weaken the strength of 
 the feudal union, by multiplicity of these divisions among so 
 many heirs, honorary feuds, or titles of nobility, were introduced, 
 which were not divisible, and could only be inherited by the 
 eldest son, in imitation of military feuds. 
 
 Neither lord nor vassal could alien his estate without the con- 
 sent of the other, because the feudal obligation was looked upon 
 as reciprocal. 
 
 The feudatories often found it necessary to commit part of 
 their lands to inferior tenants, and obliged such to make returns 
 in service, corn, cattle, or money ; which returns were the origin 
 of rents, which were called improper feiids. 
 
 THE ANCIENT ENGLISH TENURES ;— or the manner 
 in which lands, tenements, and hereditaments were held until 
 the middle of the last century. 
 
 Tenure denotes the manner of holding or possessing property.. 
 
 Tenement is the thing holden. 
 
 Tenant, the person holding lands or tenements by any title. 
 
 The distinction of tenures, consisted in the nature of the ser- 
 vices or renders, that were due to the lords from their tenants. 
 
 The services, in respect of their quality, were either free or 
 base ; and in respect of their quantity and time of exacting them, 
 were either certain or uncertain. 
 
 Free services were such as were not unbecoming the char- 
 acter of a soldier or a freeman to perform ; as to serve under his 
 lord in the wars, to pay a sum of money, and the like. 
 
 Base services were such as were only fit for peasants or per- 
 sons of a servile rank ; as to plow the lord's land, make his 
 hedges, &c. 
 
 Certain s'ervices, whether free or base, were such as were 
 stinted in quantity, and could not be exceeded on any pretense j 
 as to pay a stated annual rent^ or to plow such a field for three 
 days. 
 
34 BLACKSTONB. [book ii. 
 
 Uncertain services depended upon unknown contingencies; 
 as to do military service in person, pay an assessment in lieu of 
 it^ or wind a horn whenever the Scots invaded the realm, which 
 were free services : or to do whatever the lord should command, 
 which Avas a base or villein service. 
 
 Prom the various combinations of these services have arisen 
 the four principal species of ancient lay tenures which subsisted 
 in England till the middle of the last century; and three of 
 which subsist to this day. Hence the feudal clogs, though greatly 
 lessened, still cling to English property. 
 
 Bracton, who wrote under Henry III, gives the clearest ac- 
 count of these ancient tenures, of which the following is an out- 
 line or abstract, viz : 
 
 " Tenements are of two kinds, frank-tenements and villenage. 
 
 " Of frank tenements, some are held freely in consideration 
 of homage and knight-service ; others, in free-socage, with the ser- 
 vice of fealty only. 
 
 " Of villenages, some are pure, and others privileged ; he 
 holding in pure villenage doing whatever is commanded of him, 
 and always bound to an uncertain service ; and in privileged villen- 
 age, or villein-socage, the villein-socmen do villein services, but 
 such as are certain and determined." 
 
 From the sense of which, the four principal kinds of ancient 
 English tenures appear to have been, viz : 
 
 Tenure in chivalry, or by knight-service, where the service 
 was free but uncertain; as military service, with homage. 
 
 Tenure in free-socage, where the service was not only free 
 but certain ; as, fealty only, or by rent and fealty. 
 
 Tenure in pure villenage, where the service was base and 
 ■uncertain. 
 
 Tenure in privileged villenage, or villein-socage, where the 
 service was base, but reduced to a certainty. 
 
 The most universal ancient tenure, was that in chivalry, or by 
 knight-sei'vice ; to make which a determinate quantity of land was 
 necessary, called a knight's fee — feodum militare — and differed in 
 but very few points from a pure or proper feud ; being entirely ~ 
 militarj'^, the tenant or knight being bound to attend his lord, 
 forty days in every year, if called upon, as his reditus or return, 
 or his rent, or service, for the lands he held. It was granted by 
 livery and perfected by homage and fealty. 
 
 The seven fruits and consequences of knight-service, 
 
BOOK II.] BLACKSTOlfB. 35 
 
 or tenure in chivalry, inseparably incident to it, were : aids, re- 
 liefs, primer-seizen, wardship, marriage, fines for alienation, and 
 •escheat. 
 
 Aids were principally three ; — to ransom the lord's person if 
 taken prisoner; to make the lord's eldest son a knight; and to 
 marry the lord's eldest daughter, by giving her a suitable por- 
 "tion. Aids were originally mere benevolences granted by the ten- 
 ant to the lord in times of difftculty and distress ; but in process 
 of time they grew to be considered as a matter of right and not 
 of discretion. 
 
 Reliefs were a fine, or composition with the lord for taking 
 Tip the estate which by the feudal law was lapsed or fallen in, by 
 the death of the tenant. 
 
 Primer-seizin was a right which the King had whenever any 
 of his tenants in capite died seized of a knight's fee, to receive 
 of the heir, if he were of age, a whole year's profits of the lands, 
 if they were in possession ; and half a year's profits, if in rever- 
 sion expectant on an estate for life. 
 
 Wardship : when the heir was under age, the lord was en- 
 titled to wardship, and was called guardian in chivalry. It con- 
 sisted in having the custody of the body and lands of such heir, 
 -without any account of the profits, till the age of twenty-one in 
 males, and sixteen in females, for the feudal law considered him 
 incapable of knight service, till of age, or twenty-one. 
 
 Marriage, or the tendering of a suitable match to their infant 
 -wards, was another right the lord had, which if they refused, 
 they forfeited the value of the marriage to their guardian. This 
 custom grew from a fear of their marrying the lord's enemy. 
 
 Fines were due the lord for every alienation of the tenant, 
 whenever he had occasion to make over his land to another, — 
 which he could not do, however, without the consent of the lord. 
 The lord, also, could not alien his seigniory without the consent 
 of his tenant, which consent was called his attornment; for the 
 feudal obligation was looked upon as reciprocal. 
 
 Sscheat is the determination of the tenure, or dissolution of 
 the mutual bond between the lord and tenant, from the extinc- 
 tion of the blood of the latter, by either natural or civil causes ; 
 in which case the land escheated or fell back to the lord of the 
 fee. 
 
 Tenure by grand-serjeanty, was where the tenant was 
 bound to do some special honorary service to the King in person. 
 
36 BLACKSTONB [book ii. 
 
 as to carry his banner, his sword, or the like ; or be his butler, 
 champion, or other ofEicer, at his coronation. 
 
 Tenure by cornage was a species of grand-serjeanty, and 
 consisted of winding a horn when the Scots and other enemies 
 entered the land, in order to warn the king's subjects. 
 
 Escuage, or scutage, was a pecuniary satisfaction instead of 
 military service which tenants found means of substituting in lieu 
 of the more troublesome personal attendance of knight-service j 
 this pecuniary substitute came at last to be levied by assess- 
 ments, at so much for every knight's fee ; but by the laws of 
 Edward I, and Magna Charta, no scutage could be levied with- 
 out the consent of parliament ; these scutages being the ground- 
 work of all succeeding subsidies, and the land tax of later times. 
 By this degeneration of personal military duty into pecuniary 
 assessments, the advantages of the feudal constitution were de- 
 stroyed. 
 
 THE MODERN ENGLISH TENURES are those of the 
 ancient or original English tenures which remained after the de- 
 struction of the military or m.ost oppressive of the feudal ten- 
 ures, which was accomplished at a single blow by the statute 12, 
 Charles II, whereby all tenures except frankalmoigne, grand- 
 serjeanty, and copyholds, were reduced to one general species of 
 tenure, called free and common socage. 
 
 This statute of Charles II was even a greater acquisition to 
 the civil property of the kingdom than Magna Charta itself; 
 since that only pruned the luxuriances that had grown out of 
 the military tenures, and thereby preserved the vigor of them ; 
 but the statute of Charles II extirpated the whole, and demol- 
 ished both root and branch. 
 
 The word socage, is derived from the Saxon appellation soc, 
 which signifies liberty or privilage, and being joined to a usual 
 termination, is called socage ; in Latin socagium, signifying a free 
 and privileged tenure. 
 
 Socage, in its most general and extensive signification, seems 
 to denote a tenure by any certain and determinate service. 
 
 This tenure includes petit serjeanty, tenure in burgage, and 
 gavel-kind. 
 
 Free socage tenures partook strongly of the feudal nature, 
 as well as those in chivalry; the lands being holden subject to 
 some service J at least to fealty, and suit of court; and subject to 
 reliefs, wardships, and escheat, but not to marriage. They were 
 
BOOKn.] BLACKSTONE. " 37 
 
 also formerly subject to aids, primer-seizin, fines for alienation, 
 and escheat, — except in gavel-kind. 
 
 Socage tenures were plainly the relics of Saxon liberty, 
 retained by such persons as had neither forfeited them to the 
 King, nor been obliged to exchange them for, as it was called, 
 the more honorable, but more troublesome, tenure of knight-ser- 
 vice. This is peculiarly remarkable in the tenure prevailing in 
 Kent, called gavel-kind, which is generally acknowledged to be 
 a species of socage tenure ; the preservation whereof from the 
 innovations of the N^ormans is a fact universally known. 
 
 The service must be certain, to denominate itsocap'e, and the 
 important distinction between tenure by knight-service and ten- 
 ure in socage is, that where the services were free and honorable, 
 but uncertain as to the time of their performance, as military ser- 
 vice, cornage, and the like, it was called tenure in knight-service, 
 or chivalry ; but where the service was not only free, but also 
 certain, as by fealty only, or by rent and fealty ; this was tenure 
 by free-socage, or liberum socagium. 
 
 Petit-serjeanty consisted of holding lands of the King, by 
 the rendering to him annually some small implement of war; 
 as a bow, sword, lance, arrow, and the like. It differs from 
 grand-serjeanty in that the latter was a personal service, instead 
 of a tribute service or render. Their resemblance is, that both 
 tend to some purpose relative to the King's person. 
 
 Tenure in burgage, is where the King or other person is 
 lord of an ancient borough in which the tenements are held by 
 a rent certain. It is a kind of town socage; as common socage, 
 by which other lands are holden, is usually of a rural nature. 
 
 Borough English is an incident of Burgage tenure, and pro- 
 vides that the youngest, instead of the eldest son, shall succeed 
 to the burgage tenement on the death of his father; by reason 
 of the custom of marcheta. 
 
 Gavel-kind is also a species of socage tenure, modified by 
 the customs of the country; the lands being holden by suit of 
 court and fealty, a service in its nature certain. 
 
 The distinguishing properties of gavel-kind, (which before the 
 If orman conquest was the general custom of the realm) are vari- 
 ous, the principal of which are ; that the tenant is of age suffi- 
 cient to alien his estate by feoffment, at the age of fifteen. The 
 estate does not escheat in case of an attainder and execution for 
 felony. In most places the tenant could devise his lands by will, 
 
38 
 
 BLACKSTOlSrE. 
 
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BOOK 11.] BLACKSTONB. 39 
 
 before the statute for that purpose was made. The lands de- 
 scended to all the sons together : which indeed was anciently the 
 course of descent over all England, though in some particular 
 places, particular customs prevailed. 
 
 That socage tenures partake of feudal nature or origin, as appar- 
 ent from a comparison of their incidents and consequences with 
 those of tenure in chivalry, probably arises from its more ancient 
 Saxon original; since, as before observed, feuds were not un- 
 known among the Saxons, though they did not form a part of 
 their military policy; nor were they drawn out into such arbi- 
 trary consequences, as among the Normans. 
 
 Villeins were a sort of people in downright servitude, under 
 the Saxon government, who were not only used and employed 
 in the most servile works, but belonged, both they and their chil- 
 dren and effects, to the lord of the soil, like the cattle or stock 
 upon it. They were either regardant, that is, annexed to the 
 manor or land ; or else in gross, or at large, that is, annexed to 
 the person of the lord. They were transferable by deed from 
 one person to another, but could acquire no property in land or 
 goods. The law however protected the persons of villeins as the 
 King's subjects, against atrocious injuries of the lord. 
 
 Pure villenage, then, was a precarious and slavish tenure, at 
 the absolute will of the lord, upon uncertain services of the basest 
 nature. 
 
 Copyhold tenures were the tenures of those descended 
 from, or who were originally villeins, but who by a long series 
 of immemorial encroachments on the lord, have at last estab- 
 lished a customary right to those estates, which before were 
 held absolutely at the will of the lord : which customs were evi- 
 denced by the rolls of the courts baron, in which they were en- 
 tered and kept on foot by the constant immemorial usage of the 
 manors in which the lands lay ; so they began to be called ten- 
 ants by copy of court-roll, and the tenure, a copy-hold. These ten- 
 ures were subject like socage tenures, to service, relief, and es- 
 cheat; also to heriots, wardship, and fines upon descent and alien- 
 ation. 
 
 Privileged villenage, or villein-socage, is an exalted 
 species of copyhold tenures upon base, but certain, services. The 
 tenants could not alien or transfer their tenements by grant or 
 feoffment, any more than pure villeins could. It was a tenure 
 subsisting only in the ancient demesne of the crown; whence it 
 
40 BLACKSTONB. [book ir. 
 
 is also denominated the tenure of ancient demesne. These exalted 
 species of copyhold tenures of ancient demesne have divers im- 
 munities annexed to them, but are still held by copy of court- 
 roll; but according to the custom of the manor, and not the will 
 of the lord. 
 
 Ancient demesne consists of those lands or manors, which, 
 though now perhaps granted out to private subjects, were actu- 
 ally in the hands of the crown in the time of Edward the Con- 
 fessor, or William the Conqueror; and so appear to have been, 
 by the great survey called Doomsday-book, compiled about the 
 nineteenth year of William I. 
 
 Tenure in Frankalmoigne, or free-alms, is that whereby a 
 religious corporation, aggregate or sole, holdeth lands or the 
 donor to them and their successors forever, 
 
 ESTATES IN THINGS REAL.— An estate in lands, 
 tenements, or hereditaments, signifies such interest as the tenant 
 has therein; to ascertain which we consider the quantity of inter- 
 est, the time of enjoyment, and the number and connection of the 
 tenants. 
 
 The quantity of interest is measured by its duration and 
 extent : thus, either the tenant's right of possession, is to subsist 
 for an uncertain period of his own life, or the life of another: 
 to determine at his own decease, or to remain to his descendants 
 after him : or it is circumscribed within a certain number of years, 
 months, or days : or lastly, it is infinite and unlimited, being 
 vested in him and his representatives forever. This occasions 
 the primary division of estates into freehold, and less than freehold. 
 There is also another species, called estates upon condition (wheth- 
 er freehold or otherwise), whose existence depends upon the 
 happening or not happening of some uncertain event. 
 
 An estate of freehold, liberum tenementum, or frank-tenement, 
 is such as is created by livery of seizin at common law ; or in ten- 
 ements of an ineorjDoreal nature, by what is equivalent thereto. 
 
 Estates of freehold are divided into estates of inheritance, 
 and not of inheritance. 
 
 Estates of inheritance are divided into inheritances ab- 
 solute, or fee-simple ; and inheritances limited, or limited fees. 
 
 Of inheritances absolute or fees-simple; in freehold 
 estates of inheritance, 
 
 A tenant in fee-simple, or tenant in fee, is he that hath lands, 
 tenements, or hereditaments, to hold to him and his heirs for- 
 
BooKii.] BLACKSTONE. 41 
 
 ■ever ; generally, absolutely, and simply : without mentioning 
 what heirs, but referring that to his own pleasure, or the dispo- 
 sition of the law. 
 
 Fee, (^feodum), in its true and original meaning, is the same 
 as feud, or fief, and in its primary sense, was taken in contradis- 
 tinction to allodium, — as now used. Fee, then meant that which 
 was held of some superior, on condition of rendering him ser- 
 vice, and in which superior the ultimate, property, or real own- 
 ership of the land resided. A subject therefore had only the 
 usufruct, and not the absolute property of the soil. "We exj)ress 
 the strongest and highest estate that any subject can have, by 
 the words ; " he is seized thereof, in his demesne, as of fee." It is 
 a man's demesne, or property, since it belongs to him and his 
 heirs forever ; yet it is his demesne as of fee, because it is not 
 purely and simply his own, since it is held of a superior lord in 
 whom the ultimate property resides. 
 
 A fee therefore, in general, signifies an estate of inheritance ; 
 being the highest and most extensive interest that a man can 
 have in lands. 
 
 A tenant in fee-simple is he that hath lands and tenements 
 to hold to him and his heirs forever. 
 
 Fee-simple now signifies a lawful or pure inheritance. Fee, 
 .signifying inheritance ; and simple is added for that it is descend- 
 ible to his heirs generally, that is simply, without restraint. The 
 word simple is also annexed to distinguish it from other fees, — as 
 fee-tail, fee-conditional, and the like. 
 
 A fee, then, is an estate of inheritance in law, belong- 
 ing to the owner, and transmissible to his heirs, and is 
 an estate that may continue forever. 
 
 In order to make a, fee or inheritance, the word "heirs" is nee- 
 ■essary in the grant, for if lands be given to a man forever, or to 
 him and his assigns forever, this vests in him but an estate for 
 life only. The exceptions to this rule are : devises by will ; fines 
 and recoveries, considered as a species of conveyance ; in crea- 
 tions of nobility by writ, though when by patent the word must 
 be inserted; in grants to sole corporations ; and in case of the 
 King. 
 
 Inheritances limited or limited fees, are divided into 
 qualified or base fees ; and feea-conditional, — so called at common 
 law ; — and afterwards, in consequence of the statute de donis, fees- 
 tail. 
 
42 BLACKSTONE. [bookh. 
 
 Limited fees are such estates of inheritance as are clogged 
 and confined with conditions or qualifications of any sort. 
 
 A base or qualified fee is one having a qualification sub- 
 joined thereto, and which must be determined whenever the 
 qualification annexed to it is at an end : as, if a grant be made 
 to A and his heirs, tenants of the Manor of Dale, whenever the. 
 heirs of A cease to be tenants of that manor, the grant is en- 
 tirely defeated. 
 
 A conditional fee, at the common law, was a fee restrained- 
 to some particular heirs, exclusive of others ; as to the heirs of a 
 man's body, by which only his lineal descendants were admitted,, 
 in exclusion of collateral heirs ; or to the heirs male of his body, 
 in exclusion of both collaterals, and lineal females also. 
 
 It ^^as called a conditional fee, by reason of the con- 
 dition eszpressed or implied in the donation of it, that if 
 the donee died without such particular heirs, the land should re- 
 vert to the donor. 
 
 IsTow the condition annexed to these fees, by the common law,, 
 when performed, is entirely gone, and the fee to which it was 
 before annexed and qualifying, became absolute ; e. g. a gift to a 
 man and the heirs of his body was a gift upon condition that it 
 should revert to the donor if the donee had not the heirs pre- 
 scribed; but to remain to him, if he had such heirs. Hence as 
 soon as the donee had the required heirs born to him, his estate 
 was no longer conditional, but became absolute by the perform- 
 ance of the condition. 
 
 It was therefore construed at common lav7 to be, and 
 called, a fee-simple, on condition that the donee had the 
 heirs prescribed. 
 
 The donee of a conditional fee had the power to convey, or 
 alien in fee, as soon as the condition was performed, and thereby 
 debar his own issue, and also the possibility of a reversion to the 
 donor. Now this right of alienation by the donee was repug- 
 nant to the nobility, who were anxious to perpetuate their pos- 
 sessions, and they alleged that it M'as a breach of the condition 
 of the grant or gift. They therefore procured the passage of 
 the Statute of "Westminster the Second (1272), commonly called 
 the statute de donis conditionalibus, for the express purpose of 
 preventing the donee of a conditional fee from aliening the land 
 as soon as issue was born ; and for the further purpose of secur- 
 ing the reversion to the grantor. This statute therefore provided 
 
BOOKII.J BLACKSTONE. 4S 
 
 that the lands or tenements given to the donee, and the heirs, — 
 or certain heirs, — of his body, should, in every event, go to such 
 issue^ if there were any j or if none, should revert to the donor. 
 
 The origin of fee-tail and reversion is from the construc- 
 tion given by the judges to this statute de donis, they determining- 
 that the donee had no longer a conditional fee-simple, which be- 
 came absolute, and at his own disposal the instant any issue was 
 born 3 but they divided the estate into two parts, leaving 
 in the donee a new kind of particular estate, which they 
 denominated a fee-tail ; and vested in the donor the ultimate 
 fee-simple of the land, expectant on the failure of issue; which- 
 expectant estate we now call a reversion. 
 
 A fee-tail, then, in its original, v?as a conditional fee 
 shorn of the right of alienation after condition per- 
 formed, and vesting in the donor an indefeasible rever- 
 sion. 
 
 Donor is, properly, one who gives lands to another in tail. 
 
 A fee-tail is so called because it is entailed; that is, limited as to 
 how long it shall continue. 
 
 The word " body," or some other words of procreation, are 
 necessary to make a fee-tail, in order to ascertain to what par- 
 ticular heirs the fee is limited, or restrained. 
 
 So if a grant be made to a man and his issue of his body, to a 
 man and his seed, to a man and his children or offspring, all these 
 are only estates for life, there wanting the words of inheritance^ 
 " his heirs." 
 
 Elstates-tail are either general or special, male or female, or 
 given in frank-marriage. 
 
 Tail-general is where lands and tenements are given to one 
 and the heirs of his body begotten, — because how often-soever such 
 donee may be married, his issue in general by all and every 
 such marriage is in successive order capable of inheriting the 
 estate-tail, per formam doni. 
 
 Tail-special is where the gift is restrained to certain heirs of" 
 the donee's body, and does not go to all of them in general ; as 
 if lands be given to a man and the heirs of his body, on Mary his^ 
 now wife to be begotten. 
 
 Tail-male general is where lands are given to a man and 
 his heirs male of his body begotten. 
 
 Tail-female special is where lands are given to a man and 
 the heirs female, of his body, on his present wife begotten. 
 
44 BLACKSTOJSTE. [book ii. 
 
 In case of an entail male, the heirs female shall never inherit; 
 nor any derived from them; nor e converso, t\LQ heirs male in 
 • case of a gift in tail-female. 
 
 Frank-marriage is where tenements are given by one to an- 
 other, together with a wife, who is the daughter or cousin of the 
 donor, to hold in frank-marriage. By such gift, though nothing 
 but the -wovA. frank-marriage is expressed, the donees shall have 
 the tenements to them and the heirs of their two bodies begotten, — 
 that is, they are tenants in special tail. 
 
 The inconveniences resulting from this tying up of the landed 
 property by estates tail were avoided about two hundred years 
 after the enactment of the statute de donis, by the invention of 
 fines and common recoveries, which removed the limitations upon 
 them, and passed an absolute and pure fee-simple. 
 
 Freehold estates not of inheritance are for life only. 
 They are either convention al, expressly created by the act of the 
 parties ; or legal, created by construction and operation of law. 
 
 Conventional estates for life are created by an exjDress 
 deed or grant, whereby a lease of lands or tenements is made to 
 a man to hold for the term of his own life, or for that of any 
 other person ; or for more lives than one ; in any of which cases 
 he is called tenant for life : when he holds the estate by the life of 
 anothei-, he is usually called tenant pur auter vie. 
 
 It is a rule of law that all grants are to be taken most 
 strongly against the grantor ; unless in the case of the King. 
 
 An estate is granted to one for the term of his " natural life " 
 generallj', because it may be determined by his civil death, if 
 granted for " his life " only ; but one's natural life can only be 
 -determined by his natural death. 
 
 Incident to all estates for life, are estovers and emblements. 
 
 If a tenant for life sows the land and dies before harvest, this 
 is a determination of the term by the act of God, and he, or 
 rather his personal rej)resentatives, are entitled to the emble- 
 ments, or growing crops. 
 
 The legal estates for life are tenancy in tail, after possibil- 
 ity of issiie extinct ; tenancy by the curtesy of England ; and ten- 
 ancy in doxoer. 
 
 Tenancy in tail after possibility of issue extinct oc- 
 curs where one is a tenant in special tail, and a person from 
 whose body the issue was to spring dies without issue; or hav- 
 ing left issue, that issue becomes extinct. 
 
BOOK II.] BLACKSTONE. 45- 
 
 Tenancy liy the curtesy of England is where a man marries- 
 a woman seized of an estate of inheritance, that is, of lands and 
 tenements in fee-simple or fee-tail, and has by her issue born 
 alive, which was capable of inheriting her estate; in this case he 
 shall, on the death of his wife, hold the lands for his natural life,, 
 as tenant by the curtesy. 
 
 The four requisites necessary to make a tenancy by the curtesy 
 of England are : marriage, seizin of the wife, issue, and death of 
 the wife. 
 
 Tenancy in dovrer in where a woman's husband is seized of 
 an estate of inheritance, of which her issue might by any pos- 
 sibility have been heir, and the husband dies; in this case the 
 wife shall have the third part of all the lands and tenements 
 whereof he was seized at any time during coverture, to hold for 
 her natural life. 
 
 Dovrer was either 6]/ common Zaw, or that just described; by 
 particular custom, as, that the wife should have half the husband's 
 lands, or in some places, the whole, and in some only a quarter; 
 dower ad ostium ecclesice, which is where the person openly at the 
 church door endowed the wife with such quantity as he pleased 
 of his lands, to be enjoyed after his death; or dower ex assensu 
 patris, which is only a species of the kind last mentioned, and is 
 made when the husband's father is alive, and the son by his con- 
 sent endows his wife with parcel of his father's lands. 
 
 The most usual species of dower was that by common law. 
 
 Do'wer may be barred or prevented in various waj-s ; the 
 most usual method being by jointure. 
 
 Jointure, which was in lieu or satisfaction of dower, is a 
 competent livelihood of freehold for the wife of lands and ten- 
 ements, to take effect, in profit or possession, presently after the 
 death of the husband, for. the life of the wife at least. 
 
 If the jointure was made after marriage, she had her election 
 after her husband's death to accept or reject it, and betake herself 
 to her dower at common law ; for she was not capable of consent- 
 ing to it during covefture. 
 
 ESTATES LESS THAN FREEHOLD are: estates 
 for years ; estates at will ; and estates by sufferance. 
 
 An estate for years is a contract for the possession of lands 
 or tenements for some determinate period. Every estate which 
 must expire at a period certain is an estate for years. 
 
 Where a man seized of lands and tenements letteth them tO' 
 
46 BLACKSTONB. [book ii. 
 
 another for a certain period of time, which gives the tenant or 
 lessee a right of entry on the lands only, which right is called 
 his interest in the term, and he is possessed not properly of the land, 
 but of the term of years, — the possession or seizin of the land 
 remaining in him who hath the freehold, 
 
 It is called a term, because its duration is bounded, 
 limited, and determined. 
 
 The legal difference betwen the term, and the time, of a lease, 
 for years, is that the word term does not merely signify the 
 time specified in the lease, but the estate also, and interest that 
 passes by that lease ; therefore the term may expire during the 
 continuance of the time, as by surrender, forfeiture, and the like. 
 
 Where an estate for years is determined by any uncertain or 
 unforseen contingency, as by an act of God, the tenant or his 
 executors shall have the emblements, as in case of tenant for life ; 
 but not, if determined by his own act. 
 
 An estate at will is where lands and tenements are let by 
 one man to another to hold at the will of both parties ; and the 
 lessee enters thereon. 
 
 Under this estate the tenant shall have the emblements, unless 
 the estate be determined by his own act. 
 
 An estate afr sufferance is where one comes into possession 
 of land by lawful title, but keeps it afterwards without any title 
 at all. 
 
 ESTATES UPON CONDITION, whether freehold or 
 otherwise, are such whose existence depends upon the hap- 
 pening, or not happening, of some uncertain event, whereby the 
 estate may be either originally created, or enlarged, or finally 
 defeated. 
 
 Estates upon condition are divided into those upon condition 
 implied, and those upon condition expressed, — the latter includ- 
 ing estates held in vadio, gage, or pledge; estates by statute 
 staple, or statute merchant ; and estates held by elegit. 
 
 Estates upon condition implied in law, are where the 
 grant of an estate has a condition anne:?Bd to it inseparably 
 from its essence and constitution, although no condition be ex- 
 pressed in words 3 as if a grant of an office be made to a man, 
 generally, without adding other words, the law tacitly annexes 
 thereto a secret condition' th&t the grantee shall duly execute his 
 -office. 
 
 Estates upon condition expressed in the grant itself 
 
BOOK II.] BLACKSTONE. 47 
 
 are estates granted in fee-simple or otherwise, with an express 
 <lualification or provision annexed, whereby the estate shall 
 either commence, be enlarged, or defeated, upon the perform- 
 ance or breach of such qualification or condition. 
 
 Conditions expressed are either precedent, — such as must 
 happen or be performed before the estate can vest, or subsequent, 
 — such as by the failure or non-performance of which an estate, 
 already vested, may be defeated. 
 
 A condition in la"w is one impliedly annexed by law to the 
 grant. 
 
 A condition in deed is one expressly mentioned in the 
 deed or contract between the parties ; and the object of them is 
 either to avoid or defeat an estate. 
 
 A condition in deed is cither general or special. The former 
 puts an end altogether to the tenancy on entry, for the breach of 
 the condition ; the latter only authorizes the reversioner to enter 
 on the land and take the profits, and hold the land by way of 
 pledge, until the condition be performed. 
 
 Persons who have an estate of freehold subject to a condition 
 are seized, and may convey or devise the same, though the estate 
 will continue defeasible or subject to the condition till the con- 
 dition be performed, destroyed, or released. 
 
 A limitation in lavr is where an estate is so expressly con- 
 fined and limited by the words of its creation that it cannot en- 
 dure for any longer time than till the contingency happens 
 upon which the estate is to fail. 
 
 The material distinction between a condition in a deed 
 and a limitation in \?cvr consists in this : that a condition (in 
 deed) does not defeat the estate although it be broken, the law 
 permitting it to endure, unless the grantor or his heirs or assigns 
 enter and take advantage of the breach of the condition ; but it 
 is the nature of a limitation (in law) to determine the estate when 
 the i)eriod of limitation arrives, xoitJwut entry, or claim, no act 
 being requisite to vest the right in him who has the next ex- 
 pectant estate. 
 
 It is a rule of law that he who enters for a condition broken 
 becomes seized of his first estate, and he avoids all intermediate 
 charges and incumbrances. 
 
 An estate for years ceases as soon as the condition is broken, 
 l)ut an estate of freehold does not cease after condition broken. 
 MntU entry, or claim. 
 
48 BLACKSTONB. [book ir. 
 
 Words of limitation mark the period which is to determine- 
 the estate ; words of condition render the estate liable to bfr 
 defeated. 
 
 The one specifies the utmost time of continuance; and the 
 other marks some event, which, if it takes place in the course 
 of that time, will defeat the estate. 
 
 A conditional limitation, is where a condition subsequent is. 
 followed by a limitation over to a third person, in case the con- 
 dition be not fuMUed, or there be a breach of it. 
 
 A collateral limitation gives an interest for a specified pe- 
 riod, but makes the right of enjoyment to depend on some col- 
 lateral event ; as where an estate is limited to a man and his. 
 heirs, tenants of the manor of Dale. 
 
 Estates in gage, vadio, or pledge are estates granted as a se- 
 curity for money lent, and are of two kinds; vivum vadium, or 
 living pledge ; and mortuum vadium, or dead pledge, or mortgage. 
 
 Vivum vadium, or living pledge, is whore a man borrows- 
 money of another, and grants him an estate at so much per an- 
 num to hold till the rents and profits shall repay the sum bor- 
 rowed. This is upon condition, to be void on rej)ayment of the- 
 loan, and the land or pledge is said to bo living, as it subsists and 
 survives the debt, and on discharge of the same the land results 
 back to the borrower. 
 
 Mortuum vadium, dead pledge, or mortgage, is where 
 a man borrows money of another and grants him an estate in 
 fee, on condition that if he, the mortgagor, shall repay the mort- 
 gagee the sura borrowed, on a certain day mentioned in the- 
 deed, that then the mortgagor may re-enter on the estate- 
 so granted in pledge ; but in case of non-payment at the time 
 limited, the land put in pledge is, by law, forever dead 
 and gone from the mortgagor, and the mortgagee's title is- 
 absolute. 
 
 Equity of redemption was a reasonable time or advantage 
 allowed to mortgagors by courts of equity to redeem their lands.. 
 
 Foreclosure was whore the mortgagee either compelled the 
 sale of the estate, in order to get the whole of his money imme- 
 diately ; or called upon the mortgagor to redeem his estate pres- 
 ently, or in default thereof, to be iovQYav foreclosed from redeem- 
 ing the same; that is, lose his equity of redemption. 
 
 Estates by statute merchant and statute staple are very 
 nearly related to vivum vadium, being also estates conveyed to 
 
BOOK II.] BLACKSTONE. 49 
 
 creditors, in pursuance of certain statutes, till their profits shall 
 discharge the debt. 
 
 Both are securities for money ; the one entered into be- 
 fore the chief magistrate of some trading town, pursuant to the 
 statute 13, Edward I, de mercatoribus, and thence called statute 
 merchant; the other pursuant to statute 27, Edward III, before 
 the mayor of the staple ; whence called statute staple. 
 
 Estates by elegit are another kind of conditional estates, 
 created by operation of law, for the security and satisfaction of 
 debts. 
 
 Elegit, (he has chosen), is the name of a writ founded on the 
 statute Westminster Second, by which, after a plaintiff has re- 
 covered judgment for his debt, at law, the sheriff gives him pos- 
 session of one-half of the defendant's lands and tenements, to be 
 occupied and enjoyed until his debt and damages are fully paid; 
 and during the time he so holds them, he is called tenant by 
 elegit. 
 
 TIME OF THEIR ENJOYMENT.— Estates are either in 
 possession or expectancy ; the latter being created at the same 
 time, and are parcel of the same estates as those upon which 
 they are expectant. 
 
 Estates in possession, or executed, are those whereby a 
 j)reseni interest passes ; and not being dependent on any subse- 
 quent circumstances, there is but little to be said of them, all 
 hitherto considered being estates of this kind. 
 
 Estates in expectancy, or executory, are such as are to be 
 enjoyed in the future, and depend on some subsequent circum- 
 stance or contingency. 
 
 They are of two kinds : Bemainder, — created by act of the par- 
 ties ; and Reversion, — created by act or operation of law. 
 
 An estate in remainder is an estate limited to take effect 
 and be enjoyed after another estate is determined : as where 
 lands are granted to A for twenty years, remainder to B in fee. 
 
 Both these interests are but different parts of one whole estate, 
 or inheritance : they are both created, and may subsist together ; 
 the one in possession, the other in expectancy; hence no re- 
 mainder can be limited after the grant of an estate in fee-simple ; 
 because the tenant in fee hath in him the whole of the estate. 
 
 The three rules of law to be observed in the crea- 
 tion of Remainders are ; first, there must necessarily be some 
 particular estate precedent to the estate in remainder ; secondly, 
 
50 BLACKSTOlsrE. [bookh. 
 
 the remainder must commence or pass out of the grantor, at the 
 time of the creation of the particular estate ; thirdly, the re- 
 mainder must vest in the grantee during the continuance of the 
 particular estate, or eo instanti that it determines. 
 
 The precedent estate spoken of in the first rule, is called 
 the particular estate, being only a small part, or particula, of the 
 inheritance, or fee. 
 
 The use or necessity of the precedent particular es- 
 tate 'was to prevent an abeyance of the freehold, — as 
 at common law an estate of freehold could not be created to 
 commence in futuro ; and for that the remainder, as its name im- 
 plies, was but a part only of the thing disposed of. 
 
 It "vvas a rule of the common law that an estate of freehold 
 could not be created to commence in futuro, but that it ought to 
 take effect presently (immediately), either in possession or re- 
 mainder; because at common la^w no freehold in lands 
 cotild pass Tvithout livery of seizin ; which must operate 
 immediately, or not at all. 
 
 In granting, then, an estate of freehold to be enjoyed in futuro, 
 it is necessary to create a previous, or precedent particular 
 estate, to subsist till that period ; and for the grantor to deliver 
 immediate possession of the land to the tenant of this particular 
 estate, which is construed to be giving possession to him in re- 
 mainder, since his estate and that of the particular tenant are 
 one and the same estate in law. 
 
 The whole estate passes at once from the grantor to 
 the grantees ; the remainder man being seized of his remainder 
 at the same time that the lermor is seized of his term. 
 
 While the enjoyment of the remainder is deferred, it is to all 
 intents and purposes an estate commencing in prcesenti, — though 
 occupied and enjoyed in futuro. 
 
 The particular estate is said to support the remainder; hence 
 it is generally true that if the particular estate is void in its cre- 
 ation, or by any means defeated afterwards, the remainder sup- 
 ported by it is defeated also. 
 
 Remainders are of two kinds ; vested or contingent. 
 
 Vested remainders are where the estate is fixed to remain 
 to a determinate person, after the particular estate is spent. 
 
 An estate is vested when there is an immediate right of pres- 
 ent enjoyment, or a present fixed right of future enjoyment. It 
 gives a legal or equitable seizin. 
 
BOOK II.] BLACKSTONB. 51 
 
 It 13 the present capacity of taking eifect in possession, if the 
 possession were to become vacant, that distinguishes a vested 
 from a contingent remainder. 
 
 Contingent remainders are such where the estate in re- 
 mainder is limited to talie effect, either to a dubious or uncertain 
 person, or upon a dubious or uncertain event. 
 
 Contingent remainders, if they amount to a freehold, cannot 
 be limited on an estate for years, or on any particular estate less 
 than a freehold. 
 
 It is not the uncertainty of enjoyment in the future, but the 
 uncertainty of the right to that enjoyment, which marks the dif- 
 ference between a vested and contingent interest. 
 
 There must be a particular estate to precede a remainder, for it 
 necessarily implies that a part of the estate has been already 
 carved out of it, and vested in immediate possession in some 
 other person. 
 
 The reason of the rule requiring a contingent remainder to be 
 supported by a freehold, was that the freehold should not be in 
 abeyance, and that there should be always a visible tenant of the 
 freehold, who might be made tenant to the prcecipe, and answer 
 for the services required. 
 
 If the particular estate terminates before the remainder can 
 vest, the remainder is gone forever ; for a freehold cannot, ac- 
 cording to the common law, commence infuturo. 
 
 If the particular estate determines, or be destroyed, before 
 the contingency happens upon which the expectant estate de- 
 pended, and leaves no right of entry, the remainder is annihilated. 
 
 The rule in Shelley's case declares, that when the ancestor, 
 by any gift or conveyance, taketh an estate of freehold, and in 
 the same gift or conveyance an estate is limited, either mediately, 
 or immediately, to his heirs, in fee or in tail, " his heirs " are 
 words of limitation of the estate, and not words of purchase. 
 
 The rule is of positive institution, and in direct variance with 
 rules of construction ; for, while the latter seek to promote the 
 intention of the parties, the former subverts it. 
 
 The origin of the rule in Shelley's case is attributed to the 
 aversion the common law had to the inheritance being in abey- 
 ance, and the desire to facilitate the alienation of land, and to 
 throw it into the track of commerce one generation sooner, by 
 vesting the inheritance in the ancestor, thereby giving him the 
 j)ower of disposition over it. 
 
52 BLACKSTOISrE. [book ii. 
 
 The policy of the rule was that no person should be per- 
 mitted to raise in another an estate which was essentially an es- 
 tate of inheritance, and at the same time made the heirs of that 
 person purchasers. 
 
 In order that the heirs of the ancestor might, in time, enjoy 
 the estate, as well as the ancestor himself while living; it was 
 necessary and usual, in order to prevent him from encumbering 
 or alienating the estate, to grant him a particular estate /or life, 
 and the remainder to his heirs. By the fixed rule of construction 
 or legal interpretation, which always sought for the intention of 
 the parties to written instruments, the ancestor would have only 
 the use and enjoyment of the estate /or life, and then it would go 
 to his heirs, who would take it, not from the ancestor by inheri- 
 tance, but as an original and independent estate from the gvMiir 
 or, by purchase ; for any estate not acquired by inheritance is 
 said to be acquired by purchase. 
 
 But, by a fiction in law, — making the word heirs, or heirs of his 
 body, in the transfer of estates, create a fee-simple or a fee-tail, — 
 the rule in Shelley's case declares, in substance, that the words 
 " his heirs," in the grant merge the life estate and the remainder, 
 and cast the fee-simple, or whatever the estate may be, upon the 
 ancestor, thus making him the absolute owner of the whole es- 
 tate. He could then partially or totally defeat the expectations 
 of his relatives, and the will of the grantor. 
 
 Hence we see, that when a freehold is granted to a man, and 
 remainder to his heirs, it is equivalent to giving him a fee-simple,, 
 or the entire estate. 
 
 Coke says, that "where the ancestors a freehold take, 
 the words ' his heirs ' a limitation make." 
 
 An executory devise is such a disposition of lands, by will, 
 that thereby no estate vests at the death of the devisor, but only 
 on some future contingency. 
 
 An executory devise differs from a remainder in three very ma- 
 terial points, viz : first, it needs not any particular estate to sup- 
 port it; secondly, by it, a fee-simple or other less estate, may be 
 limited, after a fee-simple; and, thirdly, by this means a remain- 
 der may be limited of a chattel interest after a particular estate 
 for life created in the same. 
 
 An executory devise is, in eifect, a contingent remainder, with- 
 out any precedent particular estate to support it ; — a freehold, 
 commencing infuturo; and such a grant or limitation would be 
 
BOOK II.] BLACKSTONE. 53 
 
 void in a deed, but is good in a will, by way of executory devise. 
 
 An executory devise is a limitation by will of a future contin- 
 gent interest in lands, contrary to the rules of limitations of con- 
 tingent estates in conveyance. 
 
 The reason of the institution of executory devises 
 was to support the will of the testator; for when the testator 
 intended to create a contingent remainder, and it could not 
 operate as such by the rules of law, the limitation was then, 
 out of indulgence to wills, held to be good as an executory 
 devise. 
 
 As by executory devise a freehold interest could pass with- 
 out livery or seizin, — that is, commence infuturo, — it needed no 
 particular estate to support it, the only use of which is to make 
 the remainder, by its unity with the particular estate, a 
 present interest. 
 
 As stated, by executory devise a fee, or other less estate, may 
 be limited after a fee, as, if a man devise lands to A and his 
 heirs, but if he dies before the age of twenty-one, then to B and 
 his heirs, this remainder, though void in a deed, is good by way 
 of executory devise. 
 
 There are two kinds of executory devises relating to 
 real estate : first, where the devisor parts with his whole estate, 
 but upon some contingency qualifies the disposition of it, and 
 limits an estate upon that contingency; secondly, where the tes- 
 tator gives a future interest to arise upon a contingency, but does 
 not part with the fee in the meantime. 
 
 Until the contingency happens, the fee passes, in the usual 
 course of descent, to the heirs at law. 
 
 The utmost length of time allowed for the contingency 
 of an executory devise to happen in is that of a life or 
 lives in being, and twenty-one years thereafter; for the law so 
 g,bhors perpetuities that it will not allow even, wills -to create 
 them. 
 
 A valid executory devise cannot exist under an absolute pow- 
 er of disposition in the first taker. 
 
 Executory devises differ from contingent remainders, in that 
 the latter relate only to lands; executory devises relate to per- 
 sonal, as well as real, estate. Contingent remainders require a 
 fifeehold to precede and support them; an executory devise does 
 not. Contingent re^nainders must vest, at farthest, at the in- 
 stant the preceding estate determines; but an executory devise 
 
54 JBLACKSTONE. [book ir. 
 
 may vest after the determination of a precedent estate. A con- 
 tingent remainder may be barred and destroyed by different 
 means; but an executory devise cannot be so prevented or de- 
 stroyed by any alteration whatsoever in the estate out of which, 
 or after which, it is limited. 
 
 A reversion is the residue of an estate left in the grant- 
 or, to commence in possession, after the determination of some 
 particular estate granted out by him. 
 
 Coke says, that it is the returning of the land to the grant- 
 or or his heirs after the grant is over. 
 
 The fee-simple of the land must abide somewhere ; and if he who 
 has before possessed of the whole, carves out of it any less estate, 
 and grants it away, whatsoever is not granted remains in him. 
 
 Hence a reversion is never created by deed or writing, but 
 always arises from construction of law. 
 
 The doctrine of merger is that whenever a greater estate 
 and a less coincide and meet in one and the same person, in one 
 and the same right, without any intermediate estate, the less 
 estate is immediately annihilated, or, is said, in law phrase, to be 
 merged, or drowned, in the greater. 
 
 An estate-tail is an exception to this rule; for a man may 
 have in his own right an estate-tail, and a reversion in fee, and 
 they will not merge, being preserved from merger by operation, 
 of the statute de donis. 
 
 NUMBER AND CONNECTIONS OF THE TENANTS. 
 — Estates may be held in severalty in joint-tenancy, in coparce- 
 nary, and in common. 
 
 An estate in severalty is where one holds lands in his own 
 right only, without any other person being joined or connected 
 with him in point of interest during his estate therein. 
 
 An estate in joint-tenancy is where lands or tenements 
 are grantfed to two or more persons, to hold in any manner; in 
 which case the law construes them to be joint-tenants, unless the 
 words of the grant expressly exclude such construction. 
 
 The creation of an estate in joint-tenancy depends on the 
 wording of the deed or devise by which the tenants claim title; 
 for this estate can only arise by purchase or grant, that is, by act 
 of the parties, and never by the mere act of law. 
 
 Joint-tenants, therefore, arc persons who own lands by a 
 joint title, created expressly by one and the same deed or will. 
 They hold uniformly by purchase. 
 
BOOKH.] BLACKSTONB. 55 
 
 The properties of an estate in joint-tenancy are derived 
 from its unity, which is fourfold, viz : unity of interest, unity of 
 title, unity of time, and unity of possession. In other words, 
 joint-tenants have one and the same interest, accruing by one 
 and the same conveyance, commencing at one and the same 
 time, and held by one and the same undivided possession. They 
 are said to be seized per mp et per tout, — by the half or moiety, 
 and of all ; that is, they each of them have the entire possession, 
 as well of every parcel as of the whole; therefore, upon the 
 decease of one joint-tenant, the entire tenancy remains 
 to the survivors, and, eventually, to the last survivor. This 
 is the nature and consequence of the unity and entirety of their 
 interest, and is called the doctrine of survivor-ship, or jus accre- 
 scendi. 
 
 This estate may be dissolved by destroying any one of its 
 constituent unities. 
 
 An estate in coparcenary is where an estate of inherit- 
 ance descends from the ancestor to two or more persons. 
 
 They are called parceners, for brevity and because they 
 may be constrained to make partition. 
 
 It arose at common law, where a person died and his next heirs 
 were two or more females, as daughters, sisters, aunts, cousins, 
 or their representatives ; and by particular custom, as where lands 
 descend, as in gavel-kind, to all the males in equal degree, as 
 sons, brothers and uncles. In either case these co-heirs were 
 called parceners; they all inherit, and together make but one 
 heir, and have but one estate among them. 
 
 Estates in coparcenary are in some respects like those 
 in joint-tenancy, having the same unities of interest, title, and 
 possession ; but differ in that they always claim by descent, where- 
 as joint-tenants always claim by purchase. Though having a 
 unity, they have not an entirety, of interest; they are seized per 
 my, and not per tout, hence there is no survivor-ship among 
 them. 
 
 The law of Hotch-pot, — "the word seemeth in English to 
 mean a pudding, in which are put not one thing alone, but one 
 thing with other things together," — was a metaphor used by our 
 ancestors, denoting that the lands given in frank-marriage and 
 those descending in fee-simple should be mixed and blended to- 
 gether, and then divided equally among the daughters, if the 
 donee in frank-marriage so wished. 
 
56 BLACKSTOlSrE. [book n. 
 
 An estate in coparcenary may be dissolved by destroy- 
 ing any of its three constituent unities : as by partition, which 
 disunites the possession; by alienation of one parcener, which 
 disunites the tide, and may disunite, the interest; or by the whole 
 at last descending and vesting in one person, which brings it to 
 an estate in severalty. 
 
 An estate in common is where two or more persons hold 
 lands, possibly by distinct titles, and for distinct interests; but 
 by unity of possession, because none knoweth his own sev- 
 eralty. 
 
 Tenants in common hold, therefore, by unity of possession, 
 (without survivor-ship, being seized per my, and not per tout,) 
 but have no unity of title, time, or interest. 
 
 Tenancy in common may be created by the destruction of the 
 constituent unities of the two former estates, or by special limi- 
 tation in a deed. 
 
 They may take by j)urchase or descent, and are deemed to 
 have several and distinct freeholds. 
 
 They are also compellable to make partition of their lands 
 and to account for profits arising from the same. 
 
 Tenancies in common differ in nothing from sole estates but 
 merely the blending and unity of possession. 
 
 TITLE TO THINGS KEAL, IN GENERAL.— A title is 
 the means whereby a man has the just possession of his prop- 
 erty. 
 
 The stages or degrees requisite to form a complete title are : 
 naked possession, right of possession, and right of property, which, 
 when united, form a complete or legal title. 
 
 Title to things real, or estates in lands and tenements, 
 are acquired or lost by descent, where the title is vested in a man 
 by the single operation of the law ; or by purchase, where the 
 title is vested in him by his own act or agreement. 
 
 Title by descent, or hereditary succession, is where a man, 
 on the death of his ancestor, acquires his estate by right of rep- 
 resentation, as his heir at law. 
 
 An ancestor ia one that an inheritance of lands or tenements 
 can be derived from, only by his having had actual seizin of such 
 lands, either by his own entry, or by the possession of his own 
 or the ancestor's lessee for years ; or by receiving rent from a 
 lessee of the freehold ; and in incorporeal hereditaments, by his 
 having what is equivalent to corporeal seizin. 
 
BOOK II.] BLACKSTONE. 5T 
 
 An heir is he upon whom the law casts the estate immediately 
 •on the death of the ancestor. 
 
 Right heirs mean direct or lineal heirs. 
 
 Heir apparent is one whose right of inheritance is indefeas- 
 ible if he outlive the ancestor. 
 
 Heir presumptive is one who, if the ancestor should die 
 immediately, would, in the present circumstances of things, be 
 the heir ; but whose right of inheritance may be defeated by the 
 contingency of some nearer heir being born. 
 
 An inheritance is the estate descending from the an- 
 cestor to the heir. 
 
 A£Bnity is relationship by marriage. 
 
 Consanguinity, or kindred, is the connection or relation of 
 persons descended from the same stock or common ancestor. It 
 is either lineal or collateral. 
 
 Lineal consanguinity is where one kinsman is descended, 
 in a direct line, from the other. 
 
 Collateral consanguinity is where the kinsmen descend 
 from the same stock or ancestor, but not in direct line, one from 
 the other. 
 
 Degrees of relationship are computed by beginning at the 
 •common ancestor and reckoning downwards, and in whatever 
 degree the two persons, or the most remote of them, is distant 
 from the common ancestor, that is the degree in which they are 
 related to each other. 
 
 The rules of descent by the laws of England are as 
 follows : 
 
 Inheritances shall lineally descend to the issue of the person 
 last actually seized, in infinitum, but shall never lineally ascend. 
 
 The male issue shall be admitted before the female. 
 
 Where two or more males are in equal degree, the eldest only 
 shall inherit ; but the females all together. 
 
 The lineal descendants, in infinitum, shall represent their 
 deceased ancestor, that is, shall stand in the same place as he 
 himself would had he lived. 
 
 On failure of lineal descendants, the inheritance shall descend 
 to the collateral relations of the blood of the first purchaser, 
 subject to the three preceding rules : — to evidence which blood 
 there are two rules, viz : 
 
 The collateral heir of the person last seized must be his next 
 collateral kinsman of the whole blood. 
 
58 ELACKSTONE. [book ii. 
 
 THE BECKONING 
 
 OF DBGKEES OF 
 
 KIKDEED OE EELATIOl^TSHIP 
 
 IS AS FOLLOWS : 
 
 I.-LINEAL. 
 
 ri. Father, motlier. 
 
 I 2. Grandfather, grandmother. 
 
 3. Great grandfather, great grandmother, and 
 [_ SO ou ad infinitum. 
 CONSAJTOTTINITY. \ 
 
 il. Father, mother. 
 2. Son, daughter. 
 3. Grandson, granddaughter, and so on ad. 
 infinitum. 
 
 ASYTSm, 
 
 J^^^^^iry.^ /I- Father-in-law, mother-in-law. 
 f ^^"^"^^"ff- \2. Step-father, step-mother. 
 
 J- Deicendina I ^- J'ather-in-law, mother-in-law. 
 ■descending. ^2. Son-in-law, daughter-in-law. 
 
 II.~CO LLATERAL. 
 
 1. Brother, sister. 
 
 CoNSANOtriNiTY. ] 2. Brother's children, sister's children. 
 
 Uncle, aunt 
 
 r. J 2! 
 (.3. 
 
 AFFmiTT / ^' ^^™t^'^'^'s wife, sister's husband. 
 
 \ 2. Uncle's wife, aunt's husband. 
 
BOOKii.] BLACKSTOISTB. 59^ 
 
 In collateral inheritances, the male ancestral stock shall be pre- 
 ferred to the female, unless the lands have descended from a female. 
 
 TITLE BY PURCHASE, or perquisition, is the posses- 
 sion of lands vrhich a man hath by his own act or agree- 
 ment, and not by the mere act of law, or by descent. It in- 
 cludes every other method of coming to an estate but that by 
 inheritance. This embraces title by Escheat, by Occupancy, 
 Prescription, Forfeiture, and Alienation. 
 
 Title by escheat (signifying chance or accident) denotes an 
 obstruction of the course of descent, and a consequent determina- 
 tion of the tenure by some unforeseen contingency, in which case 
 the land naturally resulted back by a kind of reversion to the- 
 original grantor, or lord of the fee. 
 
 Escheat resulted from either natural or civil causes, 
 as by the death of the tenant without heirs, or by his blood be- 
 coming attainted, etc. 
 
 The law of escheat is founded upon the principle that the- 
 blood of the person last seized in fee-simple is by some means- 
 utterly extinct or gone. 
 
 Title by occupancy is the taking possession of those things- 
 which before belonged to nobody. 
 
 This title was founded upon the rule of the ancient common 
 law, that what belonged to nobody is given to the occupant by~ 
 natural right. 
 
 The la'w of alluvion and dereliction, that is, where land 
 was made by the washing up of earth and sand by the sea, rivers, 
 etc., and by the sea shrinking hack below the usual water-mark, 
 was, that if an island arose in the middle of a river, it belonged 
 in common to the owners of the lands on each side of it ; but if 
 nearer to one bank than the other, it belonged to the proprietor- 
 of the nearest shore. 
 
 It was probably taken from the civil law. 
 
 But if the alluvion or dereliction was sudden and considerable, , 
 it belonged to the King, at common law; and by the civil law,, 
 to the first occupant. 
 
 Jetsam is where goods are cast into the sea, and there sink 
 and remain under water. 
 
 Ligan is where they are sunk in the sea, but tied to a cork or 
 buoy, in order to be found again. 
 
 Flotsam is where they continue swimming on the surface of 
 the water. 
 
60 BLACKSTONE. [book II, 
 
 Title by prescription is where a man can show no other 
 title to what he claims than that he and those under whom he 
 ■claims have immemorially used to enjoy it. 
 
 All prescription must be in a man and his ancestors, or in a 
 man and those whose estate he hath, which last is called pre- 
 scribing in a que estate. 
 
 Usage is long and uniform practice. 
 
 Custom is local usage that has acquired the force of law. 
 
 Prescription is immemorial jiersonaZ usage, that is, usage be- 
 yond the " time of memory." 
 
 The principal distinction between custom and prescription is, 
 that one is a local, and the other a personal usage. 
 
 Estates gained by prescription are not, of course, descendible 
 to the heirs general, like other purchased estates, but are an ex- 
 ception to the rule. For, properly speaking, the prescription is 
 rather to be considered as an evidence of a former acquisition, 
 than as an acquisition de novo. 
 
 Nothing but incorporeal hereditaments can be claimed by pre- 
 scription, as a right of way, a common, etc. 
 
 No prescription can give a title to lands and other corporeal 
 substances, of which more certain evidence may be had. 
 
 A prescription must always be laid in him that is tenant of the 
 fee. 
 
 A tenant for life, for years, at will, or a copyholder, cannot 
 prescribe, by reason of the imbecility of their estates. 
 
 A prescription cannot be for a thing which cannot be raised 
 by grant ; for the law allows prescription only in support of the 
 loss of a grant, which it presupposes to have existed. 
 
 If a man prescribes in a que estate, nothing is claimable but 
 .such things as are incident appendant, or appurtenant, to lands. 
 
 Incident means depending upon, appertaining, or naturally 
 relating or belonging to. 
 
 Appendant is where a right, or thing, is inseparably, — from 
 the very nature of it, — incident to a grant. 
 
 Appurtenant rights or things arise from no such absolute or 
 neccssarj'' connexion; but only may be annexed or attached. 
 
 Title by forfeiture arises where a punishment is annexed 
 by law to some illegal act, or negligence, in the owner of things 
 real, as lands and tenements, whereby he loses all his interest 
 therein, his estate being transferred to another, generally the in- 
 jured party, who thus acquires the title to the same. 
 
BOOKH.] ELACKSTONB, 61 
 
 Forfeitures were occasioned by crimes, by alienation con- 
 trary to law, as in mortmain; by lapse, by simony, by non-per- 
 formance of coflditions annexed to estates, by waste, by breach 
 of copyhold customs, and by bankruptcy. 
 
 Alienation in mortmain, or in mortua manu, was an aliena- 
 tion of lands or tenements to any corporation, sole or aggregate, 
 ecclesiastical or temporal. This, the statute De Eeligiosis, 7 Ed- 
 ward I prohibited, and to avoid the statute the religious houses 
 invented common recoveries. 
 
 Disclaimer is where a tenant disclaims to hold of his lord.. 
 This was a civil crime, and one of the crimes which occasioned 
 forfeitures of lands upon reasons most apparently feudal. 
 
 Lapse is a forfeiture of the right of presentation to a vacant 
 church, by neglect of the patron to present within the time pre- 
 scribed. 
 
 Simony is. the corrupt presentation of any one to an ecclesi- 
 astical benefice, as for money, gift, or reward, — whereby that 
 turn becomes forfeited. 
 
 Waste is a spoil, or destruction, in any corporeal heredita- 
 ments, to the prejudice of him that hath the inheritance. "What- 
 ever does lasting damage to the freehold is waste. 
 
 It is either voluntary, which is a crime of commission, — as pull- 
 ing down a house ; or it is permissive, which is a matter of omis- 
 sion only, — as by suffering it to fall, from want of repairs. 
 
 A bankrupt is a trader who secretes himself, or does certain 
 other acts, tending to defraud his creditors. 
 
 By bankruptcy, or the act of becoming a bankrupt, the title of 
 all the estates of the bankrupt is transferred to the assignees of 
 his commissioners, to be sold for the benefit of his creditors. 
 
 Title by alienation, conveyance or purchase, comprises in its 
 more limited sense any method whereby estates are transferred, 
 or voluntarily resigned, by one man and accepted by another,, 
 whether by sale, gift, marriage-settlement, devise, or other trans- 
 mission of property, by the mutual consent of the parties. 
 
 Originally this could not be done without the mutual consent 
 of both lord and vassal. 
 
 All persons are prima facie capable of conveying and pur- 
 chasing, unless the law has laid them under particular disabilities. 
 Conveyances and purchases by idiots, persons of non-sane 
 memory, infants, and persons under duress, are voidable, but not. 
 actually void. 
 
462 BLACKSTOlSrE [book ii 
 
 Common assurances of the kingdom, as they were called, 
 are the legal evidences of alienation, or transfer, of property, 
 whereby every man's estate is assured to him^and all contro- 
 versies, doubts, and difficulties are either prevented or removed. 
 
 Alienation by common assurances are of four kinds, viz.: 
 
 By deed, or matter in pais, which is an assurance transacted 
 between two or more j)rivate j^ersons in pais (in the country) ; 
 that is, according to the old common law, upon the very spot. 
 
 By matter of record, which is an assurance transacted only 
 in public courts of record. 
 
 By special custom, obtaining in some particular places re- 
 lating to some particular species of j)roperty only. 
 
 By devise, as contained in the last will and testament of a 
 decedent. 
 
 Alienation by deed, or assurances by deed, may be consid- 
 ered with reference to their general nature, and their several 
 species. 
 
 As to their general nature : they are regarded as the sol- 
 emn act of the parties. 
 
 A deed is a writing, sealed and delivered by the parties. It 
 may be a deed indented, or indenture ; or a deed-j5oZL 
 
 An indenture is now only a name given to a species of deeds, 
 though formerly, when deeds were more concise than at present, 
 it was usual to write both parts of the deed (as they originally 
 •consisted of two parts, or instruments) on the same piece of 
 parchment, with some words or letters of the alphabet written 
 between them, through which the parchment was cut, either in a 
 istraight or indented line, in such a manner as to leave half the 
 words on one part, and half on the other; but at length indent- 
 ing only came into use. 
 
 A deed-poll is a plain deed, made by one party only, not 
 indented, but polled or shaved quite even, and therefore called 
 a deed-poll, or single deed. 
 
 The requisites of a deed are as follows : 
 
 Sufficient parties : that is, parties competent to contract; and 
 proper subject-matter. 
 
 A good and sufficient consideration. 
 
 Must be written or printed, on parchment or paper. 
 
 Legal and orderly parts, properly set forth. 
 
 Eeading it, if desired. 
 
 iSealing and signing it. 
 
BOOK II.] BLACKSTOISTB. 63 
 
 Delivery, by the party himself or his attorney; and 
 
 Attestation, or execution in the presence of witnesses. 
 
 The legal, or formal and orderly parts of a deed, that 
 is, the words sufficient to specify the agreement and bind the 
 parties, are : the premises, the habendum, the tenendum, the red- 
 dendum, the conditions, the warranty, the covenants, and the 
 conclusion. 
 
 The premises in a deed are used to set forth the number and 
 names of the parties, with their additions or titles. 
 
 The habendum expresses what estate or interest is granted 
 by the deed. 
 
 The tenendum, " and to hold," is now of but little use, and 
 only kept in by custom. 
 
 The reddendum is a reservation, whereby the grantor doth 
 create or reserve some new thing to himself out of what he had 
 before granted ; as rent, or the like. 
 
 The conditions are clauses of contingency, on the happen- 
 ing of which the estate granted may be defeated. 
 
 The ■warranty is that clause or part whereby the grantor 
 •doth, for himself and his heirs, warrant and secure to the grantee 
 the estate so granted. 
 
 Warranties are implied or expressed, and lineal or collateral. 
 
 An implied -warranty is such as the la-w presumes or 
 concludes every grantor or vendor to make in disposing of 
 property ; as, for instance, that he has the right to make such 
 disposition. 
 
 An express warranty in the transfer of lands and tene- 
 ments is an express clause binding the grantor ar»d his heirs ; it 
 is a kind of covenant real. These express warranties were in- 
 troduced to evade the strictness of the feudal doctrine of non- 
 alienation without the consent of the heir. 
 
 Lineal warranty was where the heir derived, or might by 
 possibility have derived, his title to the land warranted, either 
 irom or through the ancestor who made the warranty. 
 
 Collateral -warranty was where the heir's title to the land 
 neither was, nor could have been, derived from the warranting 
 ancestor. 
 
 The covenants are clauses of agreement contained in the 
 deed, whereby either party may stipulate for the truth of certain 
 facts, or may bind himself to perform or give something to the 
 other. 
 
64 BLACKSTONE. [book n. 
 
 A covenant real is where the covenanter covenants for him- 
 self and his heirs, upon whom it descends, and who are bound to- 
 perform it, provided they have assets by descent. 
 
 Tlie conclusion of a deed mentions the execution and date 
 of it. 
 
 Considerations are divided into good and valuable. 
 
 A good consideration is such as that of blood, or natural 
 love and affection; as where a man grants an estate to a near 
 relative. 
 
 A valuable consideration is such as money, marriage, or 
 the like. 
 
 A deed takes effect only from its delivery. A deed without 
 date is good, if the date when it was executed or delivered can 
 be proved. 
 
 Attestation is necessary rather for preserving the evidence 
 than for constituting the essence of the deed. 
 
 If a man covenants, not only for himself and his heirs, but 
 also for his executors, and administrators, his personal assets, 
 as well as his real, are likewise pledged for the performance of 
 the covenant, which makes such a covenant better than any 
 warranty. 
 
 A deed may be avoided by the want of any of the above 
 mentioned requisites, or by subsequent matter ; as erasure or 
 alteration, defacing its seal, cancelling it, disagreement of those 
 whose consent is necessary, or by judgment of a court of justice. 
 
 An escrovr is a deed delivered to a third party, to hold as a 
 scrowl, or writing that is not to take effect as a deed until some 
 conditions be performed by the grantee. 
 
 As to the different species of deeds : some serve to convey real 
 property, and others only to charge or discharge it. 
 
 Deeds serving to alien or convey real estate are called 
 conveyances, which conveyances are either by common law, or by 
 statute. 
 
 Of conveyances by common lavr : some are original or 
 primary, and others are derivative or secondary ; — the former are 
 those by means whereof the benefit or estate is created, or first 
 arises ; and the latter, those by which the benefit or estate, 
 already created, is enlarged, restrained, transferred, or extin- 
 guished. 
 
 The original, or primary conveyances are : Feoffment,. 
 Gift, Grant, Lease, Exchange, and Partition. 
 
BOOKii.] BLACKSTONB, 65 
 
 The derivative, or secondary conveyances are: Ee- 
 lease, Confirmation, Surrender, Assignment, and Defeasance. 
 
 A feoffment is the transfer or gift of any corporeal hereditr 
 ament to another, perfected by livery of seizin, or delivery of 
 bodily possession, to the feoffee, without which no freehold estate 
 therein could be created at common law. Strictly speaking, it 
 refers to the conveyance of an estate in fee. He that so gives, 
 or enfeoffs, is called ih^ feoffor, and the person enfeoffed is de- 
 nominated \h& feoffee. 
 
 Livery of seizin is the feudal investiture, or delivery of cor- 
 poreal possession, of the land or tenement. It was either in 
 deed or in law. 
 
 Livery in deed was performed by the feoffor delivering to 
 the feoffee (all other persons being out of the ground), a clod, 
 twig, or some part of it, — as a ring, or latch, if a house, — with 
 the words, " I deliver these to you in the name of seizin of all 
 the lands and tenements contained in this deed." 
 
 Livery in law is where the same is not made on the land, 
 but in sight of it only, the feoffor saying to the feoffee, " I give 
 you yonder landj enter and take possession." 
 
 A gift, — donatio, — differs in nothing from a feoffment, but in 
 the nature of the estate passing by it, being properly applied to 
 the creation or conveyance of an estate tail, as feoffment is to 
 that of an estate in fee. 
 
 A grant, — concessiones, — is the regular method, by the com- 
 mon law, of conveying incorporeal hereditaments, or such things 
 whereof no livery can be had. It is now used also in the trans- 
 fer of real estate, the words " grant, bargain, and sell," being 
 express covenants for title. 
 
 A lease is properly a conveyance in consideration of rent, or 
 other recompense, of lands and tenements, for life, for years, or 
 at will, but always for a less time than the lessor hath in the 
 premises; for, if it be for the whole interest, it is more prop- 
 erly an assignment than a lease. 
 
 An exchange is the mutual conveyance of equal interests, 
 the one in consideration of the other. 
 
 A partition is the division of an estate held in joint-tenancy, 
 in coparcenary, or in common, between the respective tenants, 
 each taking his distinct part to hold in severalty. 
 
 A release is the discharge or conveyance of a man's right in 
 lands or tenements to another that hath some former estate in 
 
 5 
 
66 BLACKSTONB. [book n, 
 
 possession therein. It is the descending of a greater estate upon 
 a less. 
 
 A confinnation is the conveyance of an estate or right in 
 esse, whereby a voidable estate is made sure, or a particular 
 estate is increased and the words of it are " have given, granted, 
 ratified, approved, and confirmed." It is of a nature nearly 
 allied to a release. 
 
 A surrender is the yielding up of an estate for life, or years, 
 to him that hath the immediate remainder or reversion, wherein 
 the particular estate surrendered may merge. 
 
 It is of a nature directly opposite to a Release ; for as that 
 operates by the greater estate descending upon the less, a Sur- 
 render is the falling of a less estate into a greater. The words 
 used are, " have surrendered, granted, and yielded up." 
 
 An assignment is the transfer, or making over to another, 
 of the whole right one has in any estate ; but usually in a lease, 
 for life or years. 
 
 A defeasance is a collateral deed, made at the same time 
 with the original conveyance, containing certain conditions upon 
 the performance of which the estate created may be defeated or 
 undone. 
 
 Conveyances by statute depend much on the doctrine of 
 uses and trusts, which, in their nature and origin, are the same, — 
 the old doctrine of uses being revived under the denomination 
 of trusts. 
 
 A use or trust was a confidence reposed in another, who was 
 terre-tenant, or tenant of the land, that he would dispose of the 
 land according to the wishes of the cestuy que use, or cestuy que 
 trust, to whose use it was granted, and suffer him to take the 
 profits. 
 
 Uses and trusts originated in ecclesiastical ingenuity, the 
 notion being transplanted from the civil law into England by 
 the ecclesiastics, near the close of the reign of Edward III 
 (about 1370), to evade the statutes of mortmain, by obtaining 
 grants of lands, not to religious houses directly, but to their use; 
 thus distinguishing between the possession and the use. 
 
 Uses are not always to be executed at the time the convey- 
 ance is made ; hence we have what are called future uses, Avhich 
 are as follows : 
 
 Shifting, or secondary uses, take eifect in derogation of 
 some other estate, and are either limited by the deed creating 
 
BOOK II.] BLACKSTONB. 67 
 
 them, or authoinzed to bo created by some person named in it. 
 Thus : If an estate be limited to A and his heirs, with a pro- 
 -v^iso that if B pay to A one hundred dollars, by a given time, 
 the use of A shall cease and the estate go to B in fee, the estate 
 is vested in A, subject to a shifting or secondary use in fee in B. 
 Springing uses are limited to arise on a future event, where 
 no preceding estate is limited, and they do not take effect in der- 
 ogation of any preceding interest, as if a grant be to A in fee, 
 to the use of B in fee after the first day of January next. 
 
 Future, or contingent uses, are limited to take effect as 
 remainders. As, if lands be granted to A in fee, to the use of 
 B, on his return from Home. This is a future contingent use, 
 because it is uncertain whether B will ever return. 
 
 Resulting uses are where the use limited by deed expires, 
 or cannot vest, or was not to vest but upon a contingency, which 
 has not happened, the use results back to the grantor. 
 
 There are also resulting trusts implied by law, from the mani- 
 fest intention of the parties and the nature and justice of the 
 case; as where an estate is purchased in the name of A and the 
 price is actually paid at the time by B ; here is a resulting trust 
 implied by law in favor of B. 
 
 Contingent uses are subject to the same rules as contingent 
 remainders. 
 
 Springing or contingent uses differ from an executory devise, in 
 that there must be a person seized to such uses at the time when 
 the contingency happens, else they can never be executed by 
 the statutes; and, therefore, if the estate of the feoffee to such 
 use be destroyed, by alienation or otherwise, before the contin- 
 gency arises, the use ia destroyed forever ; whereas, by an exec- 
 utory devise, the freehold itself is transferred to the future devisee. 
 The statute of uses having transferred all uses into actual 
 possession, or rather, having drawn the possession to the use, 
 gave birth to other species of conveyances, viz : a covenant to 
 stand seized to uses, a bargain and sale of lands enrolled; a con- 
 veyance by lease and release; deeds to lead or declare uses, that 
 is, the use of other more direct conveyances; deeds of revoca- 
 tion of uses. 
 
 A covenant to stand seized to uses is that by which a 
 man covenants that, in consideration of blood or marriage, he 
 will stand seized of lands to the use of another, — as to the use of 
 his child, wife, or kinsman. 
 
68 BLACKSTOlSrE. [book ii. 
 
 On executing the covenant, the other party becomes seized of 
 the use of the land, and the statute of uses immediately operated 
 by annexing the possession to the use, or as it is called, " exe- 
 cutes " at once the use or estate. 
 
 Deeds of revocation of uses wore the execution of a, power 
 reserved at the creation of the use of recalling at a future time the 
 use or estate so created. 
 
 These last species of conveyances owe their operation princi- 
 pally to the statute of uses. 
 
 In time trusts superseded or were made to answer in general all 
 the beneficial ends or purposes of uses, without their inconveni- 
 ences or frauds. 
 
 A trust, in the general and enlarged sense, is a right on the 
 part of the cestuy que trust to receive the profits and dispose of 
 the lands in equity. 
 
 They are of two kinds : executed, when either the legal or 
 equitable title passes; or executory, when it is to be perfected at 
 some future time, by conveyance or settlement. 
 
 No particular form is requisite to create a trust; it is sufficient 
 if the terms of the trust can be duly ascertained by the writing. 
 
 The courts now consider a trust estate as equivalent to the 
 legal ownership, governed by the same rules of property and 
 liable to every charge in equity which the other is subject to in 
 law. 
 
 Deeds which do not convey, but serve only to charge or 
 discharge real property, are: Obligations or bonds, Eecogni- 
 zances, and Defeasances. 
 
 A bond or obligation is a deed whereby a person, the ob- 
 ligor, obligates himself, his heirs, executors and administrators, 
 to pay a certain sum of money to another at a day appointed. 
 
 The penal sum, or penalty, attached to the bond for its breach 
 or forfeiture, is usually drawn for double the amount of the bond 
 or money borrowed, in order to cover the principal, interest ex- 
 pense, and damages sustained from non-performance of the cove- 
 nants, which is all that is now recoverable upon forfeiture of a. 
 bond, no matter what the amount of the penal sum, or penalty, 
 inserted. Formerly, the whole penalty was recoverable at law. 
 
 A recognizance is an obligation of record, entered into be- 
 fore some court of record or magistrate duly authorized, with 
 condition to do some particular act; as to appear at court, to 
 keep the peace, etc. 
 
BOOKn.] BLACKSTONE. 69 
 
 Another distinction between a recognizance and a bond is, 
 that a bond is a creation of a fresh debt or obligation de novo, 
 ■while a recognizance is the acknowledgment of a former debt, 
 upon record. 
 
 A defeasance upon a bond, recognizance, or judgment re- 
 covered is a condition which when performed, defeats or undoes 
 it, and discharges the estate of the obligor. 
 
 Alienation by matter of record. — These assurances or 
 conveyances are such as do not depend entirely on the act or 
 consent of the parties themselves, but are where the sanction of 
 some court of record is called in, to substantiate and witness the 
 transfer of real property. They are : Private acts of Parlia- 
 ment, the King's Grants, Pines, and Common Eecoveries. 
 
 Private acts of Parliament, as a species of assurances, are 
 such as, by the transcendant authority of Parliament, are calcu- 
 lated to give such reasonable powers of relief as are beyond the 
 reach of the courts, or ordinary course of law. 
 
 A fine of lands or tenements, also called an acknowledg- 
 ment of a feoffment of record, is an amicable composition or 
 agreement of a suit, either actual or fictitious, by leave of the 
 King or his justices, whereby the estate or lands in question are 
 acknowledged to be the right or property of one of the parties. 
 
 The force and effect of fines, when levied by such as have 
 themselves any interest in the estate, are to assure the lands in 
 question to the cognizee, by barring the respective rights of 
 parties, privies, and strangers. 
 
 Fines are of equal antiquity with the first rudiments of the 
 law, instances having been produced of them even prior to the 
 Norman invasion. 
 
 Their origin was founded on an actual suit commenced at law 
 for the recovery of the possession of land or other heredita- 
 m.ents, and the possession gained by composition, which posses- 
 sion thus acquired, was found to be so sure and effectual that 
 fictitious actions were often commenced to obtain the same 
 security. 
 
 A fine is so called because it puts an end not only to the suit 
 thus commenced, but also to all other kinds of suits and contro- 
 versies concerning the same matter. 
 
 A common recovery was so far like a Fine that it is a suit, 
 either actual or fictitious, for lands, brought against the tenant 
 of the freehold, who thereupon vouches another, who under- 
 
70 BLACKSTOISTB. [book ii.. 
 
 takes to defend the tenant's title, but upon such vouchee's making 
 defavlt, the land is recovered by judgment at law against the- 
 tenant, who, in return, obtains judgment against the vouchee tO' 
 recover lands of equal value in recompense. This supposed ad- 
 judication of the right binds all persons, and vests a free and 
 absolute title, or fee-simple, in the recoveror. 
 
 They were invented by the ecclesiastics, to elude the statutes- 
 of mortmain, the religious houses setting up a fictitious title to 
 the land, which it was intended they should have, and brought 
 an action to recover it against the tenant, who, by fraud and col- 
 lusion, made no defence, and judgment being thereby given to 
 the religious houses, they "recovered" the land, by sentence of 
 law, upon a supposed prior title. 
 
 These common recoveries, thus originally invented by the eccle- 
 siastics to elude the statutes of mortmain, were afterwards en- 
 couraged by the finesse of the courts of law of Edward lY, in 
 order to put an end to all fettered inheritances, and bar not only 
 estates-tail, but also remainders and reversions expectant there- 
 on, which was the force and effect of a recovery, provided the 
 tenant in tail suffers, or is vouched in, such recovery. For it 
 was found that these estates-tail were of such great inconvenience,, 
 by tying up the landed property and creating perpetuities, that 
 in order to unfetter them, common recoveries were encouraged 
 by the judges, and by their use all limitation upon estates-tail 
 were removed, and an absolute and pure fee-simple passes as the 
 legal effect. 
 
 These common recoveries are considered simply in the light 
 of a conveyance on record, invented to give a tenant in tail an ab- 
 solute power to dispose of his estate, as freely as if he was 
 tenant in fee simple. It is the only mode of conveyance by which 
 a tenant in tail can eflectually dock the entail ; for hy fine he only 
 bars his issue, and not subsequent remainders and reversions. 
 
 By statute, fines and common recoveries are swept away, both in. 
 England and in this country. 
 
 Alienation by special custom is confined to those con- 
 veyances"or assurances by special custom that include the transfer 
 of copyhold lands, and such customary estates as are holden in 
 ancient demesne, or manors of a similar nature. 
 
 This is effected by Surrender, which is the giving up of the 
 estate into the hands of the lord for the purposes expressed in. 
 the surrender. 
 
BOOK II.] BLACKSTONE. 71 
 
 Of assurance by surrender, the several parts are : Sur- 
 render by the tenants into the hands of the lord, to the use of 
 another, according to the custom of the manor; Presentment 
 by the tenants, or homage, of such surrender ; and Admittance 
 of the surrenderee by the lord, according to the uses expressed 
 in such surrender. 
 
 Alienation by devise is the method contained in a man's 
 last will and testament of disposing of lands and tenements. 
 
 It is also styled a revocable assurance, posthumously disposing 
 of property or the custody of children. 
 
 Before the conquest, lands were devisable by will in England, 
 but upon the introduction of the militarj'' tenures, the restraint 
 upon devising lands naturally took place, as a breach of the 
 feudal doctrine of non-alienation without the consent of the lord ; 
 and so it stood at common law, until again authorized by the 
 Statute of Wills, 34 Henry VIII ; and subsequently made more 
 universal by the statute of tenures, 29 Charles II. 
 
 A will is a disposition of real and personal property, to take 
 effect after the death of the testator. 
 
 Will and Devise are generally considered, and used, as synon- 
 ymous ; but when the Will operates on personal property only, 
 it is called a testament, and when upon real estate only, a devise. 
 Where the instrument disposes of both real and personal prop- 
 erty, it is usually denominated " the last will and testament." 
 
 Testaments of personal property, or chattels, operate upon 
 whatever the testator dies possessed of; but Devises only upon 
 such real property, or lands, as were his at the time of executing 
 and publishing his will. 
 
 Wills or devises must be in writing, signed by the testator, or 
 some person in his presence by his direction, and be subscribed 
 by two or more witnesses in his presence and in the presence 
 of each other. 
 
 In construing ^Us or devises, and deeds or common 
 assurances, the general rules and maxims, as laid down by the 
 courts, are as follows : 
 
 That the construction be favorable, and as near the nlinds and 
 apparent intentions of the parties as the rules of law will admit ; 
 therefore, the construction must be reasonable, and agreeable to 
 common understanding. 
 
 That where the intention is clear, too minute a stress be not 
 laid on the strict and precise signification of words. 
 
72 BLACKSTONB. [book n. 
 
 That the construction be made upon the entire instrument, and 
 not from disjointed parts of it; 
 
 Words bearing two senses to be taken in the sense agreeable 
 to law. 
 
 Eejecting the latter of two totally repugnant clauses in a deed, 
 and the former in a will. 
 
 Deeds to be taken most strongly against the maker, but devises 
 to be most favorably expounded, to pursue, if possible, the will 
 of the devisor, who, for want of advice or learning, may. have 
 omitted the legal or proper phrases. 
 
 In the contruction or expounding of Wills and Devises, the 
 intention of the testator is admitted to be the pole-star 
 by which the courts must steer, yet that intention is liable 
 to be very much controlled by the application of technical rules 
 and the superior force of technical expressions. 
 
 TIIII5fGS PEKSOBTAIi, or chattels.— Under this name 
 are included all sorts of things movable, which may attend a 
 man's person wherever he goes, which includes whatever wants 
 the duration or the immobility attending things real. They also 
 include something more, the whole being comprehended under 
 the general name of chattels. 
 
 Things personal, or chattels, may be considered with 
 reference to their distribution, the property therein, and the title 
 to them. 
 
 AS TO THEIR DISTRIBUTION : Chattels are di- 
 vided into chattels real and chattels personal. 
 
 Chattels real are such as concern or savor of the realty, and 
 are so styled as being interests issuing out of, or annexed to, real 
 estate, and of which they have one quality, viz : immobility, which 
 denominates them real, but want a sufficient legal determinate 
 duration, which constitutes them chattels ; as a lease for a term of 
 years, a mortgage, and the like. 
 
 Chattels personal are, properly and strictly speaking, mov- 
 ables which may be annexed to, or attend on, the person of the 
 owner wherever he goes. 
 
 Property in things personal, or chattels, is either in pos- 
 session, as where a man has not only the right, but the actual en- 
 joyment, of the thing; or in action, where a man has only a bare 
 right, without occupation or enjoyment, — called a thing or chose 
 in action, being recoverable by action at law. 
 
 A thing or chose in action is defined to be a thing incor- 
 
30OKII.] BLAOKSTOjSTE. 73 
 
 ^oreal, or a right, as an annuity, money due on a bond, etc. 
 
 Property in possession is absolute or qualified. 
 
 Absolute property is where a man has such an exclusive 
 right in the thing that it cannot cease to be his without his own 
 act or default. 
 
 Qualified property is such as is not in its nature permanent, 
 but may sometimes subsist, and at other times not subsist, which 
 latter may arise where the subject is incapable of absolute 
 ■ownership, or from the peculiar circumstances of the own- 
 ers. 
 
 Limitations of personal goods and chattels, in remain- 
 der, after a bequest for life, are allowed in last wills and testa- 
 ments. 
 
 Things personal may belong to their owners not only in sever- 
 alty, but in joint-tenancy and in common also, as well as real 
 estates, but not in coparcenary, because they do not descend 
 from the ancestor to the beir. 
 
 Stock used in a joint-undertaking, as by way of partner- 
 ship in trade, is always considered as common, and not as joint 
 property; and there shall be no survivorship therein. 
 
 Title to things personal may be acquired or lost, by Occu- 
 pancy, Prerogative, Forfeiture, Custom, Succession, Marriage, 
 Judgment, Gift or Grant, Contract, Bankruptcy, Testament, and 
 by Administration. 
 
 Title by occupancy is that which still gives to the first 
 occupant a right to those few things which have no legal owner, 
 ■or are incapable of permanent ownershij), such as goods captured 
 from alien enemies, things found, the benefit of the elements, ani- 
 mals wild by nature, emblements, things gained by accession, things 
 gained by confusion, literary property, inventions, etc. 
 
 The right of taking goods of alien enemies is restrained 
 to such captors as are authorized by the public authority of the 
 State. 
 
 Movables found upon the earth, or in the sea, unclaimed by 
 any owner, are supposed to be abandoned by the last jjroprietor, 
 and therefore belong, as originally in a state of nature, to the 
 first occupant or fortunate finder. 
 
 The benefit of the elements, — the light, the air, the water, 
 etc., — thus, too, only can be appropriated. 
 
 Animals ferae naturae, or wild by nature, all mankind 
 has a right to pursue and take, by the original grant of the Cro- 
 
74 BLACKSTOISTB. [book ii.. 
 
 ator, which natural right still continues unless where restrained 
 by law. 
 
 Emblements must be referred to this principle of occupancy 
 also. They are subject to many, though not all, the incidents 
 attending personal chattels. They are not the object of larceny 
 before they are severed from the ground. 
 
 Accession, by natural or artificial means, as the growth of 
 vegetables, the pregnancy of animals, embroidering of cloth, the 
 conversion of wood or metal into utensils, etc., is a doctrine of 
 property also grounded upon this principle. 
 
 Confusion of goods, also, — as where the goods of two per- 
 sons are indistinguishably intermixed, — the English and Civil 
 law essentially agreeing that, if the mixture be by mutual con- 
 sent, the proprietors have each an interest in common, in pro- 
 portion to their respective shares. But where one willfully in- 
 termixes his own with that of another, without his knowledge 
 or approbation, the law, to guard against fraud, gives the entire 
 property to him whose original domain is invaded. 
 
 A copyright, or patent, is a right or property which a per- 
 son has in his own original composition or invention, and, being 
 grounded on labor and inventive skill, is properly reducible to 
 this head, occupancy itself being supposed to be founded on per- 
 sonal labor, — ancient wells being the acknowledged property of 
 the diggers of them, while the land thereabout was still in 
 common. 
 
 The identity of a literary composition consists entirely of the 
 sentiment and the language. 
 
 Title by prerogative is a method of acquiring property in 
 personal chattels, by the King's prerogative, whereby a right may 
 accrue, either to the crown itself or to such as claim under the 
 title of the crown, — as by the King's grant, or by prescription, 
 which supposes an ancient grant. 
 
 Title by forfeiture is that whereby a title to goods and chat- 
 tels may be acquired or lost, as a punishment for some crime or 
 misdemeanor, and a compensation for the offense and injury to 
 the party injured, — such as treason, felony, manslaughter and 
 prasmunire. 
 
 Title by custom is that whereby a right vests in some par- 
 ticular persons, either by the local usage of some particular place,, 
 or by the almost general and universal usage of the kingdom, — 
 as hcriots, mortuaries, and heir-looms. 
 
BOOKH.] BLACKSTOlSrE. 75- 
 
 Heriots are a customary tribute of goods and chattels, pay- 
 able to the lord of the fee on the decease of the tenant or owner 
 of the lands. It now consists of the best live beast the tenant 
 dies possessed of, or sometimes the best inanimate good, as a jewel 
 or piece of plate, but it is always a personal chattel. 
 
 Heriots are of Danish origin, and a relic of villein tenure. 
 They are either heriot-service or heriot custom. 
 
 Heriot-service amounts to little more than a mere rent; it is. 
 due upon a special reservation in a grant or lease of lands. 
 
 Heriot custom depends merely upon immemorial usage and 
 custom, and arises upon no special reservation whatsoever. 
 
 Mortuaries are a sort of ecclesiastical heriots, being a custom- 
 ary gift claimed by and duo to the minister, in many parishes, on 
 the death of his parishoners. 
 
 Heir-looms, — loom, of Saxon origin, signifying a limb or mem- 
 ber of the inheritance, — are such goods and chattels as, contrary 
 to the nature of chattels, shall go, by special custom, to the heir, 
 along with the inheritance, and not to the executor of the last 
 proprietor; as crown jewels, charters, deeds, court-rolls, chests 
 containing them, monuments, tombstones, and coats-of-arms. 
 
 Heir-looms by special custom are sometimes carriages, 
 utensils, and other household implements, but such custom must 
 be strictly proved. 
 
 Heir-looms by general custom are whatever is strongly 
 affixed to the freehold or inheritance, and cannot be severed 
 from it without violence or damage. 
 
 Title by succession is that by which one set of men may, 
 by succeeding another set, acquire a property in their goods and 
 movables. In strictness of law, this applies to corporations ag- 
 gregate and such corporations sole as are the heads and repre- 
 sentatives of bodies aggregate ; for, in judgment of law, a cor- 
 poration never dies. 
 
 Title by marriage is where chattels and personal property 
 belonged formerly to the wife, but which, on marriage, are, by act 
 of law, vested absolutely in the husband, with the same degree 
 of property and with the same powers as the wife, when sole, 
 had over them provided he reduces them to possession. 
 
 The paraphernalia of the wife, which consists of her apparel 
 and ornaments, suitable to her rank and degree, she acquires a 
 property in by marriage. 
 
 Title by judgment is where, in consequence of some suit at 
 
76 BLACKSTOlSrE. [book n, 
 
 law, a man may in some cases not only recover, but originally ac- 
 quire, a right to personal property, — as to penalties, recoverable 
 by an action popular; darnages, given to a man by a jury, as 
 compensation and satisfaction for some injury sustained, and costs 
 of suit. 
 
 Title by gift or grant is acquired in chattels by the volun- 
 tary conveyance of them to another, in writing or by word of 
 mouth, the strongest evidence of which is the delivery of them 
 into the possession of the person to whom given. A true or 
 proper gift or grant is always accompanied with delivery of 
 possession, and takes effect immediately. 
 
 Gifts are always gratuitous. 
 
 Grants are upon some consideration or equivalent. 
 
 Under the head of gifts or grants of chattels real may be in- 
 cluded all leases of lands for years, assignments and surrenders 
 of those leases, and all other methods of conveying an estate less 
 than freehold. 
 
 Title by contract usually conveys an interest merely in 
 action. 
 
 A contract is an agreement, upon sufficient consideration, to 
 do or not to do a particular thing. 
 
 Contracts may be either express or implied, and executed or ex- 
 ecutory. 
 
 Sxpress contracts are where the terms of the agreement 
 arc openly uttered and avowed at the time of the making. 
 
 Implied contracts are svich as reason and justice dictate, and 
 which, therefore, the law presumes that every man undertakes to 
 perforin. 
 
 Executed contracts are such in which the right and the 
 possession are transferred together ; they convey a chose in pos- 
 session. 
 
 Executory contracts are such in which the right only is 
 transferred; they convey a chose in action. 
 
 A nudum pactum, or naked compact, is an agreement to do 
 or to pay anything on one side, without any compensation or 
 •consideration. It is totally void in law. 
 
 The most usual species of personal contracts are. Sale or Ex- 
 change, Bailment, Hiring, Borrowing, and Debt. 
 
 Sale or exchange is a transmutation of property from one 
 man to another, in consideration of some price or recompense 
 in value. 
 
BOOK II.] BLACKSTONE. 7T 
 
 An exchange is where it is a commutation of goods for goods. 
 
 A sale is where it is a transfer of goods for money. 
 
 There is an implied warranty annexed to every sale, that the 
 seller sells them as his own, or has authority to sell them ; and 
 if the title proves defective, a purchaser of goods and chattels 
 may have satisfaction from the seller. 
 
 BAILMENT, — from the French hailler, to deliver,— is a de- 
 livery of goods in trust, upon a contract express or implied, that 
 the trust shall be faithfully performed hy the bailee. 
 
 Bailments are divided into five sorts, viz : 
 
 Depositum, or deposit, where the property bailed is to be kept 
 by the bailee, for no particular purpose, without recompense. In 
 this case the bailee must exercise ordinary care. 
 
 Mandatum, or commission, is where the bailee undertakes to 
 do something to, or simply carry, the bailment, without recom- 
 pense. Here the bailee must use a degree of diligence and care 
 adequate to the undertaking. 
 
 Commodatum, or loan for use, is where the property is in- 
 trusted to the bailee without pay, to be used by him, for his own 
 benefit. In this case the bailee must use more care than in either 
 of the preceding cases. 
 
 Fignori acceptum, or pawn, is the bailment of a thing as 
 a security for a debt. This bailee must use the same care as in 
 the preceding cases. 
 
 Locatum, or hiring, is a bailment for reward, by which the 
 hirer gains a temporary qualified property in the thing hired, 
 and the owner acquires an absolute property in the stipend or 
 price. Here the bailee must use due care and diligence. 
 
 Locatum is subdivided into three classes, viz : 
 
 Locatio rei, or hiring, by which the hirer gains a temporary 
 use of the thing. 
 
 Locatio operis faciendi, where something is to be done to 
 the thing bailed. 
 
 Locatio operis mercium vehendarum, where the thing 
 is merely to be carried from one place to another. 
 
 Hiring and borrowing are contracts whereby the possession 
 and a transient qualified property in chattels is transferred, for 
 a particular time or use, on condition that the identical goods be 
 restored at the time appointed. 
 
 Hiring is always for a price, stipend, or recompense. 
 
 Borrowing is merely gratuitous. 
 
78 BLAqXSTONE. [book ii. 
 
 This price, being calculated to compensate for the inconveni- 
 ence, risk, or hazard of loaning, gives birth to the doctrine of 
 interest, usury, bottomry, respondentia, and insurance. 
 
 Interest is a moderate and legal profit allowed money-lend- 
 ers, to recompense them for the inconvenience of parting with it. 
 
 Usury is an exorbitant and illegal profit taken by money- 
 lenders. 
 
 Sometimes the hazard may be greater than the rate of interest 
 allowed by law will compensate, which gives rise to certain 
 practices and exceptions to the general rule of law regarding and 
 limiting interest rates, viz : 
 
 Bottomry is in the nature of a mortgage of a ship, whereby 
 the owner or master raises money to enable him to carry on his 
 voyage, and pledges the keel or bottom of the ship as security. 
 
 If the ship is lost, the lender loses his money ; but if it re- 
 turns, he receives back his principal and also the premium or 
 interest agreed upon, however' it exceed the ordinary and legal 
 rate of interest. 
 
 If there be more bottomry loans than one upon the ship, then, 
 ■contrary to the principle of priority in payment of mortgages 
 on land, here the last loan is entitled to be paid first, on the 
 principle that the latter loans, by preserving the ship, have 
 saved the earlier ones. 
 
 Respondentia is where the loan is not upon the vessel, but 
 the goods and merchandise, which must necessarily be sold or 
 exchanged in the course of the voyage. Here only the bor- 
 rower personally is bound to answer the contract, and there- 
 fore said to take up money at respondentia. 
 
 Insurance is a contract between A and B, that upon A's 
 paying a premium equivalent to the hazard run, B will indem- 
 nify or insure him against a particular event. 
 
 It is founded upon one of the same principles as the, doctrine 
 of interest upon loans, — that of hazard, but not that of incon- 
 venience. 
 
 Debt as a species of personal contract, is any contract where- 
 by a certain sum of money becomes due to the creditor. 
 
 Any contract whereby a determinate sum of money becomes 
 due to any person and is not paid, but remains in action merely, 
 is a contract of debt. 
 
 Debt, therefore, is a species of contract whereby a chose in 
 action, or a right to a certain sum of money, is mutually ac- 
 quired and lost. 
 
300KII.] BLACKSTONE. 79 
 
 Debts are generally divided into debts of record, debts 
 l3y special contract, and debts by simple contract, which latter in- 
 cludes paper-credit. 
 
 A debt of record is a stini of money which appears to be 
 due by the evidence of a court of record. 
 
 A judgment is a contract of the highest nature, being estab- 
 lished by the sentence of a court of judicature. 
 
 Debts by speciality or special contract, are such whereby a 
 sum of money becomes due, or is acknowledged to be due by 
 deed or instrument under seal. 
 
 A ivritten agreement, not under seal, is classed as a 
 parol or simple contract, and is usually considered as such, 
 just as much as any agreement by mere word of mouth. 
 
 Debts by simple contract are such where the contract 
 upon which the obligation arises is ascertained by mere oi'al 
 evidence, the most simple of any; or by notes unsealed, which 
 are capable of more easy proof, and therefore, only, better than 
 verbal promise. 
 
 Paper-credit consists of simple contract debts, by bills of 
 exchange, promissory notes, etc. 
 
 Bills of exchange or drafts are open letters of request from 
 one man to another, desiring him to pay a sum named therein 
 to a third person, on his account. 
 
 The writer is called the drawer ; the person to whom written, 
 the drawee ; and the party to whom payable, the payee. 
 
 They are either /orez'^n or inland, and the law upon both is es- 
 sentially the same. 
 
 Promissory notes, or notes of hand, are a plain and direct 
 engagement in writing to pay a sum specified, at the time limited, 
 to a person named, or sometimes to his order, or to the bearer 
 at large. 
 
