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diff --git a/old/33088-8.txt b/old/33088-8.txt deleted file mode 100644 index f4388fa..0000000 --- a/old/33088-8.txt +++ /dev/null @@ -1,12374 +0,0 @@ -The Project Gutenberg EBook of Putnam's Handy Law Book for the Layman, by -Albert Sidney Bolles - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: Putnam's Handy Law Book for the Layman - -Author: Albert Sidney Bolles - -Release Date: July 5, 2010 [EBook #33088] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK PUTNAM'S HANDY LAW BOOK *** - - - - -Produced by Jeannie Howse, Juliet Sutherland and the Online -Distributed Proofreading Team at http://www.pgdp.net - - - - - - - * * * * * - - +-----------------------------------------------------------+ - | Transcriber's Note: | - | | - | Inconsistent hyphenation in the original document has | - | been preserved. Bolded text is represented =like so=. | - | | - | Obvious typographical errors have been corrected. For | - | a complete list, please see the end of this document. | - | | - +-----------------------------------------------------------+ - - * * * * * - - - - - BY ALBERT SIDNEY BOLLES, - PH.D., LL.D. - - THE MODERN LAW OF BANKING - BANKS AND THEIR DEPOSITORS - BANK OFFICERS - BANK COLLECTIONS - THE NATIONAL BANK ACT AND ITS JUDICIAL INTERPRETATION - - - - -Putnam's Handy Law Book -for the Layman - - - - -Putnam's -Handy Law Book -for the Layman - - -By - -Albert Sidney Bolles, Ph.D., LL.D. - -Formerly Professor of Commercial Law and Banking in the -University of Pennsylvania, also Lecturer on the -Same Subjects in Haverford College - - - - -G.P. Putnam's Sons -New York and London -The Knickerbocker Press - - - - -Copyright, 1921 -by -Albert Sidney Bolles - -Published September, 1921 -Reprinted December, 1921 - " March, July, 1922 - " April, 1923 - - -[Illustration] - -Made in the United States of America - - - - -FOREWORD - - -What useful purpose can this book serve? Most of the laws under which -we live are kept, not from knowing them, but because the good sense of -individuals leads them along legal ways. Yet in many cases their good -sense fails to discover the right way. Thus, the receiver of a check -on a bank must present it within a reasonable time after receiving it, -and if he keeps it longer the risk of loss, should the bank fail, is -his own. What is this reasonable time? One man says three days, -another a week, another a month. So one's common sense fails to -establish a definite reasonable time. It is needful to have the time -fixed, and the law therefore has established a reasonable time. There -are many cases like this in which one's common sense fails to furnish -a correct, yet needful guide. - -This little book contains many of the legal principles that are in -most frequent use, as readers will learn who carefully read it. Again, -if they do not always find an answer to their questions, it is -believed that in many cases they will find enough law of a general -nature from which they can safely solve their questions. They are -therefore besought to do something more than merely consult this book -for the purpose of finding ready and complete answers to their -questions, to read it and become familiar with its contents. - -Besides the law presented here the reader should learn to be cautious, -and not trust too much his own judgment when no rule can be found for -his guidance. Many a person has written his own will, as he has a -right to do, and after giving a legacy to a relative or friend has -nullified the gift by having the legatee, through the testator's -ignorance, sign as a witness. The writer knew a railway president who -had the temerity to draw the writing containing an important contract -between his railroad and another, and who, by unintentionally putting -a comma in the wrong place, made his road instead of the other -responsible for large losses. If this book shall make the reader -cautious concerning the legality of his undertakings, it will be worth -to him many times its price. - - A.S.B. - - - - -CONTENTS - - - PAGE - - EXPLANATION OF TERMS 1 - - ADOPTED CHILD 5 - - AGENCY 6 - - AGREEMENT TO PURCHASE LAND 15 - - AUCTIONEER 16 - - AUTOMOBILE 19 - - BAILOR AND BAILEE 26 - - BANKRUPTCY 31 - - BENEFICIAL ASSOCIATIONS 38 - - BROKER 45 - - CARRIER 48 - - CHATTEL MORTGAGE 52 - - CHAUFFEUR 57 - - CHECK 58 - - CITIZEN 62 - - CONTRACTS 64 - - CORPORATIONS 72 - - CURTESY 101 - - DECEIT 102 - - DEEDS 104 - - DIVISIONAL TREE 113 - - DOWER 113 - - DRUNKENNESS 116 - - EQUITABLE REMEDIES 118 - - FACTOR 123 - - FIRE INSURANCE 124 - - FIXTURES 132 - - GARAGE KEEPER 133 - - HOMESTEAD 135 - - HUSBAND AND WIFE 137 - - INNKEEPER 147 - - LAND LICENSE 149 - - LEASE 151 - - LEGAL REMEDIES 164 - - LIFE INSURANCE 167 - - MINOR 176 - - MORTGAGE 177 - - NEGOTIABLE PAPER 183 - - PARENT AND CHILD 197 - - PARTNERSHIP 198 - - PATENT 202 - - PAYMENT 211 - - PRESCRIPTIVE RIGHTS 214 - - QUASI CONTRACTS 218 - - SALE 227 - - SHIPPING 235 - - STATUTE OF FRAUDS 242 - - STATUTES OF LIMITATION 243 - - TELEGRAPH AND TELEPHONE 246 - - TORTS OR WRONGS 248 - - WARRANTY 260 - - WILL 262 - - WORKMEN'S COMPENSATION ACTS 266 - - LEGAL FORMS FOR EVERYDAY USE 277 - - INDEX 321 - - - - -Putnam's Handy Law Book for the Layman - - -=Explanation of Terms.=--At the outset the explanation of a few terms, -often used, may be helpful to the reader. Among these are the terms -statute and common law. Statute law or statutes mean the laws enacted -by the state legislature and by the federal congress. Common law means -the decisions made by the state and federal courts. These decisions -may relate to the interpretation and application of statutes, or to -the application of former decisions or precedents, or to the -qualification and application of them, or to the making and -application of new rules or principles where none exist that are -needed to decide the case in hand. - -It is a rule of the most general application that legal decisions are -precedents which are to be followed in other cases of the same -character. The decisions of the highest court in each state must be -followed by the lower courts, but no courts in any state are obliged -to follow the decisions of the courts in any other state. The courts -in every state must also follow the decisions of the federal courts in -all matters of a national character. Thus if a federal court decides -the meaning or interpretation of a federal statute, a state court must -follow the interpretation in a case requiring the application of that -statute. - -Again, common law decisions are not binding on the courts that make -them like statutes or legislative commands. A decision may be modified -or set aside when it is regarded as no longer applicable to the -present condition of things. It may also be set aside or changed by -legislative action. The common law is therefore always slowly changing -like the ocean and is never at rest. - -The common law forms much the largest part of the great body of law -under which we live. This book is a collection chiefly of common law -principles; a few statutes are interwoven here and there to complete -the subjects presented. - -The distinction also between civil and criminal law requires -explanation. Nearly all criminal law is founded on statutes, in other -words the statutes, state and federal, define nearly all legal crimes -known to society. It is therefore true that the field of crime is not -fixed, is in truth always changing. Thus formerly if a man bought -goods on credit of another on the statement that he was worth fifty -thousand dollars and the seller afterward learned that he was not -worth fifty cents, the seller could sue the buyer to recover the value -of the goods and for any additional loss, but could do no more. Many, -perhaps all the states, now declare by statute that such an act is a -crime, and the offender can be prosecuted by the state and fined or -imprisoned or both. And the wrongdoer may still be sued in a civil -action for the loss to the seller as before. - -All crimes are prosecuted by the officers of the state chosen or -appointed for that purpose. Again, as in the case mentioned, the -wrongful act has a double aspect. An individual who has been wronged -may proceed against the wrongdoer to recover his loss; the state also -has been wronged and may also proceed against him. A good illustration -is a bank defaulter. The bank may proceed through a court of law to -recover the money lost by him, or from those who have promised to make -the bank good should he wrongfully take anything; the state may also -proceed against him as a criminal for breaking a statute that forbids -him from doing such a thing. Furthermore, should the bank, as often -happens, agree to accept a sum from the defaulter and not trouble him -further, the agreement would be no bar to an action by the state -against him. - -The terms law and equity are frequently used in the law books and -require explanation. Formerly there was no such term as equity in the -common law. It came to be used as a supplement to the law to indicate -ways of doing things unknown to the law, which ought to be done. Thus -if a man threatened to fill up your well because it stood, as he -claimed, on his land, you had no preventive remedy at law. You could -use some force to prevent him, you could not kill him, or put out his -eyes, or treat him roughly. The law only gave you the right to proceed -against him to recover money damages for the legal injury. A court of -equity has a preventive remedy. If one threatens to fill up your well -you can petition or pray the court to order that he shall refrain -until there has been a legal hearing to determine whether he has any -right to do so and the court will order him to desist until it has -heard the case, and will enforce its order with a fine or penalty -should he disobey. - -The term equity contains a larger element of justice than law; and the -courts often say that an act is just or equitable, meaning that an act -which is just or equitable may not always be a legal act. Equity -therefore is a broader term, and is in constant use in legal -proceedings. - -Another word frequently used in this book is action. When a person has -wronged another, for example, has not paid a promissory note that is -due, and the wronged party wishes to collect it through the courts, he -brings an action, so called, against the wrongdoer for that purpose. -Sometimes the word suit is used. Suit, or case in court, is a common -expression. - -Finally something should be said about courts of law. Every state has -three kinds or classes of courts. First a court in which suits are -brought and tried relating to small matters, the recovery of money, -for example, for one or two hundred dollars or less, also for small -petty criminal offenses. Next is a higher court in which suits for all -larger matters are begun and tried, as well as appeals from the lower -court. Lastly is a third court of review, usually called the supreme -court, composed in most of the states of five, or more often, seven -judges, who review the decisions of the court below whenever -application is made founded on erroneous matters, the wrongful -admission of, or refusal to admit, evidence and the like, and their -decisions form the great body of the common law. - -The federal government also has three courts corresponding somewhat to -the courts established by the states. First is a court existing in -every state called the district court, while some states, like New -York, are divided into several districts. An appeal lies from its -decision to the court of appeals consisting of three judges. There are -nine of these courts, one for each circuit into which the United -States is divided. Lastly appeals may be taken from their decisions -and also from the decisions of the supreme courts of the states to the -supreme court of the United States consisting of nine judges. An -appeal does not lie in every case decided by a state court or by the -federal courts of appeal; only such cases as the highest court shall -decide after application, made in proper form, may be appealed and -heard by that tribunal. - -We have already explained the term equity. Formerly there were courts -to try and decide equity cases. England still maintains such courts -and a few exist in the United States; New Jersey and Delaware are two -of these states. The chief official of the court is called a -chancellor, the others vice chancellors. Instead of an action, as in a -court of law, the preliminary proceeding is called a petition or bill, -and while in substance it is similar to an action or complaint, used -in a court of law, the form is quite different. The modern tendency of -the law, considered in the most general way, is to fuse law and -equity, and to endow law judges with equity powers. For further -explanation see _Legal Remedies and Equitable Remedies_. - - -=Adopted Child.=--Children are sometimes adopted. By doing so the -natural parents lose all personal rights and are relieved from all -legal duties. The adopted parents acquire the right to the adopted -child's custody and control, to his services and earnings, and they -must maintain and educate him. In some states he becomes the heir of -the adopted parent like a natural child, with some limitations. Who -can inherit an adopted child's property is not clearly settled. He can -also inherit from his natural parent and kindred as if he had not been -adopted. In Massachusetts the courts hold that an adopted child will -take like a natural child under a residuary clause in an adopted -father's will giving all the property not otherwise devised to his -child or children. See _Parent and Child_. - - -=Agency.=--Much of the business of our day is done by agents or -persons who represent others. The most general division is into -general and special agents. A general agent is one who has authority -to act for his principal or person he represents in all matters, quite -as the principal himself could do; or in some of his matters. Thus if -a principal had a farm he might have a general agent to act as his -farmer; if he owned a mill, another general agent who had charge of -it. If he had two mills, he might have a general agent for each, and -so on. - -A special agent is authorized to do a specific thing, to sell a home, -buy a horse, or effect some particular end or purpose. While this -distinction is plain enough in many cases, in others the lines run so -close together that it is difficult to decide whether one is a general -or special agent. - -Whenever one acts as a general agent he is supposed to have all the -authority that general agents possess who thus act for their -principals, unless the person who is dealing with him knows of the -restriction on his authority. Suppose one goes to the office of a -general insurance agent to get insurance on his home. A policy is -taken and afterwards the house burns up. The company declines to pay -because the agent made a lower rate than was authorized by his -company. The insured however knew nothing about the restriction, and -supposed that the agent had the same authority as other insurance -agents have concerning rates. The company would be obliged to pay. But -if the insured knew that restrictions had been put on the agent and -that he was violating them in giving him the lower rate, the company -would not be liable. - -One who deals with a special agent must find out what authority he -possesses; therefore more care is needful in dealing with a special -than with a general agent. His authority must be strictly pursued. -Thus it is said that a person dealing with him "acts at his own -peril," is "put upon inquiry," "is chargeable with notice of the -extent of his authority," "it is his duty to ascertain," "he is bound -to inquire," "and if he does not he must suffer the consequences." - -In some cases the law creates an agency. Thus an unpaid vendor of -goods sometimes has authority to sell them, so has a pledgee of goods -outside the authority conferred by the contract pledging them. A -married woman whose husband does not supply her has a limited power to -buy necessaries on her husband's credit, which prevails -notwithstanding any objection he may make. A minor sometimes has the -same power. - -A person can act as an agent for another who cannot act for himself. -Minors therefore can thus act. Besides individuals, corporations often -act for others. - -The authority of an agent may be given in writing, a power of attorney -so called, or he may act, and often does, without written authority, -especially a general agent. To this rule there is one well understood -exception. If an agent is required in executing his authority to sign -a deed or other writing, especially a sealed writing, his authority -must also be equally great. In executing a deed therefore his -authority must be in writing under seal, and when the deed is -recorded, the agent's written authority should also be recorded; this -is the usual practice. If this is not done, some person who afterward -wished to purchase the land might object because the recorded title -was defective. - -A particular usage or custom also affects an agent's powers. If the -principal confers on him authority to transact business of a -well-defined nature, bounded by well-defined usage and customs, the -law presumes the agency was created with reference to them. This -protection affects agents and third persons alike, the latter -therefore who act in good faith in such dealings are protected against -secret limitations of which they had no notice. - -An agent has no authority to purchase his principal's property. To do -this, in a sense, would be to purchase of himself. The temptation to -do this is sometimes very great, too great for him to withstand, and -so he resorts to a crooked method for accomplishing his end. He sells -the property to another party who afterward sells it back to him. The -worst violators of this principle have been railway receivers, who -have taken advantage of their position to get control of the property -entrusted to them at a sum much less than its real value. Such sales -can be set aside by proper legal procedure. By the modern rule they -are not void but are voidable, that is, can be set aside if the -creditors or other interested parties wish to do so. - -Whenever therefore one deals with a general agent and his authority is -disputed, unless there be restrictions known to the person dealing -with him, the liability of his principal turns on the answer to the -general question, what authority do general agents like himself have. -This is simply a question of fact, to be determined like every other -question of fact by the court in which the controversy is pending. - -Another way of rendering a principal liable for the act of his agent -is by ratifying it. Suppose A professed to be the agent of B in -building a house for C, and built it so badly that C sued B to recover -damages, whose defense was, that A was not his agent. Suppose, -however, that B accepted payment for the house, this would be a -ratification of A's authority to act for B even if he did not have -proper authority in the beginning. Suppose A had authority to sell -goods for B but not to collect payment, and someone should pay him and -he ran off with the money, could his principal still collect the money -of the buyer of the goods? This is a hard case, and has happened many -times. The buyer usually is required to pay the second time. But if B, -notwithstanding his direction to his agent not to collect payment, -should receive it such conduct would operate as a ratification. - -Whether the authorized act arises from a contract or from a wrong or -tort, whoever with knowledge of all the facts adopts it as his own, or -knowingly appropriates the benefits, which another has assumed to do -in his behalf, will be deemed to have assumed responsibility for the -act. Of course, such action does not render an act valid that was -invalid before; its character in this respect is not changed by -anything the ratifier may do. - -Can a forgery be ratified? The right of the state to pursue the forger -cannot be defeated by its ratification, but so far as the act may be -regarded merely as the act of an unauthorized agent, it may be -ratified like any other. Mechem says that if at the time of signing, -the person doing so purported to act as agent, the act might be -ratified. - -Again, a principal cannot accept part of an agent's act and reject the -remainder. The acceptance or rejection must be complete. - -In appointing an agent the principal has in mind the qualifications of -the person appointed, he cannot therefore without his principal's -consent, designate or substitute another person for himself. This rule -though does not prevent him from employing other persons for a minor -service. Indeed, in many cases a general agency requires the -employment of many persons to execute the business. How far one may go -in thus employing others to execute the details, and how much ought to -be done by the general agent himself, depends on the nature of the -business. The inquiry would be one of fact, to what extent is a -general agent in his particular business expected or assumed to do the -things himself. - -One rule to guide an agent is this: when the act to be done is purely -mechanical or ministerial, requiring no direction or personal skill, -an agent may appoint a subagent. Thus an agent who is appointed to -execute a promissory note, or to sign a subscription agreement, or to -execute a deed, may appoint another to do these things. Likewise an -agent who is authorized to sell real estate with discretionary power -to fix the price and other terms, may employ a subagent to look up a -purchaser, or to show the land to one who is desirous of purchasing. - -When a person is really acting as an agent, but this is not known by -the persons with whom he is doing business, he is liable to them as if -he were the principal. It often happens for various reasons that -agents do not disclose their principals. Suppose a dealer finds out -that the agent presumably acting for himself was, in truth, acting -for another, could the real principal be held responsible and the -agent escape, or could both be held? The answer is, after discovering -the real principal, both can be held, or either of them. The failure -of an agent to disclose his agency will not make him individually -liable if the other party knew that he was dealing with a principal -with whom he had had dealings through the agent's predecessor. Notice -of the agency to one member of a firm is not sufficient notice to the -firm to release the agent from personal responsibility in subsequent -transactions with another member who did not know and was not informed -of the agency. Again, the liability must be determined by the -conditions existing at the time of the contract, his subsequent -disclosure will not relieve the agent. Finally, while the agent may be -held in such a case, the principal also is liable, except on -instruments negotiable and under seal, on the discovery of his -relationship as principal. - -While secret instructions to an agent that are unknown to persons -dealing with him do not bind them, the principal is liable for any -acts within the scope of his agent's authority connected with the -business conducted by his agent for him. Some very difficult questions -arise in applying this rule. A car conductor is instructed to treat -passengers civilly and to use no harsh means with them, save in -extreme cases. How far may a conductor go with a disorderly passenger? -Very likely he would be justified in putting him off; suppose the -conductor was angry and administered hard and needless kicks in the -operation? His principal surely would not be liable, though the -conductor doubtless would be. Suppose in buying a railway ticket the -agent loses his temper and calls you a liar and a thief, you would -have an action against him for slander, unless you happened to be one, -but you would have no action against his principal for the company did -not employ him to slander its patrons; to do this was clearly not in -the scope of his employment. - -An agent must not act for both parties in any transaction unless this -is understood by both of them. Nor can an agent receive any personal -profit from a transaction. Whatever profit there may be should be -given to the principal. Thus if an agent is authorized to buy a piece -of property for his principal and buys it for himself, or hides the -transaction under the name of another, the principal, after -discovering what his agent has done, can proceed to obtain the -property. - -An agent must be faithful and exercise reasonable skill and diligence. -Money belonging to the principal should be deposited in the -principal's name, or, if in the agent's name, his agency should be -added; otherwise if the bank failed the agent would be responsible for -the loss. Again, if the agent deposited the money in his own name the -true owner could proceed against the bank to recover it. - -A principal is liable for the statements and representations of his -agent that have been expressly authorized. He is also liable even for -false and fraudulent representations made in the course of the agent's -employment, especially those resulting in a contract from which the -principal reaped a benefit. Even though the statements may not have -been expressly authorized, such authority may be implied by law -because they are the natural and ordinary incidents of the agent's -position. Thus the position of a business manager often calls for a -great variety of acts, orders, notices, and the like, and statements -made while performing them are regarded as within the line of his -duty. - -An agency may end at a fixed time, or when the particular object for -creating it has been accomplished, or by agreement of the parties. In -many cases an agency is created for an indefinite period, and in these -either party can terminate it whenever he desires. There are some -limitations to this principle. Neither party can wantonly sever the -relation at the loss of the other; and if one of them did he would be -liable for the damage sustained by the other. Likewise if the agent -has an interest of his own in the undertaking the principal cannot -terminate it before its completion without the agent's consent. Such a -rule is needful for his security. The bankruptcy of a business agent -operates as a revocation of his authority, but not when the act to be -done is of a personal nature like the execution of a deed. - -If the principal becomes insane and unable to exercise an intelligent -direction of his business, his condition operates as a revocation or -suspension for the time being of his agent's authority. If on -recovering, he manifests no will to terminate his agent's authority, -it may be considered as a mere suspension, and his assent to acts done -during the suspension may be inferred from his forbearing to express -dissent when they come to his knowledge. Likewise an agent's insanity -terminates or suspends the agency for the time being unless he has an -interest of his own in the matter. Partial derangement or monomania -will not have that effect unless the mania relates to the agency, or -destroys the agent's ability to perform it. - -Again, the marriage of a principal in some cases, unless a statute has -changed the common law, will revoke the power previously given, -especially when its execution will defeat or impair rights acquired by -marriage. Thus should a man give a power of attorney to another to -sell his homestead, but before effecting a sale the principal should -marry, his marriage would revoke the power. By marrying the wife -acquires an interest in the property which cannot be taken away from -her without her consent by joining in a deed of conveyance with her -husband. Likewise the marriage of a woman would operate to revoke a -power of attorney previously given by her whenever its execution would -defeat the rights acquired by her husband. An agent's marriage usually -will not affect the continuance of his agency. - -When an agency is terminated it is often needful for the principal to -notify all customers for his protection, otherwise they might continue -to do business with the agent, supposing he was thus acting, and -involve him perhaps in heavy loss. This rule applies especially to -partnerships, each member of which is an agent with general authority -to do the kind of business in which it is engaged. - -If the authority of an agent in writing is revoked, but is still left -with him and is shown to a third person who, having no knowledge of -the revocation, makes a contract with him, the principal will be held -for its execution. - -Another rule of law may be given. The law assumes that any knowledge -acquired by an agent concerning his principal's business, will be -communicated to his principal, who is bound thereby. This rule though -is often difficult to apply. Thus, if a cashier of a bank should learn -that a note was defective, which was afterward discounted by his bank, -it would be regarded as having knowledge of the defect, because it -was the cashier's duty to inform the proper officials before they -discounted it. - -The death of either agent or principal terminates the agency except in -cases of personal interest. And when an agent has appointed a -substitute or subagent without direct authority, and for his own -convenience, the agent's death annuls the authority of the subagent or -substitute, even though the agent was given the right of substitution. -But if the subagent's authority is derived directly from the -principal, it is not affected by the agent's death. - - -=Agreement to Purchase Land.=--An agreement to purchase land must be -in writing to be valid. Oral or parol agreements may be made to do -many things, but everywhere the law makes an exception of agreements -relating to land purchases. A statute that is quite similar in the -states requires this agreement to be in writing and signed by the -party against whom it is to be enforced. Thus if the seller wishes to -enforce such an agreement, he must produce a writing signed by the -purchaser; if the latter wishes to hold the seller, he must do the -same thing. The better way is to have the writing signed by both -parties. - -How complete must the writing be? It need not mention the sum to be -paid for the land; it can be signed with a lead pencil: a stamp -signature will suffice. The entire agreement need not be on one piece -of paper. If it can be made out from written correspondence between -the two parties this will be enough. - -To this rule of law are some exceptions. Therefore if an oral -agreement for the sale of land is followed by putting the buyer into -possession, the law will compel the seller to give him a deed. The -proceeding would consist of a petition addressed to a court of equity, -which would inquire into the facts, and if they were true, would -compel the seller to give the purchaser a deed of the land. The reason -for making this exception is, the purchaser would be a trespasser had -he no right to be there: to justify his possession the law permits him -to prove, if he can, his purchase of the land; and if he has bought -it, of course he ought to have a deed of his title. - -Once, a purchaser who made an oral agreement and paid part of the -purchase money could compel the seller to give him a deed, and many -still think such action is sufficient to bind the bargain. This is no -longer the law. The practice gave rise to much fraud: A would assert -that he gave money to B to pay for land when in truth it was given for -some other purpose. So the courts abandoned the rule founded on the -part payment of the purchase price. A can however get back his money. - -An option to purchase land, contained in an agreement to sell, must be -exercised within a reasonable time, if none is fixed in the agreement. -See _Deed_. - - -=Auctioneer.=--An auctioneer, employed by a person to sell his -property, is primarily the owner's agent only, and he remains his -exclusive agent to the moment when he accepts the purchaser's bid and -knocks down the property to him. On accepting the bid the auctioneer -is deemed to be the agent of the purchaser also, so far as is needful -to complete the sale; he may therefore bind the purchaser by entering -his name to the sale and by signing the memorandum thereof. His -signing is sufficient to satisfy the Statute of Frauds in any state -conferring on an agent authority to make and contract for the sale of -real and personal property without requiring his authority to be in -writing. His agency may begin before the time of the sale and continue -after it. Again, the entry of the purchaser's name must be made by the -auctioneer or his clerk immediately on the acceptance of the bid and -the striking down of the property at the place of sale. It cannot be -made afterward. The auctioneer at the sale is the agent of the -purchaser who by the act of bidding calls on him or his clerk to put -down his name as the purchaser. In such case there is little danger of -fraud. If the auctioneer could afterward do this he might change the -name, substitute another, and so perpetrate a fraud. - -A sale by auction is complete by the Sales Act when the auctioneer -announces its completion by the fall of the hammer, or in other -customary manner. Until such announcement is made, any bidder may -retract his bid; and the auctioneer may withdraw the goods from sale -unless the auction has been announced to be without reserve. - -Authority may be conferred on an auctioneer in the same manner as on -any other agent for the sale of similar property, verbally or in -writing. Even to make a contract for the sale of real estate, oral -authority to the auctioneer is sufficient, in the absence of a statute -to the contrary. - -Authority to sell property does not of itself imply authority to sell -it at auction, and the purchaser therefore who has notice of the -agent's authority or knowledge sufficient to put him on inquiry, -acquires no title to the property thus purchased. If goods are sent -to an auction room to sell, this is deemed sufficient evidence of -authority to sell them in that manner and to protect whoever buys -them. - -As an auctioneer is ordinarily a special agent, the purchaser is -supposed to know the terms and conditions imposed by the seller on the -agent. The seller or owner therefore is not bound by any terms stated -by the auctioneer differing from those given to him. If the owner has -imposed no terms on him, then he has the implied authority usually -existing in such cases. - -An auctioneer has authority to accept the bid most favorable to the -seller when the sale is made without reserve and to strike down the -property to the purchaser. He cannot therefore consistently with his -duty to his principal refuse to accept bids, unless the bidder is -irresponsible or refuses to comply with the terms of the sale. He is -justified in rejecting the bids of insane persons, minors, drunken -persons, trustees of the property, and perhaps in some cases of -married women. - -An auctioneer cannot transfer his duty to another. This rule does not -prevent him from employing others to do incidental things connected -with the keeping and the moving of the property. He cannot sell on -credit contrary to his instructions or custom; nor would he be secure -in following custom if instructed to do otherwise. After the bid has -been accepted the bidder has no authority to withdraw it without the -owner's consent, nor can he be permitted to do so by the auctioneer. -Nor can he sell at private sale if his instruction is to sell -publicly, nor can he justify himself even if he acted in good faith -and sold the property for more than the minimum price fixed by the -owners. Nor can he sell the property to himself, nor authorize any -other person to bid and purchase for him either directly or -indirectly. It is impossible with good faith to combine the -inconsistent capacities of seller and buyer, crier and bidder, in one -and the same transaction. - -He has no authority to warrant the quality of property sold except -custom or authority is expressly given to him. Nor is he an insurer of -the safety of the goods entrusted to him for sale; he must however use -ordinary and reasonable care in keeping them. Lastly, an auctioneer -should disclose his principal and contract in his name. If one bought -property therefore supposing it belonged to A, when in fact it -belonged to B, through any manipulation of the auctioneer, the bidder -would not be bound. - - -=Automobile.=--The members of the public have a right to use the -public avenues for the purpose of travel and of transporting property: -nor has the driver of horses any right in the road superior to the -right of the driver of an automobile. Each has the same rights, and -each is equally restricted in exercising them by the corresponding -rights of the other. - -Again, the public ways are not confined to the original use of them, -nor to horses and ordinary carriages. "The use to which the public -thoroughfare may be put comprehends all modern means of carrying -including the electric street railroad and automobile." It has been -declared that the fact that motor vehicles may be novel and unusual in -appearance and for that reason are likely to frighten horses which are -unaccustomed to see them, is no reason why the courts should adopt the -view of prohibiting such machines. - -The general rule is that all travelers have equal rights to use the -highways. An automobile therefore has the same rights and no more than -those of a footman. - -The mere fact that automobiles are run by motor power, and may be -operated at a dangerous and high rate of speed, gives them no superior -rights on the highway over other vehicles, any more so than would the -driving of a race horse give the driver superior rights on the highway -over his less fortunate neighbor who is pursuing his journey behind a -slower horse. - -There is no authority or power in the state to exclude non-resident -motorists from the public ways, nor have the states power to place -greater restrictions or burdens on non-resident automobilists than -those imposed on their own citizens. - -A license to operate an automobile is merely a privilege. It does not -constitute a contract, consequently it does not necessarily pass to a -purchaser of the vehicle, and may, for a good reason, be revoked. -Moreover the charge imposed for the privilege of operating a motor on -the highway is not generally considered a tax, only a mere license or -privilege fee. - -An automobile may be hired from the owner. This is called in law a -bailment. The bailor is not responsible generally for any negligence -of the hirer in operating the car. Nor is the rule changed should the -hirer be an unskilled person, unless he was an immature child or -clearly lacking in mental capacity, or was intoxicated. Where the -owner of an automobile delivered it to another by agreement, who was -to pay the purchase price from the money derived from its use, and -thereafter had complete control of the machine, his negligence could -not be charged to the seller. - -Again, where an automobile is hired and the chauffeur is also -furnished by the owner, who pays him for operating the car, and the -hirer has no authority over him except to direct his ways of going, -the chauffeur is regarded as the servant of the owner. He, therefore, -and not the hirer is responsible for the negligence of the chauffeur. -Of course, the rule would be changed if the hirer assumed the -management of the car: then the hirer alone would be liable for the -chauffeur's negligence. - -A party who hires an automobile from another is bound to take only -ordinary care of it and is not responsible for damage whenever -ordinary prudence has been exercised while the car was in his custody. -If lost through theft, or is injured as a result of violence, the -hirer is only answerable when these consequences were clearly the -result of his own imprudence or negligence. The hirer though must -account for the loss or injury. Having done this, the proof of -negligence or want of care is thrown on the bailor. - -If the hirer should sell the automobile without authority to a third -party, the owner or bailor may bring an action against even an -innocent purchaser who believed that the hirer had the title and power -to sell. - -There is an implied obligation on the hirer's part to use the car only -for the purpose and in the manner for which it was hired. And if it is -used in a different way and for a longer time, the hirer may be -responsible for a loss even though this was inevitable. - -Suppose the hirer misuses the car, what can the owner do? He can -repossess himself, if this can be done peaceably, otherwise he must -bring an action for the purpose. As the hirer acquires a qualified -title to the property, he can maintain an action against all persons -except the owner, and even against him so far as the contract of -letting may set forth the relations between them. - -When an owner or hirer undertakes to convey a passenger to a specified -place and, while on the way, the car breaks down, if it cannot be -properly mended at the time and the owner or hirer is able to furnish -another, the law requires him to do so and thus fulfil his contract. - -"The owner of a motor vehicle," says Huddy, "is of course entitled to -compensation for the use of the machine. If a definite sum is not -stated in the contract between the parties, there arises an implied -undertaking that the hirer shall pay a reasonable amount. One who uses -another's automobile without consent or knowledge of the owner, may be -liable to pay a reasonable hire therefor. In case the hirer is a -corporation, there may arise the question whether the agent of the -company making the contract has authority to bind the company. Where a -machine is hired for joy riding on Sunday, it has been held that the -contract is illegal and the hirer cannot recover for the use of the -automobile." - -The speed of automobiles along the public highways may be regulated by -law. A municipality may forbid the use of some kinds of motor vehicles -on certain streets, but it cannot broadly exclude all of them from all -the streets. The rules regulating travel on highways in this country -are called, "the law of the road." The object of these rules is to -prevent collisions and other accidents, which would be likely to occur -if no regulations existed. - -A pedestrian who is about to cross a street may rely on the law of the -road that vehicles will approach on the proper side of the street. -This rule however does not apply to travelers walking along a rural -highway. Huddy says: "When overtaking or meeting such a person, it is -the duty of both the pedestrian and the driver of the machine to -exercise ordinary care to avoid a collision, but no rule is, as a -general proposition, definitely prescribed as to which side of the -pedestrian the passage shall be made." - -The law of the road requiring vehicles to pass each other on the -right, contrary to the English custom, has been reënforced in many or -all the states by statutory enactments, and applies also to -automobiles. When, therefore, two vehicles meet and collide on a -public highway, which is wide enough for them to pass with safety, the -traveler on the wrong side of the road is responsible for the injury -sustained by the other. But a traveler is not justified in getting his -machine on the right-hand side of the road and then proceeding -regardless of other travelers; on the contrary, the duty of exercising -reasonable care to avoid injuries to others still continues. - -Not only must each one pass to the right, but each must pass on his -own side of the center line of the highway, or wrought part of the -road. And when the road is covered with snow, travelers who meet must -turn to the right of the traveled part of the road as it then appears, -regardless of what would be the traveled part when the snow is gone. -After passing the rear of the forward vehicle an automobilist must -exercise reasonable care in turning back toward the right into the -center of the highway, and if he turns too soon he may be liable for -damages caused by striking or frightening the horses. "If two vehicles -meet in the street, it is the duty of each of them, as seasonably as -he can, to get each on his own right-hand side of the traveled way of -the street." - -The rights of travelers along intersecting streets are equal, and each -must exercise ordinary care to avoid injury to the other. An -automobilist nearing an intersection should run at proper speed, have -his car under reasonable control, and along the right-hand side of the -street. If two travelers approach the street crossing at the same time -neither is justified in assuming that the other will stop to let him -pass. When one vehicle reaches the intersection directly in advance of -the other, he is generally accorded the right of way, and the other -should delay his progress to enable the other to pass in safety. - -The driver of an automobile may be charged with negligence if, without -warning to a vehicle approaching from the rear, he turns or backs his -machine and causes a collision. Indeed, it is negligence for a -chauffeur to back his machine on a city street or public highway -without looking backward; and especially if one backs his car on a -street car track without looking for street cars. - -If an obstruction exists on the right-hand side of a highway, the -driver of a car may be justified in passing to the other side, and in -driving along that side until he has passed the obstacle. Under such -circumstances he has a right to be on the left side temporarily; and -if he exercises the proper degree of care while there, is not liable -for injuries arising from a collision with another traveler. But if -the obstruction is merely temporary, it may be the duty of the driver -to wait for the removal and not to pass on the wrong side of the -highway. - -An automobilist must exercise reasonable or ordinary care to avoid -injury to other persons using the highway. What this is depends on -many circumstances, and each case to some extent is decided by its own -facts. Consequently thousands of cases have already arisen, and -doubtless they will still multiply as long as automobiles are used and -their users are negligent. - -The competency of the driver is one of the unending questions. Of -course he should be physically fit, not subject to sudden attacks of -dizziness, possessing sufficient strength and proper eyesight and a -sober non-excitable disposition. It is said, that a chauffeur is not -incompetent who requires glasses. But he certainly would be if his -eyesight was poor and could not be aided by the use of them. - -The driver must at all times have his car under reasonable control so -that he can stop in time to avoid injury. He must keep a reasonably -careful lookout for other travelers in order to avoid collision; also -for defects in the highway. If by reason of weather conditions, lights -or other obstructions, he is unable to see ahead of him, he should -stop his car. If there be no facilities for stopping for the night, a -driver is not negligent should he proceed through the fog. - -Passing to the liability of the owner of a car for the acts of his -chauffeur, the general rule is, he is then liable when the chauffeur -is acting within the scope of his owner's business. When the owner -himself is riding in the car there is less difficulty in fixing the -liability, but when the chauffeur uses the car without the owner's -consent, he is not liable for the conduct of the driver. And this is -especially so in using a car contrary to the owner's instructions and -for the chauffeur's pleasure; or in using it for his own business with -the owner's consent. And the same rule generally prevails whenever a -member of a family uses his parent's car without his knowledge and -consent, and especially when forbidden. But the parent is liable for -the running of a car with his knowledge by a member of his family and -for the convenience or pleasure of other members. See _Chauffeur_; -_Garage Keeper_. - - -=Bailor and Bailee.=--To create this relation the property must be -delivered to the bailee. Though a minor cannot make such a contract, -yet if property comes into his possession he must exercise proper care -of it. Should he hire a horse and kill the animal by rash driving, he -would be liable for its value. A corporation may act as bailor or -bailee, and an agent acting therefor would render the corporation -liable unless he acted beyond the scope of his authority. - -Suppose one picks up a pocketbook, does he become the owner? Is he a -bailee? Yes, and must make an honest, intelligent effort to find the -owner; if failing to do so, then he may retain it as his own, -meanwhile his right as finder is perfect as against all others. Should -the true owner appear, whatever right the finder may have against him -for recompense for the care and expense in keeping and preserving the -property, his status as finder does not give him any lien unless the -owner has offered a reward to whoever will restore the property. To -this extent a lien thereon is thereby created. - -The statutes generally provide what a person must do who has found -lost property. Suppose a person appears who claims to be the owner of -the thing found, what shall the finder do in the way of submitting it -to his inspection? In one of the recent cases the court decided that -it was a question of fact and not of law whether the finder of lost -property had given a fair and reasonable opportunity for its -identification before restoring it, and whether the claimant should -have been given an opportunity to inspect it in order to decide -whether it belonged to him. - -The finder does not take title to every article found and out of the -possession of its true owner. To have even a qualified ownership the -thing must be lost, and this does not happen unless possession has -been lost casually and involuntarily so that the mind has no recourse -to the event. A thing voluntarily laid down and forgotten is not lost -within the meaning of the rule giving the finder title to lost -property; and the owner of a shop, bank or other place where the thing -has been left is the proper custodian rather than the person who was -the discoverer. - -If a lost article is found on the surface of the ground, or the floor -of a shop, in the public parlor of a hotel, or near a table at an -open-air place of amusement, or in the car of a railroad it becomes, -except as against the loser, the property of the finder, who -appropriates it regardless of the place where it was found. Once a -boat was found adrift and the finder made the needful repairs to keep -it from sinking, yet the owner was mean enough to refuse to pay for -them. The court compelled him to make good the amount to the finder. - -The law regards the possession of an article which is lost as being -that of the legal owner who was previously in possession, until the -article is taken into the actual possession of the finder. If the -finder does not know who the owner is and there is no clue to the -ownership, there is no larceny although the finder takes the goods for -himself and converts them to his own use. If the finder knows who the -owner is or has a reasonable clue to the ownership, which he -disregards, he is guilty of larceny. - -Another class of cases must be noticed. Very often articles are -delivered to another to have work done on them, hides to be tanned, or -raw materials to be worked up into fabrics. Can a creditor of the -bailee pounce on tanned hides or completed fabrics as belonging to him -and take them in satisfaction of his debt? Both parties have in truth -an interest in the goods, and in general it may be said that the -bailor cannot thus be deprived of his interest and may follow the -goods and recover them or their value. - -If they are destroyed while executing the agreement, who must lose? If -the bailee is not negligent or otherwise at fault, and the loss -happened by internal defect or inevitable accident, the bailor would -be the loser. And if workmen had been employed thereon, the bailor -would also be obligated to pay for their labor. - -To what extent can a bailee limit his liability by agreement? A bailee -who was a cold storage keeper, stated in his receipt "all damage to -property is at the owner's risk." This limitation related, so a court -decided, to loss resulting from the nature of the things stored. A -bailee received some cheese and gave a receipt slating that it was to -be kept at the owner's risk of loss from water. It was injured from -the dripping of water from overhead pipes. The bailee was, -notwithstanding his receipt, held liable. - -A bailor need not always be the owner of the thing bailed. He may be a -lessee, agent, or having such possession and control as would justify -him in thus acting. He should give the bailee notice of all the -faults in the thing bailed that would expose him to danger or loss in -keeping it. For example, if it were a kicking horse, he should warn -the bailee to keep away from his legs. - -The courts have been often troubled about the degree of care required -of bailees, as it differs under varying circumstances. A bank that -permits a depositor to keep a box of jewelry or silver in its vault -for his accommodation, while absent from home and without receiving -any compensation therefor, is not required to exercise the same degree -of care as a safe deposit company whose chief business is to do such -things and is paid for its service. Nevertheless a bank must exercise -reasonable care, such care as is used in keeping its own things. - -Suppose your package is stolen by the cashier or paying teller, is the -bank responsible? That depends. If the bank knows or suspected the -official was living a gay life, it ought not to keep him, and most -banks would not. It is the better legal opinion, that a bank ought not -to keep a president, cashier or other active official who is -speculating in stocks, for the temptation to take securities not -belonging to them has been too great in many cases for them to -withstand. On the other hand if a long-trusted official, against whom -no cause for suspicion had arisen, should steal a package from the -safe, the bank would not be responsible for the loss any more than if -it had been stolen by an outsider. The bank did not employ him to -steal, but to perform the ordinary banking duties. - -A bailee is usually a keeper only. But the nature of the property may -require something more to be done. If he is entrusted with a milch -cow, he must have her milked, or with cattle in the winter time which -require to be served with food, he must supply it, otherwise they -would starve. If he is keeping a horse which is taken sick, proper -treatment should be given. - -When the period of bailment is ended, the thing bailed must be -returned. If it consisted of a flock of sheep, cattle and the like, -all accessions must also be delivered. In many cases the bailee is not -required to return the specific property, but other property of the -same kind and quality. Thus if one delivers wheat for safekeeping, -which is put in an elevator, the contract is fulfilled by delivering -other wheat of similar kind and quality; or, if the wheat is to be -made into flour, by delivering the proper amount of the same quality -as the specific wheat bailed. A bailee has a lien for his service and -proper expenditures in caring for and preserving the thing bailed, but -not for any other debt the bailor may owe him. And if the bailee is a -finder who has bestowed labor on the article found in good faith, the -same rule applies. - -Agisters and livery-stable men have no lien at common law, like -carriers for keeping the animals entrusted to them because they are -under no obligation to take them into their keeping. In Pennsylvania a -different rule was long ago declared, and has ever since been -maintained. As he can agree on terms, he may make such as are -agreeable to both parties. Elsewhere he can impose his own terms, and -may demand his pay in advance, or create, by contract, a lien if he -pleases. A person who is hired as a groom to a horse for a specified -time and at a fixed price, has no lien on the horse for his service, -but has a lien for feed, keeping and shoeing, which should have been -furnished by the owner. A contract to do this is not necessary to -create the lien, it arises as if the horse had been left for keep and -care without saying more. - - -=Bankruptcy.=--Before the enactment of the federal Bankruptcy Act of -1898, every state had a bankruptcy act of its own, which was generally -called an insolvency law. The federal act has superseded these by -virtue of the power granted to congress in the federal constitution -"to establish uniform laws on the subject of bankruptcies throughout -the United States." - -The United States district courts in the several states are made -courts of bankruptcy and have power to adjudge all persons bankrupt -who have their principal places of business, residence and domicile -within their respective districts; and jurisdiction also over others -who simply have property within their jurisdiction. - -Any person who owes debts, or business corporation, may become a -voluntary bankrupt. So may an alien. He may also become an involuntary -bankrupt if he has had his principal place of business here, or has -been domiciled within the jurisdiction of the court for the preceding -six months, or has property within its jurisdiction. Some corporations -are still denied voluntary action, as well as minors and insane -persons. - -Who may become an involuntary bankrupt? Any person, except a -wage-earner, or farmer, any unincorporated company, and any -corporation engaged principally in manufacturing, trading, printing, -publishing, or mercantile pursuits, owing debts to the amount of one -thousand dollars. What is a manufacturing corporation, within the -meaning of the law, is not even yet fully known. A corporation engaged -principally in smelting ores is one; and a mining corporation, whose -principal business is to buy and sell ores, is deemed a trading -corporation and may become an involuntary bankrupt. - -Next we may inquire, what are acts of bankruptcy? One of them is an -admission of a person's inability to pay his debts. And this may be -done by a corporation through its properly organized officers. Another -act of bankruptcy is to convey, transfer, conceal or remove property -with the intention to defraud creditors. And by concealment is meant -the separation of some tangible thing like money from the debtor's -estate, and secrete it from those who have a right to seize it for -payment of their debts. The transfers of property covered by the act -are those which the common law regards as fraudulent. If, for example, -at the time of the transfer of his property one is so much indebted -that it will embarrass him in paying his debts, the transfer will be -deemed fraudulent; but a voluntary transfer, made by one who is free -from debt, cannot be impeached by subsequent creditors. The intention -to hinder, delay or defraud creditors is a question of fact to be -ascertained by proper judicial inquiry. - -A general assignment for the benefit of creditors is an act of -bankruptcy. Likewise a general assignment for the benefit of creditors -made by the majority of the board of directors and of the stockholders -is an act of bankruptcy. A petition for the appointment of a receiver -of a corporation under a state statute is not an assignment for the -benefit of creditors and therefore is not an act of bankruptcy. - -Another act of bankruptcy is to suffer or permit, when one is -insolvent, any creditor to acquire a preference through legal -proceedings. The term preference includes not only a transfer of -property, but also the payment of money within four months from the -time of filing his petition in bankruptcy. It is immaterial to whom -the transfer is made if the purpose be to prefer one creditor to -another. Like a fraudulent transfer the intent to prefer must be -proved, though this may sometimes be presumed, as when the necessary -consequence of a transfer or payment made by an insolvent debtor is to -liquidate the debt of one creditor to the entire or partial exclusion -of others. - -Passing to the filing of the petition a voluntary petitioner should -file his petition in the court of bankruptcy in the judicial district -where he has principally resided for the preceding six months. When -there is no estate and no claim has been proved and no trustee has -been appointed, a bankrupt may withdraw his petition on paying the -costs and expenses. The petition must be accompanied by a schedule of -the petitioner's property, showing its kind and amount, location, -money value, and a list of his creditors and their residences when -known, the amount due to them, the security they have, and a claim to -legal exemptions, if having any. After filing a voluntary petition the -judge makes an adjudication. He may do this ex parte, that is without -notice to creditors. - -A petition may be filed against a person who is insolvent and has -committed an act of bankruptcy within four months after such action. -Three or more creditors who have provable claims amounting to five -hundred dollars in excess of securities held against a debtor may file -the petition, or if all the creditors are less than twelve, then one -of them may file the petition provided the debtor owes him the above -stated amount. Creditors holding claims which are secured, or have -priority, must not be considered in determining the number of -creditors and the amount of claims for instituting involuntary -proceedings. The petition should state the names and residences of the -petitioning creditors, also that of the bankrupt, his principal place -of business, the nature of it, his act of bankruptcy, that it occurred -within four months of the filing of the petition, and that the amount -of the claims against him exceed five hundred dollars. The petition -must be signed and properly verified, and may be afterward amended for -cause in the interest of justice. On the filing of the petition a writ -of subpoena is issued addressed to the bankrupt commanding him to -appear before the court at the place and on the day mentioned to -answer the petition. The next step, after serving the petition, is for -the bankrupt to file his answer. Meanwhile his property may be seized -by a marshal or receiver on proof that he is neglecting it or that it -is deteriorating. - -Within ten days after one has been judicially declared to be a -bankrupt, he must file in court a schedule of his property, including -a list of his creditors and the security held by them. Then follows -the first meeting of the bankrupt's creditors, within thirty days -after the adjudication. The judge or referee must be present at this -meeting, also the bankrupt if required by the court. Before proceeding -with other business the referee may allow or disallow the claims of -creditors presented at the meeting, and may publicly examine the -bankrupt, or he may be examined at the instance of any creditor. At -this meeting the creditors may elect a trustee. - -Subsequent meetings may be held at any time and place by all the -creditors whose claims have been allowed by written consent: the -court also may call a meeting whenever one fourth of those who have -proved their claims file a written request to that effect. - -Only a creditor who owns a demand or provable claim can vote at -creditors' meetings. Nor can other creditors through filing objections -to a claim prevent a bona fide claimant from voting. A creditor of an -individual member of a bankrupt partnership cannot vote. Nor can -creditors holding claims that are secured or that have priority vote -only to a limited extent, so far as their claims are on the same basis -as other creditors. To entitle secured and preferred creditors to vote -at the first meeting on the whole of their claims, they must surrender -their securities or priorities. If a portion of a creditor's debt is -secured and a portion is unsecured, he may vote on the unsecured -portion. An attorney, agent, or proxy may represent and vote at -creditors' meetings, first presenting written authority, which must be -filed with the referee. The referee who presides at the first meeting -makes up or decides on its membership. Matters are decided at the -meeting by a majority vote in number and amount of claims of all the -creditors whose claims have been allowed and are present. - -The next stage in bankruptcy proceedings is the proving and allowance -of claims. Only such debts are provable as existed at the time of -filing the petition. Every debt which may be recovered either at law -or in equity may be proved in bankruptcy. A claim barred by the -statute of limitations is not provable, nor is a contingent liability. -On the other hand a debt founded on a contract express or implied may -be proved, for example, damages arising from a breach of a contract -prior to the adjudication in bankruptcy. Again, if there are -agreements or covenants in a contract of a continuing character the -bankrupt is still liable on them notwithstanding his discharge in -bankruptcy. If the amount of a claim is unliquidated the act sets -forth the mode of proceeding. Among other claims that may be proved -are judgments, debts founded on an open account, and rents. - -The claims of creditors who have received preferences are not allowed -unless they surrender them. Thus money paid on account by an insolvent -debtor must be surrendered before a claim for the balance due on the -account can be proved. If proceedings are begun by the trustee to set -aside a preferential transfer to a creditor who puts in a defense, he -cannot thereafter surrender his preference and prove his claim. If a -creditor in proving his debt fails to mention his security, if he has -any, he will be deemed to have elected to prove his claim as -unsecured. - -Claims that have been allowed may be reconsidered for a sufficient -reason and reallowed or rejected in whole or in part, as justice may -require, at any time before the closing of the estate. The -reëxamination may be had on the application of the trustee or of any -creditor by the referee, witnesses may be called to give evidence, and -the referee may expunge or reduce the claim or adhere to the original -allowance. - -The appointment of the trustee by the creditors at their first meeting -is subject to the approval or disapproval of the referee or the judge. -Should the creditors make no appointment the court appoints one. As -soon as he has been appointed it is the duty of the referee to notify -him in person or by mail of his appointment. If he fails to qualify -or a vacancy occurs, the creditors have an opportunity to make another -appointment. If a trustee accepts he must give a bond with sureties -for the faithful performance of his duties. He may also be removed for -cause after notice by the judge only. Should he die or be removed -while serving, no suit that he was prosecuting or defending will abate -but will be continued by his successor. - -The trustee represents the bankrupt debtor as the custodian of all his -property that is not exempt; also the creditors, and gathers all the -bankrupt's property from every source and protects and disposes of it -for the best interests of the creditors, and pays their claims. In -short, he succeeds to all the interests of the bankrupt, is an officer -of the court and subject to its orders and directions. He must deposit -all moneys received in one of the designated depositories, can -disburse money only by check or draft, and at the final meeting of the -creditors must present a detailed statement of his administration of -the estate. During the period of settlement he must make a report to -the court in writing of the condition of the estate, the money on -hand, and other details within the first month after his appointment, -and bi-monthly thereafter unless the court orders otherwise. - -The federal Bankruptcy Act prescribes what property passes to the -trustee and also what is exempt. Whatever property on which a levy -could have been made by judicial process against the bankrupt passes -to the trustee. On the other hand, the income given to a legatee for -life under a will providing it shall not be subject to the claims of -creditors does not pass to the trustee. If the bankrupt has an -insurance policy with a cash surrender value payable to himself or -personal representatives he may pay or secure this sum to the trustee -and continue to hold the policy. And a policy of insurance payable to -the wife, children, or other kin of the bankrupt is no part of the -estate and does not pass to the trustee. - -After one month, and within a year from the adjudication of -bankruptcy, the bankrupt may apply for a discharge. The petition must -state concisely the orders of the court and the proceedings in his -case. Creditors must have at least ten days' notice by mail of the -petition, and then the judge hears the application for discharge, and -considers the proofs in opposition by the parties in interest. Unless -some creditor objects and specifies his ground of objection, the -petition will be granted. The Bankruptcy Act states several reasons -for refusing a discharge, especially when the bankrupt has concealed -his property instead of making an honest, truthful statement -respecting it, or has not kept proper books of account with the -fraudulent intent to conceal his true financial condition and defraud -his creditors. - -Lastly a person may be punished by imprisonment for two years or less -on conviction of having knowingly and fraudulently concealed, while a -bankrupt or after his discharge, any property belonging to his estate -as a bankrupt, or made a false oath in any bankruptcy proceeding, or -made any false claim against his estate or used such a claim in making -a composition with his creditors. - - -=Beneficial Associations.=--Beneficial associations possess a varied -aspect, they are both social and business organizations. Often the -members are bound together by secret obligations and pledges. -Trades-unions have a double nature, they are created for both -beneficial and business purposes. Originally their beneficial -character was the more important feature. Benefit societies may be -purely voluntary associations or incorporated either by statute or -charter. - -The articles of association formed by the members are essentially an -agreement among them by which they become bound to do specified things -and incur liabilities. They thus establish a law for themselves -somewhat like a charter of a corporation. They may adopt such rules as -they like provided they are not contrary to the laws of the land. As -the members, having made the rules, are presumed to know them, they -are therefore bound by them. - -The legal status of such associations, their right to sue and be sued, -the liability of the members to the public for the debts of the -association, though most important questions, are not as well settled -as they might be. In many states statutes exist defining their right -to sue and be sued, and their liability to creditors. Yet these -statutes do not cover all cases. Generally persons who associate for -charitable or benevolent purposes do not regard themselves in a legal -sense as partners. Nevertheless in fixing their liability to -creditors, dividing their property, and closing up their affairs, the -courts often, though not always, treat their association as a -partnership, and the members as partners. Thus the highest court in -New York declared that an unincorporated lodge, which had been -mis-managed, was not a partnership. The members sought to dissolve the -lodge, and distribute its property. The court said there was no power -to compel the payment of dues, and the rights of a member ceased after -his failure to meet his annual subscription. On the other hand, the -supreme court in the same state held that the members of a voluntary -association were liable to its creditors by common law principles. -"Where such a body of men join themselves together for social -intercourse and pleasure, and assume a name under which they commence -to incur liabilities by opening an account, they become jointly liable -for any indebtedness thus incurred, and if either of them wishes to -avoid his personal responsibility by withdrawal from the body, it is -his duty to notify the creditors of such withdrawal." - -If one or more members order work to be done or purchase supplies, he -or they are personally liable unless credit was given to the -association. - -What can the members do? They cannot change the purpose for which the -association was formed without the consent of all, still less can the -executive board convert the association into a corporation. No member -has a proprietary interest in the property, nor right to a -proportionate part while he is a member, or after his withdrawal. -Should an association dissolve, then the members may divide its -property among themselves. - -Sometimes a quarrel springs up in one of these associations, the -members divide, who shall have the property? The members of more than -one church organization have fought this question, first among -themselves, afterwards in the courts. Suppose a quarrel breaks out in -a branch association and two parties are formed, which of them is -entitled to the property? The party that adheres to the laws and -usages of the general organization is regarded as the true -association, and is therefore entitled to the enjoyment of the -property. Though that party may be a minority of the faithful few, the -members are enough to continue the organization. - -Sometimes societies of a quasi religious character exist which persons -join, surrendering their property and receiving support. Suppose a -member should leave, and afterwards sue to recover his property. This -has been attempted, and usually ends in failure. - -Are benefit societies charities? This question is important from the -taxpayer's view, as charitable associations are taxed less than others -or perhaps entirely relieved. An Indiana court has decided that a -corporation which promises to pay a fixed sum as a benefit during a -member's illness--he of course paying his dues--is not a purely -benevolent organization, and therefore not exempt from taxation. -Masonic lodges on the other hand, are generally regarded as charitable -institutions. "The true test," says a judicial tribunal, "is to be -found in the objects of the institution." - -Again, a voluntary association may conduct in such a way as to create -the impression or belief that it is a corporation, and is forbidden -from denying its corporate liability for an injury or loss to a third -person. It is a familiar rule that a person who transacts business -with a partnership in the partnership name may hold all the members -liable as partners, though he did not know all their names. This rule -has sometimes been applied to a voluntary association, making it -responsible as a corporation. - -The articles of association regulate the admission of members. A -physician who applied for membership in a medical society was rejected -because of unprofessional conduct. A code of medical ethics adopted by -the society was declared to be binding only on the members, and -therefore did not touch the conduct of one prior to his becoming a -member of the society. If the membership of a society is confined to -persons having the same occupation, a false representation concerning -one's occupation would be a good reason for his expulsion. In -admitting a member, if no form of election has been prescribed, each -candidate must be elected separately. This must also be done at a -regular meeting or at one properly called for that purpose. A call -therefore to transact any business that may be legally presented is -not sufficient. - -If a society requires a ceremony of initiation, is the election of a -member so complete that he is entitled to benefits without proper -initiation? In one of the cases the court said: "The entire system, -its existence and objects, are based upon initiation. We think, there -can be no membership without it, and no benefit, pecuniary or -otherwise, without it." - -Controversies concerning property rights of religious societies are -generally decided by one of three rules: (1) "was the property a fund -which is in question devoted to the express terms of the gift, grant -or sale by which it was acquired, to the support of any specific -religious doctrine or belief or was it acquired for the general use of -the society for religious purposes with no other limitation; (2) is -the society which owned it of the strictly independent or -congregational form of church government, owing no submission to any -organization outside of the congregation; (3) or is it one of a number -of such societies, united to form a more general body of churches, -with ecclesiastical control in the general association over the -members and societies of which it is composed." - -Many benefit societies provide for the payment of money to their sick -members. The rules providing for the payment of these may be changed -at any time as the constitution or articles of association of a -society may prescribe. Consequently an amendment may be made -diminishing the weekly allowance to a member who is sick, and also the -time of allowing it. Of course in applying for the benefits a member -must follow the modes prescribed. - -The power to expel members is incident to every society or association -unless organized primarily for gain. Gainful corporations have no such -power unless it has been granted by their charter or by statute. The -revision of the list of members by dropping names is equivalent to the -expulsion of those whose names are dropped, and by a majority vote or -larger one as the rules of the society may require. Nor can the power -of expulsion be transferred from the general body to a committee or -officer. The power to expel must be exercised in good faith, not -arbitrarily or maliciously, and its sentence is conclusive like that -of a judicial tribunal. Nor will a court interfere with the decision -of a society except: first, when the decision was contrary to natural -justice and the member had no opportunity to explain the charge -against him; secondly, when the rules of the association expelling him -were not observed; thirdly, when its action against him was malicious. -Nor will a court interfere because there have been irregularities in -the proceedings, unless these were of a grave character. - -The charges must be serious, a violation of a reasonable by-law is a -sufficient charge. To obtain, by feigning a qualification which did -not exist, membership in a trades-union is sufficient cause for -expulsion; so is fraud in representing one's self in his application -for membership when in fact he has an incurable disease. On the other -hand, the following charges are not sufficient to justify expulsion or -suspension: slander against the society, illegally drawing aid in -time of sickness, defrauding the society out of a small sum of money, -villifying a member, disrespectful and contemptuous language to -associates, saying the lodge would not pay and never intended to pay, -ungentlemanly conduct. In harmony with a fundamental rule of law, a -member who has once been acquitted cannot be tried again for the same -offense. - -As subordinate lodges of a benefit society are constituent parts of -the superior governing body, there may be an expulsion from membership -in a subordinate lodge for violating laws which generally caused -expulsion from the society itself, and there may be a conditional -expulsion or suspension. If an assessment is not paid at the fixed -time, its non-payment, by the laws of the order, works a suspension, -though a member may be restored by complying with the laws of the -order. - -An appeal by a member of a subordinate lodge from a vote of expulsion -does not abate by his death while the appeal is pending. If, -therefore, the judgment of the lodge is reversed, the beneficiary of -the member is entitled to the benefits due on the member's death. A -member who has been wrongfully expelled may be restored by a mandamus -proceeding issued by a court. Before making the order the court will -inquire into the facts and satisfy itself whether in expelling the -applicant the society has properly acted in accord with its rules. -Unless some rule or statute forbids, a member of a voluntary -association may withdraw at any time. When doing so, however, he -cannot avoid any obligations incurred by him to the association. On -the other hand, it cannot, after his withdrawal, impose any other -obligations on him. - -It has often been attempted to hold the members of an association -liable personally for a promised benefit in time of sickness. Says -Bacon: "It may be a question of construction in each particular case -whether the members are personally liable or not. The better rule -seems to be that the members are not held personally liable." - -An association cannot by its constitution or by-laws confer judicial -powers on its officers to adjudge a forfeiture of property rights, or -to deprive lodges or members of their property and give it to another, -or to other members. To allow associations to do this is contrary to -public policy. For the same reason an agreement to refer future -controversies to arbitration cannot be enforced; it in effect deprives -a party of his rights under the law. He may do this in a known case, -this indeed is constantly done, but one cannot bar himself in advance -from a resort to the courts for some future controversy of which he -has no knowledge at the time of the agreement. This is a rule of law -of the widest application. - - -=Broker.=--A broker, unlike an auctioneer, usually has no special -property in the goods he is authorized to sell. Ordinarily also he -must sell them in the name of the principal, and his sales are -private. He receives a commission usually called brokerage. He can act -only as the agent of the other party when the terms of the contract -are settled and he is instructed to finish it. Brokers are of many -kinds. They relate to bills and notes, stocks, shipping, insurance, -real estate, pawned goods, merchandise, etc. A bill and note broker -who does not disclose the principal's name is liable like other agents -as a principal. He is also held to an implied authority, not only to -sell, but that the signatures of all the parties thereon are genuine. -Unless he indorses it he does not warrant their solvency. - -An insurance broker is ordinarily employed by the person seeking -insurance, and is therefore unlike an insurance agent, who is a -representative of an insurance company, and usually has the authority -of a general agent. A delivery of a policy therefore, to an insurance -broker, would be a delivery to his principal. He is a special agent. -Unless employed generally to keep up his principal's insurance, he has -no implied authority to return a policy to be cancelled, and notice to -him that a policy had ceased, would not be notice to his principal. - -An insurance broker must exercise reasonable care and diligence in -selecting none but reliable companies, and in securing proper and -sufficient policies to cover the risks placed to be covered by -insurance; and if he selects companies which are then in good standing -he would not be liable should they afterward become insolvent. - -Merchandise brokers, unless factors, negotiate for the sale of -merchandise without having possession or control of it. Like other -agents they must serve faithfully and cannot act for both parties, -seller and buyer, in the same transaction, without the knowledge and -consent of both. In many transactions he does thus represent both by -their express or implied authority, and therefore binding both when -signing for them. - -A real estate broker in the employ of his principal is bound to act -for his principal alone, using his utmost good faith in his behalf. -And a promise by one of the principals in an exchange of real estate, -after the completion of the negotiations, to pay a commission to the -other party's broker, to whom he owed nothing, is void for lack of a -consideration. - -To gain his commission a broker must produce a person who was ready, -able and willing both to accept and live up to the terms offered by -the owner of the property. Nor can a property owner escape payment of -a broker's commission by selling the land himself and at a price less -than the limit put on the broker. - -The business of a pawnbroker is legally regulated by statute, and the -states usually require him to get a license. As the business may be -prohibited, a municipality or other power may regulate and control his -business. The rate of interest that he may charge is fixed by statute. -The pawnee may lose his right by exacting unlawful interest. Nor has -the pawnee the right to retain possession against the true owner of -any article that has been pawned without his consent or authority. If -the true owner has entrusted it to someone to sell, who, instead of -selling, pawns it, the pawner is protected in taking it as security. -The sale of pawned goods is usually regulated by statute. If none -exists, and there is no agreement between the parties, the sale must -be public after due notice of the time and place of sale. If there is -any surplus, arising from the sale, he must pay it to the pawner, and -not apply it on another debt that he may owe the pawnee. The pawner, -or an assignee or purchaser of the pawn ticket may redeem it within -the time fixed by law or agreement, or even beyond the agreed time if -the pawnee has not exercised his right of sale. Subject to the -pawnee's claim, the pawner has the same right over the article pawned -as he had after pawning it, and may therefore sell and transfer his -interest as before. Lastly the pawner is liable for any deficiency -after the sale of the thing pawned, unless released by statute. See -_Agency_. - - -=Carrier.=--Carriers are of two kinds, private and public. A private -carrier may contract orally or in writing, and must use such care in -carrying the goods entrusted to him as a man of ordinary intelligence -would of his own property. If he carries these gratuitously his -obligation is still less, nevertheless he must even then take some -care of them. Suppose he agreed to carry a package for another to the -latter's home, and on the way, being weary or sleepy, should sit down -by the wayside where people often pass and fall asleep and on -awakening should find the package missing, would he be responsible? -Authorities differ. Suppose the package was a very valuable one. A -court might hold that the man who gave it to him was a fool for -entrusting such a package voluntarily with him. Suppose however that -he was a highly trustworthy man, well known throughout the -neighborhood, then no fault could be imputed to either, and the owner -would be obliged to bear the loss. - -Common carriers are far more numerous and important. Receiving a -reward they are required to exercise more care in the business. The -old rule of the common law was very strict, but this has been greatly -modified. A carrier may modify the rule by contract, and the bill of -lading received by the shipper is regarded as one, and sets forth his -liability. In a general way he can relieve himself from all liability -except from his own negligence, and there are cases which hold that he -can relieve himself even from that if the shipper, for the sake of -having his goods carried at a lower price, is willing to relieve him, -in other words is willing to assume all the risk himself. - -A carrier can limit his liability for the loss of baggage entrusted to -his care and when one receives a receipt describing the amount of the -carrier's liability in the event of loss. Nor can he hold the company -on the plea of ignorance by declaring he has not read it, for it is -his duty to read the receipt. Again, a carrier is thus liable only -when a traveler's baggage is entrusted to his care; if therefore he -keeps his grip or umbrella and on looking around makes the painful -discovery that he has been relieved of them, he cannot look to the -carrier for compensation. - -The law requires carriers to carry all who pay their fare, and are in -a sufficiently intelligent condition to take care of themselves. In -like manner the law requires them to take all freight that may be -offered, though it may make reasonable rules with regard to the time -of receiving it, mode of packing, etc. A regulation therefore that -furniture must be crated is reasonable, and a carrier may refuse to -take it unless it is thus prepared for shipment. So also is a rule -requiring glass to be boxed though the distance may be short for -carrying it. A carrier may also object to carrying things out of -season, potatoes or fruit for example in the winter in the northern -states where there is great danger of freezing, unless the shipper -assumes the risk. Vast quantities of perishable goods are carried, but -usually under definite regulations and contracts. So, too, the shipper -must declare the nature of the thing carried. Should he put diamonds -in his trunk, he could not recover for their loss, for he has no -business to carry such a valuable thing in that way. He must make -known the contents for the carrier's protection. He cannot carry an -explosive in secrecy. To attempt to do such a thing is a manifest -wrong to the carrier. - -A carrier has a lien or right to hold the freight until the charge -for transporting it is paid, but if it is delivered, the lien ceases -and cannot be restored. If the carrier keeps it until the freight -charge is paid discretion must be used, and unnecessary and -unreasonable expense must not be incurred in so doing. - -A different rule applies to carrying passengers than applies to -freight, because the latter is under its complete control, while -passengers are not. Nevertheless the law requires a high degree of -care in carrying passengers, and is responsible in money damages -should injury occur through the carrier's negligence. In many states -statutes exist limiting the amount that a carrier must pay when life -is lost through its negligence to five thousand dollars or other sum, -while a much larger sum is often recovered for an injury, loss of a -leg, arm or the like. From the carrier's point of view therefore it is -often obliged to pay less for killing than for injuring people; this -is one of the strange anomalies of the law. - -When a passenger is injured and no agreement can be made with the -carrier for compensation, a suit is the result and the chief question -is one of fact, the extent of the injury, and the degree of negligence -of the carrier. If, on the other hand, the passenger was in fault -himself and contributed to the injury then the more general rule is he -can recover nothing. In some states the courts attempt to ascertain -the negligence of both parties, when both are at fault, and then award -a verdict in favor of the one least in fault. This is a difficult rule -to apply however just it may seem to be. - -A passenger who stands on a platform or on the steps of a street car, -when there is room inside, assumes all the risks himself. But if there -is no room within and the conductor knows he is outside, and permits -him to ride, he is under the same protection as other passengers. An -interurban car had stopped and A who was carrying two valises -attempted to board it. The act of the conductor, who was on the rear -platform, in reaching down and taking one of the valises amounted to -an invitation to A to board the car. In signaling to the motorman to -start the car when A was stepping to the vestibule from the lower -step, thus causing the injury to him, was negligence for which the -company was liable. - -A sleeping car company operating in connection with ordinary trains is -not a common carrier, nor an innkeeper as to the baggage of a -passenger. Yet it is liable for ordinary negligence in protecting -passengers from loss by theft. In a well-considered case the judge -said: "Where a passenger does not deliver his property to a carrier, -but retains the exclusive possession and control of it himself, the -carrier is not liable in case of a loss, as for instance, where a -passenger's pocket is picked, or his overcoat taken. A person asleep -cannot retain manual possession or control of anything. The invitation -to make use of the bed carries with it an invitation to sleep, and an -implied agreement to take reasonable care of the guest's effects while -he is in such a state that care upon his own part is impossible. I -think it should keep a watch during the night, see to it that no -unauthorized persons intrude themselves into the car, and take -reasonable care to prevent thefts by occupants." - -There is a distinction between the great express companies of the -country and local express companies receiving baggage from travelers -for transportation to their immediate destination. In the latter case -there is nothing in the nature of the transaction or the custom of the -trade which should naturally lead the shipper to suppose that he was -receiving and accepting the written evidence of a contract, and -therefore he is not bound by the terms of the receipt received, unless -there is other evidence that he assented thereto. - -Though the United States is a common carrier for carrying mails, it -cannot be held liable because it is a branch of the government. Mail -matter may be carried by private persons, but this is limited to -special trips. By statute no person can establish any private express -for carrying letters or packets by regular trips or at stated periods -over any post route, or between towns, cities or other places where -the mail is regularly carried. - -A public officer in performing his duties is exempt from all -liability. But a postmaster is liable to a person injured by his -negligence or misconduct and for the acts of a clerk or deputy -authorized by him. The assistant unless thus shielded must answer for -his own misconduct. A rider or driver employed by a contractor for -carrying the mails is an assistant in the business of the government. -Although employed and paid, and liable to be discharged at pleasure by -the contractor, the rider or driver is not engaged in his private -service; he is employed in the public service and therefore the -contractor is not liable for his conduct. - - -=Chattel Mortgage.=--A chattel mortgage is a conveyance of personal -property, as distinguished from real property, to secure the debt of -the lender or mortgagor. The essence of the agreement is, if the -mortgagor does not repay the money as he has agreed to do, the -mortgagee becomes the owner of the property. Until the mortgagor -fails to execute his part of the agreement, he retains possession of -the property. By statutes that have been enacted everywhere, the -mortgagee's interest, or conditional title in the property conveyed to -him, is secure by recording the deed even though the mortgagor still -retains possession. - -The usual form of a chattel mortgage is a bill of sale with a -conditional clause, stating the terms of the loan and that, on the -mortgagor's failure to pay, the mortgagee may take possession of the -property. Any persons who are competent to make a contract may make a -chattel mortgage, and an agent may act for another as in many other -cases. When thus acting his authority may be either verbal, or -written, or may be shown by ratification. Persons also who have a -common ownership in chattels, tenants in common or partners for -example, may mortgage either their common or individual interests. A -husband may give a chattel mortgage to his wife, and she in turn can -give one to him. Likewise a corporation may make such a mortgage. - -The law is broader in the way of permitting a minor, married woman, or -corporation to be mortgagees when they cannot act as mortgagors of -their property. Two or more creditors may join in such a mortgage to -secure their separate debts. If the debt of one of them is fraudulent, -his fraud, while rendering the mortgage fraudulent as to him, will not -affect its validity as to the other. - -How must the mortgaged property be described? With sufficient -clearness to enable third persons to identify the property. The -description must contain reasonable details and suggest inquiries -which if followed will result in ascertaining the precise thing -conveyed. A description of a baker's stock "stock on hand," would be -too meager, so would be a description of "our books of account, and -accounts due and to become due," but cattle described by their age, -sex and location will satisfy the law, though the cattle of other -owners should form part of the same herd, when they can be ascertained -by following out the inquiries suggested by the mortgage. Again, a -description that is wholly false avoids the mortgage, but if it is -false only in part, this may be rejected and the mortgage remain valid -for the remainder. - -More generally the nature of the chattels conveyed determine largely -the character of the description. Thus animals may be described by -weight, age, height, color and breed; vehicles by their style and -manufacturer's name; furniture by piece or set; crops growing or to be -grown by their location and year. A general claim of "all" articles in -a stated place is regarded as sufficient. Oral evidence is admissible -to aid the description in identifying the subject-matter of the -mortgage, and to explain the meaning and extent of the terms of the -description. - -A mortgage may be given for a future advance of money. Nor need the -mortgage state that it is thus given; and the fact may be proved -orally. But when the right of third parties are affected, such a -mortgage is not valid against them unless the specific sum that is to -be secured is set forth. Likewise to render a mortgage secure against -attaching creditors of the mortgagor, there must be a distinct -statement of the condition or terms of the mortgage; in other words -the creditors have a right to know what interest the mortgagee really -has in the property that secures to him rights superior to their own. -The rule should also be stated that where the rights of third parties -are in issue, it must appear that the mortgagee acquired the mortgage -before they had any rights to the property. - -The statutes require that chattel mortgages should be acknowledged and -recorded. In some states the requirements are strict in respect to the -disinterestedness of the official who takes the acknowledgment. An -affidavit is another requirement. This must state several things, -especially that the mortgage was given in good faith, and the nature -and amount of the consideration. - -What may be mortgaged? In general, any personal property that may be -sold; many of the statutes define it. They cover a life insurance -policy, corporation stock, railway rolling stock, seamen's wages, -growing crops and trees, profits from the use of a steamboat, premiums -earned by a horse, book accounts, leasehold interests, nursery stock, -besides many other things. Whenever fixtures annexed to real estate -retain the character of personal property they may be mortgaged. And -when animals are mortgaged their natural increase are included. A -mortgage made of an unfinished article will hold the article when -finished if it can be identified. - -By the common law nothing could be mortgaged that was not in existence -at the time of the mortgage. By statute a mortgage may cover -after-acquired property, and this statute has become very important -especially with merchants, manufacturers, and others who are -constantly changing their stocks of goods. - -When the mortgagor fails to pay his debt, the right of the mortgagee -to proceed in taking the property is usually regulated by statute, -except when the parties have agreed themselves and in conformity with -statute. The rights of the mortgagee depend in many cases on the -title, whether that has passed to him by virtue of the mortgage, or -whether it still remains conditionally in the mortgagor. Where the -mortgagor still retains the title, a clause is often put into the -mortgage to the effect that, should the mortgagor default in payment, -the mortgagee may take possession of the property and sell it; and -such a provision is valid and enforcible. Where the title is vested or -transferred to the mortgagee by virtue of the mortgage, this is -equivalent to giving him possession whenever he chooses to demand it. -In other states the mortgagee's discretion is not so broad, before -taking possession he must have reasonable grounds for believing -himself insecure, that the mortgagor has done, or threatens to do, -something that would impair the mortgagee's security. - -Where the common law prevails and no statute has been enacted -regulating the rights of parties, an important question is still -unsettled in cases of a mortgage given on a stock of merchandise which -permits the mortgagor to remain in possession and to sell the property -mortgaged in the course of trade. Can he do this? In many states such -a mortgage is regarded as fraudulent to creditors, in other states if -such a mortgage is not, on proper judicial inquiry, proved to be a -fraud, it will be upheld. - -A provision in a mortgage that it shall cover after acquired property -is regarded in some states as an executory agreement that it shall be -held by the mortgagee as security; and the mortgagee may take -possession of it, should the mortgagor fail to pay his debt, in -accordance with his promise, before the rights of third persons have -intervened. See _Mortgage_. - - -=Chauffeur.=--In many states minors are forbidden by statute to run -automobiles. If therefore the owner of a car permits a minor to drive -his car, he may be held liable for the injuries resulting from the -driver's negligence. Should a chauffeur's license not disclose -physical disabilities the license is not void, nor is he a trespasser -in operating the machine on the highway. Such a license though -defective is valid until revoked by the proper authority. - -If discharged before the expiration of the term of his employment, an -employer is still liable for his chauffeur's pay unless he has been -unwilling or unable to fulfill his contract. If, however, he has been -prevented by sickness or similar disability, he can recover, not -perhaps the amount stated in the contract, but the worth of his -services during the period of serving his employer. - -A chauffeur may recover damages from his employer for injuries -received while operating his car. The basis of the action is his -employer's negligence. If the engine "kicks back" while he is cranking -the car, and the employer contributed to the result by moving the -spark lever, he is liable. If he is injured while running a car from a -defective brake of which he had knowledge, he cannot recover. But if -the employer knew, and the chauffeur did not know that the brake was -defective, he could recover if injured in consequence of it. The -employer is under no duty to warn his chauffeur of obvious dangers, or -instruct him in matters that he may be fairly supposed to understand. -If a chauffeur is riding at the owner's request, who is driving the -car, he may recover if injured by the negligence of the owner in -running the machine. Under the Workmen's Compensation Laws a chauffeur -who is injured while running his car beyond the speed limit -prescribed by statute can recover nothing. Nor is he justified by the -custom of other chauffeurs in disregarding the rule. Lastly, if the -owner of a car is injured, physically or financially, by reason of the -wrongful conduct of his chauffeur, he has a remedy against him. See -_Automobile_; _Garage Keeper_. - - -=Check.=--A check should be properly signed. A check signed by an -individual with the word "agent," "treasurer," or other descriptive -term, has sometimes been regarded as the check of the individual -signer, and not that of a principal or company. The proper way is to -sign the name of the principal or company, adding the name of the -person by whom this is done, thus: "John Smith by John Doe, agent," or -"The Atlas Co. by John King, Treasurer," or other official -designation. - -The statement will not accord with the view of many a reader, that a -bank on which a check is drawn is under no legal agreement with the -holder to pay it, whether the maker has a sufficient deposit or not. -Consequently, should the bank refuse to pay, the holder has no cause -of action against the bank. The agreement to pay is between the bank -and the depositor, and if the bank fails to fulfill its agreement with -him, he has a just cause for complaint. Sometimes a bank declines to -pay supposing, through an error of bookkeeping perhaps, that the -depositor has not money enough there to pay his check. In such a case, -as the bank is in the wrong, if the depositor has suffered from loss -of credit or in any other way from the bank's action, it must respond -and make the loss good. - -Suppose a person presents a check and the maker's deposit is not -enough to pay the full amount, what can be done? Usually the bank -declines to pay. Suppose the holder says he is willing to give up the -check and take the amount in the bank? There is no reason why the bank -should not accede to his wishes. Suppose a bank should pay more than -the amount on deposit through no fraud of the holder, from whom can it -recover the amount? If the holder has been free from wrong in -presenting the check, the bank cannot look to him, but to the drawer -for repayment. If the maker of a check has no money in the bank, -perhaps he may not be a depositor, he commits a fraud in making and -giving his check to another, and the offense in many states is deemed -a crime: likewise a person who receives such a check knowing its true -nature is equally deep in the wrong. - -The law is very strict in its requirement of banks when paying the -checks of customers. After a check has been delivered and has -therefore passed beyond the maker's control, the law requires the -greatest care on the part of a bank in paying it. The bank must be -especially careful in examining the signature and the amount, and if -the signature has been forged, or the amount changed, the bank is -liable for an improper payment. Once an employer gave his trusted -clerk a post-dated check, which he was to present on the day -specified, and, after drawing the money, was to pay this to his -employees. The clerk changed the date to an earlier one, drew the -money, kept it and fled. The court said the bank should have detected -the alteration. The bank contended that had the clerk waited until the -proper day, and then drawn the money, it would not have been liable. -The court said that was not the case presented, the clerk did not -wait. Banks suffer, far more than the public knows, from the payment -of raised checks, for it is quite impossible always to detect them, -yet banks are held liable therefor. - -There are two rules relating to the payment of checks worth -mentioning. One is, the maker of a check should use proper precaution -in making it. He should write in a way that will not be likely to -confuse the paying official. For instance, if in the above case the -maker, intending to give a post-dated check, had written the date so -imperfectly that the teller was misled, the bank would not have been -liable for paying it, or for refusing to pay because there was not -money enough in the bank at the time of presentation for payment. Some -persons are very careless in making figures; when they are, they -cannot look to the bank for the ill consequence of their own neglect. - -Again, if a bank paid forged checks, for example, which were returned -with other checks on the balancing of a depositor's book, and months, -perhaps years afterward, the depositor discovered the forgeries or -forged indorsements, he could, notwithstanding the lapse of time, -demand of the bank the sums wrongfully paid. This was a great hardship -to banks, and has been corrected in many states by statutes and by the -courts in others. The rule now is, the depositor must, within a -reasonable time after the return of his bank book, examine it, also -his checks, and, if payments have been improperly made, demand -immediate correction. - -The holder of a check should demand payment within a reasonable time -after he has received it. He may keep it longer if he pleases, but if -he does, and the bank should fail, he cannot demand payment again from -the maker of the check. He in effect says to the holder of the check -when giving it to him, "present this check to the bank within the -proper time and it will be paid, if you keep it longer, you do it at -your risk." What is a reasonable time? The law has fixed it. If the -bank is in the town or city where the holder of the check dwells, he -must present it the day he received it, or the next day. If it is -drawn on a bank outside, the check must be forwarded for presentment -at the latest on the day after it is received. With respect to the -first class of checks therefore if the maker and receiver are both -depositors of the same bank, the operation on the part of the bank -consists simply in debiting one account and crediting another with the -amount; if checks are drawn on another bank in the same city the -receiver usually deposits them in his own bank and they are paid -through the clearing house the next day. - -A drawer may stop the payment of his check. And when he requests the -bank to do so it must heed his instruction, and is liable if -neglecting, though not always for the whole amount of the check. -Suppose the check was given for a bill which the maker actually owed, -yet for some reason, after giving the check, he did not wish to pay. -If it was actually due and undisputed it would be hardly just to -require the bank to pay the check over again to the holder, this would -be too much. But for whatever injury the maker of the check may have -sustained the bank must make good. - -When a check has been certified by the bank on which it is drawn, the -effect of the certification after the drawer has parted with it "is -precisely as if the bank had paid the money upon that check instead of -making a certificate of its being good." The check is charged up to -the maker, or should be, and therefore as between him and the bank has -been paid. - - -=Citizen.=--In modern usage this means a member of the body politic -who owes allegiance to the nation and is entitled to public -protection. One may be a citizen of the United States without being a -citizen of any state, for example, a citizen of the District of -Columbia, or the territory of Alaska. Citizen-ship implies the duty of -allegiance to the government, and the right of protection from it. A -citizen of the United States who resides in a state owes a double -allegiance, and can demand protection from each government. For the -ordinary rights of person and property he looks to the state for -protection. The rights for which he can seek the protection of the -United States are only such as are established by the constitution and -federal laws. For some purposes even a corporation may be included -within the term citizen, for example the right to sue in the federal -courts as a citizen of the incorporating state. - -By the fourteenth amendment of the federal constitution, all persons -born in the United States and subject to its jurisdiction are citizens -of the United States. In 1855 Congress passed an act conferring -citizenship on alien women who should marry American citizens. An -American woman therefore who marries an alien takes the nationality of -her husband. When her marital relation ends she may elect to retain -her marital or her original citizenship. Since minor children follow -the status of their parent, by the marriage of an alien widow to an -American citizen, her children also become American citizens. - -An alien may be naturalized. To do this he must have continuously -resided in the United States for five years before his application, -and he must have appeared in court at least two years before, and -there declared his intention to become a citizen of the United States -and to renounce allegiance to his former sovereign. He must prove by -the oath of at least two persons his residence, also during that time -that he has behaved as a man of good moral character and attached to -the principles of the federal constitution. He must take an oath to -support and defend the constitution and laws of the United States and -renounce allegiance to any foreign prince. The naturalization of a -person confers citizenship on his minor children if dwelling in the -United States, also on his wife, unless she is of a race incapable of -American citizenship. - -The rights of aliens, from the very beginning of the American -government, have been expanded by treaty provisions and by liberal -legislation. In nearly all the states resident aliens were given the -right to take title to land, whether by deed or by inheritance, to -hold such real estate and to transfer it by law or by descent. In some -states they were given the right to vote and hold office. And at -common law they were entitled to purchase, own and sell personal -property, engage in business and to make contracts and wills. By the -fourteenth amendment to the federal constitution their rights and -privileges have been further secured. - -Aliens owe to the country in which they reside a temporary and limited -allegiance, that is, an obligation to obey its laws and subject -themselves to the jurisdiction of the courts. A non-resident alien is -not within the terms of the fourteenth amendment, indeed it is -doubtful if he can ask any aid or relief under the state or federal -constitutions. A statute therefore imposing a higher inheritance tax -on property passing to a non-resident alien than on his property if he -resided here is valid. Non-resident aliens can acquire no rights -incident to residence here except as permitted by the federal -government. This power may be exercised, either through treaties made -by the president and senate, or through statutes enacted by congress. -So congress has excluded not only diseased, criminal, pauper and -anarchist immigrants, but also contract and Chinese laborers. - - -=Contracts.