 Paper-credit may be transferred or assigned contrary to the 
 general rule of the common law that no chose in action is as- 
 signable, which assignment is the life of paper-credit. It is done 
 by the payee writing his name, in dorso, or on the back of it, 
 thereby assigning over his whole property in it to another, 
 called the indorsee, who may assign it to another and so on ad 
 infinitum. 
 
 Acceptance is a contract by the drawee to pay the bill, 
 grounded on an acknowledgment that the drawer has oiFects in 
 his hands, or at least credit sufficient to warrant the payment; 
 
80 BLACKSTONE. [book ii. 
 
 for, in order to make himself liable, he must accept the bill,, 
 either verbally or in writing. 
 
 Protest is legal notice of dishonor to prior parties. 
 
 The object of protest is to fix the responsibility of prior par- 
 ties, for in the absence of such notification, the loss falls on the 
 holder of the bill. A bill dishonored or refused must be de- 
 manded of the drawer, as soon as possible, in order to fix his. 
 responsibilitj'. 
 
 Title by bankruptcy is that method by which a right is ac- 
 quired to the property of a bankrupt ; for, immediately upon 
 the act of bankruptcy, the properly of the bankrupt's personal 
 estate is vested, by construction of law, in the assignees, and 
 they, when they have collected the whole or converted it into 
 money, distribute it, by equal proportional dividends, among the 
 creditors. 
 
 Assets are whatever goods and chattels of a bankrupt that 
 may be converted into money. 
 
 Title by testament is the method of acquiring personal 
 property according to the express directions of the deceased 
 proprietor, which we call a testament. 
 
 Title by Administration is the method of acquiring per- 
 sonal property also according to the will of the deceased pro- 
 prietor, not expressed, indeed, but presumed by law, which we 
 call administration. 
 
 A testament or ■will is the legal declaration of a man's in- 
 tentions which he wills to be performed after his death. 
 
 They are written and verbal or nuncupative, the latter depend- 
 ing on oral evidence, being declared by the testator in extremis, 
 before a suflficient number of witnesses, and afterwards reduced 
 to writing. 
 
 Testaments are of very high antiquity, being found among 
 the ancient Hebrews, and have existed in England immemoriallj', 
 whereby the deceased was at liberty to make this predisposition 
 of his estate, dividing it into three equal parts : one to his wife, 
 and one to his heirs or lineal descendants, called their reasonable 
 parts ; the other was entirely at his own disposal, and in dis- 
 posing of which he was bound, by custom, to remember his lord 
 and the church, by leaving them his two best chattels, which 
 was tlie origin of heriots and mortuaries. 
 
 An intestate is one deceased who has made no such dispo- 
 sition of his goods as were testable. 
 
BOOK II.] BLACKSTONE. 81 
 
 Generally speaking, all persons may make wills, unless for 
 want of sufficient discretion : as those no7i compos mentis, male in- 
 fants under the age of fourteen, and females under twelve, etc.; 
 for want of sufficient liberty and free will, or on account of crim- 
 inal conduct. 
 
 A codicil is a supplement to a will or an addition made to it 
 by the testator. 
 
 It annexes to, and must be taken as a part of, the testament, 
 being for its explanation, alteration, or to make some addition 
 to or subtraction from former dispositions of the testator. This- 
 may also be either written or nuncupative. 
 
 No testament is of any effect till after the death of the tes- 
 tator. 
 
 A testament may be avoided if made by a person labor- 
 ing under any of the incapacities before mentioned. 
 
 Also, by making another testament of a later date, which an- 
 nuls all former ones ; and if the last will is but the republication 
 of a former one, it still annuls everything preceding it, and es- 
 tablishes the original or former one again. 
 
 Also, by cancelling or revoking it, which a testator may always 
 do, no matter how strong or irrevocable the terms he may have 
 formerly used therein ; for no one's acts or words can alter the 
 disposition otlaw. 
 
 Marriage, or the birth of a child, is by law construed to be the 
 revocation of a will. 
 
 An esecutor is he to whom another commits, by will, the 
 execution of his last will and testament. 
 
 An executor de son tort is one who acts as executor with- 
 out just authority. He is liable to all the trouble of an execu- 
 torship without any of the profits or advantages. 
 
 An administrator is in effect an executor appointed hylaw; 
 that is, he is oue appointed by the court to administer upon the 
 goods and effects of a person dying intestate. 
 
 Administration de bonis non is where the course of repre- 
 sentation or administration being interrupted it is necessary to 
 commit administration afresh of the goods of the deceased not 
 administered by the former executor or administrator. 
 
 Administration cum testamento annexe is where there 
 is no executor named in the will, or if any incapable person be 
 named, or a person named refuses to act. 
 
 The offices and duties of executors and administrators 
 
 6 
 
82 BLACKSTOjSTB. [book ii. 
 
 are in general much the same, except that the former are hound 
 to follow the will, which the latter are not ; and an executor may 
 do many acts hefore he proves the will, but an administrator can 
 do nothing till letters of administration are granted. 
 
 The interests vested in an executor by the will of the deceased 
 miay be continued and kept alive by the will of the executor, be- 
 cause the power of an executor is founded upon the special con- 
 fidence and actual appointment of the deceased ; hence he is al- 
 lowed to transmit that power to another in whom he has equal 
 confidence ; but with an administrator it is otherwise, for he is 
 merely the appointee or ofiicer of the law. 
 
 The powers and duties of executors and administra- 
 tors, who are also called personal representatives, are : to bury 
 the deceased in a suitable manner, to prove his will, make and 
 swear to an inventory of goods and chattels, whether in posses- 
 sion or action, collect the same, pay deceased's debts, next lega- 
 cies, and then the residuum to the residuary legatee, or if none, 
 to next of kin. 
 
 Debts of the deceased must be paid in the following 
 order of priority : Puneral charges, expenses of proving 
 will, and the like ; debts due to the King or state, on record or 
 specially ; debts preferred by statute ; debts of record, as judg- 
 ments, statutes and recognizances ; debts on specialties, as rents, 
 bonds and covenants; debts on simple contracts, as notes un- 
 sealed and verbal promises. , 
 
 A legacy is a bequest or gift of goods and chattels by testa- 
 ment ; the assent of the executor is necessary to its perfection, 
 and the person to whom it is given is styled the legatee. 
 
 Legacies are vested or contingent. 
 
 A contingent legacy, if it be left to one when he attains or 
 if he attains the age of twenty-one, and he dies before that time, 
 is a lapsed legacy. 
 
 Vested legacies are legacies to one to he paid when he at- 
 tains the age of twenty-one, and if the legatee dies before that 
 time it goes to his representatives. It is an interest commencing 
 in prcesenti. 
 
 If the legatee dies before the testator the legacy is a lost or 
 lapsed legacy, and shall sink into the residuum. 
 
 A donatio causa mortis is a death-bed gift or disposition of 
 property ; that is, when a person in his last sickness, apprehend- 
 ing his dissolution near, delivers or causes to be delivered to an- 
 
sooKii.J BLACKSTONB. 83 
 
 other the possession of any personal goods to keep, in case of his 
 decease. 
 
 It needs not the assent of his executor, yet it shall not prevail 
 against creditors, and is accompanied with this implied trust, that 
 if the donor lives it shall revert to him, being only given in con- 
 templation of death. 
 
84 
 
 BLACKSTONE. 
 
 [book III. 
 
 ANALYSIS OF BOOK III. 
 
 Private wrongs, for which the laws of England have pro- 
 vided redress : 
 
 i^ 
 
 ri. By the mere act of the parties, 
 2. By the mere operation of law, 
 [ 3. By both together, or suit in courts ; wherein 
 '1. Of courts; and therein of 
 
 J 1. Their nature and incidents, 
 I 2. Their several species, viz : 
 
 ' 1. Of public or general jurisdiction ; as 
 
 ' 1. The court of common law and equity, 
 
 2. Ecclesiastical courts, 
 
 3. Military courts, and 
 ^4. Maritime courts. 
 
 2. Ofprivate or special jurisdiction. 
 Of the cognizance of wrongs ; in the courts 
 
 1. Ecclesiastical, 
 
 2. Military, 
 
 3. Maritime, and 
 
 4. Of common law, courts ; wherein 
 
 1. Of the respective remedies and iifJTmiBS affecting 
 '1. The rights of private persons; 
 
 fl. Absolute, or 
 \2. Kelative. 
 2. The rights of property 
 '1. Personal, 
 
 1. In possession ; by 
 f 1. Dispossession, or 
 
 , \2. Damage. 
 
 L 2. In action ; oy breach of contracts. 
 2. Eeal; by 
 
 '1. Ouster, or dispossession ; of 
 / 1. Freeholds, or 
 \2. Chattels real. 
 
 2. Trespass, 
 
 3. Nuisance, 
 
 4. Waste, 
 
 5. Subtraction, 
 
 6. Disturbance. 
 [ 3. The riglits of the crown. 
 
 2. Of the pursuit of remedies ; for wrongs and injuries 
 '1. By action at common law, wherein of 
 
 '1. Original, 
 
 2. Process, 
 
 3. Pleading, 
 
 4. Demurrer and Issue, 
 
 5. Trial, by 
 
 1. Record, 
 
 2. Inspection, 
 
 3. Witness, 
 
 4. Certificate, 
 
 5. Wager of battel, 
 
 6. Wager of law, 
 ,7. Jury. 
 
 6. Judgment, 
 
 7. Appeal, 
 
 8. Execution. 
 2. By proceedings in the courts of equity. 
 
BOOK III.] BLACKSTONE. 85 
 
 BOOK in. 
 
 PRIVATE TOtOXOS Wrongs are the privation of 
 
 right, and are divisible into private wrongs and public wrongs. 
 
 Private wrongs are an infringement or privation of the 
 private or civil rights of individuals, and are frequently termed 
 
 civil injuries. 
 
 Public ■wrongs are a breach and violation of public rights 
 and duties which affect the whole community, and are distin- 
 guished by the appellation of crimes and misdemeanors. 
 
 The remedy for private injuries is hy application to courts 
 of justice — that is, by civil suit or action — for which purpose 
 courts of justice are instituted, in order to protect the weak 
 from the insults of the stronger, by expounding and enforcing 
 those laws by which rights are defined and wrongs prohibited. 
 
 This redress of private wrongs or civil injuries may be effected 
 by the mei>e act of the parties, by mere operation of law, or by 
 both together, or suits in court. 
 
 Redress by act of the parties is of two kinds, viz : that 
 hy act of the injured party only, and that by joint act of all the 
 parties. 
 
 Redress by the sole act of the party injured is by de- 
 fence of one's self or relations, by recaption of goods, by entry 
 on lands and tenements — to oust intruders, by abatement of nui- 
 sances without riot — by distress, for rent, damages, amercements, 
 etc., and by seizing of heriots. 
 
 Self-defence is justly called the primary or first law of na- 
 ture, and is not, nor can it be, taken away by the law of society. 
 It is held as an excuse for breaches of the peace, and even hom- 
 icide itself. 
 
 Recaption happens when any one hath deprived another of 
 his property in goods or chattels, and the owner claims and takes 
 them wherever he haj)pens to find them. 
 
 A nuisance is anything that worketh hurt, inconvenience, 
 •or damage, or unlawfully annoys another. 
 
86 BLACKSTONB. [book m. 
 
 Distress is the taking of a personal chattel out of the posses- 
 sion of the wrong-doer into the custody of the party injured, to 
 procure satisfaction for the wrong committed. 
 
 A man's tools and utensils of trade cannot be distrained; nor 
 things which cannot be rendered again in as good jilight as when 
 distrained. 
 
 Replfevy — replegiare — i. e., to take back the pledge — is when 
 a person distrained upon applies to the sheriff or his ofBcers, 
 and has the distress roLurncd into his own possession upon gi^- 
 ing security to try the right of taking it. 
 
 Redress by joint act of all the parties is by accord and 
 arhitration. 
 
 Accord is a satisfaction agreed upon between the party in- 
 jured and the party injuring; which, when performed, is a bar 
 of all actions on this account. 
 
 Arbitration is where the parties submit all matters in dis- 
 pute to the judgment of two or more arbitrators. 
 
 Redress by the mere operation of lavr is by retainer and 
 remitter. 
 
 Retainer is where a creditor is executor or administrator,, 
 and the law permits hini to retain his own debt before other 
 creditors in equal degree ; otherwise he must sue himself, which 
 would be an absurditj-, and leave him in a worse condition than 
 Other creditors. 
 
 Remittitur is where one has the true property in lands, but 
 is out of possession thereof, and has no right to enter without 
 recovering possession in an action — hath afterwards the freehold 
 cast upon him by some subsequent and, of course, defective, 
 title : in this case ho is remitted or sent back by operation of 
 law to his ancient and more certain title. 
 
 Redress effected by act of both law and the parties 
 is by suit or action in the courts of justice, wherein may be con- 
 sidered the courts themselves, and the cognizance of wrongs or in- 
 juries therein. 
 
 Of courts in general we may consider their nature and in- 
 cidents, and their several species. 
 
 THEIR NATURE AND INCIDENTS.— A court is a 
 place wherein justice is judicially administered. 
 
 Incidents or constituent parts to all courts are plaintiffs, de- 
 fendants, judge, attorneys, etc. 
 
 Courts are either of record or not of record. 
 
BOOK III.] BLACKSTONE. 87 
 
 A court of record is that where the acts and judicial pro- 
 ceedings are enrolled or recorded for a perpetual memorial and 
 testimony, which rolls are called the records of the court, and 
 are of such high and super-eminent authority that their truth 
 cannot be called in question. 
 
 A court not of record is the court of a private man, whom 
 the law will not intrust with any discretioDary power, as courts 
 baron, and other inferior jurisdictions. 
 
 An attorney is one who is put in the place, stead, or turn of 
 another to manage his matters of law. 
 
 It is a general rule that where there is a legal right there is 
 also a legal remedy, by suit or action at law, whenever that right 
 is invaded. 
 
 A suit or action is the lawful demand of one's right. 
 
 It is an OTdinaxj proceeding in a court of justice, by which a 
 party prosecutes another party for the enforcement or protection 
 of a right, the redress or prevention of a wrong, or the punish- 
 ment of a public offence. 
 
 Fictions in law are those things that have no real essence in 
 their own body, but are acknowledged and accepted in law for 
 some special purpose. They are highly beneficial and useful, 
 as the maxim is ever invariably observed that no fiction shall 
 extend to work an injury, its proper operation being to prevent 
 a mischief or remedy an inconvenience that might result from 
 the general rule of law. 
 
 AS TO THEIR SPECIES.— Courts are of a public or gen- 
 eral jurisdiction, or of a private or special jurisdiction. 
 
 Courts of a public or general jurisdiction are the Courts 
 of Common Law and Equity, the Ecclesiastical Courts, the Mil- 
 itary Courts, and the M.aritime Courts. 
 
 The courts of common lavr and equity are the Court of 
 Piepoudre, the Court Baron, the Hundred Court, the County 
 Court, the Court of Common Pleas, of King's Bench^ of Ex- 
 chequer, of Chancery, of Exchequer-Chamber, and the House of 
 Peers; to which may be added, as auxiliaries, the Courts of As- 
 size and Nisi Prius. 
 
 The court of piepoudre, so called from the dusty feet of 
 the suitors, is a court of record incident to every fair and market. 
 They are instituted to do justice expeditiously among the variety 
 of persons that resort from distant places to a fair or market. 
 It is the lowest court. 
 
88 BLACKSTONE. [book iir. 
 
 The court baron is a court incident to every manor of tlie 
 kingdom, to be holden by the steward within the said manor. 
 
 A hundred court is only a larger court baron, being held 
 for all the inhabitants of a particular hundred instead of a manor. 
 
 A county court is a court incident to the jurisdiction of the 
 sheriff. 
 
 A court of common pleas is for the trial of all matters of 
 law arising in civil causes, whether real, personal, or mixed and 
 compounded of both. 
 
 Pleas, or suits, are of two sorts : pleas of the croicn, which 
 comprehend all crimes and misdemeanors wherein the King (on 
 behalf of the public) is the plaintiff, and common pleas, which in- 
 clude all civil actions depending between subject and subject. 
 
 In this court only can real actions be originally brought, and 
 all other or personal pleas between man and man, this court sit- 
 ting to hear and determine all matters of law arising in civil 
 causes, whether real, personal or mixed. 
 
 The court of king's bench, so called because the King used 
 formerly to sit there in person, is the supreme court of common law 
 in the kingdom. 
 
 The court of exchequer is a court of inferior rank to that 
 of the King's bench or common pleas, and is intended principally 
 to order the revenues and collect the debts and duties of the 
 crown. 
 
 The high court of chancery is in matters of civil property 
 the most important of any of the King's superior and original 
 courts of justice, and derives its name from the judge or lord 
 chancellor, who presides over it. 
 
 The court of exchequer-chamber is only a court of appeal 
 to correct the errors of other jurisdictions. 
 
 The house of peers is the supreme court of judicature in the 
 kingdom; it has no original jurisdiction, but only upon appeals 
 and writs of error. 
 
 The courts of assize and nisi prius are composed of two 
 or more commissioners, who are twice every year sent by the 
 King all over the kingdom to try certain cases hj jury, etc. 
 
 The ecclesiastical courts were various, and exercised ju- 
 risdiction over such ecclesiastical matters in which it was sup- 
 posed the Court of Eome, or the Pope, had proper or rightful 
 preference. They are not courts of record. 
 
 The ecclesiastical and lay courts were first separated by William 
 
BOOK III.] BLACKSTONB. 89 
 
 the Conqueror. In the times of our Saxon ancestors there was 
 no distinction between them. 
 
 The military courts are also not courts of record, and the 
 only permanent one is that of chivalry, the courts martial an- 
 nually established by act of Parliament being only temporary. 
 
 The maritime courts are the courts of admiralty and their 
 courts of appeal. They have power and jurisdiction to deter- 
 mine all maritime injuries arising upon the seas. 
 
 Like the ecclesiastical courts, the proceedings in these courts 
 are according to the method of the civil law, and they are not 
 courts of record. 
 
 Courts of a private or special jurisdiction are those 
 whose jurisdiction is private and special, confined to particular 
 spots, or instituted to redress only particular injuries. 
 
 These particular jurisdictions, derogating from the general 
 jurisdiction of the courts of common law, are ever strictly re- 
 strained, and cannot be extended farther than the express letter 
 of their privileges will most explicitly warrant. 
 
 COGNIZANCE OF PRIVATE WRONGS BY THE 
 COURTS. — All private wrongs or civil injuries are cognizable 
 either in the courts ecclesiastical, military, maritime or those of 
 common law. 
 
 In the ecclesiastical courts the injuries cognizable are 
 pecuniary, matrimonial and testamentary. 
 
 The pecuniary injuries are Subtraction of tithes, Non- 
 payment of ecclesiastical dues. Spoliation, Dilapidations, Non- 
 repairs of the church, and the like. 
 
 The matrijuonial injuries are Jactitation of marriage, i. e., 
 where one boasts that he is married to another, whereby a com- 
 mon reputation of their marriage may ensue. Subtraction of con- 
 jugal rights, Inability for the marriage state, and Refusal of de- 
 cent maintenance to the wife. 
 
 The testamentary injuries are Disputing the validity of 
 wills. Obstructing of administrations, and Subtraction of legacies. 
 
 The ecclesiastical courts or tribunals subsist and are admitted, 
 in England, not by any right of their own, but upon bare suffer- 
 ance and toleration from the municipal laws, and they are prin- 
 cipally guided by the rules of the civil and canon laws. They 
 must have recourse to the laws of England to be informed how 
 far their jurisdiction extends, or what causes are permitted and 
 what forbidden to be discussed or drawn in question before them, 
 
90 BLACKSTONE. [book m. 
 
 the only uniform rule to determine the jurisdiction of the courts 
 in England being the common law. 
 
 The ecclesiastical courts have no other process than that of 
 excommunication to enforce their sentences when pronounced, 
 and the courts of common law will award a prohibition against 
 the proceedings of the spiritual courts when they are manifestly 
 repugnant to the fundamental maxims of the municipal law. 
 Otherwise they lend a suj)porting hand to their authority. 
 
 In the military courts the injuries cognizable are Injuries 
 in point of honor, Encroachments in coat-armor, Precedency, etc. 
 
 The proceedings are in a summary method, and its jurisdiction 
 is declared by statute to be, "that it hath cognizance of contracts 
 touching deeds of arms or of war, out of the realm, and also of 
 things which touch war within the realm, which cannot be de- 
 termined or discussed by the common law, together with other 
 usages and customs to the same matters appertaining." 
 
 In the maritime courts the injuries cognizable are injuries 
 which, though in their nature of common law cognizance, yet 
 being committed on the high seas, out of the reach of ordinary 
 courts of justice, are therefore to be remedied in a peculiar court 
 of their own. 
 
 The proceedings of a court of admiralty much resemble those' 
 of the civil law, but are not entirely founded thereon, as they 
 likewise adopt and make use of other laws as occasion requires. 
 
 In the common la-w courts the injuries cognizable are all 
 the possible injuries whatsoever that do not fall within the ex- 
 clusive cognizance of either the ecclesiastical, military or mari- 
 time tribunals. . 
 
 IN THE COURTS OF COMMON LAW, in treating of 
 their cognizance of private wrongs or injuries, may be considered 
 the wrongs or injuries themselves and their remedies j and the 
 pursuit of those remedies in the several courts. 
 
 The plain and natural remedy for every species of 
 wrong or injury cognizable by the courts of common law is, in 
 general, by putting the party injured into possession of that 
 right whereof he is unjustly deprived. 
 
 This is effected by delivery or restoration of the thing de- 
 tained, or subject-matter in dispute, to the rightful owner; or, 
 where that remedy is impossible or inadequate, by giving the 
 party injured a satisfaction in damages. 
 
 The instruments by which these remedies may be ob- 
 
BOOKin.] BLACKSTOJSTE, 91" 
 
 tained are by suits or actions at law, which are distinguished 
 into three kinds : Beal, Personal and Mixed. 
 
 Personal actions are such whereby a man claims a debt, or 
 personal duty, or damages in lieu thereof; or damages for some 
 injury done to his person or property. 
 
 The former are said to be founded on contracts and the latter- 
 on torts. 
 
 Real actions concern real property only, and are such where- 
 by the plaintiff claims title to have any lands or tenements, 
 rents, commons, or other hereditaments, in fee-simple, fee-tail, or 
 for term of life. 
 
 Mixed actions are suits partaking of the nature of the other- 
 two, whereby some real property is demanded, and also personal 
 damages for a wrong sustained. 
 
 All injuries are either with or without /orce or violence. 
 
 WRONGS OR INJURIES, and their remedies.— They 
 are either injuries to the rights of persons, or injuries to the rights^ 
 of property. 
 
 Injuries to the rights of persons are either to their abso- 
 lute or relative rights. 
 
 Injuries to the absolute rights of individuals are injuries 
 to personal security, to personal liberty and to private property. 
 
 Injuries to personal security are against one's Life, Limbs, 
 Body, Health, or Eeputation. 
 
 Injuries to the limbs and body are Threats, Assaults, Bat- 
 tery, Wounding and Mayhem. 
 
 Threats and Menaces alone only become an injury or -wrong 
 when attended with some consequent inconvenience. 
 
 Assault is an attempt or offer to beat another, without touch- 
 ing him. 
 
 Battery is the unlawful beating of another. 
 
 Wounding consists in giving another some dangerous hurt. 
 
 Mayhem consists in violently depriving another of the use of 
 a member proj)er for his defence in fight. 
 
 Injuries to health are by any unwholesome practices that 
 effect, or tend to any apparent damage, to a man's vigor or con- 
 stitution. 
 
 Injuries to reputation are Slander and Malicious Words,, 
 Libels, and Malicious Prosecutions. 
 
 Slander is the malicious defaming of a person in his reputa- 
 tion, profession, or livelihood, by words tending to his damage, 
 or derogation. 
 
S2 BLACKSTOISrE. [book in. 
 
 Libels are injuries affecting a man's reputation by printing, 
 writing, pictures, signs, or the like, which, by setting a man in 
 an odious or ridiculous light, thereby tend to diminish his repu- 
 tation. 
 
 The action of trespass on the case is a universal remedy 
 given for all personal wrongs and injuries without force, or where 
 the act is not immediately injurious, but only by consequence, and 
 collaterally. 
 
 It is so called because the plaintiff's whole case or cause of 
 complaint is set forth at length in the original writ. 
 
 The action of trespass vi et armis is the remedy for inju- 
 ries accompanied with force or violence, or where the act done is 
 in itself an immediate injury to another's person or property. 
 
 Injuries to personal liberty are by false imprisonment 
 only, which consists in any kind of confinement or detention of 
 another without sufficient authority. 
 
 Habeas corpus (have the body) is the great and efficacious 
 writ in all cases of illegal confinement. It is a writ of right 
 which may not be. denied, and is directed to the j)erson detaining 
 another, commanding him to produce the lady of the prisoner, 
 with the day and cause of his caption and detention, before the 
 judge or court awarding the writ, that they may enquire into the 
 cause of the commitment, and ascertain if it be just. 
 
 Injuries to the relative rights of persons, or to their 
 rights in their relations to each other in society, are such inju- 
 ries as affect the rights of Husbands, Parents, Guardians and 
 Masters. 
 
 Injuries to a husband are Abduction or taking away his 
 wife, Adultery or criminal conversation with her and Beating 
 or otherwise abusing her. 
 
 Injuries to parents and guardians are. Abduction of their 
 children or wards. 
 
 Injuries to masters are Eetaining his servants, or beating 
 them. 
 
 INJURIES TO THE RIGHTS OF PRIVATE PROP- 
 ERTY are either to those oi personal or real property. 
 
 Injuries to personal property may be to property in pos- 
 session or in action. 
 
 Injuries to personal property in possession are by Dispos- 
 session, or by Damage, while in the owner's possession. 
 
 Dispossession may be effected by unlawful taking, and by 
 
BOOK in.] BLACKSTONE. 93 
 
 an unlawful detaining, though the original taking might be la-wfuL- 
 
 The unlawful taking of goods and chattels is remedied by 
 actual restitution — obtained hj action of replevin, of by satisfac- 
 tion in damages — obtained by action on the case, trespass or 
 trover. 
 
 For the unlawful detaining of goods lawfully taken, the 
 remedy is also by actual restitution — obtained by action of re- 
 plevin or detinue, or by satisfaction in damages — by action on 
 the case, or trover and conversion. 
 
 For damage to personal property while in the owner's pos- 
 session, the remedy is in damages ; by action of trespass vi et 
 armiSjifthe act be immediately injurious; or by action of trespass. 
 on the case, if the act occasions consequential damage. 
 
 The action of replevin, being founded upon a distress 
 wrongfully taken and without sufficient cause, is a re-delivery 
 of the pledge or thing taken in distress to the owner, upon his 
 giving security to try the right of the distress and to restore it, 
 if the right be adjudged against him ; after which the distrainor 
 may keep it till tender made of sufficient amends, but must then 
 re-deliver it to the owner. 
 
 The action of detinue is for the recovery of the possession 
 of goods in specie. 
 
 It is not much used, having given place to the action of trover.. 
 
 The action of trover in its origin was an action of trespass 
 on the case, for the recovery of damages against such a person 
 as had found another's goods and refused to deliver them on de- 
 mand, but converted them to his own use. 
 
 This action having certain advantages over that of detinue, 
 such as requiring a less degree of certainty in describing the 
 goods, by fiction of law, actions of trover were at length permit- 
 ted to be brought; the injury being in the conversion. 
 
 Injuries to personal property in action arise by breach of 
 contracts, express or implied. 
 
 Breaches of express contracts are by non-payment of 
 debts, by non-performance of covenants, and by non-performance 
 of promises or assumpsits. 
 
 Breaches of implied contracts are such as arise from the 
 nature and constitution of, government, as the non-payment of 
 money which the laws have directed to be paid ; and such as 
 arise from reason and construction of law, as the non-performance 
 of legal presumptive or implied assumpsits, viz : of a guan- 
 
94 BLACKSTOISTB. [book ni. 
 
 turn meruit, of a quantum valebat, of expending money for an- 
 other, of receiving money to another's use, of an insimul compu- 
 tassent on an account stated, of performing one's duty in any 
 -employment with integrity, diligence and skill. 
 
 Debt is a sum of money due by certain and express agree- 
 ment. 
 
 A promise is in the nature of a verbal covenant, and wants 
 nothing but the solemnity of writing and sealing to make it ab- 
 solutely the same. 
 
 Qui tarn actions, or popular actions, are such where, usually, 
 forfeitures created by statute are given at large to any common 
 informer, or any person who will sue for the same. Sometimes 
 part is given to the King, state, poor, or public use, and the other 
 part to the informer or prosecutor. 
 
 Express warranty of chattels is that whereby the war- 
 rantor covenants or undertakes to insuje that the thing which is 
 the subject of the contract is as represented. 
 
 INJURIES TO REAL PROPERTY are Oaster, Trespass, 
 -]N"uisance, Waste, Subtraction and Disturbance. 
 
 Ouster, or dispossession, is a wrong or injury that carries 
 with it the amotion or deprivation of possession ; for thereby 
 the wrong-doer gets into the actual occupation of the land or 
 hereditament, and obliges him that hath a right to seek his legal 
 ■remedy, in order to gain possession and damages for the injury 
 , sustained. 
 
 It is either from, freeholds, or from chattels real. 
 
 Ouster from freeholds is effected by Abatement, Intrusion, 
 Disseizin, Discontinuance and Deforcement. 
 
 Abatement is the entry of a stranger after the death of the 
 . ancestor, and before the heir. ' 
 
 Intrusion is the entry of a stranger, after a particular estate 
 of freehold is determined, before him in remainder or reversion. 
 
 Disseizin is a wrongful putting out of him that is seized of 
 the freehold. 
 
 Discontinuance is where a tenant in tail, or husband of a 
 tenant in fee, makes a larger estate of the land than the law 
 alloweth. 
 
 Deforcement includes any other wrongful detainer of the 
 freehold, from him who hath the property, but who never had the 
 possession. 
 
 Ouster from chattels real is from estates by statute-mer- 
 
:bookiii.] BLACKSTONE. 95 
 
 ■cliant, statute-staple, and elegit, or from an estate for years. It 
 is effected by a kind of disseizin or ejectment. 
 
 A v^rit of ejectione firmcB, or action of trespass in ejectment, 
 lies where lands, etc., are let for a term of years, and the lessee 
 is ousted from his term ; by which he recovers possession of his 
 term and damages. 
 
 Sjectment is now the usual method adopted for trying titles 
 to land, instead of an action real. 
 
 Trespass is an entry on another man's ground without lawfiil 
 authority, or cause of justification, and doing some damage, how- 
 ever inconsiderable, to his property. 
 
 The law always couples the idea of force with that of trespass 
 or intrusion upon the property of another. 
 
 Nuisance, or annoyance, signifies anything that worketh 
 hurt, inconvenience, or damage. 
 
 It may be either a public and common nuisance, or a private 
 nuisance, which latter is anything done to the hurt or annoyance 
 ■of the corporeal or incorporeal hereditaments of another. 
 
 Waste is a spoil and destruction of an estate, either in houses, 
 woods, or lands, by demolishing, not the temporary profits only, 
 but the very substance of the thing, to the injury of him that 
 hath the present interest, or him in remainder or reversion. 
 
 It is either voluntary, as by actual and designed demolition; or 
 permissive, arising from mere negligence and want of care. 
 
 Subtraction is where a person who owes any suit, duty, cus- 
 tom, or service to another, withdraws or neglects to perform it; 
 as rent and other services due by tenure, custom, and the like. 
 
 It differs from disseizin in that the latter strikes at the very 
 title of the party injured, and amounts to an ouster or actual 
 dispossession; whereas Subtraction is committed without any 
 denial of the right, and consisting merely of non-perform- 
 ance. 
 
 Disturbance is usually a wrong done to some incorporeal 
 hereditament, by hindering or disquieting the owners in their 
 regular and lawful enjoyment of it. It may be of franchises, of 
 commons, of ways, of tenure, or of patronages. 
 
 The pursuit of remedies in the courts furnished by the 
 laws of England is by suit or action in the Courts of Common 
 Law, or by proceedings in the Courts of Equity. 
 
 OF ACTIONS IN THE COURTS OF COMMON 
 IiAW. — In an action in the court of Common Pleas, (which is 
 
96 BLACKSTOWB. [book in.. 
 
 the original and proper court for prosecuting civil suits,) the 
 general and orderly parts are the original writ, the process, the 
 pleadings, the issue or demurrer, the trial, the judgment and its 
 incidents, the proceedings in the nature of appeals, and the exe- 
 cution. 
 
 The original ■writ, or j)rcecipe, is the beginning or foundation 
 of a suit, and is directed to the defendant by the officer of the 
 court, commanding him to do some certain thing, as to appear in 
 court, or show cause to the contrary. 
 
 The process is (or includes) the means of compelling the de- 
 fendant to appear in court, viz : either by summons, attachment, 
 distringas, capias ad respondendum, and testatum capias, alias, and 
 pluries writs, writ of exigi facias, proclamations, and outlawry, 
 appearance and common bail, arrest, and special bail. 
 
 The summons is a written or verbal warning to appear in 
 court at the return of the original writ. 
 
 The writ of attachment issues on the non-appearance of 
 the defendant at the return of the original writ, whereby the 
 sheriif is commanded to attach him by seizing some of his goods, 
 which he shall forfeit if he do not appear, or by making him find 
 safe pledges or securities, who shall be amerced in case of his 
 non-appearance. 
 
 The ■writ of distringas, or distress infinite, issues after at- 
 tachment, if the defendant forfeits his security and does not 
 appear. 
 
 The ■writ of capias ad respondendum issues, commanding 
 the sheriff to take the body of the defendant who neglects to- 
 appear after summons, attachment, and distringas. 
 
 The ■writ of testatum capias issues when the sheriff re- 
 turns that defendant is non est inventus, or not to be found, in 
 his bailiwick, and is directed to the sheriff of the county in 
 which the defendant is supposed to be, reciting the former writ, 
 and that it is testified that the defendant lurks or wanders in his. 
 bailiwick, wherefore he is commanded to take him. 
 
 The writ of exigi facias, or exigent, required the sheriff to 
 cause the defendants to be proclaimed, required, or exacted, in 
 five county cou.rts successively, to render himself; and if he 
 does, then to take him as in a capias ; but if he does not appear, 
 he shall then be outlawed. 
 
 Outlawry is putting a man out of the protection of the law, 
 so that he is incapable to bring an action for redress of in- 
 
BOOK in.] BLACKSTONB. 97 
 
 juries ; and is also attended with the forfeiture of all one's goods 
 and chattels. 
 
 Appearance is when the defendant answers any of the dif- 
 ferent writs commanding him to appear in court, by duly pre- 
 senting himself in person or by attorney. 
 
 Bail is security given for one's appearance in court at a future 
 day. 
 
 Bail is from the French word hailler, to deliver; because the 
 defendant is bailed or delivered to his securities upon their giv- 
 ing security for his appearance, and is supposed to continue in 
 their friendly custody instead of going to jail. 
 
 FLEADINGiB are the mutual altercations between the plain- 
 tiff and defendant reduced to writing. 
 
 The general and orderly parts of pleading are the dec- 
 laration, the defence, the plea, the replication, the rejoinder, the 
 sur-rejoinder, the rebutter, the sur-rebutter, etc. 
 
 The declaration narratio or count, anciently called the tale, 
 is the first pleading in which the plaintiff sets forth his cause of 
 complaint at length. 
 
 Local actions are where possession of land is to be re- 
 covered, or damages for an actual trespass, or for waste, etc., 
 affecting land. 
 
 Transitory actions are for injuries which might happen 
 anywhere; as debt, detinue, slander, and the like. 
 
 Venue or visne is the vicinia or neighborhood in which the 
 injury is declared to be done. 
 
 A nonsuit is when the plaintiff neglects to deliver or file a 
 declaration for two terms after the defendant appears ; or is 
 guilty of other delays or defaults against the rules of law ; or 
 where in any subsequent stage of the action he is adjudged not 
 to follow or pursue his remedy as he ought to do ; in which 
 cases a nonsuit, or non-prosequitur is entered and he is said to be 
 non-pros'd. 
 
 A retraxit is an open and voluntary renunciation by the 
 plaintiff of his suit in court, whereby he forever loses his suit. 
 
 A discontinuance is when the plaintiff leaves a chasm in the 
 proceeding of his cause, as by not continuing the process regu- 
 larly from day to day, and from time to time, as he ought to do. 
 
 Defence in its true legal sense, signifies, not a justification, 
 protection, or guard, but merely an opposing or denial of the 
 truth of the validity of the complaint. 
 
98 BLACKSTONB. [book in. 
 
 Claim of cognizance or conusance is a claim to have the 
 action tried in some special jurisdiction. It must be claimed 
 before defence made, if at all. 
 
 Imparlance is a continuance of the cause, which the defend- 
 ant is entitled to demand, and may, before he pleads, have 
 granted by court, to see if he can end the matter amicably, with- 
 out farther suit, by talking with the plaintiff. 
 
 Oyer. — The defendant may crave oyer of the writ, or of the 
 bond or other specialty, upon which the action is brought; that 
 is to hear it read to him. 
 
 A plea is the defendant's answer of fact, to the plaintiff's 
 declaration. 
 
 Pleas are of two sorts, dilatory pleas and fleas to the action. 
 
 Dilatory pleas are such as tend merely to delay or put off 
 the suit, by questioning the propriety of the remedy, rather than 
 by denying the injury. 
 
 They are, to the jurisdiction of the court, to the disability of 
 the plaintiff, or in abatement. 
 
 Fleas to the action are such as dispute the very cause of 
 suit or answer to the merits of the complaint. 
 
 They are made by confessing or denying any cause of action, 
 and are either general or special — pleas that totally deny the 
 cause of complaint being either the general issue or a special plea 
 in har. 
 
 The general plea, or general issue, is what traverses, thwarts, 
 and denies at once the whole declaration, without offering any 
 special matter whereby to evade it. 
 
 An issue is a fact affirmed on one side and denied on the 
 other. 
 
 Special pleas are usually in the affirmative, though some- 
 times in the negative; but they always advance some new fact 
 not mentioned in the declaration ; and then they must be 
 averred to be true in the common form — " and this he is ready 
 to verify." 
 
 An estoppel is a special plea in bar, which happens where a 
 man has done some act or executed some deed which estops or 
 precludes him from averring anything to the contrary. 
 
 The conditions and qualities of a plea are that it be 
 single and contain only one matter; that it be direct and posi- 
 tive, and not argumentative ; that it have convenient certainty 
 of time, place and persons; that it answer the plaintiff's alle- 
 
BOOK III.] ELACKSTONE. 99 
 
 gations in every material point, and that it be so pleaded as to 
 be capable of trial. 
 
 A motion is an occasional application to court by the parties 
 •or their counsel, in order to obtain some rule or order of court 
 necessary in the progress of a cause. 
 
 The replication is when the plea is in, if it does not amount 
 to, an issue, but only evades it, the plaintiff may plead again, 
 and reply to the defendant's plea. 
 
 The subsequent pleadings are the rejoinder, the sur-rejoindcr, 
 the rebutter, the sur-rebutter, etc. 
 
 To give color is to suppose one to have an appearance or 
 «olor of title — bad in deed in point of law. 
 
 Departure in pleading consists in varying from the title or 
 ■defence which the party has once insisted on. This must be 
 carefully avoided j the replication must sujsport the declaration, 
 and the rejoinder the plea. 
 
 New or novel assignment is when the plaintiff who has 
 alleged in his declaration a general wrong, in his replication, 
 after an evasive plea by the defendant, reduces that general 
 wrong to more particular certainty by assigning the injury afresh 
 in such manner as clearly to ascertain and identify it. 
 
 Duplicity in pleading must be avoided by every plea being 
 simple, entire, connected, and confined to one single point. 
 
 Issue and demurrer. — Issue is where the parties in the 
 course of pleading, come to a point affirmed on one side, and 
 denied on the other ; which, if it be matter of law, is called a 
 demurrer ; but if matter of fact, it still retains the name of an 
 issue of fact. 
 
 A demurrer confesses the facts to be true, but denies the law 
 arising upon those facts. 
 
 Continuance is the detaining of the parties in court from 
 time to time. 
 
 Flea of puis darien continuance, or since the last adjourn- 
 ment, is where the defendant is permitted to plead some new 
 matter that has arisen since he has pleaded, or even after issue 
 or demurrer. 
 
 TRIAL is the examination of the matter oi fact put in issue. 
 
 The several species of trial are by record, by inspection or 
 examination, by certificate, by witnesses, by wager of battel, by 
 wager of law and 'hj jury. 
 
 Trial by the record is only had when the existence of such 
 
100 BLACKSTONE. [bookih. 
 
 record is the point in issue; as where a matter of record is 
 pleaded in any action, as a fine, judgment, etc., and the opposite 
 party pleads " nul tiel record." 
 
 Trial by inspection, or examination, is had by the court, 
 principally when the matter in issue is the evident object of the 
 senses, and where, for the greater expedition of a cause, the 
 judges, upon the testimony of their own senses, decided the 
 point in dispute. 
 
 Trial by certificate is where such certificate must have been 
 conclusive to a jury, as where the evidence of the person certi- 
 fying is the only proper criterion of the point in dispute. 
 
 Trial by witnesses, or without the intervention of a jury, 
 (the method in the civil law) is where the judge is left to form 
 his own sentence upon the credit of the witnesses examined. 
 
 Trial by wager of battel, or judiciary duel, is in the nature 
 of an appeal to Providence, under an apprehension and hope 
 that heaven would give the victory to him who had the right. 
 
 Trial by -wager of lavr is only had where the matter in 
 issue had been privately transacted between the parties them- 
 selves, without witnesses present, and consisted in the defend- 
 ant's discharging himself from the claim on his own oath, bring- 
 ing with him at the same time into court eleven of his neighbors 
 to swear that they believed his statement to be true. 
 
 Trial by jury, or per pais, (by the country) is of two kinds : 
 extraordinary, or that of the grand assise or grand jury, consist- 
 ing of sixteen jurors, instituted by Henry II to do away with 
 the barbarous custom of duelling, etc.; and ordinary, by a jury of 
 twelve free and lawful men of the body of the county. 
 
 Juries were either special, as where the causes were of too 
 great nicety for the discussion of ordinary freeholders, or where 
 the sheriff was suspected of partiality, or common, as one returned 
 by the sheriff according to the directions of statute. 
 
 Challenges are exceptions made to jurors, and are either to 
 the array or to the polls. 
 
 Challenges to the array are at once an exception to the 
 whole panel. 
 
 Challenges to the polls are exceptions to particular jurors 
 and are of four kinds, viz : 
 
 Propter honoris respectum, as if a lord of parliament he 
 impanelled on a jury, he may be challenged by either party or 
 may challenge himself. 
 
BOOK III.] BLACKSTONB. 101 
 
 Propter defectum, as for defect in estate sufficient to qualify 
 one to be a juror, etc. 
 
 Propter affectum, as for suspicion of bias or partiality. 
 
 Propter delictum., as for some crime that affects the credit 
 of the juror. 
 
 A tales is a supply of such men as are summoned upon the 
 first panel, in order to make up a deficiency in the same. 
 
 Evidence signifies that which demonstrates, makes clear or 
 ascertains the truth of the very fact or point in issue, either on 
 the one side or the other. No evidence ought to be admitted 
 on any other point. 
 
 A verdict is the finding of the jury. 
 
 A special verdict is where the jurors state the facts as they 
 find them to be proved, and pray the advice of the court thereon. 
 
 JUDGMENT is the sentence of the law pronounced by the 
 court upon the matter contained in the record. 
 
 A judgment is either upon demurrer, upon a verdict, by 
 confession or default, or by nonsuit or retraxit, and may be inter- 
 locutory or final. 
 
 Final judgment is such as at once puts an end to the action. 
 
 Interlocutory judgments are such as are given in the middle 
 of a cause, upon some plea, proceeding or default, which is only 
 intermediate and does not finally determine or complete the suit. 
 
 EXECUTION is putting the sentence of law in force. 
 
 The v^rit of habere facias possessionem is a writ of 
 seizin of the freehold directed to the sheriff, commanding him to 
 give actual possession to the plaintiff of lands recovered by him 
 at law. 
 
 The writ of capias ad satisfaciendum is an execution of 
 the highest nature, depriving a man of his liberty till he makes 
 the satisfaction awarded. 
 
 The -writ of scire facias is a judicial writ, founded upon 
 some record, and requiring the person against whom it is brought 
 to show cause why the party bringing it should not have the ad- 
 vantage of such record. 
 
 The writ of fieri facias commands the sheriff to seize and 
 sell the defendant's goods and chattels, sufficient to satisfy the 
 judgment and costs. 
 
 The writ of levari facias commands the sheriff to seize cer- 
 tain of the defendant's lands to satisfy the plaintiff's demands. 
 
 PROCEEDINGS IN THE COURTS OF EQUITY 
 
102 BLACKSTONB. [book in. 
 
 differ from those in the Courts of Common Law, principally in 
 three points, viz : 
 
 In the mode of proof — by a discovery on the oath of the 
 party, which gives a jurisdiction in matters of account and fraud. 
 
 In the mode of trial — by depositions taken in any part of 
 the world. 
 
 In the mode of relief — by giving a more specific and ex- 
 tensive remedy than can be had in the courts of common law, 
 by executing agreements, staying waste or other injuries by in- 
 junction, directing the sale of incumbered lands, by the true con- 
 struction of the securities for money, by considering them merely 
 as a pledge, and by the execution of trusts or uses in a manner 
 analogous to the law of legal estates. 
 
 Equity, in its true and genuine meaning, is the soul and spirit 
 of all law ; positive law is construed and rational law is made by it. 
 
BOOK IV.] 
 
 BLACKSTONE. 
 
 103 
 
 ANALYSIS OF BOOK IT. 
 
 Public Wrongs ; in which are considered 
 
 1. The general nature of crimes and punishments, 
 
 2. The persons capable of committing crimes, 
 
 3. Their several degrees of guilt ; as 
 f 1. Principals, 
 \2. Accessories. 
 
 i. The various crimes ; more peculiarly offending 
 '1. God and religion, 
 2. The law of nations, 
 
 The King and government ; viz : 
 '1. High treason. 
 
 Felonies injurious to the prerogative, 
 
 3. Priemunire, 
 
 4. Misprisons and contempts. 
 4. Tlie commonwealth ; viz : offences against 
 
 ' 1. Public justice, 
 
 2. Public peace, 
 
 3. Public trade, 
 
 4. Public health, 
 
 5. Public economy. 
 Individuals ; being crimes against 
 
 '1. Their persons ; by 
 / 1. Homicide, 
 (_2. Other corporeal injuries. 
 
 2. Their habitations, 
 
 3. Their property. 
 
 5. The means of prevention ; by security for 
 / 1. The peace, or 
 \2. The good behavior. 
 
 6. The method of punishment ; wherein of 
 f 1. The several courts of criminal jurisdiction ; 
 1. 2. The proceedings therein. 
 
 J 1. Summary, or 
 \ 2. Eegular ; by 
 
 1. Arrest, 
 
 2. Commitment and bail, 
 
 3. Prosecution ; by 
 fl. Presentment, 
 
 2. Indictment, 
 
 3. Information, 
 
 4. Appeal. 
 
 4. Pi-ocess, 
 
 5. Arraignment, and its incidents, 
 
 6. Plea, and issue, 
 
 7. Trial and conviction, 
 
 8. Clergy, 
 
 9. Judgment, 
 j 1. Forfeiture, 
 \ 2. Corruption of. blood, 
 
 10. Avoider of judgment ; by 
 f 1. Falsifying, or reversing, the attainder; 
 \ 2. Eeprieve, or pardon. 
 
 11. Execution. 
 
104 BLACKSTONB. [book iv. 
 
 BOOK IT. 
 
 PUBIilC TTROXGS being breaches of general and 
 public rights, affect the ■whole community, and are 
 called crimes and misdemeanors, in treating of which may- 
 be considered the general nature of crimes and punishments; 
 the persons capable of committing crimes ; their several degrees 
 of guilt ; the several species of crimes ; the means of preventing 
 crime; and the method of punishment. 
 
 GENERAL NATURE OF CRIMES AND THEIR 
 PUNISHMENT. — A crime or misdemeanor is an act com- 
 mitted or omitted in violation of a public law either forbidding 
 or commanding it. 
 
 A crime, in its ZfmiYed sense, is confined to felony. They are 
 indictable, and are defined and punishable by statute and com- 
 mon law. 
 
 A misdemeanor, in its limited sense, is a lesser degree of 
 crime, and includes offenses inferior to felony, but still punish- 
 able by indictment, and other proscribed proceedings. 
 
 Offenses are crimes not indictable, but punishable summarily, 
 or by forfeiture of a penalty. 
 
 Misprisons and contempts are all such high offences as are 
 under the degree of capital. 
 
 Crimes are distinguised from civil injuries, in that they are a 
 breach and violation of the public rights, due to the whole com- 
 munity. 
 
 In all cases the crime includes an injury. 
 
 Every public offense is also a private wrong, because it affects 
 the individual as well as the community. 
 
 Punishments may be considered with regard to the power, 
 the end, and the measure of their infliction. 
 
 The povrer or right of inflicting human punishments, for 
 natural crimes, or such as are mala in se, was, by the law of na- 
 ture, vested in every individual, but, by the fundamental con- 
 tract of society, is now transferred to the sovereign power^ in 
 
BOOK IV.] BLACKSTOlSrE. 105 
 
 "which is also vested, by the same contract, the right of punish- 
 ing positive offences, or such as are mala prohibita. 
 
 The end of human punishment is to prevent future of- 
 fences — by amending the offender, by deterring others through 
 his example, and by depriving him of the power to do future 
 mischief. 
 
 The measure of human punishment must be determined by 
 the wisdom of the sovereign power, and not by any uniform 
 rule; though that wisdom may be regulated and assisted by 
 certain general and equitable principles. 
 
 The persons capable of committing crimes are all per- 
 sons, unless there be in them a defect of will; for, to constitute 
 a legal crime, there must be both a vicious will and a vicious act. 
 
 As a vicious will without a vicious act is no civil crime, so, on 
 the other hand, an unwarrantable act, without a vicious will, is 
 no crime at all. 
 
 The vrill is -wanting, or does not concur -with the act, 
 in three cases, viz : 
 
 First. — Where there is a defect of understanding, as infancy, 
 idiocy, lunacy and intoxication, — which last, however, is no 
 ■excuse. 
 
 Second. — Where no will is exerted, as misfortune, or chance, 
 and ignorance or mistake of fact. 
 
 Third. — Whore the act is constrained by force and violence, 
 as from compulsion or inevitable necessity, which is that of civil 
 subjection, of duress per minaS, choflsing the least of two evils, 
 where one is unavoidable, and want or hunger — which is no le- 
 gitimate excuse. 
 
 Infants under fourteen years of age are prima facie, adjudged 
 to be incapable of crime. 
 
 If a lunatic has lucid intervals of understanding, he must an- 
 swer for what he does in those intervals — ignorantia legis nenii- 
 nem excusat. 
 
 PRINCIPALS AND ACCESSORIES are the different 
 degrees of guilt in criminals. 
 
 Principals may be so in two degrees. 
 
 A principal in the first degree is he that is the actor or 
 absolute perpetrator of the crime. 
 
 A principal in the second degree is he who is present, 
 aiding and abetting the act to be done. 
 
 An accessory is he who is not the chief actor in the offence, 
 
106 BLACKSTOlSrE. [book iv. 
 
 nor present at its performance, but is some "way concerned there- 
 in, either before or after the fact committed. 
 
 An accessory before the fact is one who being absent at 
 the time of the crime committed, doth yet procure, counsel, or 
 command another to commit a crime. 
 
 An accessory after the fact is where a person knowing a 
 felony to have been committed, receives, relieves, comforts, or 
 assists the felon. 
 
 lu all degrees of crime under felony there are no accessories; 
 all are principals. 
 
 The several species of crimes are such as offend God 
 and his holy Religion, the Law of Nations, the King and Govern- 
 ment, the Public or Commonwealth and Individuals. 
 
 Offences against God and religion are Apostacy, Heresy, 
 Offences against the Established Church, Blasphemy, Profane 
 swearing and cursing, "Witchcraft, Eeligious imposters. Simony, 
 Sabbath-breaking, Drunkenness and Lewdness. 
 
 Apostacy is a total renunciation of Christianity. 
 
 Heresy is an obstinate and j)ublic denial of some of the es- 
 sential doctrines of Christianity. 
 
 Simony is the corrupt presentation of anyone to an ecclesi- 
 astical benefice for gifts or reward. 
 
 Offences against the la'w of nations are principally inci- 
 dent to States or nations, but when committed by private sub- 
 jects are then the objects of the municipal law. 
 
 They are "Violations of Safe-conducts, Infringement of the 
 rights of embassadors and Piracy. 
 
 Piracy is committing those acts of robbery and depredation on 
 the high seas which, if committed on land, would have been felony. 
 
 Offences against the King and government are Treason, 
 Felonies injurious to the prerogative, Prasmunire, and other Mis- 
 prisons and Contempts. 
 
 Treason, treachery, or breach of faith, is an offence against 
 the duty of allegiance, and is the highest known crime, for it 
 aims at the vorj^ destruction of the commonwealth. 
 
 Praemunire is the offence of adhering to the temporal power 
 of the Pope, in derogation of the regal authority, by introducing 
 a foreign power into the land, in paying that obedience to papal 
 process and authority that constitutionally belongs to the King. 
 
 Misprisons and contempts are all such high offences as are 
 under the degree of capital. 
 
BOOK IV.] BLACKSTONB. lOT 
 
 Misprison of treason consists in the bare knowledge and 
 concealment of treason, without any degree of assent thereto. 
 Offences against the public or commonwealth are 
 
 against Public Justice, Public Peace, Public Trade, Public Health, 
 and Public Police or Economy. 
 
 Offences against public justice are Embezzling or vacat- 
 ing records or falsifying proceedings in court by personating 
 others, etc., Compelling prisoners to become approvers, Ob- 
 structing execution of legal process. Escapes from arrest. Breach 
 of prison, Eescue, Returning from transportation. Taking re- 
 wards to help one to his stolen goods, Eeceiving stolen goods,. 
 Theft-bote, or compounding a felony, Barretry, Maintenance, 
 Champerty, Compounding prosecutions on penal statutes. Con- 
 spiracy and threats of accusation to extort money. Perjury and 
 subornation thereof. Briber^-, Embracery, False verdict of jurors, 
 Negligence of public officers, etc., Oppression by magistrates 
 and extortion of officers. 
 
 Embezzlement is the act of appropriating to one's self that . 
 which is received in trust for another. 
 
 Rescue is the forcibly and knowingly freeing another from 
 an arrest and imprisonment. 
 
 Theft-bote, or compounding of Felony, is the crime of receiv- 
 ing back from a felon one's goods or other amends, upon agree- 
 ment not to prosecute. 
 
 Barretry is the habitual moving, exciting, stirring up and 
 maintaining suits and quarrels, at law, or otherwise. 
 
 Maintenance bears a near relation to barretry, being an offi- 
 cious intermeddling in a suit that in no way belongs to one, by 
 maintaining or assisting either party, with money or other- 
 ■\^ise. 
 
 Champerty is a species of maintenance, being a bargain be- 
 tween two that they share the lands sued for between them, if 
 they prevail, the champertor bearing the expenses of the suit. 
 
 A conspiracy is an agreement between two or more persons 
 to do an unlawful act, or any of those acts which, by the com- 
 bination, become injurious to others. 
 
 Perjury is where a person to whom a lawful oath has been 
 administered in some judicial proceeding, swears willfully, abso- 
 lutely, and falsely, in a matter material to the issue. 
 
 Subornation of perjury is the offence of procuring another- 
 to take such false oath as constitutes perjury in the principal. 
 
108 BLACKSTONB. [book iv. 
 
 Bribery is when a judge, or other person, takes any undue 
 reward to influence his behavior in office. 
 
 Embracery is an attempt to corrupt or influence a jury, by 
 any means whatever, whether the juror gives a verdict or not, 
 and whether the verdict be true or false. 
 
 Offences against the public peace are Eiotous assem- 
 blies, Armed or hunting in disguise, Threatening or extorting 
 by letters. Destroying turnpikes, flood-gates, etc.. Affrays and 
 breaches of the peace. Riots, routs, and unlawful assemblies. 
 Tumultuous petitioning. Forcible entry and detainer. Going un- 
 usually armed, Spreading false news. Pretended prophesying, 
 ■Challenges to fight and Libels. 
 
 Disturbance is the hindering or disquieting people in their 
 lawful enjoyment and privileges. 
 
 An affray is the fighting of two or more persons in some 
 public place, to the terror of the people. 
 
 If it be in private, it is an assault. 
 
 A riot is where three or more actually do an unlawful act of 
 violence, either with or without a common cause or quarrel. 
 
 A rout is where three or more meet to do an unlawful act 
 upon a common quarrel, and only make some advances toward it. 
 
 Unlawful assemblies are where three or more assemble to- 
 gether to do an unlawful act, and part without doing it, or mak- 
 ing any motion towards it. 
 
 Riots, routs, and unlawful assemblies, to constitute them, must 
 have at least three persons. 
 
 Forcible entry and detainer is violently taking or keeping 
 possession of lands and tenements, with menaces,, force, and 
 arms, and without the authority of law. 
 
 Offences against public trade are Owling, Smugglings 
 Fraudulent bankruptcy, "Usury, Cheating, Forestalling, Eegrat- 
 ing, Engrossing, Monopolies, Exercising a trade not having 
 i served an apprenticeship. Transporting and enticing our artists 
 to settle abroad. 
 
 Ovrling — so called from being carried on at night — is trans- 
 porting wool or sheep out of the kingdom, to the detriment of 
 its staple manufacture. 
 
 Smuggling is importing goods without paying the duties 
 thereon. 
 
 Forestalling is buying or contracting for any merchandise 
 •or victual while on its way to market. 
 
BOOK IV.] BLACKSTONB. 109 
 
 Regrating is buying corn, or other dead victual, and selling 
 it again in the same market, which enhances prices. 
 
 Engrossing is buying up corn, or other dead victual, in large 
 quantities, to sell again. 
 
 Monopolies are much the same offence in other branches of 
 trade, that engrossing is in provisions. 
 
 In another sense, a monopoly is where a right, before com- 
 mon to all, is withdrawn from the mass of the community and 
 vested in one or more individuals, to the exclusion of all 
 others. 
 
 Offences against the public health are Irregularities in 
 time of plague or of quarantine, and Selling unwholesome pro- 
 visions. 
 
 Offences against the public police, economy or 
 domestic order are Clandestine and irregular marriages. 
 Bigamy, Idling and wandering of soldiers and mariners, Re- 
 maining in England of outlandish persons called Egyptians or 
 Gipsies, common nuisances, idleness, vagrancy, etc., Luxury and 
 extravagance. Gaming, Destrojang game, etc. 
 
 Common nuisances are Annoyances in highways, bridges. 
 and rivers. Offensive trades. Disorderly houses, Lotteries, fire- 
 works. Eaves-dropping, Common scolds, etc. 
 
 Offences or crimes against individuals are either against 
 their Persons, their Habitations, or their Property. 
 
 Offences against the persons of individuals are Homi- 
 cide or other Corporal injuries. 
 
 Homicide is the taking of life, or the killing of any human 
 creature; and it is either justifiable, excusable, ov felonious. 
 
 The first has no share of guilt at all; the second very little;, 
 but the third is the highest crime against the law of nature that 
 man is capable of committing. 
 
 Justifiable homicide is either by command or permission of 
 law. 
 
 By command of laTV, as the execution of criminals. 
 
 By permission of lavr, viz : First, for the advancement of 
 ■puhlio justice, as by an officer in discharge of his duty. 
 
 Second, to prevent some felony or atrocious crime ; as if any 
 person attempts to break open or burn a house in the night- 
 time, or to rob or murder another. 
 
 Excusable homicide is by misadventure, or in self-defence. 
 
 Homicide by misadventure is where a man, doing a law- 
 
no BLACKSTOJSTE. [book iv. 
 
 ful act, without any intention of hurt, unfortunately kills another. 
 
 Homicide in self-defence is upon that principle of self- 
 preservation whereby a man may protect himself when at- 
 tacked by another ; as if violently, or where there is no other 
 means of escape except by slaying his assailant. 
 
 Chance-medley is such killing as happens in self-defence 
 upon a sudden rencounter or affray ; it is excusable rather than 
 justifiable. 
 
 There is one s^jecies of homicide in self-defence where the 
 party slain is equally innocent as he who occasioned his death, 
 namely : in the case of two persons shipwrecked, struggling for 
 the same plank, and one is pushed off. 
 
 Felonious homicide is the killing of a human creature, 
 without justification or excuse, which is by killing one's self, or 
 by Jailing another. 
 
 Killing one's self, or suicide, is where one deliberately, or 
 by any unlawful malicious act, puts an end to his own life. 
 
 Killing another is either murder, where it arises from wick- 
 edness of the heart, or manslaughter, where it does not. 
 
 Manslaughter is the unlawful killing of another, without 
 malice, either express or implied. 
 
 It is either voluntary or involuntary. 
 
 Voluntary manslaughter is upon a sudden heat or quarrel. 
 
 Involuntary manslaughter is perpetrated in the commis- 
 sion of some unlawful act. 
 
 In every case of homicide upon provocation, if there be suf- 
 ficienL cooling time for passion to subside and reason to inter- 
 pose, and the person so provoked afterwards kills the other, this 
 is deliberate revenge, and not heat of blood, and is murder. 
 
 Excusable homicide in self-defence differs from voluntary 
 manslaughter on a sudden provocation, in that, in the one ease, 
 there is an apparent necessity, for self-preservation, to kill the 
 aggressor ; and in the other, no necessity at all, it being only a 
 sudden act of passion. 
 
 When an involuntary killing happens while in the commis- 
 sion of an unlawful act, in general it will be either murder or 
 manslaughter, according to the nature of the act which occa- 
 sioned it. If, in the prosecution of a felonious intent, or if in its 
 consequences naturally tending to bloodshed, it will be murder ; 
 but if no more than a mere civil trespass was intended, it will 
 ■only amount to manslaughter. 
 
BOOKiv.] BLACKSTONE. Ill 
 
 Murder is when a person of sound memory and discretion 
 unlawfully killeth any reasonable creature in being and under 
 the King's peace, with malice aforethought, either express or 
 implied. 
 
 (By statute in Pennsylvania, all murder which shall be perpe- 
 trated by means of poison, or by lying in wait, or by any other 
 kind of willful, deliberate, and premeditated killing, or which 
 shall be committed in the perpetration or attempt to perpe- 
 trate any arson, rape, robbery, or burglary, shall be deemed 
 murder in i\\e first degree ; and all other kinds of murder shall 
 be deemed murder of the second degree). 
 
 Express malice is when one, with a sedate, deliberate mind 
 and formed design, doth kill another. 
 
 Implied malice is where, for instance, a man willfully poisons 
 another, or kills another without any, or but little, provocation. 
 
 Parricide is the murder of one's parents. 
 
 Fratricide, the murder of one's brother. 
 
 OTHER CORPORAL INJURIES to the persons of in- 
 dividuals, not amounting to homicide, are Mayhem, Abduction, 
 and marriage or defilement. Seduction, Fornication, Adultery, 
 Eape, Buggery, Assault, Battery, Wounding, False Imprison- 
 ment and Kidnapping. 
 
 Fornication is the unlawful carnal knowledge of an unmar- 
 ried person with another. 
 
 AVhen either party is married the offence, as to him or to her, 
 is adultery. 
 
 Adultery, or criminal conversation, is the violation of conjugal 
 fidelity. 
 
 Seduction is the corruption of women, as by illicit connec- 
 tion with any female of good repute, under twenty-one years of 
 age, and under promise of marriage. 
 
 Rape is the carnal knowledge of a woman forcibly, and 
 against her will. 
 
 Buggery is the crime against nature, committed with man or 
 beast. 
 
 Kidnapping is the forcible stealing away of a person from 
 his own country, and sending him into another. 
 
 Offences against the habitations of individuals are 
 Arson and Burglary. 
 
 Arson is the malicious and willful burning of the house or 
 •out-house of another. 
 
112 BLACKSTON'B. [bookiv. 
 
 Burglary is the breaking and entering in the night-time the 
 mansion house of another, with intent to commit a felony. 
 
 Offences against private property of individuals are Lar- 
 ceny, Malicious Mischief and Porgcry. 
 
 Larceny is the felonious taking and carrying away of the 
 personal goods of another. 
 
 Simple larceny, or plain theft, is unaccompanied with any 
 other atrocious circumstances. 
 
 Compound larceny includes the aggravation of a taking 
 from one's house or person. 
 
 Robbery, or open larceny from the person, is the felonious 
 and forcible taking from the person of another goods or money 
 of any value, by violence or putting him in fear. 
 
 Malicious mischief is the doing of mischievous damage to 
 private property, without any intent to gain by another's loss, 
 but out of a spirit of wanton cruelty or revenge. 
 
 Forgery is the fraudulent making or alteration of a writing, 
 to the prejudice of another man's right. 
 
 The means of preventing offences or crimes (since j?re- 
 ventive justice is upon every principle of reason, humanity, and 
 sound policy) is by compelling suspected persons to give security 
 to keep the peace, or for good behavior, and is effected by binding 
 them in recognizance, which is an obligation with one or more 
 securities, entered on record, and taken in some court, or by 
 some judicial officer. 
 
 The methods of punishment include the proceedings in 
 courts, which in criminal courts are summary or regular. 
 
 Summary proceedings are such whereby a man may be 
 convicted of divers offences without any formal process or jury, 
 at the discretion of the judge. 
 
 The regular proceedings in the courts of common law are 
 Arrest, Commitment and Bail, Prosecution, Process, Arraign- 
 ment, Plea and Issue, Trial and Conviction, Clergy, Judgment, 
 Eeversal of Judgment, Eeprieve or Pardon and Execution. 
 
 Arrest is the apprehending or restraining of one's person, in 
 order to be forthcoming to answer an alleged or suspected crime. 
 
 Commitment is the confinement of one's person in prison 
 for safe custody, by warrant from proper authority. 
 
 Bail is a security given, according to law, to insure the attend- 
 ance at a future time of a party in court, and taken before a 
 proper tribunal. 
 
BOOKiv.] BLACKSTONE. 113 
 
 Commitment being only for safe custody, whenever bail will 
 answer the same intention, it ought to be taken. But in offences 
 of a capital nature, no bail can be a security equal to the actual 
 custody of the person. Such persons have no other sureties but 
 the four walls of the prison. In bailable cases bail must not be 
 refused, insufS.cient bail must not be taken, nor excessive bail 
 required. 
 
 Prosecution, or the manner of accusing and prosecuting of- 
 fenders, is by presentment, indictment, information and appeal. 
 
 Presentment is the notice taken by a grand jury of any 
 offence, from their own knowledge or observation, and upon 
 which an indictment may be framed. 
 
 Indictment is a written accusation of one or more persons of 
 a crime or misdemeanor, preferred to and presented upon oath 
 by a grand jury expressing, with sufficient certainty, the person, 
 time, place and offence. 
 
 Informations are of two kinds : those at the suit of the King 
 and a subject, upon penal statutes — a sort of qui tarn action, 
 where part of the penalty goes to the informer; and those at the 
 suit of the King or State only. 
 
 Appeal is an accusation or suit brought by one private sub- 
 ject against another, as for larceny, rape, mayhem, arson, homi- 
 cide, etc., which the King cannot pardon, but the party injured 
 alone can release. 
 
 An inquisition is the act of a jury, summoned by the proper 
 officer, to enquire into a matter, upon the evidence laid before 
 them. 
 
 Process, or the means of compelling the appearance of the 
 defendant to answer when indicted, in his absence, is, in misde- 
 meanors, by venire facias, distress infinite, and capias ; in capital 
 crimes, by capias only; and in both by outlawry. 
 
 Arraignment is the calling of the prisoner to the bar of the 
 court, to answer the matter charged upon him in the indict- 
 ment. 
 
 The plea of the prisoner, or defensive matter alleged by him 
 in his arraignment, is either a plea to the jurisdiction, a demur- 
 rer in point of law, a plea in abatement, a special plea in bar, as 
 a former acquittal, conviction, attaint, or a pardon, or the general 
 issue, not guilty. 
 
 A plea to the jurisdiction is when an indictment is before 
 a court that hath no cognizance of the offence, the prisoner may 
 
114 BLACKSTONE. [book iv. 
 
 except to the jurisdiction of the court by a plea to the jurisdic- 
 tion without answering to the crime alleged. 
 
 A demurrer in point of lavr to the indictment is when the 
 fact alleged is allowed to be true, but the prisoner joins issue 
 Ufion some point of law in the indictment, by which he insists 
 that the fact as stated is no felony, treason, etc., as alleged. 
 
 A plea in abatement is principally for a misnomer , or wrong 
 name, etc. 
 
 A special plea in bar goes to the merits of the indictment, 
 and gives a reason why the prisoner ought not to answer it at 
 all, nor put himself upon trial for the crime alleged. 
 
 The plea of & former acquittal is founded on the common law 
 maxim, that no man is to be brought into jeopardy of his life, or 
 tried more than once for the same offence. 
 
 Trials for offences or crimes were formerly more numerous 
 than at present. The different kinds were by Ordeal — either fire 
 or water, by the Corsned, or morsel of excreation ; by Battle or 
 duel — in appeals, etc.; by Parliament, and hy jury. 
 
 Trial by ordeal was principally in use among our Saxon 
 ancestors, as also that of the corsned; the former being the most 
 ancient, and was of two kinds — by fire and water ; that by fire 
 being confined to persons of a higher rank. 
 
 Trial by fire ordeal was performed by taking up in the 
 hand, unhurt, a piece of red-hot iron of two or three pounds 
 weight, or walking, unhurt, barefoot and blindfolded, over nine 
 red-hot plough-shares, laid at unequal distances. 
 
 By this method Queen Emma, the mother of Edward the Con- 
 fessor, is said to have cleared her character, when suspected of 
 familiarity with Alwyn, Bishop of Winchester. 
 
 Trial by water ordeal was performed either by plunging 
 the bare arm up to the elbow in boiling water, unhurt, or casting 
 the suspected person into a river or pond ; if he floated without 
 any action of swimming, it was deemed evidence of his guilt, 
 but if he sunk, he was acquitted. 
 
 Trial by ordeal was abolished in the reign of Henry III, 
 (about 1250.) 
 
 Trial by the corsned, or morsel of excreation, was by 
 swallowing a piece of cheese or bread, about an ounce in weight, 
 consecrated with abjuration, " I will take the sacrament upon it; 
 may this morsel be my last," etc., desiring of the Almighty that 
 it might cause convulsions and paleness, etc., if guilty. 
 
BOOK IV.] BLACKSTOISrE. 115 
 
 Historians assure us that Goodwin, Earl of Kent, in the reign 
 of Edward the Confessor, abjuring the death of the King's 
 brother, at last appealed to his corsned, which stuck in his throat 
 and killed him. 
 
 In trials by jury challenges may be made on the part of 
 the King, or that of the prisoner ; and either to the whole array 
 or the separate polls, and for the same i-easons made in civil eases; 
 but in criminal cases the prisoner is allowed to make peremptory 
 challenges, — that is, without showing any cause or reason. 
 
 Benefit of clergy was an arrest of judgment in criminal 
 <;ases, and had its origin in the usurped jurisdiction of the popish 
 ecclesiastics, in exempting clergymen or their clerks, which in- 
 cluded every one that could read, etc., from criminal process be- 
 fore the secular judges, in certain capital cases only. The de- 
 fendant was burned with a hot iron in the brawn of his left 
 thumb, to show that he had been admitted to this privilege, 
 "which was not allowed twice to the same person. 
 
 Judgment follows upon conviction, being the pronouncement 
 of that punishment which is expressly ordained by law. 
 
 Judgment is reversed hy falsifying or reversing the attain- 
 der or judgment, or by reprieve or pardon. 
 
 Attainder is the stain or corruption of the blood of a criminal 
 capitally condemned; it is the immediate inseparable conse- 
 quence, by the common law, on sentence of death being pro- 
 nounced, or of outlawry for a capital offence. Its consequences 
 are forfeiture of property and corruption of blood, and the crim- 
 inal becomes dead in law. 
 
 It differs from conviction in that it is after judgment, whereas 
 conviction is before judgment pronounced, and may be quashed 
 upon some point of law reserved. 
 
 Attainder is falsified or reversed for matter dehors, or not 
 apparent on the face of the record, by writ of error for mis- 
 takes apparent on the face of the record and by act of Parlia- 
 ment. 
 
 Outlawry, when reversed, restores the party to the same plight 
 as if he had appeared upon the capias. 
 
 Reprieve, from reprendre — to take back — is a temporary 
 "withdrawing or suspension of a sentence or judgment, whereby 
 •the execution is delayed. 
 
 It is granted by the judges where they are not satisfied with 
 the verdict, the evidence suspicious, the indictment insufficient. 
 
116 BLACKSTONB. [bookiv. 
 
 where there is doubt, for time to apply for pardon, because of 
 pregnancy, insanity, iion-identity, etc. 
 
 Pardon is a permanent avoider of the judgment, by the 
 King's mercj^, drawn in due form of law, and allowed in open 
 court, thereby making the offender a new man. 
 
 The King cannot pardon offenses prosecuted by appeal, com- 
 mon nuisances, or offenses against penal statutes, nor is his par- 
 don pleadable to impeachment by the commons in Parliament. 
 
 Penal laws, or statutes, are those which prohibit an act and 
 impose a penalty for the commission of it. 
 
 Execution is, in criminal cases, the completion of human 
 punishment. 
 
 The warrant of execution is sometimes under the hand 
 and seal of the judge, by writ from the King, or by rule of court, 
 but commonly by the judge's signing the calendar of prisoners, 
 with their separate judgments in the margin. 
 
 " The student will observe that the knowledge of the law is 
 like a deep well, out of which each man draweth according to 
 the strength of his understanding." — Coke. 
 
THE 
 
 LAW OF COISTTRACTS. 
 
 ABRIDGED. 
 
 117 
 
118 CONTEACTS. 
 
 ANALYSIS. 
 
 Parties to a contract. 
 
 Law of contracts, in its widest sensa. 
 
 Miscellaneous definitions. 
 
 Classification of parties. 
 
 Joint parties. 
 
 Agents. 
 
 Factors and brokers. 
 
 Servants. 
 
 Attorneys. % 
 
 Trustees. 
 
 Executors and administrators. 
 
 Guardians. 
 
 Corporations. 
 
 Joint stock companies. 
 
 Partnership. 
 
 New parties, by novation. 
 
 New parties, by assignment. 
 
 Gifts. 
 
 New parties, by endorsement. 
 
 Infants. 
 
 Married women. 
 
 Persons of insufficient mind to contract. 
 
 Consideration and assent. ♦ 
 
 Subject-matter of contracts. 
 
 Purchase of real property. 
 Hiring of real property. 
 Sale of personal property. 
 Warranties. 
 
 Stoppage IN TKANSITTJ". 
 
 Guaranty or surety-ship. 
 
 Hiring of persons. 
 
 Contracts for service. 
 
 Marriage. 
 
 Divorce. 
 
 Bailment. 
 
 Law of shipping. 
 
 Construction and interpretation of contracts. 
 
 Entirety of contracts. 
 
 Law of place. 
 
 Defences. 
 
 Estoppels. 
 
 Statute of frauds. 
 
 Statute of limitations. 
 
 Interest and usury. 
 
 Damages. 
 
 Lien. 
 
 Remedy in equity, or specific performance. 
 
 Bankruptcy and insolvency. 
 
CONTEACTS. 119 
 
 CONTEAOTS. 
 
 THE LAW OF CONTRACTS, in its widest extent, 
 may be regarded as including nearly all the law which 
 regulates the relations of human life. 
 
 Almost the whole procedure of human life implies, or rather 
 is, the continual fulfilment of contracts. 
 
 A contract, in legal contemplation, is an agreeiaent between 
 two or more parties, upon sufficient consideration, for the doing 
 or the not doing of some particular thing. 
 
 The word " contract " is of comparatively recent use as a law 
 term ; formerly courts and lawyers spoke only of " obligations," 
 — meaning " bonds," — " covenants," and " agreements," which 
 last was used as we now iise the word " contract." 
 
 Contract comprises, in its full and more liberal signification, 
 every description of agreement, obligation, or legal tie, whereby 
 a party binds himself, or becomes bound, expressly or impliedly, 
 to another, to pay a sum of money or perform or omit to do a 
 certain act. 
 
 Obligation denotes, in its proper and confined sense, every 
 legal tie which imposes a necessity of doing, or abstaining from 
 doing any act. It is distinguished from imperfect obligations, as 
 charity, gratitude, etc., which, though imposing a general duty, 
 do not confer a particular right ; and from natural obligations, 
 which, though having a definite object, and binding in con- 
 science, afibrd no legal remedy. 
 
 Lawyers now generally use the word obligation in reference 
 to a particular species of contracts, viz : bonds, and adopt the 
 term contract when they wish to convey a more extensive idea 
 of a legal remedy. 
 
 Agreement, considered in its strict ami more critical mean- 
 ing, clearly imports a reciprocity of obligation. It is a term 
 seldom applied to specialties : and " contract " is generally con- 
 fined to simple contracts. 
 
 Promise is used to denote the engagement of a person, with- 
 
120 CONTEACTS. 
 
 out regard to the consideration for it, or corresponding duty of 
 the other party. 
 
 Contracts by specialty are those reduced to writing and 
 attested by a seal, and contracts of record, — as judgments, re- 
 cognizances, etc. 
 
 Simple contracts are all those which are not contracts by 
 specialty. 
 
 A contract not under seal is the mutual agreement of two 
 or more persons, competent to contract, founded on a sufficient 
 and legal motive, inducement, or consideration, to perform some 
 legal act, or omit to do anything, the performance whereof is 
 not enjoined by law. 
 
 Contracts, whether written or only spoken, are, in law, if not 
 sealed, equally and only parol contracts. 
 
 The essentials of a legal contract are the Parties, the 
 Consideration, the Assent of the Parties and the Subject-matter 
 of the Contract. 
 
 PARTIES TO A COHfTBACT. 
 
 CLASSIFICATION OF FARTIES— Parties may act 
 independently and severally, or jointly, or jointly and 
 severally. 
 
 They may act as representatives of others, as Agents, Factors 
 or Brokers, Servants, Attorneys, Trustees, Executors or Ad- 
 ministrators and Guardians. 
 
 They may act in a collective capacity, — as Corporations, Joint 
 Stock Companies, and Partnerships. 
 
 They may be New Parties, — by Novation, by Assignment 
 and by Endorsement. 
 
 They may be Parties disabled in whole or in part, — as Infants, 
 Married Women, Bankrupts or Insolvents, JVon Compos Mentis, 
 Drunkards, Spendthrifts, Seamen, Aliens, Slaves, Outlaws, At- 
 tainted, or Excommunicated. 
 
 Joint Parties. — Whenever an obligation is undertaken by 
 two or more, or a right given to two or more, it is the general 
 presumption of law that it is a joint obligation or right. Words 
 of express joinder are not necessary for this purpose. 
 
 On the other hand, there should be words of severance, in 
 order to produce a several responsibility or a several right. 
 
 Whether the liability incurred is joint or several dejDends upon 
 the terms of the contract, if they are express ; otherwise, upon 
 
CONTEACTS. 121 
 
 the intention of the parties as gathered from the circumstances 
 of the ease'. 
 
 "Where the obligation is joint and several, an ancient and fa- 
 miliar rule of law forbids it to be treated as several as to some 
 of the obligors and joint as to the rest. 
 
 Where there are three or more obligees or promisees, the con- 
 tract, if treated as joint by any, must be treated as joint by all. 
 
 In general all contracts, whether express or implied, and 
 resulting from the operation and construction of law, are joint 
 where the interest in them of the parties for whose benefit they 
 are created is joint, and separate where that interest is separate. 
 
 The nature, and especially the entireness of the consideration, 
 is of great imj)ortance in determining whether the promise be 
 joint or several; for if it moves from many persons jointly, the 
 promise of repayment is joint; if from many persons, but from 
 each severallj', there it is several. 
 
 Incidents of joinder. — Parties to be considered joint in law 
 must be so connected as to be in some measure identified. 
 
 If two or more are jointly bound, or jointly and severally 
 bound, and the obligee releases one of them, all are discharged. 
 
 Joint trustees are not necessarily liable for each other, or 
 bound by each others' acts. Each is liable for the acts of others 
 only so far as he concurred in them, or connived at them, act- 
 ively or negligently. 
 
 If one or more of several joint obligees die, the right of ac- 
 tion is solely in the survivors, and if all die, the action must be 
 brought by the representatives of the last survivor. 
 
 Contribution. — Where two or more persons are jointly, or 
 jointly and severally, bound to pay a sum of money, and one or 
 m^ore of them pay the whole, or more than his or their share, 
 and thereby relieve the others so far from their liability, those 
 paying may recover from those not paying the aliquot j)ropor- 
 tion which they ought to pay. 
 
 AGENTS. — There are two principles in relation to 
 the law of agency, on one of which it is founded, while the 
 other measures the responsibility of the principal for the acts of 
 an agent. 
 
 The first is that the agent is but the instrument of the prin- 
 cipal, who acts by him ; the thing done being the act of the 
 principal. 
 
 The second is that as between the principal and a third 
 
122 CONTEACTS. 
 
 party, the principal is responsible and bound by the acta of his 
 agent on two grounds, namely : that he has actually created hia 
 agency; and that he has, by acts or words, fully authorized the 
 third party to believe the person to be his agent. 
 
 General agent is one authorized to transact all his princi- 
 pal's business, or all his business of some particular kind. 
 
 Special or particular agent is one authorized to do one or 
 two special things. 
 
 But it is not always easy to find a precise rule which deter- 
 mines with certainty between these two kinds of agency. 
 
 The importance of the distinction lies in the rule, that if a 
 particular agent exceed his authority, the principal is 
 not bound ; but if a general agent exceed his authority, 
 the principal is bound, provided the agent acted within the 
 ordinary and usual scope of the business he was authorized to 
 transact, and the party dealing with the agent did not know 
 that he exceeded his authority. 
 
 The rule is, as to the public, that the authority of a 
 general agent may be regarded by them as measured 
 by the usual extent of his general employment. 
 
 An agent's authority is that which is given by the declared 
 terms of his appointment, notwithstanding secret instructions | 
 or that with which he is clothed by the character in which he is 
 held out to the world, although not within the words of his com- 
 mission. 
 
 It is a fundamental proposition that one man can be bound 
 only by the authorized acts of another. He cannot be 
 charged because another holds a commission from him and 
 falsely asserts that his acts are within it. 
 
 Where an agent is employed to transact some specific business, 
 and only that, yet he binds his principal by such subordinate 
 acts as are necessary to, or are usually and properly done in. 
 connection with, the principal act, or to carry the same into 
 efifect. 
 
 An authority to sell does not carry with it authority to sell on 
 credit unless such be the usage of the trade ; but if there he- 
 such usage, then the agent may sell on credit, unless specially 
 instructed and required to sell only for cash. 
 
 And if he sells for credit, having no authority to do so, he 
 becomes personally responsible to his principal for the wholo^ 
 debt. 
 
CONTRACTS. 123 
 
 If the power of an agent be given by a written instrument^, 
 which instrument is known to the party contracting with him, 
 such instrument must be followed strictly, and the power given 
 by it cannot be varied or enlarged by evidence of usage. 
 
 An agent employed to sell, without express power to warrant, 
 cannot give a warranty which shall bind the principal, unless 
 the sale is one which is usually attended with warranty, in which 
 case he may. 
 
 The usage of trade or business is of great importance in de- 
 termining all these questions. 
 
 Appointment of agents. — An agent generally may be ap- 
 pointed by parol, and so authorized to do any thing which does 
 not require him to execute a deed for his principal. 
 
 He may be authorized by parol to make and sign contracts in 
 writing, and it seems to be now settled that he may be author- 
 ized, without writing, to make and sign even those contracts 
 which are not binding upon his principal, unless in writing 
 signed by him. 
 
 Subsequent confirmation. — As agency nay be presumed 
 from repeated acts of the agent, adopted and confirmed by the 
 principal previously to the contract in which the question is 
 raised, so, also, such agency may be confirmed and established 
 by a subsequent ratification. 
 
 If a party does not disavovr the acts of his agent as 
 soon as he can after they come to his knowledge, he makes 
 these acts his own. 
 
 Adoption of the agency in part, adopts it in whole. 
 
 The ratification of the tort of an agent does not, in general, 
 relieve the agent from liability ; although, by such ratification 
 in tort as well as in contract, a liability is incurred by the prin- 
 cipal. 
 
 An agent who has the power to appoint a sub-agent may 
 ratify his act, and thereby make it binding on the agent's prin- 
 cipal. 
 
 Signatures by an agent. — It has been regarded as an es- 
 tablished principle, that no person is held to be the agent of 
 another in making a written contract, unless his agency is stated 
 in tbe instrument itself, and he therein stipulates for his prin- 
 cipal by name. 
 
 A person holding some ofiice, sometimes signs his name, ad- 
 ding to it the name of his ofSce, for the purpose of representing: 
 
124 CONTEACTS. 
 
 himself as an official agent, and preventing tis personal liabil- 
 ity ; but this mere addition seldom has this effect, being usually 
 regarded only as a word of description. 
 Right of action under a contract made by an agent. — 
 
 In contracts by deed no party can have a right of action under 
 them but the party whose name is to them ; but in simple con- 
 tracts an undisclosed principal may show that the apparent party 
 was his agent, and may put himself in the place of his agent, 
 but not so as to affect injuriously the rights of the other party. 
 
 Where the name of the principal is disclosed at the 
 time the contract is made by the agent, the former is the proper 
 party to sue upon the contract. 
 
 Liability of an agent. — An agent is not personally liable, 
 unless he transcends his agency, or departs from its provisions ; 
 or unless he expressly pledges his own liability, in which case 
 be is liable, although he describes himself as agent; or unless he 
 conceals his character of agent; or unless he so conducts as to 
 render his principal inaccessible or irresponsible ; or unless he 
 acts in bad faith. 
 
 Where an agent transcends his authority, but believes 
 in good faith that he has such authority, if he and the third party 
 with whom he deals are both innocent, yet the loss resulting 
 from his want of authority having to fall somewhere, it seems 
 but just that it should rest on him who has assumed, innocently 
 but yet falsely, that he possessed this authority. 
 
 An agent who exceeds his authority, and fails to bind his prin- 
 cipal, becomes liable himself. 
 
 An agent who exceeds his authority, renders himself liable to 
 the whole extent of the contract, although a part of it was within 
 his authority. 
 
 Revocation of authority of an agent. — It is a general 
 principle that an authority is always revocable ; and that the 
 principal may at anj^ time put an end to the relation between 
 himself and his agent by withdrawing the authority, unless the 
 authorit}^ is coupled with an interest, or given for a valuable 
 consideration. 
 
 The death of the principal operates, per se, as a revocation of 
 the agency, but not if the agency is coupled with an interest 
 vested in the agent. 
 
 Fraud or misconduct of the agent the principal is liable 
 for, and this although the principal be innocent, provided the 
 
CONTEACTS. 125. 
 
 agent acted in the matter as his agent, and distinctly within the 
 line of business intrusted to him. 
 
 Notice to the agent, the principal is affected by, respecting 
 any matter distinctly within the scope of his agency, when the 
 notice is given before the transaction begins, or before it is so 
 far completed as to render the notice nugatory. 
 
 The notice to the agent may be implied as well as ex- 
 press. — Knowledge obtained by the agent in the course of that 
 very transaction is notice. 
 
 Shipmasters. — A master of a ship has, by the policy of the- 
 law merchant, some authority not usually implied in other cases. 
 of general agency; thus, he may, if the exigencies and necessi- 
 ties of his position require it, borrow money and make his owner 
 liable, and pledge the ship, where too distant from the owner to 
 consult him without inconvenience or injurious delay. He may 
 even sell the ship or property intrusted to him, in case of ex- 
 treme necessity. 
 
 Mutual rights and obligations of principal and agent 
 as to each other. — An agent with instructions is bound to re- 
 gard them in every point, nor can he depart from them, without 
 making himself responsible for the consequences. 
 
 If loss ensue from his disregard to his instructions, he must 
 sustain it; if profit, ho cannot retain it, but it belongs to his 
 principal. 
 
 A principal discharges his agent from responsibility for devia- 
 tion from his instructions when he accepts the benefit of his- 
 act. 
 
 He may reject the transaction altogether; but he must do so 
 at once, and decisively, as soon as fully acquainted with it. 
 
 The principal is generally held by the partial execu- 
 tion of the agent's authority, but would not be where he 
 could show that the things embraced within the authority he- 
 gave were united in that authority and in his intention, and that 
 it would be a detriment to him to take a part only. 
 
 The agent has not the right to make another person the repre- 
 sentative of his principal, without authority to do so. The em- 
 ployment and trust are personal. 
 
 A substitute appointed by an agent who has the power of 
 substitution, becomes the agent of the original principal, and 
 may bind him by his acts. 
 
 An agent is bound to as great diligence and care for 
 
126 CONTEACTS. 
 
 his principal as a reasonable man under similar circum- 
 stances would take of his own affairs. 
 
 He is also bound to possess and exert the skill and knowledge 
 necessary for the proper performance of the duties which he un- 
 dertakes. 
 
 It is a prevailing principle of law, that an agent must not put 
 himself, during his agency, in a position which is adverse to that 
 of his principal. 
 
 The agent of an agent is generally accountable only 
 to his own principal, and not to the principal of the party for 
 whom he acts ; and a sub-contractor cannot pass by his imme- 
 diate employer and sue the principal or proprietor of the 
 work. 
 
 Factors and brokers are both and equally agents, but with 
 this difference : the Factor is entrusted with the property, which 
 is the subject-matter of the agency; the Broker is only employed 
 to make a bargain in relation to it. The compensation to both 
 is usually a commission. 
 
 Factors under a commission. — A factor who sells under a 
 del credere, or guaranty commission, becomes merely a surety to 
 his principal, and is bound to pay only if the buyer does not. 
 
 Of the duties and rights of factors and brokers. — They 
 are bound to ordinary care, and are liable for any negligence, 
 -error, or default, incompatible with the care and skill properly 
 belonging to the business that they undertake. 
 
 They must conform to the usages of the business, and they 
 have the power such usages would give, and can bind the prin- 
 -cipal only to a usual obligation. 
 
 A factor, from the nature of his employment, is a general 
 agent. 
 
 If he has no del credere commission, he may still be personally 
 liable to his principal. 
 
 A factor may buy and sell, sue and be sued, collect money, 
 receive payments, give receipts, and the like, in his own name; 
 but a broker, only in the name of his principal. 
 
 A factor has a lien on the property in his hands for his 
 commissions, advances, and expenses. Possession is nec- 
 essary to give a lien, and a broker, therefore, has no lien, nor a 
 right to his commissions, as a general rule, until the whole ser- 
 "vice for which these commissions are to compensate is performed. 
 
 Servants. — The general principle is that a master is respon- 
 
CONTRACTS. 127 
 
 sible for the tortious acts of his servant which were done in his 
 service. 
 
 The responsibility of the master grows out of, is measured by, 
 and begins and ends with, his control of the servant. 
 
 ATTORNEYS are made so by letter or power of attorney, 
 or they are attorneys of record. 
 
 It is a general rule that one acting under a power of at- 
 torney cannot execute for his principal a sealed instru- 
 ment, unless the po-wer of attorney be sealed.. 
 
 If the grantor has given to A a power of attorney in the or- 
 dinary form, authorizing him to execute a deed for him as his 
 attorney, and this person writes the name of the grantor in his 
 absence, without saying " by A, his attorney," or writing his 
 own name, this would not seem to be a sufficient execution of 
 the deed. 
 
 In executing a deed by attorney, the power, being delegated 
 to the attorney, is with him, and the deed takes effect from his 
 act; therefore the instrument which gives the power is to be 
 strictly examined and construed. 
 
 Attorney of record, more commonly called an attorney at 
 law, is one who has been duly admitted by competent authority 
 to practice in the courts. His implied duty to use reasonable 
 skill and care is the same as that of other persons to whose 
 care and skill anything is intrusted. He is not responsible for 
 mistake in a doubtful point of law, or of practice, nor for the 
 fault of counsel retained by him. He is liable for disclosing 
 privileged communications. If discharged by one party, he may 
 act for an opposite party, provided he makes no improper use of 
 knowledge obtained by him while acting for the first party, if 
 his discharge was not for misconduct. 
 
 The la-w implies a contract on the part of the client 
 to pay his attorney the legal fees, or statute rate of compen- 
 sation ; and if the client asserts that the services were to be 
 rendered for a less compensation, the burden rests on him to 
 prove this bargain. 
 
 An attorney cannot maintain an action for compensation of 
 services, unless he can show that they were requested. 
 
 An attorney has a lien on the judgment he recovers, and on 
 the papers of the case, for his costs and fees. 
 
 TRUSTEES. — Trusts in the English law had a fraudulent 
 •origin. It was sought, by the intervention of a trustee, to evade 
 
128 COISTTEAOTS. 
 
 the feudal law of tenures, and the prohibition of the statutes; 
 of mortmain, and to place property where a creditor could not 
 reach it. 
 
 The common law treats trustees in most respects as agents. 
 
 Classification of Trusts. — They are simple when property 
 is vested in one person upon trust for another, without any par- 
 ticular directions, or provisions ; and special, where the purposes, 
 of the trust, and the manner in which they are to be accom- 
 plished a^^ especially pointed out and prescribed. 
 
 They may be merely ministerial, as where one receives money 
 only to pay the debt of the giver, or an estate is vested in hinx 
 merely that he may convey it to another ; or they may be dis- 
 cretionary, where much is left to the prudence and judgment of 
 the trustee. 
 
 Private Trustees are those to whom property, real or per- 
 sonal, has been given to be held in trust for the benefit of others. 
 
 The legal estate is in the trustee, and the equitable estate is in. 
 the cestui que trust ; but as the trustee holds the estate, although 
 only with the power and for the purpose of managing it, he is 
 bound personally by the contracts he makes as trustee, although 
 designating himself as such; and nothing will discharge him 
 but an express agreement of both parties to act upon the respon- 
 sibility of the funds alone, or some other responsibility exclusive 
 of that of the trustee. 
 
 Public trustees are those who hold for the benefit of the- 
 whole public, as for a town or parish. The important differ- 
 ence between these trustees and private trustees is in respect 
 to their personal responsibility for their contracts. 
 
 "Where one acts distinctly for the public, and in an official or 
 quasi official capacity, although he engages that certain things, 
 should be done, he is not liable. 
 
 But trustees and other officers are sometimes held personally 
 upon their contracts, as for payment of wages, material supplied, 
 etc., where they have charge of public works and have funds, 
 which they may use for these purposes. 
 
 The true principle which runs through all these cases, and 
 applies alike to j)rivate and public trustees, is, To whom did 
 the promisee give credit, and to whom did the promisor 
 understand him to give credit ? 
 
 Executors and administrators act ss, the personal repre- 
 sentative of the deceased, having in their hands his means, for 
 
COKTEACTS. 129 
 
 the purpose of discharging his liabilities, or executing his con- 
 tracts, and of carrying into eifect his will. 
 
 In general, they are liable only so far as these means, or as- 
 sets in their hands, are applicable to such purpose j but they 
 may, under certain circumstances, become personally liable. 
 
 In general, every right ex contractu, 'virhich the de- 
 ceased possessed at the time of his death, passes to his 
 executor or administrator ; and so strong is this rule, that 
 it prevails against special words of limitation in the contract 
 itself. 
 
 Executors or administrators may sue either in their individual 
 or representative characters ; but should sue in the latter ca- 
 pacity, to avoid a set-off against them of their individual 
 debts. 
 
 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 intestate, 
 no interest and no right of representation is transmitted to his 
 personal representatives. 
 
 Guardians of all descriptions are treated by courts as trust- 
 ees, and, in general, are required to give security for the faith- 
 ful discharge of their duty, unless appointed by will, and the 
 testator has exercised the power given him by statute, of re- 
 quiring that the guardian shall not be called upon to give bonds. 
 
 Duty and power of a guardian. — A guardian is held in 
 this country to have only a naked authority, not coupled with 
 an interest. His possession of the property of his ward is not 
 such as gives him a personal interest, being only for the pur- 
 pose 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, though safer for him to obtain 
 the authority of court for any imj)ortant measure, which he 
 must have in disposing of the real estate. 
 
 To secure the proper execution of his trust, he is not only 
 liable to an action by the ward, after the guardianship termin- 
 ates, but during its pendency the ward may call him to account 
 by his next friend, or guardian ad litem. 
 