=--At the outset the various kinds of contracts should be -explained so that the principles which apply to them may be better -understood. One of the divisions is into simple contracts and -specialties. A simple contract may be verbal or it may be in writing, -but no seal is appended to the signatures of the parties. A specialty -is in writing and a seal is added to the signature. A written contract -may be a duplicate of another with a seal, yet the two belong to -different classes and different rules of law apply to them as we shall -learn. - -Another classification is into executed and executory contracts. An -executed contract, as the name implies, is completed, an executory -contract is to be executed or completed. An unpaid promissory note is -an executory contract, when paid it becomes an executed one. - -Another classification is into express or implied contracts. An -express contract is one actually made between two or more persons or -parties; an implied contract is one that the law makes for the -parties. Suppose a man worked a day for another at his request, and -nothing was said about payment, the law would require him to pay a -reasonable sum for his day's work. Another kind of contract -technically called quasi contract differs somewhat from an implied -contract and will be explained in another place. - -To every contract there must be two or more parties, who have the -legal right to make it. Not every person therefore who wishes to make -a contract can legally do so. Of those whose ability to contract are -limited are minors or infants. The period of infancy is fixed by law, -and is therefore a conventional, yet needful regulation. In most -states infancy ends at the age of twenty-one, though some states fix a -younger period, eighteen for women. A person becomes of age at the -beginning of the day before his twenty-first birthday. The reason for -this rule is, the law does not divide a day into a shorter period or -time except when this is required in judicial proceedings. Another -class of incapable contractors are married women. Their disability -however has been largely removed by statutes in all the states, as we -shall learn in another place. - -Insane and drunken persons also are under disability to make -contracts. By the old law a drunken man who made a contract was still -liable, and required to fulfill as a penalty for his conduct. A more -humane rule now prevails and he can be relieved, though like a minor, -if he wishes to avoid a contract, he must return the thing purchased, -in other words he can take no advantage of his act to the injury of -the other contracting party. If however he has given a negotiable note -that has passed into the possession of an innocent third person, who -did not know of his drunkenness at the time of making it, he can be -held for its payment. It is not quite so easy to state rules that -apply to insane persons because their conditions vary so greatly. A -person may be insane in some directions and yet his insanity may not -be of a kind affecting his capacity to make at least some kind of -contracts. Again, he may have lucid intervals during which he is -quite as capable of contracting as other persons. And again when an -insane man has made a contract, the relief to which he is entitled -depends on circumstances. In some cases he may repudiate it, a partial -fulfillment only may be required. - -The law has much to say about the consideration that is an element in -every contract; in other words, there must be a cause, something to be -gained by the parties in every contract to sustain it. If A should -promise to give to B a house next week, and on the day fixed for -transferring it A should change his mind, he could not be compelled to -transfer it, for the promise would be without any consideration or -thing coming from B. But if the house had been transferred, A could -not afterwards repent of his act and demand its return. An executed -gift therefore, free from all fraudulent surroundings, is valid: the -donor of an executory gift is free to withhold its execution. - -A consideration need bear no relation or adequacy to the other thing -that is to be received. Nothing is more frequent than a one-sided -contract, in which one party has gained far more than the other. If -the law attempted to adjust these cases, many more courts would be -needed than now exist. - -We will briefly note the need of consideration in some classes of -cases. First, a voluntary undertaking to work for another without -compensation cannot be enforced. Under this head is the promise to pay -the debt of another. Why should one do such a thing? Let us remember -that should one make such a promise and keep it, the money could not -be recovered back, that is quite another thing. Again, if A owed B a -debt and delayed payment, and B should say to him, "if you will pay me -half of it next week I will give up the rest," B would not be bound -by his promise. Suppose that B learning that A had ample means to pay, -should sue him, A could not relieve himself from liability by offering -to pay the amount A promised to take in settlement of the debt. But -should B accept one half, in fulfillment of his promise, that would be -the end of the matter. - -Again should a bank defaulter make good the amount taken, and the -directors, in consideration thereof, promise to take no steps towards -his prosecution by the government, there would be no valid -consideration to sustain the promise. The state would be just as free -to prosecute him as before. Very often such criminals are not -prosecuted after returning all or a part of their unlawfully taken -money, nevertheless no settlement of this kind stands in the way of -prosecution. - -Suppose A agreed to work for B for a month and, after working a week, -should leave him without good reason, can he recover for his week's -work? If he can get anything, he cannot claim it under his contract -for he has broken it and therefore a court could not enforce it. If he -can recover anything it is on the implied contract which the law -makes, the worth of his work after deducting the loss to his employer. -Suppose the employer should prove that he had lost more by A's going -away when he did than he had gained by his week's work, he could -recover of B, for the rule works both ways. In some states he cannot -recover anything, for, having broken his contract, he has no standing -in court. - -Suppose one signs his name to a subscription paper, calling for the -payment of money, to build a church, for example, and the designated -amount has been subscribed, can a subscriber refuse to pay? He -cannot. Suppose he withdraws before the subscriptions have been -completed, what then? He can refuse. If a subscription has not been -completed, death operates as a revocation and the subscriber's estate -is not held for the amount. Sometimes a moral obligation to pay money -is a good consideration for a promising to pay it. Thus if one owes -another for a bill of goods, and the debt has ceased to be binding by -lapse of time, yet he should afterwards promise to pay, he could be -held on his promise because there was a good consideration for the -debt. Lastly a contract may be modified by mutual agreement without -another consideration. - -Another element in a contract is mutuality, a meeting of minds in the -same sense. In every contract there is an offer made by one party and -an acceptance or refusal by the other. When an acceptance occurs, -there is a meeting of minds, or an assent. Very often the parties do -not understand each other, they acted hastily, ignorantly perhaps, -their minds did not really meet in the same sense. In such cases there -is no contract. - -Generally the acceptance must be at the time of receiving the offer. -If it is not, there is no meeting of minds, no assent. A person -however may make an offer on time, this is common enough. When this is -done the other party must furnish some kind of consideration to make -the offer good for anything, otherwise the offerer can withdraw his -offer whenever he pleases. Many an offeree has been disappointed by -the action of the other party in withdrawing his offer, yet the -offerer has been clearly within his rights in doing so when he has -received no consideration for giving the other party time to think -over his offer. - -An eminent jurist has said "that an offer without more is an offer in -the present to be accepted or refused when made. There is no time -which a jury may consider reasonable or otherwise for the other party -to consider it, except by the agreement or concession of the party -making it. Until it is accepted it may be withdrawn, though that be at -the next instant after it is made, and a subsequent acceptance will be -of no avail." - -If no time is given, or no consideration for the time given, an offer -therefore may be withdrawn as soon as made if not accepted. A person -may suddenly think of something which leads him to withdraw his offer -as soon as it is out of his mouth, and in doing so is within his -rights, but if he does not, how long does his offer last? A reasonable -time. What this is depends on many things, one of the questions like -so many others in the law to which no definite answer can be given. An -offer to sell some real estate was accepted five days afterward, this -was held to be within a reasonable time. One can readily imagine cases -in which five days would not be thus regarded, or even five hours. - -When does assent occur in contracts made by correspondence? The rule -is in nearly every state (Massachusetts being the chief exception) -where an offeree has received an offer by letter and has put his -acceptance in the postoffice, the minds of the parties have met and -made a contract. The post-office is the agency of the offerer both to -carry his offer and bring back the return. If the offeree should use a -different agency, the telegraph for instance, to convey his -acceptance, it would not be binding until the offerer had received and -accepted it. Of course, an offerer by letter may withdraw his offer at -any time. Suppose he should receive an acceptance by letter or -telegraph but deny it, and insist that no contract had been made. Then -the controversy would turn on the proof. If the acceptance had been by -letter, and the offeree could prove that the offeree had written and -mailed it, the offeree's proof would be complete. If the offeree sent -a telegram, then he would be obliged to prove the delivery of the -dispatch. Suppose one should mail a letter of acceptance, but before -its receipt by the offerer, should send a telegram declining the offer -which was received before the letter of acceptance? The acceptance -would stand, for as there had been a meeting of minds when the letter -was put into the postoffice, the offeree could not afterwards withdraw -his offer. A person who makes an offer cannot turn it into an -acceptance. An old uncle wrote to his nephew that he would give thirty -dollars for his horse and added, "If I hear no more about the matter, -I consider the horse is mine." The game did not work, for no man can -both make and accept an offer at the same time, and that is what the -foxy uncle tried to do. - -Offers and rewards are often made through the newspapers. Thus the -owner of a carbolic smoke ball offered to pay a specified sum to any -one who suffered from influenza after using one of his smoke balls in -accordance with directions if he was not cured. A person who failed to -receive the benefit advertised recovered the reward. Two other cases -may be mentioned that illustrate the uncertainty of the law. An -excited farmer offered the following reward, "Harness stolen! Owner -offers $100 to any one who will find the thief, and another $100 to -prosecute him!" The farmer cooled off and declined to pay after the -thief was caught and the court relieved him, declaring that his -advertisement was not an offer to pay a reward, but simply an -explosion of wrath. In another case a man's house was burning, and he -offered $5,000 to any one who would bring down his wife dead or alive. -A brave fireman accomplished the feat. This offerer too cooled off and -declined to pay, but he did not escape on the ground that this was -only an explosion of affection, and was obliged to pay. - -Lastly a contract dates from the time of acceptance, and is construed -or interpreted by the law of the place where it was made. If it is to -be performed in another place, then the parties must be governed by -the law of that place in performing it. - -A contract having been made, next follows its execution. When a -contract is not executed, or not executed properly, the party injured -usually may recover his loss. Sometimes the contract states what the -offending or wrongful party must pay should he fail to execute it. -Many questions have arisen from such agreements. Suppose a contractor -agrees to build a home for another and to finish it within a fixed -time, and, failing to do so, shall forfeit or pay to the other $5,000 -as a penalty for his failure. One would think that if he failed to -execute it the other party could demand the $5,000. But the courts -have a way of their own in looking at things. Suppose the contractor's -failure did not in fact result in any loss whatever to the other -party? The courts in such a case are very reluctant to enforce the -agreement. If there had been a loss, something like that amount, then -the courts would compel him to pay. In other words, the most general -rule is, notwithstanding such a clearly written agreement, the courts -seek to do justice between the parties. Whenever the parties do not -attempt to fix the damages themselves, should their contract not be -fulfilled, then the amount that may be recovered depends on a great -variety of circumstances. Suppose a woman should go to a store to buy -a piece of silk. She asks if the piece shown to her by the saleswoman -is all silk, who makes an affirmative reply. The buyer knows much more -about it than the saleswoman, which is often the case in buying -things, and knows it is half cotton, can the buyer recover anything? -Surely she has not been deceived. The seller may have tried to fool -her but did not, and having failed, the buyer has no legal ground for -an action. On the other hand, if the buyer was ignorant, knew nothing -about silk and had been deceived by the seller, then she would have a -clear case. This is one of the fundamentals in that large class of -cases growing out of deceit. The party seeking redress, must have been -deceived, and also injured by the deceit in order to recover. The -remedies that may be employed whenever contracting parties have -failed, or partly failed to fulfill their agreements or promises will -be considered under other heads. See _Deceit_; _Drunkenness_; _Quasi -Contract_. - - -=Corporations.=--There are many kinds of corporations. Those most -generally known are business corporations; and though many of them are -very large, legally they are private corporations. A railroad -corporation, though performing a public service, nevertheless is a -private corporation. - -Public corporations are formed for governing the people and are often -called municipal corporations. They are created or chartered by the -legislatures of the states wherein they exist. Formerly, all private -corporations in this country were granted charters by the legislative -power, and many corporations are doing business by virtue of the -authority thus granted to them. More recently general statutes have -been enacted whereby individuals may form such corporations without -the aid of a legislature. Authority has been conferred on the courts, -secretary of state, or other official to grant to individuals, who may -apply for them, charters on complying with the requirements of these -statutes. There are other kinds of corporations, religious, charitable -and the like; only one other need be mentioned, to which the term -quasi has been applied. These resemble corporations in some ways, and -this is the reason for calling them quasi corporations. A county or -school district is such a corporation. The supervisors of a county, or -the trustees of a school district, can make contracts, own and manage -real estate for their respective bodies, sue and be sued like the -officers of other corporations. - -By the general comity existing between the states corporations created -in one state are permitted to carry on any lawful business in another, -and to acquire, hold and transfer property there like individuals. - - -FORMATION OF CORPORATIONS. - -Formerly charters were granted to corporations for a long term of -years, or forever. The policy of the law has changed in this regard, -and the duration of their existence is limited to a comparatively -short period. The life of a national bank is only for twenty years; at -the end of that period the charter is renewed, and the charters of the -older national banks have been renewed several times. Perpetual -charters are infrequently granted, and some of the older ones have -been limited by legislative or judicial action. A private corporation -had perpetual authority to build and maintain a bridge across the -Susquehanna River at Harrisburg, nor could any other company build one -within the distance of ten miles above or below. Notwithstanding this -clear and exclusive grant, another company was formed which attempted -to build a bridge within a mile of the other. The old company tried to -prevent by law the new company from building the bridge. The court -said that "perpetual" did not mean literally perpetual, but a long -time, that the old company had enjoyed its exclusive grant a long -time, long enough, and that the new company was justified in its -undertaking. - -A corporation has no heirs like an individual; it continues through -succession, one sells his interest or stock to another, and thus it -lives to the end of its charter unless it fails or, through some other -event, comes to an end. Suppose a stockholder buys all the stock of -the other members, does the corporation still exist? It does for a -limited time. How long? No court has answered this question. It -depends on the particular case. The courts also say, that he can sell -his stock to other individuals and thus practically revive a dying -corporation. A stockholder who had bought all the stock of a -corporation claimed that he should be taxed as a corporation, which -was at a lower or favored rate than that paid by individuals. The -court said the game would not work, that for the purposes of taxation -the concern must be regarded as an individual. So the stockholder knew -more after that decision than he did before. - - -CAPITAL. - -Every private corporation has a capital composed usually of money, -which is advanced or paid by its members or shareholders. Among the -reasons for forming corporations two may be stated. It is a way for -collecting money from many sources needful for an enterprise; the many -contributors are like the small streams that unite and create a great -reservoir. The other reason is, the contributors are free from the -liabilities that attach to every member of a partnership for its -entire indebtedness. A stockholder may indeed, if his corporation does -not succeed, lose a part or all of the capital he has contributed, but -no more or only a fixed amount, as will be hereafter explained. - -Almost anyone can subscribe for stock, with a few limitations. A minor -cannot subscribe for stock, nor can his guardian act for him. -Doubtless they do subscribe in some cases; the practical difficulties -will be shown in another connection. A married woman cannot always -subscribe, unless by virtue of a statute. What usually happens when -she wishes to subscribe is to act through a friend, who, after the -corporation is fully formed, transfers the stock to her. There is no -legal stone in the way of such a course. - -Sometimes fictitious subscriptions are made to induce others to -subscribe for stock. Whenever the fraud is found out an innocent -subscriber can do one of three things. If he has paid for his stock, -he can bring an action to recover it; if he has not paid, he can -refuse to do so, and set up the fraud as a defense. He can do another -thing, accept the stock and sue for the damage he has sustained by the -deceit that has been practiced on him. The discovery of a fictitious -subscriber among the number, after all have subscribed, where his -action in subscribing did not affect their action, will not justify -them in not fulfilling their obligation to pay for their shares. - -The issuing of a share certificate is not an essential condition of -ownership. It is merely evidence of it, like the deed of a piece of -real estate. All the shareholders of a corporation are the owners -whether any certificates are issued to them or not. Of course a -stockholder desires to have his certificate for obvious reasons. - -Whenever the capital stock of a company is increased, each shareholder -has a right to his proportionate number of the new shares on -fulfilling the terms on which they are issued before they can be -offered to the public. Occasionally a clique seeks to get control of a -corporation by the issue of new stock and taking it among themselves. -They can be defeated for the courts carefully guard the rights of all -stockholders to take their shares of new stock before it can be -offered to, and taken by others. - -Of late years private corporations have been issuing a kind of stock, -called preferred, that must be explained. Formerly such stock was more -like a loan of money to a company, and was issued primarily as the -most feasible way of getting a fresh supply of money capital. The -lenders or takers of the stock received a fixed per cent. on their -money, which was paid before the common shareholders received -anything. His preference or dividend was not guaranteed, but the -probability of regular payment was so strong in most cases that his -shares usually possessed a real value. Preferred shareholders are not -liable for the debts of their corporations, and the right to vote at -any meeting of the shareholders is sometimes given to them, though not -always. The tendency of the day is to confer this right on them. -Whether, when the amount of the preferred stock is increased, the -preferred shareholders are entitled to subscribe for their -proportionate amount, like common shareholders, is an open question. - -The authority of agents or commissioners to receive subscriptions is -strictly regarded. They cannot refuse to receive a subscription made -by a competent person, nor release a subscriber, nor vary the terms of -subscription to anyone. - -A subscription for shares is a contract in writing and cannot be -proved by oral evidence unless the original subscription paper has -been lost. As the contract is an open one, any subscriber must inform -himself of the legal consequences of subscribing, and cannot therefore -refuse to execute it on the ground of ignorance or misunderstanding. -Suppose an agent who was soliciting subscriptions, in reply to -questions concerning the laws relating to the proposed company, should -give incorrect answers to a subscriber, these would furnish no ground -for refusing to pay, as he has promised to do, for he could have found -out what the laws were without inquiring of the agent. This may seem a -hard rule, yet it has a wide application. In one sense it is true that -every person can find out the law for himself, the books are open, the -statutes especially may be easily found, but how many know enough to -find the laws in which they are interested? - -Of course if a person has been deceived by an agent, if a fraud has -been practised on him, he can avoid his contract. Thus a person who, -unable to read a subscription paper, was induced to subscribe through -misrepresentation of its contents, was not bound by it. If he wishes -to act, he must lose no time after discovering the fraud that has been -practiced on him. He cannot say, "I will abide by a company if -successful, and will leave it if it fails." He must therefore decide -at once either to continue his membership or withdraw. - -A company cannot purchase its own shares unless by charter or statute -such action is clearly authorized. For, to do this is to reduce its -assets or fund for paying its indebtedness, which the law will not -permit to be done. If a company has no debts, a reduction in its -capital made in an open manner in accordance with law, is legal. The -tendency of the times everywhere is to increase the capitals of -private corporations; reductions though are sometimes made to lessen -especially the burden of taxation. - -A corporation has no lien on its stock for the indebtedness of the -owner unless conferred by charter or statute. Once such a lien could -be established by usage or by-law under authority given to a -corporation to regulate the transfer of its stock. The national -banking law prohibits the creation of such liens, and the strong -current of the law runs in this direction. But a bank can retain a -dividend that has been declared to reduce the indebtedness of the -owner to the bank for his stock. - - -LIABILITY OF SHAREHOLDERS. - -The liability of the shareholders of a corporation is very unlike that -of members of a partnership. It was the liability of each partner for -all the debts of a concern that kept many persons from forming that -relation. The shareholders of many corporations are liable only for -the amount they have contributed and paid, or have agreed to pay. -National bank shareholders are liable for another sum, equal to the -par value of their stock, provided as much may be needed to pay its -debts should the bank fail. Thus if a shareholder owned ten shares, -having a par value of $100 a share, he might be required to pay, -should the bank fail, $1,000 more provided as much was needed to pay -its debts. In a few states shareholders are required to pay twice the -amount of the par value of the stock if as much may be needed to pay -its indebtedness. - -If a corporation fail, one or more persons are usually appointed by a -court to settle its affairs, who are called receivers. Several years -are sometimes required to settle the affairs of a corporation. First -an inventory is made of its property, names of the debtors and -creditors, and the amounts due from and to them, and as soon as its -property can be converted into cash, dividends are declared and paid -to the creditors; and this work is continued until there has been a -disposition of all the property, and the amount received therefrom -less the expense of the receivership, has been paid to the creditors. -When the shareholders are required to pay more, as above explained, on -the failure of their corporation, they are notified by the receiver -how much and when they must pay. This requirement is based on an order -from the court that appointed him, which, in turn, is based on -information which he has furnished to the court of the amount that may -be needed to pay the debts of the corporation. Several assessments may -be ordered, but they never exceed in the aggregate more than the -amount of liability fixed by law, the amount or twice the amount of -the par value of the stock subscribed. Should shareholders decline to -pay these assessments as ordered, the receiver sues them and obtains -judgments, the proceeds of which are paid to the creditors. - - -MEETINGS. - -The power of a corporation vests or rests in its members. The charter -and statutes provide that they shall meet, organize, elect officers, -and adopt by-laws for the more detailed governing of the corporation. -One of the most general principles pertaining to them is, the majority -shall rule. This however may be modified by charter or statute. There -are a few ancient charters which provide that, notwithstanding the -quantity of stock a shareholder may own, he is entitled to only one -vote. The writer knows of a case in which a shareholder bought nearly -all the stock of a corporation and went to the annual meeting -supposing that he could and would do as he pleased. On learning the -unwelcome truth that he had only one vote like the others he quickly -put on his hat and walked out. - -The statutes usually prescribe how notice of the joint meeting shall -be given. They are not mandatory, but directory, hence if all the -persons in a corporation should come together without any notice or -call whatever, and accept the charter, and do any other thing needful -to form the corporation, their action would be valid. Where the -regulations of a corporation definitely fix the place, the day, and -hour of the annual meeting at which the directors are to be elected, -no further notice of the meeting to the stockholders is needed unless -required by its charter or by-laws. - -A case may arise in which other persons than those designated by -statute may call a meeting. Suppose a statute prescribes that the -persons named in the certificate of incorporation, or any three of -them, may call a meeting of the shareholders, and before giving notice -all of them had died? Then the meeting could be called by others. -Again, authority to create a corporation may fail through long delay -in calling a meeting and organizing. Should the notices for the first -meeting not be given as the law requires, it is nevertheless valid if -the shareholders have notice and join in waiving the mailing of the -required notices. Likewise a subscriber waives his notice of the first -meeting when he afterwards offers to pay for his shares. - -If the by-laws require that an annual meeting shall be held at a -particular time, and those whose duty it is to call it, forget to do -so, it may be held afterwards, and the officers elected and other -business transacted would be as valid as if the meeting had been held -at the proper time. - -Should the officer who ought to call a meeting refuse to do so he may -be compelled by law to call it. This proceeding is called a mandamus, -and is issued at the instance or request of the shareholders. - -"Besides annual meetings, corporations hold many stated or regular -meetings at monthly or other times. Thus if a meeting of proprietors -must be called by twelve of them, a call signed by eleven is -defective. If a statute requires a committee of a society to sign the -call, it cannot be signed by the clerk, nor by him for them. If the -trustees of a corporation must issue the call, this cannot be done by -the president. If exclusive authority to issue the call is vested in -the directors, it cannot be exercised by the president and secretary. -If the articles of association provide that meetings of shareholders -may be called by the board of directors, or by any three shareholders, -the president and cashier cannot issue a valid call. But if a board -consists of three members and there is a vacancy, the other two may -act and give the notice." - -A well understood distinction exists between the calling of regular -and special meetings. Regular meetings are held in the way set forth -in the charter and by-laws of a corporation; special meetings are -called at irregular times on proper authority. A notice for a special -meeting must state the object of it, and no other business can be -transacted. On the other hand unless the regular meeting is of great -importance no mention need be made of its object in the notice. - -An authorized meeting may be adjourned from time to time without -giving further notice, for it is only a continuation of the original -meeting. Says an eminent judge: whether a meeting is continued without -interruption for many days, or is adjourned from day to day, or from -time to time, many days intervening, it is evident that it must be -considered the same meeting. - -A meeting may be legally held though one of its members is incapable, -physically or mentally, from receiving notice. "The law cannot look -into the capacity of the stockholders to transact business, but can -only regard the capacity of the aggregate body when duly assembled." -On the death of a stockholder, the purchaser, if the stock has been -sold, should have it transferred, or give distinct notice to the -company how notices of its meetings should be sent to him; if -neglecting to do this, he cannot charge the corporation with neglect -should it continue to send notices to the former address. - -Two other points may be mentioned concerning notices. One is, they may -be waived and this is often done. Many a question though arises, what -action amounts to a waiver of notice. If each shareholder attends in -person or by proxy and participates in the meeting, he cannot -afterward question its legality because he received no notice of it. -An improper notice may also be cured by ratification. Thus if a -secretary calls a meeting instead of the directors, and his action is -properly ratified by them, the call is effective. More generally, the -action of a meeting will be declared valid where it appears that every -stockholder who did not participate in the meeting ratified its action -afterwards. An election of trustees of a church may be valid even -though the notice lacked the proper length of time and the names of -the trustees whose seats became vacant at the election, if it was -fairly conducted and all who had the right to vote were present. -Likewise a stockholder who knows of the sale of his railroad, though -not legally notified of the meeting which authorized its sale, and was -not present, may be bound by its action through acquiescence. And a -stockholder who, after receiving notice of a meeting called by the -directors to consider their neglect of duty and who decides not to go, -is not thereby prevented from taking action against them by the -stockholders who did attend and authorized their unauthorized action. -Lastly a stockholder who was present cannot complain that notice was -not given to others; the objection is personal. - -Next we may inquire, who can vote at such meetings? Unless prevented -by charter, statute or by-law a stockholder may vote at any corporate -meeting even though no certificate of stock has been issued to him. -Nor does his indebtedness for his stock prevent him from voting. On -the other hand if inspectors were not bound by the record of ownership -in the company's books and went behind them to find out the real -ownership of the company's stock, they would often have a grave task -before them. Consequently in many, perhaps all of the states, only -stockholders or those holding proxies for them can vote at a general -election. By statute the stock record of ownership is usually made the -conclusive test of the right to vote. Stockholders who thus appear on -the stock books at the date of a meeting are entitled to vote the -stock. - -A trustee is the legal owner of stock standing in his name and may -vote the stock for all purposes; but a testator may impose limitations -on his voting power. Should trustees under a will holding a majority -of the stock of a corporation disagree, and one of them should be -enjoined from voting it, a minority stockholder would be entitled to -an injunction to restrain the other trustee from holding an election -or voting the stock alone until the right to vote the stock had been -legally decided. - -A different rule applies to a naked trustee who holds the title to the -stock without any real interest in it. He can indeed vote, but in the -way directed by the beneficiary or real owner. In Colorado, by -statute, perhaps in some other states, a person to whom stock has been -issued as trustee without the knowledge of the owner, is not a bona -fide stockholder and cannot vote. - -An executor has the power to vote the stock of his testator. And if -one of joint executors issues a proxy authorizing the vote of the -stock belonging to the estate, and the other executor is present at -the stockholders' meeting, the vote of the stock by the executor who -is present is deemed a revocation of the proxy given by his -co-executor. And if a will gives to one of three executors the power -to vote the stock, and directs the other two to give him a proxy for -that purpose, which they decline to do, a court will order the proxy -to be given. And whenever stock is held by executors who are not -united in voting it, they cannot vote at all. A foreign executor -should present to the inspectors of election an exemplified copy of -his letters of administration, and having done so may vote on the -stock standing in the testator's name. An administrator has the right -to vote stock belonging to the estate, even though it has not been -transferred to him in the corporation's books. - -A partner of a firm who owns stock in a corporation may represent the -stock in all meetings. He may therefore receive and waive notice of -them, vote when attending them, in short, participate in all matters. -And on the death of a partner the surviving partner has the right to -represent the partnership and vote on its stock. - -Two other kinds of stockholders still require mention, sellers and -purchasers of stock and pledgors and pledgees. Until a transfer is -entered on the books of a corporation, "the transferee, as between -himself and the company, has no right beyond that of having the -transfer properly entered. Until that is done, the person in whose -name the stock is entered on the books of the company is, as between -himself and the company, the owner to all intents and purposes, and -particularly for the purpose of an election." - -Many questions have arisen between pledgors and pledgees about their -rights to vote the pledged stock. Of course, whenever an agreement has -been made by them this must be respected. In other cases, if the -record remains unchanged, the pledgor can vote the stock. But if the -pledgor has transferred his right to vote the stock, he cannot ask a -court to restore his right to vote it until the purpose for which it -was pledged has been satisfied. Again a pledgor who pledges his stock -not in good faith as security for a loan, but to enable the pledgee -to vote it and effect an unlawful purpose, cannot do this and so -defeat a statute which provides that the real owner, the pledgor, may -vote his stock. - -Passing to the pledgee, whenever he is registered as owner of the -stock on the company's books, its officers will not look behind these -to ascertain whether he is the real owner or not when he is voting his -stock. A court of equity though may do this, and enjoin a pledgee from -voting the stock whenever the pledgor's rights would be affected. -Should the pledgor acquiesce for years in the control of the stock by -the pledgee, who is the record owner, and not inform the company of -his ownership until the holding of a contested election, he would be -too late to claim the right to vote. Finally when a certificate of -stock has been assigned in blank as collateral security, which is -often done, and never transferred to the pledgee on the books of the -corporation, a memorandum only having been made on the stub of the -certificate in the stock book, the pledgee is not a stockholder and -cannot vote the stock. It may be added that notices of meetings should -be sent to whoever has the right to vote the stock, to the pledgor if -the stock still stands in his name, to the pledgee if the stock has -been transferred to him and stands in his name. - - -DIRECTORS. - -Shareholders manage their corporations through directors or trustees -elected for that purpose. The business of some corporations is managed -by trustees who are named in the charter and who fill vacancies in -their number by electing others themselves, a self-perpetuating body. -Many savings banks especially are thus organized and continued. From -their number they usually select a smaller number to manage or direct -its affairs. - -The directors are always shareholders, unless the charter of a -corporation permits the election of outsiders, a thing that rarely -happens. The national banking act requires that every director shall -own at least ten shares of stock, and many other corporations have -similar requirements. The charter or statutes prescribe at least the -minimum number that must be elected, but the maximum number is left to -the stockholders themselves. A national bank must have five directors, -not infrequently the board is composed of ten, fifteen, or even more. -A director is chosen for some real service that he is likely or -willing to perform. An individual may be chosen a bank director who -may not be able to do much in directing the affairs of the bank, yet -by reason of his wealth or business relations he may be able to -attract business to the bank and thus greatly promote its prosperity. - -He is elected by a majority of the votes of the shareholders. More -recently the cumulative system of voting has come into general favor. -By this system a voter may cast as many votes for each of the -candidates as he holds shares of stock, or he may distribute or -cumulate his votes on a smaller number. "Where the votes under such a -system are cast and counted, the validity of the election must be -determined precisely as in all other cases." Where the shareholders -have failed, whether voting cumulatively or otherwise, to elect a -quorum of the new board, at an annual meeting of stockholders, it is -the privilege of the shareholders to ask for successive voting for -directors to fill the board. The ruling of a chairman on one occasion, -that because of a tie further balloting could not proceed, and that -the old board held over was arbitrary and illegal. A stockholder who -has votes enough to elect himself and other directors by cumulating -his shares in voting, but refrains from doing so in consequence of a -verbal agreement among the stockholders that he shall be chosen -president, which they fail to carry out, cannot obtain any -satisfaction from a court. A court says in effect stockholders should -not be trusted to make such agreements, and will not aid the tricked -stockholder by ordering a new election. Probably he will be fooled -only once. - -Having elected directors, the management of a corporation is confided -to them. What authority do they possess? This is defined by charter, -statute, by-law, and custom. Says Morawetz: "The rule limiting the -authority of the power of the majority to the general supervision of -the affairs of the corporation is established for the protection of -the individual shareholders, as well as for reasons of practical -consequence." Directors also have wide discretion in delegating their -authority. Their rights and limitations in this regard are also -bounded by charter, by-laws and usage. Formerly bank directors loaned -the money of their bank; this was their most important duty. Of late -years, especially in the larger cities, this business has been largely -delegated to a committee, chosen from their number, or to two or three -officials of the bank. The directors continue to meet, very much as -before and at their meetings the action of those who have been -entrusted with power to lend the bank's money is ratified. More and -more authority to direct or do the greater things in a corporation are -concentrated in the hands of a smaller number of individuals. Time is -ever becoming a more important element, a smaller number of men can -act more quickly than a larger number, and so business must be more -and more concentrated to be done efficiently. - -A director has no authority to act separately and independently. Only -as a board, properly convened, does he represent his corporation. -While this is the law, he can and does in fact often act singly, and -his action becomes effective to bind his corporation by ratification. -Such action plays a great part in the modern corporation. - -Though a principal may at any time, as a general rule, revoke the -authority he has given to an agent, this does not apply to the -directors of corporations. Says Morawetz: "The majority of the board -clearly have no power to expel an individual director, or to exclude -him from inspecting the company's books and participating in its -management, although they may believe him to be hostile to the -interests of the association." A president or other official is chosen -pursuant to the charter to serve for a year or other period, and is -simply an agent in serving the corporation, he cannot be turned away -like an ordinary agent. If he conducts fraudulently, he may be -removed, but this is not an easy process as corporations long ago -found out. - -Directors in most cases receive no compensation though the practice is -growing of rewarding them. Unless this is fixed by charter or by the -stockholders they can get nothing, for they cannot legally vote -salaries to themselves. A director who performs a different service, -serves as an attorney, for example, may receive compensation for it. -This is a salutary rule of the law, which the courts everywhere do not -hesitate to enforce. By another rule, hardly less important, directors -cannot bind their corporation by any contract made with themselves, or -represent their corporation in transactions wherein they have an -interest. This is only another application of a rule of agency, that -an agent cannot act at the same time for both parties. Yet there is -increasing difficulty in applying this rule because the business of -corporations has become so intermingled, and also the business of -directors, directly or indirectly, with that of the corporations they -represent. From this state of things has come another rule, that the -transactions between directors and their corporations are not actually -void but voidable, in other words if they are tainted with fraud, they -can be set aside provided proper action is taken as soon as the fraud -is discovered. - -Suppose directors had defrauded their corporation, but the fraud was -not discovered until several years afterward. Once it was held that -they could shield themselves behind the Statute of Limitations (see -_Statute of Limitations_) if the discovery of the fraud did not occur -until after the Statute had become effective to protect them. This is -no longer the law. Action however must be begun against them within -the proper time after discovering the fraud, otherwise the Statute may -be interposed as a bar to proceeding against them. - -The complication of business has led to the adoption of another -principle in managing corporations. A majority of the directors may -lawfully act as opposed to the minority; in other words if a majority -are not interested in a matter that concerns one or more of the -minority directors, the interests of the corporation are supposed to -be properly safeguarded. Yet an illustration discloses the dangerous -character of this method of doing business. Suppose each director of a -bank wished to obtain a loan of money from it. They could not legally -make such loans, for no one would represent the bank. Suppose a -single director made such an application, that would be a proper thing -for him to do and for them to grant, for the bank would be represented -by all the directors except the applicant. Suppose it were agreed in -advance that each would make an application at different meetings that -should be favorably regarded, the series of loans would be in fact -only a single transaction in which the bank was not represented. - -The knowledge of a director or other officer is imputed to, or -regarded in the law as known by the bank on all matters relating to -it. Thus if a director knew that a note was signed by a minor which -was afterwards presented for discount at a directors' meeting at which -this director was present, and he forgot to tell the directors what he -knew and it was discounted, the bank would be regarded as having -knowledge that the maker was a minor, who of course could not be held -on the note. This principle has a very wide application, yet is very -difficult to apply. The tendency of the law is to narrow the -application of the rule, for directors do not in many cases impart -their knowledge, either through forgetfulness or other cause, and it -is not just to hold their corporation always for their unintentional -neglect. Often they are busy men, have greater interests of their own, -and do not remember the things they learn about matters relating to -their corporation, and if it were always held as knowing as much as -they do on all occasions, the way of a corporation would be fraught -with a grave peril. - -A proper distinction is made in the imputation of knowledge between -that of a bank director for example who is engaged chiefly in some -other business, and that of its president whose chief employment is -the management of his bank. Suppose he should learn about a defective -note before it was presented for discount, the bank would be very -properly charged with his knowledge, because it would be his clear -duty to remember what he had learned and impart it to his fellow -directors. - -Directors sometimes go astray and cases are constantly arising to -determine their liability. When a corporation has failed or passed a -dividend nothing is more common than to accuse its directors of -negligence, incompetence or fraud. The legal rule of liability is -quite a different thing. Let us try to give this in the fewest words -possible. The charters of corporations, or statutes that apply to -directors, prescribe some definite things which they must do or not -do, and if these are violated they are clearly liable. The directors -of a bank are required to make a statement of its affairs to a -government official at a stated period, and if they neglect to do it, -or intentionally make a wrong and deceptive one, they are liable. By -many statutes they are forbidden to make loans above a certain amount, -or a fixed proportion of their bank's capital, and if they violate -this plain law they are liable. In all other cases where by charter or -statute a plain rule of duty is prescribed for directors, they are -liable, should they disregard it. - -Besides these clearly defined lines of duty are other lines of duty in -which the proper course of action is not so clearly defined, indeed is -largely discretionary. From the nature of the business of almost any -kind of corporation, it is impossible to prescribe in detail the -course of action directors must follow. Much must be left to their -judgment. They must on all occasions be honest and free from fraud. -This is one limitation. If they are guilty of doing things tainted or -marked with fraud, they are liable. Fraud may be of two kinds, -omission and commission. If a director knew that his fellow directors -were doing fraudulent things, and he kept away from directors' -meetings because he did not wish to participate in their wrongdoing, -or dared not go and try to stop them, or kept silent when he should -have exposed them, he must suffer in the end as one of the number -though entirely innocent of actual participation in the fraud. Many a -director knowing or suspecting with good reason that his fellow -directors were running the corporation in an illegal manner, has -quietly sold out leaving the stockholders to find out afterwards and -from some other source about the wrongdoing of their agents. In all -such cases of omission of duty a director is held responsible for the -wrongs of his associates. - -Recently a court has declared that a director who desires to escape -further responsibility by resigning his position must make sure that -his resignation reaches the board. If therefore he should send it to -the secretary, who failed to deliver it to the board, his resignation -would not be effective and he would still be responsible like the -other directors for whatever the board might do. - -What acts are fraudulent are sometimes difficult to determine. -Different courts interpret the same act sometimes in different ways. -They do not differ so much on the application of the principle--for -all acts of fraud, whether of omission or commission, directors are -liable. - -There is another series of acts for which they are liable, those of -gross negligence. How gross must the act be? If it is so gross as to -amount to a fraud, they are liable; if not so gross, if no fraud is -found of any kind, nothing but negligence pure and simple, they are -not liable at all. Most courts though go further and declare that if -they are guilty of gross negligence, even though the smell or taint of -fraud is not perceptible, they are liable. What, then, is the nature -of the acts that constitute gross negligence? These cannot be easily -defined, they differ in each case; so each case stands by itself. This -is the conclusion of the highest court in the land and which is -followed by many others. The same case therefore may be regarded -differently by different tribunals. Thus some directors were tried not -long since for wrecking a national bank. The lower court decided that -all the directors were guilty of gross negligence, on appeal the -reviewing court decided that the president only was guilty of fraud -and acquitted the others. - - -DIVIDENDS. - -One of the most cheerful things a corporation can do is to declare a -dividend, especially if it be a large one. Until a dividend is -declared the profits of a corporation are simply its assets, do not -belong to the stockholders, and should it become insolvent must be -used to pay creditors. But if a dividend has been declared and the -corporation afterwards becomes insolvent before paying it, the -stockholders may insist on its payment to them instead of paying it to -the creditors. - -Dividends must be paid from net profits. They can never be taken from -the capital, for this would impair it and, if continued, result in the -insolvency of the corporation. The laws everywhere forbid this, and, -if violated, the directors are usually penalized. It is not an -infrequent thing to declare a dividend that has not been earned in -order to keep up the value of the stock, and enable the directors and -their friends to sell out before the true condition of things has -become public. Such action is a palpable fraud which the law -recognizes and for which the guilty ones must answer. - -Nor can dividends be declared out of borrowed money, for this is no -profit, though money may be temporarily borrowed for this purpose. A -profit may have been actually made, which may not have been reduced to -money, that will justify a corporation in borrowing to pay a dividend, -assured that the loan will soon be repaid. But the rule or practice is -hedged about with limitations. Thus the premiums received by an -insurance company and interest on its capital stock constitute the -fund from which dividends are paid. Unearned premiums that have been -paid do not form a part of that fund, for, while the risk is still -running, the company may be obliged to pay them out in settling -losses. - -The profits of coal and other mining corporations may be divided -without making any deduction for decrease in the value of the mine -from extracting minerals. The same principle applies to all -corporations organized to operate wasting property like a mine or -patent, though in thus dividing all its net profits and accumulating -no surplus the value of the property is lessened. Except such cases, -before a corporation can lawfully set apart its profit as a dividend, -a sufficient sum must be set aside to represent the wear and tear for -the purpose of creating a fund to renew and improve the property of -the corporation. - -Dividends illegally declared and paid, not based on profits may be -recovered either by the corporation or by its representative for the -benefit of creditors. The fact, says Clark, that the directors acted -in good faith under a misconception of the amount of profits possessed -by the company or that were available for that purpose is immaterial. -And if the capital stock of a company has been wrongfully paid away by -the directors as dividends, it may be recovered by the creditors from -anyone who is not an innocent receiver. - -Whether a dividend shall be declared, and also the amount, are -questions lying largely within the discretion of the directors. A -company may earn a large net profit, yet the directors may think it -should be used for improvements or kept for a future contingency in -business, perhaps a time of business depression. Courts will not -interfere in such cases. Corporations are sometimes organized with the -well understood intention that the earnings shall be kept until a -large surplus has been accumulated. On the other hand directors are -not permitted to abuse their power; they must act in good faith. They -cannot withhold dividends in order to depress the value of the -property and buy its stock at a lower price. - -Dividends must be distributed among the stockholders without unjust -discrimination. "The dividends," said a court, "must be general on all -the stock so that each stockholder will receive his proportionate -share. The directors have no right to declare a dividend on any other -principle. They cannot exclude any portion of the stockholders from an -equal participation of the profits of the company." A stockholder -cannot be deprived of his dividend because he purchased his stock a -very short time before the action of the directors in declaring a -dividend. On one occasion a person held bonds convertible into stock. -Shortly after the conversion a dividend was declared. He was as much -entitled to his dividend as any other stockholder. - -To whom should the dividend be paid? To the person whose name appears -as owner on the books of the company. But if a company has notice of a -transfer of stock, a dividend subsequently declared should be paid to -the purchaser even though the transfer was not registered. In pledging -stock it is a common practice to declare that the pledgee shall be -entitled to the dividends that are declared. If nothing is said, and -the stock has been transferred on the books of the company, the -pledgee is entitled to the dividends following the general rule above -mentioned. - -A dividend may be payable in cash or property or a stock dividend may -be made. Such a dividend, if the stock is issued only to the extent of -the surplus profits, is not a violation of the prohibition against -reducing or withdrawing the capital stock by distribution among the -stockholders. - -During recent years some important questions have arisen about -dividends or income on stock given by will to the legatees or friends -of the testator. Dividends that are declared after a grant or bequest, -though earned before, go to the legatee as income. This is not the -rule everywhere. In some states the surplus profits accumulated during -the testator's life, though not divided until after his death, belong -to the estate, while the dividends or income earned and declared after -his death are paid to the legatee or beneficiary mentioned in the -will. Again, a somewhat different rule applies to stock dividends. In -some states these are regarded as an increase of capital and must be -kept as a part of the estate; in other states such stock is regarded -simply as another form of income and goes to the legatee like any -other income flowing from the investment. The highest federal court -has declared that when a distribution of earnings is made by a -corporation among its stockholders, the question whether such -distribution is an apportionment of additional stock representing -capital, or a division of profits and income, depends upon the -substance and intent of the action of the corporation, as manifested -by its vote or resolution; and ordinarily a dividend declared in stock -is to be deemed capital, and a dividend in money is to be deemed -income of each share. - -A will bequeathed stock in a corporation in trust to pay the dividends -as they accrued to a daughter of the testator during her lifetime. -Stock dividends were declared by the corporation from time to time and -after the death of the testator, and these accumulated earnings were -invested by the company in permanent works. After the testator's death -the corporation was authorized by statute to increase its capital -stock. The dividends were held to be accretions to the capital, and -the income only was payable to the daughter for life. - - -WRONGS. - -Passing from the action of directors in declaring dividends, the -wrongs done by corporations may be stated. As it is an impersonal, -artificial thing, a corporation cannot possibly commit a wrong or tort -like a natural person. For many years this conception of a -corporation, that it could not commit many of the well-known wrongs, -could not slander a person for example, led to perplexing -consequences. Finally the principle was established that through its -agents or servants a corporation could do wrong quite like an -individual. Thus a corporation may be guilty of malice, and may be -punished for slander or libel, for a malicious prosecution, false -representation, for trespass should its agents unlawfully enter on the -land of another, for maintaining a nuisance and the like. A national -bank is forbidden to certify the check of a depositor unless he has -the amount of money stated in the check in the bank. And if this is -done the certifying official and all others who participated with him -in disregarding the law are made criminally liable, and on several -occasions the law has been enforced. - -Again, a corporation is liable for the negligence of its servants in -performing their duties, and are constantly sued for their failures. A -railroad company is sued for injuries to its passengers caused by the -improper running of its trains; for its failure to carry and deliver -freight in accordance with its obligations or agreements. Street -railways are constantly sued by passengers who are injured through the -negligence of its officials. - -By statutes corporations are required to do many things and, if they -fail, are liable for the consequences. These duties may be divided -into two classes, those toward the public and those that affect their -stockholders. Their public duties may again be divided into those that -are imposed on them by statute, and a still larger number by the -common law. As we have seen, stockholders confide necessarily the -management of their corporation to directors, who in most cases must -necessarily have a largely discretionary power, and who, in turn, must -appoint other agents to execute the details of the corporate business. -These not infrequently fail through incompetence or neglect to perform -their duties properly, and consequently corporations are subjected to -lawsuits in which redress is sought by the injured parties. Some of -these wrongs for which they are liable to the public have been -mentioned, it would require too much space to mention all. - -The injuries done to stockholders by their directors remain for -consideration. Unless directors are restricted by action of the -stockholders at a stockholders' meeting, they have the authority -prescribed by charter and statute; outside these, their authority is -largely discretionary, and must be so. If, therefore, stockholders are -dissatisfied with their directors, as they often are, their remedy is -to elect others at the end of their term of service. If at the time of -choosing them, the annual meeting, none are chosen, the directors hold -over until they are again elected, or others are chosen in their -places. After they have been chosen, no stockholder can interfere in -any way with their discretionary authority unless he has a clear case -calling for judicial action. "Until a mistake," says Morawetz, "on the -part of the directors, individual stockholders have no right to appeal -to the courts to define the line of policy to be pursued by the -company. The courts therefore are quite unanimous in sustaining the -action of directors so long as they act within the discretionary -authority given them." - -Occasions happen when the removal of directors is essential to the -welfare of a corporation. Suppose they are pursuing a course clearly -ruinous to the company? In such a case the court will grant relief on -the request of the stockholders whenever the corporation itself is -unable or unwilling to do so. Primarily the corporation should proceed -against the directors, for the wrong is a corporate one. In many cases -the corporation is so completely in their control that the -stockholders are unable to do anything through it. In such case they -must act in the name of, and in behalf of the company. And if they -succeed in establishing their case, the courts will order the removal -of the directors. - -Sometimes the courts, instead of going so far, will enjoin them from -doing wrongs that are feared. Suppose it is feared that directors will -declare a dividend that has not been earned, the courts on proper -proof would enjoin them from making it. Suppose it is feared they will -issue more stock and divide all the shares among themselves instead of -proportionately among all the stockholders as the law requires, in -order to get control of the company, a court would not hesitate to -restrain them. - -Lastly may be considered a stockholder's rights to inspect the books -of his company. This he may do at all proper times and for reasonable -purposes. And if the right is refused the courts will aid him in -making an inspection. What then is a proper purpose that justifies him -in making the request? He cannot do so to satisfy some freak, or to -annoy an official with whom he may be on bad terms. Nor can he do it -to obtain information to be used for stock-jobbing purposes. Suppose -he has reason for supposing that the books were falsified, that the -stockholders were not receiving correct accounts of the expenditures -and earnings of the company, a stockholder would certainly have a -right to make an examination, and could also employ an agent, -attorney, or expert accountant to do this for him, for his ignorance -of bookkeeping methods might debar him from making an efficient -examination were the right confined exclusively to himself. - - -=Curtesy.=--A husband acquires an interest or estate in land belonging -to his wife after her death. To be entitled to it, there must be a -legal marriage. Even though it be unlawful, if not set aside during -her life, his interest in her estate cannot be defeated by afterwards -declaring the marriage void. Curtesy does not extend to land nominally -held by her, or as trustee. The wife must have had a child who might -have inherited the estate. It is immaterial whether she acquired her -estate before or after the birth of the child. As soon therefore as a -child is born, his estate or interest begins and is perfected or -consummated by her death, and may be taken at any time afterward for -his debts. What may be the effect of a divorce is not well settled. In -some states even though he is an innocent party, he forfeits his -estate. This rule is founded on the idea that he is a voluntary party, -and therefore need not have one; in other states his interest -continues. As the husband's rights to such an estate have been -abolished in many states, we refrain from adding more principles. - - -=Deceit.=--A seller is not liable for deceit when the knowledge, or -way of obtaining it, is equally known by both parties. If one goes -into a store to buy a bushel of apples that he has seen by the door -and inquires the price and pays for them without making any inquiry -concerning their quality, he cannot recover his money if half of them -prove to be rotten unless the seller intentionally deceived him, for -he might have inquired whether they were all like those on top and of -good quality. But if the merchant should put fine ones on top in order -to deceive a purchaser, he could recover for his loss. This rule has a -wide application. Suppose a seller keeps his store dimly lighted -intentionally so that the inferior quality of his goods cannot be -discerned, and a person should thereby be deceived and injured, he -would have a good cause of action against the seller. Suppose a ship -was decayed in places, and these were intentionally so concealed that -they could not easily be seen by one who was examining with the -intention of purchasing, and he was thereby misled, the seller would -be liable for the loss to the purchaser. Of course, the prudent course -is to obtain a warranty, or better still, whenever practicable, buy of -one who has established a reputation for honest, fair dealing. - -Suppose a man purchases a piece of land, generally supposed to be an -ordinary farm, which contains, as he knows, a valuable coal mine, can -the seller after the public knowledge of the mine, recover the land or -a larger purchase price therefor? Has the purchaser deceived him? Did -the law require the purchaser to make known his superior knowledge -before purchasing? No, if it did, there would be no end to the -confusion to which such a rule would lead. It is within ordinary -experience that purchasers buy either knowing or supposing they will -reap advantages from their contracts of which the seller is ignorant. -There is no deception in this; but there is in withholding knowledge -from the buyer of the quality or condition of a thing that affects its -value, and which if known by him would probably prevent him from -purchasing. Suppose a horse is blind in one eye and the prudent horse -trader says nothing. Can the buyer recover? Ordinarily he could not, -for he ought to have looked, and if he did not know enough to look, -either he should have obtained a warranty, or have employed a -competent agent to purchase for him. Suppose the old trader, skilled -in his business, intentionally put his horse in the shadow so that the -defective eye could not be seen, then the seller would surely have -his remedy against him. If he put his horse there accidentally he -would not. - -Is a wink a deception for which the winker must answer in the law? A -hardened dealer once went near a large meeting of men with a wagon -load of bottles containing cold tea. The thirsty crowd soon came -around. "One dollar a piece," he announced with a wink. The wink was -effective and the bottles were quickly sold. They were filled with -cold tea, and the buyers sued for the deceit that had been practiced -on them. They failed, the court said that a wink was not enough. -Another court might have decided otherwise. - - -=Deeds.=--In selling and buying land several deeds are in use. The -forms differ considerably in the different states. The most important -of them is called a warranty deed, in which the seller not only -conveys the title, but warrants or agrees to defend it against all -attacks. Suppose A sells a piece of land by warranty deed to B, who -makes the unwelcome discovery that a mortgage is existing thereon. He -notifies A and asks him to clear the title. Suppose the mortgage has -been paid, but the lender of the money, the mortgagee, forgot to give -the proper deed to show that he had received payment. And suppose he -was an ugly fellow who would not give the proper release. B could -compel him to do so, and the expense must be borne by A because his -deed of warranty required him to give a clear title. - -In such a deed the grantor or seller agrees or covenants to do usually -four or more specific things: first, he asserts that he has a right to -convey the land at the time of the sale. Of course, if he has not, the -agreement or covenant is at once broken and the buyer can proceed -against him to make the title good, or to recover damages if he cannot -retain the premises. The second covenant or agreement is to the effect -that the seller has both the quantity and quality of land mentioned in -the deed. The third covenant is that there are no encumbrances on the -land, that is, no mortgages, no rights of others to pass over it, or -to take earth, water or other things from the land. The fourth -covenant is for the quiet enjoyment of the land, which is the most -general form of warranty. There may be other covenants, often there -are, while the four mentioned may be, and often are, modified. - -Does such a warranty bind other persons than the warrantor, in other -words are his heirs and persons to whom he may devise his lands also -indefinitely bound by his warranty? The statutes in some states fix -his liability. Where none exist the law limits the liability of -parties to the amount of assets or property they have received from -the warrantor; if they have received nothing they are not liable for -anything. - -A covenant to protect the buyer from encumbrances, claims, etc., does -not always relieve him from the expense of a lawsuit. Suppose A claims -a right of way over B's land and insists on using it. B brings his -action of trespass against him and wins. He cannot sue his grantor or -seller to recover the expense of the suit, for the latter would reply, -"You have won your case which is proof that the title is good as -warranted, and therefore you have no claim against me." If, on the -other hand, A had won his case B would then have a good cause of -action against his covenantor. - -Another kind of deed used in selling land is called an indenture. This -is signed by all the parties, and copies are usually made and -delivered to all of them. This deed also contains warrants or -covenants like the one first described. - -Another kind of deed is called a release or quit-claim. By this the -grantor or party giving it conveys whatever interest he may have in -the land. It is the deed always given by a mortgagee on the payment or -discharge of his mortgage. It contains no warrants to do anything and -therefore differs from a deed of warranty. Sometimes a person conveys -a piece of land knowing that the title is defective which the -purchaser, notwithstanding the defect, is willing to buy. The seller -may safely give a quit-claim deed for he thereby sells only whatever -interest he may have. - -All the deeds above mentioned except an indenture, are signed only by -the selling or granting party. They become effective by delivery. They -are often called poll deeds. - -Every grantor must append to his name a seal. Once a seal was of the -utmost importance in the days of ignorance when persons knew not how -to write and each person had a seal of his own. As distinctive seals -have long since disappeared, seals have less significance than -formerly, nevertheless many legal rules are founded on the distinction -between sealed and unsealed instruments. Thus two written contracts -may be exact duplicates except that one of them may have no seal. The -law in most states regards the unsealed one as a mere oral or -unwritten contract, to which are applied the same rules of evidence. -The use of L.S., enclosed in brackets, thus [L.S.] is just as -effective as a seal of wax or a wafer. In many states a corporation -need not use its corporate seal, any other may be substituted. The -federal rule especially requires the use of the corporate seal and -that it be affixed by someone who was properly authorized to do this. - -By statute the names of two witnesses are required, and when omitted -the deed is not only defective, but in some states at least is void. A -witness need not write his name in the grantor's presence, if asked to -sign in the proper place as a witness this will suffice. - -A lease of land is also a deed differing from those mentioned in -conveying the use of land for a fixed period and on varying terms. - -A deed should be completed before delivering it, the same rule applies -to most legal writings. Unimportant alterations may be made, and if -any are made, the question may prove difficult, are they important or -not. Of course if both parties agree to them, the validity of the deed -is not impaired. Whenever they do appear, in some states the law -presumes they were made before delivering the deed, but this is not -the rule everywhere. - -Who can make or execute a deed? A minor cannot make a legal deed, and -if he attempts to do so he can avoid or set it aside after he becomes -of age whenever he acts with reasonable promptitude. If he does not -thus act, his delay will be regarded as a ratifying of his previous -action. What action will have this effect is a fact to be proved -whenever the controversy arises. - -Usually a deed need not be read to the grantee, nor can he avoid it -because he did not know the contents, except when fraud has been -practised on him. To a blind or ignorant man a different rule applies. -The deed should be read to him, and if this is not done, or if it is -wrongly read to him, he can have it set aside in a proper legal -proceeding. - -Delivery is essential; to do this two things are required. The -grantor must give up the deed and the grantee must actually accept it, -consequently the delivery of a deed after the grantor's death would -not be valid. There must be an actual delivery by him, and though a -deed may be completed in every other respect, it is not an effective -deed. A deed therefore stolen from one's drawer and delivered to the -grantee would not be valid, however innocent the grantee might be in -receiving it. Many difficulties have arisen in applying this rule. -When the question comes before a court, it seeks after the intention -of the parties, and is guided by it when ascertained. If therefore a -deed were lying on a table and the grantor should say to the grantee, -take it, and he did so, the delivery would be complete; but if he -should get it in a surreptitious way there would be no legal delivery. -Suppose a deed were mailed to the grantee, or handed to another person -to deliver to the grantee, this would be a good delivery. - -As soon as the deed has been delivered, it should be taken to the -recorder's office to be recorded. Every state has offices in the towns -or counties for keeping a perfect copy of all deeds relating to the -transfer of the lands within the limits of the town or county. The -object of this is to protect purchasers, for, if this were not done, -the owner of land might sell it to a purchaser a second time who knew -nothing of the previous sale, and then someone would be the loser. To -guard against such frauds the system of registration was established -at an early day in American history. A purchaser therefore should take -his deed at once to the proper recording office for record, and this -is regarded as notice to the world from the time of delivering the -deed to the recorder, who makes a note thereon of the day and hour it -was left with him. Suppose that some creditor of the grantor, not -knowing of the sale, should attach the land as the property of the -grantor to secure a debt due to him, could he hold it as against the -purchaser? Ordinarily the purchaser could still retain the land, and -the same rule would apply between him and a second purchaser, though -buying in good faith supposing the grantor was the real owner. In some -states a statute protects the purchaser by giving him a fixed period -of two or three months or more to record his deed. The safe rule is to -leave the deed with the recorder as soon as possible after receiving -it. - -It is a general practice to do another thing with deeds, to make or -take an acknowledgment of them, and in some states this must be done -before they can be recorded. This consists on the part of the grantor -going before a proper officer, often a notary public, justice of the -peace, clerk of a court of record, commissioner of deeds, and making -oath that he has duly executed the above deed. This oath appears in -the form of a certificate at the bottom of the deed or appended -thereto and is signed by the officer, who also attaches his official -seal. When a deed has thus been acknowledged it can be used in a legal -proceeding as evidence without requiring further proof of its -execution. But if it had not been acknowledged, then a court would -require some proof that the deed had been made and delivered before -accepting it as proof of the fact. - -When a married woman executes a deed the officer who took the -acknowledgment of the deed must make an examination, apart from her -husband, to ascertain whether or no her act was voluntary, and he must -also record the fact. The acknowledgment should be made after the -examination. A defective acknowledgment by a married woman is -worthless, nor will any court compel her to make another one. Should -she make another deed, however, with a proper acknowledgment this -would be legal. - -The officials who take acknowledgments possess different authority, -some can take them only of land situated in their respective states; -others have authority to take acknowledgments of deeds of land in -every state. In all the states are commissioners of deeds, so called, -who are authorized to act outside their own state. Some persons who -have an important conveyancing business have qualified themselves to -thus act as commissioners for many states, and perform a highly useful -service. - -If a mistake has been made in a deed can it be corrected? The general -rule is it can be amended in all cases of fraud, accident, or mistake. -How can this be done? If the grantor is unwilling to do right, the -purchaser can by a proper application to a court, or court of equity, -ask for the correction of the deed or such other relief as justice -requires. Suppose the grantor has declared in his deed that the land -contains a hundred acres and a survey finds only fifty. This would be -a palpable fraud and a court would, if requested, order the -reconveyance of the land and return of the money. Suppose the deed -covered no land at all belonging to the grantor, this would be a still -greater fraud. Suppose the deed said one hundred acres more or less, -and a survey found only fifty acres. The purchaser bought supposing -that there was no such deficit, but perhaps a small one, what would a -court do? Doubtless it would hold that the grantor tried to deceive -the other party and would grant relief. - -The land sold must be bounded or described. As land is increasing -everywhere in value more pains is taken in describing it, than -formerly. Large tracts have been surveyed by the government and are -indicated as sections, quarter sections, yet even these boundaries are -sometimes imperfect, caused by incorrect surveys, whereby lands -overlap, or otherwise have defective boundaries. - -One of the well-known rules is, monuments control corners and -distances. This is founded on much experience, for this shows that -courses differ from variations in the compass, changes in the surface, -etc. Though monuments may be moved intentionally or by natural causes, -they can be more trusted in the long run of things. - -The location of a monument is a question of fact. It is sometimes said -that natural monuments possess higher value than artificial ones, this -depends on the character of the artificial one. A large stone set in a -secure place surely is a better boundary than a wayward stream whose -course is changed by every freshet. In marking the public lands of the -western territories by statute monuments must designate the corners of -the tract. But when these are lost then corners and distances become -the guide. Oral evidence may be admitted to establish the location of -monuments, and even hearsay evidence may be used for the purpose. - -In a city lot courses and distances play a larger part in fixing the -boundaries, and are more carefully defined. Often the boundary is to -the center of a dividing wall. - -The boundary of land by a non-navigable stream is to the center; and -if one owns on both sides of such a stream he is the owner also of the -bed. But if land is bounded by the bank or shore of a stream, or by -other words of clearly evident exclusion, the stream is excluded. The -rule is different that applies to a tidal navigable stream. In some -states the boundary is high-water mark; in other states low-water. In -both cases the riparian owner, so-called, may erect a wharf extending -from his land subject to public control. The boundary of a natural -pond or lake, either in its natural state or raised artificially, is -low-water mark. Nor is the law changed by the conversion of a fresh -water pond into a salt pond by the hand of man. The boundary to an -artificial pond is through the center. - -The title to the bed of all lakes, ponds, and navigable rivers to the -ordinary high-water mark is vested in the states. Thus the people who -live around them may enjoy the waters the same as others enjoy tidal -waters. Nor is the state title affected by any manipulation of the -land above the surface of the water. - -The same rules of law apply to land situated along public highways. If -a deed should bound the land "by or along a highway," it would include -the land to the center; only words of clearly intending exclusion have -a different effect. If a deed should say "by the side" of a highway, -it might be excluded and it might not, the courts do not agree. All -agree that the intention of the parties should govern, but differ as -to intention expressed in the words they have used. The law is full of -such difficulties. If a highway is abandoned, the adjoining owners can -extend their lines to the center, unless one of them can prove that he -is entitled to more than one half. - -In investigating the title to real estate it is the duty of an -attorney employed for that purpose, says Justice Trenchard, "to make a -painstaking examination of the records and to report all facts -relating to the title. He is, therefore, liable for any injury that -may result to his client from negligence in the performance of his -duties--that is, from a failure to exercise ordinary care and skill in -discovering in the records and reporting all the deeds, mortgages, -judgments, etc., that affect the title in respect to which he is -employed." - - -=Divisional Tree.=--When the base of a tree is wholly on the land of -one owner the whole tree belongs to him. An adjoining owner, however, -may cut off at the divisional line such branches as over-hang his land -without notice and without reference to the length of time they have -been growing. To do this he cannot go on the land of his neighbor, but -must stay on his own land. A different rule applies to a tree that -stands on a divisional line and both owners have an interest therein. - - -=Dower.=--Dower is the interest that a wife has in her husband's land -after his death, and consists, unless modified by statute, of the use -of one third during her life. While both live her interest is so -secured to her by law that he cannot sell and convey any of his land -unless she unites with him in signing a proper deed of conveyance. In -most states this interest or dower is paramount to the claims of her -husband's creditors. But if there is any lien on the land at the time -of his death, like a mortgage, she cannot claim a preference or -priority over the mortgagee. - -She can claim her dower in any land belonging to her husband which her -children, if she had any, could have inherited as the heirs of their -father. When her dower is in mortgaged land, she cannot get possession -until the mortgage has been paid. Again, where land, wherein she has -a dower interest, must be sold, her right to the proceeds follows the -sale. If her husband was not in possession of the land claimed by him -before and after marriage, her dower will not become effective until -gaining possession. If he were only the nominal and not the real -possessor, her dower will not attach to the land, nor if he were in -possession as trustee, the real ownership belonging to another. - -A legal marriage is necessary to sustain a dower estate. Whenever a -marriage can be set aside for some illegality, and is not, it will -sustain her dower on his death. So, too, her dower may be lost or -barred by a legal separation; if she should re-marry, or the divorce -is set aside, her dower would revive. Her dower may also be lost -should her husband legally part with his estate, or by any legal -proceeding it should be taken away from him; thus, should another -claim it and prove that he had the better title. In other words she -loses her dower whenever her husband has no estate from which her -dower can be carved out. It is true that an adverse claimant cannot -give any title to her husband's land that would bar her right thereto. -The reason for this rule is that, like a minor, her rights cannot be -acquired against one who is unable by reason of age or other infirmity -to protect himself. - -The wife is entitled to have dower assigned to her immediately after -her husband's death. Until this is done, she has the right of common -law for the period of forty days, called quarantine, to reside in her -husband's house, provided she does not marry during that time. - -Dower may be assigned to her in two ways. One way is by direction of -the court, which ascertains by proper evidence the extent, location -and value of the husband's lands, and then directs the sheriff to -carry out its order in assigning to her a specific portion for her use -during life. The other way is by agreement. In some states money is -assigned to her instead of land as dower. - -Dower may be barred by agreement made before marriage. These -arrangements, marriage settlements, are becoming more frequent with -the increase of wealth and complexities respecting the holding of -property. Sometimes a testator provides for his widow in lieu of -dower. In such a case she may accept the gift, or reject it and claim -her dower rights. Suppose a testator should own a large amount of -land, and in his will should give her only a small amount of money in -lieu of dower. If eager to get the most possible, she would reject the -gift of money and claim her dower rights. On the other hand, suppose -he had but very little or no real estate, then she doubtless would -accept the money gift, unless she could claim a still larger sum by -virtue of some statute made to fit such cases. - -Dower does not exist in crops or trees severed from the land, but does -exist in mines and quarries belonging to the husband which were opened -and worked during his life. If lands have been exchanged by the -husband, she can elect in which she shall take her dower, but not in -both. There can be no dower in a mere personal privilege, or in a -revocable license pertaining to land. The widow of a partner is -ordinarily entitled to dower in so much of the partnership land as is -left after the payment of the firm's debts and the adjustment of -matters between the partners. But if an agreement among them that the -land shall be considered as personal property for all purposes, then -no dower therein can be claimed by the widow of any partner. - -A wife can release her inchoate dower or future expectation of -receiving it by joining in a conveyance with her husband for that -purpose. In order to make the election binding, it must be made with -full knowledge on the widow's part of her husband's estate, and the -relative value of her dower interest. The election is personal, and -cannot be exercised by her representatives after her death, nor by -creditors; and if insane, this cannot be done by any committee or -guardian acting under the authority of a court. - -An absolute divorce, even though for the husband's fault, divests the -wife of dower, unless her right is saved by statute. Quite frequently, -the statute provides that there shall be no dower in case of divorce -for the wife's fault. Occasionally it is provided by statute that -divorce for the husband's fault shall not bar dower; and sometimes a -statute requires dower to be assigned immediately upon divorce without -awaiting the husband's death. It may be added that the principles of -the common law relating to dower have been largely modified by statute -in all the states. - - -=Drunkenness.=--The courts are reluctant to recognize intoxication as -an excuse either for committing a crime or for repudiating a contract, -but if from long continued intemperate habits a man has become -actually insane or incompetent, his actual mental condition will be -recognized whatever may have produced it. - -Again, in making a contract the other party could hardly deal with a -man badly intoxicated without knowing his condition, consequently the -element of fraud appears, and the contract may be declared invalid -either for lack of contracting capacity on the part of the drunken -man, or for fraud on the part of the other in taking advantage of his -condition. His fraud would be still greater if he had designedly -caused the drunkenness of the other. Either objection, however, -renders the contract voidable rather than void, and should an -intoxicated party, after he became sober ratify his contract, or fail -to repudiate it and restore the consideration, if any, within a -reasonable time, he would become bound. - -The courts are still more reluctant to admit intoxication as an excuse -for criminal acts. The courts hold that one who voluntarily deprives -himself of self-control must have intended the consequences, therefore -it is everywhere held that one who voluntarily becomes intoxicated, -although he did so with no purpose to commit a crime when intoxicated, -cannot claim immunity from criminal responsibility, or even a -mitigation of the penalty, though having no capacity to distinguish -between right and wrong. And yet, like so many legal rules, there are -some marked exceptions to this one. Thus, since burglary is the -entering of a house with the intent to commit a felony therein, one -who blunders into a strange house because he is too drunk to know -where he is or what he is doing has not committed the crime of -burglary. So one who carried off the property of another through -drunken ignorance does not commit larceny, as there is no intent in -such a case to convert the property to the taker's own use. Another -application has been made in cases of assault with intent to kill a -person. - -Again, says Peck, "if one is visibly intoxicated, it is the duty of -those who come in contact with him to take his condition into account, -and their use of due care will be judged in view of that fact. Even if -the drunken person and the other are both negligent, the sober party -may be liable under the doctrine of the last clear chance, if he fails -to exercise toward the drunken man the degree of care which is -evidently required to avoid injuring him. Especially is a common -carrier, in dealing with a passenger who is on its car in an -intoxicated condition, bound to take his helpless condition into -account in removing him from the car or otherwise handling him, and -not put him in a place of manifest danger to one in his condition." - -It has also been held that the intoxication of one who uttered a -slander may be admissible in mitigation of the damages, as utterances -of a drunken man could not seriously impair the reputation of any one. - - -=Equitable Remedies.=--Elsewhere we have told how courts of law differ -from courts of equity. In some states no separate courts exist, and -wherever legal proceedings are established by a code or system of -statute law, the form of complaint addressed to a court is quite the -same in an equity case as in any other. But in states where code -practice has not been established, the mode of setting forth one's -grievance or wrong is by a bill or petition, ending with a prayer for -relief. We will now briefly state some of the things for which relief -in equity may be sought. - -One of the most common things is to compel persons who refuse to -perform their contracts to execute them. Suppose one has agreed in -writing properly signed to sell his farm to another, but is unwilling -to give him a deed. It may be that he can get more for his farm, or he -has made the discovery since selling it that it is worth much more, is -underlaid with coal or oil, or that a railway is soon to be built -near it that will enhance its value. If he went to a law court, all -that it could do would be to compel the seller to give the purchaser -such damages as he could prove he had sustained from the seller's -failure to execute his agreement. But a court of equity can go further -and compel the seller to give the purchaser a proper deed, the kind of -deed mentioned in the agreement; or, if none was specified, the kind -of deed usually given in such cases. - -This remedy cannot be always sought whenever the seller fails to -execute his contracts. The important limitation is, when the law has -an adequate remedy, and the injured person has no need of resorting to -a court of equity. All the ordinary agricultural and manufactured -products fall within this class, cotton, cattle, lumber, fruits, stock -in trade and the like. But if a chattel has a sentimental value to the -purchaser, a court of equity will decree that it must be delivered to -him, because in such a case the damages would obviously be inadequate. -The same rule applies to all articles of a unique or rare value that -cannot be duplicated; also to patented or copyrighted things that -cannot be procured in the open market. - -Suppose one has purchased the stock of a bank or railroad company, -which the seller refuses to deliver, has the buyer a legal remedy for -damages, or an equitable remedy to compel the seller to deliver the -stock, or has he the choice of remedies? The courts have divided on -this question. The better rule is, if the stock can be readily bought -in the open market, the buyer has only a law remedy to recover damages -from the seller's failure to execute his contract; if the stock cannot -be thus purchased, a money damage is not an adequate remedy, the -purchaser wants the stock and he can, through a court of equity, -compel the seller to deliver it to him. As government bonds can always -be bought in the open market, a court of equity will not decree the -specific execution of a contract for the delivery of the actual bonds -purchased. - -If A has agreed to erect a building for B on his land and fails to do -it, money damages are usually an adequate remedy, but if B cannot find -any one else to do the work as well, or in as satisfactory manner, -then a court of equity would compel A to fulfil his agreement. -Likewise if a landlord has agreed to repair his tenant's premises and -neglects, the legal remedy is usually more satisfactory than a -specific execution of the agreement, because work done under -compulsion is not likely to be as well done as that done voluntarily. - -A contract to render personal services will not be enforced against a -person who has agreed to perform them, for several reasons, one is -that another person can be employed, another is that the thirteenth -amendment to the federal constitution, forbidding involuntary -servitude, cuts off the equitable remedy in such cases; of course the -legal remedy for damages is still effective. A contract to give a -mortgage to secure a loan of money may be enforced by the creditor, -but a contract to lend money cannot be enforced by either party, -because there is usually an open market for the lending and borrowing -of money. Likewise a contract to form a partnership cannot be -enforced, for, if it were, the unwilling partner could dissolve it and -thus nullify the action of the court. - -Where one sells out his business, whether commercial or professional, -and agrees not to compete with the buyer, equity will compel the -seller to observe his contract unless it was illegal or an -unreasonable restraint on trade. This limitation is important. Thus A, -a dentist in Philadelphia, agreed with B, another dentist, not to -practice in the city for ten years a certain method of extracting -teeth. A continued to practice as before and B applied to a court of -equity to enjoin him. He failed for the reason that no one ought to -have a monopoly, so the court said, in any means or method for -relieving human suffering, like the process in dispute. If an employee -agrees not to divulge the trade secrets of his employer, equity will -enforce the agreement, for damages given in a law court would be -wholly inadequate. - -Another class of cases must be mentioned relating to injuries to land. -By the common law the only relief a landowner had against one who -injured it in any way was an action of waste to recover money damages. -A court of equity has power to issue a command to the person who -threatens or attempts to commit injury ordering and directing him to -desist from his purpose. This has been often used by the owners of -land against their tenants who attempted to do things that would -materially injure the property. This remedy is now often used to -secure the owner and occupier of land in its proper use against those -who attempt to commit a nuisance. While the occupier could recover -damages if he sought the aid of a law court, equity will order the -wrongdoer to abate the nuisance. Such a remedy is much more effective -than the legal one, because damages that may be recovered relate only -to a past offense, while the equitable one prevents it from happening -or from its continuance. - -Promises not to do some particular act on a piece of land are often -made in deeds conveying them; they are called covenants. Equity will -usually enforce these covenants, and will compel the wrongdoer to undo -what he has done provided that relief is sought promptly. Thus if a -purchaser agrees not to build nearer the street than a stated line, he -can be enjoined from disregarding it. A purchaser therefore who built -two houses three feet beyond the agreed line was compelled to remove -them. - -The remedy in such a case is an injunction. It may be temporary or -permanent. Quite often when one applies for an injunction, if the -injury threatened is immediate, the court will immediately enjoin the -party from proceeding and fix a time for a future hearing to decide -whether the injunction shall be dissolved or made permanent. The time -fixed for such a hearing is within the discretion of the court, and -depends on the nature of the case. Usually the time is quite short, -enough to enable the parties to collect the evidence relating to the -controversy. The hearing is conducted very much like any other trial, -witnesses appear, all the evidence is given, and is reviewed by -contending counsel, after which the judge announces his decision. Some -of the more noteworthy injunctions of recent days have been rendered -against labor unions or their members who, having struck for higher -wages, or other ends, have sought to picket the works of their -employers and thus prevent them from employing other workers to take -the places of the strikers. The unions contend that this is an -improper use of the judicial power, whether it is or not no one will -deny that it has been long exercised. - -In the early days of administering the patent law injunctions were -granted against infringers. Judges soon grew more cautious when they -learned that patents were sometimes erroneously granted, and that, on -acquiring a fuller knowledge of the controversy, there had been no -infringement. The modern practice therefore is, unless the proof is -very clear, to require a party who applies for an injunction to try -his case first and establish his patent and then, if it has been -infringed, an injunction will be issued. - - -=Factor.=--A factor receives and sells goods for a commission, is -usually entrusted with their possession, and sells them in his own -name. He has a special interest or property in them, and a lien -thereon for advances in money that he may make to the owners. No -formal mode of authorizing him to act is required, usually this is -done by word only, and his authorized acts may be ratified by his -principal. This authority is largely the outgrowth of usage. The -authority of a factor to fix the terms of selling may be by agreement -or by usage, like any other agent. Limitations fixed by the principal -are ordinarily binding on the factor, and, so far as they are -chargeable with notice of them, third persons also. Where goods are -confided to a factor without instructions, authority to exercise a -fair and reasonable discretion is implied. Unless restricted by his -principal, or by contrary usage, he may sell goods on a reasonable -term of credit. If he is restricted to cash sales only, or is not -protected by usage in selling on credit, he cannot do so. Secret -instructions would not affect the rights of a purchaser ignorant of -them and relying on customary authority. - -A factor is employed to sell goods, and not to barter or exchange -them, and if he should do this his principal could recover them. He -may insure the goods, but is not required to do so unless instructed -or is required by usage, which plays a large part in this matter and -must be observed except as qualified by instructions. - -He cannot compound or compromise a claim for the purchase price, or -discharge the debt on payment of a part only, or submit a disputed -claim for arbitration, or rescind a sale, or discharge a purchaser -from any part of his obligation, or extend the time of payment, or -make, accept or indorse negotiable paper contrary to instructions or -usage, or sell the goods thus entrusted to him for sale to himself. -See _Agency_. - - -=Fire Insurance.=--Insurance against loss by fire is now effected in -companies organized for that purpose. Two kinds exist, stock and -mutual. In mutual companies the persons insured act together to insure -each other. The members of some of the largest mutual companies are -manufacturing corporations. The more general mode of conducting them -is to require each member to pay a premium in advance for the amount -insured which, unless unusual losses occur, will be enough to pay all -the losses for the year. If it is not all needed, the balance is -returned to the parties who paid the premiums, or is credited to them -for the following year. If the losses exceed the premiums thus paid in -advance, then an assessment is made on each member to cover the -deficiency. Generally the premium paid is more than enough to cover -the losses, and a balance is returned or credited to the insured as -above mentioned. As mutual companies do not take such risks as stock -companies, the cost of insurance is less and therefore is carried in -preference to insurance in stock companies, whenever it can be -obtained. - -There is another way for paying for losses in mutual companies. -Instead of paying cash premiums in advance, the insured gives a bond -or note well secured that he will pay in cash whenever a call is made -on him to cover the losses that have been incurred at the end of the -year or other period. This method is in vogue in some sections, -because still less money is required to keep property insured. Of -course besides the money to pay losses another sum is required to pay -the expense of management. It will be seen that the mutual plan is -purely for protection against loss and no profit in the way of -dividends is forthcoming, for the companies have no capital. It is -true that some companies, instead of returning the unexpended premiums -for losses retain them or a part of them and by so doing accumulate a -surplus. Many companies, however, return all the contributions not -expended for management or losses and have no surplus, or only a very -small one. - -Stock insurance companies proceed on a different principle. They are -organized to make money, a capital is subscribed, the rates of -insurance or premiums are fixed and after paying the expense of -management and loss, the balance is paid to the stockholders in the -way of dividends. The business is one of unusual hazard, and only a -rich person, who can afford to lose his money, ought to invest in the -stock of such companies. Their profits and losses vary greatly from -year to year; and failures have been frequent. Nevertheless some -companies have a fine record, enough to tempt them to continue -notwithstanding their trying reverses. - -As the contract of insurance is for an indemnity, the insured must -have some interest in the property insured, otherwise the contract is -a mere wager, which the law condemns. Moreover the interest must -continue and exist at the time of the loss. Who, therefore, has an -insurable interest? A bailee, a carrier of goods, a consignee who has -authority to sell them, a factor, pledgee, warehouseman, an assignee -for the benefit of creditors, an executor or administrator, an -attachment creditor, but not a general creditor, a landlord, tenant, -mortgagee of real or personal property, a lienor, for example, the -holder of a mechanic's lien, a receiver, residuary legatee or devisee, -a trustee, vendees and vendors of real and personal property, the -owner of stock in a corporation, any agent who has the care and -management of his principal's property, besides many others. But a -fire insurance policy may be assigned as collateral security with the -company's consent, and continue valid though the assignee has no -interest in the property. This rule therefore is fundamental, and if -the interest of the insured in the property has been extinguished -after making his contract and prior to its loss by fire, he can get -nothing from the company. Likewise the property must have been in -existence at the time of making the contract, if it was not, the -policy is void. Many stories are told of insuring ships after learning -of their loss; such conduct is a palpable fraud. - -An insurance policy is a contract, of which the policy is evidence. A -standard policy has been prescribed in several states by statute: in -other states the parties are still free to make such terms as they -please. It is usual for companies to execute blank policies in due -form to be filled out and delivered by their agents. Such policies are -not valid until countersigned, unless the countersigning is waived. - -When does the policy become valid or binding on the insured? Says a -competent authority: "Where a policy has been duly executed in -compliance with an application on the part of the insured, so that the -minds of the parties have fully met as to the terms and conditions of -the contract, a manual delivery of the policy to the insured is not -essential to render it binding on the company. If the contract has -become binding by the issuance of the policy and the placing it in the -hands of an agent for delivery, then the fact that such delivery is -not actually made to the insured until after the loss has occurred, -will not defeat recovery by the insured." - -The premium usually must be paid at the time of issuing the policy, -unless a different agreement is made concerning it. Credit may be -given, and an agent generally has authority to do this. A valid -payment may also be made in other means than money; a check or note -may be given for it. - -An insurance policy may be assigned, though it usually contains a -clause that the consent of the insurer is needful. When the policy -contains this clause and the insurer without valid reason refuses to -consent to an assignment, "the assignee acquires the same right as -though consent had been given." - -Consent to an assignment may be given by the president of the company, -without formal vote by the directors. It may also be given by the -secretary or by any other agent duly authorized. - -When can a policy be canceled? Unless this right is reserved in the -contract, or given by statute, the insurer cannot cancel the contract -without the consent of the insured. It often is reserved, and if -exercised, this must be done before a loss occurs, and a cancellation -made afterwards, though without knowledge of it, is void. The motive -for making it is not important. If, as a condition of cancellation, -the unearned portion of the premium is to be returned, the failure to -return it renders the cancellation worthless. Nor is this effective -until notice has been given to the insured. - -A court of equity will reform a contract of insurance on the ground of -accident, fraud, and mistake. Oral evidence is admissible to prove the -fraud or mistake; it must, however, be clear before a court will grant -relief. If mistake is the ground for asking relief, the insured must -not have been guilty in causing it, and must act promptly after his -discovery. This rule does not prevent him from seeking relief when the -agent of the insurer has been negligent. Furthermore it may be granted -even after the happening of a loss. - -Should there be a conflict between the written and printed portions of -a policy, the written portion will be presumed to represent the intent -of the parties. If, therefore, the printed portion excludes certain -articles from the risk, and the written portion covers them, they are -included. Conditions also written or printed on the margin or back of -the policy are regarded as portions of it, and these too will control -the printed portions. Besides, the written application is usually -considered a part of the contract and the policy is construed or -interpreted in connection with it. This is especially so where the -proposals and conditions are attached to the policy. If the intent of -the policy is not clear from the language used, the surrounding -circumstances may be shown for the purpose of ascertaining the intent -of the parties. The known usage of trade may also be taken into -account in construing the language of a policy. - -The language of the policy should be so construed as to cover the -property within the intention of the parties, and support, if -possible, the contract of indemnity. Mere clerical errors or mistakes -in describing it may be corrected even after it has been destroyed. -The location is an essential element, and the policy will not be -stretched to cover property not within the description. If a building -is described this does not include separate structures used in -connection with it, nor fixtures constituting no part of the -structure. Unless expressly excepted, however, insurance covers those -things which have been so annexed as to become a part of the realty -but none others. The term store fixtures covers fittings, fixtures, -furniture used in the course of trade, whether they are part of the -realty or not. Likewise the term "stock" used in a mercantile business -includes everything usually kept for sale, in that business, but -nothing more; while household furniture includes all articles -necessary and convenient for housekeeping. With respect to future -additions these are covered by the policy unless it is so drawn as to -show a clear intent to exclude them. - -The risk usually begins with the date of the policy, unless it is -effected by a preliminary contract. In such a case the risk begins -from the date of the preliminary contract, and continues for the -period fixed in the policy, or, if none has been fixed, for a -reasonable time. - -A misrepresentation voids a policy generally. It must not only be -false in fact, but the insured must have known that it was false when -making it in a substantial and material respect. The misstatement of -an agent of the insured will have the same effect. Indeed, any fraud -of the insured in procuring the policy has the effect of voiding it if -the insurer chooses to do so. Of course, the wrongful facts or acts of -the insured possess a varied character. His conduct in concealing -facts that ought to have been made known to the insurer may have that -effect. Thus to conceal a fact of which the insured had knowledge, and -which, if known by the insurer the risk probably would not have been -taken, is a fraud rightly available to the insurer. - -The parties to an insurance contract may agree that the questions put -by the insurer and the answers given by the insured shall become a -warranty. This, as experience has shown, is a simpler way of effecting -a policy of insurance. When this is done a misrepresentation -constitutes a breach of warranty and the contract becomes void. - -The modern policy provides that it shall be void if the insured "now -has or shall hereafter make or procure any other contract of -insurance, whether valid or not, on property covered in whole or in -part by this policy." If the insured effects other insurance he must -not forget to obtain consent of the insurer, and should he forget his -good intention will not preserve his policy. Nor can the insured -protect himself by canceling the prior policy if he breaks the -condition. Nor does its expiration revive the subsequent policy. An -overstatement of existing insurance under an express warranty will -also violate the policy. While forgetfulness or good intention will -not save the insured in such cases, insurance obtained by a third -person without the knowledge of the insured on the same property will -not endanger his rights under his policy. - -If a fire occurs and a loss results, this may be total or partial. In -every case of loss fire must be the proximate cause of the loss. What -loss is covered by a policy has been the subject of frequent -controversy. Damage by water used to extinguish a fire is usually -covered; also damage to or loss of goods removed to prevent their -destruction from fire in the insured or another building. Likewise -the loss caused by blowing up a building to check a fire, likewise -damage from an explosion which is the direct result of a fire, "but an -explosion due to the ignition of a match or spark of an explosive -substance, no fire resulting, is not within the terms of an ordinary -fire policy." The standard policies contain a clause relieving the -insured from liability to pay for property stolen during the progress -of a fire, or during the removal of property necessitated by fire. - -An exception of liability from lightning, unless followed by fire, -excludes recovery unless there is loss from burning, but it is quite -common to insure against loss from lightning as well as fire. - -Unless there is a stipulation in the policy the insurer is not -relieved from liability by mere negligence or carelessness of the -insured or his servants though directly contributing to the loss; on -the other hand, the insured who does not take reasonable care to avoid -loss from his negligence or that of his servants may defeat recovery -under his policy. This rule is not easy of application, cases of -clearly proved negligence are numerous, also cases free from -negligence, a third class of a doubtful nature. The field of the law -is open in every direction to these. - -For a total loss the insurer is liable for the entire value of the -property to the limit covered by the insurance. Thus the loss of a -building is total though some of the walls remain standing, but not -when the remnant can be restored. In some states the statutes provide -that in case of total loss the insurer shall be liable for the full -amount of insurance, and shall not be allowed to show that the -property was of less value than the amount insured. - -When the loss is partial the insurer is liable only for the amount of -the loss, not exceeding the insurance. The policy may limit the amount -of recovery to the cost of restoring or replacing the property, and in -such cases this is often done instead of paying the loss in money. If -each of several classes or items is separately valued, thereby -separating the liability for them, the recovery for any one class or -item is limited to the damage to the same. - -Lastly, in fixing the loss the distinction between open and valued -policies must be explained. A fire policy is generally written in such -a way that the liability of the insurer depends on the amount of the -loss to be determined after the loss has occurred. When this is done, -the valuation of the property in the application for a policy or in -the policy, does not fix the liability of the insurer, even though the -loss be total. This is called an open policy. On the other hand the -loss may be fixed by a stipulation in the policy, and which binds the -insurer to pay the whole sum insured in case of total loss. This is -called a valued policy. A policy is regarded as an open one, unless it -appears to have been the intention of the parties on a fair and -reasonable construction of its terms, to value the loss and so fix by -contract the amount that may be recovered. - - -=Fixtures.=--A fixture is something annexed to land either temporarily -or permanently. Different rules apply to persons in different -relations. The law favors removal by a tenant presuming that he does -not put in things for the landlord's benefit, unless there is an -agreement to that effect between them. On the other hand a different -rule applies between the seller and purchaser of real estate. As -between them the law presumes that the seller intended to keep the -things affixed to the house, especially ranges and the like. On the -other hand a somewhat different rule applies between mortgagor and -mortgagee. The former is favored, but not so much as the tenant. -Suppose the mortgagor was a nurseryman, and the land was taken for the -debt by the mortgagee, would it include the trees and shrubs that had -been planted for sale? The courts have given an affirmative answer. - -The facts that are of special value in finding out whether a thing is -a fixture or not are: (1) the actual annexation of the article to the -realty; (2) the immediate object or purpose of the annexation; (3) the -adaptability for permanent or mere temporary use; (4) and whether the -article can be removed without material injury to the property to -which it is annexed. See _Lease_. - - -=Garage Keeper.=--The garage has been said to be the modern substitute -for the ancient livery stable. A garage man who receives the -automobile of another to keep or repair--a service for which the owner -is to pay a compensation--is a bailee for hire. While this relation of -bailor and bailee exists, the owner is not ordinarily responsible for -the negligence of the garageman or his servants in the care or -operation of the automobile. - -A public garage is not a nuisance. Even the storage of gasoline in -suitable tanks set down in the earth is not a nuisance. Yet the -business may become a nuisance when conducted in some localities, or -in an improper manner. The operation of a public garage may therefore -be enjoined in a purely residential section within a short distance of -large churches, a parochial school and houses. Likewise the odors, the -noise, and the fire hazard, which are occasioned by the construction -and management of a garage, create a situation which justifies public -regulation. - -A garage keeper is generally allowed a lien on an automobile for -storage and repairs. If no price has been fixed in advance, the garage -keeper is entitled to recover of the owner the reasonable value of the -services and materials furnished. When the automobile is brought to -the garage by a chauffeur, the garage keeper should assure himself of -the chauffeur's authority to order repairs, especially those of a -permanent nature. - -The garage keeper when storing a car for another for compensation must -exercise reasonable care and prudence. If negligent he is liable for -the damage. It is said that the liability of a garage keeper for hire -is not affected by reason of the knowledge of the owner as to the -place where the property is kept. Its acceptance by the garageman -imposes on him the duty of exercising due care for its safety and -protection. But he is not an insurer of the property; and therefore is -not liable for loss by fire unless he has been negligent. Generally, -in such a case the burden of proof is on the owner of the machine to -show that the fire was caused by the negligence of the garageman. -Sometimes one keeps a car for another for accommodation, receiving no -compensation therefor. One who thus serves another is liable only for -gross negligence. - -The garage keeper must protect the property from theft. If he permits -a machine to remain in an alley when it ought to have been inside his -garage, he is liable. In one case a motorcyclist left his machine with -a garage keeper to be kept over night, and also gave permission for -its inspection by any one whom he might send around. A person -appeared with a permit to inspect it who, under the permission, stole -it and rode away. The garage keeper was rightfully held not liable. - -If a garage keeper or his servant negligently runs a machine left in -his custody for storage or repairs, the garageman is liable for the -damage resulting to the owner. At the expiration of the bailment he -must deliver the machine to the owner or person authorized by him to -receive it, and is liable if neglecting or refusing. He is also liable -if delaying unreasonably to make repairs, or for making them -unskillfully. Lastly, if the car is driven by the garageman's servant -while the bailment continues, the bailee, and not the owner, is -responsible for any injury done to a third person by the servant's -negligence. Of course, if the driver was acting outside the scope of -his authority, and was using the car for personal purposes, neither -the garageman nor the owner would be responsible for whatever -happened. See _Automobile: Chauffeur_. - - -=Homestead.=--A legal homestead is the home or residence of a family -land owner, and includes a specific area varying in the several -states. By the more general rule the land must be connected in a -single piece, though in some states the pieces may be distinct. Though -divided by a highway this does not effect a separation, as the land -therein belongs to the owner subject to the public rights to pass and -repass and also use to keep the highway in repair. The peculiarity -about a homestead is, it is protected by law from seizure by the -owner's creditors. - -One of the most important questions relating to a homestead is, the -meaning of the head of a family. The term is not limited to a man -having a wife and children. It includes an unmarried man with whom -his widowed sister and children reside; or a man who supports his -mother; likewise an unmarried woman with whom the children of a -deceased sister are living. Nor need they live under the same roof, -the essential thing is the relation and dependence existing between -them. On the death of a husband owning a homestead the right survives -to the widow, and usually to the minor children. Some statutes give -her the absolute estate, others a life interest; in some states she -loses the homestead by a subsequent marriage. In most states the -rights of surviving children end on attaining their majority. In many -states the surviving husband is entitled to the homestead right, even -though there be no children. A husband does not lose his homestead -when his wife withdraws from the family under a decree of divorce. -Non-residents as a rule are not within the privilege of the homestead -laws. - -On the dissolution of a marriage by divorce, as the wife ceases to be -a member of the husband's family, she loses her rights to the -homestead. The decree of divorce may, in the dissolution of the -marriage, reserve to her the right, and if she is the owner of the -homestead she may continue to occupy it as one. The mere desertion of -husband or wife by the other spouse will not, in itself, destroy the -character of the homestead although an entire dissolution of the -family will have that effect. - -By the federal law every head of a family, or a person twenty-one -years old and a citizen, or intended citizen, of the United States, if -not the owner elsewhere in the United States of one hundred and sixty -acres of land and has not previously obtained a federal homestead, is -entitled to a quarter section or less of the public land. Three things -are necessary: (1) An affidavit showing that the applicant comes -under the law; (2) a formal application; (3) payment of the land -office charges. When these things are done, the certificate of entry -is delivered to the applicant and the entry is made. Then the entryman -must actually reside on and cultivate the land for three years, and at -the end of that period, he is entitled to a patent. The lands thus -acquired are not liable for any debts contracted prior to the issuing -of the patent. - -The head of a family can sell or mortgage his homestead, whether he is -solvent or not, nor can his creditors prevent its sale since they have -no rights therein. And if he sells his homestead and with the proceeds -buys another, the second is as fully protected from creditors as the -other. - -From liability for most debts a homesteader is exempt, but not for -all. Generally the homestead is not exempt from taxes, but not -everywhere from fines for public offenses or liability on official -bonds. Debts contracted prior to the acquisition of the homestead and -pre-existing liens in most states are enforceable against the -homestead. So are debts contracted in improving or preserving the -homestead. These include materials furnished, also the wages of -clerks, servants, laborers and mechanics. - - -=Husband and Wife.