 A guardian cannot, by his own contract, bind the per- 
 son or estate of his vrard ; but if he promise, on a sufficient 
 consideration, to pay the debt of his ward, he is personally 
 
130 CONTEACTS. 
 
 bound by his promise, although he expressly promises as guard- 
 ian. 
 
 An action will not lie against a guardian on a contract made 
 by the ward, but must be brought against the ward, and may be 
 defended by the guardian. 
 
 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. 
 
 CORPORATIONS.— A corporation aggregate is, in law, a 
 person. 
 
 A contract of a corporation, as of an individual, may be im- 
 plied from the acts of the corporation, or of their authorized 
 agents. 
 
 A corporation must execute its deed under its corporate seal, 
 otherwise the deed is void. 
 
 A corporation may employ one of its members as its agent, 
 and the same person, while such agent, may also be an agent for 
 the other contracting party, and sign for him the memorandum 
 required by the Statute of Frauds. 
 
 Corporations authorized by their charter to act in a prescribed 
 manner, may, by practice and usage, raake themselves liable on 
 contracts entered into in a different way. 
 
 OflScers and directors of a corporate body are trustees of the 
 stockholders, and cannot, without fraud, secure themselves ad- 
 vantages not common to the latter. 
 
 Joint stock companies are partnerships whereof the capi- 
 tal is divided or agreed to be divided into shares, and so as to be 
 transferable without the express consent of all the co-partners. 
 
 A joint stock company is not a corporation, yet it dif- 
 fers in some respects from a common partnership. 
 
 A member of a partnership) may assign his interest in the 
 property of a firm, but the assignee does not become a jDartner 
 unless the other co-partners choose to admit him; but in joint 
 stock companies provision is made beforehand for such trans- 
 fer, which is the principal object and effect of the division into 
 shares. 
 
 In other respects, the law regarding joint stock compa- 
 nies and partnerships is very similar. 
 
 The power of a managing committee to pledge the credit of 
 
CONTEACTS. 131 
 
 tlie members of a society, depends upon the rules and by-laws of 
 the society. 
 
 Such a case is governed by the law of principal and agent, and 
 not that of partnership. 
 
 PARTNERSHIP exists when two or more persons combine 
 their property, labor, and skill, or one or more of them, in the 
 transaction of business for their common profit. 
 
 A partnership is presumed to be general when there are no 
 stipulations, or no evidence from the course of business to the 
 contrary. 
 
 But it may be created for a specific purpose, or be confined by 
 the parties to a particular line of business, or even a single 
 transaction. 
 
 Usually, the parties own together both the property and the 
 profits ; but there may be a partnership in the profits only. 
 
 Real estate of a partnership. — The rule is, that when real 
 estate is purchased with partnership funds, for partnership pur- 
 poses, it will be treated as partnership property. 
 
 All kinds of property may be held in partnership. 
 
 Tlie good-will of an establishment is considered, at least for 
 some purposes, as partnership property. 
 
 The good-will signifies the advantage or benefit which is ac- 
 quired by an establishment, beyond the mere value of the capi- 
 tal, stock, funds, or property employed therein, in consequence 
 of the general public jDatronage and encouragement which it 
 receives from constant or habitual customers, on account of its 
 local position or common celebrity or reputation for skill, or 
 affluence, or punctuality, etc. 
 
 Delectus personarum. — The partnership must be volun- 
 tary, and therefore no partner and no majority of partners can 
 introduce a new member without the consent of the others. 
 
 The delectus personarum, that is, the choice of persons, is 
 always preserved ; and if one sells out his interest, the partner- 
 ship is dissolved, and can only be renewed by the agreement of all. 
 
 Partnership may be formed by deed, or by parol, and with 
 or without a written agreement. 
 
 Partnership, in general, is constituted between individuals, 
 by an agreement to enter together into a general or a particular 
 business and share the profits and the losses thereof; but the 
 mere sharing of profits, without any connection whatever in the 
 business, is not enough to constitute a partnership. 
 
132 OOISTTEACTS. 
 
 To distinguish between partnership and tenancy in 
 common: if the property owned jointly is so owned for the 
 purpose of a joint business and is so used, and the profits result- 
 ing from a common fund, it is partnership property; otherwise 
 not. 
 
 Right of action between partners. — Generally, one part- 
 ner cannot sue a co-partner at law in respect to any matter grow- 
 ing out of the transactions of the partnership and involving 
 the examination of the partnership accounts, but resort must be 
 had to courts of equity. 
 
 But a partner may sue a co-partner on an express agreement,, 
 and perhaps on an implied one, to do any act not involving a 
 consideration of the partnership accounts. 
 
 If partners finally balance all their accounts, or a distinct part 
 thereof is entirely severed by them from the rest, a suit at law 
 is maintainable for the balance. 
 
 Sharing of losses. — Partners inter se, may make what bar- 
 gain they will about losses, but no such agreement will prevent 
 such partner from being liable for the debts of the partnership, 
 unless the creditors knew of this bargain between the partners,, 
 and with this knowledge gave credit to the other partners only. 
 
 Secret and dormant partners. — A secret partner is one not 
 openly and generally declared to be a partner; and a dormant 
 partner is strictly one who takes no share in the transaction or 
 control of the partnership business. 
 
 Dormant partner is often held to mean one whose name is not 
 publicly mentioned, and the phrases secret and dormant partners 
 are sometimes, but inaccurately, used as synonymous. 
 
 A dormant partner is liable when discovered, and he 
 cannot join as plaintiff in an action, because there is no sufiSi- 
 cient privity of contract between him and the party who con- 
 tracted with the firm; but he may be sued and joined as de- 
 fendant. 
 
 Retiring partners, who receive thereafter a share of the 
 profits, are still liable ; but not when receiving an annuity or 
 definite sum, no way dependent on the profits. 
 
 A partner is not responsible for credit given to the firm after 
 retirement, with proper notice of the fact. 
 
 Nominal partner is one held out to the world as such with- 
 out actual participation of profit and loss. He is held generally 
 as responsible for the debts of the partnership. 
 
CONTEACTS. 133 
 
 Joint liability. — Persons are not to be held jointly liable 
 upon a contract as partners, unless they have a joint interest 
 existing at the time of the formation of the contract. 
 
 The liability of a partner springs either from his holding 
 himself out to the world as such, or from his participation in the 
 business, and its profit or loss. 
 
 Authority of each partner. — It is a general rule that the 
 whole firm and all the members of a co-j)artnership are bound 
 by the acts and contracts 'of one partner with reference to the 
 partnershij) business and afiairs — such act or contract being in 
 law the act or contract of all. 
 
 One partner maj^ sell the whole stock in trade by a single 
 contract, if the sale be free from fraud. 
 
 A purchase or sale, by one partner, binds all the others. 
 
 The act of each partner is considered as the act of the whole 
 partnership, or of all the partners, only so far as that act was 
 within the scope of the business of the firm. 
 
 In general, notice to one partner is binding upon all. 
 
 A release by one partner is a release by all, both in law 
 and in equity ; and a release to one partner is a release to all, 
 but fraud or collusion destroys the effect of such release. 
 
 Generally, a partner cannot bind his co-partners by deed with- 
 out express authority, except in the presence of his co-partner, 
 and with his consent. 
 
 No particular mode of holding one's self out as a partner is nec- 
 essary to make one liable as such ; but it must be a voluntary act. 
 
 The liability of an incoming partner for old debts is 
 not to be presumed. 
 
 The authority of a partner to bind his firm rests, indeed, upon 
 & necessity bounded and measured by this— that the partner- 
 ship is not bound by the acts or contracts of any part- 
 ner, not within the legitimate scope of the partnership 
 business. 
 
 A partner has no implied authority, except so far as is neces- 
 sary to carry on the business of the firm. 
 
 Power of a majority. — Whether a majority of the partners 
 of a firm can bind the minority is not yet quite determined by 
 -authority. 
 
 Dissolution of a partnership does not affect the liability 
 of the partners iov former debts, but, in general, it prevents the 
 incurring of a new joint liability. 
 
134 CONTEACTS. 
 
 However dissolution takes place, the former partners are 
 partners no longer, but tenants in common. 
 
 Where a partnership is not to endure for a time certain by th^ 
 articles of co-partnership, or where that time has expired, it may- 
 be dissolved, at the pleasure of any partner. 
 
 Assignment of a co-partner's interest in the partnership, 
 funds operates, ipso facto, a dissolution ; and an assignment by 
 one partner of his share of the future profits to another partner- 
 is a dissolution of the partnership, because the essence of that is. 
 a participation of the profits. 
 
 Bankruptcy of the firm, or of one partner, operates an imme- 
 diate dissolution. 
 
 Insolvency, under the statutes, would have the same effect. 
 
 So, also, death of a partner ; or mutual consent. 
 
 Proper notice should be given of a dissolution. 
 
 Rights of creditors in respect to partnership funds. — 
 The property of a partnership) is bound to the payment of the 
 partnership debts, and the right of a j)rivate creditor of one co- 
 partner to that partner's interest in the property of the firm, is 
 postponed to the right of the partnership creditor. 
 
 Whether the private property of a partner is equally preserved 
 for his private creditors is not, perhaps, certain. 
 
 A levy of execution does not give the creditor a separate pos- 
 session of the goods, for the indebted partner had no such pos- 
 session himself. 
 
 The sheriff takes and can sell only the right and interest of 
 the indebted partner to and in the whole fund. 
 
 Limited partnership, or special partnership is where a 
 person puts into the stock of a firm a definite sum of money, 
 and assumes a responsibility and share of the profits, which 
 shall be in proportion to the money thus contributed, and no 
 more. 
 
 Partnerships of this kind, being wholly unknown to the com- 
 mon law, are authorized and regulated only by statute ; and the 
 provisions are generally as follows : first, there must be one or 
 more who are general partners, and one or more who are special 
 partners; secondly, the names of the special partners do not ap- 
 pear in the firm, nor have they all the poAvers and duties of . 
 active members; thirdly, the sum proposed to be contributed by 
 the special partners must be actually paid in ; fourthly, the ar- 
 rangement must be in writing, specifying the names of the part- 
 
COJSTTEACTS. 135 
 
 ners, the amount paid in, etc., which is to be acknowledged be- 
 fore a magistrate, recorded and advertised. 
 
 NEW PARTIES BY NOVATION, or substitution.— 
 
 Novation is a transaction whereby a debtor is discharged from 
 his liability to his original creditor by contracting a neAV obli- 
 gation in favor of a new creditor, by the order of his original 
 creditor. 
 
 In principle, this would seem to be in contradiction or excep- 
 tion to the ancient rule that a personal contract cannot be as- 
 signed so as to give the assignee a right of action in his own 
 name. 
 
 To give the transaction its full legal efficacy, the original lia- 
 bilities must be extinguished ; and the mutual assent of all the 
 three parties is necessary to make it an effectual novation, or 
 substitution. 
 
 The debtor does not undertake to pay the debt of an- 
 other, but contracts an entirely new debt of his own, the con- 
 sideration of which is the absolute discharge of the old debt. 
 
 Ne^v parties by assignment. — Assignments of choses in 
 ACTION. The term chases in action is used in contradistinction to 
 chose in possession ; it includes all rights to personal property not 
 in possession which may be enforced by action. 
 
 Any right under the contract, either express or implied, which 
 has not been reduced to possession, is a chose in action ; and is so 
 called because it can be enforced against an adverse party only 
 by an action at law. 
 
 At common law, the transfer of such a chose in action was 
 entirely forbidden, because by such a transfer the only thing 
 which passes is a right to go to law, the ancient law abhor- 
 ring litigation. 'But probably the stronger and better reason 
 was that no debtor shall have a new creditor substituted for the 
 original one without his consent ; for he may have substantial 
 reasons for choosing whom he should owe. Courts of equity 
 have, for a long time^ disregarded this rule, and, as a general 
 rule, permit the assignee of a chose in action to sustain an action 
 in his own name ; but they will also prevent the debtor from 
 being oppressed or injured. 
 
 It is not to be understood that the assignee of a chose in action 
 may alwaj-s enforce his claim in a court ef equity, but simply 
 that he may proceed in equity in his own name, whenever he is 
 entitled to go into a court of equity at all. It is well settled 
 
136 CONTEACTS. 
 
 that the mere fact of one's heing the assignee of a chose in action 
 will not entitle him to go into a court of equity. His remedy 
 is generally complete at law, by a suit in the name of the assignor, 
 and to that he will be left. It is only when the legal remedy is 
 iii some manner obstructed, or rendered insuflcient, that a court 
 of equity will interpose. 
 
 Courts of law also permit and protect assignments of choses 
 in action to a certain extent. 
 
 If the debtor assent to the assignment, and promis/8 to pay the 
 assignee, an action may be brought by the assignee in his own 
 name; but otherwise he must bring it in the name of the as- 
 signor; and this rule applies to the assignment of a negotiable 
 bill or note, unless it be endorsed by the assignor. 
 
 Formerly, courts of law did not take notice of an 
 equity or trust, for trusts are within the original jurisdiction 
 of a court of equity ; but of late years it has been found piD- 
 ductive of great expense to send the parties to the other side of 
 the Hall : so wherever courts of law have seen that the justice 
 of the case is clearly with the plaintiff, they have not turned 
 him round upon this objection, but will take notice of a trust, 
 and consider who is beneficially interested. So, -if courts of 
 law will take notice of a trust, why should they not of an 
 equity ? 
 
 There are assignments of choses in action which will not be 
 sustained either in equity or at law, as being against public pol- 
 icy ; as by an officer in the army or navy of his pay, salaries of a 
 judge, right of action of a tort, etc. 
 
 The death of an assignor will not defeat the assignment, but 
 the assignee may bring the action in the name of the executor 
 or administrator of the deceased. 
 
 Manner of assignment. — The equitable interest in a chose 
 In action may be assigned for a valuable consideration by a 
 mere delivery of the evidence of the contract, and it is not 
 necessary that the assignment be in writing. So the equitable 
 interest in a judgment may be assigned by a delivery of ex- 
 ecution. But a mere agreement to assign, without any deliv- 
 ery, actual or symbolical, of the writing evidencing the debt, 
 does not constitute a sufficient assignment. 
 
 Equitable defences. — An assignee of a chose in action 
 takes it subject to all the equities of defence which exist be- 
 tween the assignor and the debtor. 
 
CONTEACTS. 137 
 
 The assignee does not take a legal interest nor hold 
 what he takes by a legal title ; but he holds by an equitable 
 title an equitable interest. This interest courts of law will protect 
 only so far as the equities of the case permit, and any subse- 
 quent assignee is subject to the same equities as his assignor. 
 
 In some States the assignee of a chose in action may now 
 bring an action upon it in his own name, by statutory j)rovision ; 
 but this change is only in the form of the action, and not in its 
 effect. The assignee is still subject to the same equities of de- 
 fence as before. 
 
 Covenants annexed to land. — A covenant affecting real 
 property, made with a covenantee who possesses a transferable 
 interest therein, is annexed to the estate, and is transferable at 
 law, passing with the interest in the realty to which it is an- 
 nexed, and often called a " covenant running with the land." 
 
 Covenants between landlord and tenant, lessee and reversioner, 
 run with the land. 
 
 Such are covenants to repair, to grant estovers for repair or 
 for firewood, quiet enjoyment, and the like. 
 
 Gifts, or voluntary assignments of chattels. — Gifts by 
 3)ersons competent to give, and which are completed by transfer 
 of possession, however voluntary they may have been, are re- 
 garded by the law as executed contracts, founded upon mutual 
 consent. 
 
 Gifts inter vivos. — It is essential to a gift that it goes into 
 effect at once and completely. If it regards the future it is but 
 a promise, and being a promise without a consideration, cannot 
 be enforced and has no legal validity. 
 
 Hence delivery is essential to the validity of every gift; nor 
 will transfer by writing alone satisfy the requirement of deliv- 
 ery. The delivery may be constructive, as the nature of the 
 thing and its actual position require. 
 
 A gift by a competent party, made perfect by delivery 
 and acceptance, is then irrevocable by the donor ; but 
 if prejudicial to existing creditors, it is void as to them. 
 
 Gifts causa mortis. — Much that was said of gifts inter vivos 
 -applies equally to these gifts. 
 
 The law watches, however, this kind of transfer jealously, and 
 is unwilling that it should take the place of wills, because of 
 uncertainty, which the law seeks to avoid in reference to wills 
 .by its precautions and provisions as to their execution. 
 
138 COKTEAOTS. 
 
 NEW PARTIES BY ENDORSEMENT— Negotiable 
 bills and notes. — -Bills of exchange and promissory notes 
 made payable to order, are called negotiable paper, and they may 
 he transferred by endorsement, and the holder can sue in his 
 own name, and the equitable defences which might have existed 
 between the promisor and the original promisee are cut off. 
 
 By the ancient rules of law we have seen that the transfer of 
 simple contracts was entirely forbidden. It is generally said 
 that the law of bills and notes is exceptional; that they are 
 choses in action, which by the policy of the law merchant, and 
 to satisfy the necessities of trade and business, are permitted to 
 be assigned as other choses in action cannot be. 
 
 By the practice of merchants the transfer of negoti- 
 able paper is made by endorsement. 
 
 The endorsement of a blank note binds the endorser to any 
 terms as to amount and time of payment which the party to 
 whom he intrusts the paper inserts. 
 
 If the note be originally made payable to " bearer,'' it is ne- 
 gotiated or transferred by delivery merely. 
 
 The holder of negotiable paper, endorsed in blank or made 
 payable to bearer, is presumed to be the owner for consider- 
 ation. 
 
 If circumstances cast suspicion on his ovrnership, then 
 he must prove that he gave value for it. 
 
 From general principles, if any one, not the payee of a nego- 
 tiable note, or in case of a note not negotiable, if any party 
 writes his name on the back of the note at the time it is made, 
 his signature binds him in the same way as if it was on the face 
 of the note and below that of the maker ; that is to say, he is 
 held as a joint maker, or as a joint and several maker, according 
 to the form of the note. 
 
 One who endorses a note in blank at any time before it is en- 
 dorsed by the payee, may be held as an original promisor. 
 
 Bills and notes are usually considered together, the law re- 
 specting them being in most respects the same. 
 
 Essentials of negotiable bills and notes. — A note made 
 payable to the maker's own order is a negotiable note. 
 
 A certificate of deposit in a bank has been held negotiable by 
 our highest authority. 
 
 The word " negotiable," however, does not make a note ne- 
 gotiable. 
 
CONTEACTS. 139'' 
 
 It is sufficient in law if the makers nalne appears in the note, 
 as, "I, John Doe, promise," etc. But signature at the bottom 
 is so usual that the want of it would taint the note with sus- 
 picion. 
 
 As a negotiable bill or note is intended to represent and take' 
 the place of money, it must be payable in money and not in 
 goods. 
 
 The payment must not rest upon any contingency or uncer- 
 tain event. 
 
 If the amount be e2:pressed both in writing and in 
 figures, the written words prevail over the figures. 
 
 If the words " for value received," be not expressed they will 
 be implied by law. 
 
 As with a note, so with a bill of exchange, the payee must 
 be sufficiently certain at the time the instrument is drawn. 
 
 "Where instruments are not negotiable, third parties may be- 
 come interested ; but if they are to be regarded as new parties-' 
 ■at all, it is only with much qualification. 
 
 indorsement. — The endorsement of a bill or note passes no- 
 property unless the endorser had at the time a legal property in 
 the note. 
 
 If a note is once endorsed, in blank, it is thereafter transfera- 
 ble by mere delivery so long as the endorsement continues blank, 
 and its negotiability cannot be restricted by subsequent special 
 endorsements. 
 
 Any person may accept or endorse a bill, or sign or en- 
 dorse a note, as agent for another y and the principal is 
 held, and not the agent, if there was sufficient authority for 
 the act, and the act itself was properly done. 
 
 Endorsement after maturity. — Bills and notes are usually 
 transferred by endorsement before they are due ; but they may 
 be so transferred after they are due, and before they are paid. 
 
 The bona fide holder of a bill by endorsement before 
 maturity, takes it subject to no equities existing be- 
 tween his assignor and the promisor which are not in- 
 dicated on the face of the note, and to none which do 
 not exist at the time of the transfer. 
 
 The law is otherwise, however, if the bill or note were trans- 
 ferred to him when overdue ; and, although he pays a full con- 
 sideration for it, he receives nothing but the title and rights ot 
 his assignor, and it is said that any defence which might be- 
 
140 CONTEACTS. 
 
 made against the assignor may be made available against the 
 .assignee. 
 
 Although paper negotiable when overdue is subject to equit- 
 able defences, yet a demand must be made on the acceptor or 
 maker within a reasonable time, and reasonable notice must be 
 given to an endorser, or he will be discharged. 
 
 As between the original parties to negotiable paper, 
 the consideration may alvrays be enquired into ; and so 
 it may as between endorser and endorsee. 
 
 In general, accommodation notes or bills are governed by the 
 same rules as negotiable paper for consideration. 
 
 Notes on demand. — Bills and notes payable on demand are 
 in one sense always overdue ; they are not, however, so treated 
 until payment has been demanded and refused; then they be- 
 come like bills on time which have been dishonored. 
 
 A note payable generally, but not specifying any time of pay- 
 ment, is due immediately. 
 
 Checks on bankers should be presented at once ; and the rule 
 as to overdue notes is applied with more strictness to them. 
 
 A chock on a broker, payable to bearer, is a negotiable instru- 
 ment, and may pass by endorsement so to entitle the holder to 
 ,sue the endorser, as in the ease of ajbill of exchange. 
 
 Transfer of bills and notes — .A bill once paid by the ac- 
 ceptor can no longer be negotiated. 
 
 The holder of a bill or note payable to bearer, or of one pay- 
 able to some payee or order and endorsed in blank, may transfer 
 the same by mere delivery, and is not liable upon it. 
 
 It is a general principle that one who pays money without 
 ■consideration, may recover it back. 
 
 If a note be payable on its face, or by endorsement, to a party 
 or his order, that party can transfer the note in full property 
 only by his endorsement; and when he endorses it, he makes 
 himself liable to pay it, if those who ought to have paid it to 
 him, had he continued to hold it, fail to pay it to the party to 
 whom he orders it to be paid. 
 
 The endorser may guard against this by endorsing it with the 
 words " without recourse," which mean, by usage, that the 
 holder is not to have, in any event, recourse to the endorser. 
 
 By acceptance and by each endorsement a new con- 
 tract is formed. 
 
 The liability of an endorser may be considered, first, as de- 
 
CONTEACTS. 141 
 
 pending on the demand of payment, and then as to notice of 
 non-payment, and the proceedings necessary thereon. 
 
 Presentment for acceptance should be made by the holder 
 or his authorized agent, to the drawee or his authorized agent, 
 during the usual hours of business. 
 
 The drawee has until the next day to determine whether he. 
 will accept, but may answer at once ^ 
 
 The usual way of accepting is by writing the word " accepted"' 
 on the face of the bill, and signing the acceptor's name ; but. 
 there is no precise formula or method, it seeming to be enoughs 
 if it is substantially a promise to pay, whether in writing upon, 
 the bill, or a separate paper, or by parol. 
 
 Presentment for payment. — A bill or note must be pre- 
 sented for payment at its maturity, or the endorsers are not 
 held; they guarantee its payment, not by express words, but 
 by operation of law. 
 
 Each endorser transfers by endorsement a debt due to 
 himself, and if by the guaranty which springs from his endorse- 
 ment, he has to pay this debt to another, he is entitled to all 
 such prompt knowledge of the failure of the party whom he- 
 guarantees, and of his own consequent liability, as will enable 
 him to secure a payment of this debt to himself, if that be pos- 
 sible. 
 
 G-enerally the question of reasonable time, reasonable dili- 
 gence, and reasonable notice, is open to the circumstances of 
 every case, and is determined by a reference to them; but in 
 regard to bills and notes, the law merchant has defined all of 
 these with great exactness. 
 
 The general rule is, that the drawer and endorsers of a bill 
 and the endorsers of a note are discharged from their liability, 
 unless payment of the bill or note be demanded from the party 
 previously bound to pay it, on the day on which it falls due. 
 
 If the party who should pay the note has absconded 
 or has no domicil or regular place of business, and can- 
 not be found by reasonable endeavors, payment need 
 not be demanded of him, because it would be of no utility 
 to a subsequent party; but still, notice of the facts should 
 be given. 
 
 Neither a bill or note drawn payable at a place certain, nor a 
 bill drawn payable generally, but accepted payable at a specified 
 place, need be presented at that place, in order to sustain an ac- 
 
142 COJSTTEACTS. 
 
 tion against the maker or acceptor; but lie may show, by way 
 of defence, that he was ready there with funds, and thus escape 
 all damages and interest. 
 
 The drawers and endorsers are certainly discharged by a neg- 
 lect to demand payment at the specified place. 
 
 Of whom, -when, and where the demand or present- 
 ment for payment should be made.' — Demand of payment 
 should be made by the holder, or his authorized agent, of the 
 party bound to pay, or his authorized agent; and at his usual 
 place of business, or residence. 
 
 Usually, all bills and notes on time, when grace is not ex- 
 pressly excluded, are entitled to grace. 
 
 But notes payable on demand are not entitled to grace, nor 
 .are checks on banks, though payable on time. 
 
 The days of grace constitute part of the original contract on 
 negotiable notes. 
 
 Whenever the maker of a note is entitled to grace, the endor- 
 I ser has the same privilege. 
 
 Notice of non-payment. — "Where a bill is not accepted, or a 
 bill or note is not paid at maturity by the party bound then to pay 
 it, all subsequent parties must have immediate notice of this fact. 
 
 The omission to give such notice miay, however, be excused by 
 circumstances which rendered it impossible, or nearly so. 
 
 In general, the notice must be given within a reasonable time ; 
 which is a question of law for the court. 
 
 A bill or note, although overdue, does not cease to be 
 negotiable, and if endorsed after overdue, there may still be a 
 demand and notice of default in order to charge the endorser. 
 
 l^otice is sometimes waived by writing on the note the words, 
 "I waive demand and notice," etc., which is sufficient. 
 
 Notice should be given as soon as on the day following that 
 on which payment has been refused. 
 
 If Sunday or any other day intervene, which, by law or by 
 established usage, is not a day of business, then it is not counted, 
 and the obligation as to notice is the same as if it fell on the suc- 
 ceeding day. 
 
 But if the last day of grace falls upon such a day, then it is 
 payable on the day before. 
 
 The purpose of notice is that the party receiving it 
 may obtain security from the party liable to him for the 
 sum for which he is liable to other parties. 
 
COISTTRACTS. 143 
 
 The holder may leave without notice whom he will, and hold 
 by due notice those whom he will ; and the endorser, having due 
 notice, must himself notify prior parties to whom he would looli. 
 
 Protest. — If a foreign bill be not accepted, or not paid at ma- 
 turity, it must be protested at once. Inland bills are generally, 
 and promissory notes very often^ protested in like manner, but 
 this is not required by the law merchant. 
 
 Ifotarial protest is generally admissible, but not conclusive 
 evidence of the facts therein stated, which properly belong to 
 the act of protest. 
 
 INFANTS. — Their disability to contract rests in general on 
 the ground of want, immaturity or incapacity of mind. 
 
 All persons are denominated infants by common law until the 
 age of twenty -one. 
 
 As a general rule, the contract of an infant is said to be not 
 void, but voidable ; that is, he may, either during his minority or 
 within a reasonable time after he becomes of age^ avoid the con- 
 tract, if he will. 
 
 But the contract of the infant for necessaries is neither void 
 nor voidable. It is permitted for his own sake that he may 
 Tuake a valid contract for these things. The word "necessaries," 
 in relation to an infant, is not used in a strict sense ; but the 
 social position of an infant, his means and those of his parents, 
 are taken into consideration. 
 
 Obligations of parents in respect to infant children. 
 The obligation of the father to maintain the child is and always 
 ias been recognized, in some way and in some degree, in all 
 civilized countries. 
 
 Where goods are supplied to an infant which are not 
 necessaries, the father's authority must be proved to 
 make him liable ; but where they are necessaries, the father's 
 authority is presumed, unless he supplies them himself, or was 
 ready to supply them. 
 
 Where he has been deserted by the father, or driven away 
 from him, either by command or by cruel treatment, there the 
 infant carries with him the credit and authority of the father for 
 necessaries. 
 
 A father may, by an agreement with his minor child, 
 relinquish to the child the right which he would other- 
 "wise have to his services, and may authorize those who em- 
 ploy him to pay him his wages, and will then have no right to 
 
144 CONTEACTS. 
 
 demand those wages, either from the employer or from the ehild^ 
 Such an agreement may be inferred from circumstances. 
 
 A father is not liable for the willful tort of his infant child. 
 
 An infant is protected against his contracts, but not. 
 against his frauds or other torts. 
 
 CONTRACTS OF MARRIED WOMEN— General ef- 
 fect of marriage on the rights of the parties. — At common 
 law the disability of a married woman is almost entire, her per- 
 sonal existence being merged, for most purposes, in that of her 
 husband. This was not so among the Anglo-Saxons, nor with 
 the earlier Teutonic races, but is one of the effects of the feudal 
 system, the principal object of which was to make the whole^ 
 strength of the state available as a military force. 
 
 The contracts of a married woman, made before her marriage,, 
 enure to the benefit of her husband, but do not vest in him ab- 
 solutely. They are chosea in action which he may reduce to his. 
 own possession during her life. 
 
 A married woman can make no valid contract ; hence 
 the husband cannot be bound by any contract which she may 
 attempt to make, but he is responsible for her torts. 
 
 In general, whatever she earns, she earns as his servant ani 
 for him, for in law her time and labor, as well as her money, are 
 his pi*operty. 
 
 She may be the agent of the husband, and in that character 
 make contracts which bind himj and this agency need not 
 be expressed, but is raised by law from a variety of circum- 
 stances, as to hire servants, or to purchase articles necessary for 
 the family use, for herself, etc. 
 
 If the wife separates from the husband by his fault, she carries 
 with her all her rights to necessaries, and he who supplies them 
 may hold the husband for their price. 
 
 Where they live together, there is a presumption of 
 law, arising from cohabitation, that the husband assents to 
 contracts made by the wife for the supply of articles suitable to- 
 their station, means and way of life. 
 
 If the wife leave the husband without just cause, and refuses 
 to cohabit with him, she loses all right to maintenance from him. 
 
 A liability very similar to that which falls upon one who is- 
 legally a husband, rests also upon him who lives with a woman 
 as his wife, who is not so. 
 
 Persons of insu£5.cient mind to contract. — ^If one enters- 
 
CONTEACTS. 145 
 
 into a contract while deprived of reason, and afterwards 
 recover his reason, he may repudiate that contract, and 
 
 this, although a temporary insanity was produced by his own 
 act, as by intoxication. 
 
 Courts of law as well as equity afford protection to those who 
 are of unsound mind. 
 
 Persons under duress. — A contract made by a party under 
 compulsion is void, because there is no consent, and also from 
 being founded in wrong. 
 
 COXSIDEKATIOSr AJTD ASSEWT. 
 
 CONSIDERATION.— A promise for which there is no 
 consideration cannot be enforced at law. 
 
 A contract under seal is, in general, valid, without reference 
 to the consideration, because, it is said, the seal implies a consid- 
 eration. 
 
 In some of the States by usage, and in others by statute, the 
 want or failure of consideration may be a good defence against 
 an action on a sealed contract. 
 
 A consideration must be proved where the contract 
 is in writing but not under seal, as much as if the contract 
 were oral only. 
 
 It is said that the difference between sealed and unsealed in- 
 struments is now a mere unmeaning and arbitrary distinction, 
 made by technical law and not sustained by reason. 
 
 The kinds of consideration at common law are two : good 
 and valuable. 
 
 A good consideration, such as that of blood or natural love 
 and affection, as when a man grants an estate to a near relation. 
 
 A valuable consideration, such as money, marriage, or the 
 like, which the law esteems an equivalent given for the grant. 
 
 An equitable consideration is sufficient as between the 
 parties, although it be not valuable. It is sufficient in all con- 
 veyances by deed, and in transfers not by deed, but accompanied 
 by immediate possession. 
 
 Consideration means something which is of some value in the 
 eye of the law, moving from the plaintiff; it may be some bene- 
 fit to the defendant, or some detriment to the plaintiff ; but at all 
 events it must be moving from the plaintiff. 
 Adequacy of consideration. — If the consideration isvalu- 
 
 10 
 
146 COI^TEACTS. 
 
 able, it need not be adequate ; that is, the court will not enquire 
 into the exact proportion between the value of the consideration 
 and that of the thing to be done for it : but it must have some 
 real value. 
 
 Where one through mistake of the law acknowledges himself 
 under an obligation which the law does not impose, he is not 
 bound by such promise, although, in general, ignorance of the 
 law is no excuse or defence, for if it were, a " premium would be 
 held out to ignorance." 
 
 Prevention of litigation is a valid and sufficient considera- 
 tion, for the law favors the settlement of disputes. 
 
 An agreement to forbear for a time proceedings at law or in 
 equity, to enforce a well-founded claim, is a valid consideration 
 for a promise. 
 
 In general, a -waiver of any legal right, at the request of 
 another party, is a sufBlcient consideration for a promise, or a 
 waiver of any equitable right. 
 
 An assignment of a debt or a right is a good consideration for 
 a promise by the assignee. 
 
 Work and service are a very common consideration for a 
 promise, and always sufiicient, if rendered at the request of the 
 party promising. 
 
 Trust and confidence in another often form a sufla.cient con- 
 sideration to hold that other to his undertaking. 
 
 If a person makes a mere gratuitous promise, and then enters 
 upon' the performance of it, he is held to a full execution of all 
 he has undertaken. 
 
 A promise for a promise is a good consideration, but 
 there must be an absolute mutuality of agreement, so that each 
 party has the right at once to hold the other to a positive agree- 
 ment. 
 
 Where several promise to contribute to a common object, de- 
 sired by all, the promise of each may be a good consideration 
 for the promise of the others. 
 
 In general, subscriptions on certain conditions, in favor of the 
 party subscribing, are binding when the acts stipulated as condi- 
 tions are performed. 
 
 Considerations void in part. — Where the consideration is 
 entire and incapable of severance, then it must be wholly good 
 or wholly bad. 
 
 If the promise be entire, and not in writing, and a part of 
 
COISTTEACTS. 147 
 
 it relate to a matter which by the statute of frauds should be 
 promised in writing, such part being void, avoids the whole con- 
 tract; but if of a nature divisible, and the part not required to 
 be in writing by statute may be enforced without injustice to 
 the promisor, that portion of the agreement will be binding. 
 
 Illegality of consideration. — In general, if any part of the 
 ■entire consideration for a promise, or any part of an entire 
 promise, be illegal, whether by statute or at common law, the 
 whole contract is void. 
 
 But if one gives a good and valid consideration, and thereupon 
 another promises to do two things, one legal and the other ille- 
 gal, he shall be held to do that which is legal, unless the two are 
 so mingled and bound together that they cannot be separated, 
 in which case the whole promise is void. 
 
 Impossible considerations are wholly bad and insuffi- 
 cient. 
 
 A consideration which one cannot perform without a breach 
 ■of the law is bad, and so is one which cannot be performed at all. 
 
 But a promise is not void merely because it is difficult or even 
 improbable. 
 
 In order to found a consideration for. a promise it is necessary 
 that the party by whom the promise is made should have the 
 power of carrying it into effect ; and that the thing to be done 
 should in itself be legal. 
 
 Failure of consideration. — "When the consideration ap- 
 pears to be valuable and sufficient, but turns out to be wholly 
 false or a mere nullity, a promise resting on this consideration is 
 no longer obligatory. 
 
 If a diminution or failure of the consideration were such as in 
 effect and really to take away all the value of the consideration, 
 it would be regarded as one that had wholly failed. 
 
 Where a consideration fails only in part, if there be a 
 substantial consideration left, although much diminished, it would 
 still sustain the contract. 
 
 While it is true that a failure of consideration is a good ground 
 for the recovery of the money paid, it must be remembered that 
 it is a familiar and well settled principle of law that where a 
 person, with full knowledge of all the circumstances, pays money 
 voluntarily and without compulsion or duress of person or goods, 
 he shall not afterwards recover back the money so paid. 
 
 Rights of a stranger to the consideration.— By an an- 
 
148 CONTEAOTS. 
 
 cient rule of law, recognized and enforced in modern times, no 
 stranger to the consideration of an agreement could have an 
 action on such agreement, although it were made expressly for 
 his benefit; but it seems to be held, in recent cases, that, while 
 the rule itself is not denied, it would generally be held inappli- 
 cable where the beneficiary has any concern whatever in the 
 transaction. 
 
 But whore the promise is made under seal, and the action must 
 be debt or covenant, then it must be brought in the name of the 
 party to the instrument ; and a third jjarty, for whose benefit 
 the promise is made, cannot sue upon it. 
 
 The time of the consideration may be of the past, of the 
 present, or of the future. 
 
 The general rule is that a past or executed consider- 
 ation is not sufScient to sustain a promise founded upon 
 it, unless there was a request for the consideration previous to 
 its being done or made. 
 
 But this previous request need not always be express, or 
 proved, because it is often implied, — as, first, where one accepts 
 or retains the beneficial result of voluntary service ; secondly, 
 where one is compelled to. do for another what that other should 
 do, and was compellable to do; and, thirdly, where one does vol- 
 untarily, and without request, that which he is not compellable 
 to do, for another who is compellable to do it. 
 
 Where the law implies both the previous request and also a 
 subsequent promise, there no other promise than that which is 
 so implied can be enforced, if the consideration for the promise 
 be an executed one. 
 
 Where the consideration is ■wholly executed, the la'wr 
 implies in some cases a previous request, provided a 
 promise be proved ; but will not imply a request and thence 
 imply a promise. 
 
 On the other hand, wherever the law implies the promise, 
 there it will also imply a request ; and hence it may be said that 
 express request is unnecessary where the law implies a promise. 
 
 ASSENT OF THE PARTIES.— There is no contract 
 unless the parties thereto assent, and they must assent to 
 the same thing, in the same sense. 
 
 The assent must comprehend the whole of the proposition ; it 
 must be exactly equal to its extent and provisions, and it must 
 not qualify them by any new matter. 
 
COJ^TEACTS. 149 
 
 At a sale by auction, every bid by any one present is an offer 
 by him. It becomes a contract as soon as the hammer falls or 
 the bid is otherwise accepted ; but until accepted, may be with- 
 drawn. 
 
 Contracts on time.— Strictly speaking, all offers are on time. 
 !N"or can it be necessary that the acceptance should follow the 
 offer instantaneously. A reasonable time is allowable, and what 
 this is must be determined by the circumstances of the case. 
 
 If the offerer gives a day for acceptance, without con- 
 sideration for the delay, he may, at any time within that day, 
 before acceptance, recall his offer. So he may if he gives no 
 time. If he makes an offer, and instantly recalls it before ac- 
 ceptance, although the other party Avas prepared to accept it the 
 next instant, the offer is effectually withdrawn ; but acceptance 
 before withdrawal binds the parties, if made while the offer con- 
 tinues ; and the offer does continue in all eases, either a reason- 
 able time or the time fised by the party himself. 
 
 An offer by letter is a continuing offer until the letter be re- 
 ceived, and for a reasonable time thereafter, during which the 
 party to whom it is addressed may accept the offer. 
 
 It is held that this offer may be withdrawn by the maker at 
 any m.oment ; and that it is withdrawn as soon as a notice of 
 such withdrawal reaches the party to whom the offer is made, 
 and not before. 
 
 If the party accepts the offer before such withdrawal, the bar- 
 gain is completed; there is then a contract founded upon mutual 
 assent. 
 
 These letters are supposed to be properly addressed and mailed 
 and to reach the proj)er party at a proper time. 
 
 Cases of delay and hindrance form exceptions to the principle 
 above stated, and must be decided on their own facts and merits. 
 
 If the party receiving an offer by letter put his answer of ac- 
 ceptance into the mail, he has done all that he could do, and is 
 in no way responsible for the casualties of the mail service. 
 
 SUBJECT-MATTEK ®F COBfTKACTS. 
 
 THE SUBJECT-MATTER OF EVERY CONTRACT 
 is something which is to be done, or which is to be 
 omitted. Where the thing to be done is the payment of money, 
 the remedy is adequate and perfect. But where the thing to be 
 
150 CONTRACTS. 
 
 done is anything else than the payment of money, there the- 
 common law can only give a remedy which may be entirely in- 
 adequate ; for it can only give a money remedy. The founda- 
 tion of the common law of contracts may be said to be the giving* 
 of damages for the breach of a contract. And where the con- 
 tract is specifically for the payraent of money, and for nothing 
 else, still the law does not generally, in form, decree an execu- 
 tion of the contract, but damages for the breach of it. 
 
 This inability of the common law was among the earlier and 
 most potent causes which gave rise to courts of equity, which 
 have a Yery complete jurisdiction over this class of cases. 
 
 Purchase and sale of real property. — Simple contracts 
 are often made for tlie purchase of real estate, and the 
 specific performance of these contracts may be enforced in equity, 
 or actions may be brought on them at common law. 
 
 But neither equity nor law will enforce such contract, if it be 
 founded upon fraud, or gross misrepresentation, etc. ; but mere 
 inadequacy of price — not gross, and not attended by circum- 
 stances indicating fraud or oppression — is not sufiicient to avoid it.. 
 
 Auction sales. — Estates are frequently sold at auction ; and. 
 in that case, the plans and descriptions should be such as will 
 give true information ; for if they are deceptive or materially 
 erroneous, the purchaser is not bound to take the estate. 
 
 The weight of authority seems in favor of permitting an 
 owner in person to bid, or to employ a person to bid for him, if 
 he does this with no purpose of " puffing," but merely to pre- 
 vent a sacrifice of the property under a given price. 
 
 An auctioneer has no authority to rescind the sale for either 
 party without specific orders, although the purchase money be 
 not yet paid. 
 
 If an auctioneer does not disclose the name of the 
 owner of the property which he sells, he is himself lia- 
 ble to an action by the buyer for the completion of the- 
 contract. 
 
 So, also, if he sold or warranted withoiit authority. 
 
 An auctioneer has such a special property in the goods, that 
 he may bring an action for the price, even if the goods be sold 
 in the house of the owner and were known to be his. But the 
 buyer may set off a debt due to him from the OAvner. 
 
 After the sale is finished the auctioneer is no longer the agent 
 of the owner, and a payment to him of the price is not a pay- 
 
CONTEACTS. 151 
 
 laent to the owner, unless by usage or on other evidence he can 
 be shown to have authority to receive the money. 
 
 The rules of law applicable to auction sales of personal and of 
 real property are the same, except so far as they are necessarily 
 distinguished by the nature of the property sold. 
 
 HIRING OF REAL PROPERTY.— Of lease— the means- 
 by which it is usually affected. 
 
 A lease is a contract whereby one party (the tenant) has the 
 possession and profits of the land, and the other party (the land- 
 lord) reserves a rent which the tenant pays him by way of 
 compensation. 
 
 Any general description will suffice to pass the demised prem- 
 ises, if it be capable of distinct ascertainment and identification. 
 
 Liabilities of the lessor. — There is an implied covenant on 
 the part of the lessor to put the lessee into possession, and that 
 he shall quietly enjoy, etc. 
 
 Liability and obligation of the tenant. — He is liable to 
 an action either for non-payment of rent or for refusing to take 
 possession. 
 
 He is not bound to pay taxes unless he agree to. 
 
 A tenant is not bound to make general repairs, but he must 
 make such as are made necessary by his use of the house and 
 are required to keep the premises in tonantable condition, and 
 outgoing tenants must leave the premises wind and water tight. 
 
 A lessee may assign over the whole or a part of his term in 
 the premises. 
 
 A tenant may not dispute his landlord's title, for he is 
 estopped from changing by his own act the character and effect 
 of his tenure. 
 
 If the lessee proves an interference with his beneficial enjoy- 
 ment of the premises which is material and intentional, this 
 would be a defence against an action for rent; but the inter- 
 ference must be deliberate, and by the landlord himself, and not 
 by another tenant or other person. 
 
 Surrender of leases by operation of law. — Surrender 
 takes place when the lessee does something incompatible with 
 the lease, and the lessor assents or co-operates, as if the lessor 
 gives and the lessee accepts a new valid lease. 
 
 Away-going crops. — A tenant whose estate is termi- 
 nated by an uncertain event, which he could neither 
 foresee nor control, is entitled to the annual crop which 
 
152 CONTEACTS. 
 
 he sowed while his estate continued, by the law of emble- 
 ments. 
 
 OtherTsrise, in case of a tenant for years, for he knows when 
 his lease will expire ; but still he has usually some right to the 
 crop he sowed, according to usage, agreement, etc. 
 
 Fixtures. — The tenant may annex some things to the free- 
 hold and yet retain the right to remove them. 
 
 In general, he may remove -whatever he has added, if 
 he can do so without any injury to the premises, unless he has 
 actually built it in, so as to make it an integral part of what was 
 there originally. 
 
 Notice to quit. — A tenant whose tenancy may be deter- 
 mined by the will of the landlord is entitled to notice of that de- 
 termination, nor can he be dispossessed by process of law, with- 
 out that previous notice. 
 
 A notice to quit is necessary in all those cases in 
 -which the implication of la-w creates a tenancy from 
 year to year, or one determinable by the landlord. ISTo 
 particular form is necessary. 
 
 It should be served upon the tenant personally, or by leaving 
 it with the tenant's wife or servant, at the usual place of abode 
 of the tenant, and if so left it is sufficient, although it never 
 reached the tenant. 
 
 A valid notice properly served vests the premises in the 
 landlord, and absolutely terminates the tenant's right of posses- 
 sion at the time stated. 
 
 Apportionment of rent arises where the lessor sells his 
 right to the land to different purchasers. 
 
 It is now settled that the apportionment must be in proportion 
 to the value, and not quantity, and this is a question of fact for 
 the jury to settle upon the evidence offered them. 
 
 The remedy for non-payment of rent due and unpaid, 
 provided by the common law, is the summary and somewhat 
 perilous authority of distress. 
 
 The distress must be reasonable in amount, and the property 
 distrained cannot be carried out of the county ; and the distress 
 must not be made at night. 
 
 The goods may be replevied by the owner at any time 
 within a certain number of days, and the question of indebted- 
 ness, or any other which affects the right of distress, niay be 
 tried ; but if not replevied, they may be sold, and the proceeds 
 applied to the payment of the rent due. 
 
COISTTEACTS. 153 
 
 The landlord is punishable for unlawful distress, and the 
 "tenant for unlawful rescue of the goods or prevention of dis- 
 ia-ess. 
 
 SALE OF PERSONAL PROPERTY— The essential 
 
 of a sale, at common law, is the agreement of the parties 
 that the property in the subject-matter should pass from the 
 vendor to the vendee, for a consideration given, or promised to 
 be given, by the vendee. 
 
 There is a presumption that eyery sale is to be con- 
 sununated at once ; that the chattel is to be delivered and the 
 price paid without delay. 
 
 Original owners may reclaim their property wherever it may 
 be, and take it without any payment to the holder. 
 
 Absolute sale of chattels. — For a sale to be valid in law 
 there must be parties, a consideration, and a thing to be sold. 
 
 A sale may be good in part and void as to the residue ; 
 good as between the jiarties, but void as to creditors ; good as to 
 some of the creditors, but void as to others. 
 
 The price to be paid must be certain, or so referred to a defi- 
 nite standard that it may be made certain ; and the thing sold 
 must be specific, and capable of certain identification. 
 
 The effect of a sale is, that if the sale be complete, the 
 property in the thing sold passes to the purchaser, and if not 
 complete, it remains with the original owner. 
 
 The property does not pass absolutely unless the sale be com- 
 jpleted, and it is not completed until the happening of any event 
 expressly provided for, or so long as anything remains to be 
 done to the thing sold, to put it into a condition for sale, or to 
 identify it, or discriminate it from other things, or to determine 
 its quantity, if the price depends on this, etc. 
 
 And even if an earnest, or part of the price, be paid, 
 the sale is not complete under these circumstances, and if it 
 finally fail, the money paid may be recovered back. 
 
 If it be sold for cash and the price be not paid, or if it be sold 
 on credit, but by the terms of the bargain is to remain in the 
 hands of the vendor, the vendor has a lien on it for the price, 
 and only payment or tender gives the vendee a right to posses- 
 sion. 
 
 If sold on credit and the buyer, by the terms of the bargain, 
 has the right of immediate possession without payment, but 
 -the thing sold actually remains in the possession of the seller 
 
154 COISTTEACTS. 
 
 until the credit has expired, and the price is still unpaid, it seems- 
 that the seller then has a lien for the price. 
 
 If it be sold on credit, and there is no agreement in 
 respect to the delivery or possession of the goods, the 
 
 prevailing, but not quite universal, rule, gives to the purchaser 
 at once a complete right not only of property, but of posses- 
 sion, subject only to defeasance under the law of stoppage in 
 transitu. 
 
 Possession and delivery.^ — While as between the parties, 
 the property passes by a sale without delivery, it is not valid, 
 in general, as against a third party without notice, without de- 
 livery. 
 
 If no time be appointed for delivery, or for payment, these- 
 acts must be done within a reasonable time ; and if neither party 
 does anything within that period, the contract is deemed to be 
 dissolved. 
 
 Conditional sales. — In every sale, unless otherwise ex- 
 pressed, there is an implied condition that the price shall be 
 paid before the buyer has a right to possession ; and this is a 
 condition precedent. 
 
 Any misstatement, made fraudulently, and capable of 
 having any effect on the sale, will avoid it ; for a buyer 
 is discharged from a purchase made under " catching conditions." 
 
 It is a well recognized principle that courts will not make a, 
 contract for the parties which they have not made themselves.. 
 
 Warranties. — Accompanying a sale of chattels. There 
 are two kinds in respect to their subject-matter, viz : warranty 
 of title, and warranty of quality. There are also two kinds with 
 respect to their form, as they may he express or implied. 
 
 The seller of a chattel, if in possession, warrants by implica- 
 tion that it is his own, and is answerable to the purchaser if it 
 be taken from him by one who has a better title than the seller,, 
 whether the seller knew the defect in his title or not. 
 
 But if the seller is out of possession, and no affirma- 
 tion of title is made, then it may be said that the pur- 
 chaser buys at his peril. 
 
 It is the fault of the buyer who asks for or receives a war- 
 ranty if it does not cover as much ground and give him as 
 effectual protection as he intended. 
 
 If there be no express warranty, the law, in general, 
 implies none; the rule is, caveat emptor, — let the purchaser 
 
CONTRACTS. 155^ 
 
 beware, or take eare of his own interests, — for it is always in 
 the power of a purchaser to demand a warranty. 
 
 The rule, however, never apjjlies to cases of fraud, never pro- 
 poses to protect a seller against his own fraud, nor to disarm a 
 purchaser from a defence or remedy against a seller's fraud. 
 
 The seller may let the buyer cheat himself ad libitum, but 
 must not actively assist him in cheating himself. 
 
 As mere silence implies no warrantj^, neither do remarks 
 which should be construed as simple praise or commendation. 
 
 If goods be sold by sample, there is an implied warranty that 
 the goods correspond to the sample. 
 
 Where a contract of sale is in writings and contains no war- 
 ranty, there parol evidence is not admissible to add a warranty. 
 
 It is fraud, if the seller conceals e:sisting faults, and 
 draws the attention of the buyer away so as to prevent 
 his discovering them, or places the property in such circum- 
 stances that discovery is impossible, or made very difficult. 
 
 The buyer may bring his action at once, founding it upon the 
 breach of warranty, without returning the goods ; but his con- 
 tinued possession of the goods and their actual value would be 
 considered in estimating the damages. 
 
 Or, he may return the goods forthwith, and if he does so 
 without unreasonable delay, this will be a rescission of the sale, 
 and he may sue for the price, if he has paid it, or defend against 
 an action for the price if one be brought by the seller. 
 
 But if he has sold a part before his discovery of the breach, 
 and therefore cannot return them, he may still rescind the sale, 
 and will be liable for the market value of what he does not 
 return. 
 
 In general, vrhen a buyer asserts that the goods he 
 purchased are not what they were warranted to be, he 
 must forthwith return the goods, if he would rescind and avoid 
 the sale. 
 
 Delay in doing so would be construed into an admission that 
 there was no such deficiency, or into a waiver of his right to 
 rescind the sale because of such deficiency. 
 
 In general, there is no implied warranty whatever arising 
 from judicial sale. 
 
 STOPPAGE IN TRANSITU.— If a vendor, who has 
 sent goods to a purchaser at a distance, finds that the 
 purchaser is insolvent, he may stop the goods at any 
 
156 COITTEACTS. 
 
 time before they reach the purchaser, which right is 
 ' called the right of stoppage in transitu. 
 
 To effect this^ notice of the consignor's claim and purpose 
 given to the carrier before delivery, is sufficient. 
 
 The prevailing authority and reason are in favor of this stop- 
 page in transitu, being an exercise of a lien by the seller, and 
 not a rescission of the sale. 
 
 When and how the right may be exercised. — The gen- 
 eral rule is, that this right exists as long as the goods are m 
 tf'ansitu. 
 
 They are in transitu until they pass into the possession of the 
 vendee. 
 
 Guaranty or suretyship is the contract by which one per- 
 son is bound to another for the due fulfillment of a promise or en- 
 gagement of a third party. Warranty is applied to a contract 
 as to the title, quality, or quantity of a thing sold. 
 
 No special words or form are necessary to constitute a guar- 
 anty. 
 
 Unless the conditions of a guaranty are strictly complied with 
 by the party to whom it was given, the guarantor will not be 
 bound. 
 
 It often happens that what appears to be a promise to pay the 
 debt of another is not in writing, but is nevertheless enforced by 
 the courts on, the ground that it is an original promise, and not 
 a collateral one, and therefore not within the requirements of 
 the statute of frauds. 
 
 Where the promise to pay the debt of another is 
 founded upon a new consideration, and this consideration 
 passes between the parties to this promise, and gives to the 
 promisor a benefit which he did not enjoy before, and would 
 not have possessed but for the promise, then it will be regarded 
 as an original promise, and will bo enforced, although not in 
 writing. 
 
 Whether a contract is collateral or original, may be a 
 question of construction, and then it is for the court; but it is 
 often regarded as a question of fact, and then it is for the 
 jury. 
 
 Consideration. — Although the promise to pay the debt of 
 another be in writing, it is nevertheless of no force unless 
 founded upon a consideration. 
 
 Wherever any fraud exists in the consideration of the con- 
 
CONTEACTS. 157' 
 
 tract of guaranty, or in the eircnmstances which induced it, the 
 contract is entirely null. 
 
 Agreement and acceptance. — A contract of guaranty, or 
 a promise to pay the debt of another, is not valid unless it is 
 accepted by the promisee. 
 
 Where the proposition of guaranty, or letter of credit, is fu- 
 ture in its application, and uncertain in its amount, the guarantor 
 must have notice that his guaranty is accepted. 
 
 The reason of this is that the guarantor may know distinctly 
 his liability, and have the means of arranging his relations as 
 he would with the party in whose favor the guaranty is given, 
 and take from him security or indemnity. 
 
 Change of liability. — The guarantor cannot be held to any- 
 greater extent than the original debtor, either in point of amount 
 or of time. ITor can this liability be extended or enlarged by 
 operation of law without his consent. 
 
 Anything which operates as a novation, discharges the surety. 
 But the guarantor may assent to the change, and waive his right 
 of claiming a discharge because of it. 
 
 A surety is discharged where the creditor, after notice and re- 
 quest, has been guilty of a delay which amounts to gross negli- 
 gence, and by this negligence the surety has lost his security or 
 indemnity. 
 
 The guarantor promises only to pay the debt of an- 
 other, in case that other does not pay it; hence the cred- 
 itor must first diligently endeavor to secure the debt from the 
 principal debtor. 
 
 Notice to the guarantor. — A guaranty may be extin- 
 guished or discharged by the fact that the guarantee gives no 
 notice to the guarantor of the failure of the principal debtor, 
 and of the intention of the guarantee to enforce the guaranty. 
 For a guarantor is entitled to reasonable notice of this. 
 
 A demand on the principal debtor, and a failure on his part to 
 do that which he was bound to do, are requisite to found any 
 claim against the guarantor ; and notice of the failure must be 
 given to him. 
 
 Revocation of guaranty. — A promise of guaranty is al- 
 ways revocable at the pleasure of the guarantor by sufficient, 
 notice, unless it be made to cover some specific transaction which 
 is not yet exhausted, or unless it be founded upon a continuing 
 consideration, the benefit of which the guarantor cannot or does, 
 not renounce. 
 
158 CONTEACTS. 
 
 HIRING OF PERSONS.— Servants.— Where the con- 
 tract is for a certain time, if the master discharge the servant 
 before the time, he is still liable, unless the servant has given 
 •cause, by showing himself unable or unwilling to do what he 
 has undertaken to do. 
 
 A promise by the servant to obey the lawful and reasonable 
 orders of his master, within the scope of his contract, as. implied 
 by law, and a breach of this promise, in a material matter, jus- 
 tifies the master in discharging him. 
 
 If the contract be for a time certain, and the servant 
 leave without cause before the time expires, it is a gen- 
 eral rule that he has no claim for the services he has rendered. 
 
 But if prevented from performing the stipulated amount of 
 labor by sickness, or similar inability, he may recover pay for 
 what he has done on a quantum meruit. 
 
 On the same principle of entirety of contract, it is held that 
 if a servant is discharged for misconduct during the currency of 
 a quarter, he is entitled to no wages from the beginning of that 
 quarter. 
 
 If the contract be dissolved by mutual consent, he may recover 
 wages pro rata, without any express contract to that effect. 
 
 Where wrongfully dismissed he may recover for the whole 
 term. 
 
 In general, whatever service is rendered and received, a con- 
 tract of hiring, or an obligation to pay will be presumed. 
 
 The statute of frauds requires that a promise not to be ful- 
 filled or performed within one year from the making shall be in 
 writing. 
 
 Contracts for service generally. — There is in all such 
 contracts a promise, implied if not expressed, that the 
 party employing will pay for the service rendered ; and 
 on the other hand, that the party employed will use due care 
 and diligence, and have and exercise the skill and knowledge 
 requisite for the employment undertaken. 
 
 It is on this ground that physicians and surgeons are liable 
 for any injury caused by their want of due skill or care. 
 
 Where there is a contract for a piece of work for a definite 
 sum, and, as often happens, extra work is done by the party em- 
 ployed, he cannot recover for such extra work, or even for bet- 
 ter materials used, if he had not the authority of the other party 
 therefor; but this authority may be implied. 
 
CON'TEACTS. 159 
 
 MARRIAGE. — Contracts to marry are as valid and effect- 
 Tial in law as any, and in actions upon them damages may be 
 recovered, not only for pecuniary loss, but for suffering and in- 
 jury to condition and prospects. 
 
 The promises must be reciprocal, but they need not be made at 
 the same time ; for if an offer be made, though retractable until 
 acceptance, yet if not retracted, it remains open for acceptance 
 for a reasonable time, and when accepted, the contract is complete. 
 
 The very words, or time, or manner of the promise 
 need not be proved, for it may be inferred from circum- 
 stances. 
 
 A promise to marry at the end of five years has been held in 
 this country to be within that clause of the statute of frauds 
 which requires that a promise not to be performed within one 
 year from the making shall be in writing. 
 
 A contract to marry, "without specification of time, 
 is a contract to marry "within a reasonable time, each 
 party having a right to reasonable delay. 
 
 Contracts to marry, like most others, may be on condition ; 
 and if the condition be legal and reasonable, the liability of the 
 parties under it attaches as soon as the condition is satisfied. 
 
 If the promise is to marry on request, a request should be al- 
 leged and proved. 
 
 The defences "which may be urged against an action to 
 -enforce a promise to marry are very numerous : Consanguinity 
 within those degrees within which marriage is prohibited by the 
 statutes of the several States ; bad character of the plain tiif, or 
 his or her lascivious* conduct; false and injurious language used 
 by plaintiff concerning defendant ; bad health, if such as to in- 
 capacitate for marriage, or render it unsafe or improper ; entire 
 deafness or blindness, or other important physical incapacity, 
 ■occurring after the promise ; so if a widow conceals her previous 
 marriage and betroths herself as a virgin, which would be a 
 ;fraud; all of these being good defences. 
 
 A dissolution of the contract by mutual consent would of 
 course be a sufflcient defence, but it must be a real and honest 
 consent. But a pre-engagement by the defendant is no sufS^cient 
 defence. 
 
 Damages are peculiarly within the power of the jury in cases 
 of this kind, and couris are very unwilling to set aside a verdict 
 in these cases on the ground of excessive damages. 
 
160 CONTEACTS. 
 
 Promises in relation to settlements or advances. — A. 
 
 promise to give to a woman, or settle upon her, a specific sum or 
 estate, on her marriage, is valid. 
 
 But such promises are certainly within the statute of frauds, 
 as made " in consideration of marriage," although a promise to 
 marry is not. They must therefore be in writing in those of our 
 States which have enacted this clause of that statute. 
 
 Contracts in restraint of marriage are -wholly void. 
 
 Contracts of marriage, in most governments, are held to be 
 valid and binding, notwithstanding it is entered into with no- 
 rites or ceremonies. 
 
 Svidence of marriage, from cohabitation, acknowledgment 
 by the parties, reception by the familj-, connection as man and 
 wife, and general reputation, is receivable in nearly all civil cases. 
 
 Consent is the essence of this contract, as of all others, or it 
 is void. 
 
 Divorce a vinculo annuls the marriage altogether, and it 
 restores the parties to all the rights of unmarried persons. It 
 is granted for adultery, desertion, cruelty, long imprisonment, 
 etc. The law and practice in this respect differ in the different 
 States, being precisely alike in no two of them. 
 
 A divorce a mensa et thoro was once the most common,, 
 but most of the causes which formerly only sufficed for this are 
 now very generally made sufficient for a divorce a vinculo. 
 
 BAILMENT is a delivery of goods in trust upon a con- 
 tract, express or implied, that the trust shall be faithfully exe- 
 cuted on the part of the bailee. 
 
 A bailee is always responsible, in some degree or measure, for 
 the property delivered to him ; he is bound to take care of it. 
 
 Courts have established three kinds or degrees of 
 care. 
 
 Frst. — Slight care, or that degree of care which every man 
 of common sense, though very absent and inattentive, applies 
 to his own affairs. 
 
 Secondly. — Ordinary care, or that degree of care which 
 every person of ordinary and common prudence takes of his 
 own concerns. 
 
 Thirdly. — Great care, or the degree of care that a man re- 
 markably exact and thoughtful gives to the securing of his own 
 property. 
 
 There are, therefore, three degrees of negligence. 
 
CONTEACTS. 161 
 
 First. — Gross negligence, or the absence of slight care. 
 
 Secondly. — Ordinary negligence, or the absence of ordi- 
 nary care. 
 
 Thirdly. — Slight negligence, or the absence of great care. 
 
 The classification of bailments is into depositum, or de- 
 posit without compensation or reward ; mandatum, or gratuitous 
 commission, wherein the mandatary agrees to do something 
 with or about the thing bailed; commodatum, or loan, where 
 the thing bailed is lent for use, without pay, and is to be itself 
 returned ; pignus, or pledge, when the thing bailed is security 
 for debt; and locatio, or hiring, for a reward or compensation. 
 
 Depositum is where a thing is placed with a depositary to 
 be kept for a time, and returned when called for, the depositary 
 to have no compensation ; the benefit of the transaction being 
 wholly on the side of the bailor, the bailee is liable only for 
 gross negligence. 
 
 The depositary is bound to deliver the thing as it was, and 
 with it- all its increase or profit. 
 
 But one cannot be made a depositary against his will; he must 
 consent, but the consent may be implied or inferred. 
 
 Mandatum is where the commission is gratuitous ; and here, 
 also, the transaction is for the exclusive benefit of the bailor, and 
 the bailee is held only for gross negligence. 
 
 In deposit, the safe-keeping is the principal matter; in mandate, 
 the work to be done with or about the thing ; hence the first is 
 said to be in custody, and the second in feasance. 
 
 Mandates and deposits may be considered as con- 
 tracts, and the obligations growing out of them may be enforced 
 by action of assumpsit, as it is well settled by the authorities 
 that the delivery and acceptance of the goods constitute a suffi- 
 cient consideration. 
 
 Gratuitous bailees being thus liable ex-contractu, may also be 
 made liable ex-delicto if they have committed a tort upon the 
 property intrusted to them. 
 
 Commodatum is when a thing is borrowed to be used by the 
 borrower without any reward or compensation to be received by 
 the owner from him. This transaction resembles the two for- 
 mer, — in so far as it is gratuitous, but unlike them in that the 
 benefit belongs exclusively to the bailee, and he is therefore 
 bound to great care, and liable for slight negligence. 
 
 Pignus, or pledge, is a bailment for the mutual benefit of 
 
 11 
 
162 CONTEACTS. 
 
 both parties, for while the pledgee obtains security for his debt, 
 the pledgor obtains credit, or delay, or other indulgence. The 
 bailee is therefore bound only to ordinary care, and is liable 
 only for ordinary neglect. 
 
 In the power of disposal a mortgagee differs greatly from a 
 pledgee, in that he may sell his mortgage and by his sale trans- 
 fer the right of property from himself to the purchaser, subject 
 to the redemption of the mortgagor ; but the pledgee, having 
 only the possession and not the property, cannot transfer the 
 property or thing pledged, nor sell until the debt becomes due 
 and is unpaid. 
 
 Locatio, or hiring, is usually classified as follows : Lo- 
 catio rei, where a thing is hired and the hirer acquires a tempo- 
 rary use of the thing bailed ; Locatio operis faciendi, where the 
 bailee is hired to do some work or bestow some care on the 
 things bailed ; Locatio operis mercium vehendarum, where the bailee 
 is hired to carry the goods for the bailor from one place to an- 
 other This form of locatio embraces also the carrying of pas- 
 sengers. 
 
 Locatio rei. — When the owner of a thing lets it to another, 
 who is to have the use of the thing and pay a compensation 
 therefor, the contract between the parties is for their mutual 
 benefit. The bailee is bound to take ordinary care of the thing 
 bailed. 
 
 The hirer is equally responsible for the negligence of his ser- 
 vants as for his own, provided that this negligence occurred 
 when the servant was in the discharge of his duty, or obey- 
 ing the commands or instructions of his master, express or 
 implied. 
 
 If the loss occur through theft or robbery, or the injury 
 result from violence, the hirer is only answerable when his im- 
 prudence or negligence caused or facilitated the injurious act. 
 
 When the thing bailed is lost or injured, the hirer is bound to 
 account for such loss or injury. 
 
 The proof of negligence or want of due care is thrown 
 upon the bailor, and the hirer is not bound to prove affirmatively 
 that he used reasonable care. 
 
 On the part of the hirer there is an implied obligation to use 
 the thing only for the purpose and in the manner for which it 
 was hired, and he must in no way abuse the thing hired. 
 
 The hirer must surrender the property at the time appointed, 
 
CONTEACTS. 163 
 
 and if no time be specified in the contract, then whenever called 
 upon after a reasonable time. 
 
 Locatio operis faciendi. — The cases in which the bailee is 
 to do some work or bestow some care upon or about the thing 
 "bailed, may be divided into Mechanics, who are employed in the 
 manufacture or repair of the article bailed to them; Warehouse- 
 men or Wharfingers, who are charged with the custody of the 
 thing bailed; Postmasters, who receive letters, etc., to be sent as 
 directed, and Innkeepers, who receive guests and the goods of 
 guests. 
 
 Mechanics, where employed to make up materials furnished, 
 or to alter or repair a specific thing, there the contract becomes 
 •one of mutual benefit, and only ordinary care is required : but it 
 may vary much in different cases. 
 
 A workman employed to make up materials, or to alter or 
 repair a specific article, has a lien upon the materials of the 
 things for his pay. 
 
 Warehousemen are also held only to ordinary diligence, as 
 in their case also the contract is for mutual benefit. 
 
 These men also have a lien on the goods which they store, for 
 their charges. 
 
 Postmasters, and persons employed as deputies or in the 
 post-ofBces, are answerable for any injury sustained by their 
 xnisconduct or neglect of duty. 
 
 Innkeepers are insurers of the jjroperty committed to their 
 care, against everything but the act of God, public enemies, or 
 the neglect or fraud of the owner of the property. 
 
 An inn has been judicially defined as "a house where the 
 traveler is furnished with everything which he has occasion for 
 whilst upon his way." There need not be a sign to make it an inn. 
 
 An innkeej)er may require of his guest to place his goods in a 
 particular place, and under lock and key, or he will not be an- 
 swerable. 
 
 No special delivery or direction of the goods to the innkeeper 
 is necessary to charge him, for it is enough if they are fairly ac- 
 cording to common practice, within his custody. 
 
 He cannot refuse to receive a guest, unless his house 
 is full, and he is actually unable to receive him, and if on 
 false pretences he refuses, he is liable to an action. 
 
 He may refuse to receive a disorderly guest, or require him 
 to leave his house. 
 
164 COKTEAOTS 
 
 A guest may leave an inn for a time and still leave his pro- 
 perty under the safeguard of the landlord's liability, but not for 
 an indefinite period. 
 
 Locatio operis mercium vehendarum. — The owner of 
 goods may cause them to be carried by a private carrier, gratu- 
 itously, or by a private carrier for hire, or by a common carrier. 
 
 Any one who carries goods for another is a private carrier, 
 unless he comes within the definition of the common carrier. 
 
 The private carrier for hire is bound to ordinary diligence 
 and liable for ordinary negligence, because this bailment is for 
 the benefit of both bailor and bailee. 
 
 Common carriers may be carriers of goods or of passengers, 
 or of both. They are not only responsible for any loss of or in- 
 jury to the goods they carry which is caused by their negligence, 
 but the law raises an absolute and conclusive presumption of 
 negligence whenever the loss occurs from any other cause than 
 "the act of Grod," or "the public enemy." 
 
 " The act of God " is a cause which operates without any 
 aid or interference from man. 
 
 A common carrier is one •who undertakes for hire to 
 transport the goods of &uch as choose to employ him 
 from place to place. 
 
 A private carrier may or may not carry for another, as he 
 prefers ; but a common carrier is bound to receive and carry all 
 the goods offered for transportation, subject to all the responsi- 
 bilities incident to his employment, and is liable to an action in 
 case of refusal. 
 
 All carriers are held to act by their agents, and to be respon- . 
 sible for the acts of their servants and agents, under the common 
 rules of agency. 
 
 As soon as the goods are delivered and received they are at 
 the risk of the carrier. 
 
 The responsibility of the carrier is fixed by his ac- 
 ceptance of the goods without objection, whatever be the man- 
 ner of the delivery. 
 
 Delivery to a carrier must be known to the carrier, in or- 
 der to create a responsibility on his part. 
 
 As the liability of the carrier begins with a delivery of the 
 goods to him, so it continues until the delivery of the goods by 
 him. 
 
 He is bound not only to carry them to their destined place. 
 
CONTEACTS. 165 
 
 but to deliver them there to the bailor, or as the bailor may 
 direct. 
 
 If the consignee refuse to receive the goods, or cannot 
 receive them, or is dead^ or absent, this will excuse delay in de- 
 livery, but will not absolve the carrier from all duty or respon- 
 sibility. 
 
 In general, the delivery of the goods must be to the owner or 
 consignee himself, or to his agent. 
 
 One of the distinctions between the private carrier and the 
 common carrier is that the first has no lien on the goods for his 
 freight, while the latter has. 
 
 Common carriers of passengers are liable only where the 
 injury has arisen from their own negligence ; and they are liable 
 for injuries resulting from the slightest negligence on their part. 
 
 The peculiar responsibility of a common carrier may be de- 
 stroyed by express contract between himself and one who sends 
 goods or takes them with him. 
 
 Although a common carrier cannot, by a mere notice, 
 extinguish his peculiar liability, yet he can in this way 
 materially modify and qualify it. 
 
 So, too, he has a right to say he will not carry goods beyond 
 a certain value ; or that, if he does, he must be paid for it by a 
 premium on the increased risk ; and this is reasonable, as tend- 
 ing to give the carrier «xact knowledge of what he carries and 
 of what risk he runs. 
 
 If the carrier's notice be public, and only a limited 
 and qualified one, and in itself reasonable, the sender is 
 bound thereby. 
 
 It has been held that a railroad company is bound to intro- 
 duce improvements which are ascertained to be practicable and 
 conducive to safety, and are therefore liable for an injury caused 
 by neglect in not introducing them. 
 
 Fraud or ■willful misrepresentation, or intentional con- 
 cealment, on the part of the sender of goods, or of the passen- 
 ger, extinguishes the liability of the common carrier, so far as 
 it is affected by such misconduct. 
 
 The principle that the carrier is bound only by a responsibil- 
 ity which he knows and can provide for, seems to be the prin- 
 cipal cause of recent modifications of his liability in respect to 
 the baggage of a passenger. 
 
 The word " baggage " is held not to include a trunk contain- 
 
166 COIsTTEACTS. 
 
 ing valuable merchandise, and nothing else ; and it does not 
 embrace samples of merchandise carried by a passenger in a 
 trunk, with a view of enabling him to make bargains for the 
 sale of goods. 
 
 The plaintiff is a competent witness, ex necessitate, to prove 
 the contents of his trunk and their value. 
 
 LAW OF SHIPPING. — Any person may become an owner 
 of a ship in the same way as of any other chattel, unless some 
 peculiar means or process is required by law. 
 
 Part-cwners of ships are those who own definite parts or 
 proportions of the whole ship ; and they are always tenants in. 
 common. 
 
 A part-owner may sell his share to whom he will. 
 
 The majority of part-owners, and more certainly a majority 
 in interest and in number, may, generally, control and employ 
 a ship at their pleasure. 
 
 Sale of shijDs. The rules of the common law as to evidence,, 
 agencj', and warranty, applicable to sales of chattels, apply 
 here ; for a ship is a personal chattel, although one of a peculiar 
 character. 
 
 The universal rule in regard to the sale of chattels is 
 that the want or delay of possession by the purchaser is a, 
 badge of fraud which may defeat the sale ; and this applies to a 
 ship, with some modifications, arising from the peculiar charac- 
 ter and use of the chattel. 
 
 Transfer by bottomry. — Originally this contract was made 
 and the bond executed by the master in a foreign port, to raise 
 funds to enable the ship to return to her home port. 
 
 Bottomry bonds are maritime contracts which transfer the 
 ship to the bottomry creditor, as a security for advances made 
 by him ; in which respect it is similar to a mortgage, or pledge j 
 but differs from a pledge in that possession is not transferred to 
 the creditor. 
 
 The debt is paid and the bond discharged by the loss of the 
 ship. 
 
 A later bond takes precedence of an earlier one, be- 
 cause the later bond saves the ship for the earlier ; thus 
 reversing the rule applied to mortgages. 
 
 An owner may make a bottomry bond anywhere or for any 
 reason ; but the master of the ship may lawfully make this 
 bond abroad only, and from absolute necessity. 
 
CONTEACTS. 167 
 
 Respondentia. — A respondentia bond is nearly the same 
 thing in respect to the cargo, which the bottomry bond is in re- 
 spect to the ship ; it is another resource which the master has 
 of raising funds, in eases of necessity, by hypothecating the 
 whole, or j)art of the cargo ; which, if lost, the lender has no 
 claim for repayment. 
 
 An owner of a ship lets it to others to use by an instrument 
 called a charter party. 
 
 Salvage is the compensation earned by persons who have 
 voluntarily assisted in saving a ship or cargo from destruction. 
 
 The ground upon which the liberal compensation usually 
 granted in salvage cases rests is a marine peril, voluntary ser- 
 vice, and success. 
 
 Salvage is never merely pay, or in the nature of 
 •wages ; it is al-ways a reward : the amount being determined 
 by the danger incurred, the skill manifested, the difficulty and 
 duration of the service ; but it is much influenced by the numer- 
 ous precedents in adjudged cases. 
 
 General average. — The rule is that where maritime prop- 
 erty is in peril, and the sacrifice of a part is made for, and causes 
 the safety of the rest, that which is saved contributes to make 
 up the loss of that which is sacrificed ; but the sacrifice must be 
 voluntary and successful. 
 
 Seamen have a lien for their wages on the ship and freight, 
 and it prevails even over a bottomry bond. 
 
 CONSTRUCTION AND INTERPRETATION OF 
 CONTRACTS. — What a contract means is a question 
 of law ; the court, therefore, determines the construction of a 
 contract. 
 
 The principles of construction are much the same at law and 
 in equity. 
 
 So, too, whether the instrument to be construed has a seal or 
 not, the same rules and principles of construction will be ap- 
 plied to it. 
 
 The intention, or to ascertain what the parties them- 
 selves meant or understood, is the first point. Courts 
 will construe as near to this .is rules of law will permit, but 
 cannot adopt a construction of a legal instrument which shall 
 do violence to the rules of language, or to the rules of law. 
 
 A contract which the parties intended to make, but 
 did not make, cannot be set up in the place of one 
 
168 CONTEACTS. 
 
 which they did make, but did not intend to make. 
 
 The same intention must be collected from the same words of 
 a contract in writing, whether with or without a seal. 
 
 General rules of construction. — The subject-matter of 
 the contract is to be fully considered. 
 
 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. 
 
 A construction which would make the contract legal is pre- 
 ferred to one which would have an opposfte effect. 
 
 It is a rule that the whole contract should be consid- 
 ered in determining the meaning of any or of all its 
 parts. 
 
 Another rule requires that the contract should be supported 
 rather than defeated. 
 
 A further rule requires that all instruments should be con- 
 strued " contra jproferentum " — that is, against him who gives or 
 undertakes, or enters into an obligation — unless in the case of 
 the sovereign. 
 
 ISTo precise form of words is necessary, even in a specialty. 
 Even a bond may be made without the words " held and firmly 
 obliged," etc., although they are technical and usual. 
 
 In general, -where clauses are repugnant and incompat- 
 ible, the earlier prevails in deeds and other instruments inter 
 vivos, if the inconsistency be not so great as to avoid the instru- 
 ment for uncertainty ; but in the construction of wills the latter 
 clause prevails, as it is presumed to be a subsequent thought, and 
 the last will of the testator. 
 
 The law frequently supplies by its implications the 
 wants of express agreements between the parties ; but 
 it never overcomes by its implications the express provisions of 
 j)artie8. 
 
 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 ; but if not, in general, pref- 
 erence should be given to the written part. 
 
 Entirety of contracts. — Whether a contract is entire 
 or separable is often of great importance. 
 
 Like most other questions of construction, it depends ujjon 
 the intention of the parties, and this must be discovered in each 
 case by considering the language employed and the subject- 
 matter of the contract. 
 
CONTEACTS. 169 
 
 If the part to be performed by one party consists of several 
 •distinct and separate items, and the price to be paid by the other 
 is apportioned to each item to be performed, or is left to be im- 
 plied by law, such a contract will generally be held to be sev- 
 erable. 
 
 So, where the price to be paid is clearly and distinctly appor- 
 tioned to different parts of what is to be performed, although 
 the latter is in its nature single and entire. 
 
 If the consideration to be paid is single and entire, 
 the contract must be held to be entire, although the sub- 
 ject of the contract may consist of several distinct and wholly 
 independent items. 
 
 Apportionment of contracts. — A contract is said to be 
 apportionable when the amount of consideration to be paid 
 by the one party depends upon the extent of performance by 
 the other. 
 
 When parties enter into a contract by which the amount to 
 be performed by the one, and the consideration to be paid by 
 the other, are made certain and fixed, such a contract cannot be 
 apportioned. 
 
 Courts of justice can only carry into effect such contracts as 
 parties have made. They cannot make contracts for them, or 
 :alter or vary those made by them. 
 
 Conditional contracts. — Whether a contract be condi- 
 tional or not depends not on any formal arrangement of the 
 words, but on the reason and sense of the thing as it is to be 
 collected from the whole contract. > 
 
 No precise words are requisite to constitute a condition. 
 
 Presumptions of la-w. — There are some general ones which 
 may be considered as affecting the construction of contracts. 
 
 Thus, it is a presumption of law that parties to a sim- 
 ple contract intended to bind not only themselves, but 
 their personal representatives, and such parties may sue on 
 the contract, although not named therein. 
 
 It is also a legal presumption that every grant carries with it 
 whatever is essential to the use and enjoyment of 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 pre- 
 sumption of law that the parties intended and agreed that the 
 thing should be done in a reasonable time; but what is a rea- 
 sonable time is a question of law for the court. 
 
170 CONTEACTS. 
 
 The effect of custom or usage is that an established cus- 
 tom may add to a contract stipulations not contained in it ; or- 
 niay control or vary the meaning of the words. 
 
 The common law is every day adopting as rules and principles 
 the mere usages of the community, for ancient, universal, and 
 perfectly established custom is in fact la,w, 
 
 A custom is applicable or has a bearing on a contract, when it 
 is so far established, and so far known to the parties, that it must 
 be supposed that their contract was made in reference to it. 
 
 For this purpose the custom must be established and not cas- 
 ual; uniform and not varying; general and not personal, and 
 known to the parties. 
 
 Custom and usage are not the same thing ; custom is 
 the thing to be proved, and usage is the evidence of the 
 custom. 
 
 Whether a custom exists, is a question of fact ; but in the 
 proof of this fact, questions of law of two kinds may arise : 
 first — whether the evidence is admissible ; and secondly — whether 
 the facts stated are legally sufficient to prove a custom. 
 
 As a general rule, the knowledge of a custom must be brought 
 home to a party who is to be affected by it. 
 
 But no custom, however universal, old or known, unless it has 
 actually passed into law, has any force over parties against their 
 will. 
 
 Hence, in the interpretation of contracts, it is an estab- 
 lished rule that no custom can be admitted -which the 
 parties have seen fit expressly to exclude, for a custom 
 can no more be set up against the clear intention of the parties 
 than against their express agreement ; and no usage can be in- 
 corporated into a contract which is inconsistent with the terms 
 of the contract. 
 
 Where the terms of a contract are plain, usage, even under 
 that very contract, cannot be permitted to affect materially the 
 construction to be placed upon it ; but when it is ambiguous, us- 
 age for a long time may influence the judgment of the court, by 
 showing how it was understood by the original parties to it. 
 
 Admissibility of extrinsic evidence in the interpreta- 
 tion of written contracts. — it is very common for parties to offer 
 evidence external to the contract, in aid of the interpretation of 
 its language. 
 
 The general rule is that such evidence cannot be ad- 
 
CONTEACTS. 171 
 
 mitted to contradict or vary the terms of a valid, writ- 
 ten contract ; or, as the Scotch law expresses it, " -writing^ 
 cannot be cut down or taken away by the testimony of 
 •witnesses." 
 
 When parties, 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 their purpose. 
 
 Where the agreement between the parties is one and entire, 
 and only a part of this is reduced to writing, it would seem that 
 the residue may be proved by extrinsic evidence. 
 
 If there are contemporaneous ^writings between the same 
 parties, so tar in relation to the same subject-matter that they 
 may be deemed part and parcel of the contract, although not 
 referred to in it, they may be read in connection with it. 
 
 It is nevertheless certain that some evidence from without 
 must be admissible in the explanation or interpretation of every 
 contract. 
 
 As to the parties or the subject-matter of a contract, 
 the general rule is that extrinsic evidence may and must be re- 
 ceived and used to make them certain, if necessary for that 
 purpose. 
 
 But as to the terms, conditions, and limitations of the 
 agreement, the written contract must speak exclusively for 
 itself. 
 
 Where the language of an instrument has a settled legal mean- 
 ing, its construction is not open to evidence. 
 
 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 ille- 
 gality in the agreement. 
 
 If no consideration be named, one may be proved. 
 
 A receipt for money is peculiarly open to evidence, as it is ■ 
 otAj prima facie evidence that the sum has been paid. 
 
 Sxperts are persons possessing peculiar knowledge and skill 
 requisite for the interpretation of contracts. 
 
 A patent ambiguity of words is that which appears to be am- 
 biguous upon the deed or instrument; a latent ambiguity is that 
 which seems certain, and without ambiguity, for anything that . 
 appears upon the deed or instrument, but there is some collateral 
 matter out of the deed that breeds the ambiguity. 
 
172 CON^TEACTS. 
 
 If a contract be intelligible, and evidence shows an uncer- 
 tainty, not in the contract, but in its subject-matter or its appli- 
 cation, other evidence which will remove this uncertainty is 
 admissible; but if a contract is not certainly intelligible by 
 itself, it may be said that evidence which makes it so must make 
 a new contract; and, therefore, such evidence is not admissible; 
 but this is subject to some qualification. 
 
 The law will not make, nor permit to be made, for par- 
 ties, a contract other than that which they have made 
 for themselves. 
 
 If the contract which the parties have made is incurably uncer- 
 tain, the law will not, or rather cannot, enforce it ; and will not, 
 on the pretence of enforcing it, set up a different but valid one 
 in its stead ; it will only declare such a supposed contract no 
 contract at all. 
 
 Evidence may explain, but cannot vary or contradict, 
 •written language. 
 
 THE LAW OF PLACE treats of the lex loci contractus, the 
 ■lex domicillii, the lex loci rei sitce, and the lex fori. 
 
 General principles. — Laws have no force by their own 
 proper vigor, beyond the territory of the State by which they 
 are made. 
 
 All laws duly made and published by any State bind all per- 
 sons and things within that State. 
 
 Foreign laws may have a qualified force, or some effect, within 
 a State, either by the comity of nations, or by special agree- 
 ment, as by treaty, or by constitutional requirements, as in case 
 of our own country. 
 
 It is a general principle, founded in the necessities of 
 national intercourse, that a contract vrhich is valid 
 ■where made, is to be held valid everywhere ; and if void 
 or illegal by the law of the place where made, it is void every- 
 where. 
 
 The rule is that personal proj)erty follows the person, and it 
 is not in any respect to be regulated by the situs. 
 
 "Wherever the domicile of the jiroprietor is, there the property 
 is to bo considered as situated. 
 
 The general rule as to the construction of contracts 
 relating to movables is, they are to be construed ac- 
 cording to the law of the place where they are made, 
 or the lex loci contractus, and if they relate to immovables, 
 
CONTEACTS. 173 
 
 or real property, they are to be construed according to the law 
 of the place where the property is situated, or the lex loci rei 
 sitce. 
 
 AW personal contracts are to be construed and applied accord- 
 ing to the law of the place where they were made. 
 
 Domicile. — Every person has in law a home, or domicile ; 
 and every domicile, whether the original or subsequent one, 
 continues until a new one is acquired ; for no person can have 
 more than one domicile at the same time. 
 
 One's domicile, or home, is in the country in which he 
 permanently resides. 
 
 Both fact and intent are necessary to constitute a domicile. 
 
 Of the place of the contract. — If the contract is made 
 in one place to be performed in another, generally speak- 
 ing, the place of performance is the place of the con- 
 tract ; the most common instance of which is that of a prom- 
 issory note. 
 
 But debts have no locus or situs ; they accompany the creditor 
 everywhere, and authorize a demand upon the debtor anywhere. 
 
 But on, the trial, and in respect to all questions as to the forms, 
 or method, or conduct of process, or remedy, the law of the 
 place of the forum is applied. 
 
 A marriage vrhich is valid in the place where it is 
 contracted, is valid everywhere. 
 
 A divorce granted in a State in which both parties had their 
 actual domicile, and also were married, is valid everywhere. 
 
 Generally, every state recognizes the validity of a divorce 
 granted where both parties have their actual domicile, if granted 
 according to the law of that place. 
 
 The principle that questions which have been distinctly se1> 
 tied by litigation shall not be again litigated, has been in many 
 cases extended to foreign judgments. 
 
 DEFENCES. — Payment to an agent in the ordinary course 
 of business binds the principal, unless the latter has previously 
 notified the debtor to pay to himself only. 
 
 So, payment to one's attorney is as eifectual as if made to the 
 principal ; or payment to one's partner. 
 
 Payment to a creditor's wife will not be a good payment 
 unless she was his agent, either expressly or by course of busi- 
 ness. 
 
 One may be justified in making payments to a party who is- 
 
174 COJSTTEACTS. 
 
 . sitting in the creditor's counting-room, apparently intrusted with 
 the transaction of the business, and authorized to receive money, 
 although he be not so in fact. 
 
 Payment by letter, and its risk, depends upon circumstan- 
 ■ ces ; but in general, the debtor is discharged, although the money 
 do not reach the creditor, if he was directed or expressly author- 
 ized by the creditor so to send it, or if he can distinctly derive 
 such authority from, its being the usual course of business; but 
 not otherwise. 
 
 Payment in good bank-bills, not objected to at the time, is a 
 good payment; and so is a tender of such bills; but the creditor 
 may object and demand specie. 
 
 Payment by check is not presumed to be received as 
 an absolute payment, even if the drawer has funds in the 
 bank. 
 
 The holder of the check is not bound by receiving it, but may 
 treat it as a nullity if he derives no benefit from it, provided he 
 has been guilty of no negligence which has caused an injury to 
 the drawer. 
 
 A negotiable promissory note is not payment, unless circum- 
 stances show that such was the intention of the parties. 
 
 A debtor who owes his creditor money on distinct accounts, 
 may direct his payments to be applied to either, as he pleases. 
 
 If the debtor makes no appropriation, the creditor may apply 
 the money as he pleases. 
 
 If neither party makes a specific appropriation of the money, 
 the law will appropriate it as the justice and equity of the case 
 require. 
 
 A general payment must be applied to a prior legal 
 debt, in preference to a subsequent equitable claim. 
 
 In cases of payments which are not made by the debtor vol- 
 untarily, the creditor has no right of appropriation, but must 
 apply the money towards the discharge of all the debts in pro- 
 portion. 
 
 The method of computing interest that generally pre- 
 vails in the case of partial payments is to compute the interest 
 on the principal sum from the time when interest became paya- 
 ble to the first time when a payment, alone, or in conjunction 
 with preceding payments with interest cast on them, shall equal 
 or exceed the interest due on the j)rincipal. Deduct this sum, 
 and cast interest on the balance, as before. In this way pay- 
 
COKTEACTS. 175 
 
 ments are applied first to keep down the interest, and then to 
 diminish the principal of the debt, and the creditor does not 
 Teceive compound interest. 
 
 Performance. — If it be tender of the money, it can be a de- 
 fence only when made before the action is brought, and when 
 the demand is of money, and is definite in amount, or capable of 
 being made so. 
 
 It need not be made by the defendant personally ; if made by 
 a third person, at his request, it is sufficient. 
 
 So it need not be made to a creditor personally ; but it must 
 be made to an agent actually authorized to receive the money. 
 
 The whole sum due must be tendered, as the creditor is not 
 bound to receive a part of his debt. 
 
 To make a tender valid, the money must be actually 
 produced and proffered, and in money made lawful by 
 the State in -which offered. 
 
 The general rule is that the performance must be such as is 
 Tequired by the true spirit and meaning of the contract, and the 
 intention of the parties as expressed therein. 
 
 A partial performance may be a defence pro tanto, or it 
 may sustain an action pro tanto ; but this can be only in cases 
 where the duty to be done consists of parts which are distinct 
 and severable in their own nature, and are not bound together 
 by expressions giving entirety to the contract. 
 
 If the contract specifies no time, the law implies that it 
 shall be performed within a reasonable time, and will not per- 
 mit this implication to be rebutted by extrinsic testimony going 
 to fix a definite time, because this varies the contract. 
 
 What is a reasonable time is generally a question of law. 
 
 That is a reasonable time which preserves to each party the 
 rights and advantages he possesses, and protects each party from 
 losses that he ought not to suff'er. 
 
 Computation of time shall always conform to the intention 
 of the parties, so far as that can be ascertained from the con- 
 tract, aided by admissible evidence. 
 
 If there is nothing in the language or subject-matter of the 
 contract, which clearly indicates the intention of the parties, 
 time should be computed exclusive of the day when the contract 
 was made. 
 
 If the performance of a contract becomes impossible 
 loj contingencies which should have been foreseen and provided 
 
176 COISTTEACTS. 
 
 against in the contract, and still more, if they might have been 
 prevented, the promisor should be held answerable. 
 
 Defences resting upon the acts of the plaintiff. — It is a. 
 good defence to an action on a contract, that the obligation to 
 perform the act required was dependent upon some other thing^ 
 which the other party was to do, and has failed to do. 
 
 In all cases a promisor will be discharged from all liability, 
 when the non-performance of his obligation is caused by the act, 
 or the fault, of the other contracting party. 
 
 Generally, no contract can be rescinded by one of 
 the parties, unless both can be restored to the condition in 
 which they were befbre the contract was made. 
 
 Accord and satisfaction is another defence, and is sub- 
 stantially another agreement between the parties in satisfaction 
 of the former one ; and also an execution of the latter agree- 
 ment. 
 
 It must be advantageous to the creditor ; he must receive from 
 it a distinct benefit, which otherwise he would not have had. 
 
 Arbitrament and award is a somewhat analogous defence. 
 By accord and satisfaction, the parties have agreed as to what 
 shall be done by one to satisfy the claim of the other; by arbit- 
 rament and award, they have agreed to submit the question to 
 third persons. 
 
 This agreement may be made by the parties directly, or 
 through their agency. 
 
 If the award embraces matter not included in the submission, 
 it is fatal. 
 
 An award must be certain, possible, reasonable and 
 final, or conclusive. 
 
 Generally, in the construction of awards, they are favored, 
 and enforced, whenever this can properly be done. 
 
 No special form of an award is necessary in this country. 
 
 An award is prima facie binding upon the parties, and the 
 burden of proof is upon the party Avho would avoid it. 
 
 In general, arbitrators, have full power to decide upon 
 questions of law and fact, embraced in the submission. 
 They have power to decide all questions as to the admission and 
 and rejection of evidence. Their decision upon matters of fact 
 and law, when acting within the scope of their authority, is" 
 conclusive, for they are judges of the parties' own choosing. 
 
 They have not only all the powers of equity, as well as of 
 
CONTEACTS. 177 
 
 law, but nay do what no court could do in giving relief or do- 
 ing justice. 
 
 A release i8 a good defence, whether it be made by the 
 creditor himself, or result from the operation of law. 
 
 Alteration, if it does not vary the meaning of the 
 instrument, or does not affect its operation, is no good 
 reason why it should make the instrument void. 
 
 Generall}-, no immaterial alteration would avoid an instru- 
 ment. 
 
 In the absence of explanation, evident alteration of any in- 
 strument is generally presumed to have been made after the 
 execution of it; and consequently it must be explained by the 
 party who seeks to take advantage from it. 
 
 The pendency of another suit, for the same cause, and 
 between the same parties, is a good cause of abatement of an^ 
 action. 
 
 The general rule of law forbids that a defendant should be 
 harassed by two suits for the same cause at the same time. 
 
 The current of authorities is to the effect that the pendency 
 of an action in a foreign tribunal, although of competent juris- 
 diction, is not good cause of abatement. 
 
 A former judgment on the same matter in issue is a conclu- 
 sive bar ; for the whole jjurpose of the law being to settle ques- 
 tions and terminate disputes, it will not permit a question which 
 has been settled to be tried again. 
 
 Set-off is a mode of defence by which the defendant acknowl- 
 edges the justice of the plaintiff's demand, but sets up a demand 
 of his own against the plaintiff", to counterbalance it in whole or 
 in part ; so the balance only is the debt, and he to whom it is 
 due should sue for that only. 
 
 Set-off is in the nature of a cross-action, and is sub- 
 stituted for that for the purpose of preventing unneces- 
 sary litigation. 
 
 The demand must be due to the party, or the claim must be 
 possessed by him in his own right. 
 
 It must be reasonably certain. In general, demands may be 
 setoff which are for liquidated damages; that is, when their 
 amount is specific, or is directly and distinctly ascertainable by 
 calculation; and also all those which usually may be sued for 
 and recovered under the common counts. 
 
 Illegal contracts. — All contracts which provide that any- 
 
 12 
 
178 COISTTEACTS. 
 
 thing shall be done which is distinctly prohibited by law, or 
 morality, or public policy are void. 
 
 Contracts resting on maintenance, or champerty, are void. 
 
 Fraud, which is the intentional and successful employment of 
 any cunning, decej^tion, or artifice, used to circumvent, cheat, or 
 deceive another, voids every contract, and annuls every trans- 
 action. 
 
 But the fraud must be material to the contract or transaction, 
 which is to be' avoided because of it. 
 
 If the fraud be such that, had it not been practiced, 
 the contract would not have been made, or the transac- 
 tion completed, then it is material to it. 
 
 The fraud must be such as to work an actual injury. ■ 
 
 Though the law cannot lay hold of a merely intended fraud, 
 yet it will recognize as a fraud a statement which is literally 
 true, but substantially false ; for the purpose and effect of the 
 thing will prevail over its form ; as if one asserts that another 
 whom he recommends has property to a certain amount, know- 
 ing all the while that, although he possesses this property, he 
 owes for it more than it is worth. 
 