=--The law, while regarding marriage as a contract, -adds something more, for it cannot be terminated by the will or -consent of the parties; a contract on the other hand in most cases can -be. To constitute a marriage there must be an agreement or mutual -assent by the parties. This agreement must be made freely, seriously -and not as a joke. False representations of health, wealth, etc., do -not invalidate the agreement, yet these may be grave enough to have -that effect. Consent may be obtained by deceit or compulsion so gross -as to justify a court in declaring that the parties were never legally -married. A person may be too defective mentally to give an intelligent -assent. A subsequent mental weakening would be no ground for annulling -a marriage. An Illinois court recently remarked, it is a harsh rule -that would permit a married man whose wife later in life became insane -to put her away on account of her misfortune. If one were so -intoxicated that he did not act intelligently, he could avoid his -marriage. - -A male at common law can marry at fourteen, a female at twelve. By -statute a later date, twenty-one for males and eighteen for females -has been fixed in many states. The right to disaffirm a marriage on -the ground of non-age, unlike the parties to a contract, applies to -both parties. - -In this country marriage is regulated largely by the states, though a -movement has been started to make marriage and divorce a matter of -national regulation. - -As marriages are of higher character than other contracts relating to -the ordinary dealings of men, even those that are prohibited by law -are for reasons of public policy not always void. They are therefore -not void, simply because the formalities prescribed by statute in -obtaining the license and solemnizing the marriage have not been -observed, when the parties afterward live together like other married -people. - -A marriage ceremony is not void though performed by one outside his -jurisdiction, or not having a license obtained at the proper place. -Persons who improperly grant licenses and solemnize marriages may -themselves suffer legally, but their wrongful action cannot be -visited on others. The principle still prevails in most states that a -marriage which is good by the common law, though contrary to statutory -forms unless there is an express prohibition, is a valid marriage. In -a few states a common law marriage is invalid. - -A marriage that is valid by the law of the state where it was made, is -valid everywhere. Nevertheless, the courts have great difficulty in -applying the principle. Suppose that the resident of a state, for the -purpose of evading its marriage laws, should go into another state and -have the marriage solemnized, and then return, is the marriage valid -in that state? No, but to lessen the rigor of the rule, the courts -hold that both parties must have intended to evade the law, if, -therefore, one of them was innocent the marriage was valid. - -After marriage the husband's domicile becomes that of his wife, and -her refusal to follow him without good cause, would be in law a -desertion. It is said that a promise before marriage not to take her -away from her mother and friends will not justify her in refusing to -go with him. If, however, she had immediately after marriage, -determined to separate from him and to take legal steps to that end, -she could legally remain. - -A married woman by the common law is answerable personally for her -crimes as though she were unmarried, unless they were committed in her -husband's presence. When together the law presumes she acted from his -coercion, he therefore must be the sufferer, while she escapes. This -rule though does not apply to the gravest crimes; for these both are -liable. Like so many other legal rules the difficulty is in applying -it. How near to the husband must she be when committing a wrong to -render him liable and escape herself. In one of the cases a married -woman was properly indicted for unlawfully selling intoxicating -liquors. At the time of selling them she was alone in the room, though -she had sold them by her husband's order. - -As the law regards husband and wife as one person, many peculiar -things flow from this relation. Thus one cannot steal from the other; -but either is criminally liable for an assault committed on the other. -By statute in some states the right of either party to sue the other -for wrongs has been greatly extended; nor is the husband liable for -wrongs committed by his wife unless he participated in them. For -example, in some states he is not liable for slanderous words spoken -by her in his absence; in other states his liability continues. On the -other hand, a wife who can manage and control her separate estate may -in turn be liable for the wrongs of her husband while he is acting -with authority as her agent. - -A husband has a right of action for damages against any person who -alienates his wife's affections. Nor can he be defeated by showing -that he and his wife did not live happily together. Such facts though -may be used to prove that her society was worth less than it would -have been had they lived happily, in fact, by money valuation was not -worth three cents. A husband forfeits his right to sue others for -entertainment when his own misconduct justified and actually caused -the separation, otherwise his remedy is complete against all persons -whatsoever who have lent their countenance to any agreement for -breaking up his household. On the other hand, this is a one-sided rule -in some states; in others a wife has the same right to sue for the -alienation of her husband's affections as he has for the alienation of -hers. - -By statute great changes have been made in the way of permitting -married women to retain their property and manage it, and to do -business. Formerly, all the personal property of a married woman went -immediately by law to her husband, and he became responsible for her -debts. She still retained her real estate and the management of it. -Now, very generally, she also retains her personal property, also the -income, very much as if she were unmarried. She often appoints him as -her agent to manage her property, and when thus acting he is -responsible to others and to her like any other agent. He may contract -for erecting any building or improvement on her land, but should he -contract in his own name for such improvement she cannot be held -therefor, nor can any one who has done work or furnished materials put -a lien thereon for them. It may be added that his right to act as her -agent is never implied solely from the marital relation. - -A wife may act in a representative capacity as agent for her husband, -or for other persons, and may execute a power conferred on her by deed -or will. She may also be appointed to act as executor, administrator -or guardian, though under the common law theory her husband's consent -was needful to her acceptance of any of these undertakings. - -The common law relations of husband and wife have been greatly changed -by statute since about 1844. "It is now," says Peck, "the usual rule -of law throughout the United States, established in each state by its -own statutes that the wife retains title to the property owned by her -before marriage or acquired by her during the marriage, and the right -to manage, use or sell it, without the concurrence of her husband. -The right to contract, and to sue and be sued, naturally follows from -her ownership and control of her property; in most of the states these -rights are expressly conferred by statute; and in some they have been -held to result by necessary implication." - -The husband is generally relieved from liability for her debts or for -her torts, except for such debts as are for her support or that of the -family, or are within her express or implied agency to act for him. -The common law estate of dower and curtesy are retained in some of the -states, in the larger number they are materially modified by statute, -or wholly abolished and replaced by a right of succession to each -other's property as defined by statute. - -The distinctive duties resting on a husband are to provide a home, to -support his wife and children, to protect her and them from injury or -insult. Thus a husband has the same right to protect his wife, to -assert and maintain her rights, even to kill a person, if necessary in -her defense, that he would have in his own behalf. - -The duty of a husband to provide a home implies his right to select -and fix the marital abode. The wife must live with him, and a refusal -on her part to live in the home provided by him would constitute her a -deserter. But he must select a home in good faith and in reasonable -accordance with his means and their accustomed mode of life. - -It is his duty to maintain order and law in his household. He is -therefore liable to prosecution should his wife carry on the illegal -sale of liquor, or in other ways defy the law. - -A husband cannot chastise his wife, but he may use force to restrain -her from committing a violent criminal wrong. Says a competent author: -"That depends rather on the right of every one to use reasonable -efforts to prevent violence and crime than on any peculiar power of -the husband over the wife, and it would also justify like restraint of -the husband by the wife." - -It is the duty of the wife to assist in the maintenance of the family -by such reasonable labor as the necessities of the family and their -circumstances in life and financial position require; while the -husband has no right to require her to do more than to care for the -house and the family in the customary and proper manner. He cannot -compel her to engage in business, to work for wages, nor to work for -him in his business. The services of any kind which either may render -to the other, or for the family, are rendered in consideration of the -marriage relation, and of the mutual benefit received therefrom and -neither has any right of action against the other for them. - -It should be noted that the legislative revolution for the benefit of -married women has chiefly affected the property relations of husband -and wife, while their personal rights remain quite as before. Probably -no single rule of the common law was so bitterly resented and so -difficult to defend, as the vesting in the husband of the sole -guardianship of their children. By statute in many states both parents -are made guardian of them, and if they separate, the welfare of the -children is regarded as the decisive question in fixing their -guardianship, rather than the superior right of either parent. - -A husband and wife by the modern law may agree to live separately. The -arrangement in some states is effected through a trustee, in others -this may be done by the parties themselves. By this the parties may -agree on the disposition and division of their property when this can -be done freely and intelligently. A separation agreement made through -fear of her husband cannot be sustained. - -A wife who voluntarily enters into an agreement of separation covering -all property rights cannot, after her husband's death, have it set -aside and then claim her rights in his estate, except in some states -where community rights exist. On the other hand, her right to share in -her husband's estate is not lost though she lives apart from him by -agreement, unless this shows a clear intention to relinquish all -claims to his estate. - -The husband must support his wife. This is the law everywhere. While -they live together the law presumes that he has given her authority to -purchase necessaries on his credit, and therefore a tradesman can -recover who shows that they were thus living and that the things -furnished befitted their condition in life. When she is living apart -from her husband the presumption is the other way, and a tradesman -cannot recover without proof of the fact of her husband's authority to -let her have the goods. But when she is living apart from him for good -cause, and would starve if the things needful to sustain life did not -come from some source, she has an absolute right to pledge her -husband's credit for them. - -What are the things for which she may pledge her husband's credit? -Those required to sustain life and preserve decency, besides other -things to maintain her in her social condition. Wearing apparel, -furniture, jewelry, even legal expenses incurred in regaining her -conjugal rights have been included. - -Besides agreements to live separately, the law for several causes -permits absolute separation. These are prescribed by statute, and -vary greatly in the different states. Adultery is a cause recognized -in all of them, for which an absolute divorce can be granted. Cruelty -is another cause, almost as general, though more difficult to define. -Actual violence is not necessary to constitute cruelty, threats of -violence with an intention to do bodily harm will suffice. Again, the -cruelty must be unmerited. If she has justly provoked the indignation -of her husband, then his cruelty presents a different aspect. -Nevertheless, if his cruelty bears no relation to her wrongful -beginnings, she still has good ground for separation. - -Desertion is a general ground of divorce, the law in every state -prescribing a period of time, quite often three years. The period must -be continuous. An offer to return made by the deserted spouse in good -faith at any time before the separation has run for the statutory -period will bar a divorce, but not if the offer is made afterward. -Again, a husband who drives his wife away from him by his misconduct -deserts her as clearly as if he had left her. To cease living together -for the time fixed by statute is not desertion unless this was done -intentionally. For example, separation on account of business, -sickness, etc., is not desertion. Not only must there be an intention -to leave the other party, this must be without consent. - -Another cause for divorce, quite generally recognized, is habitual -drunkenness. This must be of a gross and confirmed nature. While other -causes exist the most general have now been mentioned. In some states -there is a more general ground, any reason rendering married life a -failure. Of course, much depends on the discretion, mental and moral -make-up of a judge in applying the facts to a cause for separation -that is so general. An agreement in advance to make a cause of divorce -is everywhere condemned by the law. - -Divorces are of two kinds: from the bond of marriage, often called -absolute divorces, which put an end to the marriage relation and -render the parties single; and divorces from bed and board, limited -divorces, more accurately called judicial separations, in which the -marriage relation is not dissolved, but the injured party is given the -right to live separate from the other. In more than half of the -American states no distinction is made between kind of divorce, all -divorces are absolute, from the bond of marriage. - -The legal effect of divorces is still a grave matter. When a divorce -has been legally granted by a state, the courts of every other state -for obvious reasons recognize and try to uphold the decree or -judgment, though not all of them, and consequently strange results -follow. Thus a person who was married and living in New York leaves -his wife for good reason and goes to Connecticut. After acquiring a -legal residence there and proper standing in a court, he applies for a -divorce, the proceedings are regular in every respect and a divorce is -granted. He marries again and takes his wife to New York for a visit. -There he is sued by the first wife for support, moreover, by the laws -of New York he is an adulterer. In New York he is still married to the -first wife, in Connecticut to the second. If children are born of the -second marriage they are legitimate as long as they live in -Connecticut, illegitimate should they go to New York. One of the -latest legal writers on this difficult subject says: "Foreign divorce -judgments granted in states where the plaintiff had obtained an -actual, bona fide residence, will doubtless continue to be recognized -by the great majority of our states, but the states of New York, -California, Maryland, Massachusetts, Vermont, South Carolina, -Pennsylvania, and possibly some other states, which have adopted the -extreme New York doctrine, are permitted by the rule established in -the Haddock case--a decision by the Supreme Court of the United -States--to continue to refuse recognition of divorce judgments in -other states." - - -=Innkeeper.=--An innkeeper's house is a public place to which -travelers may resort. He cannot therefore prohibit persons who come -under that character in a proper manner and at suitable times from -entering, so long as he can accommodate them. He is not obliged to -receive one who cannot pay for his entertainment. Indeed, he must -exclude some persons who apply, notably thieves. He can refuse to -admit all whom he has reason to believe will disturb the peace and -safety of his guests; and can afterward exclude all who, though -admitted, prove to be noisy and disturbers of the comfort and safety -of others. And if having a stable he is under the same obligation to -receive and care for horses as he is to receive the person to whom -they belong. Again, he is not required to provide a guest with the -precise room he may select, but only reasonable and proper -accommodations. If he refuses to do so he is liable in law to the -applicant. - -In caring for the baggage of a guest, the law is not as well settled -as it might be. A competent writer has said: "They are insurers of the -property of their guests committed to their care, and are liable for -its loss, unless caused by the act of God, a public enemy, or the -neglect or fault of the owner or his servants." This strictness of -liability, it is said is necessary to protect travelers against any -collusion between the innkeeper and his servants, and to compel him to -take care that no improper persons are admitted into his house. His -charge for the entertainment of his guests is sufficient to cover this -risk; he also has a lien on their property entrusted to his care to -indemnify him against loss. - -By statute in many states innkeepers are exempt from loss by fires -which are in no way caused by their own negligence or that of their -servants. If a horse dies while in the innkeeper's charge, he is -liable unless he can show facts that excuse him. - -If the goods of a guest are stolen by the innkeeper's servants or -domestics, by another guest, or by someone outside the inn, the -innkeeper must make restitution, for it is his duty to provide honest -servants, and to exercise an exact vigilance over all persons coming -into his house as guests or otherwise. His responsibility extends to -all his servants and domestics, and he is bound in every event to pay -for them if stolen, unless they were stolen by a servant or companion -of the guest. Illness or absence of the innkeeper does not excuse him. -An innkeeper is not liable for the loss of a guest's property when -this loss is due to the fault or negligence of the guest himself. Thus -an unnecessary display of money or valuables, or leaving them where -they would tempt thieves, may be negligence. But failure to lock or -bolt his door is not necessarily negligence on the part of a guest. It -is only evidence of negligence. Nor is an innkeeper exonerated when a -theft is committed by a fellow guest with whom the owner of the -property stolen had consented to occupy the same room. - -An innkeeper may make needful and reasonable regulations that are to -be observed by his guests to secure the safety of his property. When -they are made and brought to the knowledge of a guest he is bound by -them. By contract, custom and statute the responsibility of an -innkeeper may be changed. In many states by statute an innkeeper -avoids liability for the valuables of his guest unless they are -deposited with him. These statutes are construed strictly in favor of -the guest. Nor can an innkeeper even by these exempt himself from -everything, for if a guest were required to deposit all he had to -secure such protection, he would be in a strange fix. Said a Georgia -court: "Is the guest to deposit his valise there, and go and send for -it to get out a clean shirt?" - -If a guest goes away, leaving his valise or other things with an -innkeeper, he is not required after a reasonable time to observe such -diligence in keeping them as he receives nothing in the way of -compensation for so doing. - -Keepers of lodging and boarding houses are not innkeepers, nor subject -to their liabilities. The proprietor of such a house does not hold -himself out to the world as prepared to supply accommodations for all -who may apply, nor is he required to receive any persons unless he -chooses to do so; an innkeeper's freedom is restricted in this -respect. A house may have a double character of boarding house and -inn. With transient persons who, without a definite contract, remain -from day to day it is an inn; with those under definite contract it is -a boarding house. - - -=Land License.=--A license is an authority to do something on -another's land without acquiring ownership therein, and may be given -orally, or it may be simply a permission to use or occupy. A license -may be executory, relating to a future act, or it may relate to an act -already done or executed. An executory license may be revoked at any -time. Thus A laid a water pipe by permission across B's land who -afterward rendered the pipe useless by cutting it. A had no redress, -for B was acting within his rights. A ought to have obtained written -authority for such action. He could, however, remove the pipe or any -other improvement he had made on the strength of the license granted -to him. - -A license may be to do many things on another's land. Thus one may -have a license to flood land, erect buildings, pass overland, maintain -a ditch, cut timber, use land for railroad purposes. A common form of -license is a ticket of admission to enter another's land to witness a -spectacle or similar purpose. - -No formality is needed to create a license. It may be in writing or be -oral, or implied from the relations or conduct of the parties, as -where a land owner assents to the doing of certain acts on his land. A -person by opening a place of business licenses the public to enter -therein for the purpose of transacting business. And a license to do a -particular act necessarily involves any act essential thereto. - -A license is usually revocable at the pleasure of the licensor, even -though it be in writing and under seal, or a consideration has been -given. If the licensee has expended money and made improvements on the -faith of the license, can it be revoked? On this question the courts -divide. The more general opinion seems to be that a license coupled -with a grant or interest cannot be revoked. Or, if a license has in -effect been so used as to become an easement it remains a burden on -the land though sold to a purchaser, unless he had no knowledge of -it. A license cannot be assigned by the licensee to another. - -Again it is said that the revocation only affects the future exercise -of the privilege, and does not prevent the licensee from removing -structures or other movable articles placed by him thereon relying on -the license, provided he does this within a reasonable time after the -revocation. Even should the owner of land sell, the sale would not -operate as a revocation to one to remove trees that he had already cut -under a contract of sale and removal. - -If a person grants a license to another to come on his land, he owes -no duty to him except the negative one of not wantonly injuring or -exposing him to danger. Merchants invite the public into their stores -to buy wares, but those who accompany them without any intention of -purchasing are not invitees, they are mere licensees. The duty of the -storekeeper to one who enters his premises by mere license is not to -keep the premises in a non-hazardous state, but only to abstain from -acts willfully injurious to him. - - -=Lease.=--A lease is for the use of land, usually for a few years or -shorter period. The lessor is more generally known as the landlord, -and the lessee as the tenant. The lease may be oral, though the better -way is to put the agreement in writing. If it be for a house or other -building the lessee should insist on this, otherwise he would fare -much worse should the building be destroyed by fire. Doubtless many do -not know that, unless the lessee makes a specific agreement relieving -himself, he is liable for the rent of a building, just the same if it -is burned down as if he were still the occupier. This is the common -law, which has been changed in some states by statute. - -If the lease is for more than a year, or other short period, the -Statute of Frauds, so called, requires that it must be in writing. If -the time be less, a verbal lease may be made, even though the lessee -does not take immediate possession of the premises. If on the other -hand, it exceeds the statutory period, it is not absolutely void, but -continues during the joint wills of both parties, and may therefore -cease at the will of either party. If the landlord wishes to terminate -it, he must give the tenant notice to quit; should he disregard the -law and take immediate possession he would be a trespasser. - -When the terms of a lease are in doubt, they are construed in favor of -the tenant. A lease to a specified day continues during the whole of -it, though custom or statute may prescribe a different rule. A term -may also continue during the option of either of the parties to be -ended on notice by the party exercising the option. - -The most usual agreements or covenants in a lease are on the part of -the lessor for quiet enjoyment, which secures the tenant against any -hindrance or disturbance of his possession and enjoyment of the -premises from persons deriving their title from the landlord, or from -any one else who claims to be the owner. Also against all -encumbrances, in other words, that no one has any easements or other -rights in the premises. The landlord also usually agrees to repair, -and often to renew the lease, and the lessee to pay rent, to insure -and not to assign or underlet, without the landlord's consent. The -parties may of course agree to do any other lawful thing, for example, -sometimes the tenant agrees to make repairs, to reside in the -premises, not to engage in some kinds of business, to cultivate the -land, if the lease be of a farm, in a specified way. Again though an -oral lease for a term of years at a stated annual rent may not fulfill -the requirement of the Statute of Frauds, the parties may conform to -it and thus create a tenancy in fact from which the law will imply a -leasing from year to year. If therefore the tenant with the -acquiescence of the landlord continues in possession for several -months after the expiration of the original term, a tenancy for -another year will be created with a corresponding liability on the -part of the tenant for a full year's rent. And the measure and extent -of the tenant's liability would be the same, whether his continued -occupancy related to the original lease, or to a subsequent one just -like it, made as the first was soon to expire. - -The definite period for which a lease is given is called a term. If a -lease is from the first day of January, it begins on the second day -and lasts through the last day mentioned; in carefully drawn leases -the number of days is fixed to avoid all dispute. A lease for a year -with the privilege of remaining three years or longer does not mean a -single period of three years, but three yearly periods as the tenant -may elect. - -A lease may be made to take effect in the future, provided the time -for taking possession is not so far away as to violate some statute to -the contrary. A lease for an hundred years in some states is deemed a -parting with the absolute title to lands though railroads make long -leases running for ninety-nine years. If the length of the term is not -definitely expressed in the lease, the time may be ascertained by -other evidence. When a lease is to run for one or more years "from" a -specified day, the corresponding day of the year is excluded from the -term, unless a contrary custom exists. A lease to a specified day ends -with its expiration. If there be a doubt on which of two days a lease -terminates, the lessee may decide. More generally, leases of doubtful -duration are construed in favor of the tenants. By statute in New York -leases which do not specify the length of occupation, extend to the -first of the following May after taking possession. - -A lease must describe clearly the premises, nor can a defective -description be cured by outside evidence. Any language will suffice -that shows the intention of the parties. The words "grant," "demise," -and "to farm let," have a technical meaning, and are generally used, -but other words may be and often are used. A memorandum expressing the -consent of the owner that another shall have immediate possession of -the premises, and shall continue to occupy them at a specified rent -and for a definite term, is a sufficient lease; in general, any -agreement under which one person obtains the right of enjoyment to -property of another, with his consent and in subordination. - -A distinction exists between a lease and an agreement for a lease, -which should be understood, though it sometimes is not by the parties -themselves. If the agreement is a lease, it cannot be changed by other -evidence, for it is a completed contract; but if it is an agreement -for a lease, then it is not complete and other evidence may be -produced to show what the parties intended. How can the nature of the -agreement be tested? By ascertaining whether it is complete or not. -Thus A wrote to B that he would take his home at a stipulated rent for -two years if he would put in a furnace, with which offer B at once -complied. - -This was a lease, for by putting in the furnace nothing more remained -to be done. If he had not put in the furnace, or not before the time A -was to take possession, there would have been no lease, unless A had -waived his offer and taken possession. - -Of course to make a valid lease there must be competent parties. A -lease made by a minor is not void, but he may avoid or cancel it by -some positive act. Can he do this before attaining his majority? On -this the authorities differ. Again appears the risk of making -contracts with minors, though the situation many times seems clearly -to justify such action. A guardian may lease his minor's land for the -period of his minority; if leased beyond, the ward may have the lease -canceled for the excess. A lease terminates on the death of the ward, -whatever may be the length of the term. A parent cannot lease the land -of his minor child like a guardian. - -By common law a lease made by a married woman was avoided after her -husband's death. The modern statutes excluding her husband's power of -control over her property and authorizing her to take and hold -property as if she were an unmarried woman, have abolished both his -power to invalidate the lease and also her power to repudiate it after -his death. - -A private corporation may make a lease of its property provided that -in doing so it acts within its charter. A municipal corporation, while -it may lease property belonging thereto of a private nature, cannot -lease property which has been devoted to public use. A corporation -whether public or private may take a lease of property so far as this -may be a proper means of carrying out the purposes for which the -corporation was created. - -Executors and administrators may dispose of a lease belonging to the -deceased, or make new leases for terms within the period covered by -it. Trustees have a still larger authority to lease the lands -entrusted to them, unless restricted by the terms of their -trusteeship, or by statute. Though a member of a partnership, as we -have seen, is an agent, he cannot make valid lease of partnership -land. - -What may be leased? Besides land, the right to a wharf, to flow with -water the land of another, to go over another's land. An ordinary -boarder, who has a room and boards in the house of another and who -retains the possession and care of his room, is not a tenant. On the -other hand the letting of an entire floor for lodgings may create a -tenancy, and so may even a single room. A lease for an unlawful -purpose is void, for example, for the sale of spirituous liquors -contrary to law. - -If the premises are occupied by the lessee and his rent is paid as -specified in the lease, this is regarded as a ratification by him of -an invalid or void lease. To this rule are some exceptions. - -A rule of construction may here be added; if a blank form is used in -making a lease and the printed and written parts or agreements are -inconsistent, the matters written are regarded as expressing the -intention of the parties. - -Much might be said concerning the use of the premises. If a farm is -rented and the lease is silent on the matter, the law presumes that -the tenant will use it in a proper and husbandlike manner, like other -exemplary farmers in that vicinity. He must cultivate the soil -properly, preserve the timber, consume the hay as fodder to the -cattle, if such be the custom, and keep the buildings and fences in -repair. Manure in the ordinary course of farming belongs to the farm. -To manure made in livery stables a different rule applies and the -tenant can remove it. If the lease be of a mill it usually provides -how it shall be run, if it be a house in the city and nothing is said -about its use the law implies that there shall be no waste or -destruction beyond the ordinary wear and tear. To use the doors for -firewood is not uncommon with tenants, unless they are not burnable, -though surely it is not a proper use of a leased house. - -A farm tenant has the right to take and use material found on the land -suitable and needful to repair the buildings, fences, also dead and -fallen timber for fuel. He cannot use shrubbery and ornamental trees -for this purpose, nor cut standing timber for this purpose. He is -entitled also to the way going crop, but must remove it during his -lease. He cannot go on the land afterward and remove crops, unless he -was prevented by some good reason from removing them while he was in -possession. - -Can a lessee assign or sublet his lease? Of course this may be -forbidden, and often is by the lessor, without his consent. If the -lease is silent this can be done. If the lessee die, his executor or -administrator can assign the remainder of his term. A lease may also -be assigned if the lessee become insolvent, also by a new partnership -created by the addition or retirement of a member. A transfer by the -lessee of the whole or a part of his interest for a part of the time -is a sublease and not an assignment. And whenever a sublease is made, -the rights of the original lessor are not changed, nor does he -recognize in any way the sub-tenant unless by agreement, nor has he -any right of action against him. Of course there is nothing to prevent -the parties from making any arrangement that may be agreeable to -them. - -As the lessee may assign or sublet unless forbidden, so may the lessor -part with his interest in the leased premises. When an assignment of -it is made, the assignee may sue in his own name for rent accruing -after the assignment. - -The lease of a private residence is not a warranty that it is -reasonably fit for occupancy. Thus saith the law. Nor can a lessee, -unless the lessor has misrepresented the healthfulness of the place, -leave after the unwelcome discovery that it is not healthful. This -seems to be rather harsh, but the rule is founded on the presumption -that the lessee will examine the house before leasing and make proper -inquiries about its healthfulness. - -By the common law the lessor was not required to make repairs. This -has been changed in some states by statute. He is not required to make -repairs needed and known to the tenant at the time of making his -lease. Hallways, staircases, elevators, and the like that are used in -common by the tenants of a building and are under the landlord's -control, must be kept in repair by him. If he shall let a many storied -building to several tenants, to each tenant a story, who have -exclusive possession thereof, the lessor will not be liable to any -lessee for the damage caused by another. - -If the landlord agrees to make repairs and keep the tenement in good -condition, he is required to keep it in essentially the same condition -as it was when the tenant took possession. Should the house or other -building be destroyed by fire what then? An agreement to keep it in -good repair imposes an obligation on the landlord's part to rebuild. -But an agreement by the lessee to keep and leave it in good repair, -does not require him to rebuild should it be destroyed by fire, or -other cause without any fault of his own. If the lease provides that -the insurance money, when the landlord has insured the premises, shall -be applied to rebuild in the event of fire, he must regard his -agreement, but if there be no such agreement, the tenant cannot compel -his landlord to thus apply it. Should the lessor fail to fulfill his -agreement to repair, the tenant is not excused from paying his rent, -nor justified in leaving the premises. His remedy is to sue his -landlord for the damages or injury to himself. And even if the -premises be destroyed by fire the tenant must continue to pay his rent -unless he has been wise enough to relieve himself by a proper clause, -or unless some kindly statute has been passed relieving him on the -happening of such an event. No oral stipulation, that the parties -should make covering the effect of loss by fire or other contingency, -would be binding if contrary to the terms of the written lease. As -this is the highest form of the agreement, all verbal stipulations to -the contrary must give way. - -A tenant can make no permanent alteration without his landlord's -consent; and should he do so and injure the premises the landlord may -recover damages, or, if such an alteration is feared or threatened, he -may prevent it by obtaining an injunction from a court ordering the -tenant not to make it and penalizing him should the order be -disobeyed. - -When a lease is renewed, the new lease may be regarded in two -different ways. It may be considered as the continuation of the lease, -and thereby protecting all the interests created under it. And this -will be the case whenever the old lease clearly shows that if a -renewal should be made this was the intention of the parties. When -nothing is said, a renewed lease is a surrender of the old one and -different conditions may arise. It is important therefore when -providing for the renewal of a lease to specify what the parties -intend, whether a renewal or continuation on the old terms, or a -renewal on other terms to be fixed at another time. - -Usually a lease specifies not only the amount of rent to be paid, but -the time of payment. If silent, yearly rent is not due until the end -of the year, quarterly rent at the end of the quarter, monthly rent at -the end of the month. When a lessee is evicted or turned out of -possession by his landlord, he is excused from paying rent. What, -therefore, is an eviction? Any act by the landlord, or by his agent, -impairing the worth of the premises to the tenant, for example, the -destruction of a summer house, turning rooting pigs into the premises, -the erection of a new building rendering the leased premises unfit for -occupation. One of the curious cases is the lease of a distillery -which could not be run because the landlord prevented the lessee from -getting a license. In like manner if the landlord is to furnish heat -and fails to do so, the tenant is justified in leaving. More -generally, any act by the landlord whereby the leased premises are -rendered unfit or impossible for the purpose intended, and affecting -the health and comfort of the tenant, is an eviction. - -The eviction must be done by the lessor. An act done by a wrongdoer, -not under the lessor's order, will not justify the lessee in quitting. -Thus the darkening by an adjacent owner of the lessee's premises by -erecting a structure, however injurious it might be, would not justify -the lessee in quitting and refusing to pay his agreed rent. This is -one of the risks taken when making the lease. - -Suppose a person occupying state land is evicted by the state, must -he continue to pay rent? In Missouri the rent ceases, or if evicted of -a part, he must pay rent on the remainder. In some states he must -still continue to pay his rent and then demand compensation for his -loss. - -Sometimes land is rented on shares, a very common way in the olden -time. When this is done, the relation of landlord and tenant may be -created, or perhaps a partnership relation. If the farmer is to do the -work of a servant of the owner of the farm, receiving in return -therefor, a specified part of the crops, the agreement is one of -hiring and not a lease. If the farmer has rightful possession of the -use of the land, then the payment of his rent in produce does not -affect his relation as a tenant. The natural increase of stock leased -with a farm belongs to the tenant, and a landlord cannot recover for -the death of cattle in the tenant's possession, unless he can prove -his tenant's negligence. And if a lessee should sell part of the stock -contrary to the lease, the purchaser would be liable therefor. - -A landlord often leases separate parts of a building to different -tenants, while the stairways and passages to them, though intended for -their use, are still under his control. He thus invites the tenants -and other persons having relations with them to use the approaches to -obtain access to their rooms or apartments, and is accordingly liable -when they are not kept in proper repair; the same as any owner of -structures either expressly or impliedly invites persons to enter -them. If therefore he should leave elevator shafts, or hatchways -unguarded, he would be clearly liable for the consequences. So, too, -should a mill owner have a defective bridge to his mill, forming part -of a common way thereto, he would be liable for the consequences. - -The lessor is liable if he leaves his premises with a way or cellar -entrance, or coal hole inadequately guarded at the time the lessee -takes possession, but not if the guard or covering gets out of repair -during the tenancy, or is temporarily left unguarded by the tenant or -some third person. If the hole or other dangerous place is made -without proper authority, it is considered a nuisance and the owner is -liable for all injuries whether he has rented the premises or not. Who -is liable for injuries caused to travelers by ice and snow on the -pavement? This is a hard question to answer in a short space. If the -ice or snow has accumulated by reason of a defective roof, then the -landlord is liable because of its faulty construction. In some parts -of the country it is most difficult to keep the walks safe in winter. -Experience has led the parties to make stipulations defining and -fixing their liability. Many states also have statutes and cities -ordinances regulating the duties and liabilities of landlords and -tenants. - -When a lease is about to expire a difficult question sometimes arises, -what can the tenant take away with him? Of course he can remove all -his furniture and the things that can be separated without injury to -the premises, but during his tenancy, he may have added things -possessing a more permanent nature, called fixtures, these he cannot -remove. The courts have had great difficulty in deciding in some cases -what these are. In a general way it may be said that whatever a tenant -adds to the premises can be removed, while he is still in possession, -without material injury to it, but he cannot remove anything -afterwards. Suppose the tenant erects a building, can he remove it? -One would not think of his building this for the benefit of his -landlord. Suppose he had built it on a foundation from which it could -be easily removed, a court would have no difficulty in deciding that -it belonged to the tenant. Many cases have arisen about ranges and -stoves. An ordinary stove of course can be removed; suppose it is -affixed to the house in such a way that some portion of the wall will -be detached by the removal, can this be done? Not if the wall will be -badly injured. How badly? This is a question of fact to be answered by -inquiry in every case. Among the fixtures that can be removed are -hangings and tapestries, ornamental chimney pieces, wooden cornices, -wainscoting affixed to the wall by screws and spikes, bells and bell -wires, chandeliers, cisterns and sinks though fastened by nails and -set into the floor, fire frame fixed in the fireplace, pipes for gas -or water, grates removable without injury to the building, pumps, -stoves, ranges and furnaces, gas ranges and water closet appliances, -washtubs fastened to the house, gas fixtures and shelves. A greenhouse -is not removable, nor gutters placed in the roof of a dwelling, nor a -stairway, nor flowers, shrubs, or bushes planted for ornamental -purposes. - -Chattels placed by a tenant on leased premises for the purpose of -carrying on his business or trade are generally regarded as personal -property. Annexations of this kind are called trade fixtures and the -law is liberal in permitting their removal. Show cases, counters and -shelves, engines, boilers, machinery, tanks in a distillery, a bowling -alley, bar fixtures, even buildings are removable. The same liberal -rule applies to agricultural implements. A tenant, therefore, if -wishing to remove whatever he may have added, should be careful about -their nature, or protect himself by an effective agreement. - - -=Legal Remedies.=--Elsewhere we have shown how civil and criminal law -differ. In criminal proceedings the state is a party and prosecutes -offenders through agents or attorneys who are chosen or appointed for -that purpose. In all civil offenses the person injured prosecutes the -offender, through the courts established by the state for that -purpose. Suppose A owed B one hundred dollars for which he gave his -promissory note payable in ninety days from date, and which on its -maturity A declined to pay. B could then have recourse to a court of -law to collect the money. If knowing nothing about the mode of -proceeding he would employ a lawyer; if he was familiar with legal -proceedings he could do this himself. - -What is the first step taken by a lawyer? He makes out a writ or -complaint stating B's course of action against A--that he has loaned -him a sum of money which he has not paid as he promised to do, and he -is summoned to appear in court at a certain time and place and answer -why he does not pay and the court is asked to render judgment against -him, if there is no defense, for the money due with the addition of -the costs incurred in seeking the aid of the court to collect the -money. This writ, declaration, or complaint is given to the sheriff of -the court where either A or B lives, who "serves" it on A. This -service consists in reading a copy of it by the sheriff, or by one of -his deputies or a constable, or other authorized person, to A, or in -leaving a true and attested copy thereof with him, which has become -the universal practice. This is the ordinary mode of beginning a legal -action against a person or corporation. - -An action thus begun is followed by a trial of the case unless it is -settled. Usually the trial comes off within a few months, but not -infrequently long delays occur. If, after the introduction of -testimony, judgment is rendered in favor of B, an "execution" or order -is issued by the court directing the sheriff to levy on A's property, -whatever he may have, save a small sum, household furniture and the -like, and sell it and turn over the proceeds to B in payment of his -debt. If there was a balance left from the sale of A's property after -satisfying the judgment of the court and the costs of the legal -proceedings, it would be paid to A. This, in fewest words, is the mode -of proceeding in a court of law to obtain redress in a civil suit or -action. - -There are several kinds of actions or remedies used in different cases -and these will now be explained. First, is the action of assumpsit. -This is the form of action used whenever one sues to recover on all -kinds of promises, those implied by the law as well as express -promises, not under seal. They include all ordinary promises to do -things either orally or in writing. Next, is the action of covenant. -This is used whenever one sues to recover for some failure on the part -of a person who has given a deed or other sealed writing. Suppose the -purchaser of land discovered there was an unpaid mortgage thereon, -though the deed covenants or declares that it is free from all -encumbrances. The vendee or purchaser would sue to recover for a -broken covenant. Another action is replevin which is used to recover -specific goods. Suppose someone had taken my horse and refused to -deliver the animal to me. The proper remedy would be replevin. Suppose -I did not wish to have the horse back, but only its value or worth. -Then the proper remedy would be an action of trover. Another form of -action in much use is called trespass. This is used to recover -damages for injuries to persons and property. If a person knocked me -down and I sued him to recover for the injury, trespass would be the -proper form of action. In many states an action in tort instead of -trespass is the proper remedy. If one should come upon my land and -take away wood, grass, stone, or in any way injure it, trespass also -would be the form of action. Ejectment is the action employed to eject -or turn out a wrongful possessor and recover possession of land. In -this action the title or ownership of the land lies at the foundation; -and the title to many a piece has been settled in an action of -ejectment. One of the most familiar actions is habeas corpus, which is -employed to recover a person's liberty from illegal restraint. As the -actions of slander and libel have been described, only two others -require notice, mandamus and quo warranto. The first of these is used -to compel one to do something. A familiar example is that of a city -which refuses to pay a judgment that has been rendered against it. The -court in this action commands the city to pay, and it must obey unless -there exists a legal defense. A quo warranto is the form of legal -action to which a person resorts to get possession of an office to -which he is entitled, but is denied him. Suppose one is elected mayor -of a city, but for some reason or other, the one in possession is -determined to keep him out. He would bring this action and a court -would then decide whether he was entitled to it or not, and if he -were, the court would proceed to put him in possession. - -In many of the states, especially the newer ones, not all of these -different forms of action are used. Only one form, called a complaint, -includes most of them. While the substitution of this has simplified -the modes of redress, the substance of the complaint really embodies, -as before, the different kinds of injuries above explained. - - -=Life Insurance.=--The contract of life insurance is a mutual -agreement whereby the insurer agrees on the payment of a fixed sum or -premium to pay to a person designated in the policy on the happening -of a contingency, usually death, a sum of money. By another form of -insurance the insurance may be made payable at a fixed time, or -before, should the insured die before that period. - -The contract to be valid must be for the benefit of one having an -insurable interest, otherwise the contract is a wager, which the law -condemns. This is sufficient if the person taking the insurance has -such an interest arising from his relation to the insured as creditor -and surety, or from the ties of blood or marriage that will justify a -reasonable expectation of advantage or benefit from the continuation -of his life. It is not needful that this expectation or benefit should -possess a pecuniary valuation. The mutual legal rights and liabilities -of father and minor child are sufficient to create an insurable -interest on the part of each in the life of the other; also the -relationship of brother and sister, and that of husband and wife. -Likewise a man and a woman who are engaged to be married; and a -creditor has an insurable interest in the life of his debtor. And this -interest covers not only the amount of the indebtedness, but also -future advances, and the cost of taking out and keeping up the -insurance. A partner who has advanced the capital of the business has -an insurable interest in the life of his partner. More generally any -person who invests money relying on the efforts of another to produce -a return has an insurable interest in such person's life. A surety -therefore has an insurable interest in the life of his principal; an -executor in the life of a person who has granted an annuity to the -testator; a common carrier even may insure against loss from injuries -to passengers. But the relationship between uncle or aunt, nephew and -niece and that of cousin is not sufficient to support a policy taken -by one in the life of the other. - -A policy may be assigned to one who has no insurable interest if made -in good faith, and not as a cloak for the procuring of insurance by -one having no insurable interest. This rule does not prevail -everywhere, but the courts which do not accept this rule usually -protect the assignee who has paid the premiums to the amount of his -payments, while the estate of the insured takes the balance that may -come from the insurer, whenever the assignment of the policy is not -invalid. An assignment to one who has an insurable interest as -relative, creditor and the like, is always valid. - -A general agent, says Justice McClain, "may bind the company by an -agreement as to rate of premiums, or other terms of the contract, even -as against the express provisions of a policy subsequently issued, -there being no negligence on the part of the insured in failing to -advise himself as to the terms of the policy; but if the want of -authority of the agent to vary the terms of the application is brought -home to the applicant, oral communications of the insured to the agent -are not to be considered in determining the validity of the insurance. -If the agent has exceeded his authority as to the terms of the -proposed contract, the company cannot reject that part which the -agent was without authority to make and enforce the rest, but must -accept or reject in toto." - -Until a proposition for insurance has been accepted by the company -there is no contract. Delay in accepting an application which is -subject to approval does not effect an acceptance. There may be a -binding contract of insurance as soon as the company has accepted the -application, or on the delivery and acceptance of it by the company's -agent, when he has authority to do so. In order to complete the -contract before issuing the policy there must be an agreement to this -effect, and before the death of the applicant. The receipt by an agent -for the first premium, or of a note therefor, subject to the approval -of the application by the company, does not effect a contract between -insurer and insured. - -Some states have enacted statutes prescribing requirements for life -insurance policies, or standard forms. Delivery to a third person for -the insured may be sufficient. The contract becomes complete when the -policy is put in the mail, postage prepaid, for delivery in due course -to the insured. Delivery to the insured for examination of course does -not effect any engagement on the part of the insurer, nor does a -delivery on condition. - -It is often stated that the delivery shall not be effectual to create -a contract unless the insured is alive and in good health when the -policy is delivered and the first premium is paid. Indeed, how could -it be valid if the insurer is dead? And if the contract is with a -person other than the insured as beneficiary, it would be void on the -ground of mistake. Likewise, under such a condition, a policy does not -become effective, without a waiver, if the insured is in ill health at -the time of its delivery or payment of the premium. - -Unless waived by the company, there is usually a stipulation to the -effect that the company shall not become bound until the first premium -has been actually paid and accepted by the company or its authorized -agent. But if the premium is actually paid by the agent of the company -for the insured by virtue of an agreement between them, this will bind -the company. The payment of the premium by a third person without the -knowledge of the insured does not have the same effect. - -A general agent has authority to waive the stipulation, that the -policy shall not take effect until the first premium is paid, though -of course he may be restricted in this regard, but a special agent -cannot waive this stipulation; though if he acts otherwise and the -company ratifies his act, it is bound. A provision also that a policy -shall not be valid unless the premium is paid when the insured is in -good health may be waived by an agent who has authority to take -applications, collect premiums and deliver policies. - -Passing to the nature of the contract, if made in violation of a -statute, or if contrary to public policy and this is known by both -parties, it is void. Thus a stipulation that a policy shall be payable -though the insured may be executed for a crime is contrary to public -policy and is therefore void. The same is true of a stipulation -insuring against death by suicide while sane. It is against public -policy to allow one person to have insurance on the life of another -without his knowledge. A policy issued on a person beyond a specified -age is prohibited by statute. - -What is the effect of fraud in negotiating and issuing policies? If -the company or its agent perpetrates a fraud whereby one is induced to -take out a policy, he can at his option declare it void, unless so -negligent in acting as to work an acquiescence of it. But if acting in -a proper way and time he can set up fraud as a defense in an action to -get the premium for which the contract has stipulated; or he may sue -to have the policy declared void and his premiums returned to him; or -he may bring an action against the company or its agent, or both, to -recover the damages he may have sustained by the fraud that has been -practiced on him. - -On the other hand, if the insured has been wronged, the courts furnish -relief, and perhaps may set the policy aside. Mistake is a common -ground of relief; it must in all cases be clearly proved. And if a -policy is susceptible of two constructions, the ambiguity is to be -resolved in favor of the insured. As the company framed the policy all -of its provisions in its favor are strictly construed. It may be added -that the construction which the parties themselves have put upon a -contract of life insurance will be generally followed in determining -their intention. Again, the entire contract is to be construed -together for the purpose of giving effect to each clause and as -between general and specific provisions relating to the same matter -the specific provisions control. - -In determining who is the beneficiary under the terms of a policy of -life insurance the courts are governed by the intentions of the -parties. They need not be named if they can be otherwise identified, -and may be designated in a separate paper prepared for that purpose. -The amount named in the policy generally fixes the liability of the -company. To obviate the wager feature, the amount of insurance -effected for a creditor on the life of his debtor ought to be limited -to the amount of the debt with interest and premiums during the -expectancy of the life insured. - -The risk is presumed to begin from the date of the policy and to -continue until the happening of the contingency or time when payment -is to be made by the insured. It may be added that words or figures -written or printed on the margin of a policy of life insurance, on its -back, or on a slip, with reference to the terms and conditions of the -contract, constitute a part of it and must be considered in deciding -its meaning. But representations made in a prospectus or circular -issued by a life insurance company are no part of a contract. - -The payment of premiums to a general agent without notice of any -limitation of his authority to receive payments will bind the company, -but a different rule applies to a special agent. The premiums may be -paid by the insured, or the beneficiary, or by the agent of the -company whenever he has agreed to pay them for the insuring party. A -discount allowed by the company for the punctual payment of premiums -belongs not to the agent, but to the insured. Cash is usually paid, -though other arrangements also exist for taking notes, that are -ultimately paid in cash or from the earnings of the company, and -belong to the insured and would be paid to him. In mutual life -insurance companies a portion of the premium is often paid in this -manner. - -A policy of life insurance payable to the insured, or in the event of -his death to his personal representatives, may be assigned unless -forbidden by statute, therefore a policy payable to the wife of the -insured, or another may be assigned by the united act of the insured -and the beneficiary. Thus a policy taken out for a wife's benefit is -often assigned by her and her husband to his creditors to secure -their debts. In some states statutes forbid the assignment of such -policies for the benefit of creditors. The written assignment must be -delivered to the assignee to be effective. On some occasions -assignments have been declared valid where the intention was clearly -proved though both the written assignment and the policy remained in -the possession of the assignor. An assignee who holds a policy as -security is entitled on its payment only to the amount of his claim -and advances with interest, including premiums paid to keep the policy -alive and thus preserve his security. More generally premiums paid for -this purpose are chargeable on the proceeds of the insurance, but a -mere volunteer who pays the premiums acquires no lien on the proceeds -of the policy when it is paid. Nor can one who ought to pay the -premiums give a lien on the policy to another for money advanced by -him to pay them; and an assignee who has promised to pay the premiums -may be liable should he fail to keep the policy alive. - -Contracts of reinsurance are often made by all insurance companies. In -some states the reinsuring company becomes liable to an action by the -beneficiary named in the original policy. Where the reinsuring -company, by agreement, undertakes to reinsure the members of the other -company should they execute applications for that purpose, any member -who does this is not required to be reexamined or comply with other -conditions respecting his age or health. - -A policy may be canceled or surrendered by mutual agreement. After the -death of the insured the rights of the parties become fixed, and there -can be no cancellation. During his lifetime the insured may abandon -his contract by refusing to pay the premiums, but an intention to -abandon will not be presumed, nor will the taking out of a second -policy before his failure to pay the premiums on the other establish -an abandonment. If both parties treat the contract as void, neither -can revive it without the consent of the other. As the beneficiary has -a vested or definite interest in the contract, the insured cannot, by -surrendering the policy, cut off the rights of the beneficiary without -his or her consent unless permitted to do so by the contract itself. - -A surrender or cancellation of a policy may be avoided on the ground -of mutual mistake. But the insured cannot seek cancellation on the -ground that he thought it was something else when his mistake was -simply his own in not reading the release. - -A policy may be rescinded whenever fraud has been practiced by either -party. Thus, should a greater premium be demanded than that stated in -the contract this would be a good reason for rescinding on the part of -the part of the insured. Likewise, if he was induced to take out the -insurance by the fraud of the company or its agent, unless he has lost -his right to rescind through inaction or negligence. Likewise, the -company may rescind for fraud practiced by the insured by -misrepresentation or other fraudulent acts concerning his age, health, -etc. Concealment of facts may and often does operate as a fraud on the -company. Says Justice McClain: "If the applicant has answered the -questions asked in the application he is justified in assuming that no -other information is desired. On the other hand if he wholly fails to -answer questions the company waives information as to matters thus -asked for by accepting the application without objection. If, -however, the applicant purports to answer a question by giving only an -incomplete answer, concealing facts which should properly be stated in -response to the question, and these concealed facts are material, the -policy is voidable." If a material change for the worse in the health -of the applicant takes place after the application and medical -examination, it is the duty of the applicant to disclose it. The -failure to disclose facts of which the applicant is ignorant, or which -are immaterial to the risk, is not ground for avoiding the policy. - -When a policy is surrendered or canceled by the contract or by -statute, the insured may be entitled to the surrender value of his -policy. The amount is to be determined by the period for which the -policy has to run, the amount of the annual premium, the age of the -insured, and the probability of the continuance of his life stated in -the usual life tables. The value of an immatured paid-up policy is the -unearned premium called the reserve and is to be computed in the same -manner as that of a policy on which annual premiums are paid. The -beneficiary is entitled to the surrender value as against the insured, -as well as the creditors, unless the beneficiary has consented to -giving them the preference. - -By a clause in the contract of insurance or by statute, the insured -can convert his policy into a paid-up policy for such an amount as the -premiums would have secured. These conversions often happen where the -insured is unable or unwilling to continue to pay the premiums -required to maintain the policy. Formerly on the failure of the -insured to pay, policies lapsed or were forfeited, and the insurance -companies gained large sums from this source. This led to legislation -and to the creation of paid-up policies. These are issued on somewhat -different terms, but the principle in all of them is the same. - - -=Minor.=--The contracts of a minor are of two kinds, those for -necessaries and other things. Contracts for necessaries made by him -the law will uphold. They are really implied contracts which the law -will sustain for his benefit and protection. What are necessaries is a -question of fact, not always easily answered. Much depends on a -minor's place in society and condition. The question is for a jury to -decide, also whether the prices for them are reasonable or not. One of -the well-known cases occurred many years ago. The bill against the -minor was for more than a thousand dollars for twelve coats, seventeen -vests, twenty-three pairs of trousers, five canes, fur caps, chip hats -and other things, in less than six months. The jury rendered a verdict -for almost the entire amount, but the reviewing court remarked that -the bill made the members shudder, that the seller must have known -that all these things were not needed for the minor's comfort within -that short period, and the verdict was therefore set aside. - -The question is constantly arising, what are necessaries? A thing -might be to one and not to another. Thus a bicycle merely for pleasure -would not be a necessity; one that is used to go to and from an -individual's daily work would be. A dentist's bill for repairing one's -teeth has been disputed, the law, though, generally favors the -preservation of human teeth. Education furnished to a minor may be a -necessary thing, yet only when it is suitable to his wants and -condition. Should a minor repudiate a contract, the law is observed -if he restores all that he has received, or that is capable of -restoration. - -With respect to contracts for other things, they are not always void, -but may be avoided. If they have not been executed, he can disavow -them at any time. If nothing is done during infancy inaction operates -generally as an affirmation. If he disaffirms a contract, he must -return the thing purchased or received, or make the best restitution -he can, for it would not be just to retain possession and refuse -payment. - -A different rule applies to a minor who makes a fraudulent contract. -Suppose he buys goods assuring the seller that he is twenty-one years -of age when in fact he is not, though nearly so. Can the seller -recover on his contract? No, but the law has another way of reaching -him. He is liable in an action of deceit, and the amount or damage -that may be recovered is that of the goods sold to him. - -A minor who has a parent or guardian cannot make a contract even for -necessaries, nor is he under any obligation to pay his bills for them. -Should he be in need of such things and his guardian or parent be -unwilling to furnish them, they can be compelled by law if having the -means to provide him with whatever he requires. - - -=Mortgage.=--Two kinds of mortgages are given, one kind is secured by -real estate, the other kind by personal property. In both the borrower -of money pledges his property as security while the money remains -unpaid. During this period he usually remains in possession and -control of the property, though not always. The borrower is called the -mortgagor, the lender the mortgagee. The contract is in writing -sealed, is in fact a deed. Sometimes the contract is in two writings, -the conveyance of the land and security in one, and the conditions or -defeasance on which the conveyance is made in another. It is more -usual, however, to set forth the transaction in a single writing or -conveyance. - -A mortgage may be so made as to cover future advances, but it will not -cover them in preference to advances or loans made by another without -any knowledge of them. Nor need another person who makes such a loan -inquire whether a mortgagor has made any other loan, or for a larger -amount than that stated on the public record, where the mortgage deed -is recorded. For, it should be added, a mortgage deed is recorded like -any other for the benefit of all parties, not only to secure the -mortgagee from a later purchaser who might buy if knowing nothing of -the prior mortgage, but from another who might be willing to lend on -such security like himself; or from a creditor of the mortgagor who -might attach the property as belonging to him, if he did not know of -the existence of the mortgage. As the record is public, and may be -examined by everyone, all who are interested in the property are -supposed to examine it and thus find out whether it has been -mortgaged, and if it has been, the conditions of the mortgage, and if -they do not, their neglect is their own. - -Improvements, additions of every kind to property after it has been -mortgaged, become a part of it, and if the mortgagee takes future -possession, they pass to him. But a difficult question arises -sometimes, what additions or improvements are included? We have -learned what they are whenever a tenancy relation exists. The law does -not favor a mortgagor to the same extent. The test to apply is that -of intention. If a mill has been mortgaged, the rule is very broad and -the mortgage covers machinery attached by bolts and screws though -removable without injury to the premises. If a mortgage has been -given, by no evidence can it be shown that the deed was intended as an -absolute or entire conveyance of the property. On the other hand by -proper evidence it can be shown that an absolute conveyance was -intended to be only a mortgage. This has been often done. One may ask, -why does the rule not work both ways? There is a much stronger -probability of making a mistake in the second case than in the other. -One of the facts of great importance in such a dispute is the amount -of the consideration or money paid. Suppose a piece of land was worth -$1000 and the deed mentioned only $100, unless there was some other -explanation, there would be a strong probability that the parties -intended only a mortgage which for some reason or other was not -completed. - -Again, it is a rule of law that an agreement which is in fact a -mortgage cannot be changed in character by any other agreement made at -the time between the parties relating to the repayment of the money -and the return of the property. The law presumes that the entire -transaction was embodied in the agreement. "Once a mortgage always a -mortgage." Of course this rule does not prevent the parties from -making any later arrangement they please about the property. - -A mortgage may be made with a power of sale whereby, should the debt -be not paid at the time fixed, a valid title may be acquired by a -purchase from the mortgagee. The mortgagee thus becomes a kind of -trustee or agent for the debtor. This is a great responsibility to -repose in the mortgagee, and he must perform the trust in good faith -in every respect. He must proceed in a way that will best serve the -interest of the mortgagor, and strictly observe the terms stated in -the mortgage, otherwise the sale will not be valid and the mortgagor -can recover his property. If there is a surplus after satisfying the -mortgage debt it must be paid to the mortgagor, or, if he is dead, to -his heir. Such deeds of trust are made by large corporations to secure -loans, and may be made to secure future advances as well as present -ones. - -If the property is sold to satisfy the mortgage debt, the mortgagee -cannot purchase it, unless authorized by statute, or by the terms of -the mortgage; but if it is sold by an officer of the law, the -mortgagee is as free to purchase it as any other individual. This -rule, though, is denied by some courts, which hold he cannot because -the officer is acting as the mortgagee's agent. - -A vendor or seller of property, may have for the money he is to -receive a lien, which is nearly the same thing as a mortgage. A -subsequent purchaser would be affected by this lien, however innocent -he might be of its existence. But if the purchaser should mortgage the -property to a third person, who should put his deed on record, he -would gain a valid lien over the vendor. This lien is founded on the -idea that the vendor holds the land in trust for the purchaser until -he has paid for it, but is not recognized in every state. It is -reasonable to suppose that the owner will not sell his land until he -has been paid, or the purchase money has been secured. The lien will -also prevail against any assignment that the vendor may make for the -benefit of creditors, provided he enforces his lien before the -assignee begins to execute his trust. - -Much has been said about the notice of the vendor's lien. Any -reasonable notice will suffice, but what is such a notice to charge, -for example, a second purchaser with knowledge? Payment of a part of -the money is held to be knowledge of the lien. Again, a vendee who has -paid any part of the purchase money before the delivery of the deed to -him has a lien for the amount advanced. A third party who pays the -purchase money to the vendor for the purchaser and takes a note for -the amount does not have such a lien. - -The mortgagor in most states is regarded as the real owner and remains -in possession; and the mortgagee has a lien, or security for his -advance of money or whatever it may be. The mortgagor may sell his -land at any time subject to the mortgage, in other words he cannot by -any sale impair the mortgagee's security. On the other hand, the -mortgagee can transfer, sell or assign his mortgage to another, and -this is often done. - -Both parties may insure the premises though the mortgagee cannot -exceed his debt. If they are destroyed by fire, the mortgagor cannot -claim to have the insurance applied in liquidation of the mortgage -debt. The mortgagee, therefore, can first collect the insurance money -and then proceed to collect the debt that is due to him from the -mortgagor. If the sums collected from the two sources exceed the -amount advanced to the mortgagor that is only the mortgagee's affair. -But if he insures the property at the mortgagor's request or at his -expense, then the mortgagor would have the benefit of the insurance. - -Frequently several mortgages are made of the same property. The one -that is the first recorded has the first lien, the one recorded next -the second lien, and so on. And if the property is subsequently sold -to pay the mortgage, the first mortgagee has the first claim to the -money received, the second mortgagee next and so on. If there is not -enough to pay all, the last mortgagee is the first to be cut off, or -to receive less than the full amount due to him. - -If a testator devises mortgaged land, is the devisee or person who -receives the land also entitled to the money due from the mortgagor? -Generally, but not everywhere. A bequest of money securities includes -a note secured by mortgage. The mortgagor's interest in the land on -his death, if leaving no will directing who shall take it, goes to his -heirs, and not to his executor or administrator like other personal -property. Of course, if there were no other property that could be -used to pay his debts, if he had any, it could be claimed and taken by -his creditors for that purpose. - -The mortgage usually states a time for paying the debt, and if the -terms are not observed, the mortgagee may proceed to take the -property. This he cannot do in an arbitrary way, except in the case of -mortgages in which the mortgagee is entrusted with power to sell the -property and apply the money in payment of the debt. In other cases -the mortgagee must apply to the court to fix a time for the sale of -the property, if the mortgagor fails to make payment. The courts -usually give the mortgagor a period of several weeks or months to pay, -and if payment is not made at the end of this period, the land is sold -by an officer of the court, who conveys the title to the new -purchaser, and if there is any surplus left after satisfying the -mortgage, this is returned to the mortgagor. If there is a deficit, he -is still liable therefor. Any person who is interested in a mortgaged -estate has the right to redeem it; heirs, devisees, creditors. On the -death of a mortgagor his heirs may call his executor or administrator -to pay the mortgage out of the personal estate if there is any, and -not from the sale of real estate, because it was given, so the law -presumes, for the benefit of the personal estate belonging to the -mortgagor. Or, if the land has been given to a devisee, he can require -the executor or administrator to pay the mortgage. Again, if two -persons are jointly liable for the debt, and one of them pays it, he -may call on the other to contribute his portion. See _Chattel -Mortgage_. - - -=Negotiable Paper.=--By negotiable paper is meant paper that can be -sold and transferred. The law on this subject is now regulated by a -statute that is nearly uniform in almost all the states of the Union. -The courts are constantly applying it, and in doing so are putting -their meaning or interpretation on the words of the statute. Thus far -they have looked with quite similar eyes, and no serious differences -have arisen. - -The statute declares that a promissory note must be in writing and -signed by the maker or drawer; that it must contain an unconditional -promise or order to pay a certain sum of money on demand, or at a -fixed future time to order or to bearer. And if the note is addressed -to a drawee he must be named or indicated with reasonable certainty. A -note may be written payable with interest or by stated installments, -or with exchange, or with costs of collection, or an attorney's fee in -case payment shall not be made at maturity. - -An unqualified order or promise to pay is unconditional within the -meaning of the law even though it indicates a particular fund from -which it is to be paid, or a statement of the transaction on which the -note is based. Thus the indorsement of the words "per contract" on the -back of a note written at the time of its execution does not affect -its negotiability. - -A note payable at a fixed future time may be at a fixed period after -date or sight, or on or before a fixed future time specified therein, -or on or at a fixed period after the occurrence of a specified event -which is certain to happen, though the time of happening be uncertain. -A note that is payable on a contingency is not negotiable, and the -happening of the event does not cure the defect. Likewise a note which -contains an order or promise to do any act in addition to the payment -of money is not negotiable. To this rule, though, are some exceptions. -Thus a note may be negotiable that authorizes the sale of collateral -securities that have been delivered to the holder if the note is not -paid at maturity. But a note stating that the title to property for -which it is given shall remain in the payee, and that he shall have -the right to declare the money due and take possession of the property -whenever he may deem himself insecure "even before the maturity of the -note," is not negotiable. - -Again, the validity and negotiable character of a note is not affected -by the fact that it is not dated, or does not specify the value given -or the place where it is drawn, or the place where it is payable, or -bears a seal, or designates a particular kind of current money in -which payment is to be made. Furthermore, a note is payable on demand -when it is thus stated, or is payable at sight or on presentation. -Also an overdue note accepted or indorsed is regarded as payable on -demand, so far as the maker is concerned. - -A note may be drawn payable to the order of a specified person, or to -him or his order, or it may be drawn payable to the order of a payee -who is not the maker, drawer or drawee, or it may be drawn payable to -the order of the drawer or maker, or to the drawee, or to two or more -payees jointly, or to one or some of several payees, or to the holder -of an office for the time being. - -Again, a note is payable to the bearer when it is thus expressed, or -to a person named therein or bearer, or when it is payable to the -order of a fictitious or non-existing person, and the fact is known to -the person making it so payable, or when the name of the payee does -not purport to be the name of any person, or when the only or last -indorsement is an indorsement in blank. On one occasion funds were -deposited in a bank in the name of a federal disbursing agent under -treasury regulations that "any check drawn by a disbursing office upon -moneys thus deposited must be in favor of the party by name to whom -payment is to be made and payable to order." The disbursing officer -fraudulently drew checks payable to fictitious payees and cashed them -under forged indorsements of the fictitious payees' name. The court -held that the checks were not payable to bearer and that the bank was -not protected in paying them. - -A note is not invalid for the reason only that it is ante dated or -post dated, provided this is not done for an illegal or fraudulent -purpose. The person to whom it is delivered acquires the title from -the date of delivery. If a note expressed to be payable at a fixed -period after the date is issued undated, or the acceptance of such a -note is ante dated, the holder may insert the true date of issue or -acceptance. Nor does the insertion of the wrong date avoid the note in -the hands of a regular subsequent holder. More generally, when a note -is wanting in any particular material, the holder or possessor has the -authority to complete it by filling up the blanks. This authority -extends to every incomplete feature of the note and may be used for -inserting the date, amount, name of the payee, and time and place of -payment. When authority is conferred on another to fill blanks it must -be strictly followed. If a note is drawn payable with interest at the -rate of __ per cent, it draws interest at the legal rate, although the -blank is not filled. The presumption that a note was completed before -it was signed and not afterwards does not arise in a note written in -several inks and by different hands. And the purchaser of a note with -an unfilled blank is put on inquiry respecting the authority of a -person entrusted with an incomplete note. Thus A signed blank forms of -notes and left them with his attorney, but with no authority to -complete and issue them until instructed. The attorney filled them up -without further instructions and issued them to a person who knew they -had been signed, that the attorney had a power of attorney to act for -A, but did not attempt to read or otherwise ascertain its terms. A was -not prevented from denying the validity of the notes. In another case -a person who signed a number of notes in blank as to date, payee and -amount, and left them in his desk in his office, whence they were -stolen, filled in and indorsed to B for value before maturity and -without notice of any defects, was nevertheless not liable on them. -When therefore an incomplete instrument has not been delivered it -cannot be completed and negotiated without authority, and if it is, it -is not a valid contract in the hands of any holder as against the -person whose signature was placed thereon before delivery. - -Every contract on a negotiable note is incomplete and revocable until -its delivery. As between the immediate parties, and also a remote -party other than a holder in due course, the delivery, in order to be -effectual, must be made either by the authority of the party making, -drawing, accepting or indorsing as the case may be. The delivery may -be shown to have been conditional, or for a special purpose only, and -not for the purpose of transferring the property of the note. But -where the note is in the hands of a holder in due course, a valid -delivery thereof by all parties prior to him is conclusively presumed. - -When the language of a note is ambiguous the following rules of -construction are applied: (a) if there is a discrepancy between the -words and figures in expressing the amount, the words control, if the -words are ambiguous or uncertain, reference may be had to the figures -to fix the amount; (b) if the note provides for paying interest -without specifying the date from which it is to run, the interest runs -from the date of the note, if this is undated, from the issue of it; -(c) if not dated a note will be considered as dated from the time of -issue; (d) if there is a conflict between the written and printed -provisions, the former will prevail; (e) if it is doubtful whether the -instrument is a bill or note, the holder may elect which it shall be; -(f) it is not clear in what capacity the person making the note -intended to sign he is to be deemed an indorser; (g) when a note -containing the words "I promise to pay" is signed by two or more -persons, they are deemed to be jointly and severally liable thereon. - -The signature of any party may be made by a duly authorized agent. No -particular form of appointment is necessary for this purpose, and the -authority of the agent may be established as in other cases of agency. -If, however, one signs as agent without disclosing his principal, he -is personally liable. Thus, a husband signed a note in his own name -without adding more. As he had disclosed no principal, he was -personally bound, and his wife, for whom he claimed to have signed the -note, was not liable. The maker of a note added to his signature, -"Pastor of St. Frances' church." This was regarded as his personal -note, all besides his name were words merely of description. A person -signed a note thus: "Estate of William R. Clark by William R. Clark, -Jr., Trustee." As he was not authorized to borrow on behalf of the -trust and give a note as trustee, he was individually liable -notwithstanding the form of the note. - -Where the signature is forged or made without the authority of the -person whose signature it purports to be it is wholly inoperative. -Thus A cashed a number of drafts and checks payable to B's order on a -forged indorsement of B's name by B's bookkeeper, who appropriated the -money to his own use. Nevertheless, B recovered the amount of the -drafts and checks from A, nor was his negligence in not examining the -bookkeeper's books or accounts a good defense. In another case before -a note was delivered to and accepted by the payee, A, whose name -appeared on the back, was shown the note who said, "Everything is all -right." Afterward he resisted payment on the ground of forgery. As the -payee was induced to take the note on A's statement of its -genuineness, he could not escape payment. - -Every negotiable note is deemed to have been issued for a valuable -consideration, and every person, whose signature appears thereon, to -have become a party for the value. An accommodation party is one who -has signed the note as maker, drawee, acceptor or indorser without -receiving value therefor, and for the purpose of lending his name to -some other person. Such a person is liable on the note to a holder for -value, though the latter knew he was only an accommodation party. - -What is meant by negotiating a note? By transferring it in a way -whereby the transferee becomes the holder or owner. If payable to -bearer it is negotiated by delivery; if payable to order it is -negotiated by indorsement and delivery. An indorsement may be either -special or in blank; and it may also be either restrictive, or -qualified, or conditional. A special indorsement specifies the person -to whom, or to whose order the note is payable. An indorsement in -blank specifies no indorsee, and a note thus indorsed is payable to -bearer and may be negotiated by delivery. The holder may convert a -blank indorsement into a special one by writing over the signature of -the indorser in blank any contract consistent with the character of -the indorsement. By a qualified indorsement the indorser becomes a -mere assignor of the note, and is made so by adding to his signature -the words "without recourse," or others of similar import. Such an -indorsement does not impair the negotiable character of the note. When -a note is payable to the order of two or more payees or indorsers who -are not partners, all must indorse unless the one indorsing has -authority to indorse for the others. Again, where a note is drawn or -indorsed to a person as cashier or other fiscal officer of a bank or -corporation of which he is the officer, it may be negotiated by either -the indorsement of the bank or corporation or by the indorsement of -the officer. And where the name of a payee or indorser is wrongly -designated or misspelled he may indorse the note as therein described, -adding, if he thinks fit, his proper signature. The holder may at any -time strike out any indorsement which is not necessary to the title. -When this is done, he and all subsequent indorsers are thereby -relieved from liability on the note. - -The holder of a negotiable note may sue thereon in his own name; and -payment to him in due course discharges it. Who is a holder in due -course? One who holds a note on the following conditions: (a) that it -is complete and regular on its face; (b) that he became the holder -before it was overdue and without notice that it had been dishonored; -(c) that he took it in good faith and for value; (d) that at the time -of its negotiation to him he had no notice of any infirmity in the -note or defect in the title of the person negotiating it. A note -therefore, providing that any delinquency in the payment of interest -"shall cause the whole note to immediately become due and collectable" -is made overdue by the maker's failure to pay the interest when due, -and a subsequent taker cannot be a holder in due course. - -To constitute notice of an infirmity in a note or defect in the title -of the person negotiating it, the person to whom it is negotiated must -have had such actual knowledge of the infirmity or defect that his -action in taking the note amounted to bad faith, but merely suspicious -circumstances are not enough to put a prudent man on inquiry. - -On the other hand if the purchaser does suspect and fails to -investigate, lest a defense be disclosed to the maker of the note, he -is not a purchaser in good faith. The maker of a note engages that he -will pay it according to its terms and admits the signature of the -payee and his capacity to indorse, and engages that on due -presentation the draft will be accepted or paid or both, according to -its terms, and that if it is dishonored, and the needful proceedings -in consequence are taken, he will pay the amount. A person placing his -signature on a note otherwise than as maker, drawer or acceptor is -deemed to be an indorser unless he clearly indicates his intention to -be bound in some other way. The Negotiable Instruments Act fixes the -liability of a person who is not a party to a note, and who indorses -it before delivery. The law was in great confusion before this act -established a definite rule. Such a person is now liable as indorser -in accordance with the following rules: (a) if the note is payable to -the order of a third person, he is liable to the payee and to all -subsequent parties; (b) if payable to the order of the maker or -drawer, or if payable to bearer he is liable to all parties subsequent -to the maker or drawer; (c) if he signs for the accommodation of the -payee he is liable to all parties subsequent to the payee. - -Presentment for payment is not necessary in order to charge the person -primarily liable on a note, but if it is payable at a mentioned place -and he is able and willing to pay it there at maturity, such action is -equivalent to a tender of payment on his part. Presentment for -payment, of course, is needful to charge the drawee and indorsers. -When the note is not payable on demand, presentment must be made on -the day it falls due. When it is payable on demand, presentment must -be made within a reasonable time after its issue. This rule does not -apply to all bills of exchange. Thus unreasonable delay in presenting -a check will discharge the indorser whether such delay is a cause of -loss to him or not. Likewise a certificate of deposit payable on -demand must be presented for payment within a reasonable time after -its issue in order to hold the indorser. "The usage of trade or -business includes the usage of banks relating to presentment of checks -for payment. It is sufficient diligence to charge an indorser if a -check on the bank in another place is forwarded through various banks -for collection in accordance with the regular usage of the business, -although presentment might have been more promptly made if a more -direct course had been taken." Presentment for payment must be made by -the holder or by some person authorized by him to receive payment, at -a reasonable hour on a business day and at a defined place, and to the -person primarily liable thereon. And if he is absent or inaccessible -then to any person who is at the place where presentment is made. If a -note is payable at a bank the payor has until the close of banking -hours to pay it, and if, before the close of the bank day, he deposits -money enough to pay it a demand earlier in the day is premature. Delay -for presenting a note for payment is excused where the delay is caused -by circumstances beyond the holder's control, and he is in no way -negligent. Nor need presentment for payment be made when after using -reasonable diligence it cannot be made, or where the drawee of a bill -is a fictitious person, and lastly where presentment, express or -implied, has been waived. - -Every negotiable note is payable at the time fixed therein. When the -day of maturity falls on Sunday or a holiday, the note is payable on -the next succeeding business day. Notes falling due on Saturday are to -be presented for payment on the next succeeding business day, except -that notes payable on demand may, at the option of the holder, be -presented for payment before twelve o'clock noon on Saturday when that -entire day is not a holiday. - -When the note is payable at a fixed period after the date, after -sight, or after the happening of a specified event, the time of -payment is determined by excluding the day from which the time is to -begin to run, and includes the date of payment. And where a note is -made payable at a bank it is equivalent to an order to the bank to pay -it for the account of the principal debtor thereon. In accordance with -the notation on the margin of a note the holder sent it for collection -to a bank which held, as a special deposit, the maker's money. The -cashier at maturity notified the maker who directed the cashier to pay -the note. The cashier said "All right, your note is paid." The note -was regarded as paid. - -When a negotiable note has been dishonored by non-acceptance or -non-payment, notice of dishonor must be given to the drawer and to -each indorser, and any drawer or indorser to whom such notice is not -given is discharged. A written notice need not be signed and an -insufficient notice may be supplemented by verbal communication. Nor -does misdescription of the note vitiate the notice unless the party to -whom the notice is given is in fact misled thereby. The notice may be -in writing or merely oral, and may be given in any terms which -sufficiently identify the note and indicate that it has been -dishonored by non-acceptance or non-payment. It may be delivered -personally or through the mails. Where the parties to be notified are -partners, notice to any one of them is notice to all even though there -has been a dissolution. But notice to joint parties who are not -partners must be given to each of them, unless one of them has -authority to receive the notice for the others. - -When the person giving, and the person who is to receive notice reside -in the same place, it must be given within the following times: (a) if -given at the place of business of the person who is to receive notice -this must be done before the close of the business hours on the day; -(b) if given at his residence it must be given before the usual hours -of rest on the day following; (c) if sent by mail it must be deposited -in the post office in time to reach him in usual course on the day -following. If the parties reside in different places the notice must -be sent within the following times: (a) if sent by mail it must be -deposited in the post office in time to go by mail the day following -the day of dishonor, or if there be no mail at a convenient hour on -that day by the next mail thereafter; (b) if given otherwise than -through the post office then within the time notice would have been -received in due course of mail if it had been deposited in the post -office had it been deposited in the post office as above described. - -If a party had added an address to his signature the notice must be -sent to that address, if he has not, then the notice must be sent as -follows: (a) either to the post office nearest to his place of -residence or to the post office where he is accustomed to receive his -letters, or if he lives in one place and has his place of business in -another, notice may be sent to either place, or if sojourning in -another place, the notice may be sent there. In any event if he -receives the notice within the time specified, it will satisfy the -law. - -Of course notice may be waived; sometimes, also, it is quite -impossible to give notice; whenever this happens the law does not -require notice to be given. - -Something should be added concerning alterations that are made -occasionally in negotiable instruments. Any alteration which changes -the date, the sum payable either of principal or interest, the time or -place of payment, the number or the relations of the parties, the -medium or currency in which payment is to be made, or which adds a -place of payment where no place of payment is specified, or any other -change or addition which alters the effect of the instrument in any -respect is a material one and ought not to be made. To add the words -"with interest," with or without a fixed rate, is a material -alteration. But the insertion by the payee of the words "interest" -after the making of a note by authority of maker will not vitiate it. -And if a note had the clause, "interest at __ per cent," the insertion -of the legal rate would not be a material alteration since the legal -import would not be changed. - -The position of a writing on a note is not important, for the effect -of the contract is to be gathered from the four corners of the paper. -The general rule is, if a memorandum written on an instrument in the -margin or at the foot is made before or at the time of its execution, -it is considered a part thereof, and if it affects the operation of -the terms of the body of the instrument it is a material part. It -follows that words written by a party on the margin of an instrument -after its execution and delivery, constitute an alteration if -intended to affect the terms of the instrument and would have such -effect if they were there when the instrument was executed. - -A bill of exchange is an unconditional order in writing addressed by -one person to another, signed by the person giving it, requiring the -person to whom it is addressed to pay on demand or at a fixed -determinable future time a certain sum of money to order or bearer. A -bill of itself does not operate as an assignment of the funds in the -hands of the drawee available for its payment, nor is the drawee -liable on a bill until he accepts or agrees to pay it. An inland bill -is one drawn and payable within a state. Any other is a foreign bill. - -An indorsed promissory note and an accepted bill are very much the -same thing, and that is why the law always treats of both together. -The maker of a note incurs the same obligations as the acceptor of a -bill, both are the parties primarily liable thereon, and the indorser -of a note and the drawer of a note are both secondarily liable on -proper notification of the failure of the primary parties to pay, as -we have learned. The payees in both cases are the same. The acceptance -of a bill is the signifying by the drawee that he has assented to the -drawer's order, and must be in writing. An unconditional promise in -writing to accept a bill before it is drawn is deemed an actual -acceptance in favor of every person who on the faith thereof receives -the bill for value. The drawee is allowed twenty-four hours after -presentment to decide whether or not he will accept the bill; but the -acceptance, if given, dates from the day of presentation. Furthermore, -an acceptance may be qualified as to time, acceptance of payment in -part only and in other ways. When a foreign bill is not accepted it -must be protested, which must specify the time and place of -presentment, and other particulars, and is usually made by a notary -public, though this can be done by other persons. - - -=Parent and Child.=--A parent is legally as well as morally bound to -support his children who are incapable to care for themselves. Should -a wife be divorced from her husband his duty to maintain the children -would not fall on her, unless she also had the custody of them. A -father's obligation to maintain his child continues until he is able -to provide for himself. The legal obligation ceases by common law as -soon as a child attains majority, however helpless he may be or great -may be his father's wealth. - -A child that has property of his own, while his father's means are not -enough, may be supported from his own means. Even the principal may be -used in this manner. Generally if the father has ample means, he must -use them to educate his child. When the father can use the child's -fortune and how much, is sometimes a difficult question to answer. The -education of a child is now largely regulated by statute. - -A parent may protect his child, even a homicide is justifiable. A -parent can also correct his child. Says an excellent authority: "The -rights of parents result from their duties. As they are bound to -maintain and educate their children, the law has given them such -authority, and, in support of that authority, a right to the exercise -of such discipline as may be requisite to the discharge of the sacred -trust." See _Adopted Child_; _Husband and Wife_. - - -=Partnership.=--There may be a partnership in a single transaction, -for example, to buy and sell a load of potatoes. Persons may be liable -as partners to others who had no intention of creating that relation. -If A acts in such a way by speech or deeds as to create the belief in -B that he is a partner, and thus believing B sells goods to the -partnership, A is liable as a partner for them. On the other hand if B -knew that A was not a partner, he could not hold him as one. In many -cases it is difficult to determine whether one is a partner or not. -Many tests have been applied. The most general is that of intention. -Simply sharing in the profits and losses will not always suffice. This -was long considered a proper test but it broke down after many -applications. Thus, suppose a clerk is paid by giving him a fixed -percentage of the profits as a compensation, is he a partner? He was -so regarded on one occasion, and the firm having failed he was made -liable for all its debts. That is one of the consequences attending -the relation, every partner is liable for the entire indebtedness of -the amount he may have contributed. The clerk contributed nothing, -nevertheless he was liable like the others. Today the courts would -decide such a case differently. It would inquire whether the partners -intended to make him a partner, or only gave him a share of the -profits as a mode of paying him for his service. The recent -Partnership Act contains this test. - -A partnership may usually hold any kind of property, real and -personal, and not infrequently is formed to cultivate or deal in land. - -A partner is a general agent. Hence the risk of creating the relation. -Being a general agent he can bind his partnership for any acts within -the scope of his authority. Yet there are limitations. If a -partnership was engaged in selling dry goods, a partner could hardly -bind his partners by making a contract with a person for a quantity of -iron, unless it was needed in rebuilding the store, or in some other -connection with the business. He can make and indorse negotiable paper -that is used in connection with the business. Suppose he borrows money -on his own note and he gives the money to his firm, is it responsible -for the amount? This has proved a hard question for the courts. If the -money though loaned on his note was for the benefit of the -partnership, and it was known at the time that it was to be used in -that way, the partnership would be liable; but if the money was to be -used by the borrower and this was known and believed by the lender he -could look only to the borrower for payment. - -The receiving of a new member constitutes a new partnership. It may -reorganize the old partnership and become responsible for its debts, -or it may not. Unless recognized in some way by paying interest on -them and the like, the new member does not become responsible for -them. - -A partnership is formed usually by a definite agreement that is put in -writing. Yet it may be simply an oral agreement with very general -terms about the contribution of capital or skill of the respective -partners and their division of profits. They may and usually do have -distinct fields of employment, each doing the thing for which he is, -or supposed to be, best prepared. By reason of their general -liability, in the olden days persons who wished to thus engage and yet -not be responsible, were kept in the background, and were known as -secret and dormant partners. If found out they were liable because -they were to share in the profits. The fact that they were unknown -when credit was given to the partnership at the time of selling goods -to the concern did not shield them from liability after the discovery -of their relation. - -The difficulty has since been removed in two ways, by incorporating -the partners into a corporation whose powers and liabilities are fixed -by law and therefore known to all, and by forming limited liability -partnerships. These consist of two or more general partners, also -special partners who contribute an amount of capital, of which the -public is publicly informed. If such an association is unsuccessful, -the special partners may indeed lose all, or a part of the capital -they have contributed, but are liable for no more. This is a great -improvement over the secret and dormant methods of getting the capital -needed for partnership purposes. One of the matters that should be -carefully guarded in forming a limited liability partnership is to -contribute the full amount of capital advertised. If any deception is -practiced, or mistake made, whereby a smaller amount is contributed, -should the partnership not succeed, the special partners become liable -as general partners for the full amount. Once such a partnership was -formed with three special partners who contributed each $100,000, and -at the end of two years were told that their profits individually were -$60,000. Each was asked to contribute $100,000 more, and feeling happy -over his venture, he put in $40,000 more, which, added to his profits, -made up the required amount. When the concern failed a few years -afterwards the books showed that neither special partner was ever -entitled to $60,000 as profits. Though innocent, for they had never -examined the books, they were held as general partners for the entire -indebtedness of the concern. - -An illegal contract made by a partner will not bind his partnership, -for all parties are supposed to know the law, and an illegal bargain -cannot be enforced, for example, an agreement to pay usurious -interest. - -How may a partnership be dissolved? Unless the time is fixed by -agreement, it may be dissolved by any member whenever he pleases to do -so, though he cannot act wantonly to the manifest injury of the others -without making himself responsible for their loss. And if a partner -should attempt to transfer his interest before the time fixed for -ending the relation without good reason, to the manifest injury of the -other partners, he can be legally restrained from taking such action. - -The death of a partner causes a dissolution. Nor can executors or -administrators succeed to his place, though they often do so for a -short period to prevent the interruption of the business and to enable -all parties to fare better than they would by its sudden ending. Yet -it is awkward for these officials to thus act, and in so doing they -incur an unpleasant personal responsibility. To relieve them from this -some states have passed statutes permitting them to thus act with the -other partners under the direction and orders of the court having -charge of the estate. - -A partner who retires should give notice of his retirement to relieve -himself from future liability. For, should he neglect, and persons -continued to sell on credit to the firm, supposing he was a member, he -would be liable as before. The statutes in some states regulate his -duty in this regard; it is one that he cannot safely omit. - -Should a partnership fail, the general rule with respect to the assets -is the partnership property must be used to pay partnership debts, and -the individual property of partners to pay their individual debts. If -a partner has anything left after paying his individual debts, it must -be devoted to paying the partnership debts. If the partnership has -anything left after paying its debts, this belongs to the partners in -accordance with their agreement in contributing it and the earnings, -and must be devoted to the payment of their individual debts. - -Lastly concerning the authority of a liquidating partner. He can do -many things, give renewal notes, make indorsements, collect debts due -the partnership, and even revive an outlawed debt. Of course the -affairs of a partnership may be settled by some other person than a -partner; not infrequently a receiver is appointed who acts under the -order of the court that appointed him. - -An agreement between a liquidating partner and the other partners, to -take all the property and pay all the debts, is limited in its effect -to themselves and does not affect others. After the partnership assets -have been transferred to a liquidating partner, or to any other person -for liquidation, a debtor who has notice of the transfer is not -justified in making a settlement with any one else. And if he should -do so, the liquidator could require him to pay again to himself. - - -=Patent.