 It must appear that the injured party not only did in 
 fact rely upon the fraudulent statement, but had a right 
 to rely upon it, in the full belief of its truth. 
 
 If one injures another by statements which he knows to be 
 false, he shall be held answerable, although there be no evi- 
 dence of gain to himself, or of any interest in the question, or 
 of malice, or intended mischief. 
 
 But if the statement be false in fact, and injurious 
 because false, if it were believed to be true by the party 
 making it, it is not a fraud on his part. 
 
 A party may rescind a contract on the ground of fraud, but 
 if he would do so he must do it at once on discovering the fraud, 
 or a delay would be regarded as a waiver of his right. 
 
 The law never presumes fraud. 
 
 Material misrepresentations, which go to the sub- 
 stance of a contract, avoid that contract, whether they 
 are caused by m'istake, and occur wholly without fault, or are 
 designed and fraudulent. 
 
 ESTOPPELS. — In general, an estoppel is an admission or 
 declaration, which the law does not permit him who has made it to 
 deny or disprove for his own benefit, and to the injury of another. 
 
CONTEACTS. 179 
 
 Estoppel by record. — The general rule is that no man shall 
 te permitted to make any averment which contradicts the rec- 
 ord of that wherein he was a party. 
 
 Sstoppel by deed. — The general rule is a party to a bond, 
 ■or to an indenture, or to a deed of conveyance, can deny noth- 
 ing which the bond in its condition or the indenture or deed of 
 conveyance in their recitals aver. 
 
 But the seal has no longer the solemnity or force which it 
 once had. 
 
 In most American courts the recital in a deed of the payment 
 of money, or consideration clause, may be denied, the object of 
 the deed being to transfer the title, and not to state the terms 
 of the purchase. 
 
 The general operation of the deed being untouched, evidence 
 varying the consideration may be received. 
 
 There is no estoppel which shall prevent a party from saying 
 that a deed is inoperative and void. 
 
 Estoppel in pais, or an estoppel in fact, is one which does 
 not spring from a record, or from a deed, but is made to appear 
 io the jury (who are " the country") by competent evidence. 
 
 The rule that the consideration of negotiable paper cannot be 
 inquired into, excepting as between immediate parties, is founded 
 ■upon this principle of estoppel. 
 
 Another estoppel in pais, of an analogous character, is that 
 vrhen a man has made a declaration or representation, or caused, 
 or, in some cases, not prevented, a false impression, or done some 
 significant act, with intent that others should rely and act there- 
 on, and upon which others have honestly relied and acted, he 
 shall not be permitted to prove that the representation was 
 false, or the act unauthorized or ineffectual, if injury would oc- 
 cur to the innocent party who had acted in full faith in its truth 
 or validity. 
 
 The whole law of estoppel may seem to rest only on 
 the ground that the laiTir will not permit a party to profit 
 l)y his own fraud ; and upon fraud, actual or constructive, 
 most of the cases do certainly rest. 
 
 The whole doctrine of estoppels in pais originated in courts of 
 equity, and passed from them into courts of law. 
 
 THE STATUTE OF FRAUDS passed in the twenty- 
 ninth year of Charles II, was intended as an effectual preven- 
 tion of all the more common frauds practiced in society. 
 
180 CONTEACTS. 
 
 The fourth and seventeenth sections affect the law of con- 
 tracts. 
 
 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 o^vn es- 
 tate; or whereby to charge the defendant upon any special 
 promise to answer for the debt, default, or miscarriages of an- 
 other person ; or to charge any person upon any agreement 
 made upon consideration of marriage; or upon any contract for 
 the 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 agreement upon which such action shall be brought, or 
 some memorandum or note thereof shall be in writing, and 
 signed by the party to be charged therewith, or some other per- 
 son thereunto by him lawfully authorized." 
 
 The seventeenth section enacts that "no contract for 
 the sale of any goods, wares, or merchandise, for the price of 
 ten pounds sterling, or upwards, shall be allowed to be good, 
 except the buyer shall accept part of the goods so sold, and ac- 
 tually receive the same, or give something in earnest to bind the 
 bargain, or in part payment, or that some note or memorandum 
 in writing of the said bargain be made and signed by the par- 
 ties to be charged by such contract, or their agents thereunto 
 lawfully authorized." 
 
 If the agreement be not itself signed, but a letter al- 
 luding to and ackowledging the agreement is signed, 
 this is sufficient. 
 
 Where one is in the habit of using instruments with his name 
 printed in them, this will be his signature. 
 
 And so if he writes it in pencil. 
 
 The agreement need not be signed by both parties, but only 
 by him who is to be charged by it. 
 
 By the early decisions of the English courts, since abundantly 
 confirmed, it was settled in that country the consideration must 
 be expressed, but in this country in some of the States the judi- 
 cial decisions have not only denied this, but the statutes have ex- 
 pressly declared the statement of the consideration unnecessary. 
 
 Of the form of the agreement, it need only be said that it 
 must be adequately expressive of the intent and obligation of 
 the parties. 
 
CONTEACTS. 181 
 
 If a contract be in its nature entire, and in one part it 
 satisfies the statute, and in others does not, then it is 
 altogether void ; but if these parts are severable, then 
 it may be good in part and void in part. 
 
 STATUTE OF LIMITATIONS.— The statute 21 James 
 I. c. 16, enacted, among other things, that all actions of account, 
 and upon the ease, other than such accounts as concern the 
 trade of merchandise between merchant and merchant, their 
 factors or servants, all actions of debt grounded upon any lend- 
 ing, or contract without specialty, actions of debt for arrearages 
 ■of rent, should be commenced and sued within six years next 
 after the cause of such actions or suit, and not after. 
 
 Any tribunal which enquires into the validity of a claim must 
 admit that its age is among the elements which determine the 
 probabity of its having a legal existence and obligation. 
 
 The statute proceeds upon the expediency of refusing to en- 
 force a stale claim, whether paid or not, and not merely on the 
 probability that a stale claim has been paid ; and this expediency 
 is the actual basis of the law of limitations. 
 
 The natural presumption is that claims which have 
 been long neglected are unfounded, or at least are no 
 longer subsisting demands ; and this presumption the statute 
 has erected into a positive bar. 
 
 New promise. — The law is not entirely settled as to what 
 constitutes a new promise, which removes the bar of the stat- 
 ute. 
 
 Without taking into consideration the act requiring the new 
 promise to be in writing, we may draw from the decisions on 
 the subject, the following conclusions as established by law, the 
 most general of which are that there must be either an express 
 promise, or an acknowledgment expressed in such words, and 
 attended by such circumstances as give to it the meaning, and 
 therefore the force and effect of a new promise. 
 
 It is not necessary that the acknowledgment should 
 be of any precise amount, but if there be an admission of 
 any debt, and of legal liability to pay it, evidence may be con- 
 nected with this admission, to show the amount; and even if 
 the parties differ as to the amount, an admission of the debt 
 may remove the bar of the statute. 
 
 But the acknowledgment must not be of a mere general in- 
 debtedness. 
 
182 CONTRACTS. 
 
 An acknowledgment to revive a debt should in fact amount- 
 to, or imply, a promise to pay it. 
 
 Part payment of a debt has always been held to take it out 
 of the statute, the six years being counted from such payment. 
 
 If a debtor owes his creditor several debts, some of 
 which are barred by the statute of limitations, and some are 
 not, and pays a sum without appropriating it to any particular 
 debt, although the creditor can appropriate the sum so paid to 
 the debts that are barred, he cannot thereby take them out of" 
 the operation of the statute. 
 
 Payment cannot revive the debt unless it be made by one 
 who had authority to bind the debtor; thus, a payment by a wife, 
 without sjDecifie authority from the husband, does not revive the 
 debt as to him. 
 
 If the debt consists of principal and interest, a payment on 
 account of either will take the whole residue of both out of the 
 statute. 
 
 And if there be mutual accounts, and a balance be 
 struck, it has been held that this converts the items allowed 
 into a part paj^ment, to take the case out of the statute. 
 
 The authorities are against the power of one to bind 
 others who ■were formerly partners virith him, by his ac- 
 knowledgment of a barred partnership debt. 
 
 The period of limitation begins to run, in general, from 
 the period when the creditor could have commenced, 
 his action. 
 
 Thus, if a credit is given, the six years begin when the credit 
 expires; and if the monej- be payable on the happening of a 
 certain event, the six years begin from the happening of the- 
 event. 
 
 If a demand be necessary to sustain an action, only 
 after it is made does the statute begin. 
 
 But a note, payable '' on demand," is due always, and the 
 statute begins as soon as the note is made. 
 
 The statute begins to run whenever the creditor or plaintiff 
 could bring his action, and not when he knew he could ; thus it 
 is said that if one promises to pay when able, as soon as he is. 
 able, the statute runs, although the creditor did not know it. 
 
 If the action rests on a breach of contract, it accrues a» 
 soon as the contract is broken, although no injury result from 
 the breach till afterwards. 
 
CONTEACTS. 183 
 
 If money be payable by instalments, the statute begins 
 to run as to each instalment from the time when it becomes due. 
 
 £is:ceptions. — The statute of James provides that if the 
 plaintiff, at the time when the cause of action accrues, is within 
 the age of twenty-one years, /erne covert, non compos mentis, im- 
 prisoned, or beyond seas, he may bring his action at any time 
 within six years after the disability ceases or is removed ; hence 
 the statute does not begin to run in such cases until after the 
 disability is removed. 
 
 In general, if the statute begins to run, its operation can not 
 afterwards be arrested. Thus, if the disability should not ex- 
 ist when the cause of action arose, but should begin one month 
 afterwards, and remain, as if the creditor should go abroad and 
 not return, the statute runs in the same waj- as if the disability 
 never existed. • 
 
 In cases of fraud, the prevailing rule prevents the six years 
 from beginning to run, even at law, until the fraud is discovered 
 by the plaintiff. 
 
 The statute affects the remedy only, and not the debt ; 
 for it only declares that " no action shall be maintained," and 
 not that the cause of action is made void. 
 
 Hence, although the remedy by action is lost, a lien is not 
 lost; therefore, if one hold a note, against which the statute has 
 run, and also a mortgage or pledge of real or personal property, 
 to secure it, he cannot sue the note, but he can take or hold pos- 
 session of the property and sell it, if it be personal, with proper 
 precautions ; or have a bill in equity to foreclose his mortgage. 
 
 INTEREST AND USURY.— Usury is the taking of 
 more interest for the, use of money than the law allows. 
 
 The law affects a usurious contract with two consequences; 
 one is the avoidance of the contract; the other is the penalty 
 for the breach of the law. 
 
 The penalty is not incurred until usurious interest be in some 
 way paid or received, although the contract may be avoided for 
 this cause at any time. 
 
 If a contract is accidentally usurious, that is, made so by some 
 mistake in calculation, or other error in fact, against the inten- 
 tion of the parties, the mistake may be corrected and the con- 
 tract saved. 
 
 Contracts for compound interest are sometimes said to 
 be usurious, but courts do not generally declare such contracts 
 
184 COISTTEACTS. 
 
 usurious ; the extent to wliieh they have gone is that of refusing 
 to enforce a contract to pay interest thereafter to grow due, un- 
 less upon a promise of the debtor made after the interest, upon 
 which interest is demanded has accrued. 
 
 Of late years, the aversion of law to allow money to heget 
 money, has very much diminished ; and probably a bargain in 
 advance for the payment of compound interest, in all its facts 
 reasonable and free from suspicion of oppression, would be en- 
 forced in court. 
 
 And it is now held that interest may be charged upon interest 
 from the time it is jJayable. 
 
 DAMAGES. — The common lavr does not aim at prevent- 
 ing a breach of duty, or compelling fulfillment of a contract by 
 direct means. This equity does. 
 
 As a general rule, the common lavr contents itself 
 with requiring him who has done an injury to another 
 to pay the injured party damages. 
 
 The principle which measures damages, at common law, is that 
 of giving compensation for the injury sustained — a compensa- 
 tion which shall put the injured party in the same position in 
 which he would have stood had he not been injured. 
 
 Liquidated damages. — The law will permit parties to de- 
 termine, by an agreement which enters into the contract, what 
 shall be the damages which he who violates the contract shall 
 pay to the other ; but it does not always sanction or enforce the 
 bargain they may make on this subject. 
 
 Damages thus agreed upon beforehand, when sanctioned 
 by the law, are called liquidated damages. 
 
 Where the parties make this agreement, but not in such wise 
 that the law adopts it, then the damages thus agreed upon are a 
 penalty, or in the nature of a penalty. 
 
 Where parties agree upon the damages to be paid for a breach 
 of contract, whatever name they give it, they do substantially 
 the same thing which is done by a bond, with penalty. And 
 there is no more reason why the courts should regard the agree- 
 ment, if it opposes reason and justice, in the one case than in 
 the other. 
 
 It is, therefore, a rule that the action of the court shall not 
 be defined and determined by the terms which the parties have 
 seen fit to apply to the sum fixed upon. Though thoy call it a 
 penaltj-, or give it no name at all, it will be treated as liquidated 
 
CONTEACTS. 185 
 
 damages — that is, it will be recognized and enforced as the 
 measure of damages, if, from the nature of the agreement and 
 the surrounding circumstances, and in reason and justice, it ought 
 to be. 
 
 And, although they call it liquidated damages, it will be treated 
 as a penalty, if, from a consideration of the whole contract, it 
 appears that the parties intended it as such. 
 
 Courts, then, are generally guided by the intentions of the par- 
 ties in determining whether the sum contracted to be paid upon 
 the non-performance of a covenant is to be considered as liqui- 
 dated damages, to be enforced according to the terms of the 
 agreement, or as a penalty to be controlled by an assessment of 
 damages by a jury. 
 
 The principle of compensation is that which lies at 
 the foundation of the common-law measurement of 
 damages. 
 
 And this is not the less true, although there are difficulties in 
 the application of this principle, and exact and adequate com- 
 jjensation is seldom the result of a law suit. Thus, the expenses 
 of reaching this result, as counsel fees and the like, and the 
 labor and anxiety even of successful litigation, are not often 
 compensated. 
 
 The bodily pain resulting from an injury is always to be con- 
 sidered in estimating damages. 
 
 Exemplary or vindictive damages are such where, after 
 a jury have gone to the full length of adequate compensation for 
 the whole injury sustained by the plaintiff, the law authorizes 
 them to begin anew, and add to these damages something more, 
 by way of punishment to the defendant ; hence, such damages 
 exceed the measure of legal compeiisation. 
 
 "Vindictive" has been used as descriptive of these damages; 
 but " exemplary " is much better. 
 
 Exemplary damages are such as go beyond a compensation or 
 satisfaction for the plaintiff's injury. 
 
 From all injuries the law implies that damages are sustained. 
 
 Exemplary damages are generally confined to actions 
 ex-delicto. 
 
 The court must state, as matter of law, in what kinds or 
 classes of cases such damages may be given; the jury may then 
 ■decide whether the case before them is of that kind or class. 
 
 Direct or remote consequences. — Damages will not, in 
 
186 CONTEACTS. 
 
 general, be given for the consequences of wrong-doing, wliick 
 are not the natural consequences, because it is only for them that- 
 the defendant is held liable. 
 
 It is an ancient and universal rule, resting upon obvious rea- 
 son and justice, that a ■wrong-doer shall be held responsi- 
 ble only for the proximate, and not for the remote con- 
 sequences of his actions — the maxim being. Injure, non re- 
 mota causa sed proxima spedatur. 
 
 It is a general principle, that every defendant shall be 
 held liable for all of those consequences which might 
 have been foreseen and expected as the result of his 
 conduct, but not for those which he could not have foreseen,, 
 and was therefore under no moral obligation to take into con- 
 sideration. 
 
 No action for damages will lie, unless an actual injury is either 
 sustained, or inevitable; damages being a compensation for 
 some actual injury sustained. 
 
 I^ominal damages are given where a wrong is done, but no 
 actual injury sustained. 
 
 In an action for a breach of contract, the breach, but not ac- 
 tual damage, being proved, nominal damages will be awarded. 
 
 If no actual injury has been sustained beyond that which the 
 verdict and judgment will themselves correct, and the ease does 
 not call for exemplary damages, the jury would then be directed 
 to give nominal damages, that is, a sum of insignificant value,, 
 but called damages. 
 
 LIEN is a right to hold possession of another's prop- 
 erty, for the satisfaction of some charge attached to it. 
 
 The essence of this right is possession. 
 
 Jjien is neither a jus ad rem nor a jus in re, but a simple right, 
 of retainer. 
 
 It is a universal rule that a prior lien gives a prior 
 claim, which is entitled to prior satisfaction out of the 
 subject it binds. 
 
 Liens exist by common law, or are created either by usage, 
 by statute, or by express agreement of parties. 
 
 Continuance of possession being indisijensable to the exists- 
 ence of liens at law, an abandonment of the custody of the prop- 
 erty over which the right extends divests the lien. 
 
 In general, a lien confers no power to sell, even where the- 
 keeping would be attended with expense; but where the de- 
 
CONTEACTS. 187' 
 
 posit is by way of security for a loan, the lender, it seems, may 
 sell TipoR default of payment. 
 
 Taking other security for the debt will discharge a lien upon 
 personal property. Security, however, may be received under 
 such special circumstances as not to operate as a waiver of the 
 lien. 
 
 As a general proposition, there can be no lien where credit is 
 given. 
 
 Under ordinary circumstances, a lien is merged in a purchase 
 of the property by the person holding possession under his lien. 
 
 1^0 tortious possession can give a lien. 
 
 The usual cases in which the law creates a lien are 
 where the person performing services would have no 
 other sure remedy. 
 
 An attachment on mesne process does not exactly correspond 
 to a lien ; it is only a contingent conditional charge until the 
 judgmeni and levy. The goods attached are in the custody of 
 the law for the benefit of all parties concerned, and the plaintiff 
 has not a lien on them. 
 
 Squitable liens are such which exist only in equity, as ven- 
 dor's and vendee's lien in sales of real estate, lien by deposit of 
 deeds, partnership liens and liens pendente lite. 
 
 A vendor's lien on land holds for any part of the pur- 
 chase money which remains unpaid, against all persons 
 except a purchaser for a valuable consideration with- 
 out notice. 
 
 REMEDY IN EQUITY, OR SPECIFIC PERFORM- 
 ANCE. — Courts of law can give no other remedy for 
 breach of contract than damages, but courts of equity com- 
 pel the party in fault to a specific performance of his under- 
 taking. 
 
 The true purpose of equity is not to violate the law, but to- 
 fulfill its purpose by supplying those wants which render its ad- 
 ministration of its own principles imperfect. 
 
 Equity has always preferred and professed to follow 
 the law 
 
 In decreeing specific performance equity does but carry out 
 the principles of the common law, giving that remedy which the 
 courts of common law would give if their mode of administering- 
 justice were adapted to the case. 
 
 The most general rule which lies at the foundation of an 
 
188 CONTEACTS. 
 
 equitable decree for specific performance, and to whicli all other 
 rules are or should be subordinate, is that this equity arises 
 vrhenever a contract is broken vrhicli was binding at 
 law, and the remedy at law is plainly inadequate. 
 
 It is only where the legal remedy is inadequate or defective 
 that it becomes necessary for courts of equity to interfere. 
 
 In general, all the rules of construction and of evi- 
 dence in equity are the same as at la'w, although they may 
 be applied with greater freedom to the special merits of each 
 case. 
 
 A rule of frequent occurrence in equity applies to many cases 
 in which specific performance is sought: viz, that equity will 
 consider that as done which ought to have been done. 
 
 The general purpose of equity is to moderate the rigor of law 
 and supply its deficiencies, and bring it into harmony with con- 
 science and moral justice. 
 
 Equity fully adopts the rule that no contract shall be enforced 
 which does not rest upon a valuable consideration, but construes 
 and applies it somewhat more rationally and less technically. 
 
 Generally, equity affords relief by enforcing the specific per- 
 formance of any written contract, without reference to its subject- 
 matter. 
 
 Effect of the statute of frauds in equity upon con- 
 tracts. — In this country it is the prevailing rule that a part 
 performance of an oral contract takes it out of the operation of 
 the statute of frauds. 
 
 La^v gives no relief 'where the mistake is one of law, 
 or one arising from ignorance of law. 
 
 It was once intimated that the maxim " Ignorantia legis nemi- 
 nem excusat " apj^lied only to crimes and public offences, but it is 
 now agreed that it is of equal force in civil cases at law. "Whether 
 this rule has equal force in equity may not be quite so certain. 
 It seems that equity gives relief in mistakes of law, where law 
 would not, for courts generally may be regarded as having con- 
 clusively established the rules, subject, jserhaps, to some qualifi- 
 cations in particular cases. 
 
 A contract cannot, in general, be rescinded for an innocent 
 mistake, if the rescission will work an injustice to either party, 
 or, in other words, if both parlies cannot be replaced substan- 
 tially in their former condition. 
 
 BANKRUPTCY AND INSOLVENCY— It is settled 
 
CONTEACTS. 18»- 
 
 that the United States and the several States have a 
 concurrent power to enact a bankrupt law or an insolv- 
 ent law. 
 
 The several states may pass laws on this subject when there is 
 no national law. 
 
 But a national law of this kind supersedes and suspends every 
 state law. 
 
 In bankruptcy and insolvency, although the word "assignee" 
 is used, it is inaccurate, as the property is transferred by the law 
 and not by the owner, who is the only party who can assign. 
 
 It is the purpose of the insolvent lavrs to give to the 
 creditors all they could take by attachment or levy, so 
 it gives them nothing more. 
 
 Contracts, considered in relation to their substance^ 
 are either commutative or independent, principal or accessory. 
 
 Commutative contracts are those in which what is done^ 
 given or promised by one party is considered as equivalent to,, 
 or in consideration of, what is done, given or promised by the 
 other. 
 
 Independent contracts are those in which the mutual acts. 
 or promises have no relation to each other, either as equivalents 
 or as considerations. 
 
 A principal contract is one entered into by both parties, 
 on their accounts, or in the several qualities they assume. 
 
 An accessory contract is made for assuring the perform- 
 ance of a prior contract, either by the same parties or by oth- 
 ers, such as suretyship, mortgage, and pledges. 
 
 Eminent domain. — The law or right of eminent domain is 
 the right reserved by a State or the government to resume the 
 possession of property, or any part of it, whenever it shall be 
 wanted for the use of the State ; priyment or compensation being 
 made, or adequately provided for by law, for all that is thus re- 
 sumed. 
 
 This is then a right reserved and possessed by the public, and 
 a right which extends over all property. 
 
 If there be no public necessity, there is no public right ; and 
 land taken by the sovereign without such necessity, although 
 for compensation, is unlawfully taken. 
 
 "Whatever a citizen of this country owns, he holds in the same 
 way as if he could trace his title back to an original granlf from 
 the sovereign or State. 
 
PLEADINGS: 
 
 INCLUDINa 
 
 PARTIES TO ACTIONS, 
 
 AND 
 
 FORMS OF ACTIONS. 
 
 ABRIDaED. 
 
192 PLBADHSTGS. 
 
 ANALYSIS. 
 
 Parties to actions. 
 
 In form ex contractu. 
 
 Plaintiffs. 
 
 Defendants. 
 In form ex delicto. 
 
 Plaintiffs. 
 
 Defendants. 
 
 Forms of action, in general, viz : real, personal, and mixed. 
 In form ex contractu. 
 
 Action of Assumpsit. 
 
 " Debt. 
 
 " " Covenant. 
 
 " " Detinue. 
 
 In form ex delicto. 
 
 Action on the Case. 
 " of Trover. 
 " " Replevin. 
 " " Trespass. 
 
 Action of Ejectment. 
 Action for mesne profits. 
 Mistake in form of action. 
 Joinder of actions. 
 Election of actions. 
 
 Pleading, in general. 
 
 The facts necessary to be stated. 
 
 Mode of stating fects. 
 
 Rules for construing pleadings. 
 
 Division of pleadings. 
 
 General requisites or qualities of a plea. 
 . The declaration. 
 
 General requisites or qualities of. 
 
 Parts and particular requisites of. 
 
 Conusance or cognizance of a suit. 
 
 Oyer. 
 
 Lnparlance. 
 Pleas Dilator}' and Peremptory. 
 
 Pleas in abatement. 
 
 Pleas ill bar. 
 
 Defences to actions on contracts not under seal. 
 
 Pleas by several defendants. 
 
 Pleas of set-off. 
 Beplications. 
 
 Parts of, viz : commencement, body, and conclusion- 
 Denying a particular fact. 
 
 New Assignment. 
 
 Qualities of. 
 
 Departure. 
 Rejoinder, sur-rejoinder, rebutter, etc. 
 
 Issue. 
 Repleaders. 
 Demurrers. 
 Defects in pleading. 
 
 Intendment. 
 
 Cured by verdict. 
 
PLEADINGS. 19a 
 
 PLEADnTGS. 
 
 PLEADING is the statement, in a logical and legal 
 form, of the facts which constitute the plaintiff's cause 
 of action, or the defendant's ground of defence. — Ghitty, 
 
 Pleadings are the mutual altercations between the plaintiff and 
 defendant, reduced to writing. — Blackstone. 
 
 Pleadings are the proceedings, from the declaration to the issue 
 j oin ed. — Wharton. 
 
 PARTIEIS TO ACTIO^Tiii. 
 
 The general rule is, that the action should be brought in 
 the name of the party whose legal right has been af- 
 fected, against the i^arty who committed or caused the injury, 
 or by or against his personal representative. 
 
 In general, courts of law do not directly recognize mere equi- 
 table rights, but leave them to the protection of courts of equity. 
 That rule, however, j)revails more strictly as regards real prop- 
 erty than with respect to injuries to the person or personal property. 
 
 ACTIONS IN FORM EX CONTRACTU.— Plaintiffs. 
 In general, the action on a contract, whether express or implied,. 
 or whether by parol, or under seal, or of record, must be brought 
 in the name of the party in whom the legal interest in such con- 
 tract was vested, and, in general, with his knowledge and concur- 
 rence, or at least a sufficient indemnity must be tendered before 
 his name can properly be used by the party beneficially inter- 
 ested. 
 
 The right of action at law has been vested solely in the 
 party having the strict legal title and interest, in exclusion of 
 the mere equitable claim. 
 
 13 
 
194 PLEADIl^GS. 
 
 In simple contracts, or instruments not under seal, it seems 
 to be a general principle that the party for whose sole benefit it 
 is evidently made may sue thereon in his own name, although 
 the engagement be not directly to or with him. 
 
 In the case of bills of exchange and promissory notes 
 there is an option of plaintiff that might be considered an excep- 
 tion to the general peremptory rule that the right of suing can 
 only be in one person or set of persons : viz, that a party to a bill 
 may, by arrangement between the parties, be the plaintiff, 
 although the bill at the time be in the rightful possession of an- 
 other party to the bill. 
 
 The action against a carrier for loss of goods sent by a 
 vendor to a vendee must, in general, be brought in the name of 
 the latter, and not of the consignor, because the law implies that 
 by the delivery to the carrier, the goods became the property of 
 the consignee, and at his risk, subject, of course, to the unpaid 
 vendor's right of stoppage in transitu. 
 
 A mere servant or agent with whom a contract is ex- 
 pressly made on behalf of another, and who has no direct bene- 
 ficial interest in the transaction, cannot, in general, support an 
 action thereon. 
 
 But when an agent has any beneficial interest in the perform- 
 ance of the contract, as for commissions, etc., or a special prop- 
 erty or interest in the subject-matter of the agreement, he may 
 support an action in his own name u.pon the contract, as in the 
 case of a factor, broker, warehouseman, carrier, auctioneer, etc. 
 
 When the contract was made with several persons, 
 whether it were under seal, or in writing but not under seal, or 
 by parol, if their legal interest were joint, they must all, if living, 
 join in an action, in form ex contractu, for the breach of it, 
 though the covenant or contract with them was in terms joint 
 and several. 
 
 The reason assigned why all should join is that when 
 the interest is joint, if several were permitted to bring several 
 actions for one and the same cause, the court would be in doubt 
 for which of them to give judgment. 
 
 But vrhen the legal interest and cause of action of 
 the covenantees are several, each may and should sue sep- 
 arately for the particular damages resulting to him individually, 
 a,lthough the covenant be in its terms joint. 
 
 It is improper, as well in equity as at law, for a party to be 
 
PLEADINGS. 195 
 
 joined in a suit who has neither legal nor beneficial interest in 
 its subject-matter. 
 
 Where a covenant is made with two or more parties 
 to pay them money for themselves or for the use of another, it 
 is not correct to use the name of one only of the covenantees, 
 although the others have omitted to execute the deed. Where 
 joint covenantees may join, they must do so. 
 
 In the case of partners it is a general rule that all the 
 members of the firm should be the plaintiffs in an action upon a 
 contract made with the firm, nor can any private arrangement 
 by the firm, that one only of the partners shall bring the action, 
 give him a right to sue alone. 
 
 In the case of dormant partners, not privy to the contract, 
 it seems that the other members of the firm may omit their 
 3iame8 in an action. 
 
 If tenants in common (who hold by distinct titles) jointly 
 demise premises, reserving an entire rent, they may, and per- 
 haps should, join in an action to recover it; but if the rent be 
 Teserved to them separately in distinct parts, they must sue 
 separately. 
 
 Joint tenants, unlike tenants in common, have a unity of 
 iiitle and interest, in respect of which they must jointly sue upon 
 a contract relating to the estate, which is made by or enures to 
 the benefit of all. 
 
 Parceners, for the same reason, must join in an action ex 
 contractu which relates to their tenements. 
 
 The consequences of a mistake in omitting to join a party 
 who ought to have been made a plaintiff in an action ex contractu, 
 or in adding a party improperly in such an action, are extremely 
 serious. 
 
 The general rule is that the omission of proper parties as 
 3)laintiffs in cases of contract may be taken advantage of at the 
 trial under the general issue ; and if it appear on the face of the 
 pleadings, it is fatal on demurrer, or on motion in arrest of 
 judgment, or on error; and though the objection may not ap- 
 pear on the face of the pleadings, the defendant may avail him- 
 ■self of it, either by a plea in abatement or as a ground of nonsuit. 
 
 If there be a legal ground for omitting to use the 
 name of one of several covenantees as a plaintiff, as his death, 
 etc., it is necessary to show such excuse for the nonjoinder in 
 ihe declaration. 
 
196 PLEADINGS. 
 
 Where a party with whom a bond, simple contract, or other 
 mere personal contract was made, has assigned his interest therein 
 to a third person, the latter cannot, in general, sue in his own 
 name, the interest in and remedy upon personal contracts being 
 choses in action, which are not in general assignable at law, so as 
 to give the assignee a right of action in his own name, but he 
 must proceed in that of the assignor, or, if he be dead, in the 
 name of his personal representative. 
 
 There are many instances in 'which, by express legis- 
 lative provision, the assignee of a chose in action may 
 sue in his O'wn name to enforce the recovery of the demand. 
 The operation of the bankrupt and insolvent act is to this effect. 
 
 By the custom of merchants the assignee or transferee of 
 a bill of exchange or check on a banker may sue thereon in his 
 own name. 
 
 "When one or more of several obligees, covenantees, partners, 
 or others having a joint legal interest in the contract, dies, the 
 action must be brought in the name of the survivor, and the ex- 
 ecutor or administrator of the deceased must not be joined, nor 
 can he sue separately, though the deceased alone might be enti- 
 tled to the beneficial interest in the contract, and the executor 
 must resort to a court of equity to obtain from the survivor the 
 testator's share of the sum recovered; but if the interest of the 
 covenantees were several, the executor of one of them may sue, 
 though the other be living. 
 
 In the case of a mere personal contract, or of a covenant not 
 running with the land, if it were made only with one person, and 
 ho be dead, the action for the breach of it must be brought in 
 the name of his executor or administrator in whom the legal in- 
 terest in such contract is vested. 
 
 But on a covenant relating to realty, as for good title on a 
 deed of conveyance, an executor cannot sue even for a breach in 
 the lifetime of his testator without showing some special damage 
 to the personal estate of the latter, but the action must be brought 
 in the name of the heir or devisee. 
 
 If an executrix or administratrix marry, she and her 
 husband should join for the breach of any personal contract made 
 with the deceased ; but if she sue alone, the defendant cannot 
 avail himself of the nonjoinder except by a plea in abatement; 
 and when a bond or other contract is made to husband and wife 
 as executrix, he may sue alone. 
 
PLEADINGS. 197 
 
 When an executor dies after lie has proved the vrill, 
 
 his executor, or the executor of such executor, is the party to 
 Bue on the contract made with the original testator, provided the 
 money to be recovered would be the assets of the representative 
 of the original testator himself; and the same rule applies in the 
 case of the death of an administrator of the intestate. If the 
 money to be recovered would be assets of the original testator, 
 then, in case of the death of his first representative, administra- 
 tion de bonis non must be obtained, and the defendant sued ac- 
 cordingly. 
 
 In the case of bankruptcy, the legal rights of the bank- 
 rupt, arising from contracts made with him, and in the perform- 
 ance whereof the bankrupt is beneficially interested, are, by the 
 express provisions of the Bankrupt Act, transferred to and 
 vested in his assignees, who may recover the same in their own 
 names. There are cases, however, in which the bankrupt may 
 .sue as trustee for his creditors. 
 
 In the case of insolvency, the Insolvent Debtor's Act 
 directs that the prisoner shall, at the time of petitioning for 
 relief, assign all the estate and effects he is then possessed of, and 
 all future eff'ects which may come to him, before he shall become 
 entitled to his discharge, to the provisional assignee of the court; 
 and that it shall be lawful for the provisional assignee to sue in 
 his own name, if the court shall so order, for the recovering, ob- 
 taining and enforcing of any estate, debts, eff'ects, or rights of 
 any such prisoner. 
 
 The effect of marriage, at least in courts of laio, is to de- 
 prive the wife of all separate legal existence, her husband and 
 herself being in law but one person. 
 
 It is therefore a general rule, that she cannot, during the mar- 
 riage, maintain an action without her husband; either upon 
 contracts made by her before or after marriage, although they 
 may bo living apart under the provisions of a formal deed of 
 separation, or by virtue of a divorce a mensa et thoro for 
 adultery. 
 
 The exceptions are in the instance of a divorce a vinculo mat- 
 rimonii, or where the husband is dead in law. 
 
 All chattels personal of the wife in possession are by 
 marriage absolutely given to the husband, and for the recovery 
 of them he may sue alone; and it is a general principle "that 
 that which the husband may discharge alone, and of which he 
 
198 PLEADINGS. 
 
 may make disposition to his own use, for the recovery of this h& 
 may sue without his wife." 
 
 As mere choses in action of the wife do not by the marriag& 
 vest absolutely in the husband until he reduce them in posses- 
 sion, and if not reduced into possession, she would take them 
 by survivorship. In general, he cannot sue alone, but must join 
 his wife in all actions upon bonds, and other personal contracts 
 made with the wife before the marriage, whether the breach 
 were before or during coverture; and also for rent or any other 
 cause of action accruing before the marriage, in respect of the 
 real estate of the wife. 
 
 "When the wife is executrix or administratrix, as her interest 
 is in autre droit, the husband must, in general, join in an 
 action. 
 
 In general, the wife cannot join in an action upon a 
 contract made during the marriage, as for her work and 
 labor, goods sold, or money lent by her during that time ; for 
 the husband is entitled to her earnings, and they shall not sur- 
 vive to her, btit go to the personal representatives of the hus- 
 band, and she could have no property in the money lent or the 
 goods sold. 
 
 But when the wife can be considered as the meritorious cause 
 of action, as of a bond or other contract under seal, or a prom- 
 issory note, be made to her separately, or with her husband, or 
 if she bestow her personal labor and skill in curing a wound 
 etc., she may join with the husband, or he may sue alone. 
 
 Where the wife is joined in the action, in these cases, the dec- 
 laration must distinctly disclose her interest, and show in what 
 respect she is the meritorious cause of action, and there is no 
 intendment to this effect. 
 
 For rent, or other cause of action, accruing during the mar- 
 riage, or a lease or demise, or other contract, relating to the land 
 or other real property of the wife, whether such contract were 
 made before or during the coverture, the husband and wife may 
 join, or he may sue alone. 
 
 If the husband survive, there is a material distinction be- 
 tween chattels real and choses in action. The husband is entitled 
 to the chattel real by survivorship, and to all rent, etc., accruing 
 during the coverture; and also to all chattels given to the wife 
 during the coverture, in her own right. 
 
 But mere choses in action, or contracts made with the wife be- 
 
PLEADINGS. 199 
 
 fore coverture, do not survive to the husband, and he must, to 
 recover the same, sue as administrator of his wife. 
 
 If the wife survive, she is entitled to all chattels real which 
 her husband had in her right, and which he did not dispose of 
 in his life-time, and to arrears of rent, etc., which became due 
 during the coverture, upon her antecedent demise, or upon their 
 joint demise, during the coverture to which she assents after his 
 death, and to all arrears of rent and other choses in action to 
 which she was entitled before the covertures, and which the hus- 
 band did not reduce into actual possession. 
 
 The consequences of a mistake in the proper parties, in 
 the case of baron and feme, are, that when a married woman 
 might be joined in the action with her husband, but sues alone,, 
 the objection can only bo pleaded in abatement, and not in bar,, 
 though the husband might sustain a writ of error, and if she 
 marry after writ, and before plea, her coverture must be pleaded 
 in abatement, and cannot be given in evidence under the general 
 issue. 
 
 But when a, feme improperly sues alone, having no legal rio-ht 
 of action, she will be nonsuited; and if she improperly join in 
 an action with her husband, who ought to sue alone, the defend- 
 ant may demur, or the judgment will be arrested, or reversed on 
 a writ of error. 
 
 And if the husband sue alone, when the wife ought to be joined, 
 either in her own right, or in autre droit, he will be nonsuited; 
 or if the objection appear on the record, it will be fatal in arrest 
 of judgment, or on error. 
 
 DEFENDANTS. — In general, the action upon an express 
 contract, whether it be by deed or merely in writing, or by parol, 
 must be brought against the party who made it, either in person or 
 by agent. 
 
 A party who expressly contracts, and permits credit to 
 be given to him, is liable, although he were not the strict legal 
 owner of the property in respect of which the contract is made, 
 nor beneficially interested. 
 
 Difficulties frequently occur in deciding who should be made 
 the defendant in an action upon a promise created or implied by 
 law from a particular state of facts. In this case it must be 
 ascertained who is the party subject to the legal liabil- 
 ity, for he is the person who should be sued. 
 A mere equitable or moral obligation to pay a demand 
 
200 PLBADING-S. 
 
 is, in the absence of an express promise, insufficient to support 
 an action. 
 
 A contract made by an agent, as such, is, in law, the con- 
 tract of the principal ; the general rule, therefore, is that when 
 a person has contracted, in the capacity of an agent, and that 
 circumstance is known at the time to the person with whom he 
 contracts, such agent is not liable to an action for non-perform- 
 ance of the contract, even for a deceitful warranty, if he had 
 authority from his principal to make the contract. 
 
 If an agent covenant under seal for the act of another, 
 though he describe himself in the deed as contracting for and 
 on the part and behalf of such other person ; or if he accept or 
 draw a bill of exchange generally and not as agent, he is per- 
 sonally liable, unless in the case of an agent on behalf of gov- 
 ernment. 
 
 In general, where an agent enters into a written agree- 
 ment as if lie were the principal, and the credit is given to 
 him, he is j)ersonally liable ; but this liability must be collected 
 from the instrument upon a reasonable exposition of the whole 
 of its terms. 
 
 Where the agent does not, at the time the contract is made, 
 disclose that he is acting merely as an agent, and the principal 
 is unknown, the latter may, when discovered, be sued upon the 
 agreement. 
 
 But the principal is not liable upon the contract of his agent, 
 if the other party to the agreement, with full knowledge of 
 the facts, and the power and means of deciding to whom he will 
 give credit, elect to give credit to the agent only, in his individ- 
 ual character. 
 
 At law, one partner or tenant in common cannot in 
 general sue his co-partner, or co-tenant, in any action in 
 form ex contractu ; but must proceed by action of account, or by 
 bill in equity. 
 
 It is an answer to an action that a partj' is legally interested in 
 each side of the question. A party cannot be both plaintiff and 
 defendant in an action. If, therefore, one of the plaintiffs be 
 also a member of the firm against which the action is brought, 
 upon a contract entered into by the firm, the action shall fail, 
 although the other partners only be sued. 
 
 A lunatic is liable for goods suitable to his rank, sup- 
 plied to him upon a contract which a person, not aware of his 
 infirmity, bona fide enters into with him. 
 
PLEADINGS. 201 
 
 The rule is, that several persons contracting together 
 
 -with the same party, for one and the same act, shall bo regarded 
 as jointly and not individually or separately liable, in the absence 
 of any express words to show that a distinct as well as entire 
 liability was intended to fasten upon the promisers. This rule 
 is more particularly obvious in the case of promises mplied by 
 law. 
 
 Where there are several parties, if their contract be joint, 
 they must all be made defendants, although they subsequently 
 arrange amongst themselves that one only of them shall per- 
 form the contract. 
 
 Where the covenant or promise is so framed that it does not 
 confer upon the plaintiff a remedy against the contractors jointly, 
 but each is only separately responsible for his own act, it is es- 
 sential to sue them distinctly ; but where it appears upon an in- 
 strument that a promise by two contractors was intended to be 
 Joint, it may be treated as such, although the promise be in terms 
 several only. 
 
 When the contract is several as •well as joint, the plain- 
 liif is at liberty to proceed against the parties jointly or each 
 separately, though their interest be joint. But if there be more 
 Ihan two parties to a joint and several contract, as where three 
 obligors are jointly and severally bound, the plaintiff must either 
 sue them all jointly or each of them separately. 
 
 fn general, -when a contract is joint and several, if the 
 debt be considerable, it is most advisable to proceed separately, 
 so that the creditor may thereby retain his legal remedies 
 against each, in case of death of one or more of the parties. 
 
 Courts of law, as well as equity, will not take cognizance of 
 distinct and separate claims or liabilities of different persons in 
 suit, though standing in the same relative situations; therefore, 
 in an action ex contractu against several, it must appear on the 
 face of the pleadings that their contract was joint, and that fact 
 m.ust also be proved on the trial. 
 
 Mis-joinder in an action founded on a contract. If too 
 many persons be made defendants, and the objection ap- 
 pear on the pleadings, either of the defendants may demur, 
 m.ove in arrest of judgment, or support a writ of error; and 
 even if the objection do not appear upon the pleadings, the 
 plaintiff may be nonsuited upon the trial if he fail in proving a 
 joint contract. 
 
202 PLEADING-S. 
 
 The consequences of the joinder of too many defen- 
 dants in an action founded on a contract are in general so im- 
 portant, it is advisable in cases where it is doubtful how many 
 parties are liable, to proceed only against those defendants wha 
 are certainly liable ; in which ease non-joinder can only be taken 
 advantage of by a plea in abatement. 
 
 In general, in the case of a mere personal contract, 
 the action for the breach of it cannot be brought against a per- 
 son to whom the contracting party has assigned his interest, and 
 the original party alone can be sued. 
 
 There may, however, in some cases be a change of credit, by 
 agreement between the parties, so as to transfer the liability 
 from the original contracting party to another, or to one only 
 of the original parties. 
 
 In the case of a joint contractor, if one of the parties die, his- 
 executor or administrator is at law discharged from liability, 
 and the survivor alone can be sued ; and if the executor be sued, 
 he may either plead the survivorship in bar, or give it in evi- 
 dence under the general issue j but in equity the executor of 
 the deceased party is liable, unless in some instances of a 
 surety. 
 
 If the contract were several, or joint and several, the 
 executor of the deceased may be sued at law in a separate ac- 
 tion ; but he cannot be sued jointly with the survivor, because 
 one is to be charged de bonis testatoris, and the other de bonis 
 propriis. 
 
 When the contracting party is dead, his executor or ad- 
 ministrator, or in case of a joint contract, the executor or ad- 
 ministrator of the survivor, is the party to be made defendant, 
 and is liable, though not expressly named in the covenant' or 
 contract. 
 
 If the contract is under seal (or of record), the heir of the 
 party contracting is liable to an action for the breach of an ex- 
 press covenant therein ; provided the ancestor expressly bound 
 himself" and his heir," by the deed or obligation ; and provided 
 the heir have legal assets by descent from the obligor. 
 
 When the contracting party has become bankrupt, and 
 has obtained his certificate, he is in general no longer liable to 
 be sued in respect of any debt due from him when he became 
 bankrupt, or of any claim or demand which the creditor might, 
 have proved under the commission. 
 
PLEADINGS. 20a 
 
 By the insolvent act an insolvent complying with the req- 
 uisitions of the act is to be discharged by the court from his 
 liabilities. 
 
 In general, a feme covert cannot be sued alone at law ; 
 
 and when a feme sole, who has entered into a contract, marries, 
 the husband and wife must be jointly sued. 
 
 When the husband survives, he is not liable to be sued in 
 that character for any contract of thefeme made before covert- 
 ure, unless judgment had been obtained against him and his wife 
 before her death ; if she die before judgment, the suit will abate. 
 
 But if the husband neglects, during her life, to reduce her 
 choses in action into possession, the creditor may sue the person 
 who administers thereto, ibr debts due before her marriage, and 
 for rent accruing during the coverture ; or for money due upon 
 a judgment obtained against husband and wife he may be sued 
 alone as the survivor. 
 
 In case the ■wife survive, she may be sued upon all her un- 
 satisfied contracts made before coverture. 
 
 If the husband be sued alone upon the contract of his wife 
 before coverture, and the objection aj)j)ear upon the face of the 
 declaration, the defendant may demur, move in arrest of judg- 
 ment, or bring a writ of error. If the contract were misde- 
 scribed as being that of the husband, the plaintiff would be 
 nonsuited under the general issue at the trial, upon the ground 
 of variance between the contract stated in the declaration and that, 
 proved. But if the wife be sued alone upon her contract be- 
 fore marriage, she must plead her coverture in abatement, or a 
 writ of error coram nobis must be brought; and the coverture in 
 such case cannot be pleaded in bar, or given in evidence upon 
 the trial as a ground of nonsuit ; and if she marry pending an 
 action against her, it will not abate, but the plaintiff may pro- 
 ceed to execution without noticing the husband. But if a feme- 
 covert be sued upon her supposed contract made during covert- 
 ure, she may in general plead the coverture in bar, or give it in 
 evidence under the general issue, or under non est factum, in the 
 case of a deed. And if the husband and wife be improperly 
 sued jointly on a contract after marriage, the action will fail 
 as to both. 
 
 ACTIONS IN FORM EX-DELICTO.— Plaintiffs.— The 
 action for a tort must, in general, be brought in the name of the 
 person whose legal right has been affected, and who was legally- 
 
204 PLEADINGS. 
 
 interested in the property at the time the injury was committed. 
 
 A cestui que trust, or other person, having only an equitable 
 interest, cannot, in general, sue in the courts of common law 
 -against his trustee, or even a third person, unless in cases where 
 the action is against a mere wrong-doer, and for an injury to the 
 actual possession of the cestui que trust. 
 
 Many of the rules and instances which have been stated in 
 respect to the person to be made the plaintiff in actions in form 
 ex-contractu, here also govern and are applicable. 
 
 Actions in form ex-delicto, are for injuries to the absolute or 
 relative rights of persons, or to personal or real property. 
 
 With respect to injuries to the relative rights of per- 
 sons, in the case of master and servant, the master may sue 
 alone for the battery of, or for debauching, his servant, although 
 they are not related, where there is evidence to prove a conse- 
 quent loss of service ; and a father may sue for the seduction of 
 his daughter, although she was married, provided some loss of 
 service can be j)roved. 
 
 The wife, the child, and the servant, having no legal interest 
 in the person or property of the husband, or parent, or master, 
 cannot support an action for an injury to them. 
 
 The action for an injury to the absolute rights of per- 
 sons, as for assaults, batteries, wounding, injuries to the health, 
 liberty, and reputation, can only be brought in the name of the 
 party immediately injured ; and if he die, the remedy deter- 
 mines. 
 
 The absolute or general owner of personal jJroperty, having 
 also the right of immediate possession, may, in general, support 
 an action for any injury thereto, although he never had the act- 
 ual possession. 
 
 An action for an injury to personalty may also be 
 brought in the name of the person having only a special prop- 
 erty or interest of a limited or temporary nature therein. But 
 in this case, the general rule seems to be that the party should 
 have had the actual possession. 
 
 There are cases in which a party having the bare possession of 
 goods, which is prima facie evidence of property, may sue a mere 
 wrong-doer who takes or injures them, allhough it should ap- 
 pear that the plaintiff has not the strict legal title^ there being 
 no claim by the real owner, and the defendant having no right 
 -or authority from him. 
 
PLEADINGS. 205- 
 
 The person in possession of real property corporeal,. 
 whether lawfully or not, may sue for an injury committed by a 
 stranger, or by any person who cannot establish a better title ; 
 and in trespass to land, the person actually in possession, though 
 he be only a cestui que trust, should be the plaintiif and not the' 
 trustee. But the rule is otherwise in ejectment, which is an 
 action to try the right; and the fictitious demise must be in 
 the name of the party legally entitled to the possession, al- 
 though the beneficial interest may be in another, and accord- 
 ing to the strict nature of the right; thus, tenants in common 
 cannot join but must sever, in separate demises, in a declara- 
 tion in ejectment. 
 
 When two or more persons are jointly entitled, or- 
 have a joint legal interest in the property affected, they must, in 
 general, join in the action, or the defendant may plead in 
 abatement. 
 
 Several parties cannot, in general, sue jointly for injuries to- 
 the person — as for slander, battery, pr false imprisonment of 
 both — but each must bring a separate action. 
 
 In actions for injuries to personal property, joint tenants and 
 tenants in common must join, or the defendant may plead in 
 abatement; but parties haying several and distinct interests 
 cannot, in general, join. 
 
 In actions for injuries to real property, joint tenants and par- 
 ceners must join in real as well as personal actions, or the non- 
 joinder may be pleaded in abatement. 
 
 Of the consequences of non-joinder in actions, in form 
 ex delicto which are not for the breach of a contract, the rule is 
 that if a party who ought to be joined be omitted, the objection 
 can only be taken by plea in abatement, or by way of appor- 
 tionment of the damages on the trial ; and the defendant can- 
 not, as in actions in form ex contractu, give in evidence tho- 
 non-joinder, as a ground of non suit, on the plea of a general 
 issue, or demur, or move in arrest of judgment, or support a 
 writ of error, although it appear upon the face of the declara- 
 tion or other pleading of the plaintiff that there is another party 
 who ought to have joined. 
 
 The consequences of mis-joinder. — If too many persons 
 be made co-plaintiffs the objection, if it appear on the record, 
 may be taken advantage of, either by demurrer, in arrest of 
 judgment, or by writ of error ; or if the objection do not appear- 
 
206 PLEADINGS. 
 
 on the face of the pleadings, it would be a ground of nonsuit 
 on the trial. 
 
 We have seen that choses in action ex contractu are not in gen- 
 eral assignable at law, so as to enable the assignee to sue in his 
 own name ; the same rule prevails in case of injuries ex delicto, 
 either to the person or to personal or real property. 
 
 When one or more of several parties jointly inter- 
 ested in the property at the time the injury was com- 
 mitted, is dead, the action should be in the name of the sur- 
 vivor, and the executor or administrator of the deceased cannot 
 be joined, nor can he sue separately. But if the parties had 
 separate interests in respect of which they might have severed 
 in suing, the personal representative of the deceased may main- 
 tain a separate action, pr jvided the tort was not of suc'i a nature 
 that it died with the person. 
 
 We have seen that the right of action for the breach of a con-' 
 tract upon the death of either party, in general, survives to and 
 against the executor and administrator of each; but in the case 
 of torts, when the action must be in form ex delicto, for the re- 
 covery of damages, and the plea not guilty, the rule at common 
 law was otherwise; it being a maxim that actio personalis mori- 
 tur cum persona. By statute this rule has been altered in rela- 
 tion to personal property , and in favor of the personal representa- 
 tive of the party injured ; but if the action can be framed in form 
 ex contractu, this rule does not apply. 
 
 In the case of injuries to the person, whether by assault, 
 battery, false imprisonment, slander, or otherwise, if either party 
 who received or committed the injury die, no action can be sup- 
 ported, either by or against the executors or other personal 
 representatives. 
 
 So, also, with resjoeet to injuries to real property, if either party 
 die, no action in form ex delicto could be supported either by or 
 against his personal representatives. But statutes have intro- 
 duced a material alteration in the common law doctrine, as well 
 in favor of executors and administrators of the party injured, as 
 against the personal representatives of the party injured, but 
 respects only injuries to personal and real property, and subject 
 to certain restrictions as regards the commencement of an action 
 for such injury within a short time after the death, and declaring 
 that the damages to be recovered from an executor or adminis- 
 trator shall be ranked or classed with simple contract debts. 
 
PLEADINGS. 207 
 
 In case of bankruptcy, when the injury consists in the un- 
 lawful detention of any part of the bankru^Dt's real or personal 
 property, the assignees may bring actions for the purpose of 
 Tecovering the jjossession or value thereof; but for mere per- 
 sonal torts to the bankrupt, no right of action passes to the as- 
 signee. 
 
 In case of insolvency, the rules upon this subject ajppear 
 to be analogous to those in case of bankruptcy. 
 
 In the case of marriage, the wife having no legal interest 
 in the person or property of her husband, cannot, in general, 
 join with him in any action for an injury to them, except in an 
 action for a joint malicious prosecution of both, in which they 
 may join in respect of an injury to both, or the husband may 
 sue alone for the injury to himself and expenses of defense. 
 
 For injuries to the person, or to the personal or real 
 ■property of the v^ife, committed before the marriage, when 
 the cause of action would survive to the wife, she hi Msf join in 
 the action, and if she die before judgment therein, it will aljate. 
 
 But in detinue to recover personal chattels of the wife, in the 
 possession of the defendant before the marriage, perhaps the 
 husband must sue alone, because the law transfers the property 
 to him. 
 
 When an injury is committed to the person of the wife, during 
 coverture, the wife cannot sue alone in any case ; and the hus- 
 band and wife must join if the action be brought for the personal 
 suffering or injury to the wife, and in such case the declaration 
 ought to conclude to their damage, and not that of the husband 
 alone ; for the damages will survive to the wife if the husband 
 die before thej' are recovered. 
 
 With respect to personal property, when the cause of 
 action had only its inception before the marriage but its com- 
 pletion afterwards ; as in ease of trover before marriage and 
 conversion during it, or of rent due before marriage, and a res- 
 cue afterwards, the husband and wife may join, or they may 
 sever in trover or trespass. In detinue, it seems the husband 
 should sue alone. 
 
 When the cause of action has its inception, as -well as comple- 
 tion, after the marriage, the husband must sue alone. 
 
 In real actions for the recovery of the land of the wife, and 
 in a writ of waste thereto, the husband and wife must join ; but 
 for damages or a tort, the husband may sue alone. 
 
208 PLEADINGS. 
 
 If the husband survive, he may maintain an action of 
 trespass, etc., for any injury in regard to tlie person or property 
 of the wife, for which he might have sued alone during the 
 coverture. 
 
 If the wife survive, any action for a tort committed to her- 
 personally, or to her goods or real property before marriage, or 
 to her personal or real property during coverture, will survive 
 to her. 
 
 The consequences of a mistake in the proper parties in 
 the case of husband and wife, seem to be nearly the same in ac- 
 tions in form ex delicto, as in those ex contractu. 
 
 DEFENDANTS. — In personal or mixed actions, in form ex 
 delicto, the person committing the injury, either by himself or 
 his agent, is, in general, to be made the defendant; but real ac- 
 tions can only be supported against the claimant of the freehold. 
 
 The general rule is, that all persons are liable to be 
 sued for their own tortious acts, unconnected with, or in 
 disaffirmance of, a contract. 
 
 It is a clear general rule that corporations are liable to be sued 
 as such, in case or trover for any torts they may cause to be 
 committed; and corporations and incorporated companies may 
 be sued in that character, for damages arising from the breach 
 by them of a duty imposed by law. 
 
 An action cannot be mairrtained against a judge or justice of 
 the peace, acting jiidt'ciaZZi/ in a matter within the scope of his 
 jurisdiction, although he may decide erroneously; nor against a, 
 juryman, attorney -general, or a superior military or naval officer,, 
 for an act done in the execution of their respective offices. 
 
 With regard to joint tenants and tenants in common 
 of realty, the general rule appears to be that ejectment will 
 lie by one against the other oxAj in the case of an actual ouster j 
 and after a recovery in such action, trespass for mesne profits 
 may be brought. So, trespass will lie where there has been a. 
 total destruction of the subject-matter of the tenancy in common. 
 
 With respect to a tenancy in common of a chattel, the 
 rule is that one tenant in common cannot sue his co-tenant if he 
 merely take the chattel away; for in law the possession of one 
 is the possession of both, and each has e<j[ually a right to take 
 and retain such possession. But if one of the tenants in com. 
 mon destroy, misuse, or spoil the chattel, the other may main- 
 tain an action at law. 
 
PLEADINGS. 20& 
 
 If a third person collude with one partner in a firm to injure 
 the other partners in their joint trade, the latter may maintain 
 a joint action against the person so colluding. 
 
 All persons who direct or order the commission of a 
 trespass, or the conversion of personal property, or assist 
 upon the occasion, are in general liable as principals, though not 
 benefited by the act. 
 
 On principles of public policy a sheriff is liable civilly for the 
 tortious acts of his under-sheriff, in the course of the execution 
 of their duties. 
 
 The distinctions with regard to the liabilities of the owners of 
 animals, are important, particularly as they affect the form of the 
 action. 
 
 The owner of domestic or other animals, not naturally 
 inclined to commit mischief, as dogs, horses, oxen, etc., is not 
 liable for any injury committed by them to the person or per- 
 sonal property, unless it can he shown that he had previous 
 notice of the animal's mischievous propensities, or that the 
 injury was attributable to some other neglect on his part;, 
 and though notice can be proved, the action must be case, and 
 not trespass. 
 
 The liability to an action in respect of real property may be 
 for misfeasance, or malfeasance, or for nonfeasance. In these 
 cases the action should, in general, be against the party who did 
 the act complained of, or against the occupier, and not against 
 the owner, if the premises were in possession of his tenant, un- 
 less he be covenanted to repair. 
 
 An agent, or servant, though acting bona fide under the direc- 
 tions and for the benefit of his employer, is personally liable to 
 third persons for any tort or trespass he may commit in the ex- 
 ecution of the orders he has received. 
 
 An attorney, acting bona fide and professionally, may not be 
 personally liable in cases where he does not exceed the line of 
 his duty. 
 
 It is an established rule that an action does not lie against a 
 steward, manager, or agent, for damage done by the negligence 
 of those employed by him in the service of his principal, but the 
 principal, or those actually employed, alone can be sued. 
 
 There are some torts which in legal consideration 
 may be committed by several, and for which a joint ac- 
 tion may be supported against all the parties. Thus spirit 
 
 14 
 
210 PLEADINGS. 
 
 action may be brought against several for a malicious prosecu- 
 tioHj assault and battery, publishing a libel, etc. ; but if in legal 
 consideration the act complained of could not have been committed 
 by several persons, and can only be considered the tort of the 
 actual aggressor, or the distinct tort of each, a separate action 
 against the actual wrong-doer only, or against each, must be 
 brought. Therefore a joint action cannot be supported against 
 two for verbal slander, etc. 
 
 The consequences of mis-joinder or non-joinder. — If 
 several persons be made defendants jointly, where the tort could 
 not, in point of law, be joint, they may demur, and if verdict be 
 taken against all, the judgment may be arrested or reversed on a 
 writ of error ; but the objection may be aided by the plaintiffs 
 taking a verdict against only one ; or if several damages be as- 
 sessed against each by entering a nolle prosequi as to one after 
 verdict and before judgment. 
 
 In other cases where in point of fact and of law several per- 
 sons might have been jointly guilty of the same offence, the joinder 
 of more persons than were liable in a personal or mixed action 
 inform ex delicto, constitutes no objection to a partial recovery, 
 and one of them may be acquitted, and a verdict taken against 
 the others. 
 
 On the other hand, if several persons jointly commit a tort, 
 the plaintiff in general has his election to sue all or some of the 
 parties jointly, or one of them separately, because a tort is in its 
 nature a separate act of each individual. 
 
 In actions in form ex delicto, against one only, for a 
 tort committed by several, he cannot plead the non-joinder of 
 the others in abatement or bar, or give it in evidence under the 
 general issue ; for a plea in abatement can only be adopted in 
 those cases where regularly all the parties must be joined, and not 
 where the plaintiff may join them all, or not, at his election. 
 
 This rule applies only in actions for torts, strictly unconnected 
 with contract. 
 
 A recovery against one of several parties who jointly committed 
 a tort, precludes the plaintiff from proceeding against any other 
 party not included in such action. 
 
 As in the case of a breach of a covenant, so in that of torts, 
 the assignee of the estate is not liable for an injury resulting 
 from any nuisance, or wrongful act, committed thereon before he 
 came to the estate ; but if he continue the nuisance, he may be 
 sued for such continuance. 
 
PLEADINGS. 211 
 
 At common law, upon the death of the wrong-doer, 
 
 the remedy for torts unconnected with contracts in general, de- 
 termines ; and, until statutory provision, no action could be sup- 
 ported against the executor or administrator of the party who 
 committed the injury. Many of the preceding observations on 
 tbe rule actio personalis moritur cum persona, in its relation to the 
 death of plaintiffs are equally applicable to the case of the death 
 of the wrong-doer. 
 
 For injuries to the person, if the wrong-doer die before 
 judgment, the remedy determines, and there is no instance of 
 an action having been supported for such injuries against his 
 j)ersonal representatives. 
 
 In general, also, no action in form ex delicto could, before 
 statutory provision, be supported against an executor for an in- 
 jury to personal property committed by his testator. 
 
 For injuries to real property no action in form ex delicto could, 
 in general, be supported against the personal representatives of 
 the wrong-doer; but a court of equity will frequently afford 
 relief against the executor of the wrong-doer. 
 
 The bankrupt act does not contain any provision enabling 
 a i^erson injured by any personal tort, committed by the bank- 
 rupt before his bankruptcy, to obtain remuneration from the 
 funds of the bankrupt, which become vested in the assignees for 
 the benefit of the creditors. 
 
 The same rule holds in the case of an insolvent, as in the in- 
 stance of a bankrupt, with regard to a claim for damages for a 
 tort committed by tbe insolvent. 
 
 In case of marriage, action for torts committed by a woman, 
 before her marriage, must be brought against the Jiusband and 
 -wife jointly. So also for torts committed by the wife during 
 coverture. But the plaintiff cannot in the same action proceed 
 also for slander or other tort committed by the husband alone j 
 nor can the husband and wife be sued jointly for slander by both. 
 
 The consequences of mistake, in the cases of haron and 
 feme are if the wife be sued alone for her tort before or after 
 marriage, she must plead her coverture in abatement, and can- 
 not otherwise take advantage of it ; but if the husband and wife 
 be sued jointly for torts^ of which they could not in law be 
 jointly guilty, as for slander by both, if the objection appear on 
 the face of the declaration, the defendant may demur, move in 
 a.rrest of judgment, or support a writ of error. 
 
212 PLEADINGS. 
 
 FOKMS OF ACTIONS. 
 
 It is no longer necessary, as formerly, to state the 
 whole cause of action and form of complaint in the ■writ, 
 
 yet it is still necessary for -the practitioner to decide on the 
 proper /or»i of action to be adopted, and to state it, though very 
 concisely, in the writ, and which form of action must afterwards 
 be adhered to in the declaration, or the latter will be set aside 
 for irregularity. 
 
 Actions are, from their subject-matter, distinguished into real^ 
 personal, and mixed. 
 
 Real actions are for the specific recovery of real 
 property only, and in which the plaintiff, then called the de- 
 fendant, claims title to lands, tenements, or hereditaments, in 
 fee-simple, fee-tail, or term for life — such as writs of right, for- 
 medon, dower, etc. 
 
 Personal actions are for the recovery of a debt or 
 damages, for the breach of a contract, or a specific personal 
 chattel, or a satisfaction in damages for some injury to the per- 
 son, personal or real property. 
 
 Mixed actions partake of the nature of the other two, 
 the plaintiff proceeding for the specific recovery of some real 
 property, and also for damages for an injury thereto. 
 
 Personal actions are in form ex contractu — in other words, 
 for breach of contract; or, ex delicto, for wrongs unconnected 
 with contract. 
 
 Actions ex contractu, or upon contracts, are principally as- 
 sumpsit, debt, covenant, and detinue. 
 
 Actions ex delicto, or for wrongs or iorte,, are case, trover, 
 replevin, and trespass, vi et armis. 
 
 ACTIONS IN FORM EX CONTRACTU.— Assumpsit 
 is an action for the recovery of damages for the non- 
 performance of a parol or simple contract, or, in other 
 words, a contract not under seal, nor of record. It is not sus- 
 tainable, however, unless there has been an express contract, or 
 unless the law will imply a contract. 
 
 It is not judicious to adopt this form of action where the 
 plaintiff may declare in tort in cases where, by suing ex contractu, 
 the right of set-off may attach. 
 
 The general issue or most general plea in this action, is non- 
 assumpsit. 
 
PLEADINGS. 213 
 
 Debt is an action so-called because it is in legal consider- 
 ation for the recovery of a debt eo nomine and in nu- 
 mero, and though damages are in general awarded for the de- 
 tention of the debt, in most instances they are merely nominal. 
 
 It is a more extensive remedy for the recovery of 
 money than assumpsit or covenant, for assumpsit is not 
 sustainable upon a specialty, and covenant does not lie upon a 
 contract not under seal ; whereas debt lies to recover money due 
 upon legal liabilities, or upon simple contracts, express or im- 
 plied, written or verbal, and upon contracts under seal, or of 
 record, on statutes by a party grieved, or by common informer; 
 and whenever the demand is for a sum certain, or capa- 
 Tjle of being reduced to a certainty. 
 
 Though debt lies, as a general rule, for a sum certain, yet it is 
 the proper remedy for a penalty imposed by statute, though the 
 amount is uncertain, and is to be fixed by the court between 
 ■certain sums. 
 
 The action of debt cannot be supported for a debt 
 payable by installments till the whole of them be due, 
 though for rent payable quarterly, or otherwise, or for an an- 
 nuity, or on stipulation to pay a certain amount on one day, and 
 a certain amount on another, debt lies on each default, and 
 even where one sum is payable by installments, if the payment 
 be secured by a penalty, debt is sustainable for such penalty. 
 
 Formerly the plea of the general issue in this action was nil 
 debet. But now in actions of debt on simple contract, other than 
 on bills of exchange and promissory notes, the defendant pleads 
 " that he never was indebted in manner and form as in the decla- 
 ration alleged," etc. ; in debt on specialty, the plea denying the 
 execution of the deed set out in the declaration, is non est fac- 
 tum; and to debt on record, nul tiel record. 
 
 Covenant is an action and remedy provided by law for 
 the recovery of damages for the breach of a covenant 
 or contract under seal. 
 
 Covenant and debt are concurrent remedies for the 
 recovery of any money demand, where there is an express or 
 implied contract in an instrument under seal to pay it; but in 
 general, debt is the preferable remedy, as in that form of action 
 the judgment is final in the first instance, if the defendant do 
 not plea 
 
 Covenant is the peculiar remedy for the non-performance of a 
 
214 PLEADINGS. 
 
 contract made under seal, where the damages are unliquidated,, 
 and depend in amount on the opinion of the jury, in which casfr 
 neither debt nor assumpsit can be supported. 
 
 The usual plea in this action is performance with leave, etc. 
 
 Detinue is the action and only remedy by suit at Isnr 
 for the recovery of a personal chattel in specie, except 
 in those instances where the party can obtain possession by re- 
 plevying the same, and by action of replevin. 
 
 This action is somewhat peculiar in its nature, and it may be 
 difficult to decide whether it should be classed amongst forms of 
 action ex contractu, or should be ranked with actions ex delicto. 
 
 The right to join detinue -with debt, and to sue in detinue 
 for not delivering goods in pursuance of the terms of a bailment 
 to the defendant, seem to afford ground for considering it rather 
 as an action ex contractu, than an action of tort. 
 
 On the other hand, it seems that detinue lies, although the de- 
 fendant wrongfully became the possessor thereof in the first in- 
 stance, without any relation to any contract. 
 
 This action is only sustainable for the recovery of a 
 specific chattel, and not for real property. The goods for 
 which it is brought must be distinguishable from other property, 
 and their identity ascertainable by some certain means, so that 
 if the plaintiff recover, the sheriff may be able to deliver th& 
 goods to him. 
 
 It seems to be a general rule that the plaintiff must have a 
 general or special property in the goods, at the time the action 
 was commenced, in order to maintain detinue. 
 
 The gist or main point of this action is the wrongful 
 detainer, and not the original taking. 
 
 In pleading it is usual to state that the defendant acquired the 
 goods hy finding, except where he is declared against as a bailee; 
 — yet that allegation is not traversable ; and it was observed 
 in a case, that, if detinue could not be supported because the 
 original taking was tortious, a person might be greatly injured, 
 and have no adequate remedy; for in trover damages only can 
 be recovered, and the thing detained may be of such a descrip- 
 tion that a judgment merely for damages would be an inadequate 
 satisfaction. 
 
 With respect to the pleadings in this action, more certainty is 
 necessary in the description of the chattels than in an action of 
 trover or replevin. 
 
PLEADINGS. . 215 
 
 The plea of the general issue in this action is non detinet. 
 
 This action is now not much used, having given place to that 
 of trover in practice. 
 
 ACTIONS IN FORM EX DELICTO.— Personal actions 
 in form ex delicto, and which are principally for the redress of 
 wrongs unconnected with contract, are case, trover, replevin, 
 and trespass vi et armis. 
 
 Mised actions are ejectment, waste, etc. 
 
 If the injury he forcible, and occasioned immediately by the act 
 of the defendant, trespass vi et armis is the proper remedy; but 
 if the injury be not in legal contemplation forcible, or not direct 
 and immediate on the act done, but only consequential, then the 
 remedy is by action on the case. 
 
 Injuries ex delicto are in legal consideration committed 
 with force, as assaults, batteries, etc., or without force, as slander, 
 etc. They are also either immediate and direct or mediate and 
 consequential. 
 
 Force is in legal consideration either implied by law or actual; 
 force is implied in every trespass, quare clausum f regit. 
 
 The distinction is material; an injury is considered immediate 
 when the act complained of itself, and not merely a consequence 
 of that act, occasions the injury. 
 
 But where the damage or injury ensued not directly from the 
 act complained of, it is termed consequential or mediate, and can- 
 not amount to a trespass. 
 
 Where the act occasioning an injury is unlawful, the intent of 
 the wrong-doer is immaterial. 
 
 It is a general rule that if a party be in the prosecution of a 
 legal act an action does not lie for an injury resulting 
 from an inevitable or unavoidable accident which occurs 
 without any blame or default on his part. 
 
 Action on the case lies generally to recover damages 
 for torts not committed vrith force, actual or implied ; or 
 having been occasioned by force, where the matter affected was 
 not tangible, or the injury was not immediate, but consequential, 
 in which cases trespass is not sustainable. 
 
 Case is the proper remedy for an injury to the absolute rights 
 of persons not immediate, but consequential, also for injuries to 
 the relative rights of persons, except where really committed 
 with force, when trespass is the proper remedy. 
 
 For injuries to personal property, not committed with 
 
216 PLBADI»"G-S. 
 
 force or not immediate, or where the plaintiif 's right thereto is 
 in reversion, case is also the proper remedy. 
 
 Where there is an express promise and a legal obligation re- 
 sults from it, then the plaintiff's cause of action is most accu- 
 rately described in assumpsit, in which the promise is stated as 
 the gist of the action. 
 
 But where from a given state of facts the law raises a legal 
 obligation and a consequential damage, there, although assump- 
 sit may be maintainable upon a promise implied by law to do 
 the act, still an action on the case founded in tort is the 
 more jiroj^er form of action, in which the plaintiif in his declara- 
 tion states the facts out of which the legal obligation arises, the 
 obligation itself, the breach of it, and damage resulting from that 
 breach. 
 
 Where injuries to real property corporeal are immediate and 
 committed on the land, etc., in the possession of the plaintiif, 
 the remedy is trespass; but where the injury is not immediate, 
 but consequential, or where the plaintiff's property is only in 
 reversion, and not in possession, the action should be in case. 
 
 The plea in this action is principally the general issue, not 
 guilty. 
 
 Action of trover, or conversion, was in its origin an action 
 of trespass, on the case for the recovery of damages against a 
 person who had found goods and refused to deliver them on de- 
 mand to the owner, but converted them to his own use, from 
 which word finding (trover) the remedy is called an action of 
 trover. 
 
 The injury lies in the conversion and deprivation of the 
 plaintiff's jiroperty, which is the gist of the action, which action 
 is for the recovery of damages to the extent of the value of the 
 thing converted. 
 
 The object and result of the suit are not the recovery of the 
 thing itself, which can only be recovered by action of detinue or 
 replevin. 
 
 Lord Mansfield thus defines this action : " lu form it (i. e. the 
 trover) is a fiction; \n substance it is a remedy to recover the 
 value of personal chattels wrongfully converted by another to 
 his own use." 
 
 The action is confined to the conversion of goods or 
 personal chattels. 
 
 To support this action the plaintiff must, at the time of the con- 
 
PLEADINGS. 217 
 
 version, have had a complete property, either general or special, in 
 the chattel, and also actual possession^ or the right to the immedi- 
 ate possession of it. 
 
 In the case of a conversion by wrongfully taking, it is not 
 necessary to prove a demand and refusal; proof of the wrongful 
 act is sufilcient to establish the conversion; but a demand and 
 refusal are necessary in some cases, as where the defendant be- 
 came, in the first instance, lawfully possessed of the goods^ etc. 
 
 For a wrongful taking of goods, trover is, in general, a concur- 
 rent remedy with trespass ; but the converse does not hold, for 
 trover may often be brought where trespass cannot. 
 
 The general issue in this action is, not guilty. 
 
 Action of replevin is that whereby the owner of goods un- 
 justly taken and detained from him may regain possession 
 thereof through the medium of and upon application to the 
 sheriff, upon giving him security to prosecute an action against 
 the person who seized. It is principally used in cases of dis- 
 tress, but it seems that it may be brought in any case where the 
 owner has goods taken from him by another. 
 
 This action is of two sorts, in the detinet, where goods 
 are still detained by the person who took them, to recover the 
 value thereof and damages ; and in the detinuit, for the recov- 
 ery of damages only, for the taking of the goods, and for the de- 
 tention till the time of the replevy, and not the value of the 
 goods themselves. The former is now obsolete. 
 
 Replevin can only be supported for taking personal chattels, 
 and not for taking things attached to the freehold, and which 
 are in law considered fixtures, and cannot be delivered to the 
 distrainor upon a writ of retorno habendo. 
 
 To support replevin the plaintiff must, at the time of the cap- 
 tion, have had either the general property in the goods taken, or 
 a special property therein. 
 
 If the plaintiff has not the immediate right of possession, re- 
 plevin cannot be supported, but the party must proceed by an 
 ;action on the case. 
 
 In order to maintain replevin the plaintiff must prove either 
 a tortious taking or a tortious detention of the projperty re- 
 j5levied. 
 
 The general issue in this action is, non-cepit; but under this 
 the defendant cannot dispute the plaintiff's property, which must 
 be denied by a special plea. 
 
218 PLEADINGS. 
 
 Action of trespass only lies for injuries committed witlt 
 force, and generally only for such as are immediate, and the in- 
 tention of the wrong-doer is in general immaterial in this action. 
 
 The term trespass, in its most extensive signification, in- 
 cludes every description of wrong on which account an action on 
 the case has been usually called "trespass on the case;" but 
 technically it signifies an injury committed vi et amis. 
 
 The difi'erence between an action of trespass and an action on 
 the case is, that in the former the plaintiff complains of an im- 
 mediate wrong, and in the latter, of a wrong that is the conse- 
 quence of another act. 
 
 The gist of this action is the injury to the possession, 
 and the general rule is that unless at the time the injury was 
 committed the plaintiff was in actual possession, trespass cannot 
 be supported, and though the title may come in question, yet it 
 is not essential to the action that it should. 
 
 Actual and exclusive possession, without a legal title, is suffi- 
 cient against a wrong-doer, or a person who cannot make out a. 
 title, prima facie, entitling him to the possession, or show any 
 right or authority from the real owner. 
 
 No action will lie against a judge for what he does judicially, 
 though it were done maliciously; at least he would not be liable 
 in trespass in such case. But when an inferior court is guilty 
 of an excess of jurisdiction, ov h&s no jurisdiction over the subject- 
 matter, trespass may be supported for anything done tinder such 
 proceeding. 
 
 The want of jurisdiction in a court rendering a judgment,, 
 renders the judgment coram non judice and void, and the magis- 
 trate and all others concerned in enforcing the judgment would 
 be trespassers. 
 
 The general issue in this action is, not guilty. 
 
 Action of ejectment lies for the recovery of the possession 
 of real property, in which the lessor of the plaintiff has the legal 
 interest and a pos§essory right, not barred by the statute of limi- 
 tation. It is not a real action, nor a mere personal action, but is 
 what is termed a mixed action, partly for the reeoverj^ of the 
 thing or property itself, and partly to recover damages, which 
 in general are merely nominal; but in some cases between land- 
 lord and tenant such damages are in effect the full amount of th& 
 mesne profits up to the time of trial. 
 
 Ejectment is an action founded in fiction, being brought in 
 
PLEADINGS. 219 
 
 the name of a nominal plaintiif whose supposed right to the pos- 
 session is founded on a supposed demise made to him by the • 
 party or parties really entitled to the possession of the property. 
 
 The action cannot be commenced until the real plaintiff's right 
 of entry has accrued. 
 
 Mere nominal damages and costs only being recoverable in 
 this action, in order to complete the remedy for damages when 
 the possession has been long detained, an action of trespass for- 
 the mesne profits must, in general, be brought after the recovery 
 in ejectment. 
 
 With respect to the title, a party having a right of entry, 
 whether his title be in fee-simple, fee-tail, or in copy-hold, or for 
 life, or years, may support an action of ejectment; but the right 
 of possession must be of some duration, and exclusive; hence it 
 cannot be supported where a party has merely a license to use- 
 land, or for a standing place, etc. 
 
 The general rule governing this action is that the lessor of the 
 plaintiff must recover upon the strength of his own title, and of 
 course he cannot in general found his claim upon the insufS.- 
 ciency of the defendant's, for possession gives the defendant a. 
 right against every person who cannot show a sufficient and 
 better title, and the party who would change the possession must 
 therefore first establish a legal title. 
 
 This action is only sustainable for what, in fact, or in 
 point of law, amounted to an ouster or dispossession or 
 the lessor of the plaintiff. But such ouster may, and usually is, 
 by merely holding over ; and an immediate tenant may be sued 
 for the holding over by his under-tenant, though against his will. 
 
 If a tenant under-let, and at the end of his term his sub-tenant 
 refuse to quit, the original lessor may support ejectment against 
 ioth, and both are liable to pay mesne profits. 
 
 Action for mesne profit is in form an action of trespass vi 
 et armis, but in effect to recover the rents and profits of an estate, , 
 as a satisfaction to the real plaintiff for the injury he has sus- 
 tained by being kept out of possession, and the mesne profits, . 
 which in general not being included in the verdict in the ejectr 
 ment, the law has provided this remedy for that injury; the ac- 
 tion of ejectment, as at present conducted, though nominally a 
 mixed action, being altogether a mere fiction, it being brought, 
 by a nominal plaintiff against a nominal defendant for a supposed- 
 ouster, merely nominal damages are given. 
 
220 PLEADINGS. 
 
 In general, any person found in possession, after a re- 
 covery in ejectment, is liable to the action j and it is no de- 
 fence that he was on the premises merely as an agent, and under 
 ihe license of the defendant in ejectment, for no man can license 
 another to do an illegal act; but generally the person against 
 whom the judgment in ejectment has been given ought to be 
 made the defendant in this action. 
 
 Mistake in the form of action. — When the objection to 
 the form of the action is substantial, and appears upon the face of 
 the declaration, without regard to extrinsic facts, it may be taken 
 advantage of by demurrer, or by motion in arrest of judgment, 
 or by writ of error. 
 
 When the objection to the form of action does not appear on 
 the face of the pleadings, it can only be taken as a ground of non- 
 suit, in which case the defendant will be entitled to his costs. 
 
 If by either of these means the plaintiff fail in his action, and 
 judgment be given against him for that reason, and not upon the 
 merits, he is at liberty to commence a fresh action, and the de- 
 fendant cannot plead in bar the proceedings in the first ineffect- 
 ual suit. 
 
 Joinder of actions. — Where the plaintiff has two causes of 
 ^action which may be joined in one action, he ought to bring one 
 action only, and if he commence two actions, he may be com- 
 pelled to consolidate them and to pay the costs of the application. 
 
 The joinder in action often depends on the form of 
 the action, rather than on the subject-matter or cause of action; 
 thus, in an action against a carrier for the loss of goods, if the 
 plaintiff declare in assumpsit he cannot join a count in trover, as 
 he may, if he declare against him in case; for the joindfer de- 
 pends on the form of the action. 
 
 When the same plea may be pleaded, and the same judgment 
 given on all the counts of the declaration, or whenever the cownfs 
 are of the same nature, and the same judgment is to be given on 
 them all, though the pleas be different, as in the case of debt 
 upon bond and on simple contract, they may be joined. Per- 
 haps the latter, that is, the nature of the cause of action, is the 
 best test or criterion by which to decide as to the joinder of 
 counts. By this rule we may decide, in general, what forms of 
 action may be joined in the same declaration. 
 
 It is a general rule that actions in form ex contractu 
 cannot be joined with those in form ex delicto. 
 
PLEADINGS. 221 
 
 A person cannot in the same action join a demand in his own 
 right, and a demand as representative of anotlier, or autre droits 
 nor demands against a person on his own liability, and on his 
 liability in his representative capacity. 
 
 Election of actions. — The party injured frequently has an 
 election of several remedies for the same injury, and the due 
 exercise of this election being of great importance, it may be 
 useful to state the principal points which direct the choice of 
 several remedies. 
 
 A strict legal title is essential to the support of some 
 remedies, but in others the plaintiff's bare possession of the 
 property affected is sufficient. Where the title of the plaintiff 
 may be doubtful, it is in general advisable to adopt the latter 
 description of remedy. 
 
 Of bail and process in actions in form ex delicto. — In 
 case, trover, detinue, and trespass, the defendant cannot be arrested 
 without a special order of the court or judge, and it is not usual 
 to grant such order, except where there has been an outrageous 
 Lattery, or the defendant is about to quit the kingdom ; there- 
 fore in cases where it may be material to have the security of" 
 hail, the action should, if possible, be framed in assumpsit for 
 money had and received, etc. "Where, however, the defendant 
 has been already arrested, the form of action must correspond 
 with the affidavit to hold to bail and the form of action stated in 
 the capias, or other process. 
 
 The number of parties. — We have seen that in an action in 
 form ex contractu, if a person who ought to be made co-plaintiff' 
 be omitted, it is a ground of nonsuit, etc., except in the case of 
 executors and administrators, whereas in actions in forms ex de- 
 licto, the non-joinder of a party who should have been a co- 
 plaintiff can only be pleaded in abatement; hence the latter 
 form of action is preferable, if it can be adopted, where there is 
 reason to doubt who should be joined as a plaintiff. 
 
 Number of the causes in action. — Where the plaintiff has 
 several demands of a similar kind, recoverable in different forms 
 of action, he frequently may, and then he ought, to proceed for- 
 the whole in that form of action which will embrace his various, 
 claims. 
 
 Of the defence. — By a judicious choice of the remedy, the 
 defendant may be frequently precluded from availing himself 
 of a defence which he might otherwise establish. 
 
222 PLEADINGS. 
 
 The venue. — In some cases there may be two or more ac- 
 tions in effect for the same injmy, the one local and the other 
 transitory ; consequently the latter form of action should be 
 adopted where it may be advisable to try the cause out of the 
 county where the estate is situated. 
 
 As to the evidence, it is frequently more convenient that 
 the action shonld be trespass than case, because if laid in, tres- 
 pass, no nice points can arise upon the evidence by which the 
 j)laintiff may be defeated upon the form of the action, as there 
 may in many instances if case be brought. Very often the form 
 of action, by driving the defendant to plead more specially, may 
 narrow the plaintiff's evidence. 
 
 Of costs. — In actions in form ex contractu, the plaintiff is in 
 general entitled to full costs. 
 
 The judgment and execution. — The action of debt is ire- 
 quently preferable to assumpsit or covenant, because the judg- 
 ment in debt by nil dicit, etc., is, in general, final, and execution 
 may be issued immediately without the expense and delay of a 
 writ of enquiry. Replevin, or detinue, is preferable to trover, 
 when it is important to obtain the goods themselves. 
 
 The circumstance of a party having elected one of several 
 remedies by action, will not in general preclude him from aban- 
 doning such suit, and after having duly discontinued it, he may 
 adopt any other remedy. 
 
 The plaintiff cannot in general bring a fresh species of action, 
 for the same cause, whilst the former is depending, or after it has 
 been determined by a verdict. 
 
 PL.£A»I]¥0 IN OEIl^ERAIi. 
 
 Pleading is the statement in a logical and legal form of the 
 Jacts which constitute the plaintiff's cause of action, or the de- 
 fendant's ground of defence. 
 
 The grand object contemplated by the system is the 
 production of a certain and material issue between the parties, 
 upon some important part of the subject-matter of dispute be- 
 tween them. 
 
 THE FACTS NECESSARY TO BE STATED.— In 
 general, vrhatever circumstances are necessary to con- 
 stitute the cause of complaint, or the ground of de- 
 fence, must be stated in the pleadings, and all beyond is 
 
PLEADINGS. 223 
 
 ■Surplusage ; facts only are to be stated, and not arguments or 
 inferences, or matters of law ; in wliich respect, the pleadings at 
 law diifer materially from those in equity. 
 
 There are some facts of such a public or general nature, that the 
 •courts ex-officio take notice of them, and which consequently 
 ought not to be unnecessarily stated in pleading; such are public 
 matters relating to the King and to Parliament; public statutes, 
 and the facts which they recite ; ecclesiastical, civil, and marine 
 laws; common law rights and duties, and general customs; days 
 of the week, etc., on which particular days fall ; the divisions of 
 the country into counties, etc. ; the meaning of English words 
 and terms of art, according to their ordinary accej)tation ; of 
 their own course of proceedings ; the privileges they confer on 
 their ofScers, etc. 
 
 Where the lavr presumes a fact, or it is necessarily im- 
 plied, it need not be stated. 
 
 Where the law presumes the affirmative of any fact, the neg- 
 ative of such fact must be proved by the party averring it in 
 pleading. 
 
 Illegality in a transaction is never presumed ; on the 
 contrary, everything is presumed to have been legally done till 
 the contrary is proved. 
 
 It is a general rule of pleading, that matter 'which should 
 come more properly from the other side need not be 
 stated ; i. e. — it is enough for each party to make out his own 
 case or defence. 
 
 Although any particular fact may be the gist of a party's ease, 
 and the statement of it indispensable, it is still a most important 
 principle of the law of pleading that in alleging the fact, it is 
 unnecessary to state such circumstances as merely tend to prove 
 the truth of it. The dry allegation of the fact, without 
 detailing a variety of minute circumstances which con- 
 stitute the evidence of it, will suffice. 
 
 The object of the pleadings is to arrive at a specific issue 
 upon a given and material fact ; and this is attained, although 
 the evidence of such fact, to be laid before the jury, be not spe- 
 cifically developed in the pleading. 
 
 Though the general rule is that facts only are to be 
 stated, yet there are some instances in which the statement in 
 the pleading is valid, though it does not accord with the real 
 facts, the law allowing a fiction ; as in the action of ejects 
 
224 PLEADINGS. 
 
 ment, in which the statement of the demise to the nominal 
 plaintiff is fictitious. So in trover and detinue, the usual alle- 
 gation that the defendant /omwc? the goods, rarely accords with 
 the fact ; and where the number, quantity, species or value of 
 a thing, need not be proved precisely as laid, it is usual to state a 
 greater number than really w^as the ease, in order to admit of 
 greater latitude in evidence ; but except in these and a few other 
 well known instances, established and recognized in pleading, 
 for the convenience of justice, the pleading matter known to the 
 party to be untrue, is censurable. 
 
 The rule relating to duplicity, or doubleness, tends more 
 than any other, to the production of a single issue upon the same 
 subject-matter of dispute — the real object of the science of 
 pleading. It precludes both parties from stating or relying upon 
 more than one matter, constituting a sufficient ground of action 
 in respect of the same demand, or a sufficient defence to the 
 same claim, or an adequate answer to the precedent pleading of 
 the opponent. 
 
 The plaintiff cannot, by the common law rule, in order to sus- 
 tain a single demand, rely upon two or more distinct grounds or 
 matters, each of which, independently of the other, amounts tO' 
 a good cause of action in respect of such demand. And the 
 same count must not contain two promises in respect of the 
 same subject-matter. 
 
 The defendant could not, in answer to a single claim, rely ou 
 several distinct answers, nor can he now do so in one plan. 
 
 At common la'w the declaration may comprise several 
 counts upon different distinct demands of the same nature, or 
 distinct counts upon the same claim. 
 
 And several distinct facts or allegations, however numerous, 
 may be comprised in the same plea or other pleading, without 
 amounting to the fault of duplicity, if one fact, or some of the 
 facts, be but dependent upon, or be mere inducement or intro- 
 duction to, the others, or if the different facts form together but 
 one connected proposition or entire matter or point. 
 
 To avoid any unnecessary statement of facts, as well 
 as prolixity in the statement of those which may be necessary, 
 is of the greatest importance in pleading, as the statement of 
 immaterial or irrelevant matter or allegations, is not only cen- 
 surable, as creating unnecessary expense, but also frequently 
 affords an advantage to the opposite party, either by affording 
 
PLEADINGS. 225 
 
 Mm. matter of objection on the ground of variance, or as ren- 
 dering it incumbent on the party pleading to adduce more evi- 
 dence than would otherwise have been necessary. 
 
 If the matter unnecessarily stated be wholly foreign 
 and irrelevant to the cause, so that no allegation whatever on 
 the subject was necessary, it will be rejected as surplusage, and 
 it need not be proved; nor will it vitiate even on a special de- 
 murrer, it being a maxim that utile per inutile non vitiatur. 
 
 But if the very ground of the action be mis-stated, that will 
 be fatal, for then the case declared on is different from that 
 which is proved, and the plaintiff must recover secundum alle- 
 gata et probata. 
 
 The introduction of unnecessary words of form will not vitiate 
 the rest of a replication which is good. 
 
 Surplusage is never assignable as cause of demurrer ; 
 but surplusage in tendering an issue or in other part oi pleading ^ 
 tending to embarrass the opponent, may be assigned specially 
 as cause of demurrer. 
 
 The general rule is that a pleading inconsistent with itself, 
 or repugnant, is objectionable. 
 
 Mode of stating facts. — The principal rule is that they 
 must be set forth with certainty. 
 
 Less certainty is requisite when the law presumes that the 
 knowledge of the facts is more properly or peculiarly in the op- 
 posite party. 
 
 Where a subject comprehends multiplicity of matter, 
 and a great variety of facts, there, in order to avoid prolixity, 
 the lav7 allows general pleading. 
 
 In general, pleadings must not be insensible or repugnant, nor 
 ambiguous or doubtful in meaning ; not argumentative, nor in 
 the alternative. 
 
 Rules for construing pleadings. — It is a maxim that every- 
 thing shall be taken most strongly against the party pleading, 
 where the meaning of the words is equivocal. 
 
 But the maxim must be received with this qualification : that 
 the language of the pleading is to have a reasonable intendment 
 and construction ; and where an expression is capable of differ- 
 ent meanings, that shall be taken which will support the declara- 
 tion. 
 
 The division of pleadings, or the parts of pleadings are 
 arrangeable under two heads : the regular parts being those 
 
 15 
 
226. PLEADIlSrGS. 
 
 which occur in the ordinary course of a suit; and the irregular 
 or collateral parts being those which are occasioned by mistakes 
 in the pleadings on either side. 
 
 The regular parts of pleading are : first — the declaration, 
 or count; second — XhQ plea ; third — the replication; fourth — the 
 rejoinder; fifth — the sur-rejoinder ; sixth — the rebutter; seventh 
 — the sur-rebutter ; eighth — pleas puis darien continuance — where 
 the matter of defence arises pending the suit. 
 
 The irregular or collateral parts of pleading are first 
 — demurrers to any part of the pleadings above mentioned; 
 second — demurrers to evidence given at trials ; third — bills of ex- 
 ception; fourth— pleas in scire facias ; fifth — pleas in error. 
 
 The general requisites or qualities of a plea are first 
 — it must be single, and avoid duplicity ; second — it must be direct 
 and positive, not argumentative; third — it must have convenient 
 certainty of time, place and persons ; fourth — it must answer the 
 plaintiff's allegations in everything material ; fifth — it must be 
 pleaded so as to be capable of trial. 
 
 The declaration is a specification in a methodical and legal 
 form of the circumstances which constitute the plaintiff's cause 
 of action ; which necessarily consists of the statement of a legal 
 right, or, in other words, a right recognized in courts of law, 
 not merely in a court of equity ; and of an injury to such right 
 remediable at law by action, as distinguished from the remedy 
 by bill in equity. 
 
 The general requisites or qualities of a declaration, 
 are : I. That it correspond with the process, and in bail- 
 able actions, with the affidavit to hold to bail — with re- 
 spect to, first, the names of the parties to the action. Secondly, 
 the number of such parties. Thirdly, the character or right in 
 which they sue or are sued. Fourthly, the cause and form of ac- 
 tion. II. That it contains a statement of all the facts 
 necessary in point of la\7 to sustain the action, and no 
 more. III. That these circumstances be set forth with 
 certainty and truth — that is, first, who are the parties to the 
 suit. Secondly, a time when every material or traversable fact 
 happened, in personal actions. Thirdly, a place should be al- 
 leged where every material and traversable fact occurred. 
 Fourthly, it is still more material that certainty and accuracy 
 be observed in the more substantial parts of the declaration, 
 which state the cause of action itself. 
 
PLEADINGS. 227 
 
 The several parts and particular requisites of declar- 
 ations are first, The title of the Declaration aa to the Court. 
 Secondly, The title of the Declaration as to the Time when it is 
 filed or delivered. Thirdly, The Venue in the margin. Fourthly, 
 The Commencement. Fifthly, The Body, according to the form 
 of action : e. g. in assumpsit, six points are principally to be at- 
 tended, to, namely, the inducement, consideration, promise, aver- 
 ments, breach, and damages. Sixthly, The Conclusion. Seventhly, 
 The Profert of Deeds, Probates, Letters of Administration, etc. 
 Eighthly, The Statement of Pledges to be discontinued. Ninthly, 
 Other miscellaneous points. 
 
 The cause of action in every case consists of three different 
 j)oints — the right, the injury, and the consequent damages. 
 
 The inducement in an action of assumpsit is in the nature 
 of a preamble stating the circumstances under which the con- 
 tract was made or to which the consideration has reference. 
 
 The consideration stated should appear to be legally suffi- 
 cient to support the promise for the breach of which the action 
 is brought. 
 
 In declaring upon bills of exchange and promissory notes and 
 some other legal liabilities, the mere statement of the liability 
 which constitutes the consideration is sufficient; but in other 
 cases of simple contracts, it is necessary that the declaration 
 should disclose a consideration, which may consist of either ben- 
 efit to the defendant, or detriment to the plaintiff, or the promise 
 -will appear to be nudum pactum, and the declaration will be 
 insufficient. 
 
 An executed consideration consists of something past or 
 ■done before the making of the promise. 
 
 Executory considerations are those to be yet performed ; 
 the promise having been made, or the thing done. 
 
 Concurrent considerations occur in the case of mutual 
 promises, and partake of the nature of the preceding two. The 
 ■pl&vatiS' & promise is executed, but the thing which he has engaged 
 to perform is executory, as in promises to marry, etc. 
 
 Continuing considerations are such as are executed in 
 part only. 
 
 The three last classes are sufficient to support a contract not 
 -void for other reasons. 
 
 Great accuracy is required in the statement of the consideration, 
 T^hich in an action of assumpsit forms the basis of the contract. 
 