=--In the United States the thing patentable is a new and -useful art, machine, manufacture or composition of matter, or new and -useful improvement thereof, or new, original and ornamental design for -an article of manufacture. An idea, principle or law of nature is not -patentable, but only the means for utilizing the idea or principle. -Many a great discovery has slipped away from the inventor or -discoverer, because he sought to hold the discovery or invention of -the principle as his own, instead of limiting his claim to the means -or methods of putting his principle into use. Morse's invention of -telegraphy is one of them. An art or process is patentable as well as -machinery, though the inventor may not know the abstract principles -involved in his art. But he must know and describe the steps by which -the result is accomplished. A composition of matter is a mechanical -mixture or chemical combination of two or more substances; and an -improvement is an addition to, or change in, a known art, machine, -manufacture or composition of matter, which produces a useful result -and is patentable if it amounts to invention. Lastly "a patentable -design may consist of a new and ornamental shape given to an article -of manufacture, or of an ornamentation to be placed upon an article of -old shape." It is said that the law relating to this subject intends -that the patentability of a design shall be determined by its appeal -to the eyes of the ordinary man, and not to the eyes of a jury of -artists. Design patents are granted for different periods, three years -and a half, seven years and fourteen years, as the applicant may -elect. - -The subject matter of a patent must be new and useful. It must be new -not only to the patentee, but to all the people in this country, and -at the time he filed his invention. The federal law, however, secures -a patentee who had no knowledge that his invention had been discovered -abroad and which had not been patented there, nor described in a -printed publication. Before the enactment of this law a patent was not -granted without showing that the applicant was the original inventor -with relation to every part of the world. - -Much has been said concerning the novelty of an invention. This may be -in the use of an old means in a new way; or a change of shape or form -to produce new functions and results, but the changes must amount to -invention, which is more than mere novelty. - -A foreign patent in order to invalidate an American patent must -antedate the invention patented. A foreign patent exists as a patent -only as of the date when the invention was published. In England an -invention is not patented within the meaning of the act of Congress -until the enrollment of the complete specification. - -What is meant by a prior publication? It is a printed book, newspaper -or document of a public nature disclosing the invention intended and -actually employed for the purpose of informing the public. Publication -in a book of general circulation is sufficient; business catalogues or -circulars are not such publications as are meant in the law. - -To defeat a patent on the ground of want of novelty the proof of prior -use or knowledge must be convincing, sufficient to establish the fact -beyond a reasonable doubt. The recollection of one witness concerning -the peculiar construction of a piece of machinery, especially if the -structure is one of complex character, is not enough evidence to -defeat a patent. Much less evidence, however, might be sufficient to -prove that a very simple invention had been anticipated. - -To justify the granting of a patent it must be useful. If the -invention be frivolous or pernicious, the inventor cannot secure for -it legal protection. The use of the invention must not be contrary to -public health or morals. It is not needful that the invention should -be the best of its kind, or that it should accomplish all that the -inventor claims for it. Furthermore, its utility depends on the state -of the art at the time of making the claim or issuing the patent; its -subsequent inutility does not invalidate the patent. Extensive use is -evidence of utility. The presumption of law favors a patent, and the -burden of proof is on the one attacking it to show that it is not -useful. The infringement of an invention is in effect an admission of -utility, because use implies utility. - -A patent also calls for the exercise of inventive power. Though -invention must be seen in every patent, it is difficult to define. -Says a former commissioner of patents, Justice Duell: "It is a matter -resting in judgment and therefore no fixed rule for its determination -is possible." Some principles, however, assist in defining the term. -"Thus, it is declared that an act of invention is primarily mental and -involves the conception or mental construction of a means not -previously known for accomplishing a useful result. It is not the mere -adaptation of old means by common reasoning, but is the construction -of new means through an exercise of the creative faculties of the -mind." Between invention and discovery the patent laws draw no -distinction. Again, it has been often said that the design of the -patent laws is to reward those who make a substantial invention or -discovery, which is an additional step in the useful arts. The law -never intended to grant a monopoly for every trifling device which -would naturally occur to a skilled mechanic in the ordinary progress -of manufacture. - -An article of manufacture is not patentable because means have been -devised to make it more perfectly than before; it must be new in -itself and not merely in its workmanship. A machine-made article -therefore is not patentable simply because it is thus made, and no -longer by hand. - -The substitution of an art, manufacture, or composition of matter of -one element or device for another which does the same thing in the -same way and accomplishes a similar result is not invention. Even if -the substituted part performs the function better, there is no -patentable invention unless some new function or result is secured. -Changes therefore of the relative location of parts without changing -the functions performed by them are not an invention, nor is the -omission of a part with a corresponding omission of function. - -A patent can issue only to the inventor, or if he is dead to his -executor or administrator. If there be two original inventors the one -who first made it or brought it to this country is entitled to a -patent. A patent granted on the application of a non-inventor is void. -By first inventor is meant the one who first had a mental conception -of the invention provided he exercised diligence in perfecting it. If -there be a rival claimant the party who first reduced to practice the -invention was, until the contrary fact is shown, the first inventor. -One who merely utilizes the ideas of others is not an original -inventor and is not entitled to a patent. In the United States any -person, regardless of residence, citizenship or age may obtain a -patent. - -An invention is reduced to practice when it is so far perfected that -it may be put into practical and successful use. The machine may not -be perfectly constructed, but it embodies all the essential elements -of the invention. Demonstration of its success by actual use is -usually necessary, but not always. The reduction to practice must be -by the applicant for a patent, or by his agent; to do this by a third -party will not suffice. The person who first conceived the invention, -but was later than his rival in reducing it to practice, is not -regarded as the first inventor unless he exercised due diligence to -perfect his invention after the time that his rival entered the field -against him. - -Two or more parties may contribute in developing an idea and producing -an invention, which is truly the result of their joint mental efforts, -and not the separate invention of either. In such case both must apply -for the patent, which is granted to them jointly. But if a patent is -thus issued to two and only one of them is the inventor, the patent is -invalid. Nor can one of two joint inventors make application and -secure the patent on assignment from the other; both must join. - -The patent must issue on the application of and in the name of the -real inventor even though he was employed to make it for the benefit -of another. Notwithstanding, the employer is the owner of the patent -and may compel the patentee to transfer it to him. Of course their -respective rights may be changed by agreement. If no agreement exists, -a company that employs a skilled workman to make improvements on its -machinery is not entitled to the patents granted to the workman. Says -Justice Duell: "An employee, performing all the duties assigned to him -in his department of service, may exercise his inventive faculties in -any direction he chooses with the assurance that whatever invention he -may thus conceive and perfect is his individual property. The -company, however, has an implied license to make, use and sell the -invention." - -Where a party employs another to assist him in perfecting an invention -the presumption is that the employer is the real inventor of the thing -produced by their joint effort. On the other hand, where a person is -employed to exercise his inventive skill, because he is known to be -the possessor of it, Edison for example, the presumption is in favor -of the employee. Government employees may secure patents on inventions -made by them during their employment, after their relationship has -ceased. The government may have an implied license to use the -invention without any title thereto. - -Patents may be issued and reissued to assignees on the application of -inventors. On the death of an inventor before a patent has been issued -to him, his executor or administrator may apply therefor, who takes -the patent in trust for the heirs. A foreign executor or administrator -may make a similar application. He must, however, present a proper -certificate of his authority to act. Likewise, a legally appointed -guardian or conservator of an insane inventor may apply for and obtain -a patent in trust for him. - -The inventor must apply to the commissioner of patents for letters -patent which secure to him his invention. The application comprises a -petition, specification, claims, oath, drawings if the nature of the -invention may be thus shown, and a model, when this is required by the -patent office. A fee of fifteen dollars also must be sent with the -papers. The application must be signed by the inventor and two -witnesses. - -The specification is the written description of the invention and of -the manner and process of making, constructing, compounding, and -using the invention; whatever it may be. He must describe not merely -the principle of the invention, but the mode of applying it in such a -clear, intelligible manner that those who are "skilled in the art" -can, without other aid, use the invention. Nothing should be left to -experiment. The phrase "skilled in the art" means persons of ordinary -skill. Whether a description is clear, exact and sufficient is a -question for the jury whenever it is a matter of legal contention. - -In describing an improvement the same rule is applied. The description -should show clearly the nature of it. The description should -distinguish between the old and the new. "A description in a patent -for an improvement is sufficient if a practical mechanic acquainted -with the construction of the old machine in which the improvement is -made, can, with the aid of the patent and diagram, adopt the -improvement." If an inventor intentionally conceals facts or misleads -the public by an erroneous description, his patent is void. - -Concerning the claim or claims with which the inventor concludes his -specification many questions have arisen. First, the claim must be -clearly stated so that the public may know what it is. The claim -should not be too broad. Several claims may be made, but they should -not be varying phraseology for the same thing. They should state the -physical structure or elements of mechanism by which the end or result -is produced. - -The inventor must make oath that he believes himself to be the -original and first inventor, that he does not believe that the thing -was ever before known or used, and as to his citizenship. If dead or -insane, the oath must be made by his executor, administrator, or other -representative. After the application is granted another fee of twenty -dollars must be paid. - -The commissioner of patents must make an examination for the purpose -of deciding whether a patent may be granted or allowed. This -examination is made by an examiner, whose decision, however, is not -conclusive and may be set aside by the commissioner. The patent office -is not confined to technical evidence in rejecting applications, but -may base its action on anything disclosing the facts relating to the -matter. - -When objection is made to the form of the application, an amendment -may be made by the applicant or his attorney to correct the error; and -this may be done at any time prior to the entry by the first examiner -of a final order of rejection, and within one year from the date of -the preceding action by the patent office. - -When two parties apply for a patent for substantially the same thing -an interference is declared and the respective parties must present -proofs in support of their claims. The question between them is -priority of invention. The proceeding then is much like an equity -trial with perhaps a wider latitude in admitting evidence bearing on -the inquiry. - -The applicant, if dissatisfied with the rejection of his claim by the -first examiner, or with the decision in an interference case, can -appeal to the board of the examiners-in-chief, and if dissatisfied -with their decision he may appeal to the commissioner in person, and -if still dissatisfied he can appeal to the Court of Appeals of the -District of Columbia. All appeals must be taken from the patent office -within a year, or a shorter period, if one has been fixed in a -decision. - -The decision of the commissioner of patents in granting a patent is -not conclusive that the inventor is the first and original inventor, -but only prima facie, that is, in the absence of other evidence to the -contrary. Consequently, the question of patentability in every case -may be reexamined in the courts. In the early days of administering -the patent law an inventor often applied to a court for an injunction -to prevent an infringer from continuing his work. The court, assuming -that the patent had been properly granted, did not hesitate, on -adequate proof of the infringement to grant the injunction. The courts -were not slow in finding out that patents were sometimes granted that -ought not to have been, and so the practice was changed and patentees -were required to establish their right to a patent in a court of law -before a court would enjoin an infringer, except in very clear cases. -These hearings in the courts to decide the claims of patentees, are -often prolonged, running through years to collect testimony, and are -appealed from one court to another finally reaching the supreme -federal tribunal. After a patent is thus judicially established -injunctions are readily granted against all infringers. - - -=Payment.=--In making payment the parties to an agreement always have -in mind cash, unless they otherwise agree. Not every kind of money can -be used, nor only in limited amounts. Thus, if one owed another a -thousand dollars he could not deliver to him, unless he were willing -to accept them, one thousand silver dollar pieces, but only ten of -them. Nor can a debtor compel his creditor to receive one cent and -five cent pieces to a greater amount than twenty-five cents. National -bank notes may be paid or tendered to the government, and by one bank -to another, yet they may be refused by an individual in payment of his -debt. It is important, when one owes another and there is a dispute -over the amount, that the debtor should tender or offer to pay his -creditor the proper kind of money, because should he offer him some -other kind, national bank notes for example instead of United States -notes, or those issued by the federal reserve bank, and he declined to -take them and should afterwards sue his debtor for the amount, the -latter's offer to pay in national bank notes would be regarded as no -payment, or even offer of payment. - -A note or check given for a bill of goods is not payment. In everyday -affairs a check is thus given and received, in fact it is only a -payment conditioned on payment of the check. Consequently if it is not -paid, the creditor can sue to recover on the check, or for the -original goods as he might elect. In most cases he would ignore the -check and sue for the original bill. Suppose some one had endorsed the -maker's check, then the creditor would probably sue on that in order -to hold both parties. - -Does a debtor who turns over a note to his creditor in payment, -thereby cancel the debt? If he does not, of course the creditor can -still sue the debtor; but if he turned the note over in actual -payment, then his right to sue his debtor is gone. What was the -intention of the two parties? This is a question of fact to be -ascertained like any other. - -How shall the money be applied of one who owes several debts to the -same person and makes a general payment? The debtor can make the -application, if he does not, the creditor can do so; if neither does -this, then the law applies it, first to the payment of interest that -may be due on any of the debts, and the balance left, should there be -any, to the payment of the principal. Of several debts the law applies -it to the oldest debt. Again, if there is a surety for any of the -debts, he may insist on the application of the money in order to be -relieved. - -If a depositor in a bank has made a note payable there this is -regarded very much like a check, it is a direction to the bank to pay -it, especially by the Negotiable Instruments law. Unless the maker of -a note is insolvent, a bank can never pay the unmatured note of a -depositor. Nor can a bank apply a deposit, which is known to be trust -money, or belonging to another person than the depositor to the -payment of his note. Generally a bank declines to pay a note that is -overdue though there is no law, except in a few states, against paying -it should the bank decide to do so. In all cases a depositor may make -any application of his deposit he desires, for it is his own and the -bank cannot divert it in any way against his direction. - -A receipt taken in payment of a debt is not conclusive evidence of -payment and may be contradicted by other evidence, though it is -regarded on its face as payment. When received, a receipt should be -kept for at least six years, because it is such strong evidence of -payment. After that period the statutes of limitation in most states -have the effect of canceling a debt, on the theory or presumption that -it has been paid. If the debtor afterward promises to pay, his new -promise is valid though there is no consideration therefor, and he is -legally required to pay the debt. - -Should a receipt also contain any other statement or contract beside -the payment of money, this would have the same effect as any other -contract between the parties, and would be equally binding on them. - -The effect of a seal after the receiptor's name may be explained in -this connection. A sued B and C for a debt. Before trial he gave C a -receipt stating that if he did not recover from B he would -nevertheless not hold C liable. Having failed in his suit against B, -he sought to hold C notwithstanding his receipt releasing him. And he -succeeded for the reason that his release was given without -consideration and therefore was worthless. Had A added after his name -a seal this would have imported or implied a consideration and the -receipt would have been an effective release. - - -=Prescriptive rights.=--A person may gain rights in the land of -another by acting in such a way as to indicate that he clearly makes a -claim to them. Thus, if a man goes over the land of another in the -same direction to his own land for a period of fifteen years or -longer, the period differing in the several states, he acquires the -right to continue, in other words he acquires a permanent right of way -by such action. As such a right is contrary to the interest of -another, it cannot be gained against a person who is incapable of -preventing the acquisition of such a right if he pleases. Such a -right, therefore, cannot be gained against a minor, nor an insane -person, nor any one who is incapable of defending his possessions. - -Whether the right has been fully acquired is not always easily -determined. Suppose one claims a right of way over another's land, and -the right is disputed. How often has he traveled that way? Has the -other person known of his going and said nothing? Again, suppose a man -sells another a piece of his farm away from a road, the law presumes -that he intended to grant or permit the buyer to have ingress and -egress to his land, otherwise he would not have purchased. This is -called a way of necessity. Can the purchaser choose any outlet he -pleases? The law says he must exercise reasonable discretion in making -his selection. - -When a way has been acquired by such use, the law is strict in -confining the gainer in the use of it. Thus A buys a piece of land of -another for the purpose of erecting a house thereon. The use of the -way thereto must be confined to A and his family, friends and those -who come to see him on business. Suppose A should decide to divide it -into building lots, which would require a greatly increased use of the -way. This could not be done without a new agreement with the seller. -Again, a tenant cannot by any use of the land acquire a right therein -that will continue beyond his lease. If he had a long lease, say -thirty years, and could gain a prescriptive right by an adverse use of -fifteen or twenty years, he would, if gaining any prescriptive rights, -be obliged to give them up at the end of his tenancy. In claiming a -right of way the use need not be exclusive. Other persons may also use -the way with the same claim of right. - -The owner of land has no natural right to light or air and cannot -complain that either has been cut off by the erection of buildings on -adjoining land. He may, however, acquire, by grant or some other way, -a right to have light and air enter a particular window, or other -place, without interruption by the owner of adjacent land. Nor can he -acquire a right to light and air across another's land for his own -house by simply erecting it on the edge of his own land while the -adjoining land is unoccupied. To erect windows on that side is not an -adverse use of the land adjoining. But a person may gain a right to -light and air by presumption, and if one has acquired the right to -maintain a window in a specified place he loses his right by closing -it up and opening another of a different size in another place. And -the same thing happens to one who tears down his house and builds a -new one with windows of the same size and in the same places as in the -old one. A person cannot maintain an action against another for -cutting off his view unless the right has been expressly acquired. - -The general rule with respect to the use of water is, any person -through whose land flows a stream may use it in a reasonable manner. -What is such a use has occasioned many a legal dispute, especially -among mill owners. Each one of them located on a stream may use the -water, but can they hold it back for any length of time? As a general -rule this can be done for a short time in order to get the use of the -power, if they could not, the water could run to waste and no one -would derive any benefit. Again, can any diversion be made of it? Any -use, almost, is a diversion. If one used water even to supply his -cattle, it would be a diversion, yet such a use ordinarily is lawful. -Suppose one had a very large herd, then the use might be excessive -especially in view of the needs of other users on the stream. A still -more important question has arisen of late concerning the fouling of -water. Has a factory the right of putting its dyestuffs into the -water, impairing its quality and rendering it unfit for use by all -below? This cannot be legally done. Can a stream be used as a sewer? -Naturally all the water in a valley flows downward and at last -reaches a stream running through it. As population increases the use -of streams becomes greater, and questions concerning their use more -difficult. - -Suppose a land owner on the hillside wishes to use all the surplus -water, can he gather it and thus prevent its flowing to the land -below? He can. Can he build ditches or other obstructions whereby he -can collect the water and pass it to the land below in other than the -natural way? He cannot. On the other hand, the lower proprietor can, -if he pleases, make an embankment that will prevent the water from -coming upon his land. This, though, is not the law everywhere. - -The owners of a well may prevent its overflow and thereby cut off -water that formerly ran into a stream. But the owner of a spring that -flows into the land of another cannot change its course, nor exhaust -the water, nor pollute it to the injury of another. Nor can surface -water be changed into a water course by impounding it. On the other -hand this rule does not apply to water or springs beneath the surface. -If in digging a well the source of supply to another is cut off, it is -a loss for which there is no redress, unless the well has been dug -maliciously. But where percolating water abounds and is obtained by -artesian wells a land owner has no right to sink wells on his land and -draw off the water supply of his neighbor. The right to cut ice is a -natural one, and the owner of a lake or stream may cut a reasonable -quantity, but not enough to diminish the water appreciably to the -lower proprietor. - -While a person has the natural right also to the lateral support of -his land, yet he cannot use it to the injury of another. This is a -legal maxim. If, therefore, he should excavate to the edge of his -land and his neighbor's building should in consequence fall down, -would he be without redress? The rule is, the excavation must be made -in a reasonable manner. This is a question of fact in every -controversy of the kind. The owner of land adjoining a highway has no -right to the lateral support of the soil of the street. Therefore, if -the grade of a street were lowered by proper authority and one's house -located by the side of it should fall, he would have no redress -against the city or other public body. - - -=Quasi Contracts.=--A quasi contract is a legal obligation arising -without the assent of one from the receipt of a benefit which, if -retained, would be unjust. The law therefore compels him to make -restitution. He is required to do this, not because he has promised to -make restitution, but because he has received a benefit which he -cannot justly retain. - -If one at the time of conferring a benefit on another confers it as a -gift, it cannot afterward be claimed that the gift was conferred -relying on a supposed contract. Consequently, though the donor's -intention may be subsequently altered, no obligation to make -restitution will arise. Nor does the failure of the donee to -reciprocate the donor's generosity or indirectly reward him, create -any right or claim on the donor's part to a return from the donee. - -Where one, in the preservation of his own property or the promotion of -his own interests, bestows some incidental advantage to another, there -is no legal obligation to pay for the value of it. Thus the owner of -the lower part of a house is not liable for the advantage resulting to -him from the repair of the roof by the owner of the upper part and -roof. Nor is one who has thickened and strengthened that part of an -ancient party wall which is on his own land, in order to sustain the -building he is erecting, entitled to recover from the adjoining owner -who used the wall. Nor can anything be recovered from the owner of a -vessel by the underwriters who had her docked for repairs though by -such docking the owner gained an important benefit. Nor can one who in -pumping out his quarry frees another quarry from water recover -anything for the service. Nor can one who is benefited by experiments -made by another to test the value of patented inventions, in which -both are interested, be legally required to pay for the benefit he has -received. - -As no expectation of payment does presumptively arise when services -are rendered by one member of a family to another member, one who -claims payment for them must prove that they were not rendered as a -gratuity, but on the legal supposition that he had a right to -compensation. - -One who knows or who has reason to believe that compensation is -expected for goods or services tendered to him ought not to accept -them unless he intends to pay for them. If he does his act of -acceptance will be regarded as a promise of payment, and can be -enforced. But if one accepts goods or services without knowledge or -reason to believe that compensation will be expected, what then? -Suppose A sends a barrel of apples to B supposing, from their previous -course of dealing, that B will return them if he does not want them? B -should either return them or pay. Suppose B is misinformed and learns -that A is giving a barrel of apples to each of his customers? Then he -would be justified in keeping them until he learned the truth. - -If, in making a contract it is taken for granted by both parties that -a certain fact exists, which, if not existing, would make the contract -impossible of execution, the contract is void. Thus, in contracts for -the sale of specific personal property, its existence at the time of -the sale is generally assumed. If the property has perished or been -destroyed, the contract is void. The same rule has been applied to the -sale of non-existent reality, of the transfer of void or spurious -securities, of the assignment of a void lease. In all these cases the -money paid in misreliance on the void contract is recoverable. - -Premiums paid on a policy of marine insurance by one who in reality -had no goods on board, or for a voyage that was never begun, may be -recovered. The existence of a risk is assumed by both parties, in fact -there is no risk, consequently there was nothing to which the contract -of insurance related. - -"A promise," says Woodward, "which is so general or indefinite that it -does not enable the courts to determine the nature and extent of the -obligation assumed must be regarded as no promise at all. Such has -been the fate of a promise to pay good wages; a promise to convey a -hundred acres of land, the land not being described; a promise to -divide profits, no rate of division being indicated. Instances might -be multiplied. A benefit conferred, in the honest, though mistaken, -belief that such a promise is binding ought in justice to be restored. -Restitution is accordingly enforced." - -The law requires some kinds of contracts to be executed in a -particular manner. Thus, by statute, many municipalities can make -contracts, or those of a particular kind, only on sealed bids or -proposals and after proper advertising for bids, etc. If these things -are not done, the contract made in disregard of them is invalid. The -courts of this country have got into deep confusion in applying this -rule to private corporations. Suppose a corporation makes a loan -without proper authority and receives the money, can the lender -recover it? The corporation had no right to borrow, of this the lender -knew as well as the borrower. Both parties are in the wrong. The -highest court in this country has been more consistent than many of -the state courts, and holds that a contract it cannot make for lack of -legal power is not made and cannot be ratified. "No performance on -either side can give the unlawful contract any validity, or be the -foundation of any right of action upon it." Nevertheless though a -contract is unlawful and void because the corporation was unable to -make it, a court strives to do justice between the parties by -permitting property or money, parted with on faith of the unlawful -contract, to be recovered back, or compensation to be made therefor. - -The lack of another legal requirement in making contracts gives rise -to serious consequences. We have learned that the Statute of Frauds -requires for the validity of many contracts that a memorandum of them -be made in writing and signed by one or both contracting parties. By -English law the statute provides a rule of evidence, that a writing -must be shown as proof of a contract before the courts will consider -it as having been made; by some of the American courts a contract that -does not meet the requirements of the statute is held to be void; by -other courts they declare that though the contract is not void it -cannot be enforced. - -While the Statute of Frauds in some states is regarded as completely -nullifying contracts not conforming to its requirements, they are not -anywhere held to be illegal, that is, are not made in violation of -law. "There appears," says Woodward, "to be no reason of policy, -therefore, for denying to a party thereto in a proper case, the aid of -the court in obtaining quasi contractual relief, or the right to -establish the justice of his quasi contractual demand by proving the -terms of the unenforceable agreement. True, the evidence of the -agreement in such a case, must be oral; but since the evidence is for -the purpose of proving, not a contract as such, but a transaction -resulting in an unjust benefit to the defendant, its introduction -would seem not to contravene the statute." - -A purchaser of land under an oral contract, who is given possession -and subsequently fails to pay, is liable for the use of the land to -him while he has occupied it. Though the act of the seller in giving -the purchaser possession without conveying the title may not be -regarded as a part performance of the contract of sale, yet the -benefit resulting to the purchaser creates an obligation to make -restitution which the courts will enforce. The improvement of land by -the purchaser under an oral contract is an act which enables him to -enforce the contract in equity. Improvements made by a lessee under an -oral lease within the statute are governed by the same rules as those -of improvements made by a purchaser. - -If no benefit has been derived from the contract, nothing can be -recovered. Thus, a son worked for his father on his father's farm -under an unenforceable contract with his uncle. The latter was under -no quasi contractual obligation to pay the value of such service, -since he had derived no benefit from them. Likewise one who, relying -on an unenforceable contract, constructed a wood-chopping machine that -was not accepted could not recover for the value of his labor and -materials. - -Again, where one party by his own act or default has prevented the -other party from fully performing his contract, the party thus -preventing performance cannot take advantage of his own act or -default, and screen himself from payment for what has been done under -the contract. Thus, if one party agrees with another to work on a -house the law implies that the employee owns the building in which the -work is to be done. This is a part of the contract whether the house -is clearly specified or not. Therefore, an employer who does not own -the house, or parts with it before the work is completed, is liable to -the other party. - -The destruction of a thing in the course of alteration or repair -without the fault of the bailee is a case like that above mentioned. -The labor and materials are expended in response to the desire of the -owner of the property, and therefore it is just that he should pay for -the property he destroyed. In one of the old cases a horse was sent to -a farrier to be cured and was burnt before a cure was completely -effected. Nevertheless, the farrier was entitled to payment for what -he had done. Likewise, the owner of a ship that is destroyed by fire a -few hours before the completion of repairs, cannot escape payment on -the ground that he has reaped no advantage. - -As the illness or death of a contractor does not, like fire or -shipwreck, deprive the other party of the fruits of what has been -already done, the benefit resulting to him is more obvious, and the -element of hardship is wanting that appears in many of the cases. The -value of his services or the materials he may have used may therefore -be recovered. In one of the cases A agreed that he and his wife should -live in B's house and maintain him for life. As A's wife died the -contract could not be performed. Nevertheless, A recovered the value -of the service he had rendered to B during the lifetime of his wife. - -Wagering contracts either by statute or judicial decision are illegal -and void in most or all the states. In many of them the statute -permits the recovery of the money from the stakeholder or the winner. -Payment over to the winner after notice or demand by the loser is not -a good defense in an action against the stakeholder. Again, the winner -is liable who, when receiving the money, knows that the stakeholder -has been notified not to pay it over, or has received notice not to -take it. - -The legality of contracts made or to be performed on Sunday is -determined generally by statute. Generally, when a contract is made on -Sunday, or is fully performed on both sides, the money paid or other -thing done in execution of it cannot be recovered. Again, one who is -induced by fraudulent representations to enter into a contract which -is in violation of a Sunday law is not so much in the wrong as the -other, and consequently may recover a benefit he has conferred on the -other party in performing the contract. - -If a member of a firm gives a promissory note signed by the -partnership name, for a debt of his own, which his partner is -compelled to pay, he may recover the money from the other. So, if a -carrier by mistake delivered goods to the wrong person who keeps them, -and the carrier is obliged to pay for their value, he can recover the -amount of the other person who thus wrongfully keeps them. - -Whenever a person makes a payment to another under such a mistake of -the material facts as to create a belief in the existence of a -liability which does not really exist, the money may be recovered -back. Such an obligation arises where money is paid as due on the -basis of erroneous accounts, and on a true statement of account is -found not to have been due. A voluntary payment with knowledge of all -the facts cannot be recovered, even though there may have been no -obligation to pay. - -A person cannot recover money paid under a mistake of fact who has -received the equivalent for which he bargained, because there is no -failure of consideration. Nor is the fact immaterial that he need not, -and would not have made the payment had he known the true state of -things. A bank, for example, that pays the check of a depositor under -the erroneous belief that it has sufficient funds, may not recover -from the payee the excess to the depositor's credit. But if the -purchaser of goods has paid the price, and the seller fails to deliver -them, the purchaser may recover his money. And in any case, a person -who has paid money under an agreement which he may rescind and does -so, because there was a failure of consideration, may recover what he -has paid. An action will lie against a person who sells goods as his -own, but which do not belong to him, whenever the real owner claims -them from the purchaser. In like manner an action will lie against a -person who sells bills, notes, bonds, stock or other securities which -prove to be worthless, or against a person who agrees to transfer the -title to land which, for lack of title or other reason, cannot pass. - -As a rule, the consideration of a contract must totally fail to -entitle a person to recover back the money he has paid. If the -consideration has only partly failed, the remedy, if there is any, is -for a breach of the contract, and not to recover back the money he has -paid. Thus, if an article is sold with a warranty of its quality, and -it is not worthless, his remedy is an action to recover damages for a -breach of the warranty, and not an action to recover back the money -paid for the thing purchased. - -A liability cannot be imposed on a person without his act or consent. -One man cannot force a benefit on another without his knowledge or -consent, and then compel him to pay for it. "If a person," says Clark, -"intentionally and knowingly performs services for another or -otherwise confers a benefit on him without his knowledge, so that he -has no opportunity to refuse the benefit, the law will not create a -liability to pay for it. So, where a person supplies another with -goods, the latter supposing that he is being supplied by another -person with whom he had contracted for the goods, the law will not -even imply a promise to pay for the goods." Where benefits are -conferred by one person on another under such circumstances as to -raise no promise in fact or in law to pay for them, he may, -nevertheless, become liable by retaining them. Thus, if a person were -to receive goods from another reasonably but mistakenly believing them -to be intended as a gift, and, after learning of his mistake, should -retain them, when he might return them, or if he should receive part -of the goods purchased from another, and retain them after failure of -the latter to supply the rest of the goods, the law would compel him -to pay for them. And the same rule applies where benefits are in any -other way received under such circumstances as to create no -contractual obligation, and are retained when they should in justice -be returned. If, however, the benefits thus received are incapable of -being returned, as where they consist of services, or of materials -which have been used in repairing a house, no liability is created. - - -=Sale.=--By a contract to sell goods the seller agrees to transfer the -property in them to the buyer for a consideration called the price. -There is an important distinction between a contract to sell in the -future and a present sale. The first is called an executory, the other -an executed, sale. If the goods are to be transferred, there is an -executed sale even though the price is not to be paid at the same -time. But if the price is paid, and the goods are not then to pass, -the transaction is a contract to sell, or an executory sale. Both -kinds of sales may be by deed or sealed contract as well as by parol -or orally. - -Sales and contracts to sell are based on mutual assent, the intent, -therefore, of the parties fixes the nature and terms of the bargain. -If the offerer understood the transaction to differ from that which -his words plainly expressed, it is immaterial, "as his obligation must -be measured by his overt acts." Thus, if an offer to buy or sell is -sent by telegraph, and is improperly transmitted by the telegraph -company, an acceptance by the offeree creates a binding bargain. By -using the telegraph as an agency of communication, the offerer makes -himself responsible for the offer actually delivered. Of course the -telegraph company would be responsible to the offerer for any damage -he may have suffered unless relieved by some neglect or fault of the -sender of the message. - -A contract of sale may be conditional, for example, that the property -shall not be transferred until the price is paid. Though the property -is transferred by the sale, promises or obligations may still be -unperformed by the seller. Or the transfer of the title may be -conditional on payment of the price. In such sales the goods are -delivered to the buyer, but the title is retained by the seller until -payment. - -The capacity to buy and sell is regulated by the general law -concerning the capacity to contract, transfer and acquire property. -When necessaries are sold and delivered to a minor, or to an insane or -drunken person, or to a married woman, who is lacking in mental -capacity to make a contract, he must, by the general Sales Act, pay a -reasonable price therefor. Necessary goods by this act mean those -suitable to the condition of the life of the minor or other persons -above mentioned at the time of their purchase and delivery. - -As we have seen (See _Minor_) a minor may avoid his contracts. The -right to do this is given for his protection, and should not be -stretched beyond his needs. Therefore the right is confined to himself -or his legal representatives. Neither creditors, nor trustees, nor -assignees in bankruptcy can do this, but his heirs can do this, and -probably his guardian. By the common law a purchaser for value who did -not know that the seller bought them of a minor could not retain them -if the minor wished to reclaim them as his own. This rule has been -changed by the Sales Act, and a bona fide purchaser is therefore safe -in purchasing such goods even though the seller did buy them from a -minor. - -As a minor may disaffirm his contract, any act clearly showing this -intent is sufficient. "It was early settled," says Williston, "that an -infant's conveyance of realty could be avoided only after he attained -his majority. In the case of personal property a sale may be avoided -during his minority by an infant seller or buyer. Though an infant may -thus avoid his sales, purchases or contracts during infancy, he can -make no effective ratification until he becomes of age, for an -infant's ratification clearly can be no more effective than his -original bargain." - -In the Sales Act the Statute of Frauds (See _Statute of Frauds_) has -been reënacted, and provides that in a sale or contract to sell goods -amounting to five hundred dollars or more, it cannot be enforced -unless the buyer shall accept a part of the goods, or give something -in earnest to bind the contract, or in part payment, or makes some -note or memorandum in writing of the sale which is signed by the party -or his agent against whom the other party seeks enforcement. - -This statute applies to a contract for goods that may be intended for -future delivery, but not to goods that are to be manufactured by the -seller especially for the buyer and are not suitable for sale to -others in the ordinary course of the seller's business. - -The Sales Act contains an important section relating to the sale of an -undivided share of goods. If the parties intend to effect a present -sale, the buyer becomes an owner in common with the owner of the -remaining shares. How important is this section may be easily learned. -The grain of many owners is often mingled in an elevator. It is -delivered to those who call for it, the kinds and quantities mentioned -in the receipts given to them at the times of storing it. The grain in -the elevator may be delivered many times before a particular depositor -makes his demand. The elevator company must keep on hand enough grain -to meet all outstanding receipts. Each depositor thus retains title -to some portion of the grain in the elevator. The company is the -bailee with the power to change the bailor's separate ownership into -an ownership in common with others of a larger mass, and back again. -At any given moment all the holders of receipts for the grain are -tenants in common of the amount in store, each owning a share and all -owning the entire amount, each having the right to sell his share and -demand its separation and delivery in accordance with custom and the -terms of the receipt. - -When a party has specific goods which, without his knowledge, have -perished partly or wholly, the buyer may treat the sale as avoided, or -as transferring the property in all of the existing goods and as -binding him to pay the full agreed price if the sale was indivisible, -or if divisible the agreed price for the goods in which the property -passes. One can readily imagine trouble when none of the goods have -been destroyed but all are in a condition inferior to that supposed at -the time of the bargain. In such a case the "only question is whether -the article has been so far destroyed as no longer to answer the -description of it given by the contract." - -The price may be fixed by the contract or in such a manner as the -parties may agree, and may be made payable in personal or real -property. When the price is not determined in the way mentioned in the -Sales Act, the buyer must pay a reasonable price. This is a question -of fact in each case. Usually, the price, either in an executed sale -or in a contract to sell, is fixed by the parties at the time of -making the bargain. In the agreement to sell there must be a -consideration on both sides to sustain it. Sometimes the parties agree -that the amount of the price shall vary according to the happening, or -failure to happen, of a future event. Such a contract may be a wager, -which is forbidden by law, or it may be legal, as we shall soon learn. -Whenever no price has been fixed the law has established a rule, a -reasonable price. It is the intention and understanding of the parties -that a buyer who orders a barrel of flour from his grocer will pay a -reasonable price. Likewise a buyer who orders a carriage to be made -for him and says nothing about the price. - -What is a reasonable price? Generally the market price at the time and -place fixed by the contract or by law for delivering the goods, but -not always. Under unusual conditions the market price does not furnish -the only test. Said the court in one of these cases: a reasonable -price may or may not agree with the current price of the commodity at -the place of shipment at the precise time of making it. The current -price of the day may be highly unreasonable from accidental -circumstances, by the action of the seller himself in purposely -keeping back the supply. - -With respect to warranties the Sales Act provides that when the sale -is made on a condition which is not performed, the party for whose -benefit the condition was made may refuse to proceed with the contract -or sale, or may waive performance of the condition. The nonperformance -may be treated as a breach of warranty. Thus time may be an important -element in a contract, and an agreement to deliver goods by a -specified time is a condition or warranty. And if there is a delay in -delivering, unless it may be a trifling one, the buyer may refuse to -accept the goods. - -A common condition in more recent times qualifying the obligation of -the buyer is that the goods shall be satisfactory to him. By this is -meant the satisfaction of the buyer after the exercise of an honest -judgment. In New York and some other states a somewhat different rule -prevails. Unless the things covered by the contract involve personal -taste, the contract imposes on the seller the requirement only that a -reasonable man would be satisfied with performing it, thus not leaving -the question of its satisfactory performance entirely to the buyer. -This, Williston says, is an arbitrary refusal of the court to enforce -the contract that the parties made and seems unwarranted. - -Warranties may be express or implied. By the Sales Act any affirmation -of fact or any promise by the seller relating to the goods is an -express warranty if the natural tendency of such affirmation or -promise is to induce the buyer to purchase the goods, and if the buyer -purchases the goods relying thereon. - -In a contract to sell or a sale, unless a contrary intention appears, -there is an implied warranty on the part of the seller that in the -case of a sale he has the right to sell the goods, also, in the case -of a contract to sell them, he will have the right to do this at the -time of passing the property. More briefly the seller warrants the -title to the property which is the subject of sale. Whether the seller -is in or out of possession of the property, he can by appropriate -words sell such interest as he may have therein. But persons also sell -property not owned by themselves by authority of others or of the law. -Unless they expressly warrant the title they are not liable for lack -of it. Sales of this nature are made by a sheriff, or other judicial -officer, auctioneer or mortgagee, assignee in bankruptcy, executor or -administrator, guardian, or simply an agent. - -When there is a contract to sell, or a sale of goods by description, -there is an implied warranty that they shall correspond with the -description; and if the contract or sale is by sample, as well as by -description, it is not sufficient that the bulk of the goods -corresponds with the sample if these do not also correspond with the -description. The Sales Act contains elaborate provisions relating to -implied warranties of the quality of things sold. There is no implied -warranty of the quality or fitness of goods for any particular purpose -unless the buyer makes known to the seller the purpose for which they -are required, and he also relies on the seller's judgment of their -fitness for the use he intends to make of them. Again, if the buyer -has examined the goods there is no implied warranty of the defects -which such an examination ought to have revealed. An implied warranty -as to quality or fitness for a particular purpose may also be annexed -by the usage of trade. There is an implied warranty that the bulk -shall correspond with the sample in quality, and that the buyer shall -have a reasonable opportunity of comparing the bulk with the sample. - -When does the transfer of ownership occur? When there is an -unconditional contract to sell them the property therein passes to the -buyer on the making of the contract, regardless of the time of payment -or delivery or both. When goods are delivered to the buyer "on sale or -return," giving the buyer an option to return them instead of paying -the price, the property passes to the buyer on delivery, but the -property may go back to the seller by returning or tendering the goods -within the time specified in the contract. When the goods are -delivered to the buyer on approval or on trial or other similar terms, -the property passes to the buyer, (1) when he signifies his approval -or acceptance of them, (2) or if he retains them beyond the time fixed -for their return, or if none has been fixed, beyond a reasonable time. - -It is the duty of the seller to deliver the goods, and of the buyer to -accept and pay for them, in accordance with the terms of the contract -of sale. Unless otherwise agreed, delivery of the goods and payment of -the price are concurrent conditions, the seller, therefore, must be -ready and willing to give possession of the goods to the buyer in -exchange for the price, and the buyer must be willing and ready to pay -the price in exchange for the possession of the goods. - -Whether it is for the buyer to take possession of the goods or for the -seller to send them to the buyer, is a question depending in each case -on the contract, express or implied, between the parties. Apart from -contract, or usage of trade to the contrary, the place of delivery is -the seller's place of business, if he have one, and if not, his -residence. Again, when by the contract of sale of goods no time for -sending them has been fixed, the seller must send them within a -reasonable time. - -Vast quantities of goods are bought and sent forward to buyers, which -are not to be delivered until payment. The Sales Act provides that -where goods are shipped and by the bill of lading that is given for -them they are to be delivered to the order of the buyer or of his -agents, but possession of the bill of lading is to be retained by the -seller or his agent, he thereby reserves his right to the possession -of the goods as against the buyer. Very often a buyer of wheat, for -example, will draw a bill of exchange on his principal or company -living in the place where the goods are to be delivered and will have -it discounted by a bank using the money to pay the seller. The wheat -may be in an elevator, or it may be in transit. In either case the -bank receives a document, elevator receipt, or bill of lading, and -thus becomes the real owner of the wheat, and can control it afterward -until it is actually delivered to the consignee, whoever he may be. -This is the bank's security for making the loan. The bank sends -forward the bill of exchange to its correspondent bank in the place -where the consignee lives and the wheat is to be delivered with -instructions to deliver it when the bill is paid. - -With respect to speculative sales of stock, so well known by every -one, a contract, says Williston, giving one party or the other an -option to carry out the transaction or not at pleasure, is not a -wager, unless forbidden, as in some states is done by statute. A -contract to sell goods in the future, which the seller does not own at -the time is, aside from the statute, not only legal but common. "The -test," says Williston, "adopted in the absence of statute, -distinguishes between contracts to buy and sell in which the actual -delivery of the property is contemplated, and similar contracts in -which it is contemplated merely that a settlement shall be made -between the parties based on fluctuations in the market price. A -contract of the former kind is legal; one of the latter kind is a -wagering contract, and illegal." - - -=Shipping.=--The federal statutes require that every ship or vessel of -the United States shall be registered or enrolled in the office of the -collector of customs of the district that includes the home port of -the vessel. None but citizens of the United States can have their -vessels registered. Consequently the sale of a vessel to a foreigner -denationalizes her. If sold to an American, she must be registered -anew. On arriving at a foreign port masters of vessels must deposit -their registers with the consul or commercial agent at that port. - -Enrollment is the term used to describe the registry of a vessel -engaged in coastwise or inland navigation or commerce. Registration is -applied to vessels engaged in foreign commerce. License means the same -as enrollment, but is applied to small vessels of twenty tons burden -or less. The federal laws on this subject do not apply to vessels that -are used on nonnavigable waters of the country. - -The title to a vessel may be acquired by purchase or building. If a -vessel is built for a party no title thereto passes until she is ready -for delivery and has been approved and accepted by him. This, however, -is no arbitrary rule, and is often modified especially when payment is -made in installments and during the construction of the vessel. - -Nowadays many vessels are owned by corporations, and the rules that -apply to corporations of course determine the ownership of their -property. In other cases the several owners of a vessel are tenants in -common, and not co-partners, unless by agreement they have established -other relations among themselves. They may, of course, become partners -and be governed by the rules that apply to persons thus related. When -they are related as tenants in common one part owner has no power to -bind the others in any way beyond the necessary and regular use of the -vessel. He cannot sell or mortgage the interests of the others, draw -drafts or notes in their name, apply the freight money earned to pay -his individual debt, or procure insurance for the other owners. - -The majority rule governs in employing the vessel. The majority -therefore have the right to control the use of the vessel on giving -security to the minority, if required, to bring back and to restore to -them the vessel, or if lost to pay them for the value of their shares. -The minority owners in like manner may use the vessel if the majority -are unwilling to employ her. A court of admiralty will in such a case -act for the parties. - -Each part owner is entitled to his share of the profits, and is also -liable for the expenses of the vessel unless he has dissented from the -voyage. But part owners who dissent from the voyage and take security -for the safe return of the vessel are not entitled to share in the -profits, nor are they liable for the expenses. - -A part owner may bind the others for necessary supplies and repairs -required that are procured on credit, unless his general authority to -do this has been restricted. The ship's husband or managing owner has -authority to do whatever is necessary for the prosecution of the -voyage and earning the freight money. For such purposes he is the -agent of the owners and can bind them by his contracts, unless his -authority is revoked or modified. - -Any owner can sell his interest whenever he pleases, and all of them -may authorize the sale of the entire vessel. A writing is required to -pass the title, but as between the parties an oral sale and delivery -will suffice, at common law. In many cases a bill of sale is required -by statute. The writing should describe what things are transferred, -but general terms such as appurtenances and necessaries have a fixed -meaning which are understood. Intention is the guide to determine what -passes in such a sale, as in cases of fixtures already considered. - -When the bill of sale is executed the purchaser becomes entitled to -all the benefits of ownership, and incurs all the liabilities. If the -sale is unconditional, the purchaser is liable for supplies though he -may never have taken possession of the vessel, and neither the master -nor the merchant furnishing the supplies knew of the sale. The -purchaser is not liable for repairs made and supplies furnished before -the sale, unless he has agreed to pay for them, or the vessel was at -sea at the time. If she was, the purchaser takes her subject to all -encumbrances on her, and to all lawful contracts made by the master -before learning of the purchase. - -A vessel may be mortgaged, and the federal statutes state how this -shall be done. A shipbuilder may make a contract whereby he mortgages -the vessel to be built in advance of its construction, and a lien -attaches as it comes into existence. Such a mortgage is postponed or -comes after a maritime lien, that will soon be explained, but comes -before the debts of general creditors. - -The mortgagor, so long as he retains possession, has all the rights of -ownership, and all contracts made by him are valid which do not impair -the security of the mortgage. When the mortgagee takes possession of -the vessel he is entitled to all the earnings that accrue, but not to -those which the mortgagor has reserved, even though they are for the -current voyage. Furthermore, his interest may be attached by his -creditors. The discharge and foreclosure of mortgages on vessels are -governed for the most part by the rules that apply to chattel -mortgages. A mortgage on a vessel should be recorded, and many of the -rules and usages that apply to the recording of deeds apply also to -such mortgages. - -A contract may be made for a loan of money on the bottom of a vessel -at a rate much greater than the usual rate of interest. Such a loan is -sanctioned to enable the master to obtain money for supplies or -repairs at some foreign port where they could not be otherwise -obtained. The loan is on the security of the vessel and if she never -arrives, the lender loses his money. If she does arrive at the port of -her destination, the borrower personally, as well as the vessel, is -liable for the repayment of the loan with the agreed interest thereon. -This maritime loan is highly regarded in legal tribunals, and is -liberally construed by them to carry into effect the intention of the -parties. - -Such a loan or bond can be given by the master of the vessel only in -case of necessity and great distress in a foreign port, where the -owner is not present and has no representative with funds, and where -the master has no other means of getting money. The master has a large -discretion. "The necessity must be such as would induce a prudent -owner to provide funds for the cost of them on the security of the -ship, and that if the master did not take the money the voyage would -be defeated or at least retarded." The general purpose of the loan is -to effectuate the objects of the voyage and the safety of the ship. - -The appointment and employment of a master is wholly within the -discretion of the owners. On his death or removal in a foreign port a -successor may be appointed by the consul resident there of the country -to which the vessel belongs, or by an agent of the owners, or by the -consignees of the cargo who have advanced money for repairing the -vessel. The registry acts of the United States require the putting of -the master's name in the register, but if this is not done his -authority is not impaired; and the one to whom the navigation and -control of a vessel is entrusted is considered her master, although -the name of another appears on the register. His contract may contain -any stipulation to which the parties may agree. The right of a master -to command his vessel is personal to him; and a sale by a master who -is part owner of the vessel of his interest therein transfers no right -to the command of the vessel which the other owners are bound to -respect. Whenever he becomes incapable of commanding by reason of -sickness, insanity, or other reason, the command with the duties -pertaining thereto devolves on the first mate until the appointment of -another master; should he be absent or incapable of acting, then the -second mate and so on down the rank of officers. - -The master must do all things for the protection and preservation of -the several interests entrusted to him, the owners, charterers, cargo -owners, underwriters. He must render a full and satisfactory account -to the owners of the vessel of moneys secured and his disbursements -before demanding any wages. At sea he is the supreme officer, has sole -authority over both officers and crew to do justice to all persons -under his command, and to protect passengers and seamen from bad -treatment while they are on board. It is said that in respect to -passengers he owes a higher and more delicate duty than he owes to the -crew, but at the same time he has the necessary control over his -passengers and may make proper regulations for their government to -ensure their safety, promote their comfort and preserve decent order. - -He has authority to bind the owners when they are not present for -expenditures needful in the way of repairs, supplies and other -necessaries reasonably fit and proper for the safety of the vessel and -the completion of the voyage. - -As the seamen who serve on a vessel are generally ignorant and -improvident, the execution of shipping articles are required by -federal statute where the vessel is bound on a foreign voyage, or from -a port in one state to a port in another. If these articles are not -made seamen have the right to leave the vessel at any time, and may -recover the highest rate of wages paid at their shipping port. The -articles must be signed by the seaman and by the master, and the -contract must be executed before the vessel proceeds on its voyage. -The seaman is not bound by any new or unusual stipulation put into the -articles affecting his rights without full knowledge of it, and -especially when he cannot read and the stipulation is not read and -explained to him. Once executed, the articles cannot be varied by a -verbal agreement between master and seaman. - -The articles must specify clearly and definitely the nature of the -intended voyage, the port at which it is to end and its duration. -Indefinite articles, leaving to the option of the master whether the -voyage shall be long or to one or more foreign ports, or short to -nearby domestic ports, are void. The articles must also state the -amount of wages each seaman is to receive. Articles are void that fix -a forfeiture of wages in excess of the amount named in the statute, or -restrict the time in which seamen must sue for their wages. The -contract may be dissolved by cruel treatment by the master and by an -abandonment of the vessel without the master's consent, but not by the -death, disability, removal or resignation of the master and the -substitution of another. Besides the wages a seaman may recover, -should the master break the contract, are his expenses in returning to -the port of shipment including also general damages. - -Claims for wages are "highly favored in admiralty courts," and -discharges are not justified for trivial causes, nor for a single -offense unless it is an aggravated one. Such causes are continued -disobedience or insubordination, rebellious conduct, gross dishonesty, -embezzlement or theft, habitual drunkenness, habitually stirring up -quarrels, or by his own fault rendering himself incapable of -performing duty. The master must receive back a seaman when he has -thus been discharged who repents and offers to return to his duty and -make satisfaction, unless the offense was of an aggravated character. -This is the general rule, though from its nature there is much room -for its application. - - -=Statute of Frauds.