228 PLEADIITGS. 
 
 and if any error appear, to have been made in describing it, tbe 
 consequence will be that the whole contract is mis-described. 
 
 When no consideration is stated in the declaration, or when 
 that which is stated is clearly insufficient or illegal, the defendant 
 may either demur or move in arrest of judgment, or support a 
 writ of error. 
 
 The perfection of pleading consists in combining 
 brevity with the requisite certainty and precision. 
 
 The contract must be stated correctly, and if the evidence differ 
 from the statement, the whole foundation of the action fails; be- 
 cause the contract is entire in its nature, and must be proved as 
 laid. In this respect there is a material distinction between the 
 statement of torts and of contracts, the former being divisible in 
 their nature, and the proof of part of the tort or injury being, 
 in general, suflS.cient to support the declaration. 
 
 A contract or written instrument should be stated ac- 
 cording to its legal effect. The party is not compelled to 
 follow the precise form of words in which the contract was made > 
 it suffices if he state its true legal effect and operation. 
 
 Averment signifies a positive statement of facts, in opposi- 
 tion to argument or inference. 
 
 Variance is a disagreement or difference between two points 
 of the same legal proceeding, which ought to agree. It is be- 
 tween the "Writ and Declaration, or the Allegation and the Proof. 
 
 The common counts in assumpsit are the indebitatus 
 count, the quantum meruit, the quantum valebat, and the account 
 stated. 
 
 In actions for torts or lorongs^ the declaration should state 
 the matter or thing affected; the plaintiff's right thereto; the 
 injury ; and the damages sustained by the plaintiff. 
 
 In actions brought for injuries to real property, the quality of 
 the realty, as whether it consists of houses, lands, or other cor- 
 poreal hereditaments, should be shown. 
 
 In actions for injuries or taking away goods or chattels, it is, in 
 general, necessary that their quality, quantity or number, and value 
 or price be stated. 
 
 In trover, trespass and case, damages only being recoverable, 
 less particularity is required than in detinue and replevin, for by 
 these latter forms of action the plaintiff can claim or recover the 
 goods themselves. 
 
 In personal actions, damages are the gist of the suitf 
 
PLEADINGS. 229 
 
 in real actions, the right or title forms the prominent subject of 
 enquiry. 
 
 In an action on the case, founded on an express or implied 
 contract, the declaration must correctly state the contract, or the 
 particular duty or consideration from which the liability results, 
 and on which it is founded ; and a variance in the description of 
 a contract, though in an action ex delicto, may be as fatal as in an 
 action in form ex contractu. 
 
 Injuries ex delicto are either committed with or without 
 force, and are immediate or consequential; they may also arise 
 from malfeasance, misfeasance, or non-feasance. 
 
 In some actions, the scienter, i. e. the intent, being material, 
 must be alleged and proved. 
 
 In general, when the act occasioning damage is in 
 itself unlawful, without any other extrinsic circumstance, the 
 intent of the wrong-doer is immaterial in point of law, though 
 it may enhance the damages. 
 
 In an action ex delicto, upon proof of part only of the injury 
 charged, the plaintiif will be entitled to recover pro tanto, pro- 
 vided the part which is proved afford, per se, a sufficient cause of 
 action ; for torts are, generally speaking, divisible. 
 
 The statement of the time of committing injuries ex delicto is 
 seldom material; it may be proved to have been committed 
 either on a day anterior or subsequent to that stated in the dec- 
 laration. 
 
 The place is only material in local actions, or where the pre- 
 cise situation, or rather description of the land, houses, etc., is 
 j)articularly stated, as in trespass and replevin. 
 
 Damages are either general or special. General dam- 
 ages are such as the law implies or presumes to have accrued 
 from the wrong complained of. Special damages are such as 
 really took j)lace and are not implied by law. 
 
 Presumptions of laTV are not, in general, to be pleaded or 
 averred as facts. 
 
 In the case of libel or slander, great care must be taken in 
 setting out the particular libellous matters or words complained of. 
 The libel itself, or slanderous words, must be set out in hxc verba, 
 or as uttered. 
 
 The claim of conusance or cognizance of a suit is de- 
 fined to be an intervention by a third person, demanding judica- 
 ture in the cause against the plaintiff, who has chosen to com- 
 mence his action out of the claimant's court. 
 
230 PLEADI]SrGS. 
 
 It is in form a question of jurisdiction between the two courts, 
 and not between the plaintiif and defendant, as in the case of a 
 plea to the jurisdictioia, and therefore it must be demanded by 
 the party entitled to conusance, or by his representative. 
 
 A plea to the jurisdiction must be pleaded in person, but a 
 claim of conusance may be made by attorney. 
 
 Defence is defined to be the denial of the truth or validity 
 of the complaint, and does not merely signify a, justification. 
 
 Oyer is a prayer or petition recited or entered into in plead- 
 ing, that the party may hear read to him the deed, etc., stated in 
 the pleadings of the opposite party, and which deed is by in- 
 tendment of law in court when it is pleaded with a a profert. 
 
 Imparlance, in its most general signification, means time 
 given by the court to either party to answer the pleading of his 
 opponent, as either to plead, '"eplyj rejoin, etc., and is said to be 
 nothing else but the continuance of the cause till a further day. 
 
 PLEAS DILATORY AND PLEAS PEREMPTORY 
 constitute the general division of pleas. 
 
 Dilatory pleas are to the jurisdiction, to the disability of the 
 person, to the count or declaration, and to the writ, the three last 
 being generally termed pleas in abatement. 
 
 Pleas to the jurisdiction. — "Where the court has no juris- 
 diction at common law, or it has been taken away by act of 
 Parliament, such want of jurisdiction may, in general, be pleaded 
 in bar, or given in evidence under the general issue, and is not 
 properly the subject of a plea in abatement. 
 
 In all pleas to the jurisdiction of the superior courts, it must 
 be shown that there is another court in which justice may be 
 effectually administered, for if there be no other mode of trial, 
 that alone would give the superior court jurisdiction. 
 
 Peremptory pleas are those which load to an issue which 
 settles the dispute, and are called pleas in bar of the action. 
 
 Pleas in abatement. — Whenever the subject-matter of the 
 plea of the defence is that the plaintiff cannot maintain any 
 action at any time, whether present or future, in respect of the 
 supposed cause of action, it may, and usually must, be pleaded 
 in bar ; but the matter which merely defeats the present proceed- 
 ing, and does not show that the plaintiff is forever concluded, 
 should in general be pleaded in abatement. 
 
PLEADINGS. 231 
 
 Fleas in abatement are divided into those relating — 
 
 I. To the disability of the person suing or being sued, as 
 fist. Of the plaintiff; 
 \2dly. Of the defendant. 
 n. To the count or declaration. 
 _ ni. To the writ, viz : 
 
 I 1st. To the form of the writ, viz : 
 f 1st. Matter apparent on the face of it ; 
 1 2dly. Matter dehors. 
 2dly. To the action of the -writ. 
 
 As pleas in abatement do not deny and yet tend to delay the 
 trial of the merits of the action, great accuracy and precision 
 are required in framing them. They should be certain to every 
 intent, and be pleaded without any repugnance. 
 
 As dilatory pleas rarely affect the merits of the suit, and ob- 
 ject mere m.atter of form, they constitute an exception to the 
 general principle of pleading, that a ■plea must either traverse or 
 confess and avoid the alleged cause of action. 
 
 Pleas in bar go to the merits of the case, and deny that the 
 plaintiff has any cause of action. 
 
 They are of two kinds, as well in action on contracts as for 
 torts, viz : first — they deny that the plaintiff ever had the cause 
 of action complained of, or, secondly — they admit that he once 
 had a cause of action, but insist that it no longer subsists, having 
 been determined by some subsequent matter. They are also 
 either to a whole or to a part of the declaration. 
 
 The true object of pleading is to apprise the adverse party 
 of the ground of defence, in order that he may be prepared to 
 contest it, and not be taken by surprise. 
 
 It is well settled, that in an action for a libel or slanderous 
 words, the defendant cannot under the general issue give in evi- 
 dence the truth of the matter, or any part of it, even in mitigation 
 of damages, but must justify specially. 
 
 It is a matter of prudence, depending on the facts of each case, 
 whether or not to plead a justification. 
 
 Pleas in bar must either deny or confess and avoid the matter 
 alleged in the plaintiff's declaration. 
 
 It is a general rule at common law, that matters in mitigation 
 of damages, etc., which cannot be specially pleaded, may be 
 given in evidence under the general issue. 
 
 The general issue, or general plea, is what denies at once 
 the whole declaration, without offering special matter. 
 
232 
 
 PLEADINGS. 
 
 Analytical table of the defences to actions on con- 
 tracts not under seal, the sub-divisions being nearly xbe same 
 in each form of action. 
 
 I. Deny that there ever was cause for action. 
 
 1. Deny that a sufficient contract was ever made. 
 
 1. That no contract was in fact made. 
 
 2. Incompetency of plaintiff to be contracted with. 
 Plaintiff an alien enemy at time of contract, 
 
 3. Defendant incapable of contract. 
 
 II. Infancy. 
 2. Lunacy, Drunkenness, etc. 
 3. Coverture. 
 4. Duress. 
 
 4. Insufficiency of consideration, 
 f 1. Inadequacy of consideration. 
 \ 2. Illegality of consideration, viz : 
 
 At common law, and 
 By different statutes. 
 
 5. Contract obtained by fraud. 
 
 6. The act to be done illegal or impossible 
 
 7. The form of contract insufficient, 
 f 1. At common law. 
 \ 2. By statute. 
 
 As statute against frauds. 
 
 8. No sufficient stamp. 
 Admit a sufficient contract, but show that before breach there was 
 
 1. A release. 
 
 2. Parol discharge. 
 
 3. Alteration in terms of contract by consent. [ation, etc. 
 
 4. Non-performance by plaintiff of a condition precedent, alter- 
 
 5. Performance, payment, etc. 
 
 6. Contract became' illegal or impossible to perform. 
 
 H. Admit that there was cause of action, but avoid it by showing subsequent 
 or other matter. 
 
 1. Plaintiff no longer entitled to sue. 
 
 1. An alien enemy. 
 
 2. Attainted 
 
 3. Outlaw. 
 
 4. A bankrupt, insolvent debtor, etc. 
 
 2. Defendant no longer liable to be sued, 
 f 1. A certified banki-upt. 
 \ 2. An insolvent debtor. 
 
 3. Debt recoverable only in a court of conscience. 
 
 4. Cause of action discharged. 
 
 1. By payment. 
 
 2. Accord and satisfaction. 
 
 3. Foreign attachment. 
 
 4. Tender. 
 
 5. Account stated and negotiable security taken by plaintiff. 
 
 6. Arbitrament. 
 
 7. I'ormer recovery. 
 
 8. Higher security given. 
 
 9. A release. 
 
 10. Statute of limitations. 
 
 11. Set-off. 
 '. ?lea by executor, etc. 
 
 Matter of estoppel must be specially pleaded as such. 
 
PLEADINGS. 233 
 
 In framing a special plea, it is also necessary to consider 
 -whether the defendant is under terms of pleading issuably. 
 
 An issuable plea is a plea in chief to the merits upon which 
 -the plaintiff may take issue and go to trial, on a general de- 
 murrer for some defect in substance. 
 
 A plea in abatement is not an issuable plea. 
 
 In every species of assumpsit all matters in confession and avoid- 
 ance shall be specially pleaded. 
 
 The general qualities of a plea in bar are 
 
 First. — That it be adapted to the nature and form of the ac- 
 "tion, and also be conformable to the count. 
 
 Secondly. — That it' answer all which it assumes to answer, 
 and no more. 
 
 Thirdly. — That it deny or admit and avoid the facts ; and here- 
 in of giving color, and of pleas amounting to the general issue. 
 
 Fourthly. — That it be single. 
 
 Fifthly.— Certain. 
 
 Sixthly. — Direct and positive and not argumentative 
 
 Seventhly. — Capable of trial. 
 
 Eighthly. — True ; and herein of sham pleas. 
 
 Fleas in bar, unlike pleas in abatement, offer matter which 
 is a conclusive answer or defence to the action upon the merits. 
 They are divisible into pleas of traverse or denial, and pleas by 
 way of confession and avoidance ; as all pleas in bar must deny 
 or confess and avoid the facts stated in the declaration. 
 
 Fleas in denial are either the general issue in those actions 
 in which so general a traverse is admissible, or they occur in 
 instances in which, there being no general issue, as in covenant, 
 etc., some specific fact is specially disputed. 
 
 The principles of pleading and express rules require, in gen- 
 eral, that matter in confession and avoidance should be 
 specially pleaded and not be given in evidence under the gen- 
 eral issue or traverse. 
 
 A special plea amounting to the general issue or general plea 
 is bad. 
 
 A plea in confession and avoidance must give color to the 
 plaintiff. 
 
 To give color is to give credit for an apparent or ^rma/acie 
 right of action. 
 
 Pleading is a statement of facts, and not a statement of argu- 
 ment; it is therefore a rule that a plea should be direct and pos- 
 
234 PLEADINGS. 
 
 itive, and advance its position of fact in an absolute form, and 
 not by way of rehearsal, reasoning, or argument. 
 
 Every plea should be so pleaded as to be capable of trial, and 
 therefore must consist of matter of fact, the existence of which 
 may be tried by a jury on an issue, or the sufficiency of which as 
 a defence may be determined by the court upon demurrer, or of 
 matter of record which is triable by the record itself. 
 
 Every plea should be true and capable of proof, for, as it haa 
 been quaintly said, " Truth is the goodness and virtue of plead- 
 ing, as certainty is the grace and beauty of it." 
 
 Sham pleading, that is, the pleading of matter known by 
 the party to be false, for the purpose^of delay or other unworthy 
 object, has always been considered a very culpable abuse of 
 justice, and has often been censured and set aside with costs. 
 
 The rules which prevail in the construction and al- 
 lowance of a plea in bar are first — That it is to be con- 
 strued most strongly against the defendant ; secondly — That a 
 general plea, if bad in part, is bad for the whole ; thirdly — That 
 surplusage will not in general vitiate. 
 
 If an allegation is capable of two meanings, that exposition 
 shall be adopted which will support, not that which will destroy, 
 the pleading. 
 
 Fleas by several defendants. — In general, when the de- 
 fence is in its nature joint, several defendants may join in the 
 same plea, or they may sever without committing fault of du- 
 plicity in pleading, and one defendant may plead in abatement, 
 another in bar, and the other may demur. 
 
 A plea which is bad in part is bad in toto. 
 
 The plaintiff may, in an action in form ex delicto, against sev- 
 eral defendants enter a nolle prosequi as to one of them j but in 
 actions in form ex contractu, unless the defence be merely in the 
 personal discharge of one of the defendants, a nolle prosequi can- 
 not be entered as to one defendant without discharging the 
 others, for the cause of action is entire and indivisible. 
 
 Fleas of set-off. — In actions upon simple contracts or special- 
 ties for the payment of m.oney, the defence frequently is a cross- 
 demand for a debt due from the plaintiff to the defendant. At 
 common law, and independently of the statutes of set-oif, a de- 
 fendant is in general entitled to retain or claim by way of de- 
 duction, all just allowances or demands accruing to him, or 
 payments made by him, in respect of the same transaction or 
 
PLEADINGS. . 23S 
 
 account, which forms the ground of action ; but before the stat- 
 utes of set-off, where there were cross-demands unconnected with 
 each other, a defendant could not in a court of law defeat the ac- 
 tion by establishing that the plaintiff was indebted to him even 
 in a larger sum than that sought to be recovered, and relief could 
 only be obtained in a court of equity. 
 
 Some of the principal rules upon the subject of set-off 
 are that the debt sued for and that sought to be set off should 
 be mutual debts, and due to each of the parties respectively in 
 the same right or character. 
 
 The statutes speak only of mutual debts, consequently the de- 
 mand of each party must be in the nature of a debt ; so that a 
 set-off is excluded in all actions ex delicto, and it cannot be ad- 
 mitted even in actions ex contractu, if the claim of either party 
 be for uncertain or unliquidated damages. 
 
 It has been held that a debt of inferior degree cannot be set off 
 against one of higher degree. 
 
 The debt attempted to be set off must be completely due and in 
 arrear at the time the action was commenced; and a legal and 
 subsisting debt, not barred by the statute of limitations. 
 
 REPLICATIONS. — Before the plaintiff replies or demurs to- 
 the plea, he should consider whether or not he may treat it as a 
 nullity, and sign judgment. 
 
 If the plea does not profess to answer the whole action, and 
 leaves a part unanswered, the plaintiff should sign judgmentpro 
 tanto. 
 
 If the plea properly conclude "to the country," etc., in as-- 
 sumpsit, as well as in other actions, the replication may add the 
 common similiter, i. e. " doth the like," etc. ; or if the plea con- 
 clude with a verification, may deny the alleged matter of de- 
 fence, or may confess and avoid it by applying new matter. 
 
 The conclusion to a special plea may be to the country, 
 as thus, "and this the plaintiff prays may be inquired of by the 
 country," etc., or with a verification; thus, " and this the plaint- 
 iff is ready to verify." 
 
 When the plea concludes to the country, the replication con- 
 sists either of the common or special similiter. 
 
 The common similiter is " and the plaintiff doth the like." 
 
 The special similiter is "and the plaintiff, and as to the said 
 pleas of the defendant, by him first and secondly above pleaded,, 
 and whereof he hath put himself upon the country, doth the like.'" 
 
236 PLBADIKGS. 
 
 The parts of a replication to a plea containing new 
 .matter are first, the commencement ; secondly, the body ; and 
 thirdly, its conclusion. 
 
 The commencement in such case professes wholly to deny 
 the effect of the defendant's plea. 
 
 The body shows the ground on which that denial is founded. 
 
 The conclusion is either to the country or to the record, if it 
 merely deny the plea ; but if the replication contain new matter, 
 it should conclude with a verification, and a prayer that judgment 
 be awarded in the plaintiff's favor. 
 
 The body of the replication contains matter of estoppel; a 
 traverse or denial of the plea ; a confession and avoidance of it; 
 or, in the case of an evasive plea, a new assignment. 
 
 There is no real distinction between traverses and 
 denials ; they are the same in substance. 
 
 Any pleading by which the truth of the opponent's allega- 
 tion is disputed is termed a pleading by way of traverse or 
 denial. 
 
 The first object of pleading being to bring the point in dis- 
 pute between the parties, at as early a stage of the cause as pos- 
 sible, to an issue or point which is not multifarious or complex, the 
 issue must in general be single; but this single point may consist 
 of several facts if they be dependent and connected. 
 
 A party may traverse and deny any material and issuable alle- 
 gation in his opponent's pleading. 
 
 But if an allegation in the opposite pleading be altogether 
 immaterial, it cannot be traversed ; otherwise the object of plead- 
 ing, viz : the bringing the parties to an issue upon a matter or 
 point decisive of the merits, would be defeated. 
 
 It is also a most material rule upon this subject that a trav- 
 erse should he taken on matter of fact, not mere matter of con- 
 ■clusion oilaw. 
 
 The traverse should also be on some affirmative matter, and 
 not put in issue a negative allegation; nor too large; nor yet 
 too narrow, so as to prejudice the defence. 
 
 In general, a traverse, denial, or allegation should be so framed 
 as to be divisible, and entitle the party pleading to recover pro 
 tanto, if he proVe part of the allegation. 
 
 Replications denying a particular fact or facts, are, 
 in point oi form, o? three descriptions; j?rsi, the plaintiff pro- 
 tests some fact or facts, and denies the other, concluding to the 
 
PLEADINGS. 237" 
 
 country ; or, secondly, he at once denies the particular fact in- 
 tended to be put in issue, and concludes to the country; or, 
 thirdly, formally traverses a particular fact, and concludes with 
 a verification. 
 
 It is a rule that every pleading is taken to confess such trav- 
 ersable matter of fact alleged on the other side as it docs not 
 traverse. 
 
 It is a general rule that there cannot be a traverse after a 
 traverse where the first was material, and of matter necessarily 
 alleged. 
 
 The general rule is that a replication must confess and avoid, or 
 traverse the matter stated in the plea ; and in this respect a repli- 
 cation resembles a plea. 
 
 New assignment is a more minute and circumstantial manner- 
 o? re-stating the cause of action, or some part thereof, alleged in 
 the declaration, in consequence of the defendant having, through 
 mistake or design, omitted to answer it in his plea. It is a kind 
 of replication in the nature of a new declaration. 
 
 The object of a ne-wr assignment is to correct an error in 
 the plea, and to aver that the defendant has omitted to answer 
 the whole or a part of the true ground of complaint. 
 
 New assignments are principally confined to the action of 
 trespass, as it rarely becomes necessary to new-assign in any 
 other form of action. 
 
 The conclusion of a new assignment must be with a verifica- 
 tion, in order that the defendant may have an opportunity of 
 answering it. 
 
 A new assignment being in the nature of a new decla- 
 ration, and dismissing the previous pleading from consideration, 
 80 far as respects the matter newly assigned, the defendant 
 should plead to it precisely as to a declaration, either by deny- 
 ing the matter newly assigned, by the plea of not guilty, etc., or- 
 by answering it by a special plea of matter of justification; and 
 he may plead several pleas. 
 
 To the plea or pleas to the new assignment the plaintiff should 
 reply precisely as to pleas to a declaration, and if the plea be 
 such as would require a new assignment, if pleaded to a declara- 
 tion, the plaintiff should again new-assign to such plea. 
 
 The conclusions of replications, in point of form, should 
 either be to the country, or with a verification. 
 
 It is an established rule, applicable to every part of plead- 
 
238 PLEADINGS. 
 
 ing, subsequent to the declaration, that when there is an affirma- 
 tive on one side and a negative on the other, or vice versa, the 
 conclusion should be to the country, although the affirmative 
 and negative be not in express words, but only tantamount 
 thereto. 
 
 It is a general rule that when new matter is alleged in a repli- 
 cation, it should conclude with an averment or verification, in 
 order to give the defendant an opportunity of answering it. 
 
 The qualities of a replication in a great measure resemble 
 those of a plea, viz : First — that it must answer so much of the 
 plea as it professes to answer, and that if bad in part, it is bad 
 for the whole.. Secondly — that it must be conformable to, and 
 not depart from, the count. Thirdly — that it must present mat- 
 ter of estoppel, or must traverse or confess and avoid the plea. 
 Fourthly— that, like a plea, it should be certain, direct, positive and 
 not argumentative, and also that it be triable. Fifthly — that it 
 must be single. 
 
 It is a settled rule that the replication must not depart from 
 the allegations in the declaration in any material matter. 
 
 A departure in pleading is said to be when a party quits or 
 departs from the case or defence which he has first made, and 
 has recourse to another; it occurs when the replication or re- 
 joinder, etc., contains matter not pursuant to the declaration or 
 plea, etc., and which does not support and fortify it. 
 
 The only mode of taking advantage of a departure is by de- 
 murrer, which may be either general or special ; and if the de- 
 fendant or the plaintiff, instead of demurring, take issue upon 
 the replication or the rejoinder containing a departure, and it 
 be found against him, the court will not arrest the judgment. 
 
 If the plaintiff do not dispute and cannot avoid the facts stated 
 in the plea, but contends that their legal operation is insufficient 
 to defeat the action, he must demur to the plea. 
 
 The replication must not be double, that is, contain two 
 answers to the same plea. 
 
 "When a replication, or a plea in bar in replevin, concludes to 
 the country, the defendant can only demur, or add the common 
 similiter, which is, "and the defendant doth the like;" and it is 
 material that the defendant should take care that the similiter 
 be added, for otherwise he cannot move for judgment, as in case 
 ■of a nonsuit. 
 
 A rejoinder is the defendant's answer to a replication, and is 
 
PLEADINGS. 239 
 
 in general governed by the same rules as those which affect 
 pleas, with this additional quality, that it must support and 
 not depart from the plea. 
 
 Bur-rejoinders, rebutters and sur-rebutters seldom oc- 
 cur in pleading, and are governed by the same rules as those to 
 which the previous pleading of the party adopting them is sub- 
 ject. 
 
 Issue is defined to be a single, certain and material point is- 
 suing out of the allegations or pleadings of the plaintiff and de- 
 fendant, though in common acceptation it signifies the entry of 
 the pleadings themselves. 
 
 An issue is either in law, upon a demurrer, or in fact, when 
 the matter is triable by the court upon nul tiel record, or a jury 
 upon pleadings concluding to the country. The term "issue" 
 is proper where only one plea has been pleaded, and though it 
 .be applied to several counts, and issue is joined upon such plea. 
 An issue should, in general, be upon an affirmative and a nega- 
 tive, and not upon two affirmatives. It should also be upon a 
 single and a certain point, and its principal quality is, that it must 
 be upon a material point. 
 
 An informal issue is where a material allegation is traversed 
 in an improper or artificial manner. 
 
 Repleader. — When the issue is immaterial, the court will 
 award a repleader, if it will be the means of effecting substantial 
 justice between the parties, but not otherwise. 
 
 In repleader — i. e. to plead again — the parties must begin 
 again at the first fault which occasioned the immaterial issue : 
 thus, if the declaration be insufiicient, and the bar and replica- 
 tion are also bad, the parties must begin de novo ; but if the bar 
 be good, and the replication ill, at the replication. 
 
 Where the plea is good in form, though not in fact, or, 
 in other words, if it contain a defective title, or ground of de- 
 fence by which it is apparent to the court by the defendant's 
 own showing, that in any way of putting it, be can have no 
 merits, and the issue joined thereon be found for him, there, as 
 the rewarding of a repleader could not mend the case, the court, 
 for the sake of the plaintiff, will at once give judgment non ob- 
 stante veredicto. 
 
 But vrhere the defect is not so much in the title as in 
 the manner of stating it, and the issue joined thereon is im- 
 material, so that the court knew not for whom to give judgment, 
 
240 PLEADINGS. 
 
 whether for the plaintiff or defendant, then, for the more satis- 
 factory administration of justice, they will award a repleader. 
 
 A judgment non obstante veredicto is always upon the merits, and 
 never granted but in a very clear case ; a rej)leader is upon the 
 form and manner of pleading. 
 
 When matter of defence had arisen after the com- 
 mencement of the suit, it could not be pleaded in bar of the 
 action generally, but must, when it had arisen before plea or con- 
 tinuance, be pleaded as to the further maintenance of the suit; 
 and when it had arisen after plea, and before replication, or after 
 issue joined, then puis darien continuance. 
 
 If any matter of defence has arisen after an issue in fact has 
 been joined, or after a joinder in demurrer, it may be pleaded 
 by the defendant; as that the plaintiff has given him a release, 
 or that the plaintiff is a bankrupt, etc. And if the defendant 
 became bankrupt, and obtained his certificate after issue joined, 
 he should plead this defence pwjs darien continuance. 
 
 So it may be pleaded in abatement that a feme sole plaintiff 
 has married ; or in an action by an administrator, that the plain- 
 tiff's letters of administration had been revoked, puis darien. 
 continuance, etc. 
 
 Pleas of this kind are either in abatement or in bar. 
 
 A plea^Mz's darien continuance is not a departure from, but is 
 a waiver of the first plea, and no advantage can afterwards be 
 taken of it, nor can even the plaintiff afterwards proceed thereon. 
 
 The courts will sometimes set aside a plea puis darien continu- 
 ance when it is manifestly fraudulent, and against the justice of 
 the case. 
 
 DEMURRERS.— When the declaration, plea, or replication, 
 etc., appears on the face of it and without reference to extrinsic 
 matter, to be defective, either in substance or form, the opposite 
 party may, in general, demur. 
 
 Demurrer has been defined to be a declaration that the party 
 demurring will "go no further," because the other has not 
 shown sufficient matter against him that he is bound to answer. 
 
 Where the pleading is defective in substance it is advisable, in 
 general, to demur, heeause the party succeeding thereon is en- 
 titled to costs; but where the judgment is reversed in error, no- 
 costs are recoverable. 
 
 A deiflurrer admits the facts pleaded, and merely refers the 
 CLuestion of their legal suflaciency to the decision of the court. 
 
PLEADINGS. 241 
 
 Demurrers are either general or special; general, 
 
 "where no particular cause is alleged ; special, when the par- 
 ticular imperfection is pointed out and insisted upon as the 
 ground of demurrer ; the former will sufS^ee when the pleading 
 is defective in substance, and the latter is requisite where the ob- 
 jection is only to the form of pleading. 
 
 A demurrer is either to the whole, or to a part only, of a declara- 
 tion. 
 
 In point of form, no precise words are necessary in a de- 
 murrer, and a plea which is in substance a demurrer, though 
 very informal, will be considered as such ; and it is a general 
 rule that there cannot be a demurrer to a demurrer. 
 
 A party should not demur unless he be certain that his own 
 previous pleading is substantially correct, for it is an established 
 rule that upon the argument of a demurrer, the court will, not^ 
 withstanding the defect of the pleading demurred to, give judg- 
 ment against the party whose pleading was first defective in 
 substance; for on demurrer the court will consider the whole 
 record, and give judgment for the party who thereon appears to 
 be entitled to it. 
 
 DEFECTS IN PLEADING are aided or cured without any 
 actual amendment, viz : First — by pleading over. Secondly — by 
 intendment, or presumption, after verdict; and, thirdly — by the 
 Statutes of Jeofails. 
 
 Pleading over is to answer the defective pleading in such a 
 manner that an omission or informality therein is expressly or 
 impliedly supplied, or rendered formal or intelligible. 
 
 Intendment, after verdict, is a doctrine founded on the com- 
 mon law, independent of any statutory enactments; the general 
 principle upon which it depends appears to be that where there 
 is any defect or omission in pleading, whether in substance or 
 form, which would have been a fatal objection upon demurrer, 
 j/e^if the issue joined be such as necessarily required, on the trial, 
 proof of the facts so defectively stated or omitted, and without 
 which it is not to be presumed that either the judge would direct 
 the jury to give, or the jury would have given the verdict, such 
 defect or omission is cured by the verdict. 
 
 The main rule on the subject of intendment is that a 
 verdict will aid a defective statement of title, but will never assist 
 a statement of a defective title or cause of action. 
 Cured by verdict is an expression signifying that the court 
 
 16 
 
242 PLEADIlSrGS. 
 
 will, after a verdict, presume or intend that the particular thing 
 which appears to be defectively stated or omitted in the plead- 
 ing was duly proved at the trial. 
 
 THE SCIENCE OF PLEADING was no doubt derived 
 from Normandy. The use of stated forms of pleading is not to 
 be traced among the Anglo-Saxons. Pleading was cultivated as 
 a science in the reign of Edward I. The object of pleading is 
 to ascertain by the production of an issue the subject for de- 
 cision. 
 
 I. The rul^s which tend simply to the production of 
 an issue are : 
 
 (a.) That after declaration the parties must at each stage de- 
 mur or plead, either by way of traverse, or by way of confes- 
 sion and avoidance; and as to the nature and property of plead- 
 ings in general, without reference to their being by traverse or 
 by confession and avoidance, the properties are : 
 
 That every pleading must be an answer to the whole of 
 what it adversely alleged. 
 
 That every pleading is taken to confess such traversable 
 matters alleged on the other side as it does not traverse, but 
 dilatory pleas and pleas by estoppel are exceptions, as also 
 a new assignment, 
 (b.) That upon a traverse issue must be tendered, 
 (c.) That an issue well tendered must be accepted. 
 
 II. The rule -which tends to secure the materiality of 
 the issue is : 
 
 (a.) That all pleadings must contain matters pertinent and 
 material ; for a traverse must not be taken of an immaterial 
 point, and a traverse must be neither too large nor too narrow. 
 
 III. The rules which tend to produce singleness or 
 unity in the issue are : 
 
 (a.) That pleadings must not be double. 
 
 (b.) But it is allowable both to plead and to demur to the 
 eame matter by leave of the courts or a judge. 
 
 IV. The rules which tend to produce certainty or par- 
 ticularity in the issue are : 
 
 (a.) That the pleadings must have certainty of place, 
 (b.) That the pleadings must have certainty of time, 
 (c.) That the pleadings must specify quality, quantity, and 
 value. 
 (d.) That the pleadings must specify the names of persons, 
 
PLEADINGS. 243 
 
 "wliether parties to the suit or parties of whom mention is made 
 in the pleading. 
 
 (e.) That the pleadings must show title, 
 (f.) That the pleadings must show authority, 
 (g.) That, in general, whatever is alleged in pleadings must 
 be alleged with certainty. 
 
 The rules which tend to certainty are limited and 
 restricted by the following subordinate rules : 
 
 It is not necessary in pleading to state that which is 
 merely matter of evidence. 
 
 It is not necessary in pleading to state that matter of 
 which the court takes notice ex officio. 
 
 It is not necessary to state matter which should come 
 more properly from the other side. 
 
 It is not necessary to allege circumstances necessarily im- 
 plied. 
 
 It is not necessary to allege what the law will presume. 
 A general mode of pleading is allowed where great pro- 
 lixity is thereby avoided. 
 
 A general mode of pleading is often sufficient where the 
 allegation on the other side must reduce the matter to cer- 
 tainty. 
 
 No greater particularity is required than the nature of 
 the thing pleaded will conveniently admit. 
 
 Less particularity is required when the facts lie more in the 
 
 knowledge of the opposite party than of the party pleading. 
 
 Less particularity is necessary in the statement of the 
 
 matters of inducement or aggravation than in the main 
 
 allegations. 
 
 With respect to acts valid at common law, but regulated 
 as to the mode of performance, by statute, it is sufficient to 
 use such certainty of allegation as was sufficient before the 
 statute. 
 V. The rules which tend to prevent obscurity and 
 confusion in .pleading are : 
 (a.) That the pleading must not be insensible or repugnant, 
 (b.) That the pleadings must not be ambiguous or doubtful in 
 meaning ; and when two different meanings present themselves, 
 that construction shall be adopted which is the more unfavor- 
 able to the party pleading. 
 
 (c.) That the pleadings must not be argumentative. 
 
244 PLEADINGS. 
 
 (d.) That the pleadings must not be hypothetical or in the 
 alternative. 
 
 (e.) That the pleadings must not be by way of recital, but 
 must be positive in their form. 
 
 (f.) That things are to be pleaded according to their legal eflfect 
 or operation. 
 
 (g.) That the pleading should observe the ancient and known 
 forms of expression as contained in approved precedents. 
 
 (h.) But formal commencements and conclusions are dis- 
 pensed with. 
 
 (i.) That a pleading which is bad in part is bad altogether. 
 
 VI. The rules which tend to prevent prolixity and 
 delay in pleading are : 
 
 (a.) That there must be no departure in pleading. 
 
 (b.) That where a plea amounts to the general issue it should 
 be so pleaded. 
 
 (e.) That surplusage is to be avoided. 
 
 Vn. The other miscellaneous rules are : 
 
 (a.) That the declaration must be conformable to the writ. 
 
 (b.) That the declaration shall have its proper commence- 
 ment, and should in conclusion lay damages and allege produc- 
 tion of suit. 
 
 (e.) That pleas must be pleaded in due order. 
 
 (d.) That pleas in abatement must give the plaintiff a better 
 writ or declaration. 
 
 (e.) That dilatory pleas must be pleaded at a preliminary 
 stage of the suit. 
 
 (f ) But pleadings do no longer conclude to the country or 
 with a verification. 
 
 (g.) And profert of a deed is dispensed with. 
 
 (h.) That all pleadings must be properly entitled. 
 
 (i.) That all pleadings ought to be true. 
 
 The order of pleadings at common la-w in all actions, 
 except replevin, is as follows : 
 (1.) Declaration. 
 (2.) Plea. 
 (3.) Eeplication. 
 (4.) Eejoinder. 
 (5.) Sur-rejoinder. 
 (6.) Eebutter. 
 
PLEADINGS. 245 
 
 (7.) Sur-rebutter ; after -whicli the pleadings have no dis- 
 tinctive names, for beyond this stage they are very seldom found 
 to extend. 
 
 The pleadings 1, 3, 5, and 7 emanate from the plaintiff, the 
 remainder from the defendant. 
 
 The pleadings in replevin are as follows : 
 
 (1.) Plaint or declaration. 
 
 (2.) Avowry, cognizance, or plea of non cepit. 
 
 (3.) Plea in bar. 
 
 (4.) Eeplication, etc., the ordinary name of each pleading 
 being postponed by one step. 
 
 The pleadings in equity are thus arranged : 
 
 (1.) Bill of information. 
 
 (2.) Answer, plea, demurrer, or disclaimer. 
 
 (3.) Eeplication. 
 
 The pleadings in criminal law are : 
 
 (1.) Indictment or information. 
 
 (2.) Plea or demurrer. 
 
 (3.) Similiter OT joinder. 
 
 The pleadings in ecclesiastical causes are : 
 
 (I.) In criminal causes. 
 
 (a.) The articles. 
 
 (II.) The plenary causes, not criminal. 
 
 (a.) The libel. 
 
 (III.) In testamentary causes. 
 
 (a.) The allegation. 
 
 Every subsequent plea, in all causes and by whatever party 
 ^iven, is termed 
 
 (b.) An allegation. 
 
THE 
 
 LAW OF EVIDENCE 
 
 ABEIDGED. 
 
248 EVIDENCE. 
 
 ANALYSIS. 
 
 Nature and principles of evidence. 
 Preliminary observations. 
 Things judicially taken notice of without proo£ 
 Grounds of belief. 
 Evidence — Definition of. 
 Direct or positive, 
 Circumstantial, 
 Presumptive. 
 
 Presuinptions of law. 
 Conclusive, 
 Disputable, 
 , I Presumptions of fact. 
 
 Object of Evidence, and Eules governing the production of testimony. 
 Relevancy of evidence. 
 
 Bules governing production to the jury, 
 variance. 
 Primary and secondary evidence. 
 Hearsay evidence. 
 
 Original evidence — often wrongfully called hearsay. 
 
 Exceptions to the rule rejecting hearsay evidence. 
 Admissions. 
 Confessions. 
 
 Evidence excluded from public policy. 
 Number of witnesses. 
 Admissibility of parol evidence, to affect writings. 
 
 Means of proof, or the Instruments of evidence. 
 
 "Witnesses and means of procuring their attendance. 
 Competency of witnessps. 
 
 In regard to parties. 
 
 To persons deficient in understanding. 
 
 Those insensible to the obligations of an oath. 
 
 Persons interested. 
 Examination of witnesses. 
 
 Direct examination. 
 
 Cross-examination. 
 Written evidence. 
 
 Public documents. 
 
 Mode of proof. 
 
 Records and judicial writings. 
 
 Private writings. 
 
EVIDENCE. 249 
 
 EYTDElifOE. 
 
 NATUEE AND PEINCIPLBS OE EVIDENCE. 
 
 PREIiimiyARY OBSEKVATIOirS.— Evidence, 
 
 in legal acceptation, includes all the means by which any alleged 
 matter of fact, the truth of which is submitted to investigation, 
 is established or disproved. 
 
 Proof is that which establishes a thing by competent and sat- 
 isfactory evidence. 
 
 Demonstration is that high degree of evidence of which 
 none but mathematical truth is susceptible. 
 
 Moral evidence is that which alone proves matters of fact, 
 and also includes all the evidence not obtained, either from intu- 
 ition or from demonstration. 
 
 Competent evidence is that which the very nature of the 
 thing to be proved requires as the fit and appropriate proof in 
 the particular case ; as the production of a writing, where its 
 contents are the subject of the enquiry. 
 
 Satisfactory evidence — sometimes called svfficient evidence 
 — is that amount of proof which ordinarily satisfies an unpreju- 
 diced mind, beyond reasonable doubt. 
 
 Cumulative evidence is evidence of the same kind, to the 
 same point. 
 
 Corroborative evidence is that which tends to strengthen 
 and confirm. 
 
 Things judicially taken notice of without proof by the 
 courts, are whatever ought to be generally known, within the 
 limits of their jurisdiction. 
 
 THE GROUNDS OF BELIEF in evidence are : 
 
 First — The uniform habits and necessities of mankind lead us 
 to consider the disposition to believe upon the evidence of ex- 
 traneous testimony as a fundamental principle of our moral 
 nature. They constitute the general basis upon which all evi- 
 dence may be said to rest. 
 
250 EVIDENCE. 
 
 Secondly — A basis of evidence subordinate to this para- 
 mount and original principle, rests upon our faith in human 
 testimony, as sanctioned by experience. 
 
 Thirdly — Another basis of evidence is the known and expe- 
 rienced connection subsisting between collateral facts or circum- 
 stances, satisfactorily proved, and the fact in controversy. 
 
 Fourthly — Another basis claimed by some writers is the 
 effect of coincidences in testimony, which, if collusion be ex- 
 cluded, cannot be accounted for upon any other hypothesis than 
 that it is true. 
 
 It is said that " the wise and beneficent Author of Nature in- 
 tended us to be social creatures, and, as a consequence, that we 
 should receive the greater part of our knowledge from others; 
 hence he implanted in our nature a principle or propensity to 
 speak the truth. This principle has a powerful operation even 
 in the greatest liars, for where they lie once they speak the 
 truth a hundred times. Truth is always at the door of our lips, 
 and goes forth spontaneously, if not held back. It is always, 
 uppermost, and the natural issue of the mind, and requires no 
 art, training, inducement, or temptation, but only that we yield 
 to a natural impulse. Lying, on the contrary, is doing violence- 
 to our nature, and is never practiced, even by the worst men,, 
 without some temptation." 
 
 EVIDENCE is direct or positive, and indirect or circumstantials 
 
 Direct or positive evidence is such where ihe factum pro- 
 handum, or fact to be proved, is directly attested by those who 
 speak from their own actual and personal knowledge ; the proof 
 applying immediately to the fact to be proved, without any in- 
 tervening process. It rests upon the second basis of evidence. 
 
 Circumstantial evidence is such where the fact to be proved 
 is inferred from other facts satisfactorily proved, the proof apply- 
 ing immediately to collateral facts, supposed to have a connection,, 
 near or remote, with the fact in controversy. It rests upon the 
 third basis of evidence. 
 
 Circumstantial evidence is of two kinds, viz : certain, or 
 that from which the conclusion necessarily follows, and uncertain, 
 or that from which the conclusion does not necessarily follow, 
 but is probable only, and is obtained by a process of reasoning. 
 
 A verdict may be well founded on circumstances alone, and 
 these often lead to a conclusion far more satisfactory than direct 
 evidence can produce. 
 
EYIDBKCE. 251 
 
 Presumptive evidence is circumstantial evidence, or the- 
 evidence afforded by circumstances, with the additional presump- 
 tion of inference, founded on the known usual connection between 
 the facts proved and the guilt of the party implicated ; hence it 
 is a more complex and difficult operation of the mind than in 
 circumstantial evidence, though, in truth, the operation of the 
 mind is similar in both. Presumptive evidence is divided into 
 presumptions of law and presumptions of fact. 
 
 Presumptions of lawr consist of those rules which in certain 
 cases either forbid or dispense with any ulterior enquiry. They 
 are founded upon the first principles of justice, the laws of nature,. 
 or the connection usually found to exist between certain things- 
 in the experienced course of human conduct and affairs. They 
 are of two kinds : conclusive and disputable. 
 
 Conclusive presumptions of law — also called imperative 
 or absolute presumptions — are rules determining the quantity of 
 evidence requisite for the support of any particular averment, 
 which is not permitted to be overcome by any proof that the 
 fact is otherwise. 
 
 Thus a sane man is conclusively presumed to contemplate the 
 natural and probable consequences of his own acts, therefore the 
 intent to murder is conclusively inferred from the deliberate use 
 of a deadly weapon. 
 
 The records of a court of justice are presumed to have been 
 correctly made. A party to the record is presumed to have been 
 interested in the suit. 
 
 A bond, or other specialty, is presumed to have been made 
 upon good consideration, as long as the instrument remains un- 
 impeached. 
 
 Ancient deeds and wills, more than thirty years old, unblem- 
 ished by any alterations, are said to ■ prove themselves, being 
 presumed valid and the subscribing witness dead. 
 
 Estoppels may be ranked in this class of presumptions. A man 
 is said to be estopped when he has done some act which the pol- 
 icy of the law will not permit him to gainsay or deny. 
 
 Becitals in deeds, by the general rule, bind all the parties 
 thereto, and operate as an estoppel against them, binding both 
 parties and privies — ^privies in blood, in estate, and in law. Be- 
 tween such parties and privies the deed, or other matter recited,, 
 need not at any time be otherwise proved, the recital of it in the 
 subsequent deed being conclusive. ' 
 
i252 EVIDENCE. 
 
 An infant, under the age of seven years, is conclusively pre- 
 sumed to be incapable of committing any felony, for want ot 
 discretion. A female under the age of ten years is presumed 
 incapable of consenting to sexual intercourse. 
 
 A married woman, acting in company with her husband, in the 
 commission of a felony other than treason and homicide, is con- 
 clusively presumed to act under his coercion, and consequently 
 without any guilty intent. 
 
 Where the husband and wife have cohabited together as such, 
 and no impotency is proved, the issue is conclusively presumed 
 to be legitimate, though the wife may have been guilty of infi- 
 'delity. 
 
 In the cases of conclusive presumptions, the rule of law merely 
 attaches itself to the circumstances when proved ; it is not de- 
 duced from them. It is not a rule of inference from testimony, 
 but a rule of protection, as expedient and for the general good. 
 
 Disputable presumptions of law are such as are liable to 
 be rebutted by proof to the contrary. Here, also, the law it- 
 self, without the aid of a jury, infers the one fact from its known 
 and experienced connection with the proved existence of the 
 other, in the absence of all opposing evidence. 
 
 B. g. — As men do not generally violate the penal code, the 
 law presumes every man innocent ; but some men do transgress 
 it, and therefore evidence is receivable to repel this presump- 
 tion. 
 
 On the other hand, as men seldom do unlawfiil acts with inno- 
 cent intentions, the law presumes every act in itself unlawful 
 to have been criminally intended, until the contrary appears. 
 
 On the same principle, where a debt by specialty has been un- 
 claimed and without recognition for twenty years, in the absence 
 of any explanatory evidence, it is presumed to have been paid. 
 
 Presumptions of fact differ from presumptions of law in 
 this, that while those are reduced to fixed rules, these merely 
 natural presumptions are derived wholly and directly from the 
 circumstances of the particular case, without the aid of any rules 
 of law. 
 
 Long acquiescence in any adverse claim of right is good 
 ground on which a jury may presume that the claim had a legal 
 commencement. 
 
EVIDENCE. 
 
 25a; 
 
 EVIDENCE 
 
 MAT BE 
 
 PRIMARY OR SECONDARY, 
 
 WBITTEN OB UNWRITTEN, 
 
 AND 
 
 Direct or Indirect or Original. 
 
 positive. circumstantial. 
 
 Satisfactory. 
 Conapetent. 
 Cumulative. 
 Corroborative. . 
 Moral. 
 
 Certain. Uncertain. Presumptive. 
 
 Presumptions 
 of law. 
 
 Presumptions 
 of fact. 
 
 Conclusive. 
 
 Disputable.- 
 
254 EVIDENCE. 
 
 Presumptions of fact fall within the exclusive province of the 
 jury to decide, by themselves, according to the convictions of 
 their own understanding. 
 
 OBJECT OF EVI15E]?rCE, A^S3 RUIiES GOV- 
 EBSril^CJ THE PK©®UCTIO]!ir ©F 
 
 TESTIMONY. 
 
 RELEVANCY OF EVIDENCE.— Whether there be any 
 evidence or not, is a question for the judge; whether it is suffi- 
 cient evidence, a question for the jury. 
 
 Where the question is mixed, consisting of both law and fact, 
 so intimately blended, as not to be easily susceptible of separate 
 decision, it is submitted to the jury, who are first instructed by 
 the judge in the principles and rules of law, by which they are 
 to bo governed in finding a verdict, and these instructions they 
 are bound to follow. 
 
 Questions of interpretation, as well as of construction of writr 
 ten instruments, are for the court alone. 
 
 The general rules or principles governing the produc- 
 tion of testimony to the jury are : 
 
 First — The evidence must correspond with the allegations and 
 be confined to the point in issue. 
 
 Secondly — It is sufficient if the substance only of the issue 
 be proved. 
 
 Thirdly — The burden of proving a proposition, or issue, lies 
 on the party holding the affirmative. 
 
 Fourthly — The best evidence of which the case, in its nature, 
 is susceptible, must always be produced. 
 
 Of the first rule in general. — Surplusage comprehends 
 whatever may be stricken from the record without destroying 
 the plaintiff's right of action. 
 
 It is not necessary that the evidence should bear directly upon 
 the issue ; it is admissible if it tends to prove the issue or con- 
 stitutes a link in the chain of proof. 
 
 Nor is it necessary that its relevancy should appear at the 
 time when it is offered ; but if it does not subsequently become 
 connected with the issue, it is to be laid out of the case. 
 
 This rule excludes all evidence of collateral facts, 
 for the reason that it tends to draw away the minds of jurors 
 from the point in issue j to excite prejudice, and mislead them; 
 
EVIDBlSrCE. 255 
 
 moreover, the adverse party, having had no notice of such a 
 course of evidence, is not prepared to rebut it. 
 
 Under this rule, also, evidence of the general character of the 
 parties is not admissible in civil cases, unless the nature of the 
 action involves the general character of the party, or goes di- 
 rectly to affect it. In all cases where evidence is admitted 
 touching the general character of the party, it ought manifestly 
 to bear reference to the nature of the charge against him. 
 
 Of the substance of the issue. — In the application of the 
 second rule a distinction is made between allegations of matter 
 of substance and allegations of matter of essential description. 
 The former may be substantially proved ; but the latter must 
 be proved with a degree of strictness, extending in some cases 
 even to literal precision. 
 
 In general, the allegations of time, place, quantity, quality and 
 value, when not descriptive of the identity of the subject of the 
 action, need not be proved strictly as alleged. 
 
 Variance is a disagreement between the allegation and the 
 proof in some matter in point of law essential to the charge or 
 claim. It being necessary to prove the substance of the issue, 
 any departure from the substance, in the evidence adduced, is 
 fatal, constituting a variance. 
 
 "Where the matter, whether introductory or otherwise, is de- 
 scriptive, it must be proved as laid, or the variance will be fatal. 
 
 In actions upon contract, if any part of the contract proved 
 should vary materially from that which is stated in the plead- 
 ings, it will be fatal, for a contract is an entire thing, and indi- 
 visible. 
 
 The gravamen is the substantial grievance, or complaint. In 
 breaches of contracts it is that certain act which the defendant 
 «ngaged to do, yet has not done. 
 
 The gist of an action is the cause for which it lies ; the ground 
 or foundation of a suit, without which it is not maintainable. 
 
 In almost every case, the consequences of a variance between 
 the allegation in the pleadings and the state of facts proved may 
 now be avoided by amendment of the record. 
 
 The burden of proof, or the third rule, has some exceptions, 
 one of which includes those cases in which the plaintiff grounds 
 his right of action upon a negative allegation, and where, of course, 
 the establishment of this negative is an essential element in his 
 
256 EVIDENCE. 
 
 The best evidence, or the fourth rule, excludes only that 
 evidence which itself indicates the existence of more original 
 sources of information. 
 
 This rule naturally leads to the division of evidence into pri- 
 mary and secondary. 
 
 Primary evidence is that denominated the best evidence, or- 
 that which affords the greatest certainty of the fact in question.. 
 
 Secondary evidence is all evidence falling short of this in. 
 its degree. 
 
 Oral evidence cannot be substituted for any instrument which, 
 the law requires to be in writing. 
 
 Oral proof cannot be substituted for the written evidence of 
 any contract which the parties have put in writing. 
 
 A writing, in the possession of the adverse party, is still pri- 
 mary evidence of the contract, and its absence must be accounted 
 for by notice to the other party to produce it, before secondary- 
 evidence of its contents can be received. 
 
 Oral evidence cannot be substituted for any writing, the exist- 
 ence of which is disputed, and which is material, either to the issue 
 or to the credit of the witnesses, and is not merely the memoran- 
 dum of some other fact. 
 
 "Where the writing does not fall within either of the three 
 classes already described, there is no ground for its excluding 
 oral evidence. 
 
 HEARSAY EVIDENCE is that kind of evidence which 
 does not derive its value solely from the credit to be given to 
 the witness himself, but rests also in part on the veracity and. 
 competency of some other person. 
 
 The term hearsay is used with reference to that which is writ- 
 ten, as well as to that which is spoken. 
 
 Original evidence. — There are four classes of declarations,. 
 which, though in truth original evidence, are usually treated 
 under the head of hearsay, viz : 
 
 First — Where the fact that the declaration was made, and not 
 its truth or falsity, is the point in question. 
 
 Secondly — Expressions of bodily or mental feelings, where 
 the existence or nature of such feelings is the subject of en- 
 quiry. 
 
 Thirdly — Cases o{ pedigree, including the declarations of those 
 nearly related tothe party whose pedigree is in question. 
 
 Fourthly — All other cases where the declaration offered in. 
 
EVIDENCE. 25T 
 
 evidence may be regarded as part of the res gestce, or surround- 
 ing circumstances. 
 
 All these classes are involved in the principle of the last. 
 
 The general rule of law rejects all hearsay reports of transac- 
 tions, whether written or verbal, given by persons not produced 
 as witnesses. 
 
 The principle of this rule is that such evidence requires credit 
 to be given to a statement made by a person who is not subject 
 to the ordinary tests enjoined by law, viz : the sanction of an 
 oath, and want of opportunity for cross-examination. 
 
 The surrounding circumstances, constituting parts of the res 
 gestce, or transaction, may always be shown to the jury, along 
 with the principal fact. 
 
 The exceptions to the rule of law, rejecting hearsay evi- 
 dence, are allowed only on the ground of the absence of better 
 evidence, and from the nature and necessity of the case. They 
 are as follows : 
 
 First — Those declarations relating to matters of public and 
 general interest. 
 
 Secondly — Declarations relating to ancient possessions. 
 
 Thirdly — ^Declarations against interest. 
 
 Fourthly — Dying declarations, and some others of a miscel- 
 laneous nature. 
 
 Fifthly — Testimony of deceased witnesses, given in a former 
 action between the same parties. 
 
 On the first exception. — Evidence of common reputation is 
 received in regard to public facts — as a claim of highway or a 
 right of ferry — on somewhat similar ground to that on which 
 public documents, not judicial, are admitted, viz : the interest 
 which all have in their truth, and the consequent probability 
 that they are true. 
 
 The value of general reputation, as evidence of the true state 
 of facts, depends upon its being the concurrent belief of minds 
 unbiased, and in a situation favorable to a knowledge of the 
 truth, and referring to a period when this foundation of evidence 
 was not rendered turbid by agitation. 
 
 Declarations made after the controversy has originated are 
 excluded, even though proof is offered that the existence of the 
 controversy was not known to the declarant. 
 
 Where evidence of reputation is admitted, in cases of public 
 
 17 
 
258 EVIDENCE. 
 
 or general interest, it is not necessary that the witness should 
 be able to specify /rom whom he heard the declarations. 
 
 The second exception to the rule is allowed in cases of 
 ancient possession, and in favor of the admission of ancient 
 documents in support of it. 
 
 The third exception is allowed in the case of declarations 
 and entries made by persons since deceased, and against the in- 
 terest of the persons making them, at the time they were made, 
 on the ground of the extreme improhahility of their falsehood. 
 
 The fourth exception is allowed in the case of dying dec- 
 larations, on the general principle that they are declarations 
 made in extremity, when the party is at the point of death, and 
 when every hope of this world is gone ; when every motive to 
 falsehood is silenced, and the mind is induced, by the most 
 powerful considerations, to speak the truth. 
 
 They are now only admissible in cases of homicide, where the 
 death of the deceased is the subject of the charge, and the cir- 
 cumstances of the death are the subject of the dying declara- 
 tions. These declarations are received solely on the ground 
 that they were made in extremis ; for where they constitute part 
 of the res gestce, or come within the exception of the declarations 
 against interest, or the like, they are admissible as in other cases 
 irrespective of the fact that the declarant was under apprehen- 
 sion of death. 
 
 The declarations of the deceased are admissible only to those 
 things to which he would have been competent to testify, if sworn 
 in the cause. 
 
 The circumstances under which the declarations were made are 
 to be shown to ihe judge, it being his province, and not that of 
 the jury, to determine whether they are admissible. 
 
 If the statement of the deceased was committed to writing and 
 signed by him, at the time it was made, the writing should be 
 produced, if existing, and neither a copy nor parol evidence ad- 
 mitted in its place. 
 
 It has also been held that the substance of the declarations 
 may be given in evidence, if the witness is not able to state the 
 precise language used. 
 
 The fifth exception includes the testimony of witnesses, 
 given in a former action between the same parties, subsequently 
 dead, absent, or disqualified. 
 
 What the deceased witness testified may be proved by any 
 
EVIDENCE. ■ 259 
 
 person who will swear from his own memory, or by notes taken 
 by any one who will swear to their accuracy. 
 
 Admissions. — Under the head of exceptions to the rule re- 
 jecting hearsay evidence, it has been usual to treat of admissions 
 xind confessions by the part}-, considering them as declarations 
 against his interest, and therefore probably true. 
 
 Admission is a term usually applied to civil transactions and 
 those matters of fact, in criminal eases, which do not involve 
 criminal intent. 
 
 Confession is a term generally restricted to acknowledgments 
 of guilt. 
 
 The general doctrine is that the declarations of a party to the 
 record, or of one identified in interest with him, are, as against such 
 party, admissible in evidence. 
 
 In the absence of fraud, if the parties have a joint interest in 
 the matter in suit, whether as plaintiffs or defendants, an admis- 
 sion made by one is, in general, evidence against all. 
 
 It is a joint interest, and not a mere community of interest, that 
 renders such admissions receivable. 
 
 An apparent joint interest is not sufficient to render the ad- 
 missions of one party receivable against his companions, where 
 the reality of that interest is the point in controversy 
 
 The law gives the admissions of persons who are not parties 
 lo the record, but yet are interested in the subject-matter of the 
 suit, the same weight as though they were parties to the record. 
 Eut an admission made after other persons have acquired separ- 
 ate rights in the same subject-matter, cannot be received to dis- 
 parage their title, however it may affect the declarant himself. 
 
 In some cases the admissions of third persons, strangers to the 
 suit, are receivable, as when the issue is substantially upon the 
 .mutual rights of such persons at a particular time ; in which 
 case the practice is to let in such evidence in general as would 
 be legally admissible in an action between the parties them- 
 selves. 
 
 The admissions of a third person are also receivable in evi- 
 dence against the party who has expressly referred another to him 
 for information in regard to an uncertain or disputed matter. 
 "Whether the answer of a person thus referred to is conclusive 
 against the party, does not seem to have been settled. 
 
 Ihe admissions of the wife will bind the husband only where, 
 ^he has authority to make them. 
 
260 • EVIDBlSrCE. 
 
 Admissions of Attorneys of Becord bind their clients in all 
 matters relating to the progress and trial of the cause. But 
 they must bo distinct and formal. 
 
 Privity is a term denoting mutual or successive relationship 
 to the same rights of property, and is distributed into classes 
 according to the manner of this relationship, viz : privies in es- 
 tate, as donor and donee, lessor and lessee, and joint-tenants; 
 privies in blood, as heir and ancestor, and coparceners ; privies 
 in representation, as executors and testator, administrators and 
 intestate; and privies in law, where the law, without privity of 
 blood or estate, casts the land upon another, as by escheat. 
 
 The admissions of one person are evidence against another, 
 in respect of privity between them. The ground upon which 
 admissions bind those in privity with the party making them 
 is that they are indentified in interest. 
 
 Admissions by third persons, as they derive their value 
 and legal force from the relation of the party making them to 
 the property in question, are taken as parts of the res gestae, and 
 may be proved by any competent witness who heard them, without 
 calling the party by whom they were made. 
 
 Admissions may be implied from assumed character, language, 
 and conduct. 
 
 Verbal admissions ought to be received with great caution^ 
 The evidence, consisting as it does in the mere repetition of oral 
 statements, is subject to much imperfection and mistake. 
 
 Of the effect of admissions when proved, the rule is 
 that the whole admission is to be taken together. 
 
 Admissions which have been acted upon by others, are conclu- 
 sive against the party making them, in all cases between him 
 and the person whose conduct he has thus influenced. It makes 
 no difference whether they were made in express language, or are 
 implied from the open and general conduct of the pai-ty. In 
 such cases the party is estopped, on the grounds of public policy 
 and good faith, from repudiating his own representations ; as 
 illustrated by the case of a man cohabiting with a woman, and 
 treating her in the face of the world as his- wife, to whom in fact 
 he is not married. 
 
 It makes no difference, in the operation of the rule, whether 
 the thing admitted was true or false; it being the fact that it was 
 acted upon that renders it conclusive. 
 
 CONFESSIONS of guilt in criminal prosecutions. 
 
EVIDENCE. 261 
 
 This braneli of evidence is divided into two classes, viz : direct 
 confessions of guilt; and indirect confessions, or those which, in 
 civil cases, are usually termed implied admissions. 
 
 Here, also, as before remarked in regard to admissions, the 
 evidence of verbal confessions of guilt is to be received with 
 great caution. 
 
 It is generally agreed that deliberate confessions of guilt are 
 among the most eifeetual proofs in the law. 
 
 Confessions are also divided into judicial confessions, or 
 those made before the magistrate, or in court in the due course 
 of legal proceedings; and extrajudicial confessions, or those 
 made by the party elsewhere than before a magistrate or in 
 court. 
 
 Extrajudicial confessions, uncorroborated by any other 
 proof of the corpus delicti, are of themselves insuflScient to convict. 
 
 The whole of what the prisoner said at the time of making the 
 confession should be taken together. 
 
 Before any confession can be received in evidence in a crimi- 
 nal case it must be shown that it was voluntary. 
 
 If the confession has been obtained by the influence of hope, 
 ov fear, applied by a third person to the prisoner's mind, it must 
 be excluded. 
 
 Evidence excluded from public policy is such as the law 
 dispenses with because greater mischiefs would probably result 
 from requiring or permitting its admission than from wholly 
 rejecting it. 
 
 Of this class are communications between husband and wife, 
 
 professional communications, awards, secrets of State, proceedings 
 
 of grand and traverse jwrors, and that which is indecent or offen- 
 
 - sive to public morals or injurious to the feelings or interest of 
 
 third persons. 
 
 Exceptions to the rule are communications made to clergymen 
 nnd physicians ; and grand jurors may also be asked whether 
 twelve of their number actually concurred in the finding of a bill, 
 the certificate of the foreman not being conclusive evidence of 
 that fact. 
 
 Number of Tvitnesses, and the nature and quantity of 
 proof required in particular cases. — Two witnesses are nec- 
 essary to convict of high treason. 
 
 Perjury is a crime sufficiently established by one witness, 
 with corroborating circumstances. 
 
262 EVIDENCE. 
 
 If the evidence adduced in proof of the crime of perjiiry con- 
 sists oitwo opposing statements of the prisoner, and nothing more, 
 he cannot be convicted. For there are cases in which a person 
 might very honestly and conscientiously swear to a particular 
 fact, from the best of his recollection and belief, and from other 
 circumstances subsequently be convinced that he was wrong, 
 and swear to the reverse, without meaning to swear falsely either 
 time. 
 
 The evidence arising from circumstances alone to&j be stronger 
 than the testimony of any single witness. 
 
 The statute of frauds, passed in the reign of Charles II, 
 the provisions of which have been enacted, generally in the 
 same words, in nearly all the United States, universally requires 
 all conveyances of land, or interests in lands, for more than three 
 years, to be evidenced by writing. All interests in lands, of 
 whatever nature, created hj parol without writing, being allowed 
 only the force and effect of estates at will, except leases, not ex- 
 ceeding three years, for which term a parol lease is good; but if 
 it is to commence infuturo, yet if the term is not to exceed three 
 years, it is good. A parol lease for a longer period than the 
 statute admits is void for the excess. 
 
 By the same statute, written evidence, signed by the party to 
 be charged therewith, or by his agent, is required in every case 
 of contract by an executor or administrator, to answer damages 
 out of his own estate ; in every promise of one person to answer 
 for the debt, default, or miscarriage of another ; in every agree- 
 ment made in consideration of marriage ; in every agreement 
 which is not to be performed within a year from the time of 
 making it; in every contract for the sale of lands, tenements, 
 hereditaments, or any interest in or concerning them ; also in 
 every case of contract for the sale of goods, unless the buyer 
 shall receive part of the goods at the time of sale, or give some- 
 thing in earnest, to bind the bargain or in part payment. 
 
 Devises of lands and tenements are also required to be in. 
 writing, signed by the testator and attested by competent wit- 
 nesses. 
 
 Admissibility of parol or verbal evidence, to afTect 
 that which is written. — By written evidence is here meant not 
 everything in writing, but that only containing the terms of a 
 contract between the parties, and designed to bo the repository 
 and evidence of their final intentions. 
 
EVIDENCE. 263 
 
 The rule is that parol contemporaneous evidence is in- 
 admissible to contradict or vary the terms of a valid 
 -written instrument. 
 
 But written instruments may be read by the light of sur- 
 rounding circumstances, in order to more perfectly understand 
 the intent and meaning of the parties, but no other words are to 
 be added to it, or substituted in their stead. 
 
 The duty of the court is to ascertain, not what the party se- 
 cretly intended, but what is the meaning of the words they have 
 used; and where the language of an instrument has a settled 
 legal construction, parol evidence is not admissible to contradict 
 that construction. 
 
 The terms of every written instrument are to be understood 
 in their plain, ordinary, and popular sense unless by the known 
 usage of trade, or the like, they have acquired a peculiar sense. 
 
 The rule under consideration is applied only in suits between 
 the parties to the instrument, as they alone are to blame if the 
 writing contains what was not intended, or omits that which it 
 should have contained. 
 
 The rule excludes only parol evidence of the language of the par- 
 ties, contradicting, varying, or adding to that which is contained 
 in the written instrument. 
 
 But where the agreement in writing is expressed in short and 
 incomplete terms, parol evidence is admissible to explain that 
 which is, per se, unintelligible, such explanation not being incon- 
 sistent with the written terms. 
 
 The rule does not restrict the court to the perusal of a single 
 paper or instrument ; for, while the controversy is between the 
 original parties, or their representatives, all their contempora- 
 neous writings, relating to the same subject-matter, are admissible 
 in evidence. 
 
 IS'either is the rule infringed by the admission of parol evi- 
 dence, showing that the instrument is altogether void, or that it 
 never had any legal existence or binding force, either by reason 
 of fraud, or for want of due execution and delivery, or for the 
 illegality of the subject-matter. And this qualification applies 
 to all contracts, whether under seal or not. 
 
 The want of a consideration may also be proved, to show 
 that thp agreement is not binding; unless it is under seal, which 
 is generally conclusive evidence of a sufficient consideration, or 
 is a negotiable instrument in the hands of an innocent endorsee. 
 
264 EVIDENCE. 
 
 Fraud, practiced by the party seeking the remedy, upon him 
 against whom it is sought, and in that which is the subject-mat- 
 ter of the action or claim, is universally held fatal to his title. 
 
 Parol evidence may also be offered to show that the 
 contract was made for the furtherance of objects forbidden by law ; 
 or that the writing was obtained by felony, or by duress ; or that 
 the party was incapable of binding himself, by reason of some 
 legal impediment, such as infancy,, coverture, want of reason, 
 drunkenness, etc., or that the instrument came into the hands of 
 the plaintiff without any absolute and final delivery, by the ob- 
 ligor or party charged. 
 
 Nor does the rule apply in cases where the original contract 
 was verbal and entire, and a part only of it was reduced to writing. 
 
 Neither is the rule infringed by the introduction of parol evi- 
 dence, contradicting or explaining the instrument in some of its 
 recitals of facts, where such recitals do not, on other principles, 
 estop the party to deny them; as, to show that the lands de- 
 scribed in the deed as in one parish were in fact situated in an- 
 other. So, also, parol evidence is admissible to show when a 
 written promise, without date, was in fact made. 
 
 As it is a leading rule that written instruments are to 
 be interpreted according to their subject-matter, parol 
 or verbal testimony must be resorted to, in order to as- 
 certain the nature and qualities of the subject to which 
 the instrument refers. Evidence which is calculated to ex- 
 plain the subject of an instrument is essentially different in its 
 character from evidence of verbal communications respecting it. 
 
 There is no material difference of principle in the rules of in- 
 terpretation between wills and contracts, except what naturally 
 arises from the different circumstances of the parties. The object 
 in both cases is the same, namely : to discover the intention. And 
 to do this the court may, in either case, put themselves in the place 
 of the party, and then see how the terms of the instrument affect 
 the property or subject-matter. With this view, evidence must 
 be admissible of all the circumstances surrounding the author 
 of the instrument ; and if the court, by these means, cannot as- 
 certain the meaning and intention of the author, from the lan- 
 guage of the instrument thus illustrated, it is a case of incurable 
 and hopeless uncertainty, and the instrument, therefore, is so far 
 inoperative and void. 
 
 Evidence of known and established usage respecting 
 
EVIDENCE. 265 
 
 "tte STitjeet to which the contract relates also does not infringe 
 the rule which forbids the admission of parol evidence to con- 
 tradict or vary a written contract. But, though usage may be 
 admissible to explain what is doubtful, it is not admissible to con- 
 tradict what is plain. 
 
 Neither is the rule infringed by the admission of oral evidence 
 to prove a new and distinct agreement, upon a new consideration, 
 whether it be as a substitute for the old, or in addition to and 
 beyond it. 
 
 Oral evidence is also admissible to show that, by a subsequent 
 agreement, the time of performance, in the case of a simple con- 
 tract, was enlarged, or the ;place of performance changed ; or 
 that the damages for non-performance were waived ; or that it 
 was founded upon an insufficient or unlawful consideration ; 
 or without consideration; or that the agreement itself was 
 waived. 
 
 Receipts, so far as they go to acknowledge only payment or 
 delivery, are merely prima facie evidence of the fact, and not 
 conclusive ; therefore, they may be contradicted by oral testi- 
 mony. But in. so far as they are evidence of a contract between 
 the parties, they stand on the footing of all other contracts in 
 writing and cannot be contradicted or varied by parol. 
 
 MEAl^S OF PROOF, OR THE ri!irSTRUOTE]¥T!S 
 OF EVIDEBTCE. 
 
 IVITNESSES, AND THE MEANS OF PROCURING 
 THEIR ATTENDANCE. 
 
 The instruments of evidence are divided into two general 
 classes, namely : written and unwritten. 
 
 By unwritten or oral evidence is meant the testimony given by 
 witnesses viva voce, either in open court or before a magistrate 
 acting under its commission or the authority of law. 
 
 The attendance of witnesses is procured by a summons 
 called a writ of subpoena, every court having power definitely to 
 hear and determine any suit having, by the Common Law, in- 
 herent power to call for all adequate proofs of the facts in con- 
 troversy, and to that end to summon and compel the attendance 
 of witnesses before it. The writ of subpoena suffiges for only 
 ■one sitting or term of court ; the witness must be summoned 
 anew to each term. 
 
266 EVIDEN"CB. 
 
 Subpoena, or the ordinary summons, is a judicial writ, di- 
 rected to the witness, commanding him to appear at court, tO" 
 testify what he knows in the cause therein described, pending in 
 such court, under a certain penalty mentioned in the writ. 
 
 Subpc3ena duces tecum is the ordinary subpoena, containing 
 a clause commanding the witness to bring with him also certain 
 books or papers in his possession. 
 
 If the witness is in custody, or is in the military or naval ser- 
 vice, and therefore not at liberty to attend without leave of his, 
 superior officer, which he cannot obtain, he may be brought into 
 court to testify by a writ of habeus corpus ad testificandum. 
 
 By recognizance is another method by which the attend- 
 ance of witnesses, in criminal cases, is enforced, which is the 
 usual course upon all examinations where the party accused is 
 committed or bound over for trial. 
 
 The service of a subpoena upon a witness ought always to 
 be made in a reasonable time before trial. The time is generally 
 fixed by statute, according to the distance, but at least one day's, 
 notice is necessary, however inconsiderable the distance. 
 
 The manner of service should be personal, otherwise the 
 witness cannot be chargeable with contempt, for non-appearance.- 
 
 Witnesses, as well as parties, are protected from arrest while 
 going to the place of trial, while attending there for the purpose 
 of testifying, and while returning home. 
 
 "Where the witness has been duly summoned, and his fees paid 
 or tendered, or the payment or tender waived, if he willfully 
 neglects to appear, he is guilty of a contempt of the process of' 
 court, and may be proceeded against by an attachment, on motion. 
 
 If the witness resides abroad, out of the jurisdiction of 
 the court, and refuses to attend, or is sick and unable to attend,, 
 his testimony can be obtained only by taking his deposition. 
 
 OF THE COMPETENCY OF WITNESSES.— The 
 Common Law rejects the testimony of ^arft'es, of 'persona deficient 
 in understanding, of persons insensible to the obligations of an 
 oath, and of persons whose pecuniary interest is directly involved 
 in the matter in issue. 
 
 First. — In regard to parties — The general rule of the Com- 
 mon Law is that a party to the record, in a civil suit, cannot be a 
 witness either for himself or for a co-suitor in the cause. 
 
 This rule of the Common Law is founded not solely in the- 
 consideration of interest, but partly, also, in the general expe- 
 diency of avoiding temptations to perjury. 
 
EVIDENCE. - 267 
 
 But by statutory provision, parties may now testify in most 
 cases. 
 
 The principles whicli govern in the admission or exclusion of 
 parties as witnesses in civil cases are, in general, applicable, with 
 the like force, to criminal prosecutions, except so far as they are 
 effected by particular legislation or by considerations of public 
 policy. 
 
 The record in a criminal prosecution cannot be used as evi- 
 dence in a civil suit, either at law or in equity, except to prove 
 the mere fact of the adjudication, or a judicial confession of guilt, 
 by the party indicted. 
 
 "Where the facts are personally known by the judge, it seems 
 now agreed that the same person cannot be both witness and 
 judge ; nor can a judge, on the grounds of public interest and 
 convenience, be called to testify to what took place before him 
 in the trial of another cause, though he may testify to foreign 
 and collateral matters. 
 
 It has been held in England a very objectionable proceeding 
 on the part of an attorney to give evidence when the acting ad- 
 vocate in a cause, and a sufficient ground for a new trial ; but in 
 the United States no case has been found to proceed to that ex- 
 tent, and the fact is hardly ever known to occur. 
 
 Secondly. — As to persons deficient in understanding 
 being incompetent to testify; while the deficiency of understand- 
 ing exists, be the cause of what nature soever, the person is not 
 admissible to be sworn as a witness ; but if the cause be tempo- 
 rary, and a lucid interval should occur, or a cure be effected, the 
 competency is restored. 
 
 Persons deaf and dumb, though in presumption of law 
 idiots, if proved by the party offering them as witnesses to be 
 persons of sufficient understanding, may be sworn and give evi- 
 dence by an interpreter, writing, or by means of signs. 
 
 In respect to children, there is no precise age within which 
 they are absolutely excluded, on the presumption that they have 
 not sufficient understanding. At the age of fourteen every per- 
 son is presumed to have common discretion and understanding, 
 until the contrary appears ; but under that age it is not so pre- 
 sumed, and therefore enquiry is made as to the degree of under- 
 standing of the child ; and if he appears to have sufficient natu- 
 ral intelligence, and to have been so instructed as to compre- 
 hend the nature and effect of an oath, he is admitted to testify,. 
 
268 JlVIDElfCE. 
 
 ■whatever his age may be, the examination being made by the 
 judge, at his discretion. 
 
 Thirdly. — Those who are insensible to the obligations 
 of an oath, from defect of religious sentiment and belief, con- 
 stitute another class of persons incompetent to testify as wit- 
 nesses, as atheists, infidels, etc. 
 
 An oath is an outward pledge, given by the witness, that his 
 - attestation or promise is made under an immediate sense of his 
 responsibility to God. 
 
 As to the degree of religious faith necessary or re- 
 quired in a witness, the rule of law is that the person is com- 
 petent to testify, if he believes in the being of God, and a future 
 state of rewards and punishments ; that is, that Divine punish- 
 ment will be the certain consequence of perjury. 
 
 Persons infamous — that is, who have been legally ad- 
 judged guilty of those heinous crimes which men generally are 
 not found to commit unless so depraved as to be unworthy of 
 credit for truth — are included under this general head of exclu- 
 sion, because of insensibility to the obligation of an oath, the 
 basis of this rule being that such a person is morally too corrupt 
 to be trusted to testify. 
 
 No person is deemed infamous in law until he has been legally 
 found guilty of an infamous crime; the mere verdict of the jury 
 is not Buf&cient ; judgment only is the legal and conclusive evi- 
 dence of the party's guilt, for the purpose of rendering him in- 
 competent to testify. 
 
 Accomplices.— A particeps criminis, notwithstanding the tur- 
 pitude of his conduct, is a competent witness so long as he re- 
 mains not convicted and sentenced for an infamous crime. 
 
 The admission of accomplices as witnesses for the government 
 is justified by the necessity of the case; it often being otherwise 
 impossible to bring the principals to justice. The usual course 
 is to leave out of the indictment those who are to be called as 
 Avitnesses. When already indicted, whether the accomplice shall 
 be admitted as a witness for the government, or not, is deter- 
 mined by the judges, as in their discretion may best serve the 
 purposes of justice. 
 
 The degree of credit, however, to be given to an accomplice is 
 a matter exclusively within the province of the jury; and it has 
 become the settled practice, under advice from the bench, not to 
 convict a prisoner in any case of felony upon the sole and un- 
 corroborated testimony of an accomplice. 
 
EVIDENCE. 269 
 
 Fourthly. — Those interested in the results of a cause 
 
 constitute another class of persons incompetent to testify, on the 
 same principle that excludes parties themselves, viz : the tempta- 
 tions and danger of perjury, and the little credit generally found 
 due to such testimony in judicial investigations. 
 
 EXAMINATION OF WITNESSES. — This subject 
 lies chiefly in the discretion of the judge, it being from its 
 very nature susceptible of but few positive and stringent rules. 
 
 Whatever is left to the discretion of one judge, his 
 decision is not subject to be reversed or revised by an- 
 other. 
 
 If the judge deems it essential to the discovery of truth that 
 the witnesses should be examined out of the hearing of each other, 
 he will so order it. ' 
 
 When a witness has been duly sworn, and his competency 
 settled, if objected to, he is first examined by the party producing 
 him, which is called his direct examination. He is afterwards ex- 
 amined to the same matters by the adverse party, which is 
 called his cross-examination. 
 
 In the direct examination of a witness, it is not allowed to put 
 to him what are termed leading questions — that is, questions which 
 suggest to the witness the answer desired. 
 
 Questions are also objectionable, as leading, which, embodying 
 a material fact, admit of an answer by a simple negative or af- 
 firmative. An argumentative or pregnant course of interroga- 
 tion is as faulty as the like course in pleading. 
 
 In some cases leading questions are permitted, even in 
 a direct examination, viz : where the witness appears to be hos- 
 tile to the party producing him, or in the interest of the other 
 party, or unwilling to give evidence, or where an omission in his 
 testimony is evidently caused by want of recollection, which a 
 suggestion may assist. 
 
 Indeed, when and under what circumstances a leading ques- 
 tion may be put, is a matter resting in the sound discretion of" 
 the court, and not a matter which can be assigned for error. 
 
 Though a witness can testify only to such facts as are 
 within his own knowledge and recollection, yet he is 
 permitted to refresh and assist his memory by the use 
 of a written instrument, memorandum, or entry in a book, 
 and may bo compelled to do so if the writing is present in court. 
 
 The cases in which writings are permitted to be used 
 
-270 EVIDBlSrCE. 
 
 for this purpose are where used only for assisting the mem- 
 ory of the witness ; where he recollects having seen the writ- 
 ing before, and, though he has now no independent recollection 
 of the facts mentioned in it, yet he remembers that, at the time 
 he saw it, he knew the contents to be correct; and where, never 
 having seen the writing, nor recollecting anything contained in 
 it, but knowing the writing to be genuine, his mind is so con- 
 vinced that he is on that ground enabled to swear positively to 
 the fact. The time when the writing, thus used to restore the 
 recollection of facts should have been made is generally at the 
 time of the fact in question, or recently afterwards. 
 
 In general, though a witness must depose to such facts 
 only as are within his own knowledge, yet there is no 
 rule that requires him to speak with such expression 
 of certainty as to eKclude all doubt in his mind. 
 
 Though the opinions of •witnesses are in general not evi- 
 dence, yet on certain subjects some classes of witnesses may de- 
 liver their own opinions, and on certain other subjects any com- 
 petent witness may express his opinion or belief, thus : as of the 
 identity of a person or of handwriting, etc., and if he testifies 
 -falsely as to his belief he may be convicted of perjury. On 
 questions of science, skill, or trade, or others of the like kind, 
 persons of skill, or experts, may not only testify to facts, but are 
 permitted to give their opinions in evidence. 
 
 Sxperts, in the strict sense of the word, are persons in- 
 structed by experience ; but more generally speaking the term 
 includes all men of science, or persons professionally acquainted 
 with the science or practice in question, or conversant with the 
 subject-matter, on questions of science, skill, trade, and others 
 of the like kind. 
 
 The lavr will not permit parties to impeach the gen- 
 eral reputation of their ■witnesses for truth, after they have 
 testified, or been produced in court, though there are some ex- 
 ceptions to this rule ; as where the witness is not one of the 
 party's own selection, but is one whom the law obliges him to 
 call, as the subscribing witness to a deed, etc. 
 
 But a party calling a witness is not precluded from proving 
 the truth of any particular fact, by any other competent testi- 
 mony in direct contradiction to what such witness may have tes- 
 tified. 
 
 Where the witness testifying had previously stated the facts 
 
EVIDENCE. 271 
 
 in a different manner, the weight of authority seems in favor of 
 admitting the' party to show that the evidence has taken him by 
 surprise, and is contrary to the examination of the witness, pre- 
 paratory to the trial, this being necessary for his protection 
 againt the contrivance of an artful witness. 
 
 When a witness has been examined in chief, the other 
 party has a right to cross-examine him ; but no right to cross- 
 examine, except as to facts and circumstances connected with 
 the matters stated in his direct examination ; and if he wishes 
 to examine him as to other matters, he must do so by making 
 the witness his own, and calling him as such, in the subsequent 
 progress of the cause. 
 
 Cross-examination is one of the most efHcacious tests 
 which the law has devised for the discovery of truth ; its object 
 being that the jury, by means of it, may the better understand 
 the character of the witness they are called upon to believe ; 
 his situation with respect to the parties, and to the subject of 
 litigation ; his interest, motives, inclination, and prejudices ; 
 means of correct and certain knowledge of the facts, etc. — by 
 this opportunity of observing his demeanor, and of determin- 
 ing the just weight and value of his testimony. 
 
 Where the witness is evidently prevaricating, or 
 concealing the truth, it is seldom by intimidation or stern- 
 ness of manner that he can be brought to let out the truth ; the 
 most eifectual method is to examine rapidly and minutely as to a 
 number of subordinate and apparently trivial points in his evi- 
 dence, concerning which there is little likelihood of his being 
 prepared with falsehood ready made ; and where such a course 
 of interrogation is skillfully laid, it is rarely that it fails in ex- 
 posing perjury or contradiction in some parts of the testimony 
 which it is desired to overturn. 
 
 Except in cross-examination, the rule that the evidence 
 offered must correspond with the allegations, and be confined 
 to the point in issue, excludes all evidence of collateral facts. 
 
 Evidence not being to a material point, the witness can not 
 be punished for perjury, if it were false. 
 
 A witness cannot be cross-examined as to any fact which is 
 oollateral and irrelevant to the issue, merely for the purpose of 
 contradicting him by other evidence, if he should deny it, thereby 
 to discredit his testimony. 
 
 The privilege of a witness in not being compelled to answer is his 
 
272 EVIDENCE. 
 
 own, and not that of the party ; counsel, therefore, viill not be^ 
 allowed to make the objection; but where the witness, after be- 
 ing advised of his privilege, chooses to answer, he is bound to- 
 answer everything relative to the transaction. 
 
 Where it reasonably appears that the answer will 
 have a tendency to expose the witness to a penal lia- 
 bility, or any kind of punisliment, or to a criminal charge, 
 he is not bound to ansvrer. 
 
 If the prosecution, to which he might be exposed, is barred by 
 lapse of time, the privilege ceases, and the witness must answer. 
 
 "When a witness takes advantage of his privilege,, and declines 
 answering, no inference of the truth of the fact is permitted to 
 be drawn from that circumstance. 
 
 Where by answering, the witness may subject himself to a 
 civil action, or pecuniary loss, or charge himself with a debt, he 
 is bound to answer. 
 
 Where the answer of the witness will not directly and certainly 
 show his infamy, but will only tend to disgrace him, he may be 
 compelled to answer. In criminal oifences the rule is different. 
 
 But the court must see for itself that the answer will directly- 
 show his infamy before it will excuse him from testifying to the 
 fact. 
 
 Where the question involves the fact of a previous 
 conviction it ought not to be asked, because there is higher 
 and better evidence which ought to be offered. 
 
 In these matters of privilege from answering, greater latitude- 
 is allowed in making enquiry in the cross-examination, that the 
 jury may better understand the character of the witness whom, 
 they are asked to believe, in order that his evidence may not 
 pass for more than it is worth. Enquiries, therefore, having no^ 
 tendency to this end, are clearly impertinent. 
 
 Where the question goes clearly to the credit of the 
 witness for veracity it is not easy to perceive why he should 
 be privileged from answering, notwithstanding it may disgrace 
 him. 
 
 After a witness has been examined in chief his credit 
 may be impeached in various ways besides that of exhibiting 
 the improbabilities of a story by a cross-examination ; viz : by 
 disproving the facts stated by him, by the testimony of others ; 
 by general evidence affecting his credit for veracity, and by proof 
 that he has made statements out of court contrary to what he has. 
 
EVIDElSrOE. 275 
 
 testified at the trial ; but this is only in matters relevant to the 
 issue. 
 
 In impeaching the credit of a witness, the examination 
 must be confined to his general reputation, and not be permitted 
 as to particular facts. The witness must be able to state what is 
 generally said of the person by those among whom the person 
 dwells, or with whom he is chiefly conversant. 
 
 A witness caiinot be cross-examined as to the contents of a let- 
 ter, by asking him whether he wrote such, etc., without first 
 showing him the letter, and asking him whether he wrote it; for 
 the contents of every written paper are to be proved by the pa- 
 per itself, if in existence ; and if lost, proof of the fact being 
 offered, he may be cross-examined as to its contents ; after which 
 he may be contradicted by secondary evidence of its contents. 
 
 'Nov can he be asked, on cross-examination, whether he has 
 written such a thing, stating its particular nature or purport; the 
 proper course being to put the writing into his hands, and to ask 
 him whether it is in his writing. 
 
 If the memory of a witness is refreshed by a paper 
 put into his hands, the adverse party may cross-examine the 
 witness upon that paper, without making it his evidence in the 
 cause. 
 
 But if the paper is shown to the witness merely to prove the 
 handwriting, this alone does not give the opposite party a right 
 to inspect it, or to cross-examine as to its contents. 
 
 After a ■witness has been cross-examined respecting a 
 former statement made by him, the party who called him has a 
 right to re-examine him as to the same matter, and to ask all 
 questions which may be proper to draw forth an explanation of 
 the sense and meaning of the expressions used by the witness on 
 the cross-examination, and also of the motive by which the wit- 
 ness was induced to use those expressions. 
 
 WRITTEN EVIDENCE.— Writings are divisible into 
 tvro classes, viz : Public and Private ; the former being either 
 judicial or not judicial ; and with respect to the means and mode 
 of proving them — of record, or not of record. 
 
 Public documents. — It has been admitted, from a very early 
 period, that the inspection and exemplification of the records of 
 the King's courts is the common right of the subject. 
 
 Any person interested in the proceedings has the right to a 
 copy of a judicial record or paper, on applying for it. 
 
 18 
 
274 BVIDElSrOE. 
 
 Some records partake both of a public and private 
 Character, and are treated as to the one or the other, according 
 to the relation in which the applicant stands to them ; thus : the 
 hooks of a corporation are public with respect to its members, 
 but private with respect to strangers. 
 
 If an inspection is wanted by a stranger, in a case not within 
 the rule of the Common Law, it can only be obtained by a bill 
 of discovery, through the aid of a court of equity. 
 
 Inspection of the books of public officers is subject to the 
 same restriction as in the case of corporation books. 
 
 The motion for rule to inspect and take copies of 
 books and 'writings, 'when an action is pending, may be 
 made at any stage of the cause, and is founded on an affidavit, 
 stating the circumstances under which the inspection is claimed, 
 and that an application therefor has been made to the proper 
 quarter, and refused. 
 
 But when no action is pending, the proper course is to move for 
 a rule to show cause why a mandamus should not issue, com- 
 manding the officer having custody of the books to permit the 
 applicant to inspect them, and take copies. 
 
 Mode of proof of public documents. Courts take notice 
 judicially of the political constitution, or frame of the govern- 
 ment of their own country, its essential and political agents or 
 officers, and its essential, ordinary, and regular operation. 
 
 The great seal of the state and the seals of its judi- 
 cial tribunals require no proof other than inspection. So also 
 seals of state of other nations, recognized by their own sover- 
 eign seals of foreign courts of admiralty, and of notaries 
 public. 
 
 Public statutes also need no proof, being supposed to exist 
 in the memories of all ; but for certainty of recollection refer- 
 ence is had either to a copy from the legislative rolls, or to the 
 book printed by public authority. 
 
 Acts of state rhay be proved by production of the original 
 printed document, from a press authorized by government. 
 
 Proclamations, and other acts and orders of the ex- 
 ecutive of the like character, may be proved by production of 
 the government gazette in which they were authorized to be 
 printed. 
 
 Printed copies of public documents, transmitted to Congress 
 by the President of the United States, and printed by the printer 
 
EYIDBISrCB. 275 
 
 to Congress, are evidence of these documents ; and in all cases 
 of a proof by a copy, if the copy has been taken by a machine, 
 worked by the witness who produced it, it is sufScient. 
 
 As to legislative acts in the United States generally, the 
 printed copies of the laws and resolves of Lhe legislature, pub- 
 lished by its authority, are held competent evidence ; and it is 
 sufficient, prima facie, that the book purports to have been so 
 printed. 
 
 The journals of the legislature, and all other public rec- 
 ords and documents, may, from their immovable nature, be proved 
 by examined copies, and it is a general rule that, whenever the 
 thing to be proved would require no collateral proof upon its 
 production, it is provable by a copy. 
 
 Public writings, such as official registers, or books kept by 
 persons in public office, are entitled to an extraordinary degree of 
 confidence, and are generally admissible in evidence without the 
 ordinary and necessary tests of truth, being so recognized by 
 law, because they are required by law to be kej)t, the entries in 
 them being of public interest and notoriety, and because they 
 are made under the sanction of an oath of ofSee, or official duty. 
 
 All documents of a public nature, which there would be 
 an inconvenience in removing, and which the party has a right 
 to inspect, may be proved by a duly authenticated copy. 
 
 When the books themselves are produced, they are received 
 as eyidence, without further attestation ; but they must be ac- 
 companied by proof that they come from the proper repository. 
 
 In regard to foreign lavys — the, courts do not take judicial 
 notice of them, but they must be proved as facts. 
 
 Generally, authenticated copies of the written laws, or of 
 other public instruments of a foreign government, are expected 
 to be produced. 
 
 The court may proceed on its own knowledge of foreign laws, 
 without the aid of other proof; but in general, foreign laws are 
 required to be verified by the sanction of an oath, unless veri- 
 fied by some high authority, such as the law respects, not less 
 than it resjDects the. oath of an individual. 
 
 The usual mode of authenticating foreign laws and 
 judgments is by an exemplification of a copy under the great 
 seal of state, or by a copy proved to be a true copy by a witness 
 who has examined and compared it with the original ; or by a 
 oertificate of an officer, properly authorized by law to give the 
 
276 EVIDENCE. 
 
 copy, which certificate must itself be also duly authenticated. 
 
 Foreign unwritten laws, customs and usages are 
 proved by parol evidence. — Sometimes, however, certificates 
 of persons in high authority are allowed, without other proof. 
 
 The reciprocal relations between the national government and 
 the several States composing the United States, are not foreign, 
 but domestic : hence the courts of the United States take judi- 
 cial notice of all the public laws of the respective States, and 
 the courts of the several States take judicial notice of all public 
 acts of Congress ; but private statutes must be proved in the or- 
 dinary way. 
 
 A printed volume, purporting on the face of it to contain the 
 laws of a sister State, is admissible as prima facie evidence, to 
 prove the statute laws of that State. The seal of a State is a 
 sufficient authentication, without the attestation of any officer, 
 or any other proof; and it will be presumed ^rma /ade that the 
 seal was affixed by the proper officer. 
 
 To entitle a book to the character of official register it is not 
 necessary that it be required by an express statute to be kej)t, 
 nor that the nature of the office should render the book indis- 
 pensable; it is sufficient that it be directed hy proper authority to 
 he kejrt, and that it be kept according to such directions. 
 
 Any approved public and general history is admissible 
 to prove ancient facts of a public nature, and the general usages 
 and customs of the country. 
 
 RECORDS AND JUDICIAL WRITINGS.— As to the 
 proof of records, this is done either by mere production of the 
 records, or by a copy. 
 
 Copies of records are exemplifications, copies by an author- 
 ized ofHcer and sworn copies. 
 
 Exemplifications are copies under the seal of the court 
 where the record remains. 
 
 The record itself is produced only when the cause is in 
 the same court whose record it is; or when it is the subject of 
 proceedings in a superior court. 
 
 Copies of records and judicial proceedings, under seal, 
 are doomed of higher credit than sworn copies, as having passed 
 under a more exact critical examination. 
 
 The records and judicial proceedings of the courts of any State 
 are proved or admitted in any other court, within the United 
 States, by the attestation of the clerk and the seal of the court 
 
EVIDENCE. 277 
 
 annexed, together with a certificate of the judge that the attes- 
 tation is in due form. 
 
 The attestation of the copy must be according to the form 
 used in the State from which the record comes. 
 
 An o£&ce copy of a record is a copy authenticated by an 
 officer intrusted for that purpose, and is admitted in evidence 
 upon the credit of the officer, without proof that it has been act- 
 ually examined. 
 
 The proof of records, by an examined copy, is by producing a 
 witness who has compared the copy with the original, or with 
 what the officer of the court or any other person read, as the 
 contents of the record. 
 
 If the record is lost and is ancient, its existence and con- 
 tents may sometimes be presumed ; but after proof of loss, its 
 contents may be proved, like any other document, by any sec- 
 ondary evidence, where the case admits of no better. 
 
 The judgments of inferior courts are usually proved by 
 producing from the proper custody the book containing the pro- 
 ceedings, or by examined copies, if perfect. 
 
 Depositions taken upon interrogatories, under a special com- 
 mission, cannot bo read without proof of the commission under 
 -which they were taken. 
 
 Testaments are proved by due form of law, per testes, upon 
 due notice and hearing of all parties concerned. 
 
 Examinations of prisoners in criminal cases are usually 
 proved by the magistrate or clerk who wrote them down. 
 
 The proof of writs, whether by production of the writ 
 itself, or by a copy, depends on its having been returned or not. 
 After being returned, it has become matter of record, and is to 
 be proved by a copy from the record. If not returned, it may 
 be proved by producing it; if it cannot be found, after diligent 
 search, it may be proved by secondary evidence, as in other 
 eases. 
 
 Justice requires that every cause be once fairly and 
 impartially tried ; but having been once so tried, public tran- 
 quility demands that all litigation of that question, and between 
 those parties, should be forever closed. 
 
 Privity denotes mutual or successive relationship to the same 
 rights of property. Persons standing in this relation to the lit- 
 igating party, being identified with him in interest, are bound by 
 the proceedings, and hence all privies, whether in estate, in 
 
278 EVIDElSrCB. 
 
 blood, or in law, are estopped from litigating that whicli is con- 
 clusive upon him with whom they are in privity. 
 
 A record may also be admitted in evidence in favor of a stran- 
 ger, against one of the parties, as containing a solemn admission, 
 or judicial declaration by such party, in regard to a certain fact. 
 
 The principle upon which judgments are held conclusive upon 
 the parties requires that the rule should apply only to that 
 which was directly in issue, and not to everything which was inci- 
 dentally brought into the controversy. 
 
 A record, therefore, is not held conclusive, as to the truth of 
 any allegations which were not material nor traversable ; but as' 
 to things material and traversable, it is conclusive and final. 
 
 The general rules xipon the subject of judgments being 
 given in evidence in civil suits seems to be, first — that the 
 judgment of a court of concurrent jurisdiction, directly upon the 
 point, is, as a plea, a bar; or as evidence, conclusive, between 
 the same parties, upon the same matter, directly in question, in 
 another court; and secondly — ^that the judgment of a court of 
 exclusive jurisdiction, directly upon the point, is, in like manner, 
 conclusive upon the same matter, between the same parties, coming 
 incidentally in question in another court, for a different purpose. 
 But neither the judgment of a concurrent nor exclusive jurisdic- 
 tion is evidence of any matter which came collaterally in ques- 
 tion, though within their jurisdiction ; nor of any matter incident- 
 ally cognizable ; nor of any matter to be inferred by argument 
 from the judgment. 
 
 It is only where the point in issue has been deter- 
 mined that the judgment is a bar. 
 
 So, also, to constitute a judgment a complete bar, it must ap- 
 pear to have been a decision upon the merits. 
 
 As a general rule, a verdict and judgment in a criminal case 
 cannot be given in evidence in a civil action, to establish the 
 facts on which it was rendered, and a judgment in a civil actiorv 
 is inadmissible as evidence in a criminal prosecution. 
 
 But the verdict and judgment in any case are always 
 admissible to prove the fact that the judgment viras ren- 
 dered, or the verdict given. 
 
 By the constitution and statutes of the United States judg- 
 ments of other states, authenticated as the statutes 
 provide, are put upon the same footing as domestic 
 judgments ; but no execution can issue upon such judgments 
 without a new suit in the tribunals of other States. 
 
EYIDBlSrCE. 279 
 
 Depositions are but secondary evidence, and to be ad- 
 missible as evidence, it is essential that they be regularly taken,, 
 under legal proceedings duly pending, and in a manner provided 
 by law. 
 
 In regard to the admissibility of a fortaev judgment in evidence. 
 It is generally necessary that there be a perfect mutuality be- 
 tween the parties, neither being concluded unless both are alike 
 bound; but with respect to depositions, though this rule is ad- 
 mitted in its general principle, yet it is applied with more lati- 
 tude of discretion, and complete mutuality, or identity of all the 
 parties is not required. 
 
 As to inquisitions. — The general rule in regard to these 
 documents is, that they are admissible in evidence, but they are 
 not conclusive except against the parties immediately concerned, 
 and their privies. 
 
 PRIVATE WRITINGS. — In general, all such produced in 
 evidence must be proved to be genuine. 
 
 Solemn obligations and instruments, under the hand of the 
 party, purporting to be evidence of title, such as deeds, bills and 
 notes, must be produced, and the execution of them generally 
 proved, or their absence duly accounted for, and their loss sup- 
 plied by secondary evidence. 
 
 If the instrument is lost, evidence is required that such a 
 paper once existed, slight evidence being sufiicient, and that a 
 bona fide and diligent search has been unsuccessfully made for it, 
 after which his own affidavit is admissible to the fact of its loss. 
 
 The same rule prevails where the instrument is destroyed. 
 
 The production of private writings, in which another 
 person has an interest, may be had either by a bill of discov- 
 ery in proper cases, or, in trials at law, by a writ of subpana 
 duces tecum, directed to the person who has them in his posses- 
 sion. 
 
 The courts of common law may also make an order for the in- 
 spection of writings in the possession of one party to a suit, in 
 favor of the other. 
 
 Application for this should be supported by the affidavit of the 
 party. 
 
 When the instrument is in the hands or power of the 
 adverse party there are, in general, except in the cases men- 
 tioned, no other means at law of compelling him to produce it, 
 but the practice in such cases is to give him or his attorney a 
 
280 EYIDEKCE. 
 
 regular notice to produce the original, in order to lay the founda- 
 tion for the introduction of secondary evidence of the contents 
 of the document or writing, by showing that the party has done 
 all in his power to produce the original. 
 
 There are three cases in vrhich such notice to produce 
 is not necessary ; first — where the instrument to be produced 
 and that to be proved are duplicate originals ; secondly — where 
 the instrument to be proved is itself a notice, such as a notice to 
 quit, or a notice of the dishonor of a bill of exchange ; thirdly — 
 where, from the nature of an action, the defendant has notice that 
 the plaintiff intends to charge him with possession of the instru- 
 ment, as in trover for a, bill of exchange. 
 
 The principle of the rule docs not require notice to the ad- 
 verse party to produce a paper belonging to a third person, of 
 which he has fraudulently obtained possession, as where, after 
 service of a subpcena duces tecum, the adverse party had received 
 the paper from the witness, in fraud of the subpoena. 
 
 The notice may be directed to the party or his attorney, and 
 may be served on either, and it must describe the writing de- 
 manded, so as to leave no doubt that the party was aware of the 
 particular instrument intended to be called for. 
 
 The regular time for calling for the production of pa- 
 pers is not until the party who requires them has entered upon 
 his case, until which time the other party may refuse to produce 
 them, and no cross-examination as to their contents until then is 
 usually permitted. 
 
 If, on the production of the instrument, it appears to have been 
 altered, it is incumbent on the party offering it in evi- 
 dence to explain this appearance. Every alteration on the 
 face of a written instrument detracts from its credit, and renders 
 it suspicious ; and this suspicion the party claiming under it is 
 ordinarily held bound to remove. 
 
 If the alteration is noted in the attestation clause, as having 
 been made before the execution of the instrument, it is sufficiently 
 accounted for, and the instrument is relieved from that sus- 
 picion. 
 
 Generally speaking, if nothing appears to the contrary, 
 the alteration -will be presumed to be contemporaneous 
 •with the execution of the instrument ; but if any ground of 
 suspicion is apparent upon the face of the instrument, the law 
 presumes nothing, but leaves the question of when it was done 
 
EVIDENCE. 281 
 
 "by ■whom, and with what intent, as matters of fact for the jury. 
 
 Written instruments which are altered, in the legal sense of 
 -that term, are thereby made void, and any alteration causing 
 it to speak a language different in legal effect from that 
 which it originally spoke is a material alteration. 
 
 A distinction. is to be observed between the alteration and the 
 -Spoliation of an instrument as to its legal consequences. 
 
 Alteration is an act done upon the instrument by which 
 its meaning or language is changed, and if what is writ- 
 ten upon or erased from the instrument has no tendency 
 to produce this result, or to mislead any person, it is 
 not an alteration. This term is usually applied to the act of 
 the party entitled under the instrument, and imports some im- 
 proper design on his part to change its effect. %. 
 
 Spoliation is the act of a stranger, without the participation 
 of the party interested, and is a mere mutilation of the instru- 
 ment, not changing its legal operation, so long as the original 
 writing remains legible, or, if it be a deed, any trace remains of 
 the seal. 
 
 Mutilated portions may be admitted as secondary evidence of 
 80 much of the original instrument. 
 
 If the alteration is made by the consent of parties, such as by 
 filling up of blanks or the like, it is valid. 
 
 The instrument, being produced and freed from sus- 
 picion, must be proved by the subscribing witnesses, if 
 there be any, or at least by one of them. 
 
 A written instrument, not attested by a subscribing witness, 
 is sufficiently proved, to authorize its introduction, by competent 
 proof that the signature of the person whose name is under- 
 signed is genuine. 
 
 A subscribing ■witness is one who was present when the 
 instrument was executed, and who, at that time, at the request 
 or with the assent of the party, subscribed his name to it, as a 
 witness of the execution. 
 
 But it is not necessary that he should have actually seen the 
 party sign, nOr have been present at the very moment of sign- 
 ing ; for if he is called in immediately afterwards, and the party 
 acknowledges his signature to the witness, and requests him to 
 -attest it, this is sufficient. 
 
 To the rule requiring the production of the subscribing wit- 
 nesses there are several classes of exceptions, *\iz : 
 
282 EVIDElSrCB. 
 
 First, where the instrument is thirty years old, it is said to 
 prove itself. 
 
 Secondly, where the instrument is produced by the adverse 
 party pursuant to notice, the party producing it claiming an in- 
 terest under the instrument; for, by so claiming under it, he has- 
 admitted its execution. 
 
 Thirdly, where, from the circumstances of the witnesses 
 themselves, the party, either from physical or legal obstacles, be- 
 ing unable to adduce them; as if the witness be dead, or cannot, 
 be found, or is out of the jurisdiction, or is a fictitious person, 
 or insane, etc.; in all such eases the execution of the instrument' 
 may be proved by other evidence. 
 
 Fourthly, office bonds, required by law to be taken in the 
 name of some public functionary, which documents, it is said, 
 have a high character of authenticity and need not be verified 
 by the ordinary tests of truth applied to merely private instru- 
 ments. 
 
 Fifthly, a further exception to the rule has been admitted in 
 the case of letters received in reply to others proved to have 
 been sent to the party. 
 
 The degree of diligence in the search for the sub- 
 scribing •witness is the same which is required in the search 
 for a lost paper, the principle being the same in both cases; 
 it must be a strict, diligent and honest enquiry and search, sal^ 
 isfactory to the court, under the circumstances. 
 
 When secondary evidence of the execution of the instrument. 
 is thus rendered admissible, it will not be necessary to prove 
 the hand-writing of more than one witness. 
 
 As to the subject of the comparison of hands, if the witness^ 
 has the proper knowledge of the party's handwriting, he may 
 declare his belief in regard to the genuineness of the writing in 
 question. 
 
 There are two modes of acquiring this knowledge of 
 the handwriting of another, either of which is universally- 
 admitted to be sufficient to enable a witness to testify as to its 
 genuineness: first, from having seen him write; second, from 
 having seen letters, or other documents, purporting to be the 
 handwriting of the party, and having afterwurda personally com- 
 municated with him respecting them or acted upon them as his, the 
 party having known and acquiesced in such acts, etc. 
 
 This rule requiring personal knowledge on the part of the 
 
EVIDENCE. 283 
 
 "vdtness has been relaxed in two cases : first, where the writings 
 are of such antiquity that living witnesses cannot be had, and 
 yet are not so old as to prove themselves ; here experts are called 
 to compare them with other writings admitted to be genuine, or 
 proved to have been respected and treated and acted upon as 
 such by all parties, and to give their opinion concerning the 
 genuineness of the instrument in question, from thus compar- 
 ing them J secondly, where other writings, admitted to be genuine, 
 are already in the case; here the comparison maybe made by the 
 jury, without the aid of experts. 
 
 Where the sources of primary evidence of a written instru- 
 ment are exhausted, secondary evidence is admissible; but 
 whether, in this species of evidence, any degrees are recognized 
 as of binding force is not perfectly agreed, but the better- 
 opinion seems to be that, generally speaking, there are none. 
 
 The student will not fail to observe the symmetry and beauty 
 of this branch of the law, and will rise from the study of its- 
 principles, convinced, with Lord Erskine, that " they are founded 
 in the charities of religion, in the philosophy of nature, in th& 
 truths of history, and in the experience of common life." 
 
EQUITY 
 
 JURISPRUDENCE 
 
 ABEIDGBD, 
 
286 EQUITY. 
 
 . ANALYSIS. 
 
 Nature and Character of Equity Jurisprudence. 
 
 Origin and History. 
 
 General View and Maxims. 
 
 Jurisdiction in Cases of Accident. 
 
 Mistalce. 
 
 Actual or Positive Praud. 
 
 Constructive Fraud. 
 
 Account. 
 
 Partnership. 
 
 Discovery. 
 
 Cancellation and Delivery of Instruments. 
 
 Specific Performance. 
 
 Compensation and Damages. 
 
 Interpleader. 
 
 Bills Quia Timet. 
 
 Bills of Peace. 
 
 Injunctions. 
 
 Trusts. 
 
 Assignments. 
 
 Wills. 
 
 Election. 
 
 Satisfaction. 
 
 Charities. 
 
 Implied Trusts. 
 
 Penalties and Eorfeitures. 
 
 Infants. 
 
 Married "Women. 
 
 Bills of Discovery. 
 
 Bills to Perpetuate Testimony. 
 
 Peculiar Defences and Proofe. 
 
 Estoppel in Equity. 
 
EQUITY. 287 
 
 EQUITY. 
 
 NATTJEE AND CHAEACTEE OF EQUITY JUEISPEUDENCE. 
 
 EQUITIT, in its true and genuine meaning, is the 
 80ul and spirit of all law ; positive law is construed, 
 and rational law is made by it. 
 
 Aristotle has defined the very nature of equity to be 
 the correction of the law, wherein it is defective by rea- 
 son of its universality. 
 
 Equity jurisprudence may properly be said to be that por- 
 tion of remedial justice vrhich is exclusively adminis- 
 tered by a court of equity, as contra-distinguished from that 
 portion of remedial justice which is exclusively administered 
 by a court of Common Law. 
 
 In the most general sense, we are accustomed to call that 
 equity which, in human transactions, is founded in natural 
 justice, in honesty and right, and which proj)erly arises ex 
 cequo et bono. In this sense it answers precisely to the definition 
 of justice, or natural law, as given by Justinian in the Pandects. 
 
 Taken broadly and philosophically, equity means to do 
 to all men as we would they should do unto us. 
 
 This is Natural Equity, which, being derived from the 
 principles of universal truth and justice, prescribes piety and 
 reverence towards God, the Maker and Disposer of us all; hon- 
 esty and benevolence to one another, by doing good and es- 
 chewing evil. 
 
 It is clear that human tribunals cannot cope with so wide a 
 range of duties as natural equity comprehends. Taken in a less 
 universal sense, equity is used in contra-distinction to strict law. 
 This is Moral Equity, -which should be the genius of ev- 
 ery kind of human jurisprudence, since it expounds and 
 limits the language of the positive laws, and construes them not 
 according to their strict letter, but rather in their reasonable and 
 ienignant spirit. 
 
288 EQUITY. 
 
 But it is in neither of these senses that equity is to be under- 
 stood as the substantial justice which is expounded by our courts, 
 of clianecry. It is here accepted in a more limited and technical 
 sense, and may be called Municipal Equity, and described as 
 the system of supplemental la^v administered in chan- 
 cery, and founded upon defined rules, recorded prece- 
 dents and established principles to ^vhich it closely 
 adheres. 
 
 The grand characteristic of Municipal Equity is displayed in 
 the nature and extent of its redress. 
 
 The essential difference between law and equity prin- 
 cipally consists in the differentmodesof administering justice in 
 each, in the mode of "proof, the mode of trial and the mode of 
 relief. 
 
 The system of our courts of equity is a labored, con- 
 nected system, governed by established rules, and bound 
 down by precedents from -which they do not depart, although 
 the reason of some of them may perhaps be liable to objection. 
 Sometimes a precedent is so strictly followed that a particular- 
 judgment, founded iipon special circumstances, gives rise to a- 
 general rule. 
 
 Courts of equity adhere as closely to general rules as 
 courts of law. Each expounds its rules to meet new cases ; 
 but each is equally reluctant to depart from them upon slight- 
 inconveniences and mischiefs. 
 
 One of the most common maxims upon which a court of equity 
 daily acts is that equity follows the law, and seeks out 
 and guides itself by the analogies of the law. 
 
 Courts of equity decide ne-w cases, as they arise, by the 
 principles on which former cases have been decided ; 
 and may thus illustrate, or enlarge, the operation of those prin- 
 ciples. But the principles are as fised and certain as the 
 principles on which the courts of common law proceed. 
 
 One of the most striking and distinctive features of courts of 
 equity is that they can adapt their decrees to all the va- 
 rieties of circumstances which may arise, and adjust them 
 to all the peculiar rights of all the parties in interest j whereas 
 courts of common law are bound down to a fixed and invariable 
 form of judgment in general terms, altogether absolute, for th& 
 plaintiff or for the defendant. 
 
 Courts of equity can administer remedies for rights. 
 
EQUITY. 289 
 
 'which rights courts of common law do not recognize at 
 
 all ; or, if they do recognize them, they leave them wholly to- 
 the conscience and good-will of the parties. Thus, what are 
 technically called Trusts, that is, estates vested, in persons 
 upon particular trusts and confidences, are wholly without 
 any cognizance at the Common Law; and the abuses of such, 
 trusts and confidences are beyond the reach of any legal process. 
 
 The remedies in courts of equity are often very dif- 
 ferent in their nature, mode, and degree, from those of 
 courts of common la'w, even when each has a jurisdiction 
 over the same subject-matter. Thus, a court of equity, if a con- 
 tract is broken, will often compel the party specifically to per- 
 form the contract; whereas courts of law can only give damages 
 for the breach of it. So, courts of equity •will interfere by 
 v?ay of injunction to prevent vrrongs ; ■whereas courts 
 of common law can grant redress only vrhen the vsrrong 
 is done. 
 
 The most general, if not the most' precise, description of a 
 court of equity is that it has jurisdiction in cases of rights, 
 recognized and protected by the municipal jurispru- 
 dence, -when a plain, adequate and complete remedy 
 cannot be had in the courts of common law. 
 
 The remedy must be plain ; for, if it be doubtful and ob- 
 scure at law, equity will assert a jurisdiction. 
 
 It must be adequate ; for if at law it falls short of what the 
 party is entitled to, that founds a jurisdiction in equity. 
 
 It must be complete ; that is, it must attain the full end 
 and justice of the case. 
 
 It must reach the ■whole mischief, and secure the whole 
 right of the party in a perfect manner, at the present time and 
 in future ; otherwise equity will interfere and give relief. 
 
 The jurisdiction of a court of equity is, therefore, some- 
 times concurrent with the jurisdiction of a court of law; it is 
 sometimes exclusive of it, and it is sometimes auxiliary 
 to it. 
 
 Equity jurisdiction is distributable into three sub- 
 divisions, namely. 
 
 (I.) The assistant, being auxiliary to the Common Law, 
 and under which range matter of — 
 
 1. Discovery for the promotion of substantive justice at Com- 
 mon Law. -.^ 
 
290 EQUITY. 
 
 2. Preservation of testimony relating to a question at law, 
 from persons not being the litigants. 
 
 3. Eeraoval of improper impediments, and prevention of un- 
 conscientious defences, at Common Law. 
 
 4. Giving effect to, and relieving from, the consequences of 
 Common Law judgments. 
 
 (II.) The concurrent with the Common Law, comprehend- 
 ing— 
 
 1. The remedial correction of fraud. 
 
 2. The prevention of fraud by injunction. 
 
 3. Accident. 
 
 4. Mistake. 
 
 5. Account. 
 
 6. Dower. 
 
 7. Interpleader. 
 
 8. The delivery up of documents and specific chattels. 
 
 9. The specific performance of agreements. 
 (III.) The exclusive, relating to — 
 
 1. Trusts. 
 
 2. Infancy. 
 
 3. The equitable rights of wives. 
 
 4. Legal and equitable mortgages. 
 
 5. The assignment of choses in action. 
 
 6. Partition. 
 
 7. The appointment of receivers. 
 
 8. Charities and public trusts. 
 
 Equity claims an exclusive jurisdiction in all matters 
 of trust and confidence ; and wherever, upon the principles 
 of universal justice, the interference of a court of judicature is 
 necessary to prevent a wrong, and the positive law is silent. 
 
 ORIOIIir AWD HISTORY. 
 
 The present equitable jurisdiction of the courts of 
 chancery seems to have grown up, like most of the other insti- 
 tutions of the English Common Law, from the exigencies of the 
 times and of judicial administration. 
 
 Its date may reach back, dimly, into the earliest times, 
 immediately succeeding the Norman Conquest ; but the well- 
 defined development of the distinct exercise of equitable juris- 
 diction, for the most part, dates from the time of Edward I j and 
 
EQUITY. 291 
 
 its character is but crude and imperfect until the time of Sir 
 Thomas More and Cardinal Wolsey, under Henry YIII. 
 
 Lord Nottingham laid the foundation of modern equity 
 jurisprudence, and Lord Hardwicke measurably matured its 
 several departments. 
 
 In this country, equity jurisprudence has grown up chiefly 
 since the formation of our national government. Both in the 
 national and State courts it follows the model of the Eng- 
 lish court of chancery, e^zcept in some of the States, and 
 in the national tribunals it is administered by the com- 
 mon law courts. In some of the States the equity jurisdiction 
 ia very imperfect, and in som.e it is scarcely known. 
 
 The office and name of chancellor was known to the 
 courts of the Eoman Emperors, where it originally seems to have 
 signified a chief scribe, or secretary, who was afterwards invested 
 with several judicial powers, and a general superintendency over 
 the rest of the ofEicers of the prince. 
 
 The equity jurisprudence at present exercised in this 
 country is founded upon, co-extensive with, and, in most res- 
 pects conformable to, that of England. It approaches nearer to 
 ihe latter than the jurisdiction exercised by the courts of Com- 
 mon Law in America approaches to the Common Law as adminis- 
 tered in England. The Common Law was not in many particulars 
 applicable to the situation of our country when it was first in- 
 troduced. 
 
 In some of the States of the Union distinct courts of 
 equity are established ; in others, the powers are exercised 
 concurrently with the Common-law jurisdiction by the same tri- 
 bunal, being at once a court of law and a court of equity. In 
 Others, again, no general equity powers exist ; but a few 
 specified heads of equity jurisprudence are confided to the ordi- 
 nary courts of law, and constitute a limited statutable jurisdic- 
 tion. 
 
 But the general features and leading principles of the law of 
 equity are essentially alike in all the States, and in all civilized 
 countries. 
 
 CiSHVHRAIi VIEW JlBTB MAXIMiS. 
 
 Courts of equity are established to detect latent 
 frauds and concealments which the process of the 
 
292 EQUITY. 
 
 courts of law is not adapted to reach ; to enforce the ex- 
 ecution of such matters of trust and confidence as are binding 
 in conscience, though not cognizable in a court of law; to de- 
 liver from such dangers as are owing to misfortune or 
 oversight ; and to give a more specific relief and more adapted 
 to the circumstances of the case than can always be obtained by 
 the generality of the rules of the positive or Common Law. 
 
 Although fraud, accident and trust are proper objects of 
 courts of equity, it is by no means true that they are exclusively 
 cognizable therein. On the contrary, fraud is in many cases 
 cognizable in a court of law. 
 
 Many cases of accident are remediable at la'w, such ap 
 losses of deeds, mistakes in accounts and receipts, impossibilities 
 in the strict performance of conditions, and other like cases. 
 
 Trusts, though in general of a peculiar and exclusive juris- 
 diction in equity, are sometimes cognizable at la-w ; as, for 
 instance, cases of bailments, and that larger class of cases where 
 the action for money had and received for another's use is main- 
 tained ex cequo et bono. 
 
 Cases of trusts may exist in which the parties must 
 abide by their own false confidence in others, without 
 any aid from courts of justice. 
 
 Thus in cases of illegal contracts, or those in which one party 
 has placed property in the hands of another for illegal purposes, 
 as for smuggling, if the latter refuses to account for the proceeds, 
 and fraudulently or unjustly withholds them, the former must 
 abide by his loss, for. In pari delicto melior est conditio possidentis, 
 et defendentis, is a maxim of public policy equally respected in 
 courts of law and courts of equity. 
 
 It is a common maxim, that equity follows the lavr, 
 jEquitas sequitur legem. This maxim is susceptible of va- 
 rious interpretations It may mean that equity adopts and 
 follows the rules of law in all cases to which those rules may, in 
 terms, be applicable; or it may mean that equity, in dealing 
 with cases of an equitable nature, adopts and follows the analo- 
 gies furnished by the rules of law. 
 
 The maxim is true in both of these senses, as applied to 
 different cases and different circumstances. 
 
 When a rule, either of the common or the statute law, 
 is direct, and governs the case with all its circumstances, or 
 the particular point, a court of equity is as much bound by it 
 
EQUITY, 293 
 
 as a court of law, and can as little justify a departure from it. 
 If the law commands or prohibits a thing to be done, 
 equity cannot enjoin the contrary, or dispense with the 
 obligation. 
 
 In many cases equity acts by analogy to the rules of law in re- 
 lation to equitable titles and estates. Thus, although the stat- 
 utes of limitations are in their terms applicable to courts 
 of law only, yet equity, by analogy, acts upon them, and 
 
 refuses relief under like circumstances. 
 
 Equity always discountenances laches ; and holds that 
 laches is presumable in cases where it is positively declared at 
 law. 
 
 In general, in courts of equity, the same construction and 
 effect are given to perfect or execute trust estates as are given 
 by courts of law to legal estates. The incidents, properties and 
 consequences of the estates are the same. 
 
 In short, the maxim that equity follows the la-w is a 
 maxim liable to many excptions ; and it cannot be generally 
 afflrmed that, when there is no remedy at law in the given case, 
 there is none in equity j or, on the other hand, that equity, in 
 the administration of its own principles, is utterly regardless of 
 the rules of law. 
 
 Another maxim is that where there is equal equity, the 
 law must prevail. 
 
 In such a case, the defendant has an equal claim to the protec- 
 tion of a court of equity for his title, as the plaintiff has to the 
 assistance of the court to assert his title ; and then the court 
 will not interpose on either side, the equities being equal 
 between persons who have been equally innocent and equally 
 diligent. 
 
 A maxim of no small extent is that he who seeks equity 
 must do equity. 
 
 This maxim principally applies to the party who is seeking 
 relief, in the character of a plaintiff in the court. 
 
 Another maxim of general use is that equality is equity ; 
 or, as it is sometimes expressed, equity delighteth in equality. 
 
 It is variously applied ; as, for example, to cases of contribu- 
 tion between co-contractors, sureties, and others. 
 
 Equity looks upon that as done which ought to have 
 been done, is another maxim in use in our courts of equity. 
 
 The true meaning of this maxim is that equity will treat 
 
294 EQUITY. 
 
 the subject-matter, as to collateral consequences and incidents, 
 in the same manner as if the final acts contemplated by the par- 
 ties had been executed exactly as they ought to have 
 been ; not as the parties might have executed them. 
 
 The most common cases of the application of the rule are 
 under agreement. 
 
 All agreements are considered as performed which are made 
 for a valuable consideration, in favor of persons entitled to in- 
 sist upon their performance. They are to be considered as 
 done at the time when, according to the tenor thereof, they 
 ought to have been performed. 
 
 As to the jurisdiction of courts of equity, one rule is 
 that if, originally, the jurisdiction has properly attached in 
 equity in any case, on account of the supposed defect of remedy 
 at law, that jurisdiction is not changed or obliterated by the 
 courts of law now entertaining jurisdiction in such cases, when 
 they formerly rejected it. 
 
 The jurisdiction of equity, like that of law, must be of a per- 
 manent and fixed character. There can be no ebb or 
 flow of jurisdiction, dependent upon external changes. 
 Being once vested legitimately in the court, it must remain there 
 until the legislature shall abolish or limit it. 
 
 The jurisdiction having once rightfully attached, it 
 shall be made effectual for the purposes of complete 
 relief. 
 
 The court, having acquired cognizance of the suit for the pur- 
 poses of discovery, will entertain it for the purpose of relief, in 
 most cases of fraud, account, accident and m.istake. The ground 
 is stated to be the propriety of preventing a multiplicity of suits. 
 
 Where the jurisdiction once attaches for discovery, 
 and the discovery is actually obtained, the court "will further 
 entertain the bill for relief, if the plaintiff prays it. But 
 this rule is not to be deemed of universal application, for it is 
 laid down in some of our courts that under some circumstances, 
 where the verdict of a jury is necessary to ascertain the extent 
 of the relief, the plaintiff should be left to his action at law, after 
 the discovery is obtained. 
 
 JURISDICTION THi CASES OF ACCIDEIirT. 
 
 The concurrent jurisdiction of equity has its true origin in 
 one of two sources : either the courts of law, although they 
 
EQUITY. 295 
 
 Tiave general jurisdiction in the matter, cannot give adequate, 
 specific and perfect relief; or, under the actual circumstances of 
 the case, they cannot give any relief at all. 
 
 The jurisdiction of the court, arising from accident in 
 the general sense, is a very old head in equity, and pro- 
 bably coeval with its existence. 
 
 By the term accident is here intended not merely inevitable 
 casualty, or the act of Providence, or irresistible force j but such, 
 unforeseen events, misfortunes, losses, acts or omis- 
 sions as are not the result of any negligence or miscon- 
 duct in the party. 
 
 It is not every case of accident which will justify the in- 
 terposition of a court of equity. The jurisdiction being concur- 
 rent, will be maintained only, first — when a court of law cannot 
 grant suitable relief; and, secondly — when the party has a con- 
 scientious title to relief. Both grounds must concur in the given 
 case, otherwise equity is bound to withhold its aid. 
 
 In cases of the loss of sealed instruments, equity will 
 entertain a suit for relief, as well as for discovery, upon the 
 party's making an affidavit of the loss of the instrument and 
 offering indemnity. 
 
 Courts of equity often interfere where the party, from long 
 possession or exercise of a right over property, may 
 fairly be presumed to have had a legal title to it, and yet has 
 lost the legal evidence of it, or is now unable to produce it. 
 
 It may be stated generally that where an inequitable loss 
 or injury will otherwise fall upon a party from circumstances 
 beyond his own control, or from his own acts done in entire 
 good faith, and in the performance of a supposed duty, without 
 negligence, courts of equity will interfere to grant him relief. 
 
 Courts of equity will also interfere and grant relief where 
 there has been by accident a confusion of the boundaries 
 between two estates. 
 
 There are cases of accident in which no relief will 
 be granted in courts of equity. Thus in matters of positive 
 contract, (for it is different in obligations or duties created by 
 law,) it is no ground for the interference of equity that the 
 party has been prevented from fulfilling them by accident ; or, 
 that he has been in no default , or, that he has been prevented 
 by accident from deriving the full benefit of the contract on his 
 own side. 
 
296 EQUITY. 
 
 The reason is that he might have provided for such 
 contingencies by his contract, if he had so chosen ; and the 
 law will presume an intentional general liability, where he has 
 made no exception. 
 
 Equity will not afford relief to a party upon the ground ot ac- 
 cident, where the accident has arisen from his own gross 
 negligence or fault ; for in such ease the party has no claim to 
 come into a court of justice to ask to be saved from his own 
 culpable misconduct. 
 
 No relief will be granted on account of accident, where the 
 other party stands upon an equal equity, and is entitled 
 to equal protection. 
 
 Upon a general survey of the grounds of equitable 
 jurisdiction in cases of accident, it will be found that they 
 resolve themselves into the following : that the party seeking 
 relief has a clear right, which cannot otherwise be enforced in 
 a suitable manner ; or, that he vrill be subjected to an un- 
 justifiable loss, without anj'- blame or misconduct on his own 
 part ; or, that he has a superior equity to the party from 
 whom he seeks the relief. 
 
 MISTAKE. 
 
 We may next consider the jurisdiction of equity, as 
 founded upon the ground of mistake. 
 
 This is sometimes the result of accident in its large sense ; but 
 as contra-distinguished from it, it is some unintentional act, 
 or omission, or error, arising from ignorance, surprise, 
 imposition, or misplaced confidence. 
 
 Mistakes are ordinarily divided into fwo sorts : mistakes 
 in matter of law, and mistakes in matter of fact. 
 
 As to mistakes in matter of law. — It is a well-known 
 maxim that ignorance of law will not furnish an excuse 
 for any person, either for a breach, or for an omission of 
 ■duty ; ignorantia legis neminem excusat ; and this maxim is 
 equally as much respected in equity as in law. 
 
 It probably belongs to some of the earliest rudiments of Eng- 
 lish jurisprudence, and is certainly so old as to have been long 
 laid up among its settled elements. 
 
 If, upon the mere ground of ignorance of the law, men 
 •were admitted to overhaul or extinguish their most 
 
EQUITY. 297 
 
 solemn contracts, and especially those wliicli have been exe- 
 cuted by a complete performance, there would be much em- 
 barrassing litigation in all judicial tribunals, and no small 
 danger of injustice, from the nature and difllculty of the proper 
 proofs. 
 
 The presumption is that every person is acquainted 
 'with, his ovrn rights, provided he has had a reasonable oppor- 
 tunity to know them. And nothing can be more liable to abuse, 
 .than to permit a person to reclaim his jDroperty upon the mere 
 pretense that at the time of parting with it he was ignorant of 
 the law acting on his title. 
 
 It is accordingly laid down as a general proposition, 
 that in courts of equity ignorance of the law shall not af- 
 fect agreements, nor excuse from the legal consequences 
 of particular acts. 
 
 Equity may compel parties to execute their agreements ; but 
 it has no authority to make agreements for them, or to 
 substitute one for another. 
 
 The general rule is that a mistake of the law is not a ground 
 for reforming a deed, founded on such a mistake. 
 
 Courts of equity will not grant relief sought upon the sole 
 ground of mistake of law ; and whatever exceptions there 
 may be to this rule, they are not only few in number, but they 
 will be found to have something peculiar in their characters. 
 
 In contemplation of law, all its rules and principles 
 are deemed certain, although they have not, as yet, been rec- 
 ognized by public adjudications. This doctrine proceeds upon 
 the theoretical ground, that Id certum est, quod certum reddi po- 
 test ; and that decisions do not make the law, but only 
 promulgate it. 
 
 There is ground for a distinction between cases where a party 
 acts or agrees in ignorance of any title in him, or upon the 
 supposition of a clear title in another, and eases where there is 
 a doubt in controversy, or litigation between the parties as 
 •to their respective rights. In the former cases the party seems 
 to labor in some sort under a mistake of fact, as well as of 
 la'W. He supposes, as a matter of fact, that he has no title 
 to the property. He does not intend to surrender or release his 
 title, but the act or agreement proceeds upon the supposition 
 that he has none. 
 
 Eut the distinction between mistakes of law and of 
 
298 EQUITY, 
 
 fact, so far as equitable relief is concerned, is one of policy 
 rather than of principle. 
 
 As to compromises, it is said, if they are otherwise unob- 
 jectionable, they will be binding, and the right will not pre- 
 vail against the agreement of the parties ; for the right 
 must always be on one side or the other, and there would be an 
 end of compromises if they might be overthrown upon any sub- 
 sequent ascertainment of rights contrary thereto. 
 
 Where compromises are fairly entered into, where the 
 uncertainty rests upon a doubt of fact, or a doubt in point 
 of law, if both parties are in the same ignorance, the compro- 
 mise is equally binding, and cannot be affected by any subse- 
 quent investigation and result. But if the parties are not 
 mutually ignorant, the case admits of a very different con- 
 sideration, whether the ignorance be of a matter of fact or 
 of lavr. 
 
 Cases of surprise, mixed up with a mistake of lavr, 
 stand upon a ground peculiar to themselves and independent of' 
 the general doctrine. In such cases the agreements or acts are 
 unadvised and improvident, and without deliberation ; and are 
 held invalid upon the common principle adopted by courts of 
 equity to protect those who are unable to protect themselves, 
 and of whom an undue advantage is taken. 
 
 Contracts made in mutual error, under circumstances ma- 
 terial to their character and consequences, seem, upon general 
 principles, invalid. 
 
 There are few contradictions of, or exceptions to, the general 
 rule that ignorance of the law, with a full knowledge of 
 the facts, furnishes no ground to rescind agreements, or to set 
 aside solemn acts of the parties. Ignorance of the law will not- 
 avail ; innocent mistake of fact will. 
 
 The general rule governing courts of equity upon this sub- 
 ject should be, to deny relief sought upon the mere ground ot 
 ignorance or mistake of law ; and that the exceptions allowed 
 must be of marked character, both in regard to proof, and the 
 degree of injustice consequent upon a denial of relief. 
 
 In relation to contracts, it must always be assumed, in re- 
 gard to both of these classes of mistakes, that the parties impli- 
 edly stipulate that they will, each for himself, run his own risk» 
 That is the implied condition of all contracts. And th© 
 parties cannot properly ask to be relieved from any merely in- 
 
EQUITY. 299> 
 
 cidental hardship, resulting from being under mistake, either 
 as to the true state of the facts or of the law. 
 
 But where the mistake is of so fundamental a character that. 
 the minds of the parties have never in fact met, or where 
 an unconscionable advantage has been gained by mere 
 mistake or misapprehension, and there was no gross negligence 
 on the part of the plaintiff, either in falling into the error or in 
 not sooner claiming redress, and no intervening rights have 
 accrued, and the parties may still be placed in statu quo, equity 
 will interfere, in its discretion, in order to prevent intolerable- 
 injustice. 
 
 It must appear that the contract is different from the under- 
 standing of both parties to justify the court in reforming it. 
 
 As to mistake of fact, the general rule is th&t an act 
 done, or contract made, under a mistake or ignorance of a ma- 
 terial fact, is voidable and relievable in equity. 
 
 The ground of this distinction between ignorance of 
 law and ignorance of fact seems to be, that, as every man or 
 reasonable understanding is presumed to know the law, and to 
 act upon the rights which it confers or supports, when he knows 
 all the facts, it is culpable negligence in him to do an act or to 
 make a contract and then to set up his ignorance of law as his- 
 defence. 
 
 The rule applies not only to cases where there has been a 
 studied suppression or concealment of the facts by the other 
 side, which would amount to a fraud, but also to many cases of 
 innocent ignorance and mistake on both, sides. 
 
 The fact must be material to the act or contract; that 
 is, it must be essential to its character, and an efficient cause of 
 its concoction. Por though there may be an accidental igno- 
 rance or mistake of fact, yet, if the act or contract is not mate- 
 rially affected by it, the party claiming relief will be denied it.. 
 
 It is not sufficient in all cases to give the party relief, 
 that the fact is material ; but it must be such as he could not. 
 by reasonable diligence get knowledge of when he was put upon 
 enquiry. 
 
 For if by such reasonable diligence he could have obtained 
 knowledge of the fact, equity will not relieve him; since that- 
 would be to encourage culpable negligence. Equity gives re- 
 lief to the vigilant, and not to the negligent. 
 
 There must always be shown either the mistake of both 
 
500 EQUITY. 
 
 parties, or the mistake of one, with the fraudulent concealment 
 of the other, to justify a court of equity in reforming a contract. 
 
 It is essential, in order to set aside such a transaction, not 
 only that an advantage should be taken ; but it must arise 
 Irom some obligation in the party to make the discovery, 
 not from an obligation in point of morals only, but of legal duty. 
 In such a case the court will not correct the contract, merely 
 because a man of nice morals and honor would not have entered 
 into it. It must fall within some definition of fraud or 
 surprise. 
 
 The policy of equity is to administer relief to the vigilant, 
 and to put all parties upon the exercise of a searching diligence. 
 Where confidence is reposed, or the party is intentionally 
 jnisled, relief may be granted ; but in such a case there is the 
 ingredient of what the law deems a fraud. 
 
 Where the means of information are open to both par- 
 ties, and where each is presumed to exercise his own skill, dili- 
 gence, and judgment in regard to all extrinsic circumstances, a 
 like principle applies. 
 
 Also where the fact is equally known to both parties ; 
 or where the fact is doubtful from its own nature ; in every such 
 case, if the parties have acted with entire good faith, a court of 
 equity will not interpose. For in such cases the equity is 
 deemed equal between the parties ; and when it is so, a court of 
 -equity is passive. 
 
 Equity has jurisdiction to relieve in respect of a plain mistake 
 in contracts in writing, as well as against frauds in contracts ; so 
 that, if reduced into writing contrary to the intent of the 
 parties, on proper proof that would be rectified. 
 
 Courts of equity have not hesitated to entertain jurisdic- 
 tion to reform all contracts, where a fraudulent suppression, 
 or omission, or insertion of a material stipulation exists, not- 
 withstanding to some extent it breaks in upon the uniformity of 
 the rule as to the exclusion of parol evidence to vary or 
 control contracts. 
 
 Where there has been an innocent omission or inser- 
 tion of a material stipulation, contrary to the intention of both 
 parties, and under a mutual mistake, equity will relieve. 
 
 "We must treat the cases in which equity affords relief, and 
 allows parol evidence, to vary and reform written con- 
 tracts and instruments, upon the ground of accident and 
 
EQUITY. 30r 
 
 mistake, as properly forming, like cases of fraud, exceptions to 
 the general rule, which excludes parol evidence, and as standing- 
 upon the same policy as the rule itself. 
 
 Eelief will be granted in cases of written instruments onljr 
 where there is a plain mistake clearly made out by satis- 
 factory proofs. 
 
 A court of equity is not, like a court of law, bound to 
 enforce a ■written contract ; but it may exercise its discretion 
 when a specific performance is sought, and may leave the party 
 to his remedy at law. 
 
 Equity may reform a written agreement, and direct the 
 specific performance of it, when so reformed. 
 
 Relief will be granted in equity in cases of mistake in- 
 written contracts, not only when the fact of the mistake is ex- 
 pressly established, but also when it is fairly implied from the 
 nature of the transaction. 
 
 The courts of equity will not rectify a voluntary deed, 
 unless all the parties consent. If any object, the deed must 
 take its chances as it stands. 
 
 In all cases of mistakes in written instruments, equity 
 will interfere only as between the original parties, or 
 those claiming under them in privity; such as personal 
 representatives, heirs, devisees, legatees, assignees, voluntary 
 grantees, or judgment creditors, or purchasers from them, with 
 notice of the facts. 
 
 As against bona fide purchasers for a valuable considera- 
 tion ■without notice, courts of equitj^ will grant no relief; be- 
 cause they have, at least, an equal equity to the protection of 
 the court. 
 
 Eelief will be granted in cases of mistake in written instru- 
 ments, to prevent manifest injustice and wrong, and to suppress 
 fraud; it will also be granted to supply defects, where, 
 by mistake, the parties have omitted any acts or circumstances- 
 necessary to give due validity and effect to written instru- 
 ments. 
 
 The same principle applies to cases ■where an instrument 
 has been delivered up, or cancelled, under a mistake of 
 the party, and in ignorance of the facts material to the rights 
 derived under it. 
 
 In all cases of relief by aiding and correcting defects or mis- 
 takes in the execution of instruments and powers, the party 
 
302 EQUITY. 
 
 asking relief must stand upon some equity superior to that 
 of the party against whom he asks it. 
 
 In regard to mistakes in wills, it is said that courts of 
 equity have jurisdiction to correct them, when they are appar- 
 ent upon the face of the will, or may be made out by a due con- 
 struction of its terms ; for in the cases of wills the intention 
 will prevail over the words. 
 
 ACTlJAIi OR POSITITE FRAUD. 
 
 It may be laid down as a general rule, subject to but few 
 exceptions, that courts of equity exercise a general ju- 
 risdiction in cases of fraud, sometimes concurrent with, and 
 .sometimes exclusive of, other courts. 
 
 In a great variety of cases fraud is rem.ediable, and effectually 
 remediable at law. 
 
 It is not easy to give a definition of fraud in the exten- 
 sive signification in which that term is used in courts of equity; 
 and it has been said that these courts have, very wisely, never 
 laid down as a general proposition what shall consti- 
 tute fraud, or any general rule beyond which they will not go 
 upon the ground of fraud, lest other means of avoiding the 
 equity of the courts should be found out. 
 
 Pothier says that the term fraud is applied to every artifice 
 made use of by one person for the purpose of deceiving another. 
 
 Labeo defines /rawd to be any cunning, deception, or artifice, 
 used to circumvent, cheat, or deceive another. 
 
 Fraud, in the sense of a court of equity, properly includes 
 all acts, omissions and concealments -which involve a 
 breach of legal or equitable duty, trust, or confidence, 
 justly reposed, and are injurious to another, orby vrhich 
 an undue and unconscientious advantage is taken of 
 another. 
 
 It is equally a rule in courts of law and courts of equity that 
 fraud is not to be presumed ; but it must be established 
 by proofs. 
 
 Equity will grant relief upon the ground of fraud, estab- 
 lished by presumptive evidence, which evidence courts of 
 law would not always deem sufficient proof to justify a verdict 
 at law. 
 
 One of the largest classes of cases in which courts of equity 
 
EQUITY. 303 
 
 • 
 
 are accustomed to grant relief is where there has been a mis- 
 Tepresentation, or suggestio falsi. 
 
 If the misrepresentation was of a trifling or immaterial 
 thing; or if the other party did not trust to it, or was not mis- 
 led by it ; or if it was vague and inconclusive in its own nature ; 
 ■or if it was upon a matter of opinion or fact, equally open to the 
 enquiries of both parties, and in regard to which neither could 
 be presumed to trust the other ; in these and the like cases 
 there is no reason for a court of equity to grant relief upon the 
 ground of fraud. 
 
 Whether the party thus misrepresenting a material fact, knew 
 it to be false, or made the assertion -without knowing 
 ■whether it -were true or false, is wholly immaterial ; for the 
 affirmation of what one does not know or believe to bo true is 
 equally, in morals and law, as unjustifiable as the affirmation 
 of what is known to be positively false. 
 
 It is immaterial whether the fraud was originally con- 
 cocted by the principal or by the agent ; the principal will 
 be held implicated to the fullest extent, if he adopts the acts of 
 his agent. 
 
 In civil tribunals a person cannot be allowed to complain of 
 trifling deviations from good faith in the party with whom 
 he has contracted. Nothing but what is plainly injurious to 
 good faith ought to be there considered as a fraud sufficient to 
 impeach a contract. 
 
 Ordinarily matters of opinion between parties, dealing upon 
 equal terms, though falsely stated, are not relieved against be- 
 cause they are not presumed to mislead, or influence the other 
 party, when each has equal means of information. 
 
 Nor is it every willful misrepresentation, even of a fact, which 
 will avoid a contract upon the ground of fraud, if it be of such 
 a nature that the other party had no right to place reliance on 
 it, and it was his own folly to give credence to it; for courts 
 of equity, like courts of law, do not aid parties who 
 "Will not use their own sense and discretion upon mat- 
 ters of this sort. 
 
 The defrauded party may, by his subsequent acts, with full 
 knowledge of the fraud, deprive himself of all right to re- 
 lief, as well in equity as at law. Thus, if he knew all the facts, 
 and with such full information, he continued to deal with the 
 party. 
 
304 EQUITY. 
 
 Another class of cases for relief in equity is where there is 
 an undue concealment, or suppressio veri, to the injury or 
 prejudice of another. 
 
 It is not every concealment, even of facts material to 
 the interests of a party, which will entitle him to the interposi- 
 tion of a court of equity. The case must amount to the sup- 
 pression of facts which one party, under the circumstances, is- 
 bound in conscience and duty to disclose to the other party, and 
 in respect to which he cannot innocently be silent. 
 
 Equity will not correct or avoid a contract merely be- 
 cause a man of nice honor would not have entered into it. The 
 case must fall within some definition of fraud ; and the' 
 rule must be drawn so as not to affect the general transactions 
 of mankind. 
 
 It is a rule in equity that all the material facts must 
 be known to both parties to render the agreement fair and 
 just in all its parts; and it is against all the principles of equity 
 that one party, knowing a material ingredient in an agreement, 
 should be permitted to surpress it, and still call for specific per- 
 formance. 
 
 The definition of undue concealment, which amounts to 
 fraud in the sense of a court of equity, and for which it will 
 grant relief, is the non-disclosure of those facts and circum- 
 stances which one party is under some legal or equitable obli- 
 gation to communicate to the other ; and which the latter has a 
 right, not merely m/oro conscientice, hnt juris et dejure, to know. 
 
 At the common law, in the eases of sales of goods, the 
 maxim caveat emptor is applied ; and unless there be some mis- 
 representation or artifice, to disguise the thing sold, or some 
 warranty, as to its character or quality, the vendee is bound by 
 the sale, notwithstanding there may be intrinsic defects and vices 
 in it, materially affecting its value. However questionable such 
 a doctrine may be, courts of equity, as well as courts of law, ab- 
 stain from any interference with it. 
 
 The most comprehensive class of cases of undue con- 
 cealment arises from some peculiar relation, or fiduciary char- 
 acter between parties. 
 
 In such cases, if there is any misrepresentation, or any 
 concealment of a material fact, or any just suspicion of artifice 
 or undue influence, courts of equity will interpose and pro- 
 nounce the transaction void, and as far as possible restore 
 the parties to their original rights. 
 
EQUITY. 305 
 
 Eq[uity will relieve from all unconscientious advantages or 
 bargains obtained over persons disabled by weakness, infirmity, 
 age, lunacy, idiocy, drunkenness, coverture, or other incapacity. 
 
 The general theory of the law, in regard to acts done and 
 contracts made by parties affecting their rights and interests, is 
 that in all such cases there must be a free and full consent 
 to bind the parties. 
 
 Consent is an act of reason, accompanied with delibera- 
 tion, the mind weighing, as in a balance, the good and evil on 
 each side. 
 
 It is upon this general ground, that there is a want of 
 rational and deliberate consent, that the contracts and other acts 
 of idiots, lunatics, and other persons non compos mentis, are gen- 
 erally deemed to be invalid in courts of e quity 
 
 It is a general principle that contracts made by persons in 
 liquor, even though their drunkenness be voluntary, are utterly 
 void ; because they are incapable of any deliberate consent, in 
 like manner as persons who are insane, or non compos mentis. 
 
 But to set aside any act or contract on account of 
 drunkenness, it is not sufficient that the party is under undue 
 excitement from liquor. It must rise to that degree which may 
 be called excessive drunkenness, where the party is utterly de- 
 prived of the use of his reason and understanding. 
 
 It may be stated as generally true that the acts and con- 
 tracts of persons who are of weak understanding, and 
 who are thereby liable to imposition, will be held void in courts 
 of equity, if the nature of the act or contract justify the con- 
 clusion that the party has not exercised a deliberate judgment, 
 but that he has been imposed upon, circumvented, or overcome 
 by cunning or artifice, or undue influence. 
 
 The protection of courts of equity is not to be ex- 
 tended to every person of a weak understanding unless 
 there be some fraud or surprise ; for courts of equity would 
 have enough to do if they were to examine into the wisdom and 
 prudence of men in disposing of their estates. 
 
 The constant rule in equity is that where the party is 
 not a free agent, and is not equal to protecting himself, 
 the court will protect him 
 
 Circumstances, also, of extreme necessity and distress 
 of the party, although not accompanied by any direct re- 
 straint or duress, may, in like manner, so entirely overcome his 
 
 20 
 
306 EQUITY. 
 
 free agency as to justify the court in setting aside a contract 
 made by him, on account of some oppression, or fraudulent ad- 
 vantage, or imposition attendant upon it. 
 
 Mere inadequacy of price, or any other inequality in 
 the bargain, is not to be understood as constituting per se, a 
 ground to avoid a bargain in equity. 
 
 But where there are other ingredients in the case of a sus- 
 picious nature, or peculiar relations between thb parties, gross 
 inadequacy of price must necessarily furnish the most vehement 
 presumption of fraud. 
 
 Equity will not relieve in all cases, even of very 
 gross inadequacy, attended with circumstances which might 
 otherwise induce them to act, if the parties cannot be placed in 
 statu quo. 
 
 Cases of surprise and sudden action without due delib- 
 eration may properly be referred to the same head of fraud or 
 imposition. 
 
 The surprise here intended must be accompanied with fraud 
 and circumvention, or at least by such circumstances as demon- 
 strate that the party had no opportunity to use suitable deliber- 
 ation or that there was some influence or management to mis- 
 lead him. 
 
 Gifts and legacies are often bestowed upon persons upon 
 condition that they shall not marry without the consent of 
 parents, guardians, or other confidential persons; and equity 
 will not suffer the manifest object of the condition to be de- 
 feated by the fraud or dishonest, corrupt, or unreasonable refusal 
 of the party whose consent is required to the marriage. 
 
 In general, a contract which contemplates a fraud 
 upon third parties is regarded as so far illegal between the 
 immediate parties, that neither will be entitled to claim the aid 
 of equity in its enforcement. 
 
 COl^STKUCTIVE FRAUI). 
 
 Having considered the subject of actual or meditated and 
 .intentional fraud, we may now pass to another class of frauds, 
 which, as contradistinguished from the former, are treated as 
 legal or constructive frauds. 
 
 By constructive frauds are meant such acts or contracts 
 ■.as, although not originating in . any actual evil design, or con- 
 
EQUITY, ■ 307 
 
 irivanee to perpetrate a positive fraud or injury upon other per- 
 sons, or to violate private or public confidence, or to impair or 
 injure the public interests, are prohibited at law, as within the 
 Same reason, and mischief, as acts and contracts done malo animo. 
 
 Some cases of construtive frauds are so denominated because 
 they are contrary to some general public policy, or arti- 
 ficial policy of the law. 
 
 Among these may properly be placed contracts and agree- 
 ments respecting marriage (commonly called marriage broker- 
 age contracts), by which a jjarty engages to give another a com- 
 pensation, if he will negotiate an advantageous marriage for him. 
 Such contracts are utterly void, as against public policy. 
 
 It is upon the same ground of public policy that contracts 
 in restraint of marriage are held void. 
 
 Conditions annexed to gifts, legacies and devises, in 
 r'estraint of marriage, are not void, if they are reasonable in 
 themselves, and do not directly or virtually operate as an undue 
 restraint upon the marriage freedom. If the condition is in 
 jrestraint of marriage generally, then, as a condition against 
 public policy, it will be held utterly void. 
 
 Courts of equity are not generally inclined to lend an indul- 
 -gent consideration to conditions in restraint of marriage. 
 
 Conditions annexed to devises, both of real and per- 
 sonal estate to a widow, that they shall become inoperative in 
 the event of the marriage of the devisee, have been generally 
 recognized and sustained. 
 
 Bargains and contracts made in restraint of trade con- 
 stitute another class of constructive frauds, and are so deemed 
 because inconsistent with the general policy of the law. 
 
 Here the known and established distinction is between such 
 bargains and contracts as are in general restraint of trade, and 
 .such as are in restraint of it only as to particular places or per- 
 sons. The latter, if founded upon a good and valuable consid- 
 eration, are valid. The former are universally prohibited. 
 
 In like manfler, agreements which are founded upon 
 violations of public trust or confidence, or of the rules 
 adopted by courts in furtherance of the administration of public 
 justice, are held void. 
 
 Another extensive class of cases, falling under this head of 
 constructive fraud, respects contracts for the buying, sell- 
 ing, or procuring of public oluces. 
 
308 EQUITY. 
 
 In regard to gaming contracts, courts of equity ought not 
 to interfere in their favor, but ought to afford aid to suppress 
 them; since they are not only prohibited by statute, but may be 
 justly pronounced to be immoral, as the practice tends to idle- 
 ness and the ruin of families. 
 
 It has been argued that the higher and wiser policy in regard 
 to all illegal contracts would be to allow money paid in their 
 furtherance to be recovered back. But the opposite rule pre- 
 vails, with few exceptions. 
 
 Generally, where the parties stand upon equal foot- 
 ing, and the contract is illegal, they cannot expect aid either 
 from the courts of law or equity. 
 
 The general rule is that wherever any contract or convey- 
 ance is void, either by a positive law, or upon principles of pub- 
 lic policy, it is deemed incapable of confirmation upon the 
 maxim. Quod ah initio non valet, in tractu temporis non convalescit. 
 But where it is merely voidable, or turns upon circumstances of 
 undue advantage, surprise, or imposition, there, if it is deliber- 
 ately, and upon full examination, confirmed by the parties, such 
 confirmation will avail to give it an ex post facto validity. 
 
 Let us pass to the consideration of the second head of con- 
 structive frauds, namely : of those which arise from some pe- 
 culiar confidential or fiduciary relation between the 
 parties. In this class of cases there is often to be found some 
 intermixture of deceit, imposition, overreaching, unconscionable 
 advantage, or other mark of direct and positive fraud. 
 
 The general principle which governs in all cases of this 
 sort is, that if a confidence is reposed, and that confi- 
 dence is abused, courts of equity will grant relief. 
 
 As to the relation of client and attorney or solicitor; it 
 is obvious that this relation must give rise to great confidence 
 between the parties, and to very strong influences over the ac- 
 tions and rights and interests of the client. 
 
 The burden of establishing perfect fairness, adequacy, 
 and equity is thrown upon the attorney, upon the general rule 
 that he who bargains in a matter of advantage with a person, 
 placing a confidence in him, is bound to show that a reasonable 
 use has been made of that confidence ; a rule applying equally 
 to all persons standing in confidential relations with each other. 
 
 The relation of principal and agent is affected by the 
 same considerations, founded upon the same enlightened public 
 
EQUITY. 309 
 
 policy. Upon these principles if an agent, employed to pur- 
 chase for another, purchases for himself, he will be considered 
 as the trustee of his employer. 
 
 In all cases of purchases and bargains respecting property, 
 directly and openly made between principals and agents, the 
 utmost good faith is required. 
 
 The question in all such cases does not turn upon the point 
 "whether there is any intention to cheat or not, but upon the 
 obligation from the fiduciary relation of the parties to make a 
 frank and full disclosure. 
 
 It is a general rule that a trustee is bound not to do 
 anything which can place him in a position inconsistent with the 
 interests of the trust, or which has a tendency to interfere with 
 iis duty in discharging it. 
 
 Executors and administrators will not be permitted, un- 
 der any circumstances, to derive a personal benefit from the 
 manner in which they transact the business, or manage the as- 
 sets of the estate. 
 
 It may be generally stated that wherever confidence is re- 
 posed, and one party has it in his power, in a secret manner, for 
 Ms own advantage, to sacrifice those interests which he is bound 
 to protect, he will not be permitted to hold any such advantage. 
 
 The case of principal and surety may be mentioned as 
 an illustration of this doctrine. 
 
 The contract of surety imports entire good faith and con- 
 :fidence between the parties in regard to the whole transaction. 
 Any concealment of material facts, or any express or implied 
 misrepresentation of such facts, or any undue advantage taken 
 of the surety by the creditor, either by surprise, or by with- 
 holding proper information, will furnish sufficient grounds to 
 invalidate the contract. 
 
 There must be something which amounts to fraud to 
 enable the surety to say that he is released from his contract on 
 account of misrepresentation or concealment. 
 
 If a creditor, without any communication with the surety and 
 assent on his part, should afterwards enter into any new con- 
 tract with the principal, inconsistent with the former contract, 
 or should stipulate in a binding manner, upon a sufficient con- 
 sideration, for further delay and postponement of the day of 
 payment of the debt, that will operate in equity as a discharge 
 of the surety. 
 
310 EQUITY, 
 
 Also, if the creditor has any security from the debtor, 
 
 and he parts with it, without communication with the surety, or 
 by his gross negligence it is lost, that will operate, at least to the- 
 value of the security, to discharge the surety. 
 
 The surety has a right, upon paying the debt to the 
 principal, to be substituted in the place of the creditor, as to all 
 securities held by the latter for the debt, and to have the same 
 benefit that he would have therein. 
 
 Contracts of suretyship limited by time are usually con- 
 strued strictly, and not to extend beyond the period fixed. 
 
 The Statute of Frauds requires certain contracts to 
 be in •writing in order to give th,em validity. In the construc- 
 tion of that statute, a general principle has been adopted^ that, 
 as it is designed as a protection against iraud, it shall never be 
 allowed to be set up as a protection and support of fraud. Hence 
 in a variety of eases, where from fraud, imposition or mistake, 
 a contract of this sort has not been reduced to writing, but has 
 been suffered to rest in confidence, or in parol communications' 
 between the parties, equity will enforce it against the party 
 guilty of a breach of confidence who attempts to shelter him- 
 self behind the firovisions of the statute. 
 
 In regard to voluntary conveyances, they are protected in 
 all cases where they do not break in upon the legal rights of 
 creditors. 
 
 If there is any design of fraud, or collusion, or intent 
 to deceive third persons, in such conveyances, although the party- 
 be not then indebted, the conveyance will be held utterly void, 
 as to subsequent as well as to present creditors, for it is not bona 
 fide. 
 
 A conveyance, even for a valuable consideration, is 
 not, under the statute of the 13th of Elizabeth, valid in point of 
 law from that circumstance alone. It must also be bona fide; 
 for if it be made with intent to defraud or defeat creditors, it 
 will be void, although there may, in the strictest sense, be a val- 
 uable, nay, an adequate, consideration. 
 
 Although voluntary conveyances are, or may be, void as to- 
 existing creditors, they are perfect and effectual as be- 
 tween the parties, and cannot be set aside by the grantor if 
 he should become dissatisfied with the transaction. 
 
 The distinction between existing and subsequent 
 creditors, in reference to voluntary conveyances is that, as to 
 
EQUITY. 311 
 
 the former, fraud is an inference of law, and as to the latter 
 there must be proof of fraud in fact. 
 
 Purchasers, bona fide, for a valuaible consideration, 
 without notice of the fraudulent or voluntary grant, are of 
 such high consideration, that they will be protected, as well at 
 law as in equity, in their purchases. 
 
 Where the parties are equally meritorious, and equally 
 innocent, the known maxim of courts of equity is, Qui prior est 
 in. tempore, potior est injure ; he is to be preferred who has ac- 
 quired the first title. 
 
 Another class of constructive frauds of a large extent 
 and over which courts of equity exercise an exclusive and a very 
 salutary control and jurisdiction, consists of those where a man 
 designedly or knowingly produces a false impression upon an- 
 other, who is thereby drawn into some act or contract, injurious 
 to his own rights or interests. 
 
 The wholesome maxim of the law is, that a party who 
 enables another to commit a fraud, is answerable for the conse- 
 quences; and the maxim, Fraus est celare fraudem, is, with proper 
 limitations in its application, a rule of general justice. 
 
 In many cases, a man may be innocently silent; for, as 
 has often been observed, Aliud est tacere, aliud celare. But in 
 other cases, a man is bound to speak out ; and his very 
 silence becomes as expressive as if he had openly consented to 
 what is said or done, and had become a party to the transaction. 
 
 Thus, if a party having a title to an estate should stand by 
 and allow^ an innocent purchaser to expend money upon 
 the estate, without giving him notice, he would not be permitted 
 in equity to assert that title against such purchaser, at least not 
 without fully indemnifying him for all his expenditures. 
 
 Where one of two innocent persons must suffer a loss, 
 and, a fortiori, in cases where one has misled the other, he who is 
 the cause or occasion of that confidence by which the loss has 
 been caused or occasioned ought to bear it. 
 
 Cases of this sort are viewed with so much disfavor by courts 
 of equity, that neither infancy nor coverture will consti- 
 tute any excuse for the party guilty of the concealment 
 or misrepresentation ; for neither infants nor femes covert are 
 privileged to practice deception or cheats on other innocent 
 persons. 
 Another class of constructive frauds consists of those 
 
312 EQUITY. 
 
 where a person purchases ■with full notice of the legal or 
 equitable title of other persons to the same property. In such 
 cases he will not be permitted to protect himself against such 
 claims, but his own title will be postponed, and made subser- 
 vient to theirs. 
 
 What shall constitute notice, in cases of subsequent pur- 
 chasers, is a point of some nicety, and resolves itself sometimes 
 into a matter of fact, and sometimes into a matter of law. 
 
 Notice may be either actual and positive, or it may be implied 
 and constructive. 
 
 Constructive notice is knowledge imputed by the court, on 
 presumption too strong to be rebutted, that the knowledge must 
 have been communicated. 
 
 To constitute constructive notice, it is not indispensable 
 that it should be brought home to the party himself. It is suffi- 
 cient if it is brought home to the agent, attorney, or counsel of 
 the party; for, in such cases, the law presumes notice to the 
 principal, since it would be a breach of trust in the former not 
 to communicate the knowledge to the latter. 
 
 Another branch of constructive frauds is that of voluntary 
 conveyances of real estate, in regard to subsequent pur- 
 chasers. This,is founded in a great measure upon the provisions 
 of the statute 27th Elizabeth, eh. 4. The object of the statute 
 was to give full protection to subsequent purchasers from the 
 grantor, against mere volunteers, under prior conveyances. 
 
 The true construction of the statute is that conveyances 
 are not avoided merely because they are voluntary, but because 
 they are fraudulent. 
 
 A voluntary gift of real estate is valid against subsequent 
 purchasers and all other persons, unless it was fraudulent at the 
 time of its execution ; and a subsequent conveyance for a valuable 
 consideration is evidence, but by no means conclusive evidence, 
 of fraud in the first voluntary conveyance. 
 
 Courts of equity v^ill not interpose, where the property 
 has been conveyed by the voluntary and covenous grantee to a 
 bona fide purchaser, for a valuable consideration, without notice. 
 Such a person is always a favorite in equity, and is always pro- 
 tected. His equity is equal to that of any other person, whether 
 he be a creditor or a purchaser of the grantor; and where the 
 equities are equal, the rule applies, |)oiwr est conditio possidentis. 
 
 Where there is a bona fide purchaser from the voluntary or 
 
EQUITY. 313 
 
 fraudulent grantor, and another from the voluntary or fraudu- 
 lent grantee, the grantees will have preference according 
 to the priority of their respective titles. 
 
 The beautiful character and pervading excellence of 
 equity jurisprudence is that it varies its adjustments and pro- 
 portions, so as to meet the very form and pressure of each par- 
 ticular case. Thus, to present a summary of what has been 
 already stated : if conveyances or other instruments are fraud- 
 ulently or improperly obtained, they are decreed to be given up 
 and cancelled. If they are money securities, on which the money 
 has been paid, the money is decreed to be paid back. If they 
 are deeds, or other muniments of title, detained from 
 the rightful party, they are decreed to be delivered up. 
 If they are deeds depressed or spoliated, the party is decreed 
 to hold the same rights as if they were in his possession and 
 jpower. If there has been any undue concealment, or misrepre- 
 sentation, or specific promise collusively broken, the injured 
 party is placed in the same situation, and the other party is 
 compelled to do the same acts, as if all had been transacted with 
 the utmost good faith. 
 
 It may be also stated, by vray of summary, that if the 
 party says nothing, but by his expressive silence misleads an- 
 other to his injury, he is compellable to make good the loss; and 
 iis own title, if the ease requires it, is made subservient to that 
 of the confiding purchaser. If a party, by fraud or misrepresen- 
 tation, induces another to do an act injurious to a third person, 
 he is made responsible for it. If by fraud or misrepresenta- 
 tion he prevents acts from being done, equity treats the 
 case, as to him, as if it were done ; and makes him a 
 trustee for the other. So, if a will is revoked by a fraudu- 
 lent deed, the revocation is treated as a nullity. And if a de- 
 visee obtains a devise by fraud, he is treated as a trustee of the 
 injured party. 
 
 ACCOlJIirT. 
 
 One of the most ancient forms of action at the Common Law 
 is the action of account. 
 
 But the modes of proceeding in that action were found so very 
 dilatory that, as soon as courts of equity began to assume juris- 
 diction in matters of account, as they did at a very early period, 
 the remedy at law began to decline. 
 
314 EQUITY. 
 
 As courts of equity entertain concurrent jurisdiction to the 
 fullest extent with courts of law, in matters of account, the de- 
 cision as to the proper tribunal must be governed by considera- 
 tions of convenience. 
 
 Courts of equity in suits of this nature proceed, in 
 many respects, in analogy to what is done at law. The cause is. 
 referred to a Master (acting as auditor), before whom the account 
 is taken, and he is armed with the fullest powers, not only to 
 examine the parties on oath, but to make all the enquiries by 
 testimony under oath, and by documents and books which are 
 necessary to the due administration of justice. 
 
 The whole machinery of courts of equity is better 
 adapted to the purpose of an account, in general, for in a 
 complicated account a court of law would be incompetent to- 
 examine it at JVisi Prius, with all the necessary accuracy. This 
 is the principle on which courts of equity constantly act, by 
 taking cognizance of matters, which, though cognizable at law,, 
 are yet so involved with a complex account, that it cannot be 
 properly taken at law. 
 
 The general ground asserted for the jurisdiction is not 
 that there is no remedy at law, but that the remedy is more 
 complete and adequate in equity. 
 
 Equity will also entertain jurisdiction in matters of account,, 
 not only when there are mutual accounts, but also when the 
 accounts to be examined are on one side only, and a discovery i» 
 wanted in aid of the account and is obtained. 
 
 APPROPRIATION. — In matters of account, where several 
 debts are due by the debtor to the creditor, it often becomes 
 material to ascertain to what debt a particular payment made 
 by the debtor is to be applied. This is called the appro- 
 priation of payments. 
 
 In the case of running accounts between parties 
 where there are various items of debt on one side, and various 
 items of credit on the other side, occurring at different times, 
 and no special appropriation of the payments is made by either 
 party, the successive payments or credits are to be applied to 
 the discharge of the items of debit, antecedently due, in the 
 order of time in which they stand in the account. 
 
 Where there are no running accounts bet'ween the 
 parties, and the debtor himself makes no special appropriation 
 of any payment, there the creditor is generally at liberty to- 
 
EQUITY. 315- 
 
 apply that payment to any one or more of the debts which the 
 debtor owes him, whether it be upon an account or otherwise.. 
 
 A creditor has no right to apply a general payment to any 
 item of account which is itself illegal, and contrary to law, as a 
 claim for usurious interest. 
 
 But if the debtor so apply the payment, he cannot afterwards 
 revoke it. 
 
 If neither party has made any appropriation, then the 
 law will make the appropriation according to its notion of the 
 equity and justice of the case, and so that it may be most bene- 
 ficial to both parties. 
 
 APPORTIONMENT.— CONTRIBUTION AND GEN- 
 ERAL AVERAGE are usually treated of under this head, as 
 they are in some measure blended together, and require and 
 terminate in accounts. 
 
 In most of these cases a discovery is indispensable 
 for the purposes of justice ; and where this does not occur, there 
 are other distinct grounds for the exercise of equity jurisdiction 
 in order to avoid circuity and multiplicity of actions. 
 
 Apportionment is sometimes used to denote the contribu- 
 tion which is to be made by different persons, having distinct 
 rights, towards the discharge of a common burden or charge 
 to be borne by all of them. 
 
 In respect to apportionment, in its application to con- 
 tracts in general, it is the known and familiar principle of 
 the Common Law, that an entire contract is not apporfionable. 
 The reason given is that as the contract is founded upon a con- 
 sideration dependent upon the entire performance of 
 the act, and if from any cause it is not wholly performed, the 
 casus fcederis does not arise, and the law will not make provis- 
 ions for exigencies which the parties have neglected to provide 
 for themselves. 
 
 At the common la-w, the cases are few in which an 
 apportionment under contracts is allowed, the general 
 doctrine being against it, unless specially stipulated by the par- 
 ties. 
 
 Thus, for instance, where a person was appointed a collector 
 of rents for another^ and was to receive $100 per annum for his 
 services, and he died at the end of three quarters of the year, 
 while in the service, it was held that his executor could not 
 recover $75 for the three quarters service, upon the ground 
 
316 EQUITY. 
 
 that the contract ■was entire and there could be no appor- 
 tionment. 
 
 Courts of equity, to a considerable extent, act upon 
 "this maxim of the Common Law in regard to contracts. But 
 where equitable circumstances intervene, they will grant redress. 
 
 A very important and beneficial exercise of equity 
 jurisdiction, in cases of apportionment and contribution, is 
 when encumbrances, fines, and other charges on real estate are 
 required to be j)aid off, or are actually paid off by some of the 
 parties in interest. 
 
 GENERAL AVERAGE, a subject of daily occurrence in 
 maritime and commercial operations, furnishes another class of 
 •cases over which equity exercises jurisdiction. 
 
 General average, in the sense of the maritime law, means 
 a general contribution that is to be made by all parties in 
 interest towards a loss or expense which is voluntarily sus- 
 tained or incurred for the benefit of all. 
 
 The principle upon which this contribution is founded is not 
 the result of contract, but has its origin in the plain dictates 
 of natural law. 
 
 A court of equity, having authority to bring all the parties 
 before it, and to refer the whole matter to a Master, to take an 
 account, and to adjust the whole apportionment at once, affords 
 a safe, convenient and expedient remedy. 
 
 CONTRIBUTION BETWEEN SURETIES.— Where, 
 between sureties, who are bound for the same princi- 
 pal, and upon his default, one of them is compelled to pay the 
 money, or to perform any other obligation, for which they all 
 became bound, the surety who has paid the ■whole is en- 
 titled to receive contribution from all the others for 
 what he has done in relieving them from a common burden. 
 
 As all are equally bound and are equally relieved, it seems 
 but just that in such a case all should contribute in j^roportion 
 towards a benefit obtained by all, upon the maxim Qui sentit 
 ■commodum, sentire debet et onus. 
 
 The ground of relief does not stand upon any notion of 
 mutual contract, express or implied, between the sureties to in- 
 demnify each other in proportion, but arises from principles 
 of equity, independent of contract. 
 
 There are many cases in which the relief is more complete and 
 ■effectual in equity than it can be at law, as, for instance, where 
 
EQUITY. 317 
 
 an account and discovery are wanied; or where there are 
 numerous parties in interest, which would occasion a multipli- 
 city of suits. 
 
 In some cases the remedy at lav^ is inadequate. Thus,. 
 if there are four sureties, and one is insolvent, a solvent surety, 
 who pays the whole debt, can recover only one-fourth part 
 thereof, (and not a third part) against the other two solvent, 
 sureties. But in a court of equity he will be entitled to re- 
 cover one-third part of the debt against each of them; for, in 
 equity, the insolvent's share is apportioned among all. 
 the other solvent sureties. 
 
 In some States courts of lav? follow the rule adopted in 
 courts of equity in apportioning the share of an insolvent 
 surety upon those who remain solvent. 
 
 Upon like grounds, if one of the sureties dies, the remedy at. 
 law lies only against the surviving parties; whereas in equity 
 it may be enforced against the representative of the 
 deceased party, and he may be compelled to contribute his. 
 share to the surviving surety who shall pay the whole debt. 
 
 At law, the release or discharge of one surety by the 
 creditor will operate as a discharge of all the other sureties, even 
 though it may be founded on a mere mistake of law. But this- 
 rule does not universally prevail in equity. 
 
 Sureties are not only entitled to contribution from, 
 each other for moneys paid in discharge of their joint liabilities- 
 for the principal, but they are also entitled to the benefit of all 
 securities which have been taken by any one of them to indem- 
 nify himself against such liabilities. 
 
 And in equity the sureties are entitled, upon payment; 
 of the debt due by their principal to the creditor, to have the; 
 full benefit of all the collateral securities, both of a legal and. 
 equitable nature, which the creditor has taken as an additional, 
 pledge for his debt. 
 
 It is a rule in equity that a creditor shall not, by his own 
 election of the fund, out of which he will receive payment, pre- 
 judice the rights which other persons are entitled to ; but they 
 shall either be substituted to his rights, or they may compel him 
 to seek satisfaction out of the fund, to which they cannot resort. 
 Thus, 'where a party, having two funds to resort to for 
 payment of his debt, elects to proceed against one, and thereby 
 disappoints another party, who can resort to that fund only.. 
 
•318 EQUITY. 
 
 In such a case, the disappointed party is substituted in 
 the place of the electing creditor, or the latter is compelled 
 to resort, in the first instance, to that fund which will not inter- 
 fere with the rights of the other. 
 
 The surety, upon payment of the debt, is entitled to be subro- 
 gated to all the rights of the creditor. 
 
 If the surety has a counter-bond or security from the principal, 
 the creditor will be entitled to the benefit of it, and may in 
 equity reach such security to satisfy the debt. 
 
 And the surety, by making a new and independent arrange- 
 ment with the creditor, in regard to the security of the debt, 
 puts liimself in the place of a principal, and cannot there- 
 after complain of the creditor for any want of diligence in pur- 
 suing the principal. 
 
 Contribution lies between partners for any excess which 
 has been paid by one partner beyond his share, against the other 
 partners, if upon a winding up of the partnership affairs, such a 
 balance appears in bis favor; or, if, upon a dissolution, he has 
 been compelled to pay any sum for which he ought to be indem- 
 nified. 
 
 Contribution also lies between joint-tenants, tenants 
 in common and part owners, of ships and other chattels, for 
 all charges and expenditures incurred for the commpn benefit. 
 
 The remedial justice of courts of equity, in all cases 
 of apportionment and contribution, is so complete, and so 
 flexible in its adaptation to all the particular circumstances and 
 equities, that it has, in a great measure, superseded all efforts to 
 obtain redress in any other tribunals. 
 
 There are some matters of defence peculiarly belong- 
 ing to matters of account. Thus, it is ordinarily a good bar 
 to a suit for an account that the parties have already in writing 
 stated and adjusted the items of the account, and struck the bal- 
 ance. In such a case equity will not interfere ; for there is a 
 remedy at law, and no ground for resorting to equity. 
 
 If there has been any mistake, or omission, or accident, or 
 fraud, or undue advantage, by which the account stated is in 
 truth vitiated, and the balance is incorrectly fixed, a court of 
 equity will not suffer it to be conclusive upon the parties, but 
 will allow it to be ojoened and re-examined. 
 
 What shall constitute, in the sense of a court of equity, 
 a stated account, is in some measure dependent upon the par- 
 
EQUITY. 319 
 
 ticular circumstances of the case. It is sufficient if it has been 
 examined and accepted by both parties. And this acceptance 
 jieed not be express, but may be implied from circumstances. 
 
 Between merchants at home, an account which has been pre- 
 sented, and no objection made thereto after the lapse of several 
 posts, is treated, under ordinary circumstances, as being, by 
 acquiescence, a stated account. 
 
 In regard to acquiescence in stated accounts, although 
 it amounts to an admission or presumption of their correctness, 
 it by no means establishes the fact of their having been settled, 
 •eyen though the acquiescence has been for a considerable time. 
 
 A settled account will be deemed conclusive between 
 the parties, unless some fraud, mistake, or omission is shown. 
 For it would be most mischievous to allow settled accounts be- 
 tween the parties, especially where vouchers have been delivered 
 up or destroyed, to be unsettled, unless for urgent reasons. 
 
 In matters of account, although not barred by the statute 
 of limitations, courts of equity refuse to interfere after a 
 considerable lapse of time, and the original transactions 
 iave become obscure or the evidence lost ; they act upon the 
 maxim, Vigilantibus, non dormientihus, jura sxibveniunt. 
 
 It is said that where there is no legal remedy, it does not 
 therefore follow that there must be an equitable remedy, unless 
 there is also an equitable right. Where there is a legal right, 
 there must be a legal remedy; and if there is no legal right, in 
 many cases there can be no equitable one. 
 
 Courts of equity also exercise a concurrent jurisdiction in the 
 Administration of the assets of deceased persons, and a similar 
 iurisdiction in regard to Legacies, Confusion of Boundaries, Dower, 
 Marshalling of Securities and Partition; all of which thestudent 
 can only comprehend by a, careful perusal of the details as given 
 in the text-books. 
 
 PARTJfERSHIP, 
 
 In cases of PARTNERSHIP, where a remedy at law act- 
 ually exists, it is often found to be very imperfect, inconvenient 
 and circuitous. But in a very great variety of cases, there is, 
 in fact, no remedy at all at law to meet the exigency of the case. 
 • The powers of a court of equity will be found most effective, 
 lay means of a bill of discovery, to bring out all the facts,. 
 
320 EQUITY. 
 
 as well in controversies between the partners themselves, aa 
 between them and third persons. 
 
 The most extensive, and generally, the most operative^ 
 remedy at law, between partners, is an action of account. 
 This is the apj)ropriate, and, except under very peculiar circum- 
 stances, is the only remedy, at the Common Law, for the final 
 adjustment and settlement of partnership transactions. 
 
 But the remedial justice administered by courts of equity is 
 far more complete, extensive and various, adapting itself 
 to the peculiar nature of the grievance, and granting relief in 
 the most beneficial and effective manner, where no redress could 
 be obtained at law. 
 
 After the commencement, tod during the continuance of a 
 partnership, courts of equity will, in many cases, interpose to 
 decree a specific performance of agreements in the articles of 
 partnership. 
 
 In case of a partnership existing during the pleasure 
 of the parties, if a sudden dissolution is about to be made, in 
 ill faith, and will -work irreparable injury, courts of equity 
 will, upon their ordinary jurisdiction to prevent irreparable 
 mischief, grant an injunction against such a dissolution. 
 
 Equity will also interfere, by injunction, to prevent a part- 
 ner, during the continuation of the partnership, from, 
 doing any acts injurious thereto, as by signing or endorsing 
 notes to the injury of the partnership, or by driving away cus- 
 tomers, or by violating the rights of the other parties, or hi» 
 duty to them, even when a dissolution is not necessarily contem- 
 plated. 
 
 But equity will not, in all cases, interfere to enforce a specific 
 performance of the articles of partnership. Where a remedy 
 at law is entirely adequate, no relief will be granted in 
 equity. 
 
 Courts of equity may not only provide for a more effectual 
 settlement of all the accounts of the partnership after a dissolu- 
 tion, but they may take steps for this purpose which courts of 
 law are inadequate to afford. 
 
 It is the duty of courts of equity to adapt their prac- 
 tice and course of proceeding to the existing state of 
 society, and not by too strict an adherence to forms and rules, 
 established under different circumstances, to decline to adminis- 
 ter justice, and to enforce rights for which there is no other 
 
EQUITY. • 321 
 
 remedy. A general rule, established for the convenient admin- 
 istration of justice, must not be adhered to in cases in which^ 
 consistently with practical convenience, it is incapable of appli- 
 cation; it is better to go as far as possible towards jus- 
 tice, than to deny it altogether. 
 
 Where a dissolution has taken place, an account will 
 not only be decreed, but, if necessary, a manager or receiver 
 'Will be appointed to close the partnership business, and 
 make sale of the partnership property : so that a final distribu- 
 tion may be made of the partnership effects. This a court of 
 law is incompetent to do. 
 
 The accounts are usually taken before a Master, who 
 examines the parties, if necessary, and requires the production 
 of all the books, papers and vouchers of the partnership, and he 
 is armed from time to time, by the court, with all the powers 
 necessary to effectuate tjie objects of the reference to him. 
 
 A receiver or manager will not be appointed, at the in- 
 stance of one of the partners, in a suit which does not seek to 
 dissolve the partnership. 
 
 The power to dissolve a partnership during the term 
 for ■which it is stipulated is also exercised by courts of equity. 
 And this is a peculiar remedy which courts of law are incapable 
 of administering. 
 
 Such a dissolution may be granted on account of the im- 
 practicability of carrying on the undertaking, either at all or 
 according to the stipulations of the articles. It may be grant- 
 ed on account of the insanity, or permanent incapacity 
 of one of the partners. Also on account of the gross mis- 
 conduct of one or more of the partners. But trifling faults 
 and misbehavior, which do not go to the substance of the con- 
 tract, do not constitute sufficient ground to justify a decree for dis- 
 solution. 
 
 Where the circumstances have so changed, and the 
 conduct of the parties is such as to render it impossible to con- 
 tinue the relation without injury to all the partners, the court 
 ■will decree a dissolution. 
 
 The real estate is treated, to all intents and purposes, as a 
 part of the partnership funds, whatever may be the form of 
 the conveyance. For equity considers the real estate, to all in- 
 tents and purposes, as personal estate; and subjects it to all the 
 equitable rights and liens of the partners, which would apply to 
 it if it were personal estate. 21 
 
322 EQUITY. 
 
 The creditors of the partnership have the preference 
 
 to have their dehts paid out of the partnership funds, before the 
 private creditors of either of the partners. 
 
 And it seems that the separate creditors of each part- 
 ner are entitled to be first paid out of the separate effects 
 of their debtor, before the partnership creditors can claim any- 
 thing. 
 
 Or, as it is said, where there are partnership property and 
 partnership creditors, and separate property and separate credi- 
 tors, each class of creditors must look to their separate 
 estates, without jostling each other for payment in the first 
 instance. 
 
 Each has a priority on its respective estate ; after it is sat- 
 isfied, the other may come upon the residue, according to 
 its several legal and equitable rights. 
 
 This rule can only become material in cases of insol- 
 vency or bankruptcy, where the necessity may arise for mar- 
 shalling assets. Prior to and independent of this, the rights of 
 creditors remain, to enforce the payment of debts due them at 
 law. 
 
 In cases of partnership debts, if one of the partners dies and 
 the survivor becomes insolvent or bankrupt, the joint credi- 
 tors have a right to be paid out of the estate of the de- 
 ceased partner, through the medium of the equities subsisting 
 between the partners. 
 
 The ground of the doctrine is that every partnership debt 
 is joint and several ; and, in all such cases, resort may primarily 
 bo had for the debt to the surviving partners, or to the assets of 
 the deceased partner. 
 
 At law, an execution for the separate debt of one of the part- 
 ners may be levied upon the joint property of the partnership. 
 In such case, however, the judgment creditor can levy on the 
 interest only of the judgment debtor, if any, in the prop- 
 erty, after payment of all debts and other charges thereon. 
 
 The creditor can take only the same interest in the 
 property 'which the judgment debtor himself wotild 
 have upon the final settlement of all the accounts of the 
 partnership. And after the sale of the interest of the partner, 
 the vendee has a right in equity to call for an account, and thus 
 to entitle himself to the interest of the partner in the property, 
 Tvhich shall be ascertained to exist. 
 
EQUITY. 323 
 
 The remedy for the other partners, if nothing is due 
 
 io the judgment debtor out of the partnership funds, is to file a 
 bill in equity against the vendee of the sheriff, to have the 
 j)roper accounts taken. 
 
 In the case of two firms dealing vrith each other where 
 some or all the partners in one firm are partners with other 
 jpersons in, the other firm, no suit can be maintained at la'vr 
 in regard to any transactions or debts between the two firms ; 
 for in such suit all the partners must join, and be joined; and 
 no person can maintain a suit against himself, or against 
 iimself and others. 
 
 But in equity it is otherwise ; for there it is sufficient 
 that all the parties in interest are before the court as 
 plaintiffs or as defendants ; and they need not, as at law in 
 fluch eases, be on the opposite sides of the record. 
 
 Equity in all such cases looks behind the form of the 
 transactions to their substance; and treats the different 
 firms, for the purposes of substantial justice, exactly as if they 
 were composed of strangers, or were in, fact, corporate com- 
 panies. 
 
 If one partner, in fraud of the partnership rights or 
 credits, should release an action, that release would, at law, be 
 obligatory upon all the partners. But equity would not hesi- 
 tate to relieve the partnership. 
 
 Where a discovery, an account, a contribution, an injunction, 
 or a dissolution is sought, in cases of partnership, or where a 
 due enforcement of partnership rights and duties and credits 
 is required, it is plain to perceive that, generally, a resort to 
 courts of law would be little more than a solemn mockery of 
 justice. 
 
 It is said that -where there is a right there ought to be a 
 remedy, and if the law gives none, it ought to be administered 
 in equity. This principle is of frequent aj)plication in equity, 
 hut it is not to be understood as of universal application. 
 
 BISCOVEBY. 
 
 CANCELLATION AND DELIVERY OP INSTRU- 
 MENTS. — Every original bill in equity may, m truth, be 
 properly deemed a bill of discovery, for it seeks a disclosure 
 •of circumstances relative to the plaintiff's case. 
 
324 EQUITY. 
 
 But that which is usually distinguished hy this appellation is 
 a bill for the discovery of facts, resting in the knowl- 
 edge of the defendant, or of deeds, or writings, or other 
 things, in his custody, possession, or power, but seeking no 
 relief in consequence of this discovery, although it may pray 
 for a stay of proceedings at law, until the discovery shall be 
 made. 
 
 Courts of lavr are incompetent to compel such a dis- 
 covery ; and, therefore, it properly falls under the head of the 
 exclusive jurisdiction of courts of equity. 
 
 The court, having acquired cognizance of the suit for the pur- 
 pose of discovery, will entertain it for the purpose of relief in 
 most cases of fraud, account, accident and mistake. 
 
 Equity also exercises jurisdiction over cases where the 'Rescis- 
 sion, Cancellation or Delivery Up of agreements, securities, or 
 deeds is sought, or a Specific Performance is required of the 
 terms of such agreements, securities, or deeds, as indispensable 
 to reciprocal justice. 
 
 Courts of lavr are utterly incompetent to make a 
 specific decree for any relief of this sort. 
 
 Application to a court of equity in all cases of this sort is 
 not, strictly speaking, a matter of absolute right upon which 
 the court is bound to pass a final decree. But it is a matter of 
 sound discretion to be exercised by the court, either in grant- 
 ing or in refusing relief. 
 
 The principle upon which courts of equity direct the Delivery 
 Up, Cancellation or Rescission of agreements, securities, deeds or 
 other instruments, is technically called quia timet; that is, for 
 fear that such agreements or other instruments may be vexa- 
 tiously or injuriously used against him, when the evidence to 
 impeach them may be lost ; or that they may now throw a cloud 
 or suspicion over his title or interest. 
 
 Equity will generally set aside, cancel and direct to 
 be delivered up agreements and other instruments, however 
 solemn in their form or operation, where they are voidable, and 
 not merely void, under the following circumstances : First, where 
 there is actual fraud in the party defendant, in which the plaintifi 
 has not participated. Secondly, where there is a constructive fraud 
 against public policy, and the plaintiff has not participated 
 therein. Thirdly, where there is a fraud against public policy, 
 and the party plaintiff has participated therein, but public policy 
 
EQUITY. 325 
 
 ■would be defeated by allowing it to stand. Lastly, where there 
 is a construtive fraud by both jjarties, but they are not in pari 
 delicto. 
 
 A party ought not to be permitted to avail himself of 
 any agreement, deed or other instrument procured by 
 his own actual or constructive fraud, or by his own viola- 
 tion of legal duty or public policy, to the prejudice of an inno- 
 cent party. 
 
 The third class of cases may be illustrated by the com- 
 mon case of gaming secarity, which will be decreed to be given 
 up, notwithstanding both parties have participated in the viola- 
 tion of the law. 
 
 The fourth class may also be illustrated by cases where 
 although both parties have participated in the guilty transaction, 
 yet the party who seeks relief has acted under circumstances of 
 oppression, imposition, hardship, undue influence or great in- 
 equality of age or condition. 
 
 Where a delivery up or cancellation of deeds or 
 other instruments is sought, either upon the ground of their 
 original invalidity, or of their subsequent satisfaction, or because 
 the party has a just title thereto, or derives an interest under 
 them, courts of equity act upon an enlarged and com- 
 prehensive policy ; and in granting relief will impose such 
 terms and qualifications as shall meet the just equities of the 
 opposing party. 
 
 In case of chattels courts of equity will not, ordinarily, 
 interfere to decree a specific delivery, because by a suit at 
 law a full compensation may be obtained in damages, although 
 the thing itself cannot be specifically obtained; and when such 
 a remedy at law is perfectly adequate and effectual, 
 there is no reason why equity should afford any aid to the party. 
 
 But there are cases of personal goods and chattels 
 in which the remedy at law by damages would be utterly inad- 
 equate, and leave the injured party in a state of irremediable loss. 
 
 In such cases equity will grant relief by requiring the spe- 
 cific delivery of the thing which is wrongfully withheld. 
 
 This will be done in cases where the principal value of the 
 chattel consists in its high antiquity, or in its being a family 
 relic, ornament, or heirloom; such as ancient gems, medals, 
 coins, paintings of old and distinguished masters, ancient 
 ;Statues and busts. 
 
326 EQUITY. 
 
 Relief will also be granted in equity where the party in pos-^ 
 session of the chattel has acquired such possession through an 
 alleged abuse of power on the part of one standing in a fidu- 
 ciary relation to the plaintiff. 
 
 SPECIFIC PERFORMANCE. 
 
 Equity, in obedience to the cardinal rule of natural justice, 
 that a person should perform his agreement, enforces, pur- 
 suant to a regulated and judicial discretion, the actual accom- 
 plishment of a thing stipulated for, on the ground that what is 
 lawfully agreed to be done ought to be done. 
 
 This branch of equity jurisdiction is of a very an- 
 cient date. It may be distinctly traced back to the reign of 
 Edward IV; for in the Year Books of that reign it was expressly 
 recognized by the chancellor as a clear jurisdiction. 
 
 The ground of the jurisdiction is that a court of law is 
 inadequate to decree a specific performance, and can relieve the 
 injured party only by a compensation in damages, which, 
 in many cases, would fall far short of the redress which his sit- 
 uation might require. 
 
 Whenever a party wants the thing in specie, and he cannot 
 Otherwise be fully compensated, courts of equity will grant 
 him a specific performance. 
 
 With reference to the present subject, agreements may be di- 
 vided into three classes : (1) those which respect personal 
 property ; (2) those which respect personal acts ; and (3), 
 those which respect real property. 
 
 Although the general rule is not to entertain jurisdiction 
 in equity for a specific performance of agreements respecting 
 goods, chattels, stock, choses in action and other things of a 
 merely personal nature ; yet the rule is, as we have seen, a- 
 qualified one, and subject to exceptions; or rather the rule is 
 limited to cases -where a compensation in damages fur- 
 nishes a complete and satisfactory remedy. 
 
 Cases of agreements to form a partnership, and to exe- 
 cute articles accordingly, may be specifically decreed, al- 
 though they relate exclusively to chattel interests, and so of a 
 covenant for a lease, or to renew a lease ; so of a contract for 
 the sale of the good-will of a trade, and of a valuable secret 
 connected with it; for no adequate compensation can, in. 
 such cases, be made at la-w. 
 
EQUITY. 327 
 
 And if a party covenants that he will not carry on his 
 trade vrithin a certain distance, or in a certain place within 
 which the other party carries on the same trade, a court of equity 
 will restrain the party from breaking the agreement so made. 
 In such cases the decree operates, pro tanto, as a specific per- 
 formance. 
 
 The jurisdiction of courts of equity, to decree a specific per- 
 formance of contracts, is not dependent upon, or affected by, 
 the form or character of the instrument. 
 
 It is maintained that courts of equity ought not to decline the 
 jurisdiction for a specific performance of contracts, whenever 
 the remedy at law is doubtful in its nature, extent, operation or 
 adequacy. 
 
 It is not necessary to the specific performance of a written 
 agreement that it should be signed by the party seeking 
 to enforce it; if the agreement is certain, fair and just in all 
 its parts, and signed by the party sought to be charged, that is 
 sufficient ; the -want of mutuality in the signature merely 
 is no objection to its enforcement. 
 
 In eases of specific performance, courts of equity sometimes 
 follow the law, and sometimes go far beyond the law ; and their 
 doctrines, if not wholly independent of the point whether dam- 
 ages would be given at law, are not in general dependent up- 
 on it. 
 
 Sometimes damages may be recoverable at law, when 
 courts of equity would yet not decree a specific performance ; 
 and, on the other hand, damages may not be recoverable at law, 
 and yet relief would be granted in equity. 
 
 The most numerous class of cases in which courts of 
 equity are called upon to decree a specific performance of con- 
 tracts is that class respecting land. 
 
 A bill for a specific performance of a contract respecting land 
 may be entertained by courts of equity, although the land is 
 situate in a foreign country, if the parties are resident within the 
 territorial jurisdiction of the court. The ground of this juris- 
 diction is that courts of equity have authority to act upon the 
 person j jEquitas agit in personam ; for in all suits in equity the 
 primary decree is in personam and not in rem. 
 
 But a court of equity has no jurisdiction in cases touching 
 lands in foreign countries, unless the relief sought is of such a 
 nature as the court is capable of administering in the given case. 
 
S28 EQUITY. 
 
 The jurisdiction of courts of equity to decree specific per- 
 formance, is, in cases of contracts respecting land, universally 
 maintained; whereas, in eases respecting chattels, it is limited 
 to special circumstances. 
 
 If a man contracts for a hundred bales of cotton, or boxes of 
 sugar, of a particular description or quality, if the contract is 
 not specifically performed, he Taa,j, generally, with a sum equal 
 to the market price, purchase other goods of the same kind and 
 quality; and thus completely obtain his object and in- 
 demnify himself against loss. 
 
 But in contracts respecting a specific messuage or 
 parcel of land it is different ; the locality, character, vicin- 
 age, soil, easements or accommodations of the land generally, 
 may give it a peculiar and special value in the eyes of the pur- 
 chaser ; so that it cannot be replaced by other land of the same 
 precise value, and, therfore, a compensation in damages 
 would not be adequate relief. 
 
 Courts of equity will not permit the forms of law to be 
 made the instruments of injustice ; and they will, therefore, 
 interpose against parties, attempting to avail themselves of the 
 rigid rules of law for unconscientious purposes. 
 
 They dispense •with that which would make a compli- 
 ance with what the law requires oppressive ; and in va- 
 rious cases of such contracts, they are in the constant habit of 
 relieving a party who has acted fairly, although negligently. 
 
 It seems that where the party against whom the decree is 
 sought shows to the satisfaction of the court that he entered into 
 the contract under a bona fide misapprehension in a mate- 
 rial point, the contract will not be carried into effect. Thus, 
 where A by letter offered to sell some property to B for £1,250, 
 and B by letter accepted the offer, and A by mistake inserted 
 £1,250 in his letter, instead of £2,250, and so informed B imme- 
 diately, equity would not enforce the contract. 
 
 He who seeks a specific performance must show an 
 execution, or an offer to execute, on his part. 
 
 Equity will not decree a specific performance where the con- 
 tract is founded in fraud, imposition, mistake, undue ad- 
 vantage, or gross misrepresentation; or where from a 
 change of circumstances, or otherwise, it would be uncon- 
 scientious to enforce it. 
 
 Specific performance will be decreed where the contract is 
 
EQUITY. 329 
 
 in writing, and is certain, and is fair in all its parts, and is for 
 an adequate consideration, and is capable of being performed. 
 
 In some cases courts of equity will decree the specific per- 
 formance of contracts respecting lands, where they are with- 
 in the provisions of the statute of frauds and perjuries. 
 That statute has been generally re-enacted or adopted in this 
 country. 29 Car. II , ch. 3. 
 
 It enacts " That all interest in lands, tenements, and heredita- 
 ments, except leases for three years, not put in writing and 
 signed by the parties or their agents authorized by writing, 
 shall not have, nor be deemed in law or equity to have, any 
 greater force or effect than leases on estates at will." 
 It further enacts, " That no action shall be brought, whereby to 
 charge an j' person upon any agreement made upon consideration 
 of marriage, or upon any contract or sale of lands, tenements, 
 or hereditaments, or any interest in or concerning the same, or 
 upon any agreement that is not to be performed ■within 
 the space of one year from the making thereof, unless the 
 agreement upon which such action shall be brought, or some 
 memorandum or note thereof, shall be in writing and signed 
 by the party or his lawful agent." 
 
 The objects of this statute are such as the very title indi- 
 cates, to prevent the fraudulent setting up of pretended agree- 
 ments, and then supporting them by perjury. 
 
 Besides, there is a manifest policy in requiring all contracts of 
 an important nature to be reduced to writing, since otherwise, 
 from the imperfection of memory, and the honest mistakes of 
 witnesses, it must often happen, either that the specific contract 
 Is incapable of exact proof, or that it is unintentionally 
 varied from its precise original terms. 
 
 Equity will enforce a specific performance of a contract within 
 the statute, not in writing, where it is fully set forth in the bill, 
 and is confessed by the answer of the defendant. But even 
 where the answer confesses the parol agreement, if it insists, by 
 way of defence, upon the protection of the statute, the defence 
 must prevail as a bar. 
 
 So will equity enforce a specific performance of a contract 
 wdthin the statute, where the parol agreement has been 
 partly carried into execution. 
 
 Otherwise one party would be able to practice a fraud upon the 
 other ; and it could never be the intention of the statute to en- 
 able any party to commit such a fraud with impunity. 
 
330 EQUITY. 
 
 Where one party has executed his part of the agree- 
 ment, in the confidence that the other party would do the same, 
 it is obvious that if the latter should refuse, it would be a fraud 
 upon the former to suffer this refusal to work to his prejudice. 
 
 It was formerly thought that a deposit, or security, or pay- 
 ment of the purchase-money, or of a part of it, was such a part 
 performance as took the case out of the statute. But this doc- 
 trine is overthrown. 
 
 One ground why part payment is not deemed a part perform- 
 ance, sufiicient to lift a ease out of the statute, is that the money 
 can be recovered back again at lavr, and therefore the case 
 admits of full and direct compensation. 
 
 Another ground is that the statute has said in another clause 
 (that which respects contracts for goods) that part payment, by 
 way of earnest, shall operate as a part performance. And hence 
 the courts have considered this clause as excluding, by 
 implication, agreements for lands. 
 
 But the general rule in cases of this sort is that nothing is 
 to be considered as a part performance which does not put 
 the party into a situation which is a fraud upon him, unless- 
 the agreement is fully performed. 
 
 Thus, where a vendee, upon a parol argreement for a sale of' 
 land, should proceed to build a house on the land, in the confi- 
 dence of a due completion of the contract, — in such a case, it 
 would be a manifest fraud upon the party to permit the 
 vendor to escape from a strict fulfillment of such agreement. 
 
 To take a case out of the statute because of part performance 
 of a parol contract, it is indispensable that the acts done 
 should be clear and definite, and referable exclusively 
 to the contract; and the contract should also be estab- 
 lished by competent proofs to be clear, definite and une- 
 quivocal in all its terms. 
 
 A contract cannot rest partly in vrriting and partly in 
 parol. The writing is the highest evidence, and does away 
 with the necessity and effect of the parol evidence, if it is con- 
 tradictory to it. 
 
 When the court simply refuses to enforce the specific perform- 
 ance of a contract, it leaves the party to his remedy at \acvr. 
 
 Equity will allo-w the defendant to show that by fraud,, 
 accident, or mistake, the thing bought is different from what he 
 intended ; or that material terms have been omitted in the 
 
EQUITY. 331 
 
 written agreement ; or that there has been a variation of it 
 by parol ; or that there has been a parol discharge of a writ- 
 ten contract. 
 
 The ground of this doctrine is that courts of equity ought 
 not to be active in enforcing claims which are not, under the 
 actual circumstances, just, as between the parties. 
 
 In general, it may be stated that to entitle a party to a 
 specific performance, he must show that he has been in no 
 default in not having performed the agreement, and that he has 
 taken all proper steps towards performance on his own part. 
 
 If the plaintiff has been guilty of gross laches, or if he 
 applies for relief after a long lapse of time, unexplained by 
 equitable circumstances, his bill will be dismissed; for courts of 
 equity do not, any more than courts of law, administer relief to 
 the gross negligence of suitors. 
 
 In some cases courts of equity will decree a specific execution, 
 not according to the letter of the contract, if that will 
 be unconscientious ; but they will modify it according to the 
 change of circumstances. 
 
 A court of equity will also decree specific performance, in 
 some cases, vrhere the action at lavr has been lost by the 
 default of the party seeking the specific performance, if 
 it be, notwithstanding, conscientious that the agreement should 
 be performed. 
 
 Time is not generally deemed in equity to be of the 
 essence of the contract, unless the parties have expressly so 
 stated it, or it necessarily follows from the nature and circum- 
 stances of the contract. 
 
 But courts of equity have regard to time, so far as it 
 respects the good faith and diligence of the parties. If, 
 however, circumstances of a reasonable nature have disabled the- 
 party from a strict compliance, or if he comes, recenti facto, to ask 
 for a specific performance, the suit will be treated with indul- 
 gence, and, generally, with favor by the court. 
 
 Equity will also relieve the party vendor, by decreeing 
 a specific performance where he has been unable to comply with 
 his contract according to the terms of it, from the state of 
 his title at the time, if he comes within a reasonable time, and 
 the defect is cured. 
 
 So, if he is unable to make a good title at the time when 
 the bill is brought, if he is in a condition to make such a title 
 at or before the time of the decree. 
 
-332 EQUITY. 
 
 Where there is a substantial defect in the estate sold 
 
 either in the title itself, or in the representation or description, 
 or the nature, character, situation, extent, or quality of it which 
 is unknown to the vendee, and in regard to which he is not 
 put upon enquiry, there a specific performance will not be de- 
 creed against him. 
 
 The general rule is that the purchaser, if he chooses, is en- 
 titled to have the contract specifically performed, as far 
 ^s the vendor can perform it, and to have abatement out of the 
 purchase-money or compensation for any deficiency in the 
 title, quantity, quality, description, or other matters touching 
 the estate. 
 
 But if the purchaser should insist upon such a performance, 
 the court will grant relief only upon his compliance with 
 equitable terms. 
 
 If a man in confidence of the parol promise of an- 
 other to perform the intended act, should omit to make 
 certain provisions, gifts, or arrangements for other persons, hy 
 will or otherwise, such a promise would be specifically en- 
 forced in equity against such promisee; although founded on 
 & parol declaration, creating a trust contrary to the statute of 
 frauds ; for it would be a fraud upon all the other parties 
 to permit him to derive a benefit from his own breach of duty 
 and obligation. 
 
 Thus, where a testator was about altering his will, for fear 
 .that there would not be assets enough to pay all the legacies, 
 and his heir-at-law persuaded him not to alter it, promising to 
 pay all the legacies, he was decreed specifically to perform his 
 promise. 
 
 Privity of contract between the parties is, in general, in- 
 dispensable to a suit at la^v ; but courts of equity act in 
 favor of all persons claiming by assignment under the parties, 
 independent of any such privity. 
 
 If a person has, in writing, contracted to sell land, and after- 
 wards refuses to perform his contract, and then sells the land to 
 a purchaser with notice of the contract, the latter will be 
 compelled to perform the contract of his vendor, for he 
 stands upon the same equitjr ; and although he is not personally 
 liable on the contract, yet he will be decreed to convey the land, 
 for he is treated as a trustee of the first vendee. 
 
 In general, where the specific execution of a contract respect- 
 
EQUITY. 333 
 
 ing lands will be decreed between the parties, it will be 
 decreed between all persons claiming under them in 
 privity of estate, or representation, or of title, unless other 
 controlling equities are interposed. 
 
 The general principle upon which this doctrine pro- 
 ceeds is that from the time of the contract for the sale of the- 
 land, the vendor, as to the land, becomes a trustee for the 
 vendee, and the vendee, as to the purchase-money, a trustee 
 to the vendor, who has a lien upon the land therefor. And 
 every subsequent purchaser from either, with notice becomes 
 subject to the same equities as the party would be from 
 whom he purchased. 
 
 Where a man has entered into a valid contract for the pur- 
 chase of land, he is treated in equity as the equitable 
 owner of the land, and the vendor is treated as the 
 OTwner of the money. The purchaser may devise it as land, 
 even before the conveyance is made, and it passes by descent 
 to his heir as land. The vendor is deemed in equity to stand 
 seized of it for the benefit of the purchaser. 
 
 The vendor may come into equity for a specific per- 
 formance of the contract on the other side, and to have 
 the money paid; for the remedy in cases of specific per- 
 formance is mutual, and the purchase-money is treated as 
 the personal estate of the vendor, and goes as such to his per- 
 sonal representatives. 
 
 In respect to voluntary contracts, or such as are not 
 founded in a valuable consideration, courts of equity do not 
 enforce them, either as against the party himself or as against 
 other volunteers claiming under him. 
 
 Where there is any matter affecting the contract, about which' 
 the party might lona fide make a mistake, and he swears posi- 
 tively that he did make such mistake, a court of equity 
 will not decree specific performance against him. 
 
 Where the party agrees to convey the land with full 
 covenants of warranty and release of dower and he is 
 unable to procure the release of dower, a decree of specific per- 
 formance will be made with compensation for the right of dower 
 and an exception to that extent in the covenants. 
 
 Courts of equity exercise a discretion in decreeing specific 
 performance, and where the title to any portion of the 
 estate fails, or is not of a marketable character, it will not be- 
 forced upon the purchaser. 
 
:334 EQUITY. 
 
 COMPEHrSATIO]!f ANH DAMAOHIS. 
 
 It may be stated as a general proposition, that, for breaches 
 ■of contract and other wrongs and injuries cognizable at law, 
 courts of equity do not entertain jurisdiction to give 
 redress by way of compensation or damages where 
 these constitute the sole objects of the bill. 
 
 Wherever the matter of the bill is merely for damages, and 
 there is a perfect remedy therefor at law, it is far better that 
 they should be ascertained by a jury than by the con- 
 . science of an equity judge. 
 
 Compensation or damages will, ordinarily, be decreed in 
 equity only as incidental to other relief sought by the bill 
 and granted by the court, or -where there is no adequate 
 remedy at law. 
 
 The mode in which such damages are ascertained is 
 either by a reference to a Master, or by directing an issue, quan- 
 tum damnificatus, which is trial by a jury. 
 
 I]!irTX:iCPl,EAI>ER. 
 
 The jurisdiction of a court of equity to compel an inter- 
 pleader follows, to some extent, the analogies of the law. 
 
 Interpleader is applied to cases -where t-wo or more per- 
 sons claim the same debt, duty, or thing from another, 
 by different or separate interests, and he, not insisting 
 upon any right in the matter, and not knowing to which of the 
 claimants he ought rightly to render such debt, duty, or thing, 
 but fearing that he may suffer injury from their conflicting 
 claims, can file a bill of interj)leader, which is in its nature an 
 original bill for relief. 
 
 Generally the bill should be filed before anyjudg- 
 meiit at la-w settling the right of the respective parties to the 
 property in question: the object of the bill being to protect 
 the complainant from the vexation attendant upon defending all 
 the suits that may be instituted against him for the same prop- 
 erty. 
 
 If an interpleader at la^v will lie in the case, and it 
 would be effectual for the protection of the party, then the juris^ 
 ■ diction in equity fails. 
 
EQUITY. 335 
 
 The true grouBd upon wliicli the plaintiff comes into equity 
 is that claiming no right in the subject-matter himself, he is, or 
 may be, vexed by having two legal or other processes, in the 
 names of different persons, going on against him at the same 
 lime. 
 
 Courts of equity dispose of questions, arising upon bills of 
 interpleader, in various modes, according to the nature of the 
 ■question, and the manner in which it is brought before the court. 
 
 Bllil^iS QUIA TIMET. 
 
 Bills in equity, quia timet, are in the nature of bills of preven- 
 lion, to accomplish the ends of precautionary justice. They are 
 ordinarily applied to prevent vrrongs or anticipated mis- 
 chiefs, and not merely to redress them when done. 
 
 The party seeks the aid of a court of equity, because he 
 fears, quia timet, some future probable injury to his rights 
 -or interests, and not because an injury has already occurred, 
 -which requires any compensation or other relief. 
 
 The manner in which this aid is given by courts of 
 equity is dependent upon circumstances. They interfere 
 sometimes by the appointment of a receiver to receive rents or 
 other income, sometimes by an order to pay a pecuniaiy fund 
 into court, sometimes by directing security to be given, or money 
 to be paid over, and sometimes by the mere issuing of an in- 
 junction or other remedial process. 
 
 The appointment of a receiver, when directed, is made 
 for the benefit and on behalf of all the parties in interest, 
 and not for the benefit of the plaintiff, or of one defendant only. 
 
 The appointment of a receiver is a matter resting in the 
 sound discretion of the court ; and the receiver, when ap- 
 3)ointed, is treated as virtually an officer and representative 
 of the court, and subject to its orders. 
 
 A receiver, when in possession, has very little discretion 
 allovred him ; but he must apply, from time to time, to 
 the court for authority to do such acts as may be beneficial 
 to the estate. Thus, he is not at liberty to bring or to defend 
 actions, or to let the estate, or lay out money, unless by the 
 special leave of the court. 
 
 Where a receiver is appointed, and the property is in pos- 
 session of a third person, who claims he has a right to 
 
336 EQUITY. 
 
 retain it, the receiver must either proceed by a suit in the ordi- 
 nary way, to try his I'ight to it, or the plaintiiF in equity should 
 make such third person a party to the suit, and apply to the 
 court to have the receivership extended to the property in his 
 hands. 
 
 It is not infrequent for a bill quia timet to ask for the appoint- 
 ment of a receiver, against a party who is rightfully in 
 possession, or who is entitled to possession of the fund, or who 
 has an interest in its due administration. 
 
 But equity -will not vyithdraw the fund from him by the 
 appointment of a receiver, unless the facts averred and estab- 
 lished in proof show that there has been an abuse, or is 
 danger of abuse, on his own part. 
 
 Thus, whenever the appointment of a receiver is 
 sought against an executor or administrator, it is neces- 
 sary to establish, by suitable proofs, that there is some positive 
 loss, or danger of loss, of the funds ; as, for instance, some waste 
 or misapplication of the funds, or some apprehended danger 
 from the bankruptcy, insolvency, or personal fraud, misconduct, 
 or negligence of the executor or administrator. 
 
 So, where the tenants of particular estates for life, or 
 in tail, neglect to keep down the interest due upon encumbran- 
 ces upon the estates, courts of equity will appoint a receiver to 
 receive the rents and profits, in order to keep down the in- 
 terest. 
 
 It is a rule in equity to follow trust-money whenever 
 it may be found in the hands of any person who has not prima 
 facie a right to hold it, and order him to bring it into court. 
 
 Where there is a future right of enjoyment of per- 
 sonal property, equity will interfere and grant relief upon a 
 bill quia timet, where there is any danger of loss, or deteriora- 
 tion, or injury to it in the hands of the party who is entitled 
 to the present possession. 
 
 There are other cases where a remedial justice is applied in 
 the nature of bills quia timet, as where courts of equity interfere 
 to prevent the waste or destruction of property, pendente lite, or 
 to prevent irreparable mischief. But these cases will more prop- 
 erly come under the head of injunctions. 
 
EQUITY. 33T 
 
 BlliliiS OF PEACE. 
 
 By a Bill of Peace we are to understand a bill brought 
 by a person to establish and perpetuate a right, which he claims, 
 and which, from its nature, may be controverted by different 
 persons, at different times and by different actions. 
 
 Bills of peace sometimes bear a resemblance to bills quia 
 timet. But the latter, however, are quite distinguishable from 
 the former in several respects, and are always used as a pre- 
 ventive process before a suit is actually instituted; 
 whereas bills of peace, although sometimes brought before any 
 suit is instituted to try a right, are most generally brought 
 after the right has been tried at law. 
 
 The obvious design of such a bill is to procure repose 
 from perpetual litigation, and, therefore, it is justly called a bill 
 of peace. 
 
 It may be resorted to, where one person claims or defends 
 a right against many, or where many claim or defend a 
 right against one. In such cases equity interposes in order to 
 prevent a multiplicity of suits. 
 
 To entitle a party to maintain a bill of peace, it must be clear 
 that there is a right claimed which affects many persons, 
 and that a suitable number of parties in interest are brought 
 before the court. 
 
 Bills of peace are also applied to cases where the plaintiff has, 
 after repeated and satisfactory trials, established his 
 right at law ; and yet is in danger of further litigation and 
 obstruction to his right from new attempts to controvert it. 
 
 In such cases equity will interfere by perpetual in- 
 junction to quiet the possession of the plaintiff, and to suppress 
 future litigation of the right. 
 
 rsTJuufCTioiiirs. 
 
 A writ of injunction may be described to be a judicial 
 process, whereby a party is required to do a particular thing, or 
 to refrain from doing a particular thing, according to the exi- 
 gency of the writ. 
 
 The most common form of injunction is that which oper- 
 ates as a restraint upon the party in the exercise of his real and 
 
 22 
 
338 EQUITY. 
 
 supposed rights ; and is sometimes called the remedial •writ 
 of injunction. 
 
 The other form, commanding an act to be done, is some- 
 times called the judicial writ, because it issues after a decree, and 
 is in the nature of an execution to enforce the same. 
 
 The object of this process is generally preventive and 
 protective, rather than restorative ; although it is by no means 
 confined to the former. It seeks to prevent a meditated 
 wrong more often than to redress an injury already 
 dbne. 
 
 The granting or refusal of injunctions is a matter 
 resting in the sound discretion of the court; but injunc- 
 tions are now more liberally granted than in former times. 
 
 The writ of injunction is peculiar to courts of equity, 
 although there are some cases where courts of law may exercise 
 analogous powers ; such as by the writ of prohibition and estrepe- 
 ment in cases of waste. 
 
 Injunctions, -when granted on bills, are either tempo- 
 rary, as until the coming in of the defendant's answer, or until 
 the further order of the court, or until the hearing of the cause, 
 or until the coming in of the report of the Master; or they are 
 perpetual, as when they form a part of the decree after the 
 hearing upon the merits, and the defendant is perpetually en- 
 joined from any assertion of a particular right, or perpetually 
 restrained from the doing of a particular act. 
 
 Injunctions to stay proceedings at la-w are sometimes 
 granted to stay trial; or, after verdict, to stay judgment; 
 or, after judgment, to stay execution; or, if the execution has 
 been effected, to stay the money in the hands of the sheriif. 
 
 A writ of injunction, for these purposes, is in no just sense a 
 prohibition to the courts of Common Law in the exercise of their 
 jurisdiction. It is not addressed to those courts. It does not 
 even affect to interfere ■with them. The process, when its 
 object is to restrain proceedings at law, is directed only to the 
 parties. It neither assumes any superiority over the court in 
 which the proceedings are had, nor denies its jurisdiction. 
 
 Without a jurisdiction of this sort to control the pro- 
 ceedings, or to enjoin the judgments of parties at law, it is most 
 obvious that equity jurisprudence, as a system of remedial 
 justice, 'would be grossly inadequate to the ends of its 
 Institution. 
 
EQUITY. 339 
 
 The great mass of cases in which an injunction is ordinarily 
 applied for, to stay proceedings at law, is where the rights 
 of the party are wholly equitable in their own nature or are in- 
 •capable, under the circumstances, of being asserted in a court of 
 law. 
 
 The occasions on which an injunction may be used to 
 stay proceedings at law are almost infinite in their nature 
 and circumstances. G-enerally, in all cases where, by accident, 
 or mistake, or fraud, or otherwise, a party has an unfair ad- 
 vantage in proceedings in a court of law, which must nec- 
 ■essarily make that court an instrument of injustice, and it is, 
 therefore, against conscience that he should use that advantage, 
 a court of equity will interfere by injunction. 
 
 The injunction is not confined to any one point of the pro- 
 ceedings at law ; but it may, upon a proper case being presented 
 to the court, be granted at any stage of the suit. 
 
 Injunctions to restrain suits at law are usually spoken of as 
 common or special. The common injunction is the writ of 
 injunction issued upon and for the default of the defendant, in 
 not appearing to answer the bill. It is also granted where the 
 defendant obtains an order for further time to answer, or for a 
 ■commission to take his answer. 
 
 All other injunctions granted upon other occasions, or involv- 
 ing other directions, are called special injunctions. 
 
 It is asserted, as a general rule, that a defence cannot be set up 
 as the ground of a bill in equity for injunction which 
 lias been fully and fairly tried at law, although it may be 
 the opinion of a court of equity that the defence ought to have 
 fceen sustained at law. 
 
 But relief will be granted where the defence could 
 not at the time, or under the circumstances, be made available 
 at law, without any laches of the party. 
 
 Thus, if a party should recover a judgment at law for a debt, 
 and the defendant should afterwards find a receipt under the 
 plaintiff's own hand for the very money in question, the defend- 
 ant would be relieved by a perpetual injunction. 
 
 Relief will not be granted by staying proceedings at law, 
 after a verdict, if the party applying has been guilty of 
 laches as to the matter of defence, or might, by reasona- 
 ble diligence, have procured the requisite proofs before the trial. 
 
 If a matter has been already investigated in a court of 
 
340 EQUITY. 
 
 justice, according to the common and ordinary rules of inves- 
 tigation, a court of equity cannot take on itself to enter into it 
 again. It is more important that an end should be put to 
 litigation than that justice should he done in every case. 
 
 When both parties to a suit in a foreign country are 
 residents within the territorial limits of another country, the 
 courts of equity in the latter may act in personam upon those 
 parties, and direct them, by injunction, to proceed no further in 
 such suit. 
 
 But as an exception to this rule, it is held that the state 
 courts cannot enjoin proceedings in the courts of the United 
 States ; nor the latter in the former courts. And the lilce doc- 
 trine has been applied by the state courts to suits and judg- 
 ments in other American state courts, where the latter are com- 
 petent to administer the proper relief. 
 
 Courts of equity will grant injunctions in cases ■where 
 the aggrieved party has equitable rights only ; and, indeed, 
 it is said that these courts will grant them more strongly where 
 there is a trust estate. 
 
 Injunctions are frequently used in cases of waste, 
 when the remedy at law is imperfect, or is wholly denied ; when 
 the nature of the injury is such that a preventive remedy is in- 
 dispensable, and it should be permanent; where matters of dis- 
 covery and account are incidental to proper relief. 
 
 Injunctions are also used in cases of nuisances. And 
 nuisances may be of two sorts : first, such as are injurious to 
 the public at large, or to public rights ; secondly, such as are 
 injurious to the rights and interests of private persons. 
 
 In cases of public nuisances, properly so called, an in- 
 dictment lies to abate them, and to punish the offenders. 
 
 But an information also lies in equity to redress the 
 grievance by way of injunction. 
 
 But the question of nuisance or not, must, in cases of 
 doubt, be tried by a jury ; and the injunction will be granted 
 or not, as that fact is decided. And the court, in the exercise of 
 its jurisdiction, virill direct the matter to be tried upon an, 
 indictment, and reserve its decree accordingly. 
 
 The ground of this jurisdiction of courts of equity in 
 cases of public nuisances is their ability to give a more com- 
 plete and perfect remedy than is attainable at law. They 
 can interpose, where the courts of law cannot, to restrain and 
 
EQUITY. 341 
 
 prevent sucli nuisances, ■which are threatened, or are in prog- 
 ress, as well as to abate those already existing. 
 
 Also, by a perpetual injunction, the remedy is made 
 complete through all future time ; whereas an information 
 or indictment at the Common Law can only dispose of the present 
 nuisance and for future acts new prosecutions must be brought; 
 and then the remedial justice in equity may be prompt 
 and immediate, before irreparable mischief is done ; whereas, 
 at law, nothing can be done, except after a trial, and upon the 
 award of judgment. 
 
 But courts of equity will grant an injunction to restrain a 
 public nuisance, only in cases where the fact is clearly 
 made out upon satisfactory evidence. For if the evidence 
 be conflicting, and the injury to the public doubtful, that alone 
 will constitute a ground for withholding this extraordinary inter- 
 position. 
 
 In regard to private nuisances, the interference of courts 
 of equity by way of injunction is founded upon the ground of 
 restraining irreparable mischief, or of suppressing oppressive 
 and interminable litigation, or of preventing multiplicity of 
 suits. 
 
 A court of equity will restrain acts in violation of an agree- 
 ment, where the injury to the plaintiffs would be irreparable, and 
 the recovery of damages at law no adequate redress. 
 
 Where the injury is irreparable, as where loss of health, 
 loss of trade, destruction of the means of subsistence, or per- 
 manent ruin of property, may or will ensue from the wrongful 
 act or erection ; in every such case courts of equity will inter- 
 fere by injunction. 
 
 Cases of a nature calling for the like remedial inter- 
 position of equity are the obstruction or pollution of water- 
 courses, the di-v^ersion of streams from mills, the backflowage 
 on mills and the pulling down of the banks of rivers, and 
 thereby exposing adjacent lands to inundation. 
 
 Courts of equity will also interfere by injunction to restrain 
 adjoining land-owners from so digging in the soil of their 
 own land as to endanger their neighbors' buildings. 
 
 These courts also interfere in cases of trespasses, 
 that is to say, to prevent irreparable mischiefs, or to suppress 
 multiplicity of suits and oppressive' litigation; and upon the 
 same grounds they interfere in cases of patents for in- 
 
342 EQUITY. 
 
 ventions, and in cases of copyrights, to secure the rights 
 of the inventor, or author. 
 
 Injunctions are also granted to prevent the use of names,, 
 marks, letters or other indicia of a tradesman, by which to 
 pass off goods to purchasers as the manufacture of that trades- 
 man, when they are not so. 
 
 The true ground of enjoining the use of a trade-mark 
 is that its similarity to plaintiffs was intended by defendants to 
 give purchasers to understand the goods were the same, and 
 that it would be likely to produce that effect with the majority 
 of purchasers. 
 
 There are many cases in which courts of equity will 
 interfere by injunction to prevent the sale of real es- 
 tate ; as to restrain the vendor from selling to the prejudice 
 of the vendee, pending a bill for the specific performance of a 
 contract respecting an estate. 
 
 In like manner, sales may be restrained in all cases where 
 they are inequitable, or may operate as a fraud upon the 
 rights or interests of third persons ; as in cases of trusts, and 
 special authorities, where the party is abusing his trust or au- 
 thority. 
 
 Where land is sold with covenant from the grantee, or 
 upon condition that the erections upon it shall be of a pre- 
 scribed character, the performance of such stipulations ■will 
 be enforced in equity by restraining any departure 
 from them. 
 
 A preliminary injunction is commonly granted upon such 
 conditions as the court deem reasonable and prudent. 
 
 No injunction vrill be granted -whenever it -will oper- 
 ate oppressively, or inequitably, or contrary to the real 
 justice of the case, or where it is not the fit and aj)propriate 
 mode of redress under all the circumstances of the case; or, 
 where it will or may work an immediate m^ischief, or fatal in- 
 jury. 
 
 It may be said, in relation to special injunctions, that 
 courts of equity constantly decline to lay dcwn any 
 rule vrhich shall limit their povrer and discretion as to 
 the particular cases in which such injunctions shall be granted 
 or withheld; for it is impossible to foresee all the exigences of 
 society which may require their aid and assistance to protect 
 rights, or redress wrongs. 
 
EQUITY. 343 
 
 There is no power, the exercise of which is more de- 
 licate, which requires greater caution, deliberation and sound 
 discretion, or is more dangerous, in a doubtful case, than the 
 issuing of an injunction. It is the strong arm of equity^, that 
 never ought to be extended, unless to cases of great injury 
 where courts of law cannot afford an adequate or commensur- 
 ate remedy in damages. The right must be clear, the in- 
 jury impending or threatened, so as to be averted only by 
 the protecting preventive process of injunction. If it issues 
 erroneously, an irreparable injury is inflicted, for which 
 there can be no redress, it being the act of a court, not of 
 the party who prays for it. 
 
 TRUSTS. 
 
 A trust, in its enlarged sense, may be defined to be an equita- 
 ble right, title or interest in property, real or personal, distinct 
 from the legal ownership thereof. 
 
 The legal owner holds the direct and absolute dominion 
 over the property in the view of the law, but the income, profits, 
 or benefits thereof in his hands, belong wholly, or in part, to 
 others. 
 
 Three things are said to be indispensable to consti- 
 tute a valid trust; j^rsi, sufficient words to raise it; secondly, 
 a definite subject; thirdly, a certain or ascertained object. 
 
 For the most part, matters of trust and confidence are 
 exclusively cognizable in courts of equity ; there being 
 few cases, except bailments, and rights founded in con- 
 tract, and remedial by an action of assumpsit, and especially 
 by an action for money had and received, in which a remedy 
 can be administered in the courts of law. 
 
 It is also said that a trust is where there is such a confi- 
 dence between parties that no action at law will lie, but is 
 merely a case for the consideration of a court of equity. 
 
 Trusts constitute a very important and comprehen- 
 sive branch of equity jurisprudence ; and when the 
 remedy in regard to them ends at law, then the exclusive juris- 
 diction in equity, for the most part, begins. 
 
 It is quite probable that those trusts, which are exclusively 
 cognizable in courts of equity, were, in their origin, derived 
 from the Eoman law. 
 
344 EQUITY. 
 
 The Statute of Frauds, 29 Charles II, ch. 3, sec. 7, which has 
 been generally adopted in this country, requires all declara- 
 tions or creations of trusts or confidences of any lands, 
 tenements and hereditaments to be manifested and proved by 
 some ■writing, signed by the party entitled to declare such 
 trusts, or by his last will in writing. 
 
 From the terms of the statute, it is apparent that it does not 
 extend to declarations of trusts of personalty. Neither 
 does it prescribe any particular form or solemnity in writings 
 nor that the writing should be under seal. 
 
 Any ■writing sufficiently evincive of a trust, as a letter, 
 or other writing of a trustee, stating the trust, or any language 
 in writing, clearly expressive of a trust, intended by the party, 
 although in the form of a desire or a request, or a re- 
 commendation, will create a trust by implication. 
 
 Uses or trusts, to be raised by any covenant or agree- 
 ment of a party in equity, must be founded upon some 
 valuable consideration; for courts of equity will not en- 
 force a mere gratuitous gift, or a mere moral obligation. 
 
 Trusts in real property, which are exclusively cognizable 
 in equity, are in many respects governed by the same rules 
 as the like estates at la'w and afford a striking illustration 
 of the maxim cequitas sequitur legem. 
 
 Where a trust is created for the benefit of a p^rty, it 
 is not only alienable by him by his ovrn proper act and 
 conveyance, but it is also liable to be disposed of by opera- 
 tion of law in invitum, like any other property. 
 
 In general a trustee is only suable in equity in regard to any 
 matters touching the trust. 
 
 It is a general rule in equity, that whenever a trust exists, 
 either by the declaration of the party, or by intendment or im- 
 plication of law, and the party creating the trust has not 
 appointed any trustee to execute it, equity will follow the 
 legal estate, and decree the person in whom it is vested (not 
 being a bona fide purchaser for a valuable consideration without 
 notice,) to execute the trust. For it is a rule in equity which 
 admits of no exception, that a court of equity never 'wants 
 a trustee. 
 
 The power of a trustee over the legal estate or prop- 
 erty vested in him, properly speaking, exists only for the bene- 
 fit of the cestui qui trust. 
 
EQUITY. 345 
 
 "What powers may be properly exercised over trust property, 
 by a trustee, depends upon the nature of the trust, and 
 fiometimes upon the situation of the cestui que trust. "Where the 
 ■cestui que trust is of age, or sui juris, the trustee has no right 
 (unless power is given) to change the nature of the estate, 
 as by converting land into money, or money into land, so as to 
 bind the cestui que trust. 
 
 Trusts are usually divided into Express Trusts and Im- 
 plied Trusts, the latter comprehending all those trusts which are 
 called constructive and resulting trusts. 
 
 Express trusts are those which are created by the direct and 
 positive acts of the parties by some writing, or deed, or will. 
 
 Implied trusts are those which are deducible from the nature 
 of the transaction, as a matter of clear intention, although not 
 found in the ■vroxds of the parties ; or which are superin- 
 duced upon the transaction by operation of law, as matter of 
 equity, independent of the particular intention of the parties. 
 
 A resulting trust is created by one man furnishing the money 
 to pay the price of land purchased by another, and by agree- 
 ment of the parties conveyed to the latter for the benefit of the 
 former. 
 
 As to •what constitutes a mortgage there is no difficulty 
 whatever in courts of equity, although there may be technical 
 embarrassments in courts. 
 
 The particular form or words of the conveyance are unim- 
 portant. 
 
 It is a general rule, subject to few exceptions, that wherever 
 a conveyance, assignment or other instrument, transferring an 
 estate, is originally intended between the parties as a 
 security for money, or for any other encumbrance, whether 
 this intention appear from the same instrument or from any 
 other, it is always considered in equity as a mortgage, 
 and consequently is redeemable ujDon the performance of the 
 conditions or stipulations thereof. 
 
 Parol evidence is admissible in some cases, as in cases of 
 fraud, accident and mistake, to shovr that a conveyance, 
 absolute on its face, was intended between the parties to be 
 a mere mortgage or security for money. 
 
346 EQUITY. 
 
 The estate of the mortgagee, being treated in equity as a 
 mere security for the debt, it follows the nature of the debt. 
 And although where the mortgage ia in fee, the legal estate de- 
 scends to the heir, yet, in equity, it is deemed a chattel interest 
 and personal estate, and belongs to the personal representatives, 
 as assets. 
 
 A mortgage may be created by a conditional deed, as 
 well as by a conveyance and mortgaging back. And the as- 
 signee of a mortgage takes it subject to all the equities which 
 existed as against the mortgagee. 
 
 Mortgages may not only be created by the eispress 
 deeds and contracts of the parties, but they may also be implied 
 in equity, from the nature of the transactions between the par- 
 ties; and then they are termed equitable mortgages. 
 
 In equity, whatever property, personal or real, is capable of 
 absolute sale, may be the subject of a mortgage. 
 
 Mortgages are often given to secure future advances, and 
 in such cases, where the mortgagee has notice of a subse- 
 quent mortgage, he cannot hold his security for advances made 
 after such notice. 
 
 A mortgage of personal property differs from a pledge. 
 The former is a conditional transfer or conveyance of the prop- 
 erty itself; and, if the condition is not fully performed, the 
 whole title vests absolutely at la-w in the mortgagee, 
 exactly as it does in the case of a mortgage of lands. The lat- 
 ter only passes the possession, or, at most, a special prop- 
 erty only to the pledgee, with a right of retainer until the debt, 
 is paid. 
 
 In mortgages of personal property there exists, as in 
 mortgages of land, an equity of redemption, which may be 
 asserted by the mortgagor. But there is a difference between, 
 mortgages of land and mortgages of personal property, in re- 
 gard to the rights of the mortgagee, after a breach of the con- 
 dition. In the latter case the mortgagee, upon due notice, may 
 sell the personal property mortgaged, without a bill of fore- 
 closure. 
 
 It is said that goods pledged or leased by the defendant in 
 execution may be levied upon, subject to the rights of the pawnee 
 or lessee. 
 
 The satisfaction of the principal debt, by payment, or 
 otherwise, will be deemed in equity an extinguishment of the- 
 
EQUITY. 347 
 
 mortgage, unless there is an express or implied contract for 
 keeping alive the original security. 
 
 An extinguishment of the debt will also ordinarily take 
 place -where the mortgagee becomes also the absolute owner of 
 the equity of redemption, for then the equitable estate be- 
 comes merged in the legal. 
 
 When the mortgage debt is once paid off, the security 
 is so effectually extinguished that it cannot be made a con- 
 tinuing security for further advancements. 
 
 Courts of equity take notice of assignments of prop- 
 erty, and enforce the rights growing out of the same, in many 
 cases where such assignments are not recognized at law as valid 
 or effectual to pass titles. 
 
 It is a ■well known rule of the common lavr that no pos- 
 sibility, right, title, or thing in action can be granted to a third 
 person. For it was thought that a different rule Tvould be the 
 occasion of multiplying contentions and suits, as it would 
 in effect be transferring a law suit to a stranger. 
 
 HcDce, at Common Law, the assignment of a chose in action 
 could not be made so as to vest in the assignee a right of ac- 
 tion in his ovrn name. And this, with the exception of nego- 
 tiable instruments, and some few other securities, still continues 
 to be the general rule, unless the debtor assents to the transfer. 
 
 But courts of equity totally disregard this nicety. 
 They give effect to assignments of trusts, and possibilities of 
 trusts, and contingent interests, and expectancies, whether they 
 are in real or personal estate, as well as to assignments of 
 choses in action. 
 
 Every such assignment is considered in equity as 
 amounting to an agreement to permit the assignee to make 
 use of the name of the assignor, in order to recover the 
 debt, or reduce the property into possession. 
 
 In some of the states, the common \zvr rule has been 
 relaxed, and all choses in action, such as bonds, mortgages, 
 notes, judgments, debts, contracts, agreements, as well relating 
 to personal as real estate, are assignable, and will pass to the 
 assignee a right of action, in the name of the assignee. 
 
 In order to constitute an assignment of a debt, or other chose- 
 
■348 EQUITY. 
 
 in action, in equity, no particular form is necessary. And 
 an assignment of a debt may be by parol, as -well as by deed. 
 
 A draft drawn by A on B, in favor of 0, for a valuable con- 
 sideration^ amounts to a valid assignment to C of so much of 
 ■the funds of A in the hands of B. 
 
 Indeed, any order, writing, or act, which makes an ap- 
 propriation of a fund, amounts to an assignment of that 
 fund. 
 
 As the assignee is generally entitled to all the remedies 
 of the assignor, so he is generally subject to all the equities 
 between the assignor and his debtor. 
 
 In order to perfect his title against the debtor, it is 
 indispensable that the assignee should immediately give notice 
 of the assignment to the debtor ; for, otherwise, a priority 
 of right may be obtained by a subsequent assignee^ or the debt 
 may be discharged by a payment to the assignor before 
 such notice. 
 
 In cases of assignments of a debt, where the assignor has 
 collateral security therefor, the assignee will be entitled 
 to the full benefit of such securities, unless it is otherwise 
 agreed between the parties. 
 
 It is principally in cases of assignments that courts of 
 ■equity have occasion to examine into the doctrine of champerty 
 ■and maintenance. 
 
 Where there is no contract to have a part of the thing 
 in suit, the party so intermeddling is said to be guilty of main- 
 tenance. But if the party stipulates to have part of the thing 
 in suit, his offence is called champerty. 
 
 Courts of equity are ever solicitous to enforce all the 
 principles of law respecting champerty and mainte- 
 nance ; and they will not, in any case, uphold an assignment 
 which involves any such offensive ingredients. 
 
 The construction of 'wills often presents embarrassing 
 ^questions, which call for the interposition of courts of equity to 
 expound. 
 
 In equity, executors and administrators are consid- 
 ered as trustees, and the persons to whom bequests are made, 
 as the cestuis que trust, and in that character are peculiarly enti- 
 <tled to the protection of courts of equity. 
 
EQUITY. 34» 
 
 Incidental to the jurisdiction over trusts is the duty of 
 giving the true construction of -wills, and of compelling 
 their execution by the executors, or other persons to whom a 
 duty in relation thereto is confided. 
 
 The cardinal rule in the construction of wills is that the 
 intention of the testator is to govern, if consistent with 
 the rules of law ; that is, the testator cannot create a trust 
 which the law prohibits, or suspend the power of alienation, or 
 the absolute ownership of property, beyond the period allowed 
 by law. 
 
 The testator is to be presumed to have used words in 
 their natural or primary sense, unless there is something in 
 the situation of the family or in his will to lead to a contrary 
 conclusion. 
 
 He is not bound to use any particular form of words, 
 to devise or bequeath a legal interest in property, or to desig- 
 nate the objects of his bounty, provided he uses language suffi- 
 cient to show his intention. 
 
 The intention of the testator is to be ascertained from 
 the whole will taken together, and not from the language 
 of any particular provision or clause, when taken by itself. 
 
 For the purpose of construction, a -will and a codicil may 
 be considered together, and construed as different parts of 
 the same will. 
 
 The word " and " may be understood disjunctively for " or," 
 and " or " for " and," when it is clear such was the intention of 
 the testator. 
 
 The construction will be most favored which will pre- 
 vent a total failure of a 'h&qp.est, if specific, and the intent is to be 
 gathered from the words of the will itself. 
 
 Where the language employed in a -will is obscure or 
 ambiguous, and words are made use of in one connection, 
 with a meaning apparently at variance with the sense of the 
 same words in another clause, extrinsic circumstances may 
 be resorted to for the purpose of aiding the court in arriving- 
 at the intention of the testator. 
 
 In such a ease, the situation of the testator's property, the 
 condition of his family and the apparent beneficiaries, may be 
 considered as landmarks to guide the court in the duty of inter- 
 pretation. 
 
 But extrinsic evidence is inadmissible to influence the 
 
:350 EQUITY. 
 
 construction of a will, virhen the language is clear and capa- 
 ble of construction by well-settled rules. 
 
 ECTect should be given to every part of a will, and no 
 portion is to be disregarded unless entirely repugnant to another 
 portion. 
 
 No two -wills are in all respects alike. But where the 
 ■ same precise form of expression occurs in a will that has been 
 the subject of some former adjudication, unaffected by any dif- 
 ferent intention in some other part of the will, the courts, with 
 ■ .a view to certainty and stability of titles, will follow the judicial 
 precedent. 
 
 The intention is to be gathered from the entire instrument; 
 l)ut, rather than sacrifice -what is clearly the whole 
 scheme of the testator, incongruous and insensible words 
 must give way. 
 
 Where words taken in their technical signification 
 Tvould defeat the testator's intention, as collected from the 
 whole will, a liberal and popular meaning may be given to them. 
 
 Where the intention depends upon -words -which admit of 
 a two-fold construction, one of which would render it void, 
 and the other uphold it, the court will give the latter construc- 
 tion. 
 
 One name may be substituted for another, in the con- 
 struction of a will, where it is manifest, not only that the name 
 used was not intended, but that a certain other name was neces- 
 -sarily intended. 
 
 The strict grammatical sense is not always regarded, 
 but the words of a will may be transposed to make a limitation. 
 sensible, or to carry into effect the general intent of the testator. 
 
 The court will abide by the settled meaning of the 
 •words, until driven out by strong, solid and rational interpret- 
 ation put upon, and plain inference drawn from, the rest of the 
 wilL 
 
 If the language admits of two constructions, one rea- 
 sonable and natural, and the other less so, the court -will 
 adopt the former. 
 
 It sometimes happens in wills that there are clauses 
 inconsistent -with each other, in which both cannot take 
 effect. In analogy to the fact that the last will of a testator is 
 to prevail in preference to an earlier one, the courts treat the 
 ^subsequent words in the will as indicating a subsequent 
 
EQUITY. 351 
 
 intention, unless there be other expressions of the will which 
 make it apparent that the first should take effect. 
 
 Sometimes a will is ambiguous in its terms, and the true con- 
 struction of it cannot be made without the aid of a court of 
 equity. The question then arises whether the ambiguity 
 can be explained by a resort to parol evidence, or whether 
 it must be determined solely by a resort to other parts of the will. 
 
 Ambiguities are of tvro sorts. One is called a latent and 
 the other a patent ambiguity. 
 
 The first occurs where the deed or instrument is sufBciently ' 
 certain and free from ambiguity ; but the ambiguity is produced 
 "by evidence of something extrinsic, or some collateral matter 
 ■out of the instrument. 
 
 A latent ambiguity, which is raised by extrinsic evi- 
 dence, may be explained in the same manner. Thus, if a 
 person grant his manor of S to one of his heirs, so far there 
 appears no ambiguity; but if it should be proved that the 
 grantor has the manors both of South S and North S, this am- 
 biguity is matter of fact, and parol evidence may be admitted 
 "to show which of the two manors the party intended to convey. 
 
 A patent ambiguity is such as appears on the face of the 
 instrument itself. 
 
 In cases of patent ambiguities, the apparent uncertainty 
 may be removed by collecting the general intention from other 
 parts of the instrument, so as to make the whole consistent, and 
 this is a legitimate mode of explaining the ambiguity. 
 
 But when, after comparing the several parts of a written 
 instrument, and collecting all the lights which the writing itself 
 ■supplies, the intention of the parties still appears to be uncertain, 
 parol evidence of their intention is not admissible. 
 
 If any devise is expressed doubtfully and with uncer- 
 tainty, the only construction which it is capable of receiving is 
 by comparing it with other parts of the vrill ; and dec- 
 larations of the testator are not admissible to remove 
 the apparent ambiguity, or to explain his intention. 
 
 The rule which excludes parol evidence to explain a 
 patent ambiguity in a deed or will should not be carried to 
 the extent of shutting out evidence of the situation and 
 circumstances of the parties, for the purpose of assisting 
 them in putting a construction on wills that are not clearly ex- 
 pressed. 
 
352 EQUITY. 
 
 A latent ambiguity sometimes relates to the person of the 
 legatee, and sometimes to the subject of the bequest; but 
 in either ease, if the doubt be created by extrinsic evidence, it 
 may be removed in the same way. 
 
 The reason of the rule -which e:scludes parol evidence 
 to explain a patent ambiguity is that the law will not couple 
 and mingle matter of specialty, which is of the higher ac- 
 count, with matter of averment, which is of inferior account 
 inlaw; for that were to make all deeds hollow and subject to- 
 averment, and so, in eifect, to make that pass without deed 
 which the law appoints shall not pass but by deed. 
 
 Ambiguity of language is, however, to be distinguished, 
 from unintelligibility and inaccuracy ; for words cannot be 
 said to be ambiguous, unless their signification seem doubt- 
 ful and uncertain to persons of competent skill and knowledge 
 to understand them. 
 
 The general presumption is that the testator expects the 
 •words of his w^ill to speak from his death. A different 
 construction will not therefore be admitted unless very obviously 
 intended. 
 
 Upon the construction of -wills -we are not much as- 
 sisted by a reference to cases, unless the will, or the words- 
 used, are very similar. If this is not so, they are more likely 
 to mislead than to assist, in coming to a correct conclusion. 
 
 EliECTIO]^. 
 
 Slection, in the sense here used, is the obligation imposed 
 upon a party to choose between two inconsistent or alter- 
 native rights or claims, in cases where there is clear intention 
 of the person from whom he derives one, that he should not 
 enjoy both. 
 
 Every case of election presupposes a plurality of 
 gifts or rights, with an intention, express or implied, of the 
 party who has a right to control one or both, that one should 
 be a substitute for the other. The party who is to take ha& 
 a choice, but he cannot enjoy the benefits of both. 
 
 Thus, if a testator should, by his will, give to a legatee an 
 absolute legacy of ten thousand dollars, or an annuity of one 
 thousand dollars per annum during his life, at his election, it 
 would be clear that he ought not to have both, and should be 
 compelled to make an election. 
 
EQUITY. 353 
 
 f'' Election, may be, first, express and positive ; secondly, implied 
 or constructive. 
 
 Courts of equity adopt the rational exposition of the will, that 
 there is an implied condition that he vrho accepts a ben- 
 efit under the instrument shall adopt the whole, conform- 
 ing to all its provisions and renouncing every right incon- 
 sistent with it. 
 
 The doctrine of election is equally applicable to all 
 interests, whether they are immediate or remote, vested or 
 contingent, of value or of no value, and whether these interests 
 are in real or personal estate. 
 
 SATISFACTIODT. 
 
 Satisfaction may be defined in equity to be the donation 
 of a thing, with the intention, express or implied, that it is to be 
 an extinguishment of some existing right or claim of the donee. 
 
 What is given by a will ought, from the character of the in- 
 strument, ordinarily to be deemed as given as a mere bounty, 
 unless a contrary intention is apparent on the face of the instru- 
 ment. 
 
 But equity has proceeded upon an opj)osite ground; and the 
 donation is held to be a satisfaction, unless that conclusion 
 is repelled by the nature of the gift, the terms of the will, or 
 the attendant circumstances. 
 
 Questions of satisfaction usually come before courts of 
 equity in three classes of cases : First, in cases of portions se- 
 cured by a marriage settlement; Secondly, in cases of portions 
 given by a will, and an advancement to the donee afterwards in 
 the lifetime of the testator ; Thirdly, in cases of legacies to 
 creditors. 
 
 CHARITIES. 
 
 Courts of equity take jurisdiction in carrying into ef- 
 fect charitable bequests, however general are the purposes, 
 and objects intended, if sufficiently certain toi be intelligible; 
 and without regard to the fact of the existence of a trustee ca- 
 pable of holding the legal estate. 
 
 In carrying into execution a bequest to an individual, 
 the mode in which the legacy is to take effect is deemed to be 
 of the substance of the legacy; yet where the legacy is to a 
 
 23 
 
354 EQUITY. 
 
 charity, the court will consider charity as the substance; 
 and in such cases only, if the mode pointed out fail, it will pro- 
 vide another mode hy which the charity may take effect. 
 
 Another principle is that if the bequest be for charity, it 
 matters not how uncertain the persons or the objects 
 may be, or whether the persons, who are to take are in esse, or 
 not ; or whether the legatee be a corporation capable in law of 
 taking, or not; or whether the bequest can be carried into exact 
 execution, or not ; for in all these, and the like cases, the court 
 ■will sustain the legacy. 
 
 Where a literal execution becomes inexpedient or im- 
 practicable, the court will execute it, as nearly as it can, according 
 to the original purpose, or, as the technical expression is, cy pres. 
 
 The general rule is that if lands are given to a corporation 
 for any charitable uses, which the donor contemplates to last 
 forever, the heir never can have the land back again. 
 
 When the increased revenues of a charity extend be- 
 yond the original objects, the general rule as to the applica- 
 tion of such increased revenues is that they are not a result- 
 ing trust for the heirs at law ; but they are to be applied to 
 similar charitable purposes, and to the augmentation of the ben- 
 efits of the charity. 
 
 Courts of equity will not transfer the administration 
 of a charity to a new trustee, unless there is proof of inca- 
 pacity, or unfaithfulness, in the trustee named in the gift ; or 
 where there has occurred a failure of the objects of the charity. 
 
 All these doctrines proceed upon the same ground ; that it is 
 the duty of the court to effectuate the general intention of 
 the testator. And, accordingly, the application of them ceases 
 whenever such general intention is not to be found. 
 
 If the testator means to create a trust, and the trust is not ef- 
 fectually created, or fails, the next of kin must take. 
 
 The jurisdiction of a court of equity, with respect to char- 
 itable bequests, is derived from its general authority to carry 
 into execution the trusts of a -vriW or other instrument, 
 according to the intention expressed in that will or instrument. 
 
 If the trustees of a charity should grossly abuse their 
 trust, a court of equity may go to the length of taking it away 
 from them, and commit the administration of the charity 
 to other hands. But this is no more than the court will do, 
 in proper cases, for any gross abuse of other trusts. 
 
EQUITY. 355 
 
 Courts of equity exercise a benign authority in the adminis- 
 tration of trusts, to prevent the misapplication of property 
 accumulated for one purpose, from being devoted to 
 another and different object. 
 
 The cardinal design is to carry out the intent of the 
 donor, when consistent with the rules of law. If the applica- 
 tion of the ordinary doctrines of the court works injustice, or 
 if, by the lapse of time or other causes, the public good would be 
 promoted by a diversion of the funds to other objects, 
 in whole or in part, the remedy is with the legislature, and 
 not vrith the courts. 
 
 It should be stated that the cy pres doctrine of the English 
 courts of chancery does not exist in all its force, if at all, 
 in the equity courts of some of our states ; and that the 
 courts of equity in those states are not clothed with the power, 
 or charged with the duty of devising a scheme of charity, and 
 ■decreeing its execution, where no scheme was framed by the 
 testator. 
 
 In general, the courts of equity in this country must 
 deal with bequests and trusts, for charitable uses, as 
 they deal with bequests and trusts for other lawful purposes, 
 and decide them upon the same principles. 
 
 And if the object to be benefited is so indefinite, and 
 80 vaguely described that the bequest or trust cannot be sup- 
 ported in the case of an ordinary trust, it cannot be estab- 
 lished in any court of equity upon the ground that it is 
 a charity. 
 
 IMPIilEB TRUSTS. 
 
 All trusts are either express trusts, which are raised and 
 ■created by act of the parties; or implied trusts, which are 
 raised or created by act or construction of law. 
 
 Express trusts are declared either by word or writ- 
 ing ; and these declarations appear either by direct and mani- 
 fest proof, or violent and necessary presumption. 
 
 Implied trusts may be divided into two general clas- 
 ses : first, those which stand upon the presumed intention of the 
 3)arties; secondly, those which are independent of any such inten- 
 tion, and are forced upon the conscience of the party by oper- 
 ution of law. As, for example, in cases of meditated fraud, im- 
 position, notice of an adverse equity, and cases of similar nature. 
 
356 EQUITY. 
 
 It is a general rule that a trust is never presumed or 
 implied as intended by the parties, unless, taking all the cir- 
 cumstances together, that is the fair and reasonable interpreta- 
 tion of their acts and transactions. 
 
 Where a man buys land in the name of another, and 
 pays the consideration money^ the land will generally be held 
 by the grantee in trust for the person vrho pays the con- 
 sideration money. 
 
 As the doctrine of resulting uses and trusts is founded 
 upon a mere implication of law, parol evidence is generally 
 admissible for the purpose of rebutting such resulting 
 use or trust. 
 
 But whether, after the death of the supposed nominal pur- 
 chaser, parol proof alone is admissible against the express dec- 
 laration of the deed, is not so clear. 
 
 Where real estate is purchased for partnership pur- 
 poses, and on partnership account, it is immaterial, in the view 
 of a court of equity, in whose name or names the purchase is 
 made, and the conveyance is taken ; it is in equity deemed 
 partnership property, not subject to survivorship; and 
 the partners are deemed the cestuis que trust thereof. 
 
 Such real estate, belonging to a partnership, is generally, if 
 not universally, treated as personal property of the partnership. 
 
 Generally speaking, ■whatever is purchased with part- 
 nership property, to be used for partnership purposes, is 
 treated as a trust for the partnership, in whosever name 
 the purchase may be made. 
 
 So, in the case of a purchase of land by a trustee in 
 his own name, in pursuance of the trust, the cestui que trust is 
 entitled to the estate. 
 
 In every case where the trust money can be distinctly 
 traced, a court of equity •will fasten a trust upon the land 
 in favor of the person beneficially entitled to the m.oney. 
 
 Whatever acts are done by trustees in regard to trust 
 property shall be deemed to be done for the benefit of the cestui 
 que trust, and not for the benefit of the trustee. 
 
 If a trustee should misapply the funds of the cestui que 
 trust, the latter would have an election either to take the 
 security, or other property in which the funds were wrong- 
 fully invested, or to demand repayment from the trustee 
 of the original funds. 
 
EQUITY. 357 
 
 The same principle will apply to persons standing in 
 other fiduciary relations to each other. Thus, for examjple, 
 if an agent, who is employed to purchase for another, purchases 
 in his own name, or for his own account, he will be held to be a 
 trustee of the principal at the option of another. 
 
 Another class of cases, illustrating the doctrine of implied 
 trusts, is that which embraces what is commonly called the 
 equitable conversion of property. 
 
 By this is meant an implied or equitable change of property 
 from real to personal, or from personal to real ; so that each 
 is transferable and descendible according to its nevr 
 character, as it arises out of the contracts or other acts and in- 
 tentions of the parties. 
 
 This change is a mere consequence of the common doctrine of 
 courts of equity that where things are agreed to be done, 
 they are to be treated, for many purposes, as if they were 
 actually done. Thus, where a contract is made for the sale of 
 land, the vendor is in equity deemed a trustee for the vendee of 
 the real .estate, and the vendee is decreed a trustee for the 
 vendors of the purchase-money. 
 
 Under such circumstances, the vendee is treated as the 
 owner of the land, and it is devisable and descendible as his 
 real estate. And the money is treated as the personal 
 estate of the vendor, and is subject to the like modes of dis- 
 position by him as other personaltj', and is distributable in the 
 same manner, on his death. 
 
 Land, articled to be sold and turned into money, is reputed 
 money ; and money, articled or bequeathed to be invested in 
 land, is ordinarily deemed to be land. 
 
 Another class of implied trusts arises from what are prop- 
 erly called equitable liens ; by which we are to understand 
 such liens as exist in equity, and of which courts of equity alone 
 take cognizance. 
 
 A lien is not, strictly speaking, either etjus in re, or a jus ad 
 rem ; that is, it is not a property in the thing itself, nor does it 
 constitute a right of action for the thing. It more properly 
 constitutes a charge upon the thing. 
 
 At la^ a lien is usually deemed to be a right to pos- 
 sess and retain a thing, until some charge upon it is paid or 
 removed. 
 
 Liens at law generally arise either by the express agree- 
 
358 EQUITY. 
 
 ment of the parties, or by the usage of trade, which amounts to 
 an implied agreement, or by mere operation of law. 
 
 But there are liens recognized in equity whose existence 
 is not known or obligation enforced at law; and in regard to 
 these liens, it may be generally stated that they arise from 
 constructive trusts. 
 
 Such liens, therefore, are wholly independent of the pos- 
 session of the thing to which they are attached, as a 
 charge or encumbrance ; and they can be enforced only in courts 
 of equity. 
 
 The usual course of enforcing a lien in equity, if not 
 discharged, is by a sale of the property to which it is attached. 
 
 In equity, the vendor of land has a lien on the land for the 
 amount of the purchase-money, not only against the vendee 
 himself, and his heirs, and other privies in estate, but also 
 against all subsequent purchasers having notice that the 
 purchase-money remains unpaid. 
 
 Where a conveyance is made prematurely, before 
 money paid, the money is considered as a lien on that estate 
 in the hands of the vendee. So, where money is paid pre- 
 maturely, the money would be considered as a lien on the es- 
 tate of the vendor for the personal representatives of the pur- 
 chaser. 
 
 The general rule seems to be that the absolute dominion 
 over property sold is not acquired by the purchaser un- 
 til he has paid the price, or has otherwise satisfied it, unless 
 the vendor has agreed to trust to the personal credit of the 
 buyer. For a thing may well be deemed to be uneonscientiously 
 obtained, when the consideration is not paid. 
 
 Generally speaking, the lien of the vendor exists ; and 
 the burden of proof is on the purchaser to establish that, in the 
 particular case, it has been intentionally displaced, or waived by 
 the consent of the parties. If, under the circumstances, it re- 
 mains in doubt, then the lieu attaches. 
 
 The taking of a security for the payment of the pur- 
 chase-money is notj of itself, a positive waiver or extinguish- 
 ment of the lien. 
 
 Where the vendee has sold to a bona fide purchaser 
 without notice, if the purchase-money has not been paid, the 
 original vendor may proceed against the estate for his lien, or 
 against the purchase-money in the hands of such purchaser for 
 
EQUITY. 359 
 
 satisfaction ; for in such case the latter, not having paid his 
 money, takes the estate cum onere, at least to the extent of 
 the impaid purchase-money. 
 
 It is also a general rijle in equity that where there is a 
 lien upon different parcels of land for the payment of the same 
 debt, and some of those lands still belong to the person who, in 
 equity and justice, owes, or ought to pay, the debt, and other 
 parcels of the land have been transferred by him to third per- 
 sons, his part of the land, as between himself and them, shall 
 be primarily chargeable with the debt. 
 
 Another species of lien is that which results to one joint 
 owner of any real estate, or other joint property, from repairs 
 and improvements made upon such property for the joint 
 benefit, and for disbursements touching the same. 
 
 The doctrine of contribution in equity is larger than 
 it is at law ; and, in many cases, repairs and improvements 
 will be held to be not merely a personal charge, but a 
 lien on the estate itself. 
 
 Thus, it is held that if two or more persons make a joint pur- 
 chase, and afterwards one of them lays out a considerable 
 sum of money in repairs or improvements, and dies, this will 
 be a lien on the land, and a trust for the representatives of him 
 who advanced it. 
 
 Courts of equity have not confined the doctrine of 
 compensation, or lien, for repairs and improvements, to cases 
 of agreement or of joint purchases. They have extended 
 it to other cases, where the party making the repairs and im- 
 provements has acted bona fide and innocently, and there has 
 been a substantial benefit conferred on the owner, so 
 that, ex cequo et bono, he ought to pay for such benefit. 
 
 Thus, where a party, lawfully in possession under a defective 
 title, has made permanent improvements, if relief is asked 
 in equity by the true owner, he will be compelled to allow 
 for such improvements. 
 
 So, if the true owner stands by, and suffers improvements 
 to be made on an estate, without notice of his title, he will 
 not be permitted in equity to enrich himself by the loss of an- 
 other; but the improvements will constitute a lien on 
 the estate. 
 
 In all cases of this sort, however, the doctrine proceeds upon 
 the ground either that there is some fraud, or that the aid of a 
 
360 EQUITY. 
 
 court of equity is required; for if a party can recover the 
 estate at law, a court of equity will not, unless there is some 
 fraud, relieve a purchaser, or bona fide possessor, on account of 
 money laid out in repairs and improvements. 
 
 Generally, all encumbrances upon land descended or devised 
 are made a primary charge upon the lands, and not entitled 
 to exoneration out of the personal estate, unless in the 
 case of a will there shall be some expression of an intention to 
 that effect. 
 
 Where a person becomes entitled to an estate subject to a 
 charge, and then covenants to pay it, the charge still re- 
 mains primarily on the real estate; and the covenant is 
 only a collateral security, because the debt is not the original 
 debt of the covenantor. 
 
 Having considered some of the important classes of implied 
 trusts, arising from the presumed intention of the parties, 
 we may now pass to the consideration of their implied, or their 
 constructive, trusts, which are independent of any such in- 
 tention, and are forced upon the conscience of the party by 
 the mere operation of law. 
 
 One of the most common cases in which a court of equity 
 acts upon the ground of implied trusts in invitum is where a 
 party has, received money which he cannot conscientiously with- 
 hold from another party. 
 
 Courts of law entertain jurisdiction in many cases of 
 this sort where formerly the remedy was solely in equity; as, for 
 example, in an action of assumpsit for money had and received, 
 where the money cannot conscientiously be withheld by the party. 
 
 Where a party pvirchases trust property, knowing it 
 to be such, from the trustee, in violation of the objects of the 
 trust, courts of equity force the trust upon the conscience of the 
 guilty party, and compel him to perform it, and to hold the 
 property subject to it 
 
 It is a general proposition, both at law and in equity, that if 
 any property, in its original state and form, is covered 
 with a trust in favor of the principal, no change of that 
 state and form can divest it of such trust, or give the 
 agent or trustee converting it, or those who represent him in 
 right, (not being bona fide purchasers for a valuable considera- 
 tion without notice,) any more valid claim in respect to it than 
 they respectively had before such change. 
 
EQUITY. 361 
 
 Thus, if A is trusted by B with money to purchase a horse for 
 Jiim, and A purchases a carriage with that money, in violation 
 ■of the trust, B is entitled to the carriage, and may, if he chooses 
 so to do, sue for it at law. 
 
 When a trustee or other person, standing in a fiduci- 
 ary relation, makes a profit out of any transactions within the 
 scope of his agency or authority, that profit will belong to his 
 cestui que trust. 
 
 And one who assumes to act in relation to trust prop- 
 erty, -without just authority, however bona fide maj^ be his 
 conduct, shall be held responsible both for the capital and the 
 income, to the same extent as if he had been de jure trustee. 
 
 The principle of following trust funds in the hands of a de- 
 faulting trustee applies against the assignees of such 
 trustee as fully as against the trustee himself. 
 
 "Wherever a trustee is guilty of a breach of trust, by the sale 
 of the trust proj)erty to a bona fide purchaser, for a valuable 
 consideration without notice, and the purchase-money 
 has been paid, the trust in the property is extinguished. 
 
 But if aftervrards the trustee should repurchase, or oth- 
 erwise become entitled to the same properly, the trust would 
 jrevive, for a party shall not, by his own wrongful act, acquire 
 an absolute title to that which he is in conscience bound to pre- 
 serve for another. In equity, even more strongly than at law, 
 the maxim prevails that no man shall take advantage of 
 Ms own vrrong. 
 
 A fraudulent purchaser will be held a mere trustee for the 
 honest, but deluded and cheated, vendor. And a person -who 
 lies by, and without notice suffers his own estate to be sold and 
 encumbered in favor of an innocent purchaser or lender, will 
 be held a trustee of the estate for the latter. 
 
 In general, a trustee is bound by his implied obligation to 
 perform all those acts which are necessary and proper 
 for the due execution of the trust which he has under- 
 taken. 
 
 He would seem, upon the analogous principles applicable to 
 bailments, bound only to good faith and reasonable dili- 
 gence ; and, as in the case of a gratuitous bailee, liable only 
 for gross negligence. 
 
 The rule is that where a trustee acts by other hands, 
 either from necessity, or conformably to the common usage of 
 
362 EQUITY. 
 
 mankind, he is not to be made answerable for losses. 
 
 In all cases, however, where a trustee places money in 
 
 the hands of a banker, he should take care to keep it 
 
 separate, and not mix it with his own in a common account;, 
 for, if he should so mix it, he would be deemed to have treated 
 the whole as his own; and he would be held liable to the cestui 
 que trust for any loss sustained by the banker's insolvency. 
 
 Where a trustee has acted in good faith, in the exercise 
 of a fair discretion, and in the same manner as he would ordina- 
 rily do in regard to his own property, he ought not to be held 
 responsible for any losses accruing in the management of the 
 trust property. 
 
 Joint trustees are responsible for the acts of each other, in 
 the misapplication of the trust funds, where they have put the 
 funds in the power of one of their number. 
 
 The general rule is that if a trustee has made interest up- 
 on the trust funds, or ought to have invested them so as to 
 yield interest, he shall, in each case, be chargeable with the pay- 
 ment of interest. The rule in equity is that all the gain shall 
 go to the cestui que trust. 
 
 Co-trustees arc not responsible for the fraud and forgery 
 of one of their number, to which they in no way contribute,, 
 either directly or remotely. 
 
 When the trustee makes an imj)roper investment of trust funds 
 he becomes responsible for the same, with interest. 
 
 Trustees have all equal power, interest and authority, 
 and cannot act separately, as executors may, but must join, both 
 in conveyances and receipt. 
 
 Where there are two executors, each has a sevei-al right 
 to receive the debts due the estate, and all other assets which 
 shall come to his hands; and he is consequently solely responsi- 
 ble for the assets which he receives. 
 
 If they join in a receipt, it is their own voluntary act, and 
 equivalent to an admission of their willingness to be jointly ac- 
 countable for the money. 
 
 If an executor knows that the moneys received by his 
 co-executor are not applied according to the trusts of the will, 
 and stands by and acquiesces in it, without doing anything on 
 his part to procure the due execution of the trust, he will, in 
 respect to that negligence, be himself charged' with the loss. 
 
 It is held that if two e.Kecutors, guardians, or trustees, join in 
 
EQUITY. 363. 
 
 a receipt for trust money, it is prima facie, although not abso- 
 lutely conclusive, that the money came to the hands of 
 both. Either of them may show, by satisfactory proof, that his 
 joining in the receipt was necessary, or merely formal, and that 
 the money was, in fact, all received by his companion. 
 
 If, by any positive act, direction, or agreement of one 
 joint executor, guardian, or trustee, the trust-money is paid 
 over, and comes into the hands of the other, when it might and 
 should have been otherwise controlled or secured by both, then 
 each of them will be held chargeable for the whole. 
 
 If there has been a clear breach of trust by a trustee, yet, if 
 the cestui que trust, or beneficiary, has for a long time acqui- 
 esced in the misconduct of the trustee, vrith a full 
 knoTvledge of it, a court of equity will not relieve him : Vig- 
 ilantibus, non dormientibus, cequitas subvenit. 
 
 In general, concurrence is required in regard to trusts of a pri- 
 vate nature. But in regard to such trusts as are of a public 
 nature, the trustees may act by the majority. 
 
 All trusts -which partake of an official character, such as 
 that of executors and administrators in the settlement of estates, 
 may be performed severally, as in the collection of debts. 
 
 Where a trust is to be executed, if the parties have be- 
 come so hostile to each other that they will not act to- 
 gether, or there is positive evidence of misconduct, or such acts 
 or omissions as endanger the trust jDroperty, or show a want 
 of honesty or proper capacity to execute the duties of the trust, 
 a court of equity will displace them. 
 
 PEJTAIiTIES AIITW FOKFEITURES. 
 
 In cases of Penalties and Forfeitures for breaches of 
 Conditions and Covenants, there was, originally, no remedy 
 at law; but the only relief which could be obtained was exclu- 
 sively sought in courts of equity. 
 
 j^ow, by the operation of statutes made for the purpose, re- 
 lief may be obtained at lavr: The original jurisdiction, how- 
 ever, of courts of equity, still remains, notwithstanding the- 
 concurrent remedy at law. 
 
 At law, and in general the same is true in equitj', if a man 
 undertake to do a thing, either by way of contract or by way 
 of condition, and it is practicable to do the thing, he is bound 
 
-364 EQUITY. 
 
 to perform it, or he must suffer the ordinary consequences: 
 that is to say, if it be a matter of contract, he will be liable at 
 law for damages for the non-performance; if it be a condition, 
 then his rights, dej)endent upon the performance of the condi- 
 tion, will be gone by the non-performance. 
 
 The difficulty which arises is to ascertain what shall be the 
 effect in eases where the contract or condition is impossi- 
 ble to be performed, or where it is against law, or repugnant 
 in itself, or to the policy of the law. 
 
 Conditions may be divided into four classes : first, those 
 which are j)0ssible at the time of their creation, but afterwards 
 become impossible, either by the act of God, or by the act of 
 the party; secondly, those which are impossible at the time of 
 their creation; thirdly, those which are against law, or public 
 policy, or are mala in se or mala prohibita ; fourthly, those which 
 are repugnant to the grant or gift by which they are created, or 
 to which they are annexed. 
 
 The general rule of the common law in regard to con- 
 ditions is that if they are impossible at the time of their crea- 
 tion, or afterwards become impossible by the act of God, or of 
 the law, or of the party who is entitled to the benefit of them, or 
 If they arc contrary to law, or if they are repugnant to the 
 nature of the estate or grant, they are void. 
 
 But if they are possible at the time, and become subse- 
 quently impossible by the act of the party who is to perform 
 them, then he is treated as in delicto, and the condition is valid 
 and obligatory upon him. 
 
 At the Common Law, a condition is considered as impossible 
 only when it cannot, by any human means, take effect. 
 
 Conditions will have a very different operation where they 
 are conditions precedent from what they will have where 
 they are conditions subsequent. 
 
 Thus, if an estate is granted upon a condition subse- 
 quent, that is to say, to be performed after the estate is vested, 
 .and the condition is void for any of the causes just stated, there 
 the estate becomes absolute. 
 
 But if the condition is precedent, or to be performed 
 before the estate vests, there, the condition being void, the es- 
 tate which depends thereon is void also, and the grantee shall 
 take nothing by the grant ; for he hath no estate until the 
 condition is performed. 
 
EQUITY. 365- 
 
 It is obvious that if a condition or covenant was possible 
 
 to be performed, there was an obligation on the party, at the 
 Common Law, to perform it punctiliously. If he failed so to 
 do, it was wholly immaterial whether the failure was by acci- 
 dent, or mistake, or fraud, or negligence; his responsibility de- 
 pendent upon it became absolute. 
 
 Courts of equity, however, do not hold themselves to 
 such rigid rules ; but they are accustomed to administer, as 
 well as to refuse^ relief in many cases of this sort, upon princi- 
 ples peculiar to themselves. 
 
 In the first place, as to relief in cases of penalties an- 
 nexed to bonds and other instruments, the design of which 
 is to secure the due fulfillment of the principal obligation,^ 
 the general principle adopted is that wherever a penalty 
 is inserted merely to secure the performance or enjoyment of a 
 collateral object, the latter is considered as the principal intent 
 of the instrument, and the penalty is deemed only as ac- 
 cessory, and, therefore, as intended only to secure the due^ 
 performance thereof, or the damages really incurred by the 
 non-performance. 
 
 If the penalty is to secure the mere payment of money, 
 courts of equity will relieve the party, upon paying the principal 
 and interest. 
 
 The foundation of this relief in equity is that as the 
 penalty is designed as a mere security, if the party obtains his 
 money, or his damages, he gets all that he expected, and all 
 that, in justice, he is entitled to. 
 
 The whole system of equity jurisprudence proceeds upon the 
 ground that a party having a legal right shall not be per- 
 mitted to avail himself of it for the purposes of injus- 
 tice, or fraud, or oppression^ or harsh and vindictive injury. 
 
 But we must carefully distinguish between cases of pen- 
 alties, strictly so called, and cases of liquidated damages. 
 
 Cases of liquidated damages occur when the parties 
 have agreed that, in case one party shall do a stipulated act, or- 
 omit to do it, the other party shall receive a certain sum as the 
 just, appropriate and conventional amount of the damages sus- 
 tained by such act or omission. 
 
 In cases of this sort courts of equity will not inter- 
 fere to grant relief; but will deem the parties entitled to fix 
 their own measure of damages; provided the damages do- 
 
■366 EQUITY. 
 
 not assume the character of gross extravagance, or of 
 
 wanton and unreasonable disproportion to the nature and extent 
 of the injury. 
 
 It is a universal rule in equity never to enforce either 
 a penalty or a forfeiture. Therefore courts of equity will 
 never aid in the divesting of an estate, for a breach of a cove- 
 nant, or a condition subsequent ; although they will often inter- 
 fere to prevent the divesting of an estate for a breach of cove- 
 nant or condition. 
 
 Where a party, or his agent, who is entitled to the benefit of 
 the forfeiture, has waived such benefit, and treated the 
 contract as still subsisting for some purpose, he will not 
 be allowed to insist upon the forfeiture for any purpose. 
 
 And where any penalty or forfeiture is imposed by 
 statute upon the doing or omission of a certain act, courts of 
 equity -will not interfere to mitigate the penalty or for- 
 feiture, if incurred, for it would be in contravention of the 
 direct expression of the legislative will to grant relief in such 
 ■ cases. 
 
 IXFAXTS. 
 
 Whatever may be the true origin of the jurisdiction of courts 
 of equity over the persons and property of infants, it is 
 now conceded, on all sides, to be firmly established, and be- 
 yond the reach of controversy. 
 
 Courts of equity will appoint a suitable guardian to 
 -an infant, when there is none other, or none other who will or 
 can act, at least where the infant has property ; for if the in- 
 fant has no property, the court will perhaps not interfere. 
 
 Guardians appointed by the court are treated as offi- 
 ■ cers of the court, and are held responsible accordingly to it. 
 
 Courts of chancery will not only remove guardians appointed 
 by their own authority, but will also remove guardians at the 
 common law, and even testamentary or statute guard- 
 ians, whenever sufficient cause can be shown for that purpose. 
 
 The court will, upon special application, interfere, and 
 regulate, and direct the conduct of the guardian in re- 
 gard to the custody, and education, and maintenance of the 
 infant, and, if necessary, will inhibit him from carrying the in- 
 fant out of the country, and will even appoint the school where 
 j.he shall be educated. 
 
EQUITY. 367 
 
 The jurisdiction extends to the care of the person of 
 the infant, so far as necessary for his protection and education ; 
 and as to the care of the property of the infant, for its due 
 management and preservation, and proper application for his 
 maintenance. '^ 
 
 It is only in cases of gross misconduct that paternal 
 rights are interfered with. 'And as between husband and wife, 
 the custody of the children generally belongs to the 
 husband. 
 
 If the infant be a daughter, and of very tender years, 
 and the mother, under all the circumstances, be the most suitable 
 to take care of her person and education, a court of chancery 
 Twill confer the custody on the mother; when, if the infant 
 were of riper years, and more discretion, and especially if a son, 
 he would be intrusted for his education and superintendence to 
 the custody and care of his father, if no real objection to his 
 character and conduct eisisted. 
 
 The jurisdiction to remove infant children from the 
 custody of their parents, and to superintend their education 
 and maintenance, is admitted to be of extreme delicacy ; 
 but it is a jurisdiction which seems indispensable to the sound 
 morals, the good order and the just protection of civilized 
 society. 
 
 Equity •will only apply the income of the estate of the 
 infant towards his support and education when the 
 father is not of suflScient ability, or in some other excep- 
 tional cases, as where it is desirable to educate the infant with 
 a view to establishment in life beyond that which the law re- 
 quires of thfe father. 
 
 A court of equity acts throughout with all the anx- 
 ious caire and vigilance of a parent ; and it allows neither 
 the guardian, nor any other person, to do any act injurious to 
 the rights or interests of the infant. 
 
 In allowing maintenance, the court usually confines itself 
 within the limits of the income of the property. But 
 where the property is small, and more means are necessary for 
 the due maintenance of the infant, the court ■will sometimes 
 allow the capital to be broken in upon. 
 
 If a man intrudes upon the estate of an infant and takes 
 the profits thereof, he -will be treated as a guardian, and 
 held responsible therefor, to the infant, in a suit in equity. 
 
368 EQUITY. 
 
 I 
 
 .Guardians will not ordinarily be permitted to change 
 the personal property of the infant into real property, 
 or the real property into personalty ; since it may not only 
 affect the rights of the infant himself, but also of his represen- 
 tatives, if he should die under age. 
 
 When a court directs smj such change of property, it directs 
 the new investment to be in trust for the benefit of those 
 who would be entitled to it if it had remained in its original 
 state. 
 
 At common law, husband and wife are treated, for most 
 purposes, as one person; that is to say, the very being or legal 
 existence of the woman, as a distinct person, is suspended dur- 
 ing the marriage, or, at least, is incorporated and consolidated 
 with that of her husband. 
 
 For this reason, if the wife be injured in her person or prop- 
 erty during the marriage, she can bring no action for re- 
 dress without the concurrence of her husband, neither 
 can she be sued without making her husband also a party in the 
 cause. 
 
 Courts of equity, however, for many purposes, treat the 
 husband and wife as the civil law treats them, as distinct 
 persons, capable, in a limited sense, of contracting with 
 each other, of suing each other, and of having separate 
 estates, debts and interests. 
 
 By the general rules of law, the contracts made between hus- 
 band and wife, before marriage, become, by the matrimonial 
 union, utterly extinguished. 
 
 But courts of equity, although they generally follow the 
 same doctrine, will, in special cases, in furtherance of the 
 manifest intentions and objects of the parties, carry into effect 
 such a contract, made before marriage, between the husband 
 and wife, although it would be avoided at law. For equity will 
 not suffer the intention of the parties to be defeated hy the very 
 act which is designed to give effect to such a contract. 
 
 As to contracts made between husband and wife, after 
 marriage, the principles of the Common Law apply to pro- 
 nounce thera a mere nullity; for there is deemed to be a pos- 
 itive incapacity in each to contract with the other. 
 
 But here again, although courts of equity /oZZow the law, they 
 
EQUITY. 369 
 
 'Will, under particular circumstances, give full effect and 
 validity to post-nuptial contracts. 
 
 So, in equity, a wife may become a creditor of her 
 husband, by acts and contracts during marriage ; and her riglits 
 as sueli will be enforced against him and his representatives. 
 
 In respect to gifts or grants of property by a husband to 
 his wife after marriage, they are ordinarily, but not univer- 
 sally, void at law. But courts of equity will uphold them 
 in many cases where they would be held void at law ; although 
 in other cases, the rule of law will be recognized and enforced. 
 
 In some of the states, the equitable rights of married 
 women, which have been, for over a century, enforced only in 
 courts of equity, are now, as the direct result of remedial legisla- 
 tion, changed into legal rights, and the Common Law courts, 
 by virtue of the statute law, afford as complete protection to 
 married women as they have ever enjoyed in the equity courts. 
 
 Indeed, in some of the states, the rights of married women 
 over their separate estates have been carried far beyond the 
 established princijsles of these courts, and a feme covert is now 
 permitted at law to dispose of her own property at pleas- 
 ure, without the assent of her husband, and may enter into 
 contracts, and sue and be sued in her ovrn name, as fully as 
 if she were single. 
 
 Thus, in respect to the separate estate of the wife, most all 
 of the old common lavr disabilities of coverture, orig- 
 inating in the feudal system, have been swept away, 
 just as the most oppressive of the feudal tenures were extirpated 
 and demolished by the memorable statute 12 Charles II. All 
 of the states, however, have not advanced as far as this 
 in overturning the Common Law rules governing.the marital re- 
 lation, and it is safe to say that no two states have legislated 
 exactly alike upon the subject. 
 
 Bir,I.I§i OF DI^COTFRT. 
 
 Every bill in equity may properly be deemed a bill 
 of discovery, since it seeks a disclosure from the defendant, 
 on his oath, of the truth of the circumstances constituting the 
 plaintiff's case as proj)Ounded in his bill. 
 
 But that which is usually called a bill of discovery is a bill 
 which asks no relief, but which simply seeks the dis^ 
 
 24 
 
370 EQUITY. 
 
 covery of the facts resting in the knowledge of the de- 
 fendant, or the discovery of deeds, or writings, or other things 
 in the possession or power of the defendant, in order to 
 maintain the right or title of the party asking it in some suit 
 or proceeding in another court. 
 
 The sole object of such a bill, then, being a particular 
 discovery, when that discovery is obtained by the answer, there 
 can be no further proceedings thereon. 
 
 To maintain a bill of discovery it is not necessary that 
 the party should otherwise be without any proof of his case ; 
 for he may maintain such a bill either because he has no proof, 
 or because he wants it in aid of other proof. 
 
 In general it seems necessary, in order to maintain a bill of 
 discovery, that an action should be already commenced 
 in another court, to which it should be auxiliary; still it is not 
 always essential. 
 
 It must clearly appear upon the face of the bill that the 
 plaintiff has a title to the discovery which he seeks ; or 
 that he has an interest in the subject-matter to -which the 
 discovery is attached, cajpable and proper to be vindicated 
 in some judicial tribunal. 
 
 He must also state a case which will, if he is the plaintiff 
 at law, constitute a good ground of action, or, if he is the 
 defendant at law, show a good ground of defence, in aid of 
 which the discovery is sought. 
 
 The substantial requisites of a bill for discovery, which 
 must be alleged therein, are that the plaintiff has a good cause 
 of action or defence, as the case may be ; that he is without 
 proof except from the testimony of the defendants in the bill, 
 ■whose testimony he cannot obtain except in this mode, 
 and that he expects by such testimony to establish his ease. 
 
 Courts of equity will not entertain a bill for a discovery, to 
 aid the promotion or defence of any suit which is not 
 purely of a civil nature. Thus, for example, they will not 
 compel a discovery in aid of a criminal prosecution; or of a penal 
 action ; or of a suit in its nature partaking of such a character. 
 
 And equity will not entertain a bill for a discovery to assist a 
 suit in another court, if the latter is of itself competent to 
 grant the same relief ; for in such a case the proper exercise 
 of the jurisdiction should be left to the functionaries of the court 
 where the suit is pending. 
 
EQUITY. 371 
 
 A defendant may object to a bill of discovery that lie is a 
 bona fide purchaser of the property for a valuable consideration, 
 without notice of the plaintiif 's claim. 
 
 But to entitle himself to protection, the purchaser must 
 not only be a bona fide purchaser without notice, and for a valu- 
 able consideration, but he must have also paid the pur- 
 chase-money. 
 
 Even the purchaser of an equity is bound to take notice 
 of, and is bound by, a prior equity ; and between equities 
 the established rule is that he who has the prior equity in 
 point of time is entitled to the like priority in point of right. 
 
 The rule in equity is that if a defendant has in con- 
 science a right equal to that claimed by the person fil- 
 ing a bill against him, although he is not clothed with a perfect 
 legal title, this circumstance, in his situation as defendant, ren- 
 ders it improper for a court of equity to compel him to make a 
 discovery which may hazard his title. 
 
 BILLS TO PERPETUATE TESTIMONY are also en- 
 tertained by courts of equity. The object of such bills is to 
 preserve and perpetuate testimony, vrhen it is in danger 
 of being lost, before the matter to which it relates can be made 
 the subject of judicial investigation. 
 
 Bills of this sort are indispensable for the purposes of 
 public justice, as it may be utterly impossible for a party to 
 bring his rights presently to a judicial decision ; and unless in the 
 intermediate time he may perpetuate the proofs of those 
 xights, they may be lost Tvithout any default on his side. 
 
 The equity courts do not generally entertain bills to 
 perpetuate testimony, for the purpose of being used upon a 
 future occasion, unless where it is absolutely necessary 
 to prevent a failure of justice. 
 
 If, therefore, it be possible that the matter in controversy can 
 be made the subject of immediate judicial investigation 
 by the party who seeks to perpetuate testimony, courts of equity 
 will not entertain any bill for the purpose. 
 
 As to the right to maintain a bill to perpetuate testimony, 
 there is no distinction whether it respects a title or 
 claim to real estate, or to personal estate, or to mere 
 personal demands ; or whether it is to be used as a matter of 
 proof in support of the plaintiff's action, or as a matter of de- 
 fence to repel it. 
 
372 EQUITY. 
 
 If the bill is sustained, and the testimony is taken, the 
 suit terminates with the examination ; and, of course, is 
 not brought to a hearing. 
 
 The decretal order of the court granting the commission 
 directs that the depositions when taken shall remain to per- 
 petuate the memory thereof, and to be used, in ease of the 
 death of the witnesses or their inability to travel, as there shall 
 be occasion. 
 
 PECUIilAR ©EFEKTCES A'NH FROOFS. 
 
 There are some defences which are peculiar to courts 
 of equity, and are unknown to courts of Common Law. So, 
 also, there are some peculiarities in relation to evidence, 
 
 unknown to the practice of the latter courts, which yet lie at 
 the very foundation of the practice of the former. 
 
 The statutes of limitations, where they are addressed to 
 courts of equity, as well as to courts of law, as they seem to be 
 in all cases of concurrent jurisdiction at law and in equity, are 
 equally obligatory on each court. 
 
 Thus, for example, if a legal title would, in ejectment, be 
 barred by twenty years adverse possession, courts of equity will 
 act upon the like limitation, and apply it to all cases of re- 
 lief sought upon equitable titles or claims touching real estate. 
 
 So, if the judgment creditor has lain by for twenty years 
 without any effort to enforce his judgment, and it has not been 
 acknowledged by the debtor within that time, it ■will be pre- 
 sumed to be satisfied. 
 
 And in all these cases, courts of equity will act upon these 
 facts as a positive bar to relief in equity ; for these courts 
 have always refused their aid to stale demands, where the 
 party has slept upon his rights, and acquiesced for a great 
 length of time. Nothing can call these courts into activity but 
 conscience, good faith and reasonable diligence. 
 
 A court of equity will not allow a dormant claim to be set up 
 when the means of resisting it, if unfounded, have per- 
 ished. 
 
 The personal representative is affected by the delay or 
 acquiescence of the decedent, to the same extent as if it were his 
 own. But acquiescence without full knowledge of the 
 facts cannot affect the rights of anyone. 
 
EQUITY. 373 
 
 Courts of equity not only act in obedience and in analogy to 
 the Statutes of Limitations, in proper cases, but they also in- 
 terfere in many cases to prevent the bar of the statutes, 
 wlien it would be inequitable or unjust. 
 
 Thus, for example, if a party has perpetrated a fraud, 
 which has not been discovered vintil the statutable bar 
 may apply to it at law, equity will interpose and remove the 
 bar out of the way of the other injured party. 
 
 In general, it TnAj be said that the rule of courts of equity is 
 that the cause of action or suit arises when and as soon as 
 the party has a right to apply to a court of equity for re- 
 lief. 
 
 In cases of fraud or mistake, the bar of the Statute of 
 Limitations begins to run from the time of the discovery 
 of such fraud or mistake, and not before. 
 
 An acknowledgment of a debt or judgment, to take the 
 case out of the Statute of Limitations, or bar by lapse of time, 
 must be made, not to a mere stranger, but to the cred- 
 itor, or some one acting for him, and upon which the cred- 
 itor is to act or confide. 
 
 It is a rule, both at law and in equity, that an endorsement 
 upon a promissory note, or other written evidence of debt, 
 in order to take the case out of the Statute of Limitations, if 
 made by the creditor or holder, must be shown to have been 
 made before the statutory bar took effect. 
 
 Where one indebted on three promissory notes was ap- 
 plied to for payment on account of interest, and paid £5, and at 
 this time two of the notes were barred by the Statute of Limita- 
 tions, it was held that the payment must be considered as 
 made exclusively upon the note not barred, and its effect 
 was to prevent the oijcration of the statute as to that note. 
 
 A devise in trust to pay the debts of the devisor will re- 
 move the bar of the Statute of Limitations. 
 
 It is on the ground of part-performance, and to prevent 
 fraud, that the courts of equity are enabled to treat an abso- 
 lute deed, given to secure a debt, as a mortgage, ■where the 
 condition of defeasance rests in parol merely. 
 
 A former decree in a suit in equity between the same 
 parties, and for the same subject-matter, is also a good de- 
 fence in equity, even although it be a decree merely dismissing 
 the bill, if the dismissal is not expressed to be without prejudice. 
 
374 EQUITY. 
 
 The want of proper parties to a bill is also a good de- 
 fence in equity, at least until the new parties are made, or a good 
 reason shown why they are not made. 
 
 It is the great object of courts of equity to put an 
 end to litigation ; and to settle, if possible, in a single suit, 
 the rights of all parties interested or affected by the subject- 
 matter in controversy. 
 
 Hence, the general rule in equity is that all persons 
 are to be made parties who are either legally or equitably 
 interested in the subject-matter and result of the suit, ho^wever 
 numerous they may be, if they are within the jurisdiction, 
 and it is, in a general sense, practicable to do so. 
 
 In general, it may be stated that the rules of evidence are 
 the same in equity as they are at law, and that questions 
 of the competency or incompetency of witnesses, and of other 
 proofs, are also the same in both courts. 
 
 Almost all testimony is positively required by courts 
 of equity to be by -written deposition ; the admission of 
 viva voce evidence at the hearing, being limited to a very few 
 cases, such as j)roving a deed or a voucher referred to in the case. 
 
 The same general rule prevails in equity, as at law, that parol 
 evidence is not admissible to contradict, qualify, extend, 
 or vary ■written instruments ; and the interpretation of them 
 must depend upon their own terms. But in cases of accident, 
 mistake, or fraud, courts of equity are constantly in the 
 habit of admitting parol evidence to qualify and correct, 
 and even defeat, the terms of written instruments. 
 
 EST®PFEI. IHr EQUITY. 
 
 The subject of equitable estoppels, or estoppels in fact, ap- 
 plies to all cases where rights once valid are lost by delay, 
 and the implied acquiescence resulting from such delay. 
 
 Lapse of time and acquiescence on the part of the parly 
 whose interests are alleged to have been injuriously affected by 
 irregular proceedings ■will be a complete bar, unless the 
 transaction is tainted with fraud, meaning thereby an act 
 involving grave moral guilt. 
 
 In cases of actual fraud, courts of equity feel great re- 
 luctance to interfere where the party complaining does not apply 
 for redress at the earliest convenient moment after the fraudu- 
 lent character of the transaction comes to his knowledge. 
 
EQUITY. 375 
 
 "Upon similar grounds, courts refuse to disturb settlements 
 long acquiesced in, althougli between parties holding confi- 
 dential relations to each other, and of such a nature as to give 
 one great advantage over the other in making such settlements ; 
 as, for instance, between trustee and cestui que trust. 
 
 The equitable rule as to the effect of a person lying by, and 
 allowing another to expend money on his property, does 
 not ajjply where the money is expended with knowledge of 
 the real state of the title. 
 
 Where a party, by misrepresentation, draws another 
 into a contract, he may be compelled to make good the repre- 
 sentation, if that be possible ; but if not, the other j)arty may 
 avoid the contract. 
 
 And the same principle applies, although the party mak- 
 ing the representation believed it to be true, if, in the due 
 discharge of his duty, he ought to have known the fact. 
 
 Third parties -who by false representations, induce 
 others to enter into contracts are estopped from afterwards 
 falsifying their statements, and, if necessary, may be com- 
 pelled to make them good. Bat where a contract is entered 
 into upon the false statement of one not a j)arty,it is no ground 
 of avoiding the contract. 
 
 Misrepresentation may be either by the suppression of 
 truth or the suggestion of falsehood ; but to be the ground 
 for avoiding the contract, it must be such that it is reasonable to 
 infer that in its absence the party deceived -would not 
 have entered into the contract. 
 
 The doctrine of estoppel in pais, or equitable estoppels, 
 is based upon a fraudulent purpose and a fraudulent re- 
 sult. If, therefore, the element of fraud is wanting, there is no 
 estoppel. 
 
 As if both parties were equally conusant of the facts, and the 
 declaration or silence of one party produced no change in the 
 conduct of the other, he acting solely upon his own judg- 
 ment. 
 
 It is a universal law that if a man, either by words or 
 by conduct, has intimated that he consents to an act which has 
 been done, and that he will offer no opposition to it, although it 
 could not have been lawfully done without his consent^ and he 
 thereby induces others to do that from vrhich they other- 
 -wise might have abstained, he cannot question the legality 
 
376 EQUITY. 
 
 of the act he had so sanctioned to the prejudice of those who 
 have so given faith to his words, or to the fair inference to 
 be drawn from his conduct. 
 
 It is equally true that if a party has an interest to 
 prevent an act being done, and acquiesces in it, so as to 
 induce a reasonable belief that he consents to it, and the posi- 
 tion of others is altered by their giving credit to his 
 sincerity, he has no more right to challenge the act to their 
 prejudice than he would have, had it been done by his pre- 
 vious license. 
 
 And here we must bring this abridgment of equity juris- 
 prudence to a close. But, to use the language of Mr. Justice 
 Story, let not the ingenuous youth imagine that he also may 
 here close his own preparatory studies of equity jurisprudence, 
 or content himself, for the ordinary purposes of practice, with 
 the general siirvey which has thus been presented to his view. 
 What has been here offered to his attention is designed only to 
 open the paths for his future enquiries; to stimulate his dili- 
 gence to wider and deeper and more comprehensive examina- 
 tions; to awaken his ambition to the pursuit of the loftiest 
 objects of his profession, and to impress him with a profound 
 sense of the ample instruction and glorious rewards which await 
 his future enterprise and patient devotion in the study of the 
 first of human sciences, the law. 
 
SUGG-ESTIOlSrS TO STUDENTS. 377 
 
 SUGGESTIOI^S TO STUDENTS. 
 
 THE STAET. 
 
 Melancholy and untrue is the picture Avhich they draw of the 
 legal study who represent its prominent features to be those of 
 subtlety and impudence, and of a labor dry and barren. Eather 
 would I compare it to a mountain, steep and toilsome, in its 
 first approaches, but easy and delightful in its superior ascent, 
 and whose top is crowned with a rich and lasting verdure. Be 
 a student, then, according to your own acceptation of the idea; 
 and remember this as a maxim which arises from the very char- 
 acter of the study, that he loho is a great lawyer must he a great 
 and a good man. Be not imj)atient of your progress if you find 
 it at first difficult and tardy; this will be but a natural conse- 
 quence ; you may, however, find it less so than you now im- 
 agine. Should this prove the ease, do not babble to every one 
 you meet the great plans which you have formed, or the achieve- 
 ments you have executed; this will expose you to ridicule or 
 envy, and will be unworthy of you. I know not a more ac- 
 curate criterion of a noble mind than that silent confidence in 
 its own powers which incites to great endeavors and leaves the 
 event to time. The labors of such a mind will be secret but 
 ardent; and its success will be known to the world only by the 
 superiority of the actions it incites. In the outset, let me say, 
 that he who has not a mind susceptible of the habits of labor, 
 or willing to acquire them, will never succeed at the bar : if such 
 a man should entertain a design of studying the law, I would 
 advise liim to lay it aside. — Baithby, Study and Practice of the Law. 
 
 WHEJSr TO ENTBE AN ATTOENEY'S OFFICE. 
 
 Many young men on leaving college at once place themselves 
 in a law-ofiice; and are frequently made mere drudges to copy 
 long declarations, pleas, bills in chancery, deeds, letters, etc., 
 
378 SUGGESTIONS TO ST^UDENTS. 
 
 whicli the proprietor of the office was either too imieh engaged 
 or too indolent to cojDy himself; and which neither improve the- 
 students hand-writing, nor add one mite to his legal stores^ 
 Others are suffered to grope through the intricacies of the law 
 without torch or clue, and destitute of all method. Left to self- 
 direction, they essay the perusal of some black-lettered folio, as 
 the herculean task alone necessary to be surmounted; the diffi- 
 culties of this widely diffused science are then to vanish, and 
 this musty and ponderous folio is to be the avenue through 
 which they are to pass, as by enchantment, into smooth and 
 uninterrupted paths. Disappointment, however, is the certain 
 reward of such students. Their minds are not prepared for so 
 vast an undertaking. The first beams of legal knowledge have 
 not been felt, when they ignorantly and rashly fly, like Icarus,, 
 into the very face of the sun, and meet with the same inevitable 
 and ruinous fate. Some, again, are contented with the scraps 
 and bits of knowledge gleaned from writing deeds and declara- 
 tions, from listening to the protracted narratives of clients to 
 their counsel, and the hasty advice which the former receive 
 from the latter; or from an occasional attendance on courts of 
 justice ; whilst the remainder of their office hours are dedicated 
 to politics and pamphlets, or the ephemeral and amusing pro- 
 ductions of the day. In this round of time-slaughtering, the 
 three or four years originally appropriated as the period of 
 legal study have elapsed ; and the student must now embark in 
 the practice of a profession, the very rudiments and general 
 contour of which have never been fully presented to his mind. 
 This is by no means a picture of too high coloring, but a faith- 
 ful sketch of the history of manj'' students of law. We, there- 
 fore, earnestly entreat the student to devote three-fourths of 
 the j)eriod allotted for his legal apprenticeship to private study, 
 and by no means to enter an office until the year previous to 
 his entering into the practice of his profession. If the public 
 records be accessible to him, he should read occasionally the 
 entire record of a case carried from an inferior tribunal to the 
 supreme court: the perusal of a few records of this kind would 
 impress on his mind a distinct view of the whole routine of an 
 action, through perhaps a hundred different forms or entries, to 
 the return of the executory process. — Hoffman's Course of Legal 
 Study. 
 
SUGG-ESTIOl^S TO STUDENTS. 379 
 
 QUICK PBECEPTIOlSr AND ANALYSIS. 
 
 There are certain qualities of the mind, of a very noble nature,, 
 the want of which cannot be dispensed with in that man who 
 is determined to be eminent at the bar. A clear intellect, by 
 which I mean the faculty of darting in a 7noment upon the truth, is 
 indeed a choice gift of nature ; it may be improved, but it never 
 can be acquired ; it is that wonderful jiower before which am- 
 biguity and confusion Hy away ; it is that mighty influence 
 which irradiates whatever system it pervades; which separates 
 in an instant the most entangled and perplexed ideas ; this it is 
 which descends to the minutest circumstances in the affairs of 
 mien, and, dissipating the mists with which they may be en- 
 veloped by craft or by ignorance, draws forth to the light the 
 little secret motive which gives them their real chai-actcr, and 
 which is so often sought in vain. — Raithhy, Study and Practice 
 of the Law. 
 
 LAW AND PEACTICE. 
 
 The study of the law, though it require vigorous comprehen- 
 sion, and habits of patient thinking, demands, however, no very 
 peculiar modification of talent. Whoever can be made to un- 
 derstand with iacility may soon comprehend its system ; who- 
 ever can think minutely may soon be master of its niceties :. 
 As to its practice, it is otherwise. Men who in solitude think 
 correctlj', and reason clearly, are, in public, masters neither of 
 their own thoughts nor their words. The happy exposition of 
 a subject, the ingenious elucidation of difficulties, the fluency of 
 utterance, the rapidity and skill of forensic evolutions, are im- 
 practicable to themselves, and irresistible in others. When an 
 intricate controversy must be unfolded in a perspicuous manner 
 to the mind of the judge, or a tangled tissue of blended facts 
 and law must be familiarly unravelled to a jury, — that is, at the 
 very crisis, when the contest is to be decided by the authority 
 of the land, learning and judgment are of no avail to the client 
 or his counsel without the assistance of an eloquent voice to make- 
 them known. Then it is that all the arts of the orator are 
 called into action, and that every part of a rhetorical discourse 
 finds its place for the success of the cause. The diamond in the- 
 mine is no brighter than the pebble upon the beach. From the 
 
.380 SUGGESTIONS TO STUDENTS. 
 
 hand of the lapidary must it learn to sparkle in the solar beam, 
 and glitter in the imperial crown. The crowd of clients, the 
 profits of practice and the honors of reputation will all inevi- 
 tably fly to him who is known to possess, not only the precious 
 treasures of legal learning, but the keys, which alone can open 
 them to the public eye. — Adams' Harvard Law Lectures. 
 
 WHAT YOU MUST POSSESS. 
 
 The studies by which a man may gain the summit of legal 
 -excellence are infinitely varied : he must possess the most oppo- 
 site qualities, and be capable of exercising them ; he must have a 
 quick discernment, and yet a steady understanding ; he must 
 not be destitute of imagination, yet must he possess a sound 
 judgment ; he must know books, yet be well learned in mankind ; 
 the subtle technicality of law, and the enlarged beauties of 
 classical learning; the solitary habits of study and the easy re- 
 finement of active life must equally distinguish him. In fine, 
 he must unite in himself all those noble qualities by which he 
 may at once command the attention of the acute and the learned, 
 and render himself intelligible to the most ordinary capacity. 
 Let him remember that every eye is busy in the discovery of 
 his weaknesses, and that everj^ ear is open to the detection of 
 his errors. I know of no scenes in life where men stand or fall 
 more completely by the strength or the weakness of their 
 talents than in our courts of law. The utmost tenderness is 
 . shown to the embarrassment of inexperience, but ignorance finds 
 no mercy. It is true, it is not hissed off the stage, but it sinks 
 ;beneath the awful, chilling infiuence of surrounding wisdom. — 
 Itaithby. 
 
 UNWEITTEN LAW OP THE POEUM. 
 
 The talented author of Eeed's Practical Suggestions, in speak- 
 ing of the art of conducting a law suit, says: The law, as 
 written in the text books, and revealed by the reports, is not 
 the same as that administered by judges and juries. The re- 
 ports over which we pore day and night have no presentations 
 ■of the faces, character, voices, dress, deportment and evident 
 bias, one way or the other, of the parties and witnesses. The 
 glance of intelligence of a juror not knowing he is watched, the 
 
SUGGESTIOlSrS TO STUDENTS. 381 
 
 frown of another, and the smile of still another — all these are- 
 missed. But they are signs by which the lawyer has been 
 guided, almost unconsciously to himself. There is no place in 
 the world where the feelings have more unconstrained play 
 than in a crowded court room during an important and exciting- 
 trial. The great crowd goes along with everj^thing, as well as- 
 the audience follows the plaj' in the theatre, and though the 
 sheriffs and bailiffs keep the best of order, that whole throng of 
 listeners perceptibly manifest their approval or disapproval of 
 everything that is said or done. The bar feel this influence — 
 they have brothers and fathers in that company. The judge 
 feels it, too, and he has an almost fraternal feeling for those- 
 people out there ; and the jury, — why, they came from that mul- 
 titude; and all of them, judge, counsel, witnesses, parties, jury 
 and audience are men and women, and, like other men and. 
 women, have their weaknesses and infirmities, their loves and 
 hatreds, their vices and their many virtues too. All of them 
 live in their feelings, and these impulsive heady feelings are ever- 
 running away with their reasons in unguarded moments. And thus- 
 is there a different law administered at nisi prius from that which 
 is found in Blackstone and Story. And this law must be learned, 
 by him who would be a successful lawyer. 
 
 FLUENCY AND EEADESTESS AT THE BAE. 
 
 In the exercises of the forum, everything depends upon ease- 
 and fluency of speech. The talent is rendered a peculiar one :. 
 two circumstances have made it so ; the variety and instantane- 
 ousness of the occasions. Hence not only terseness and elegance- 
 are required from the advocate upon important and elaborate- 
 matters, but a quickness of expression also, calculated for short 
 and shrewd debate ; for you must have observed that there are- 
 numberless occasions, in the course of j)ractice, in which a read- 
 iness of observation and reply have stood him in better stead 
 than all the most solid powers of the judgment combined to- 
 gether at that moment could perform. Men are apt to be caught 
 by the activity of speech, which, as it is often the talent of an- 
 inferior mind, is not to be regarded as the standard of great 
 powers, but which will ever be advantageous in this sort of 
 commerce with the world. A superficial man, even in cases of 
 importance, if he possesses a liveliness and rapidity of speech,. 
 
;382 SUGG-ESTIOlSrS TO STUDENTS. 
 
 will be often more welcome than the hesitating, tedious man of 
 judgment. 
 
 How often do people say, when describing a speaker, " Why, 
 to be sure, there is not much depth in him, but then he is never 
 at a loss ; he speaks charmingly ; his words seem always 
 ready!" On the other hand, "I cannot bear to hear that man; 
 I dare say he is a very wise man, but he keeps me in constant 
 pain ; he seems always so much in want of words, that abso- 
 lutely one expects he will every moment stop in the middle of 
 his speech. I would rather give up my law suit than be bound 
 to hear that man speak frequently." ]!^ow this is a very com- 
 mon sentiment, expressed by the vulgar, indeed, but by which 
 the wise man is not wholly unaifected ; and I may here add, 
 that it is not by the suffrage of the wise alone that the advocate 
 rises in his profession. Fluency of speech I conceive to be an 
 . art, and, like any other art, it is to be acquired by observation 
 and diligence. — Baithby. 
 
 THE JUDGE. 
 
 The perfect judicial character has been sketched more than 
 •once by the hand of a master. Lord Bacon says : " If any 
 one sues to be made a judge, for my own part, I should 8usj)ect 
 him. Let not a judge meet a cause halfway, nor give occasion 
 to the party to say his counsel or proofs were not heard." 
 Judge Hutton is advised to be " a light to jurors to open their 
 eyes, but not a guide 'to lead them by the nose; that he should 
 not affect pregnancy and expedition, by an impatient and catch- 
 ing hearing of the counsellors at the bar." So in another place 
 he says, " Patience and gravity of hearing is an essential part of 
 justice, and an overspeaking judge is no well-tuned cymbal; it 
 is no grace to a judge first to find that which he might have 
 heard in due time from the bar ; or to show quickness of con- 
 ceit in cutting off evidence or counsel too short, or to prevent 
 information by questions, although pertinent. Judges ought to 
 be more learned than witty, more reverend than plausible, more 
 advised than confident. Above all things, integrity is their por- 
 tion and proper virtue." Another writer says, " The judge 
 should know nothing of the parties, but their names on his 
 docket ; nothing of the cause, but from the evidence ; nothing of 
 'the result and its consequences, but the judgment which the law 
 
SUGGESTIOlSrS TO STUDENTS. 383 
 
 pronounces." Sir John Portescue in speaking of the courts in 
 his time (1470) says, " The judges of England do not sit in the 
 King's Courts above thre6 hours in the day ; that is, from eight 
 in the morning till eleven. The courts are not open in the 
 afternoon. The judges, when they have taken their refresh- 
 ments, spend the rest of the day in the study of the laws and 
 
 READING OP THE HOLY SCRIPTURES. 
 
 WHAT IS NEEDED IN COUET. 
 
 Those who have frequented the criminal courts cannot but 
 sometimes have witnessed the unpleasing triumph of a loqua- 
 cious wrangler over deep discriminations and profundity of 
 thought. These, indeed, are busy scenes, in which if you mix 
 and hope to succeed, you must unite these jarring capacities. 
 The crowd are gaping for a smart speech, and some of the at- 
 torneys that conduct business in these courts have been long 
 -accustomed to all the lively keennesses of practice; they there-- 
 fore expect to see a congenial capacity in those they employ as 
 ■counsel; and, in short, will never think of giving a case to that 
 man who has it not, however extended or refined his knowledge 
 may be. To be able to meet every opponent upon his own 
 ground is an art which the lawyer must condescend to learn, 
 seeing there are occasions that may demand the exercise of it ; 
 and it is not an art which has been acquired and exercised here- 
 tofore by many great men. You must be able at once to influ- 
 ence the passions of a jury, and to convince the understanding 
 of the judge ; you must appear in all the varied characters of 
 the abstract reasoner, and the lively wit; the accurate definer, 
 and the polished rhetorician. The dignity of wisdom and the 
 facility of business, the nervousness of eloquence and the easy 
 familiarity of colloquy, must take their turns in the varieties of 
 your practice. In short, all that is excellent in general knowledge 
 and refined in legal intelligence must be called in to complete 
 the character of a leader in the courts. In the court of chan- 
 cery, for instance, the scene is entirely altered ; the wrangling 
 of the forum is exchanged for the reasoning of the schools. 
 The decisions of the court are not at the disposal of twelve 
 men ; they lie in the breast of one man, who is himself gov- 
 erned, not only by the decisions of his predecessors, but by a 
 peculiar kind of equity which professes to aid the sterility or to 
 
384 SUGGESTIONS TO STUDENTS. 
 
 correct the severity of the Common Law, without opposing its. 
 dictates or violating its principles. In this court, tlierefore, 
 there is no jury, whose imaginations the orator cau hope to in- 
 fluence, or whose passions to mislead ; all here is cool reasoning 
 and nice disquisition. Here, too, is agitated some of the most 
 abstruse and difficult learning of the law. — Baithby. 
 
 EEADING AT THE BAE. 
 
 Nothing is more wearisome to the auditors of the advocate 
 than the long citations he is under the necessity of making from 
 legal authorities, except it be the drawling and careless manner 
 in which they are read. The reading of an authority, if not 
 the signal for inattention, especially to juries, is at least a fore- 
 warning of fatigue. Policy, therefore, might dictate more at- 
 tention to this matter. Lord Mansfield, it is said, possessed 
 the art, by the agreeableness of his reading, to render even a 
 statute interesting. — Hoffman. 
 
 HISTOET AND LAW. 
 
 To assert that he whose professional life depends vqtow his 
 powers of reasoning and argument, and whose argument rests 
 upon his knowlege of the laws, may be ignorant of the circum- 
 stances that have contributed to the formation of their original 
 nature, and succeed, is an outrage upon common sense. As well 
 may you say a statesman can govern without a knowledge of 
 the genius of the people whose affairs he is to direct, or a phy- 
 sician judge of a disease without an acquaintance with the pre- 
 vious and accompanying symptoms, as that the lawyer should 
 understand the laws of a country while the events that gave 
 them birth and the systems by which they have been formed,, 
 are unknown to him. A good lawyer must be familiar with 
 HISTORY. How often would it have proved a most tedious and 
 almost insupportable task to those whose high office it is to 
 hear and determine upon the arguments of counsel had they 
 who have filled the character of an advocate at the bar been 
 generally unversed in the events recorded in historj- 1 How 
 confined would, to this moment, have been the legal notions of 
 our courts ! How spiritless and perhaps unjust their interpreta- 
 tions of the law, had they who preside in those august tribunals 
 
STJGG-BSTIONS TO STUDENTS. 385 
 
 derived their princij)les of truth, in the administration of civil 
 and criminal justice, from the letter of the law alone ! On the 
 other hand, what grand and striking displays of the reasoning 
 powers, what extensiveness of remark, what acumen of com- 
 parison, what a various energy of comhination mark the argu- 
 ment of that advocate whose mind has heen illuminated by a 
 contemplation of the hidden causes from Avhich, as we have al- 
 ready remarked, laws in particular, among all other human sub- 
 jects, derive their true character and complete force ! Persevere, 
 then, in this study, and yovi shall pluck, at length, a fruit, which, 
 if long in ripening, will nevertheless be truly valuable. You 
 may not, perhaps, at first sight, perceive the advantages which 
 the perusal of history will present to you as a lawyer j but re- 
 gard not this ; read on with diligence, persevere, and, unless I am 
 deceived, you will in the end find no reason for regret. — Raithby. 
 
 TWO EXAMPLES. 
 
 This is what is said of Lord Eldon, one of England's great 
 counsellors: "He rose in the morning at four, took little ex- 
 ercise, made short and abstemious meals, and sat up studying late 
 at night, with a wot towel round his head to drive away drousi- 
 ness." And this was the son of a Newcastle coal dealer, whO' 
 worked his way up from his father's office to the woolsack, where 
 his decisions in chancery, for a quarter of a century, have en- 
 riched the equity jurisprudence of his country and placed his 
 name high on the roll of her distinguished chancellors. His 
 contemporary, the celebrated English advocate. Lord Erskine,. 
 whose remarkable speeches at the bar have never ceased to be 
 the wonder and admiration of the profession, was also a man 
 whose great energy and determination to excel raised him from 
 scenes of want and obscurity to the highest round in the pro- 
 fession, where he stands, as Lord Campbell says, without an 
 equal, as an advocate, in ancient or modern times. 
 
 And need I tell you that it was by work, hard work, day by 
 day, year in and year out that these men ascended from the 
 humble walks of life to the Marble Chair and the peerage. 
 Whether before, or on, the bench; whether as advocates, or 
 keepers of the great seal, thej enjoyed not only the esteem and 
 confidence of their sovereign and fellow-countrymen, but that 
 which a lawyer would prize more than all else, the admiration 
 
 25 
 
386 SUGGESTIONS TO STUDENTS. 
 
 and applause of that venerable temple of justice, "Westminstee 
 Hall. Take courage, then, young man, take courage. The 
 great lights of the profession everywhere were once hard-strug- 
 gling, brave young men, with chances no better, perhajDS, than 
 yours. Take courage; only the hard-fought battles live in his- 
 tory; success lies only at the end of effort. On, on with you, 
 then, through hail and storm, through fire and flood; sweep for- 
 ward with a high resolve, to stand abreast with the mighty vic- 
 tors of the past who have gained the summit of glory and re- 
 nown ! 
 
 PATIENCE AND GEIT. 
 
 When a man sets out in the pursuit of a science like that of 
 the law, he will naturally be struck with the variety and in- 
 tricacy of its different branches, and, by an almost unavoidable 
 transition, he will take a view of the extent of the. talents that 
 are necessary to their development and investigation. Now if 
 this view be taken at the first, under the impression of self-mis- 
 trust or despondency, everything will appear in its inverted pro- 
 portions. The task you have undertaken will seem to be ob- 
 structed by almost insuperable difficulties, whilst your powers 
 dwindle away to nothing in your distempered apprehension. If, 
 then, in the beginning of your career you find this unhappy in- 
 fluence coming over you, do not tamely yield to it; be not af- 
 frighted by the horrible pictures it would draw of the profundity 
 and intricacy of the legal science : the treasures of that science 
 are ever open to a good understanding and diligent application. At 
 first you will no doubt feel yourself somewhat disgusted at the 
 apparent dryness and repetition of the subjects of your labor; 
 you will be apt to conceive that, however wonderfttlly the ends 
 of justice may be answered by such tedious forms, those of reason 
 are violated and overthrown. Have patience; in the course of 
 a little time you will be induced to alter your opinion ; a ground 
 which at first you did not perceive, a reason which did not dis- 
 cover itself, an order, a connection which were hidden from 
 your view will arise gradually to your observation, and when 
 once this important discovery is made, the confusion and irra- 
 tionality that appeared to hang around your labors will disperse, 
 the clouds of obscurity that heretofore have seemed to enwrap 
 the legal science will depart, and strength and order will 
 APPEAR. — Adam's Lectures. 
 
SUGGESTIONS TO STUDENTS. 387 
 
 THE SACEED SCEIPTUEES. 
 
 The Bible forms a veiy natural introduction to the student's 
 course, as recording a form of , government and law originating 
 in the great Legislator of the universe, whose pleasure it was to 
 enjoin, by a direct communication of his will, those duties and 
 declare those obligations which, when by reasoning on the 
 nature and relations of man we have concluded to be such, we 
 consider as the dictates of the law of nature. The purity and 
 sublimity of the morals of the Bible have at no time and in no 
 country been questioned ; it is the foundation op the common 
 LAW or EVERY CHRISTIAN NATION. The Christian religion is a 
 part of the law of the land, and as such should certainly receive 
 no inconsiderable portion of the lawyer's attention. Sir "Wil- 
 liam Jones says : " I have carefully and regularly perused these 
 Holy Scriptures, and am of opinion that the volume, independ- 
 ently of its divine origin, contains more sublimity, purer morality, 
 more important history, and finer strains of eloquence than can 
 he collected from any other book, in whatever language it may 
 have been' written." An American, recently writing from Lon- 
 don, says : " A young man cannot graduate at Oxford without 
 passing a thorough examination in the Old Testament history, 
 the Gospels and the Acts in their original Greek, and repeat the 
 thirty-nine articles almost word for word. It is curious to note 
 how familiar this makes the educated classes with the Bible. 
 An allusion to a Scripture incident is made and understood as 
 readily in Parliament as it would be with us in a Presbyterian 
 Synod, and I have heard a Queen's counsel catch up such an al- 
 lusion and dwell upon it in a way that showed a minute ac- 
 quaintance with the very text of the Bible itself" A thorough 
 knowledge of it will be of incalculable service to you in your 
 practice at the bar, where most all great lawyers have felt and 
 recognized its power ; beyond and above this, it may, under the 
 benign influence of the Great Author of your being, become the 
 happy means of securing success and prosperity for you in this 
 world and a triumphal entry into the next. Eemember that the 
 last case you are to try will be your own; not at Nisi Prius, not 
 at the Quarter Sessions, where you may have practiced so long, 
 but before the awful presence of the Great Magistrate of the 
 universe. I beseech you, then, look well to the preparation of 
 
388 SUGGESTIONS TO STUDENTS. 
 
 this case, and see to it that not one of all the cases arising in your 
 whole life's practice here can be possibly used to overwhelm and 
 convict you there. Since your lot was so happily cast in a land 
 of liberty, civil and religious, where the revealed law has been 
 most thoroughly and liberally expounded, I fear you will find 
 no recognized equity in appeals for mercy grounded on the 
 slightest ignorance of those jmre and simple laws which have 
 been daily before your eyes, like the sunlight of the universe. 
 
 INDOLENCE. 
 
 A habit of indolence is a most powerful enemy to those whose 
 profession in life demands the utmost exertion. I mean not 
 here to allude to that shocking intemperance of idleness which 
 utterly precludes every hoj)e ; no man of sense is likely on a 
 sudden, or perhaps ever, to fall into so disgraceful an inactivity. 
 I mean that indolence which steals upon us by degrees, even 
 while we flatter ourselves all is activity and diligence ; which 
 does not boldly rob us of our time and powers at once, but 
 which persuades us that we are already sufiiciently industrious ; 
 which is eternally whispering into our willing ears : "Now is the 
 time for repose; you have done enough; you pursue your 
 studies with an unnecessary attention ; recreate yourself; you 
 have a right to recreation ; you have done more than is com- 
 monly done." This is the language, this is the sentiment, that 
 beguiles us of apparently small, but really valuable, portions of 
 time, and that defrauds us of excellence. You have taken up 
 the profession of the law ; that is the science to which your prin- 
 cipal attention henceforth is to be directed, and excellence in it 
 is the point towards which all the best and most vigorous facul- 
 ties of your mind are to be exerted. Refuse not to labor at a 
 settled point, and in the end you will reap the fruits of your 
 labor. "We are men, and we must bend to the conditions of mor- 
 tality. The most jsrominent of these conditions is that we 
 should get our bread by the sweat of our brow, and from this 
 lot, in some degree or other, no man is exempt. But does it 
 necessarily follow that we are therefore to lose every degree of 
 spirit ? Must we as a consequence give up every hope ? Far 
 from it. He whose labors are regularly directed to some certain 
 study that may make him respectable in his own eyes and use- 
 ful to the community, however he may for a moment be the de- 
 
SUGG-ESTIOIsrS TO STUDENTS. 389 
 
 rision of the wit and the contempt of the universal genius, will 
 not only be a more happy, but a more estimable, character. 
 
 " His be the praise, who, loolcing down in scorn 
 On the false judgment of the partial herd, 
 Consults his own clear heart, and nobly dares 
 To be, not to be thought, an honest man.'' 
 
 — Baithhy. 
 
 OI^E THING AT A TIME. 
 
 The student who abandons a subject without understanding 
 it is like a commander who leaves an enemy in his rear ; he 
 advances without the cheering certainty of being fully master 
 of the road over which he has travelled, and most generally 
 finds the difficulty, which he has left without overcoming, start 
 up in the course of his progress in a hundred different shapes 
 and a hundred diiferent subjects, to harass and perplex him. — 
 Hoffman. 
 
 EXAMINATION OF WITNESSES. 
 
 An interested witness in the hands of a ready examiner, even 
 though he be not a man of great parts, will frequently be sur- 
 prised out of the truth which he has determined to hide. The 
 multitude and variety of questions, not asked, perhaps, with 
 the exactest judgment, but running one upon the heels of an- 
 other, with a wonderful rapidity, amaze and frighten him ; he 
 conceives there are multitudes yet behind; he concludes that all 
 his secrets are discovered ; he confesses everything in mere des- 
 pair. Not such is the influence of that advocate, who, with 
 greater mental powers, is deficient in this useful and necessary 
 faculty ; his judgment jjoints out, with little difficulty, the ques- 
 tions that are proper to be asked, but by some unhappy influ- 
 ence he has no adequate expression at command. This very 
 want of words produces not only hesitation, bat, in the end, 
 questions full of words, and arriving with difficulty at the pro- 
 posed point. 
 
 While all this is preparing, what is the witness about ? Does 
 he suffer these immense spaces of leisure to pass unemj)loyed ? 
 Oh, no; he is framing answers by which he may hope at once 
 to elude confession and perplex his loitering examiner. — Baithby. 
 
390 SUG-GESTIONS TO STUDENTS. 
 
 COKE UPOlSr LITTLETON. 
 
 It is related by Lord Campbell, that when he commenced his 
 legal curriculum, he was told this anecdote : " A young student 
 asked Sir Vieary Gibbs how he should learn his profession. 
 Sir Vieary; 'Bead Coke upon Littleton.' Student: ' I have 
 read Coke upon Littleton.' Sir Vieary: ' Eead Coke upon 
 Littleton over again.' Student : ' I have read it twice over.' 
 Sir Vieary : ' Thrice ? ' Student : ' Yes, three times over very 
 carefully.' Sir Vieary : ' You may now sit down and make an 
 abstract of it.'" And Campbell adds: "If my opinion is of 
 any value I would heartily join in the same advice. The book 
 contains much that is obsolete, and much that is altered by stat- 
 utable enactment; but no man thoroughly understands the law 
 as it is without knowing the changes it has undergone, and no 
 man can be acquainted with its history without being familiar 
 with the writings of Lord Coke." 
 
 MODESTY. 
 
 It is by no means a necessary consequence, because it falls to 
 a man's lot to address a number of persons, that he is therefore 
 the wisest man of that number. The gift of eloqu.ence is a very 
 noble gift, and wherever it is allied to a sound judgment, it will 
 at one time or another elevate the man who possesses it above 
 his contemporaries ; but it will only elevate him as it is mani- 
 fested, and as it makes an impression upon men's minds ; and 
 nothing so effectually convinces men of the good understanding 
 of a public speaker as the appearance of modesty. By this he 
 acknowledges the inferiority of his own single opinion to the 
 aggregate wisdom of the body he is addressing, yet because the 
 aggregate wisdom of every society of men is a composition of 
 separate efforts of individual understandings, he does not relin- 
 quish his own opinion, but continues to enforce it, until by some 
 solemn act of the auditory the joublic opinion is clearh" demon- 
 strated. 
 
 We see that the wisest men do not advance their observations 
 or their arguments in a tone of confidence, or with an unblush- 
 ing boldness. Experience and knowledge have taught them 
 that, like other men, they may err; still, conscious of their 
 
SUG-GESTIOlSrS TO STUDENTS. 391 
 
 superiority, they take upon, them to inform and instruct man- 
 kind, but their lessons are delivered in the chastened style of 
 modesty ; they remember that they themselves have something 
 yet to learn. The man who never speaks before the tribunals 
 of justice but in the tones of confidence and audacity, may ex- 
 cite a temporary amazement ; ho may delude for the moment, 
 but when the reason of men returns, he will be taught to feel 
 that there is a dreadful distance between himself and that char- 
 acter which is formed to expound the science and to elevate 
 THE PROFESSION OP THE LAW. In argument, whether addressed 
 to the judge upon the bench or to the jury, or in the examina- 
 tion of witnesses, bear continually in your recollection that you 
 are in the presence of those to whom all respect is due, who are 
 able to distinguish, with a piercing eye, what is necessary to the 
 completion of your character, and against whom effrontery 
 must be no inferior offence ; while they contemplate the modesty 
 of the ingenuous advocate with sensations of benignity and 
 pleasure. — Baithhy. 
 
 LAW AND LAWYEE. 
 
 The student will ever bear in mind that notwithstanding the 
 word law is of comprehensive signification, lawyer is still more 
 so ; embracing the richness and solidity of learning, the pro- 
 fundity of wisdom, the purity of morals, the soundness of in- 
 tegrity, the ornaments of literature, the amiableness of urban- 
 ity, the graces of modesty, and, generally, the decorations and 
 amenities of life. The instructor of a law student should 
 never cease to press upon his pupil, that all the learning of the 
 schools will not make a great lawyer, without a sound system 
 of morals and a nice sense of right and wrong. — Hoffman. 
 
 INTEGEITY. 
 
 In the course of your practice you may meet with some occa- 
 sions in which, by taking advantage of the negligence or igno- 
 rance of your opponent in some particular form, you might re- 
 commend yourself to a sharp or selfish client. Here integrity will 
 be very useful ; it will not let you make of such accidents any un- 
 due or dishonest advantage ; it will not sufli'er you to be so far 
 smitten with the character of a keen man, that you will obtain it 
 
392 SUGGESTIONS TO STUDENTS. 
 
 at any rate. What, alas, will a little temporary profit avail in the 
 estimation of the man who has been tempted by the hope of it to 
 do that upon which he can reflect with no honest pride ? for I 
 again remark that even in point of profit, this sharp, this catching 
 spirit does not always, in the end, bear away the palm. Like 
 the bubbling of a disturbed rivulet, it may excite a momentary 
 attention, while the noble, silent swell of the river passes un- 
 noticed ; but like the rivulet, its shallowness will presently be 
 discovered ; we shall turn from it with contempt, content only 
 with that perennial stream of talent and integrity that is rolling 
 on with a majestic and unruffled course towards the great ocean 
 of immortality. The advocate who is influenced by integrity 
 will never forget that the cause of his client is his own : this is a 
 happy consequence of that animating principle. What a glow, 
 what a fervor does it impart to every look and every action ! 
 And is it not as much to his interest as his honor ? Men are 
 charmed when they find their business thus warmly undertaken. 
 When they perceive that everything they themselves could 
 think is said for them, they are led insensiblj' into the idea that 
 the lawyer perceives and is affected by the justice of their 
 cause. If this be a delusion, it is a delusion that is most readily 
 supported by their self-complacency ; and the name of that 
 lawyer is presently spread in the world, who appears to argue 
 rather from the affection he has towards the cause of his client 
 than from love of the golden fee. — Raithhy. 
 
 FOUE WAYS. 
 
 We are told by Lord Campbell that " it used to be said that 
 there were four, and only four, ways in which a young man 
 could get on at the bar : 1. By huggery. 2. By writing a law 
 book. 3. By Quarter Sessions. 4. By a miracle. The first was 
 successfully practiced by that great nisi prius leader, Tom Tewkes- 
 bury, who not only gave dinners at his chambers to the attor- 
 neys, but suppers to their clerks.'' " The miracle," says Camp- 
 bell, " consists in the conjunction of an opportunity to make a 
 great speech in some very popular cause, with full ability to im- 
 prove the advantage." Perhaps the most remarkable instance 
 in the miracle way is that furnished us by the great Erskine. 
 ''Living in small lodgings, dressed shabbily, and subsisting on 
 'cow-heel and tripe,' he was suddenly to be the idol of all ranks 
 
SUGGESTIONS TO STUDEJSTTS. 393 
 
 of the community, and to wallow in riches. Such a quick tran- 
 sition from misery to splendor is only eqvialled in the Arabian 
 Nights, when the genii of the wonderful lamp appeared, to do 
 the bidding of Aladdin. A sunrise within the tropics displays 
 some fleeting crepuscular tints between utter darkness and the 
 ■full solar blaze, and therefore cannot be used to give a just no- 
 tion of Erskine's first appearance to the dazzled eyes of the 
 British public." His reputation was made in his first case — The 
 King V. Baillie. "The impression made upon the audience by 
 his address is said to have been unprecedented, and I nnist own 
 that, all the circumstances considered, it is the most wonderful 
 forensic effort of which we have any account in our annals. It 
 was the debut of a barrister just called and wholly unpracticed in 
 public speaking, before a court crowded with men of the highest 
 distinction. He came after four eminent counsel, who might be 
 supposed to have exhausted the subject. He was called to order 
 by a venerable judge, Lord Mansfield, whose word had been 
 law in that hall above a quarter of a century. A commonplace 
 •declaimer would have thought it necessary to conclude with 
 some noisy, mouthing sentences. How much more effective 
 must have been the lowered tones of the man who knew in- 
 stinctively how much to touch the feelings, speaking in an as- 
 sembly where every look was fixed upon him, whore every syl- 
 lable he uttered was eagerly caught up, where breathing was 
 almost suspended, and as often as he paused a flake of snow 
 would have been heard to fall. 
 
 " Briefs and fees, large and small, now flowed in a continual 
 stream into the chambers of the counsellor who had so astonished 
 the world. He was at once in full business; and it should be 
 recorded, for the honor of the ' long robe,' that although he 
 passed over the heads of many who had fully established them- 
 selves in Westminster Hall, there was no caballing against him; 
 he had not even to encounter envy or ill-will ; he was hailed by 
 his competitors as conferring new honors upon them, and bearing 
 bis faculties most meekly, he became and ever continued a favor- 
 ite with all ranks of the profession." 
 
 DO NOT BE IN HASTE. 
 
 I would here warn you against a very prevalent delusion. Is 
 it not common for young men to say, " What is the use of study- 
 
394 SUGGESTIONS TO STUDENTS. 
 
 ing so much beforehand ? Cannot I acquire the learning as I 
 want it? Does not every case carry its own law?" Depend 
 npon it, such reliance upon future opportunities will deceive jo\u 
 Should your mind be unversed in general doctrines, you will 
 find unexpected difficulties in the search for particular examples,, 
 as well as in the apj)lication of them. We daily see men at the 
 bar with a respectable share of book learning, nay, with no 
 small degree of a certain sort of talent for eloquence, and yet 
 we venture to pronounce secretly of these men that they will 
 never soar above mediocrity. This is a sort of feeling which 
 rests satisfied with its own prophetic certainty, and therefore th& 
 reasons that produce it are seldom analyzed; but should the 
 question be asked, the answer would in a moment doubtless be •.. 
 "He has been in too great haste; he knows nothing of the 
 world or himself." — Raithby. 
 
 SELECTION OP BOOKS. 
 
 If a man should calculate on living to the age of sixty years,, 
 and should appropriate with great industry forty of these years 
 to the study of books, the most that could be accomplished in 
 this time would be the perusal of about sixteen hundred octavo 
 volumes of five hundred pages each. "What is this number com- 
 pared with the millions of volumes out of which he has to select I 
 How important is it, therefore, that the choice should be judi- 
 cious, and that after it is made the whole should be studied with 
 method ; and how much more necessary it is to those who, in- 
 stead of forty years devotion to books, apjDropriate not more 
 than a fourth-part of that period. Lord Bacon has quaintly ob- 
 served : '' Some books are to be tasted, others to be swallowed,, 
 and some few to be chewed and digested; that is, some books 
 are to be read only in part, others to be read, but not curiously, 
 and some few to be read wholly, and with diligence and atten- 
 tion.'^ — JEbffman. 
 
 DEPOETMENT. 
 
 Manner is that invisible quality which insensibly pervades,, 
 with the happiest effect, the works of pure genius. It animates 
 the pencil of the artist, the pen of the poet, and the sentiments of 
 the orator ; it spreads an inexpressible glow of charms over every 
 
SUGGESTIONS TO STUDENTS. 395- 
 
 effort of art; it communicates a peculiar sweetness to the keen- 
 est truths; an air of majesty to the simplest figures. It allures 
 while it awes the mind ; it speaks a language that no power but 
 itself can express, and it is that Attic fire that enlivens every ob- 
 ject to which it communicates its influence. 
 
 In the advocate it is more immediately discerned than in any 
 other character; consequentlj^ in him the want of it will mor» 
 easily be detected. How shall we express what this manner is ! 
 It appears to be a quality arising from some internal influence, 
 and cannot therefore, perhaps, be absolutelj^ acquired; but that 
 it may be improved appears by the same reason that governs 
 the improvement of all similar qualities, and by the same means. 
 It communicates itself by a thousand mediums to the action of 
 the speaker, even in the most minute particulars; it may be seen 
 in the countenance, in the movement of a finger, yet it cannot 
 be- well designated by any single action. It is felt in the tones 
 of the voice; yet anj- particular sort of expression will not be 
 adequate to the description of it. It is an indescribable combi- 
 nation of ease and dignity ; it mixes with and elevates the char- 
 acter, without seeming to form any denominate part of it. It is 
 of a dignified nature, and is the result only of a penetrating 
 judgment, a refined and enlarged sentiment, a superior virtue 
 and an extensive commerce with mankind. Thus is the rarity 
 of its appearance in the world accounted for. Has nature fa- 
 vored you with the materials ? Improve them by studj'ing the 
 exalted principles of truth. — Raithby. 
 
 A CHIEF JUSTICE. 
 
 It will be no loss of time for the student to pause for a moment 
 to read the following sketch of the illustrious John Jay, first 
 Chief Justice of the United States. Doubtless it will convince 
 you that to bo a great lawyer, statesman or judge, manifestly 
 means something more than to be greatly learned. According 
 to the English system of conferring titles of nobility, it is pos- 
 sible that our plain, republican John Jay Avould have lost his 
 family name when he became Chief Justice, and we should 
 probably read of him now as the noble Lord Bedford. But no 
 title of nobility could add any lustre to his name. No royal 
 patent could make hijpi nobler than he was. His deportment 
 was tranquil and unassuming, and one who had met him, not 
 
.396 SUGGESTIOlSrS TO STUDENTS/. 
 
 knowing who he was, would not have heen led to suppose that 
 he was in the presence of one eminently gifted by nature with 
 
 ■intellectual power, and who had sustained so many offices of 
 high trust and honor. Mr. Jay's character is disclosed in the 
 record of his life. His moral and intellectual qualities were in 
 harmony. His public principle commanded the respect of the 
 
 •world. His private virtues attracted the affection and homage 
 of his friends. He was modest, claimed no merit, assumed no 
 importance, and seldom alluded to the great events of his life. 
 He was charitable, not impulsively bestowing his means with- 
 out discrimination, ■ like Goldsmith's village preacher, whose 
 "pity gave ere charity began,"- but with a judicious selection, 
 and from a sense of duty. His economy was exact, but liberal. 
 "A wise man," he said, "has money in his head, but not in his 
 heart." The recipients of his bounty were numerous. 'He had 
 
 .an elevated sense of justice and of the claims of humanity. His 
 religion was a part of his being, and displayed itself in the uni- 
 form tenor of his life. He acted under the habitual conviction 
 of accountability. " All his serious thoughts had rest in heaven." 
 His feelings were always under the control of his will, and 
 hence he was never guilty of those extravagances of conduct 
 which too often mar the career of genius. He was tenacious in 
 
 . his friendships, and equally so, we suspect, in his enmities. 
 Having once had good cause to doubt a man's sincerity or in- 
 tegrity, he never after trusted him. His disposition was cheer- 
 ful, his conversation equally instructive and interesting. 
 
 His intellectual endowments are easily described. His mind 
 was vigorous, exact and logical. To genius he could make no 
 pretensions. Judgment — discriminative, penetrating — was the 
 characteristic of his understanding. If over his other faculties 
 imagination had presided, the compass of his thought would 
 have been enlarged, and grace and flexibilitj' been imparted to 
 his mind. Jaj'' was not a varioush'-lcarned man. Modern genius 
 did not delight him. Of the ancients, Cicero was his favorite. 
 The Bible was his constant study. Observing throughout his 
 life the great principles of justice and rectitude, he "ascended 
 to the temple of honor through the temple of xirtne."— Flanders' 
 Lives of the Chief Justices. 
 
'SUGGESTIONS TO STUDENTS. 397 
 
 UEBANITY. 
 
 Those -who have written upon the decorations of life have 
 agreed to marlt urbanity as the chief amongst them. Its good 
 eifects are conspicuous in every movement, in every word, in 
 every action ; it possesses an engaging condescension that adds.- 
 fresh lustre to the dignity of our manners; it softens the tone of ' 
 the voice and relaxes the awful countenance of wisdom. In ad- 
 dressing the judge or jtiry it will give at once an elegant and. 
 respectful air to every sentiment; in arguing with a learned, 
 friend it will produce a tone of yielding diffidence, without im- 
 pairing the firmness or blunting the point of our conclusion ; in 
 examining a witness it will guard us against insulting the humble 
 or deriding the modest ; it will clothe the countenance with a 
 pleasing seriousness when undesiguing ignorance only presents 
 itself; to the crafty and audacious it will exhibit an aspect ad- 
 yerse and terrific in the highest degree. Thus will urbanity 
 raise up a character that will prove obnoxious to those only to • 
 whom virtue and elegance are obnoxious. It may apj)ear ludi- 
 crous to class urbanity among the serious studies of the lawyer;, 
 but if it be a trifling thing, it may be recollected that upon 
 things thus lightly esteemed the most important occurrences of 
 life have depended, important both in their own intrinsic nature 
 and in the consequences they have produced. — Baithby. 
 
 POINTS TO BE OBSEEVED IN PEACTICE. 
 
 The freedom of speech allowed to counsel, in conducting the 
 cases of their clients, is manifestly indispensable for the admin- 
 istration of justice. It is, however, a weapon which ought 
 never to be wielded but by a gentleman, who will cautiously 
 keep in view the true reason of the existence of the right, and 
 be governed, in exercising it, by uniform delicacy and consider- 
 ateness. It is, however, a matter entirelj"- within his own dis- 
 cretion. , If real vice, fraud, falsehood, cruelty, meanness, or 
 oppression, are to be denounced, let it be done fearlessly, and 
 with all the power and eloquence which the advocate may be 
 able to command; but still, let him remember the character 
 which he has individually to sustain, and the dignity of that 
 profession of which he has become a member. To indulge in. 
 
398 SUGGESTIONS TO STUDENTS. 
 
 unbridled license of speech, simply because one has the power 
 of doing so — under the shelter then, surely, of a most ignomin- 
 ious impunity — is inexj)ressibly brutal, mean and cowardly, 
 and proves him who is guilty of it to have no pretentions what- 
 ever to the title of gentleman. One should bear in mind the 
 agony which one may be inflicting, in every word that is uttered, 
 upon a person possibly of spotless integrity, of the highest del- 
 icacy of feeling — -whose conduct one may have totally misun- 
 derstood, of whose real motives one is altogether ignorant, yet is 
 recklessly endeavoring to expose such a person to the ridicule, 
 , scorn, and hatred of his friends, and the public, — to inflict upon 
 his character injury iri'eparable. Let not, however, the inso- 
 lent speaker imagine that he always succeeds in doing this : he 
 is far more likely to render the victim of his vituperation an 
 -object of sympathy, and earn for himself the character of a 
 hard-mouthed bully ; one who ia despised by the gentlemen who 
 belong to the profession which he is dishonoring, and by those 
 who sit upon the bench. You should also be uniformly respect- 
 ful, but never servile, to the court. Be firm, if you please, but 
 approach not the confines of flippancy, familiarity, or presump- 
 tion. A rebuke under such circumstances will be justly galling 
 and humiliating. The ear of the court is gained by modesty, 
 and by speaking briefly and to the point. It is closed against 
 assurance, volubility, prolixity, repetition. How disgusting and 
 intolerable is it to hear a man going doggedly over ground al- 
 ready gone over, as if the judges had not heard or understood 
 your senior, as if there were no other case to be heard but 
 your own, as if you were not the subject of the " curses, not 
 loud but deep," of those whom you keep waiting to be heard in 
 their own cases, possibly of far greater importance than that 
 with which you are pestering the court ad nauseam ! Observe 
 how differently the courflistens to a sinner of this sort, and to 
 a man who has earned the character of being brief and lucid ! 
 Do not give up too easily ; but the accursed pertinacity which 
 you may occasionally see exhibited — look at the faces of the 
 judges while suffering under the infliction ! Be courteous to 
 your opponents. When you find you are being beaten, then is 
 the moment to guard against the least manifestation of a ruffled 
 temper, of irritability, or snappishness, or downright ill-humor. 
 It will provoke only laughter, or dislike. 'Tis at this pinching 
 point that you may infallibly distinguish between the temper 
 
SUGGESTIONS TO STUDENTS. 399 
 
 and breeding of different men, between the man well-bred, and 
 him under-bred, or ill-bred. A gentleman is a gentleman to the 
 end of the chapter. Never take offence at what is said or done 
 by your opponent, unless you deliberately believe that offence 
 was intended. If that be the case, you must act as j'^our own 
 •sense of self-respect ra&j prompt, with sj)irit, but prudence. 
 Never permit yourself to sj)eak in a disparaging tone of any of 
 3'Our brethren in the presence of clients. If you cannot praise, 
 be silent. Do not expose a slip or error; but, if possible, and 
 consistent with your duty to your own client, conceal that slip 
 ■or error as you would wish your own to be concealed. — War- 
 ren's Laxo Studies. 
 
 SHOET AND SHAEP. 
 
 The minds of very few men are patient of a long or thorough 
 investigation, even where the thing in conteniplation requires 
 it; much less will it be borne where the determinate quality of 
 the subject is lightness or velocity. For this reason, I have 
 aeen much impatience in a court, where a man of superior un- 
 derstanding, but of a deliberative turn, and slow of speech, has 
 been many minutes gravely combating the trivial position of 
 some artful adversary, who, though his inferior in every other 
 respect, knew he could conquer him in this. In such a case, to 
 what end served his profundity ? However valuable it might 
 be on other occasions, at this moment no man attended to it but 
 with pain and reluctance ; when ten words of a gay and lively 
 import would have abashed his adversary, and procured him a 
 triumph, five hundred have been uttered with prodigious labor 
 •only to produce him vexation and defeat. — Raithhy. 
 
 THE END. 
 
 And now, as a parting word of advice, let me ask the student 
 to bear in mind what Hamlet says in the following expressive 
 lines. Eemember that after your professional career is ended, and 
 your final exit made, however eminent you may have been 
 while living, it is possible that some i;infeeling grave-digger may 
 bang your skull without battery and jestingly proclaim you an 
 outlaw. 
 
 " "Vyhy may not that be the skull of a lawyer ? "Where be his 
 
400 SUGQBSTIOlSrS TO STUDENTS. 
 
 quiddits now, his quillets, his eases, his tenures, and his tricks ? 
 why does he suifer this rude knave now to knock him about 
 the sconce with a dirty shovel, and will not tell him of his ac- 
 tion of battery ? Humjjh ! This fellow might be in's time a. 
 great buyer of land, with his statutes, his recognizances, his 
 fines, his double vouchers, his recoveries. Is this the fine of 
 his fines and the recovery of his recoveries, to have his fine pate 
 full of fine dirt ? "Will his vouchers vouch him no more of his 
 purchases, and double ones too, than the length and breadth of 
 a pair of indentures ? The very conveyances of his lands will 
 hardly lie in this box; and must the inheritor himself have na 
 more ? ha !" 
 
GLOSSAEY. 401 
 
 LAW TEEMS A'ET> MAXIMS. 
 
 A fortiori. 'By so much tlie stronger ; by a more powerful reason. 
 A mensa et thoro. " Prom bed and board." A divorce between 
 
 husband and wife, which does not make the marriage void ab 
 
 initio, or from the beginning. 
 A prendre, to take ; to seize. 
 A priori. From the former. 
 A verbis legis non est recedendum. From the words of the law 
 
 there should be no departure. 
 A vinculo matrimonii. From the bond of marriage. 
 Ab initio. From the beginning. 
 Ab origine. From the beginning. 
 Absoluta sententia expositore non indiget. An absolute, unqualified 
 
 sentence, or proposition, needs no expositor. 
 Actio accrevit. An action has accrued. 
 Actio personalis moritur cum persona. A personal action dies with 
 
 the person. 
 Actor sequitur forum rei. The plaintiif must follow the forum of 
 
 the thing in dispute. 
 Actus curice neminem gravabit. An act of the court shall preju- 
 dice no man. 
 Actus Dei neminem facit injuriam. The act of God does wrong to 
 
 no one; i. e., no one is responsible in damages for inevitable 
 
 accidents. 
 Adfinem litis. To the conclusion of the suit. 
 Ad idem. " To the same." To the like intent. 
 Ad infinitum. " To eternity." To the utmost. 
 Ad inquirendum. To make inquiry. 
 Ad libitum. At pleasure ; at will. 
 Ad litem. To (or in) the suit (or controversy). 
 Ad sectam. At the suit of. 
 
 26 
 
402 GLOSSAET. 
 
 Administrator de son tort. Administrator in his own wrong. 
 
 ^quitas agit in personam. Equity acts upon the person. 
 
 ^quitas sequitur legem. Equity follows the law. 
 
 Affectio tua nomen imponit operi tuo. Your motive gives a name 
 to your act. 
 
 Affirmantis est probatio. He who affirms must prove. 
 
 Alias ca. sa. Another writ to take (the person), to make satis- 
 faction. 
 
 Alias scire facias. " That you again cause to be informed." A 
 second writ of scire facias. 
 
 Alibi. " In another place." 
 
 Alibi natus. Born in another place. 
 
 Aliud est celare, aliud tacere. To conceal is one thing, to be silent 
 another. 
 
 Allegari non debuit quod prohatum non relevat. That ought not to 
 be alleged which, if proved, would not be relevant. 
 
 Ancient demesne. An ancient inheritance. 
 
 Animo furandi. "With intent to steal. 
 
 Animo lucrandi. With intention to gain a profit. 
 
 Animalia fercB naturae. Animals of a wild nature. 
 
 Animus hominis est anima scripti. The intention of the party is 
 the soul of the instrument. 
 
 Apices juris non sunt jura. Legal niceties are not laws. 
 
 Assumpsit. He undertook (or promised). 
 
 Assumpsit pro rata. He undertook agreeably to the proportion. 
 
 Autre droit. Another's right. 
 
 B. 
 
 Banco. " In bench." As " dies in banco," or days in which the 
 court sits. 
 
 Bancus ruptus. "A broken bank." Fromwhichthe word "bank- 
 rupt." 
 
 Baron etfeme. The husband and wife. 
 
 Benignius leges interpretandce sunt quo voluntas carum conservetur. 
 Laws are to be more favorably interpreted, that their intent 
 may be preserved. 
 
 Billa vera. A true bill. . 
 
 Bona fide. In good faith. 
 
 Bona fides exigit ut quod convenit fiat. G-ood faith demands that 
 what is agreed upon shall be done. 
 
 Bonus. A consideration given for what is received; a premium 
 paid to a grantor or vendor. 
 
GLOSSAEY. 403 
 
 C. 
 
 Capias " Tou may take." A writ authorizing the defendant's 
 arrest. 
 
 Capias ad computandum. That you take (defendant) to make 
 account. 
 
 Capias ad respondendum. That you take (defendant) to make 
 answer. 
 
 Capias ad satisfaciendum. That you take (defendant) to make 
 satisfaction. 
 
 Capias ad valentiam. That you take to the value. 
 
 Capias in withernam. That you take a reprisal. 
 
 Capias pro fine. That you take for a fine. 
 
 Causa causans. The moving cause. 
 
 Causa impotentice. On account of impotence. 
 
 Causa causce est causa causati. The cause of a cause is the cause 
 of the effect. 
 
 Causa mortis. On account of death ; in prospect of death. 
 
 Casus foederis. A cause which "comes within the terms of a com- 
 pact. 
 
 Caveat. That he beware ; a warning. 
 
 Caveat emptor. Let the purchaser beware. 
 
 Caveat venditor. Let the seller beware. 
 
 Cepi corpus. I have taken the body. 
 
 Certiorari. " To be certified of; to be informed of." A writ di- 
 recting the proceedings or record of a cause to be brought 
 before a superior court. 
 
 Cessante causa, cessat effectus. The cause ceasing, the effect must 
 cease. 
 
 Cestui que trusts. Persons for whose use another is seized of 
 lands, etc. 
 
 Cestui que use. A person for whose use land, etc., is given or 
 granted. 
 
 Cestui que vies. Persons for whose lives a gift or grant is made. 
 
 Chose in action. A thing in action. 
 
 Glausumfreg.it. He broke the close or field. 
 
 Commodum ex injuria sua non habere debet. No man ought to de- 
 rive any benefit of his own wrong. 
 
 Compensatio criminis. A compensation for crime. 
 Compos mentis. "Of sound mind." A man in such a state of 
 mind as to be qualified legally to sign .a will or deed, etc. 
 
404 GLOSSAEY. 
 
 Contra bonos mores. Against good morals . 
 
 Contractus legem ex conventione accipiunt. The agreement of the 
 
 parties makes the law of the contract. 
 Conventio vincit legem. The agreem.ent of the parties overcomes 
 
 or prevails against the law. 
 Corpora cepi. I have taken the bodies. 
 Covert. Married. 
 
 Crim. con. Illicit connection (adultery). 
 Cuilihet in arte sua perito est credendum. Credence should be given 
 
 to one skilled in his peculiar art. 
 Cujus est solum ejus est usque ad caelum. He who owns the soil 
 
 owns it up to the sky. 
 Culpa lata dolo cequiparatur. Gross neglect is equivalent to 
 
 fraud. 
 Currit tempus contra desides et sui juris contemptores. Time runs 
 
 against the slothful and those who neglect their rights. 
 Cy pres. By approximation. 
 
 D. 
 
 Damage feasant. Doing damage. 
 
 Data. " Things granted." We must proceed on certain" <ia<<2 ;" 
 that is, on matters previously admitted to be correct. 
 
 Datum. A thing granted ; a point fixed upon ; a first principle. 
 
 De bene esse. Conditionally. 
 
 De bonis non. Of goods not (administered). 
 
 De bonis non administrandis. Of goods unadministered, 
 
 De die in diem. From day to day. ' 
 
 De facto. Of the deed ; in fact. 
 
 De gratia. As a matter of grace or favor. 
 
 De jura judices, de facto juratores, respondent. The judges answer 
 concerning the law, the jury concerning the facts. 
 
 De jure — de facto. " From the law; from the fact." Sometimes 
 an offender is guilty the moment the wrong is committed; then 
 he may be said to be guilty " de facto." In other cases he is 
 not guilty until he be convicted by law; then he is guilty "de 
 jure." 
 
 De minimis non curat lex. The law does not notice trifling mat- 
 ters. 
 
 De novo. Anew ; afresh. 
 
 De prcesenti. Of the present time. 
 
 De son don. Of his gift. 
 
GLOSSAEY. 405 
 
 De son tort. "Of his own wrong." This was part of a plea 
 very similar to son assault demesne. 
 
 Debet et detinet. He owes and detains. 
 
 Debet quisjuri subjacere ubi delinquit. Everyone ought to be sub- 
 ject to the law of the place where he offends. 
 
 Debile fundamentum,faUit opus. Where there is a weak founda- 
 tion the work falls. 
 
 Defeasance. A conditional undertaking to annul the effect of a 
 bond, etc. 
 
 Delegata potestas non potest delegari. A delegated authority can- 
 not be again delegated. 
 
 Delictum. A fault, offence, or crime. 
 
 Detinet. He keeps. He detains. 
 
 Detinuit. He has detained. 
 
 Deus solus hceredem facere potest, non homo. G-od alone, and not 
 man, can make an heir. 
 
 Devastavit. He wasted. 
 
 Devastavit nolens volens. He wantonly (or wickedly) committed 
 waste. 
 
 Dicta. Sayings; remarks; observations. 
 
 Dies dominicus non est juridicus. Sunday is not a day in law. 
 ■ Discretio est discernere per legem quid sit justum. Discretion is to 
 discern through law what is right. 
 
 Distringas. That you distrain. 
 
 Divinatio non interprefatio est, quce omnino recedit a litera. It is a 
 guess, not interpretation, which altogether departs from the 
 letter. 
 
 Dolus circuitu non purgatur. Fraud is not purged by circuity. 
 
 Domesday — or Domesday Book. A book showing the tenures, 
 etc., of most of the lands in England, in the time of William 
 the Conqueror. 
 
 Dominium non potest esse in pendenti. The right of property can- 
 not be in abeyance. 
 
 Donatio. A gift ; a donation. ^ 
 
 Dormiunt aliqando leges, nunquam moriunter. The laws sometimes 
 sleep, but never die. 
 
 Droit des gens. The law of nations. 
 
 Duces tecum. "That you bring with you." A subpcBna, so 
 called, when the person is commanded to produce books, 
 papers, etc., to the court and jury. 
 
406 GLOSSAEY. 
 
 B. 
 m converse. On the other liand ; on the contrary. 
 Eat sine die. Let him go without day (or be discharged). 
 Elegit. " He has chosen." A judicial writ directed to the sheriff, 
 
 empowering him to seize one moiety of the defendant's lands 
 
 for damages recovered. 
 En ventre sa mere. In the womb. 
 Enciente. Pregnant. 
 Enumeratio unius est exdusio alterius. Specification of one thing 
 
 is an exclusion of the rest. 
 Error coram nobis. Error (lying) before us. 
 Error coram vohis. Error before you. 
 Error nominis nunquam nocet, si de identitate rei constat. Mistake 
 
 in the name never injures, if there is no doubt as to the identity 
 
 of the thing. 
 Error scribentis nocere non debet. An error made by a clerk 
 
 ought not to injure; a clerical error may be corrected. 
 Eruditus in lege. "Learned in the law;" a counsel. 
 Escrow. A deed or writing left with another, to be delivered on 
 
 the performance of something specified. 
 Estoppel. "A stop;" a preventive plea. 
 Estovers. Wood cut from a farm by the tenant, which by the ■ 
 
 common law he has a right to use on the estate for necessary 
 
 purposes. 
 Et ad hue detinet. And he still detains. 
 Et non alibi. And in no other place. 
 Ex cequo et bono. In equity and good conscience. 
 Ex contractu. By way of agreement. 
 Ex curia. Out of court. 
 Ex delicto. By (or from) a fault or offence. 
 Ex dolo malo non oritur actio. A right of action cannot arise out 
 
 of fraud. 
 Ex facto. Erom (or by) the deed. 
 Ex justa causa. Eor a good reason (or cause). 
 Ex lege. An outlaw. 
 Ex nudo pacto non oritur actio. 'So action arises on a contract 
 
 without a consideration. 
 Ex officio. Officially; by virtue of the office. 
 Ex parte materna. On the part of the mother. 
 Ex parte paterna. On the part of the father. 
 Ex parte qumrentis. On the part of the plaintiff. 
 
GLOSSAEY. 407 
 
 Ex post facto. Prom (or by) an after act. 
 
 Ex relatione. "By (or from) relation." Sometimes the words 
 mean "iy the information." 
 
 Ex tempore. Off hand (without delay or premeditation). 
 
 Ex tota materia emergat resolutio. The construction or explana- 
 tion should arise out of the whole subject-matter. 
 
 Ex visitatione Dei. From the visitation of God. 
 
 Exceptio probat regulam de rebus non exceptis. An exception 
 proves the rule concerning things not excepted. 
 
 Executor de son tort. "An exector of his own wrong;" one who 
 acts illegally in the office. 
 
 Exoneretur nunc pro tunc. Let him (or it) be now discharged, 
 instead of at some past time. 
 
 Expressa nocent, non expressa non nocent. Things expressed may 
 be prejudicial ; things not expressed, are not. 
 
 P. 
 
 Fac simile. Do the like ; a close imitation. 
 
 Facias. That you do (or cause to be done). 
 
 Factum negantis nulla probatio. 'Eo proof is incumbent on him 
 who denies a/ fact. 
 
 Factum unius alteri nocere non debet. The deed of one should not 
 hurt another. 
 
 Falsa demonstratio non nocet. A false description does not vitiate. 
 
 Falsare curiam. To deceive the court. 
 
 Falsus in una, falsus in omnibus. False in one thing, false in 
 everything. 
 
 Felo de se. A suicide ; a self-murderer. 
 
 Feme covert. A married woman. 
 
 Feme sole. An unmarried woman. 
 
 Feme sole sub mode. A single woman to a certain extent. 
 
 Feoffare. To enfeoff, or grant in fee. 
 
 Feudum. A fee ; land held in fee simple. 
 
 Fiat. Let it be done. 
 
 Fiatjustitia mat caelum. Let justice be done, though the heavens 
 should fall. 
 
 Fictio legis neminem Icedit. A fiction of law injures no one. 
 
 Fief. "A fee." What we call a fee is, in other countries, the 
 contrary to chattels. In Germany, certain districts or territo- 
 ries are called "Fiefs," where there are Fiefs of the Empire. 
 Fieri. To be made or done. 
 
408 GLOSSARY. 
 
 Fieri facias. That you cause to be made or done, or levied. A 
 writ of execution so called. 
 
 Flotsam. Goods floating on the sea. 
 
 Forma legalis. A legal form. 
 
 Forum. A court or place of justice. 
 
 Frank-almoign. A free gift. 
 
 Fraus est celare fraudem. It is fraud to conceal fraud. 
 
 Fraus est odiosa et nan prcesumenda. Fraud is odious and not to 
 be presumed. 
 
 Furiosi nulla voluntas est. A madman has no will. 
 
 Furiosus solo furore punitur. A madman is punished by his mad- 
 ness alone. 
 
 G. 
 
 Gavelkind. A peculiar tenure of land. 
 
 Generale nihil certum implicat. A general expression implies 
 
 nothing certain. 
 Guardian ad litem. A guardian in the suit. 
 
 H. 
 
 Habeas corpora. That you have the bodies. 
 
 Habeas corpus. " That you have the body." The great writ of 
 
 the people's liberty. 
 Habeas corpus ad respondendum. That you have the body to 
 
 answer. 
 Habeas corpus ad satisfaciendum. That you have the body to 
 
 make satisfaction. 
 Habeas corpus ad testificandum. That you have the body to give 
 
 evidence. 
 Habeas corpus cum causa. That you have the body with the 
 
 cause (why he is arrested). 
 Habendum et tenendum. To have and to hold. 
 Habere facias possessionem. That you cause to take possession. 
 Habere facias seisinam. That you cause to have the possession. 
 Hceredum appellatione veniunt hceredes hceredum in infinitum. By 
 
 the title of heirs come the heirs of heirs to infinity. 
 Hceres hceredis mei est meus hceres. The heir of my heir is my heir. 
 Hominum causa jus constitutum est. Law is established for the 
 
 benefit of man. 
 
 I. 
 
 Id certum est quod certum reddi potest. That is certain which may 
 be rendered certain. 
 
G-LOSSAEY. 409 
 
 Idem dies. The same day ; a like day. 
 
 Idem estfacere, et nolle prohibere cum possis. It is the same thing 
 to do a thing as not to prohibit it wlien in your power. 
 
 Ignoramus. "We are ignorant." A word written on a bill of 
 indictment when the evidence is insufiicicnt to put the accused 
 on his trial. 
 
 Ignorantia facti excusat, ignorantia juris non excusat. Ignorance 
 of facts excuses; ignorance of law does not excuse. 
 
 Ignorantia legis neminem excusat. Ignorance of law excuses no one. 
 
 Imparlance. A time granted by the court for the defendant to 
 plead. 
 
 Impossibilium nulla ohligatio est. There is no obligation to per- 
 form impossible things. 
 
 Impotentia excusat legem. Impossibility is an excuse in the law. 
 
 In articulo mortis. At the point of death. 
 
 In autre droit. In right of another. 
 
 In banco regis. In the King's Bench. 
 
 In capite. In chief. Lands held "in capite" are those held of 
 the chief lord of the fee. 
 
 In colloquio. In a discourse. 
 
 In criminalibus, probationes debent esse luce clariores. In criminal 
 cases the proofs ought to be clearer than the light. 
 
 In delicto. In an offence, or in default. 
 
 In dominio suo. In his demesne or lordship. 
 
 In dorso. On the back. 
 
 In dubiis. In doubtful cases. 
 
 In esse. In being. 
 
 In extenso. At large ; to the extent. 
 
 In eoctremis. In the last moments ; near death. 
 
 In infinitum. To infinity; time without end. 
 
 In invitum. Against an unwilling party, by operation of law. 
 
 Injure non remota causa, sed proxima spectatur. In law, the prox- 
 imate and not the remote cause is to be looked to. 
 
 In loco parentum. In the place of the parents. 
 
 In maleficiis voluntas spectatur non exitus. In offences, the inten- 
 tion is regarded, not the event. 
 
 In mortua manu. In mortmain ; in a dead hand or possession. 
 
 In omnibus obligationibus, in quibus dies non ponitur, prassenti die 
 debetur. In all obligations, when no time is fixed for the pay- 
 ment, the thing is due immediately. 
 
 In pais. In the country. 
 
410 GLOSSAEY. 
 
 In pari delicto. In a like offence (or crime). 
 
 In pari delicto melior est conditio possidentis. "When the parties are, 
 
 equally in the wrong, the condition of the possessor is better. 
 In presenti. At the present time. 
 In propria jure. In (his) proper (or peculiar) right. 
 In propria persona. In his own person; in personal attendance. 
 In re. In the matter of. 
 In re dubia magis inficiatio quam affirmatio intelligenda. In a 
 
 doubtful matter the negative is to be understood rather than, 
 
 the af&rmative. 
 In rem. To or against the property; to the point. 
 In rerum natura. In the nature (or order) of things. 
 In stirpes. To the stock or lineage. 
 In suo jure. In his own right. 
 In terrorem. By way of terror (or warning). 
 In toto. In the whole; altogether; entirely. 
 In transitu. " In the passage." Merchandise is said to be " in 
 
 transitu" while on its way to the consignee. 
 In vadio. In pledge. 
 In ventre sa mere. In its mother's womb. 
 Incipitur. It is begun. 
 Infeudare. To enfeoff; grant in fee. 
 
 Injuria non excusat injuriam. A wrong does not excuse a wrong. 
 Injuria propria non cadet in heneficium facientis. l^o one shall 
 
 profit by his own wrong. 
 Inscriptum. An endorsement. 
 Intentio mea imponit nomen operi meo. My intent gives a name 
 
 to my act. 
 Inter mcenia. Within the walls; within the domicile. 
 Inter nos. Between ourselves; that is, (inter nos,') to keep a, 
 
 secret. 
 Interpretatio fienda est ut res magis valeat quam pereat. Such a 
 
 construction is to be made that the subject may have an effect 
 
 rather than none. 
 Interregnum. A space between two reigns. 
 Interregnum quare clausum f regit ? In the mean time, why did h& 
 
 break the close ? 
 Ipso facto. By the fact itself; positively. 
 Ipso jure. By the law itself, or by that right. 
 Ira furor hrevis est. Anger is a short insanity. 
 Ita lex scripta. So the law is written. 
 
GLOSSAEY. 411 
 
 J. 
 
 Jetsam. Groods thrown into the sea. 
 
 Judex cequitatem semper spectare debet. A judge ought always tO' 
 regard equity. 
 
 Judici officium suum excedenti non paretur. To a judge who ex- 
 ceeds his ofHce or jurisdiction no obedience is due. 
 
 Judicis est jus dicere non dare. It is the duty of a judge to de- 
 clare the law, not enact it. 
 
 Judicia posteriora sunt in lege fortiora. The latter decisions are 
 stronger in law. 
 
 Jura in re. Eights in the matter or thing. 
 
 Jura personarum. The rights of persons. 
 
 Jura publica ante ferenda privatis. Public rights are to fee pre- 
 ferred to private. 
 
 Jura rerum. The rights of things. 
 
 Juratores sunt judicesfacti. Jurors are the judges of the facts. 
 
 Jure divino. By right divine. 
 
 Jure gentium. By the law of nations. 
 
 Jure humano. By human law (or right). 
 
 Jure mariti. In right of the husband. 
 
 Jure naturce. By the law of nature. 
 
 Jure uxoris. In right of the wife. 
 
 Jus ad rem. A right to the property. 
 
 Jus civile. The civil (or municipal) law. 
 
 Jus ex injuria non oritur. A right cannot arise from a wrong. 
 
 Jus in re. The right in the property. 
 
 Jus suum. His own right. 
 
 Justitia non est neganda, non differenda. Justice is not to be de- 
 nied nor delayed. 
 
 L. 
 
 Laches. Neglect; supineness. 
 
 Zata culpa dolo cequiparatur. Gross negligence is equal to fraud. 
 JJeges posteriores priores contrarias abrogant. Subsequent laws re- 
 peal prior conflicting ones. 
 Levari facias. That you cause to be levied. 
 Levari facias de bonis. That you cause to be levied of the goods.. 
 Lex dilationes semper exhorret. The law always abhors delay. 
 Lex est dictamen rationis. Law is the dictate of reason. 
 Lex est norma recti. Law is a rule of right. 
 Lex fori. The law of the court. 
 
412 GLOSSAEY. 
 
 Lex neminem cogit ad vana seu inutilia peragenda. The law 
 forces no one to do vain or useless things. 
 
 Xex nemini facit injurianom. The law does wrong to no one. 
 
 JJex non scripta. The unwritten or common law ; that which has 
 been received from time immemorial by tradition. 
 
 Jjex scripta. The written or statute law. 
 
 Lex semper dabit remediwn. The law will always give a remedy. 
 
 Lex semper intendit quod convenii rationi. The law always in- 
 tends what is agreeable to reason. 
 
 Lex talionis. The law of requital in kind : "An eye for an eye," 
 etc., as in the Mosaic law. 
 
 Lex uno ore omnes alloquitur. The law speaks to all with one 
 mouth. 
 
 Libelli famosi. Libels; infamous writings. 
 
 Libellus sine scriptis. An unwritten libel. 
 
 Liber homo. A free ijian. 
 
 Liberari facias. That you cause to be delivered. 
 
 Loco parentis. In the place of the parent. 
 
 Locus contractus regit actum. The place of the contract governs 
 the act. 
 
 Locus penitenticB. A place of repentance ; a power of drawing 
 back from a contract or bargain before any act is done to con- 
 firm it in law. 
 
 L. S. — Locus sigilli. The place of the seal. 
 
 Longa patientia trahitur ad consensum. Long sufferance is con- 
 strued as consent. 
 
 Longa possessio est pads jus. Long possession is the law of peace. 
 
 M. 
 
 -Magna Charta. The Great Charter. The bulwark of English 
 liberty. 
 
 Magna culpa dolus est. Great neglect is equivalent to fraud. 
 
 Mahemium est homicidium inchoatum. Mayhem is incipient hom- 
 icide. 
 
 Majori summoe minor inest. The lesser is included in the greater. 
 
 Mala fide. In bad faith; with intent to deceive. 
 
 Mala prohibita. Wrongs forbidden (by common law). 
 
 Malfeasance. Doing wrong; a bad act. 
 
 Malo animo. With bad intentions. 
 
 Malum in se. Bad in itself; wrong in its own nature. 
 
 Malum prohibitum. A prohibited offence. 
 
GLOSSAEY. 4ia 
 
 Mandamus. "We command.'' A peremptory writ, issued for 
 many purposes. 
 
 ■Manuforti. With a strong hand ; by violence. 
 
 Matrimonium subsequens tollitpeccatum prcecedens. A subsequent, 
 marriage cures preceding criminality. 
 
 Melior est causa possedentis. The cause of the possessor is pre- 
 ferable. 
 
 Melior est conditio defendentis. The cause of the defendant is the. 
 better. 
 
 Mesne. " Middle j intervening." The middle between two ex- 
 tremes, and that either in time or dignity. 
 
 Misfeasance. A misdeed. 
 
 Mode et forma. In manner and form. 
 
 Modica circumstantia facti jus mutat. A small circumstance at- 
 tending an act may change the law. 
 
 Mortmain — Manus mortua. A dead hand, or an unchangeable- 
 possession. 
 
 Mutatis mutandis. The necessary changes. 
 
 ]sr. 
 
 Narratio, often abbreviated Narr'. A declaration ; a count. 
 
 Naufrage. Shipwreck. 
 
 Nemo contra factum suum venire potest. No man can contradict. 
 his own deed. 
 
 Nemo debet rem suam sine facto ant defectu suo amiitere. No one 
 should lose his property without his act or negligence. 
 
 Nemo est hceres viventis. No one is an heir to the living. 
 
 Nemo ex propria dolo consequitur actionem. No one acquires a 
 right of action from his own wrong. 
 
 Nemo plus juris ad alienum transferre potest, quam ipse habet. One 
 cannot transfer to another a larger right than he himself has. 
 
 Nemo potest facere per obliquum quod non potest facere per direc- 
 tum. No one can do that indirectly which cannot be done 
 directly. 
 
 Nemo tenetur se ipsum accusare. No one is bound to accuse him- 
 self. 
 
 Nihil debet. He is not indebted. 
 
 Nihil dicit. He says nothing. 
 
 Nihil habit forum ex scena. The court has nothing to do with 
 what is not before it. 
 
 Nihil quod est contra rationem est licitum. Nothing against reasoru 
 is lawful. 
 
414 GLOSSAEY. 
 
 -Nil debet. " He owes nothing." The usual plea in an action of 
 
 debt. 
 Nil debit in assumpsit. He is not indebted in (the action of) as- 
 sumpsit. 
 Nil dicit. He says nothing. 
 -Nolle prosequi. " To be unwilling to proceed." Generally used 
 
 in criminal cases, when further proceedings are discontinued. 
 Non cepit. He did not take. 
 
 Non compos mentis. ilSTot of sound mind ; in a delirium of lunacy. 
 Non damnificatus. Not damnified ; not injured. 
 Non deberet alii nocere, quod inter alios actum esset. No one ought 
 
 to be injured by that which has taken place between other 
 
 parties. 
 -Non debet. He does not owe. 
 Non decepitur qui scit se decipi. He is not deceived who knows 
 
 himself to be deceived. 
 Non differunt quce concordant re, tametsi non in verbis iisdem. Those 
 
 things which agree in substance, though not in the same 
 
 words, do not differ. 
 Non est inventus. " He is not found." The return made by a 
 
 sheriff when the defendant is not found in his county. 
 Non est regula quin fallat. There is no rule but what may fail. 
 Non omne damnum inducit injuriam. 'Not every loss produces an 
 
 injury. 
 Non pros'. He will not prosecute. 
 
 Non prosequitur. He does not proceed ; he is nonsuited. 
 Non refert an quis assensum suum prcefert verbis, an rebus ipsis et 
 
 factis. It is immaterial whether a man gives his assent by 
 
 words or by acts and deeds. 
 Non refert quid notum sitjudici, si notum non sit in forma judidi. It 
 
 matters not what is known to the judge, if it is not known to 
 
 him judicially. 
 Non refert verbis an factis fit revocatio. It matters not whether 
 
 a revocation be by words or by acts. 
 Non sum informatus. I am not informed ; I am ignorant. 
 Non tenuit. He did not occupy (or hold). 
 Nonfeasance. Non-performance. 
 Nuda pactio obligationem non parit. A naked promise- does not 
 
 create an obligation. 
 Nudum pactum. A bare (or naked) contract; one not binding in 
 
 law. 
 
GLOSSAEY. 415 
 
 Mzl assets ultra. K'o further effects. 
 
 JVul tiel corporation. No such cor23oration. 
 
 ■JVul tiel record. "Ko such record." This is part of the plaintiff's 
 rejoinder that there is no such record, where the defendant 
 alleges matter of record in bar of the plaintiff's action. 
 
 Wul tort. "'No wrong.'' A plea in a real action that no wrong 
 was done, and is a species of the general issue. 
 
 Nulla bona. No effects. 
 
 Nullus videtur dolo facere q%n suo jure utitur. No man is to be es- 
 teemed a wrongdoer who avails himself of his legal right. 
 
 JNunc pro tunc. " Now for that time." These words are fre- 
 quently used in legal or equitable proceedings, where some- 
 thing is permitted to be done "eo instanti" which should have 
 been performed some time before. 
 
 Nunquam res humance prospere succedunt ubi negliguntur divince. 
 Human things never prosper when divine things are neg- 
 lected. 
 
 0. 
 
 Omne actum ah intentione agentis est judicandum. Every act is to 
 be estimated by the intention of the doer. 
 
 Omne sacramentum debet esse de certa scientia. Every oath ought 
 to be founded on certain knowledge. 
 
 Omnes licentiam habere his quce pro se indulta sunt, renunciare. All 
 shall have liberty to renounce those things which have been 
 established in their favor. 
 
 Omnia proesumunter rite et solemniter esse acta. All things are pre- 
 sumed to have been rightly and regularly done. 
 
 Omnis exceptio est ipsa quoque regula. An exception is in itself 
 also a rule. 
 
 Omnis ratihabitio retro trahitur et mandato cequiparatur. Every sub- 
 sequent ratification has a retrospective effect, and is equivalent 
 to a prior command. 
 
 Opinio qucefavet testamento est tenenda. That opinion is followed 
 which favors the will. 
 
 Optima enim est legis interpres consuetude. Usage is the best in- 
 terpreter of law. 
 
 Origo rei inspici debet. The origin of a thing ought to be in- 
 quired into. 
 
 Ouster. A dispossession. 
 
 Overt. Open; public. 
 
416 GLOSSAEY. 
 
 Owelty. The difference whicli is paid or received by one copar- 
 cener to another, for tlie purpose of equalizing a partition. 
 Oyer et terminer. To hear and determine. 
 
 P. 
 
 .Parole. Yerbally. 
 
 Parum proficit scire quid fieri debet, si non cognoscas quomodo sit 
 facturum. It avails little to know what ought to be done, if 
 
 you do not know how it is to be done. 
 Pendente lite. Whilst the contest (or suit) is depending. 
 Per annum — per diem. By the year; by the day. 
 Per autre vie. For the life of another. 
 Per capita. " By the heads or polls ;'' a division, share and share 
 
 alike. 
 Per duellum. By single combat. 
 Per se. By himself, herself, or itself. 
 Per stirpes. By stock ; by lineage. 
 Per totam curiam. By the whole court. 
 Per verba de futuro. By words of future acceptation. 
 Per verba prcesenti. By words of the present time. 
 Per viam eleemosynce. By way of charity, or alms. 
 Pendente lite nihil innovetur. During litigation nothing should b© 
 
 changed. 
 Periculum rei venditce, nondum traditce, est emptoris. The purchaser 
 
 runs the risk of the loss of a thing sold, though not delivered. 
 Plena fides. Full credit. 
 Pluries. " Very often." Also the name of a third writ, after 
 
 two have issued against a defendant. 
 Plus peccat auctor quam actor. The instigator of a crime is worse 
 
 than he who perpetrates it. 
 Pone. " Put." The name of a writ or process in replevin. 
 Ponderantur testes non numerantur. "Witnesses are weighed, not 
 
 counted. 
 Posse comitatus. " The power of the county." Which the sheriff 
 
 is authorized to call out whenever an opposition is made to his 
 
 writ or to the execution of justice. 
 Post diem. -After the day. 
 Post mortem. After the death. 
 Post nati. After-born. 
 Post obit. After the death. 
 Post terminum. After the term. 
 
GLOSSAEY. 417 
 
 Postea. "Afterwards."- The name given to the endorsement 
 of the verdict made on the record. 
 
 Potentia non est nisi ad bonum. Power is not conferred but for 
 the public good. 
 
 Potest quis renunciare pro se, et suis,jus quod pro se introductum est. 
 A man may relinquish, for himself and those claiming under 
 him, a right which was introduced for his own benefit. 
 
 Prcecipe. Command. 
 
 Prcecipe in capite. A writ of right, so called. 
 
 Prcesumptio violenta, plena probatio. Violent presumption is full 
 proof. 
 
 Prima facie. On the first view or appearance of the business. 
 
 Prochein ami. The nearest friend. 
 
 Pro rata. According to the rate, proportion, or allowance. 
 
 Pro tanto. For so much. 
 
 Prohibetur ne quis faciat in suo quod nocere possit alieno. It is 
 prohibited to do on one's own property that which may in- 
 jure another's. 
 
 Pueri sunt de sanguine parentum, sed pater et mater non sunt de 
 sanguine puerorum. Children are of the blood of their parents, 
 but the father and mother are not of the blood of their children. 
 
 Pur autre vie. For the life of another. 
 
 Q. 
 
 Quce in curia acta sunt rite agi prcesumuntur. Whatever is done in 
 
 court is presumed to be rightly done. 
 Qucecunque intra rationem legis inveniuntur, intra legem ipsam esse 
 
 judicantur. Whatever appears within the reason of the law, 
 
 is considered within the law itself. 
 Quando aliquid mandatur, mandatur et omne per quod pervenitur ad 
 
 illud. When any thing is commanded, every thing by which 
 
 it can be accomplished is also commanded. 
 Quando lex aliquid alicui concedit, concedere videtur id sine quo res 
 
 ipsa esse non potest. When the law gives anything, it gives the 
 
 means of obtaining it. 
 Quando verba et mens congruunt, non est interpretationi locus. When 
 
 the words and the mind agree, there is no place for interpre- 
 tation. 
 Quantum damnificatus. Amount of damage. 
 Quantum valebat. As much as it was worth. 
 Quare clausum fregit ? Wherefore (or why) did he break the 
 
 close 1 27 
 
418 GLOSSAEY. 
 
 Quasi ex contractu. In nature of a contract. 
 Quasi ex delicto. As of an offence (or crime). 
 Quifacit per alium facit per se. He who acts by or through an- 
 other, acts himself. 
 Qui hceret in litera, hceret in cortice. He who adheres to the letter 
 
 adheres to the bark. 
 Qui jure sua utitur, nemini facit injuriam. He who uses his legal 
 
 rights harms no one. 
 Quid pro quo. A mutual consideration. 
 Quo animo. With what intent. 
 Quo warranto. "By what authority." The name of a writ 
 
 against a person who has usurped a franchise or office. 
 Quoad hoc. "With respect to this. 
 Quod ah initio non valet, in tractu temporis non convalescet. "What 
 
 is not good' in the beginning cannot be rendered good by time. 
 Quod alias nonfuit licitum necessitas licitum facit. Necessity makes 
 
 that lawful which otherwise were unlawful. 
 Quod detinuit. "Which he (or she) detains. 
 Quod initio vitiosum est non potest tractu temporis convalescere. 
 
 Time cannot render valid an act void in its origin. 
 Quod quis ex culpa sua damnum sentit, non intelligitur damnum 
 
 sentire. He who suffers damage by his own fault is not held 
 
 to suifer damage. 
 Quod quis sciens indehitum dedit hac mente, ut postea repeteret, re- 
 
 petere non potest. "What one has paid knowing it not to be due, 
 
 with the intention of recovering it back, he cannot recover 
 
 back. 
 Quousque debitum satisfactum fuerit. "Until the debt be satisfied. 
 
 R. 
 
 Batio legis est anima legis. The reason of the law is the soul of 
 
 the law. 
 Eectiis in curia. ""Untainted in court j" with clean hands. 
 Reddendum. To pay; to yield j to render. The reservation of 
 
 rent, etc., in a deed. 
 Registrum. A registry; a place for depositing wills, deeds, etc. 
 MemittituT. To restore (or send back). 
 Jteplegiari facias. That you cause to be replevied. 
 Bes inter alios judicatce nullum aliis pro^udicium faciant. Matters 
 
 adjudged in a cause do not prejudice those who were not parties 
 
 to it. 
 
GLOSSAEY. 419 
 
 Ses Integra. An entire (new or untouched) matter. 
 
 Hes judicata pro veritate accipitur. A thing adjudged must be 
 
 taken for truth. 
 Hescous. A rescue. 
 Besiduum. " The remainder." Frequently applied to that part 
 
 of the testator's estate not especially disposed of. 
 Bespondere non debet. He ought not to answer. 
 Betorna brevium. The return of writs. 
 Betorno habendo. That a return be had. 
 Beversetur. Let it be reversed. 
 Bex non potest peccare. The king can do no wrong. 
 Bex nunquam moritur. The king never dies. 
 
 S. 
 
 Sans issue. Without children. 
 
 Scienter. Knowingly; willfully. 
 
 Scientia utriusque par pares contrahentes facit. Equal knowledge 
 on both sides makes the contracting parties equal. 
 
 Scintilla. A tittle ; a spark. 
 
 Scire facias. That you make known. This is the name of a" 
 writ for many purposes, commanding the defendant to show 
 cause why a certain specific thing thould not issue on an old 
 judgment, etc. 
 
 Scire fieri. To be informed. 
 
 Scribere est agere. To write is to act. 
 
 Secta. A suitj litigation. Also, the pledges produced that the, 
 plaintiff should prosecute his claim. 
 
 Sed per curiam. But by the court. 
 
 Semble. It seems. 
 
 Semper qui non prohibit pro se intervenire, mandare creditur. He, 
 who does not prohibit the intervention of another in his be- 
 half is supposed to authorize it. 
 
 Sequestrari facias. That you cause to be sequestered. 
 
 Si judicas, cognosce. If you judge, understand. 
 
 Sine die. " "Without day." As, the court adjourned "sine die" — 
 no day being mentioned for sitting again. 
 
 Sine qua non. An indispensable condition. 
 
 Son assault. His own assault. 
 
 SponSalla. Marriage contracts. 
 
 Sponsio judicialis. A judicial agreement. 
 
 ss. (^Scilicet). To witj namely. 
 
420 GLOSSAEY. 
 
 Stabit proesumptio donee probetur in contrarium. A presumption 
 
 will stand good until the contrary is proved. 
 Stare decisis. To abide by or adhere to decided cases. 
 Statutum generaliter est intelligendum quando verba statuti sunt spe- 
 
 cialiajatio autem generalis. When the words of a statute are 
 
 special, but the reason of it general, it is to be understood 
 
 generally. 
 Stirpes. The stock; lineage; race. 
 Stricti juris. Of strict right (or law). 
 Sub flnem. Under a penalty. 
 Sub modo. Under a condition; within bounds. 
 Sub potestate viri Under the control of the husband. 
 Subpoena. "Under a penalty." A writ, so called, to procure 
 
 the attendance of witnesses. 
 Subpoena ad testificandum. A subpoena to give evidence. 
 Subpoena duces tecum. " Bring with you, under a penalty.'' The 
 
 name of a writ by which a witness is commanded to produce 
 
 something in his possession, to be given in evidence. 
 Subsidium justitioe. An aid to justice. 
 Suggestio falsi. A suggestion (or incitement) to falsehood or 
 
 wrong. 
 Sui generis. "Of his own kind;" not to be classed under any 
 
 ordinary description. 
 Sui juris. Of his own right. 
 Supersedeas. "You may remove or set aside." A writ so called, 
 
 to stay proceedings. 
 Supra protest. An acceptance of a bill after protest. 
 Suppressio veri, expressio falsi. Suppression of the truth is (eqiva-_ 
 
 lent to) the expression of what is false. 
 Sur trover et conversion. Upon trover and conversion. 
 
 Tenendum. " To hold." That clause in a deed wherein the ten- 
 ure of the land is created and limited. 
 
 Terminus. The end, limit, or boundary. Sometimea it means 
 the stock or root to which, by reference, the future succession 
 is to be regulated. 
 
 Terra transit cum onere. Land passes with the incumbrances. 
 
 Terre tenant. The tenant who occupies the land; he who has 
 the actual possession. 
 
 Testari. To be witnessed. 
 
GLOSSAEY. 421 
 
 Testatum. It is testified. 
 
 Testatum capias. That you take the person testified (or to have 
 
 been proceeded against elsewhere). 
 Testatum fieri facias. That you cause the testified writ to be 
 
 executed. 
 Testatum pluries. A testified process issued more than twice. 
 Teste. The date ; the supposed issuing of process. 
 Testis de visu prceponderat aliis. An eye-witness outweighs 
 
 others. 
 Tort. A wrong; an injury. 
 Tort-feasor. A wrong-doer; a trespasser. 
 Traditio loquifacit chartavi Delivery makes the deed speak. 
 Trespass, quare clausum fregit. Trespass, wherefore he broke 
 
 the close. 
 Trespass vi et armis, de uxore rupta et ahducta. Trespass with 
 
 force and arms, concerning a wife taken and carried away. 
 Triatio ibi semper debet fieri, ubi juratores meliorem possunt habere 
 
 notitiam. Trial ought always to be had where the jury can 
 
 have the best knowledge. 
 Tutius erratur ex parte mitiori. It is safer to err on the side of 
 
 mercy. 
 
 U. 
 
 Ubi jus, ibi remedium. Where there is a right there is a remedy. 
 Ubi jus incertum, ibi jus nullum. Where the law is uncertain 
 
 there is no law. 
 Ubi pugnantia inter se in testamento juberentur, neutrum ratum est. 
 
 When two directions conflicting with each other are given in 
 
 a will, neither is held valid. 
 Ubi quis delinquit ibi punietur. Let a man be punished where he 
 
 commits the offence. 
 Ubi verba conjuncta non sunt, sufflcit alterutrum esse factum. Where 
 
 words are used disjunctively, it is sufficient that either one of 
 
 the things enumerated be performed. 
 Ultra mare. Beyond sea. 
 Usance. Usury; interest. 
 
 V. 
 
 Vacatur. It is set aside ; vacated. 
 
 Yani timoris justa excusatio non est. A frivolous fear is not a 
 
 legal excuse. 
 Venditioni exponas. That you expose to sale 
 
422 G-LOSSAEY. 
 
 Venire. To come. 
 
 Venire ad respondendum. To come to make answer. 
 
 Venire do nave. To come anew. 
 
 Venue. The place from which the jury come. 
 
 Verba intentioni, non e contra, debent inservire. Words ought to 
 be made subservient to the intent, not contrary to it. 
 
 Vi et armis. By force and arms ; by unlawful means. 
 
 Via antiqua via est tuta. The old way is the safe way. 
 
 Vicarius non habet vicarium. A deputy cannot appoint a deputy. 
 
 Vice versa. On the contrary. 
 
 Vicini vicinora prcesumuntur scire. Neighbors are presumed to 
 know things of the neighborhood. 
 
 Vinculo matrimonii. In the bond of wedlock. 
 
 Vis legibus est inimica. Force is inimical to the laws. 
 
 Vitium clerici nocere non debet. Clerical errors ought not to pre- 
 judice. 
 
 Viva voce. Verbally. 
 
 Voir dire. Witnesses are sometimes examined upon "voir dire" 
 previously to their being examined in chief; this is done to 
 ascertain whether they are interested in the cause at issue, or 
 labor under any other incapacity which may render them, in- 
 competent to give evidence. 
 
 Volenti non fit injuria. He who consents cannot receive an injury. 
 
 Vox emissa volat, litera scripta manet. Words spoken vanish 
 words written remain. 
 
TABLE OF BRITISH REGML TEARS. 
 
 SOVEREIGNS. 
 
 William I 
 
 William II 
 
 Henry I..: 
 
 Stephen 
 
 Henry II 
 
 Richard I 
 
 John 
 
 Henry III 
 
 Edward I 
 
 Edward II 
 
 Edward III 
 
 Eichard II 
 
 Henry IV 
 
 Henry V 
 
 Henry VI 
 
 Edward IV 
 
 Edward V 
 
 Eichardlll 
 
 Henry VII 
 
 Henry VIII 
 
 Edward VI 
 
 Mary 
 
 Elizabeth 
 
 James I 
 
 Charles I 
 
 The Commonwealth 
 
 Charles II 
 
 James II 
 
 William and Mary.... 
 
 Anne 
 
 George I 
 
 George II 
 
 George III 
 
 George IV 
 
 William IV 
 
 Victoria 
 
 Commencement 
 
 1— (f^ 
 
 
 of Reign. 
 
 21 
 
 
 Oct. 24, 1066. 
 
 Maurice. 
 
 Sept. 26, 1087. 
 
 13 
 
 
 Aug. 5, 1100. 
 
 86 
 
 
 Dec. 26, 1135. 
 
 19 
 
 
 Dec. 19, 1154. 
 
 35 
 
 Glanville. 
 
 Sept. 23, 1189. 
 
 10 
 
 
 May 27, 1199. 
 
 18 
 
 
 Oct. 2fe, 1216. 
 
 57 
 
 Bracton.. 
 
 Nov. 20, 1272. 
 
 35 
 
 
 July 8, 1307. 
 
 20 
 
 
 Jan. 25, 1326. 
 
 51 
 
 
 June 22, 1377. 
 
 23 
 
 Arundel. 
 
 Sept. 80, 1399. 
 
 14 
 
 
 Mar. 21, 1413. 
 
 10 
 
 
 Sept. 1, 1422. 
 
 39 
 
 Portescue. 
 
 Mar. 4, 1461. 
 
 23 
 
 Littleton. 
 
 April 9, 1483. 
 
 
 
 June 26, 1483. 
 
 3 
 
 
 Aug. 22, 1485. 
 
 24 
 
 
 April 22, 1509. 
 
 88 
 
 Wolsey. 
 
 Jan. 28, 1547. 
 
 7 
 
 
 July 6, 1553. 
 
 6 
 
 
 Nov. 17, 1558. 
 
 45 
 
 Bacon. 
 
 Mar. 24, 1603. 
 
 23 
 
 Coke. 
 
 Mar. 27, 1625. 
 
 24 
 
 
 Jan. 30, 1649. 
 
 11 
 
 Hale. 
 
 May 29, 1660. 
 
 37 
 
 Clarendon. 
 
 Feb. 6, 1685. 
 
 4 
 
 Jeffreys. 
 
 Feb. 13, 1 689. 
 
 14 
 
 
 Mar. 8, 1702. 
 
 13 
 
 Holt. 
 
 Aug. 1, 1714. 
 
 13 
 
 Hardwicke 
 
 June 11, 1727. 
 
 34 
 
 Mansfield. 
 
 Oct. 25, 1760. 
 
 60 
 
 Blackstone 
 
 Jan. 29, 1820. 
 
 11 
 
 Eldon. 
 
 June 26, 1830. 
 
 7 
 
 Brougham. 
 
 June 20, 1837. 
 
 — 
 
 Denman. 
 
424 CHIEF JUSTICES. 
 
 CHIEF JUSTICES 
 
 OF THE SUPREME OOUKT OE THE tlNITED STATES, 
 EKOM MAKCH 4th, 1789. 
 
 John Jay, of New York, appointed by the President, with the 
 advice and consent of the Senate, September 26th^ 1789. 
 ISTominated 16th, and confirmed 19th, of April, 1794^ Envoy 
 ■ Extraordinary to England. Eesigned as Chief Justice. 
 
 John Eutledge, of South Carolina, appointed July 1st, 1795, in 
 recess of Senate^ in place of Jay, resigned, and presided on 
 the bench at the August term, 1795. Nominated 10th, and 
 rejected by the Senate 15th December, 1795. 
 
 William Gushing, of Massachusetts. Nomination confirmed and 
 appointed, etc., January 27th, 1796, in place of Jay. De- 
 clined the appointment. He was then an Associate Justice. 
 
 Oliver Ellsworth, of Connecticut. Nomination confirmed 
 and appointed, etc., March 4th, 1796, in place of Cushing, 
 declined. Appointed Envoy Extraordinary and Minister 
 Plenipotentiary to Prance, February 27th, 1799. Presided 
 on the Bench at the August term, 1799. Proceeded on his 
 mission to Prance November 3d, 1799^ resigning as Chief 
 Justice. 
 
 John Jay, Governor of New York. Nomination confirmed and 
 appointed, etc., December 19th, 1800, in place of Ellsworth, 
 resigned. Declined the appointment. 
 
 John Marshall, Secretary of State. Nomination confirmed 
 27th, and appointed, etc., January 31st, 1801, in place of 
 Jay, declined. Died in 1835. 
 
CHIEF JUSTICES. 425 
 
 EoGER B. Taney, of Maryland. Nomination confirmed and ajj- 
 pointed, etc., March 15th, 1836, in place of Marshall, de- 
 ceased. Died in 1864. 
 
 Salmon P. Chase, of Ohio. Nomination confirmed, appointed, 
 etc., December 6th. 1864. Died in December, 1873. 
 
 Morrison E. "Waite, of Ohio. Nominated January 19th, 1874, 
 and nomination confirmed, appointed, etc., in February, 
 
•#s