=--Some contracts must be in writing to comply with -a statute called the Statute of Frauds, which has been enacted with -variations in all the states. One of the most important sections -relates to the conveyance of real estate. This requires that the -agreement for its sale must be in writing. (See _Agreement for Sale of -Land_.) - -Another section relates to the sale of goods, wares and merchandise. -This has not been enacted in every state. If the amount is above that -mentioned in the statute, thirty to one hundred dollars, there must be -a written contract or delivery and acceptance of the goods to -constitute a contract. If A sells a bill of goods to B, who declines -to receive them, and the contract is wholly verbal, he can shield -himself behind this statute wherever it prevails. Many questions -therefore arise, what is a delivery and acceptance? A delivery of a -key of a building containing the property is sufficient. The delivery -of a bill of lading of goods properly indorsed, making entries of the -goods sold, pointing them out or identifying them is enough to comply -with the statute. Whenever there has been a transfer of possession and -control by the seller to the purchaser to which the latter has -assented there has been a sale. Or, more broadly, whenever there has -been such action as to show clearly an intention to sell and accept -the property the sale is complete. Part payment of the purchase money -for personal property is generally regarded as showing such intention. - -To a contract for the manufacture of a thing the statute does not -apply. Simple as this answer may be, the law soon gets into -difficulties in deciding whether a contract is for the making of a -thing, or for the thing itself; whether the important element is the -skill or labor that is to be expended, or the thing without regard to -the process of making. Thus, if a contract is with one to paint a -portrait, the statute would not apply, for the skill of the artist is -the important thing purchased, and not the canvas, paint, etc., he -must use. To a contract for a locomotive the statute would apply. "If -the contract states or implies that the thing is to be made by the -seller, and also blends together the price of the thing and -compensation for work, labor, skill and material, so that they cannot -be discriminated, it is not a contract of purchase and sale, but a -contract of hiring and service, or a bargain by which one party -undertakes to labor in a certain way for the other party," and the -statute does not apply to it. - - -=Statutes of Limitation.=--In all the states statutes have been -enacted which provide that if the rights of parties to legal redress -are not enforced within a specified period, the courts are closed to -them. Thus, in most states a statute provides that a holder or owner -of a promissory note who neglects to sue the debtor within six years -from its maturity cannot do so afterwards. The note is not absolutely -void, though the law presumes it has been paid. As the note is not -void, payment may be effected as we shall soon learn. - -Suppose one is indebted to a merchant, if the debt is not paid within -six years in most states and nothing has happened, the debt in popular -language is outlawed, in other words cannot be collected by resort to -law. The time begins to run as soon as the debt has accrued; if it be -a debt to a merchant, as soon as one has stopped trading with him. To -the operation of this rule are some important exceptions. It does not -run in favor of a minor, married woman or insane or imprisoned person; -or not whenever or wherever they are not capable of contracting. But a -disability arising after the statute has begun to run in his favor -will not prevent it from running. - -The Statute of Limitations generally bars the remedy or right to -pursue the debtor in a court of law, it does not extinguish the right -or debt, and therefore the right to pursue a debtor may be revived by -a new promise to pay. One may ask, is not a debtor a foolish man to -acknowledge that he is a debtor after the law has released him from -his debt? Yes, from a purely selfish point of view. Nevertheless, the -moral obligation remains, and happily all morality has not yet fled -from the world. One may ask, is not such a promise void because there -is no consideration received for it? No, for the reason that there was -a consideration for the original obligation, and this is sufficient -to sustain the renewed promise to pay it. In some states the statutes -provide that such an acknowledgment to pay a debt after the statute -has barred it, must be in writing, and signed by the debtor or his -agent. The most general rule is, to remove the bar of the statute, -there must be either an express promise to pay, or an acknowledgment -of the debt accompanied by an expression of willingness to pay it. To -simply acknowledge the existence of a debt is not enough, there must -be indicated or expressed a willingness to pay. - -A debt may also be revived by part payment. Payment on account of the -principal, or payment of interest on the debt will prevent the statute -from running against it. Payment to have that effect must be made with -reference to the original debt and in such a way as to effect an -acknowledgment of it. - -While a debtor may always apply a payment to any one or more of -different debts he owes his creditor, if he fails to do so the -creditor can make the application even to a debt which is already -barred by the statute, but his application will not remove the bar to -the remainder of the debt. To have that effect the appropriation must -be made by the debtor himself. - -Statutes of limitation apply to many obligations, and the times or -dates at which they become outlawed or outside the scope of legal -redress, vary in the different states. In many of them an ordinary -book account or negotiable note is outlawed after six years, and -cannot be enforced after that time unless the debtor has revived it by -a new promise or part payment. A judgment against one usually runs -twenty years. - - -=Telegraph and Telephone.=--Though the business of a telegraph company -is public in its nature, it is not a common carrier, and it may -therefore set up reasonable regulations for the reception, -transmission and delivery of messages. As it is a quasi public -corporation, it must extend its services to all that apply therefor -and offer to pay the charges. And if refusing it may be compelled to -do these things. The company may charge more to one person than to -another when the service is unlike, though not enough to amount to an -unjust discrimination. The difference in charges must bear some -relation to the different services rendered. - -A telephone company cannot legally discriminate between two competing -telegraph companies by giving one the telephone call word "Telegram" -and thereby depriving the other telegraph company of business. Nor can -a telephone company legally charge a higher rental for a telephone to -a telegraph company than to any other patron. Nor can a telegraph -company discriminate against another in refusing credit which is given -to other responsible parties. - -A strike may be a sufficient excuse for failure to have sent messages -promptly, though not excusing a railroad company for failure to -deliver freight as if no strike had happened. A state may impose a -penalty on a telegraph company for failure to deliver promptly in the -state messages coming from other states. And a state may impose a -penalty on a telegraph company for failure to perform its clear common -law duty to transmit messages without unreasonable delay, and this -statute applies to messages to points outside the state if it relates -to delay within the state. A state statute prohibiting telegraph -companies from limiting their liability for the transmission of -telegrams within the state is constitutional. The state may prohibit a -telegraph company from transmitting racetrack news. A telegraph -company must transmit a message unless it contains indecent language. -Nor is it liable for libel in transmitting a telegram stating that a -person had been bought up. - -It is reasonable for a telegraph company to close its office on -holidays, except two hours in the morning and two hours in the -afternoon, and therefore is not liable for delay in transmitting a -message because of this delay. The unauthorized writing out and -sending of a telegram in another person's name is a forgery. - -When a telegram must pass over two connecting lines the receiving -company may require the sender to designate what route the message is -to take, and to pay an extra charge for the words indicating such -route. A telegraph company is not privileged in transmitting messages, -but they should not be made public, except to produce them when -legally required in court. Under the New York statutes it is a -criminal offense for a telegraph employee to divulge the contents of a -telegram to any other person than the addressee, except when it -relates to unlawful business. In that case the employee may give -information to the public officer who is prosecuting the unlawful -sender. It is a criminal offense to open or read a sealed telegram, or -to tap a telegraph wire in order to read messages in course of -transmission. - -In regulating the receipt, transmission and delivery of telegraph -messages, the rules differ from those that are to be transmitted -within the state from the rules for interstate messages. The rules -with respect to the latter are governed by the Interstate Commerce -Act of 1910, state messages are governed by the laws of their -respective states. By the federal law, therefore, a telegraph company -providing one rate for unrepeated messages, and another and higher -rate for those repeated, may stipulate for a reasonable limitation of -its responsibility when the lower rate is paid. And if the contract -provides that for any damage resulting from sending the telegram, the -sender must give notice within sixty days, he is bound by this -stipulation, and is without redress if he delays to act beyond the -time. - - -=Torts or Wrongs.=--"A tort is an act or omission which unlawfully -violates a person's right created by the law, and for which the -appropriate remedy is a common law action for damages by the injured -person." The right that is violated is private and not public, which -marks off a tort from a crime. Again, the wrongful act may be a -violation of both a private and public right, in which case both the -individual and the state have a remedy against the wrongdoer. Thus A -without excuse attacks B and bruises his nose. B has an action to -recover damages against him for despoiling his countenance; the state -also may proceed against him in a criminal action for his breach of -the public peace. Another illustration may be given. A clerk embezzles -money from his bank. It sues him and perhaps his bondsmen and recovers -the money. Embezzlement, however, is a criminal offense, and the -recovery of the money taken does not affect in any way the right of -the state to proceed against the embezzler. Indeed, an individual who -has been wronged cannot by any restitution or settlement that he may -make with the wrongdoer impair the right of the state to punish him. - -Torts or wrongs are very numerous for which the wrongdoer may be held -liable. The first to be mentioned is false imprisonment. The law -punishes false imprisonment as a crime; the person unlawfully -imprisoned also has a civil action for damages. A person is said to be -imprisoned "in any case where he is arrested by force and against his -will, although it be on the high street or elsewhere and not in a -house." Mere words are not an arrest. If an officer says, "I arrest -you," and you run away, there is no arrest. But if an officer touches -you and takes you into custody there is an arrest even though you run -away afterward. - -A malicious prosecution is another wrong. A person who brings his -action for this wrong must prove four things: first, that the -prosecution has terminated in the complainant's favor; second, that it -was instituted maliciously; third, that it was brought without -probable cause; fourth, that it damaged or injured the complainant. -The term malice means something more than "the intentional doing of a -wrongful act to the injury of another without legal excuse." It means -that the original prosecutor was actuated by some "improper or -sinister motive." The term "probable cause" requires explanation. -Nothing is better settled, says one of the courts, than this, that -when the person who brings such an action against another "submits his -facts to his attorney, who advises they are sufficient, and he acts -thereon in good faith, such advice is a defense to an action for -malicious prosecution." That such advice may be a good defense a full -and honest disclosure of all the facts must be made to him. Such -advice will not serve as a screen if based on a fragmentary, -incomplete statement of facts. - -A very common tort is an assault and battery. A person who threatens -another with immediate personal violence, having the means and -opportunity for executing the threat, commits an assault for which -damages may be recovered in a proper action. To raise a club over the -head of another and threaten to strike if he speaks, would be an -assault. "Absence of intent," says Burdick, "on the part of the -defendant to put the plaintiff in fear of bodily harm, is pertinent to -the defense that the injury was accidental, or due to a practical -joke." - -A battery, as distinguished from an assault, is the inflicting of -actual violence on a person, though the degree of violence is -immaterial. The least touching of another in anger, or as a -trespasser, is a battery. Forcibly cutting the hair of a person -without legal authority, or injuring the clothing on a person, or -snatching an article from his hand, or cutting a rope or belt attached -to him, or striking a horse on which one is riding, or that is -attached to his carriage, or overturning a chair in which he is -seated, is a battery; likewise, if the assailant throws a stone or -missile which hits the other, or spits in his face. - -There may be a justifiable assault, the law has long recognized this. -A public officer is justified in using force in performing his duty, -so is a private individual in defending himself, his family or his -property, or in enforcing lawful discipline at home, in school, on -board a ship, or other public conveyance, or in restraining one -mentally or physically incapacitated. - -Another injury for which the law furnishes redress is that affecting -reputation and character. It is true that the damages one may recover, -however great, may be an inadequate redress, yet it is the best the -law can do. The party injured by a libel or slander brings his action -and wins his victory over his enemy, yet the battlefield remains and -the scar of the wound inflicted. The issue in an action for defamation -is not the character of the plaintiff, but the wrongfulness of the -particular statement. Therefore "it is not a defense to a libel or -slander that the plaintiff has been guilty of offenses other than -those imputed to him, or of offenses of a similar character; and such -facts are not competent in mitigation of damages." - -As the gist of the tort consists of the injury done to one's -reputation, the defamatory statement must have been published. A -person has no cause of action against another for defamatory words -spoken to him; they must have been heard by a third person. The -plaintiff may make out a case by showing that the libel was contained -on the back of a postal card, or by other evidence that makes it a -matter of reasonable inference that the libelous matter was brought to -the actual knowledge of a third person. - -A person who voluntarily engages in the interchange of opprobrious -epithets and mutual vituperation and abuse has been held to license -his antagonist to reply in like manner. "The right to answer a libel -by libel is analogous to the right to defend one's self against an -assault upon his person. The resistance may be carried to a successful -termination, but the means used must be reasonable." Common carriers, -news-vendors, proprietors of circulating libraries and others who are -merely unconscious vehicles for carrying defamation generally escape -liability for its publication. - -If the publication of a libel is the result of the joint efforts of -several persons, each is responsible for the wrong done to the -plaintiff. If A writes a libel, and B prints it and C publishes it, -the person wronged may sue all jointly, or either one of them -separately. The publication of the same slander by different persons -is not a joint tort, it is a distinct wrong done by each slanderer. - -There are distinctions between libel and slander that must be now -stated. Slander is applied to oral speech or its equivalent, libel to -matters expressed in writing or print, pictures, effigies or other -visible and permanent forms. Libel is a criminal offense as well as a -tort, while the slander of private persons is not a common law crime; -but some forms of slander are crimes by statute. Falsely and -maliciously to charge one with committing a felony or other indictable -offense involving moral turpitude is in some states a crime. -Scandalous matter is not necessary to make a libel. "It is enough if -the defendant induces an ill opinion to be held of the plaintiff, or -to make him contemptible or ridiculous." Says Burdick: "Any censorious -or ridiculing writing, picture or sign made intentionally and without -just cause and excuse is a libel upon its victim. The degree of -censure or ridicule is not material. If the language is such that -others, knowing the circumstances, would reasonably think it -defamatory of the person complaining of and injured by it, then it is -actionable." - -In many cases of libels which affect the victim chiefly or solely in -his office or vocation their tendency to cause injury is so clear that -proof may be unnecessary. Thus, to import insanity or incompetency to -a professional man, or that a public official is dishonest and corrupt -is actionable. And when a libelous publication is directed against a -class or body of persons, for example, the medical staff of a public -hospital, any member of the body may maintain an action for the wrong. - -A corporation has no character like a natural person to defend, but a -defamatory charge which directly affects its credit and injures its -business reputation is an actionable one. On the other hand as a -corporation must transact its business and perform its duties through -natural persons it is now well settled that a corporation is liable in -damages for slander, as it is for other torts. - -Slanderous words that are actionable have been thus classified by the -United States Supreme Court: "(1) words falsely spoken of a person -which impute to the party the commission of some criminal offense -involving moral turpitude, for which the party, if the charge be true, -may be indicted and punished; (2) words falsely spoken of a person -which impute that the party is infected with some infectious disease, -where, if the charge is true, it would exclude him from society; (3) -defamatory words falsely spoken of a person which impute to the party -unfitness to perform the duties of an office or employment of profit -or the want of integrity in the discharge of his duties of such office -or employment; (4) defamatory words falsely spoken of a party which -prejudice such party in his or her profession or trade." - -The damages may be either nominal, one dollar is often given in such -cases, or compensatory, larger damages, as a punishment. The amount -rendered is within the province of the jury, but courts do not -hesitate to modify or set aside verdicts which are deemed excessive or -too meager. - -The defenses in such actions may be briefly described. The truth of -the charge is a complete defense to a civil action for slander or -libel, because "the law will not permit a man to recover damages in -respect to an injury to a character which he either does not or ought -not to possess." A privileged communication is another defense. The -heads of the executive departments of government are absolutely -privileged for defamatory statements made by them while acting within -the limits of their authority. Their motives do not become the subject -of inquiry in a civil suit for damages. Judicial officers are shielded -by this rule while discharging their duties. The publication of -judicial proceedings is conditionally privileged. The condition is -that the proceedings are public, are decent and fit for publication, -that the reports are full and fair, and that their publication is not -inspired by malice. Says Burdick: "The reports of such proceedings are -usually made without reference to the individuals concerned, and for -the information and benefit of the public. The law, therefore, -presumes that they are made in good faith." The full and fair reports -of parliamentary and legislative proceedings are also conditionally -privileged as well as the reports of judicial proceedings, and for the -same reasons. The publication of the proceedings of quasi public -bodies, like state, medical, and ecclesiastical societies has been -deemed conditionally privileged. But "professional publishers of news -are not exempt, or a privileged class, from the consequences of damage -done by false news. Their communications are not privileged merely -because made in public journals." Statements rendered by mercantile or -collection agencies to inquirers for business purposes are clearly -privileged. But whether the circulation among all their subscribers of -a sheet containing such statements is privileged is a disputed -question among the courts. Again, every statement made with the -object of protecting some interest of the writer or speaker and which -is reasonably necessary for such purpose is conditionally privileged. -Fair comment is another defense. The most frequent subjects of fair -comment from which spring actions for defamations are the character -and conduct of public men or candidates for office; and literary, -artistic, or commercial productions offered to the public. Whether a -particular statement is an unfair aspersion of one's personal -character, or a fair comment on his public conduct, is a question -usually for the jury. - -At common law a defamer could not insist on an opportunity to retract -or apologize, but he could give in evidence any apology or retraction -to lessen the damages. This rule has formed the basis of a statute in -some of the states. Though attacked on constitutional grounds, it has -been sustained in Minnesota, North Carolina and perhaps in other -commonwealths. Where it can be made, the apology and retraction must -be full, fair, prompt. - -Passing to private nuisances, a wrong or tort consists in wrongfully -disturbing one in the reasonably comfortable use and enjoyment of his -property. Ordinarily the motive of the wrongdoer is not material in -determining his maintenance of a nuisance. Some things and trades are -considered as nuisances of themselves, for example, a slaughter house -in a large town, a pigsty near a dwelling house, a house of ill fame, -the fouling of a spring, well or stream; keeping a large quantity of -explosives near a public dwelling, or animals or other property -dangerous to human life. Likewise, a hospital that operates to destroy -the peace, quiet and comfort of those in adjoining residences, affects -their health and value of their property is a private nuisance, -against which action may be taken for its removal or abatement. Public -cemeteries come under the same ban. They will not be adjudged a -nuisance simply because they offend the fancy, delicacy, or -fastidiousness of neighbors, or even depreciate the value of adjoining -property. - -When a business is carried on, structures are erected, or excavations -are made which are nuisances, the actor is liable in damages for them -whether he exercised due care in constructing and maintaining them or -not. The same rule applies to the owner or keeper of a savage and -dangerous animal. - -Acts of discomfort that amount to a nuisance are such as produce this -effect to persons of ordinary sensibility who live in the locality -where the nuisance exists. Noises, odors, smoke, or dust may -constitute an actionable nuisance in one locality and not in another. -If the nuisances are from ordinary musical instruments in the dwelling -of a neighbor, or from his children, yet are only of a kind that may -be expected in such a neighborhood, they must be borne, unless -prohibited by law. On the other hand, the same amount of noise caused -by horses in the basement of an adjoining house is an actionable -nuisance. - -A temporary annoyance is quite another thing. The erection of an iron -building near a dwelling might, during the period of construction, -cause great noise and discomfort, yet the occupier of the dwelling -would have no remedy. But there is a limit to the conduct of the -annoyer. He must act reasonably. He cannot blast rock, or hammer -metal, or operate noisy steam drills at all hours of the day and -night. He must conform to the habits of the community, and not -unreasonably disturb his neighbors, during ordinary working hours. -There is a distinction also between acts that annoy and those that -injure adjoining property. Generally acts of the latter kind are -actionable. If one fixes his residence near a nuisance, formerly he -had no remedy. This is no longer the law. When, however, a court is -asked to enjoin or stop a useful and lawful business in a place, the -court will inquire whether the business has long existed and the place -has grown up by reason of its existence. If this prove to be the case -a court will reluctantly interfere. Yet, if the business is actually -harmful to health or injurious to property, it will be enjoined -however great the loss may be to the owner. - -While a land owner is not liable for a nuisance created on his land by -a stranger, whose acts cannot in any way be attributed to him, he is -liable for a nuisance resulting from a licensee's use of his property. -Thus, if a licensee by attaching a wire to a chimney converts it into -a nuisance to passers-by, the land owner who knowingly permits the -nuisance to continue will be liable for the damages that result. Nor -can one who has fouled a stream or the air, or who indulges in -disturbing noises, defend himself for doing these things by showing -that others did them before he began. - -As a person acts at his peril in maintaining a nuisance, so is the -owner of trespassing cattle liable for all the harm done by them, -whether he knows of their disposition to do harm or not. But he is not -liable for harm done by them while they are driven along the highway -without negligence on the driver's part; nor is he liable for mischief -done by them to the person or personal property of one at other times -without knowledge of their viciousness or other proof of negligence. -Nor is he liable by the common law as an insurer against all damage -done by them when they escape from his land. - -When vicious animals are kept for any purpose and are a menace to -human beings they are a nuisance. Hence, they may be killed without -incurring liability, and should they do damage their owner or -responsible keeper must answer for it. If the animal be a vicious dog, -the owner must exercise a degree of care commensurate with the danger -to others following his escape from custody, and must secure it from -injuring anyone who does not unlawfully provoke or intermeddle with -the animal. - -By the early common law a person who started a fire, even for a -needful and lawful purpose, was responsible for the consequences. This -rule has been modified with time. "A person," says Burdick, "does not -start a fire on his land at his peril. If it spreads beyond his -premises and harms others his liability for the harm must be grounded -on his negligence. The same is true of his liability for electricity -escaping from his control. In both cases the care he must exercise in -guarding the dangerous element varies with the hazard to which it -exposes others." - -The liability of a person who keeps explosives is not absolute, unless -he is maintaining a nuisance. Otherwise he is liable only when -negligent. If he is ignorant of the character of the explosive, and -without fault in not knowing, his duty of care is fixed by the -apparent character of the article. Suppose a carrier was carrying a -trunk containing an explosive of which he had no knowledge or reason -for supposing was there, surely he would not be held liable if it -exploded and caused injury. - -The liability of a manufacturer, seller, lender, or user of things is -not that of an insurer in making, selling, lending or using them. But -he does incur liability whenever he fails to exercise such care as is -fairly needful to protect others against the hazard in buying and -using them. A druggist, therefore, who affixes a wrong label to a -bottle of medicine and thereby injures a person who uses it is -responsible. And the rule would apply whether the taker was the -purchaser or some other person. - -When persons are invited on one's premises for mutual advantage, the -inviter owes the duty of ordinary care. He is not an insurer of their -safety, nor need he exercise extraordinary care in guarding them from -harm, unless there was unusual danger. Suppose a man had a way which -persons used in going to and from his business, and he began to dig a -well near the way and left the place unprotected during its -construction, undoubtedly the owner would be liable. Suppose the well -was a considerable distance from the way where persons did not usually -go and had no occasion for going. Then he would not be liable. How far -away from the road could he dig without thought of the public? The -answer would depend on the facts in the case. - -A somewhat different rule has been applied to children. Although a -child of tender years who meets with an injury on the premises of a -private owner may be a technical trespasser, yet the owner may be -liable, if the things causing the injury have been left exposed and -unguarded, and are of such a nature as to be attractive to children, -appealing to their childish curiosity and instincts. Unguarded -premises, which are thus supplied with dangerous attractions, are -regarded as holding out implied invitations to children. There has -been a great deal of controversy over this important rule. Those -opposed say, if everywhere applied, it would render the owner of a -fruit tree, for example, liable for damages to a trespassing boy who, -in attempting to get the fruit, should fall from the tree and be -injured. Professor Burdick, after a full review of the cases, says -that the tide of judicial opinion is setting the other way. Children, -therefore, who invade the premises of a person without any right are -trespassers like older people. The duty of caring for children remains -with their parents and guardians; and if they are injured while -unlawfully going on the land of others their parents cannot visit the -consequences of their neglect on the owners of the land where the -injuries happened. - - -=Warranty.=--The law, assuming that the purchaser knows or can find -out the quality and worth of things, does not make an implied warranty -of them generally. The legal maxim is, "Let the purchaser beware." He -must take care of himself. In many cases, though, he does obtain a -warranty. He must, however, distinguish between this and a mere -representation. It may be difficult to draw the line always, but it -exists. A statement that is not intended as a warranty, made simply to -awaken the buyer's interest in the thing for sale, is not a warranty. -Nor does the law imply a warranty from the payment of a full price. -Formerly, when a commodity was adulterated, it could be returned, and -the courts became sorely troubled to defend an adulteration. More -recently, statutes have cleared away the difficulty, and are a great -protection to buyers. In many cases, doubtless, they know more about -the quality and condition of the things they buy than the -inexperienced salesmen who are behind the counters, so they need no -protection from the law; when they do need it a warranty may serve a -good purpose. In articles concerning which the seller does possess a -superior knowledge, precious stones, drugs, medicines, and the like, -the modern law has raised an implied warranty for the buyer's -protection. In this class of cases the buyer and seller do not deal on -equal terms. The vendor is professedly an expert. - -In a sale of food there is no longer an implied warranty of fitness, -unless the buyer expressly or by inspection acquaints the seller with -the purpose of the purchase and unless it appears that the buyer -relies on the seller's skill and judgment. Even then, if the buyer has -examined the goods and has discovered a defect, there is no warranty. -The burden of showing that he has made known his purpose and that he -has relied on the seller is on the purchaser who claims the existence -of an implied warranty. - -There is another implied warranty, that of the seller's title, when he -is in possession of the goods. This is limited to persons who are -acting for themselves, and not agents, trustees, officers of the law, -who are acting for others. An innocent purchaser of goods, therefore, -for a good consideration obtains a good title, even from a vendee who -has obtained them by fraud, as against the original vendor. This rule, -though very broad, does not prevent a lawful owner from recovering his -property. Thus, if a farmer's oxen were stolen and the thief should -sell them as his own, and the purchaser should pay for them, -nevertheless the farmer could recover them. The only exception to this -rule is negotiable paper. This is made in order to surround it with -greater protection. - -Where goods are sold by sample there is a warranty that the goods will -be like the sample, but there is no warranty of the sample itself. In -one of the well-known cases hops were sold by sample, and after the -hops had been delivered the discovery was made that they had been -injured by heating. The buyer sued though failed to recover anything, -for it was proved that they were like the sample, which had been shown -several months before, and at that time the heating had not begun. As -they were sold at the earlier period, their condition at the time of -the delivery did not affect the sale. See _Deceit_; _Sale_. - - -=Will.=--A will is a disposition of one's property to take effect -after his death. He is called a testator, and must possess a sound -mind to make an effective will. He must be able to comprehend what he -is doing. Wills are often contested on the ground that the testator's -mind was feeble and that undue influence was exercised over him in -disposing of his property. Married women can make wills like their -husbands and so can a minor in many states. - -All of the states have enacted statutes on the subject which require -various things; one of the most important is the witnessing of wills. -Generally, three witnesses are required. An eminent judge, not long -since, made a will to please his wife leaving a large sum to found an -institution. He was opposed to the thing. The astute judge had no -witnesses, so he both fooled his wife and pleased himself, for his -will was worthless. The statutes require the witnesses to sign in the -testator's presence, who often give important testimony of his -competency whenever his will is contested. As they may be called for -this purpose, intelligence should be used in selecting persons to -become witnesses. A witness who is competent at the time of signing -does not become incompetent by reason of anything that may happen to -him afterward. A witness should not be given anything in the will, -for, if this is done, his act of witnessing in perhaps all the states -violates the gift. Though this may be the consequence the rest of the -will is not thereby impaired. The property given is either real or -personal. Real property consists of land extending indefinitely upward -and downward, every building thereon, every growing thing, likewise -all minerals and in some cases even ice. Personal property includes -everything of a movable nature. A transformation is often effected. A -tree while standing on the land is a part thereof; cut down it becomes -personal property. - -A will should be in writing; and this in most states is a statutory -requirement, to guard against the wrongs and frauds that might -otherwise arise. A testator may write his own will, indeed to do so -would be a good test of will-making capacity. If he is unable to write -his name, he may make his mark. When this is done, there should be -ample proof that he did so, for a mark can be so easily made by any -one. - -A person to whom real estate is given is called a devisee; the -receiver of personal property a legatee. When the testator gives real -estate he must have regard to the laws of the state where it is -situated; in giving personal property he is governed by the law of the -state where he resides, his domicil. Many a devise has been declared -invalid, because the testator in devising it did not comply with the -law of the state where the land was located. - -The principal ground on which wills are attacked is feebleness of -mind, lack of mental capacity. The question assumes this form: did the -testator at the time he executed his will have sufficient mental -capacity to do it. An eminent jurist, Chief Justice Redfield, has said -that he must have undoubtedly sufficient active memory to perceive the -more obvious relations of things to each other. Even if unable to -manage his business, he can nevertheless make a will if he knows what -he is doing. - -Again an insane person may make a will provided this is done during a -lucid interval. Many a person is insane only at times or on particular -subjects and therefore may be competent to make a rational disposition -of his property. Some persons have curious religious beliefs, -prejudices against persons, governments and institutions, and yet -these vagaries may not impair their capacity to dispose of their -property in a legal and rational manner. - -Another requirement of a testator is that he must declare in the -presence of the witnesses that it is his last will and testament. This -is called a publication of the will. Of course, his will must be -completed when this is done. Suppose a person makes several wills, -which one of them is effective? The last one. A will should be dated, -suppose this has been forgotten, what then? The last will must be -established, if possible, by other evidence. Suppose it is believed -that the last will has been destroyed, and a prior will is found, can -this be set up as establishing the testator's disposition of his -property? It is not his last will, for he has made another. - -Any person may be a devisee or legatee including married women, minors -and corporations. If a bequest is made to a corporation not in -existence, is it valid? By some courts this can be done, by others -this power is denied to a testator. Many a well-meant bequest to a -noble charity has been smitten down because there was no legal donee -then existing to receive the gift. A testator may bequeath property -to a trustee who shall select the objects of the testator's bounty. - -The thing bequeathed must be described with sufficient clearness to -identify it, nothing more is required. In some cases proper evidence -may be used to identify things where the description in the will is -ambiguous. - -A devise of lands may consist of the entire estate or interest of the -testator, or he may give the devisee a lesser interest in them. It is -a common thing for a testator to devise the use of land to a person -during his lifetime, and after his death the entire interest or fee to -another. He usually adds a final or residuary clause to his will to -the effect, that all he may have which has not been bequeathed to any -one specifically shall be given to one or more persons or objects -named in his will. Or, if a legacy shall lapse, that is, the person to -whom it has been given shall die, or for any other reason cannot, or -will not take it, it falls into the residuary portion and goes to the -residuary legatee. - -If a will does not contain such a clause, and there is no statute in -the way, then a lapsed legacy or other property, not covered by the -will, goes to such persons as the law has prescribed whenever persons -die leaving no will, or, in legal language, die intestate. - -A will takes effect from the testator's death and so does the validity -of all the bequests. Thus, should a person mentioned as legatee die -before the testator, the legacy would be invalid. But many or all of -the states have provided by statute for the continuation of these in -many cases. Thus, should a son, to whom his father has devised some -land, die leaving children, they take it in place of their father. -These statutes vary much, some limiting the substitution to the -lineal heirs of the deceased, son, grandson, etc., others extending -the substitutes to the collateral heirs of any devisee or legatee. - -Again, by statute and common law a wife is entitled on the death of -her husband to a specific portion of his property. Should he not give -her as much by his will, unless he had made an agreement with her -before marriage with respect to what she was to receive, she may -renounce her rights under her husband's will and claim what the law -would give her as if he had made no will. - -A will can be revoked any time. The common way is to destroy it. -Another way is to dispose during his lifetime of his property. In one -of the cases a testator had indorsed on his will in his own -handwriting "canceled." Though this was not signed, it was held to be -a revocation. In another case a blind testator called for his will -which was handed to him. He gave it back with the direction to put it -in the fire. Instead of doing so another piece of paper was -substituted and burned. This was a downright fraud, and the court -justly held that the will had been revoked. - - -=Workmen's Compensation Acts.=--Who is entitled to compensation by -these acts? The proper test to apply is, whether the employer -possessed the power to control the other while at work at the machine -or other thing from which the injury arose. Says Honnold: "In the -ordinary acceptance of the term, one who is engaged to render services -in a particular transaction is not an employee; the term employee -embracing continuity of service and excluding those employed for a -single and special transaction. It does not usually include -physicians, pastors or professional nurses. It may, however, include -those not engaged in manual labor, such as a school-teacher. The fact -that a workman furnishes tools and materials, or undertakes to do a -specified job will not prevent his being an employee. A deaconess, -living and working in a hospital and receiving an annuity to cover -clothing and expenses, is not an employee of the hospital," nor is an -employee of a religious home for the aged who works around the house -for which he is not paid any fixed amount. A director of a bank is not -an employee within the meaning of the acts under consideration. - -To be an employee there must be a contract of service. This is not the -same thing as a contract for services. By the latter relationship one -is an independent contractor and excluded from the acts. The contract -of service need not be actually made, it may be implied, for example, -the case of a substitute who is engaged by an employee in accordance -with custom. A contract of service is not created by the relation of -landlord and tenant, carrier and passenger, bailor and bailee, nor by -professional service, nor by forming a partnership, nor by performing -manual labor beyond the employer's control. Whether a contract of -service arises from charitable work depends on the circumstances of -the particular case. State employees are within these acts in some -states, and excluded in others, likewise municipal employees. By the -federal act the term "laborer" is used to designate men who do work -that requires but little skill as distinguished from an artisan who -practices an industrial art. The act includes a storekeeper, an -inspector who performs no manual labor, a messenger in the government -printing office, the master of a dredge, the matron of an Indian -school, a transit man, a surveyor, a clerk engaged in office work, an -assistant veterinarian, a laboratory assistant, a dock master. - -Compensation legislation is not limited to healthy employees. One's -previous physical condition is of no consequence in determining the -amount of relief to be afforded. Nevertheless, it is a circumstance to -be considered in ascertaining, when one has been injured, whether the -injury resulted from the work or from his health. - -In some of the compensation acts minors are excluded, in other acts he -is protected by them. An apprentice who is qualifying himself to -operate an elevator is an employee within the Minnesota Act. Many of -the acts provide that the term employee shall include every person in -the service of another under any contract of hire, except one whose -employment is casual, or is not in the usual course of the trade, -business profession or occupation of his employer. - -Farm laborers are outside these acts in some states. Thus, in -Massachusetts "the workmen's compensation act was not intended to -confer its advantages upon farm laborers, or to impose its burdens -upon farmers." But a farmer may adopt it if he desires. And any -contract of insurance made by him under its terms is valid and -enforceable. Such an exemption, however, does not except employees -working for one who is engaged in a commercial or other -non-agricultural enterprise though he be a farmer. Likewise, a farmer -carrying on a market garden may procure insurance covering his drivers -and helpers employed in distributing the produce of his farm without -insuring other employees who are merely farm laborers. The right to -compensation is determined by the character of the labor one is -actually doing when the accident occurs, rather than by the fact that -the employee occasionally does farm labor. Thus, plowing is usually -farm labor, but if it is done to make land ready for building a house -it is not. If a farmer does not avail himself of the act for all of -his employees, he may procure insurance for a limited portion of them. -"If there are those," says Chief Justice Rugg, "separable from others -by classification and definition, whose labor is more exposed and -dangerous, or whom he may desire to protect for any other reason, -there is nothing in the act to prevent him from doing so." - -Likewise, domestic servants are excluded by some of these acts, who -are they? "A household servant is one who dwells under the same roof -with the family under circumstances making him a member thereof." And -his status is determined rather by his relation to the family than by -his relation to the service. Thus, a workman who is hired to tend the -furnace, mow the lawn, and do odd jobs about the house, who has a room -therein and eats at the family table, is a household servant. On the -other hand, a chauffeur who is hired by the month to run the -employer's private automobile, but is not living as a member of the -family, is not a household servant. In many cases, however, he is one. -While it is doubtful whether the test of living in the employer's -house is the sole test of household service, it is essential that he -is engaged in rendering service in the house, such as cleaning, -cooking or washing. On one occasion, a porter in a saloon was sent -upstairs by the proprietor to wash the windows in the apartment where -the proprietor lived with his family. While thus engaged he fell to -the sidewalk and was injured. The court regarded him as a household -servant. - -Many of the acts exclude from their protection casual employees. This -term is a difficult one to define, and has been omitted in many of the -acts. Where this is done all employees engaged in the usual course of -the trade, business, occupation, or profession of their employer, with -some exceptions, receive compensation. Ordinarily, an employment is -casual when it is for a single day, or by the hour, but does not apply -to one who is employed to render a service that recurs with some -regularity. Thus, one who is employed as a workman in a sawmill on -such days as it was in operation for four months was not a casual -employee. Casual employment in the Connecticut act means occasional or -incidental employment. In California, if the length of employment is -less than a week it is casual, even though contrary to agreement the -employee took more than a week to do the work for which he was hired, -and which a skillful employee could have finished within a week. - -"The question whether an employment is casual must be determined with -reference to the scope and purpose of the hiring rather than with sole -regard to the duration and regularity of the service. One who enters -into a contract of employment for an entire season is not a casual -employee merely because he may be required to work for only short and -irregular periods." Thus, a longshoreman who is employed at a certain -sum per hour to help load a ship, having frequently rendered a similar -service on other occasions, is not a casual employee; nor is one who -keeps machinery and boats in order at an amusement park; nor is a boy -who is called at irregular intervals for service in a butcher's shop -when extra help is needed, or in the absence of a regular employee; -nor is one who is employed during a packing season to drive for a -packer whenever he is needed. - -The compensation law does not apply to independent contractors. It is -difficult, however, to draw the line in many cases. Generally, an -independent contractor is one who exercises an independent employment -and contracts to do a piece of work according to his own method, -without being subject to the control of the employer. A test that is -sometimes applied is, who has the right to direct what shall be done -and when and how, and who has the right of general control. When, -therefore, one exercises an independent employment, selects his own -help and has the control of them, and the method of conducting the -work, he is an independent contractor. Again, he may change his -relation for a time, and become an employee, or he may be a contractor -for a part of his service and an employee for a part. Thus, one who -was injured while operating a launch to bring supplies to a dredge for -his employer was an employee and not an independent contractor, though -he was one in conducting the work of dredging. Likewise, a physician -who is employed on a salary by another physician, who in turn is -serving a manufactory, is an employee of the latter and not an -independent contractor, though he is still engaged to some extent in -his own private practice. - -By the Federal act an employee must be "employed by the United States -to be entitled to its benefits." Thus, a plate printer in the bureau -of engraving and printing who is paid by the piece, and who bonds -himself and hires and pays his own help, also the owner of a power -boat chartered to the government and operated by the owner in its -service, are contractors, and not federal employees. A workman, -therefore, who is employed by a government contractor is not an -employee of the government. On the other hand, one who is employed and -carried on the pay rolls of the reclamation service, though working -for the contractor, is employed by the government, likewise, a workman -employed in the forest service who is working with others for county -supervisors who, in turn, are executing a contract with the -government. - -As public officers are not employees within the meaning of the -compensation acts, they may be distinguished from others who are -employees. Unless the statute says so, a policeman is not an employee -of the city which he serves, but an officer holding a public trust. On -the other hand, a night policeman or marshal is an employee by the -Wisconsin law. Firemen and deputy sheriffs on a fee basis are officers -rather than employees. - -The compensation acts secure compensation not only for injured -workmen, but should they die, to their dependents. Who then is a -dependent? "Dependency," says Honnold, "does not depend on an answer -to the question whether the alleged dependents could support -themselves without the earnings of the person who is no longer living, -but whether they were in fact supported in whole or in part by such -earnings intentionally by him. Occasional gifts do not prove -dependency, yet purely voluntary contributions may establish -dependency. Voluntary contributions of money, support or service by a -brother to a sister or by a sister to a brother are not complete -evidence of the dependency of either. Compensation cannot be awarded -to dependents who do not belong to the classes of relatives mentioned -in the statutes." - -The phrase, actual dependents, means dependents in fact whether they -are wholly or partially dependent. Partial dependency, giving a right -to compensation may exist though the contributions are at irregular -intervals and of irregular amounts, and the dependent has other means -of supporting himself. An employee contributed all of his earnings to -his mother who was partially dependent on him for support. Five other -children contributed to the family fund. It was held that the mother -was entitled to a weekly compensation equal to one half of the weekly -compensation of her deceased son. A dependent who is an alien living -in a foreign country is not debarred from receiving compensation. By -some of the acts such compensation to nonresidents is limited to a -father or mother. - -Children who are entitled to compensation as dependents include -stepchildren, illegitimate children, children adopted by the workman, -also posthumous, legitimate and illegitimate. - -The federal act provides that if the injured artisan or laborer die -within the year after his injury "leaving a widow, or a child or -children under sixteen years of age, or a dependent parent, they shall -be entitled to compensation." The word parent, while including both -parents, does not include a stepfather or a stepmother, or a foster -parent who has not been legally adopted. The question of dependence is -one of fact; contributions by the deceased tend to establish this, but -are not conclusive. The word child or children used in the act is not -limited to a child or children born in wedlock, but includes -illegitimate offspring, and children legally adopted. If an injured -workman dies before he has made application for or received -compensation, it may be paid from the date of the injury to the date -of his death, as well as for the remainder of the year to his widow or -family. - -The earnings of a workman are the basis for computing the amount of -compensation he is to receive for an injury. These include anything -that he receives for his labor that possesses a money value. In the -way of illustrating more clearly what he may receive the outline of a -section of the Massachusetts Act may be given. It provides what the -workman may receive when his injury is partial from the insurance -association which has become liable therefor. A weekly compensation -equal to one half the difference between his average weekly wages -before the injury and the average weekly wages which he is able to -earn thereafter; but not more than ten dollars a week, nor for a -longer period than three hundred weeks from the date of the injury. -Formerly, when injured, he received as compensation a sum fixed by -agreement between himself and his employer; and if they could not -agree, as often happened, then he sued his employer and the court -decided the amount the employer must pay. These suits were often -costly, long contested, and if the employee won his counsel often took -such a large share as to leave a disappointing amount to the employee. -On the other hand, many an employee magnified his injury, juries were -usually sympathetic, especially if the employer was a corporation, and -from the general dissatisfaction has been created the new system. - -Having stated in the most general way what the law provides for a -workman who has been injured, there remains the statement of what is -done when the workman dies from his accident. The Arizona law -illustrates this as well as any other. When he dies within six months -thereafter and leaves a widow, and a minor child or children -dependent on his earnings for support and education, then the employer -must pay to the personal representative of the deceased workman for -the benefit of the widow and children a sum equal to twenty-four -hundred times one half of the daily wages or earnings of the deceased, -not exceeding in any case more than four thousand dollars. If the -employer has insured the lives of his employees in an insurance -company, for which the acts quite generally provide, then of course -payment of the benefits are paid by the company to those who are -entitled to them. - -Some of the compensation acts provide compensation for both total and -partial incapacity resulting from injuries which do not prove fatal. -Thus the Connecticut act provides that loss of sight, the loss or -paralysis of certain physical members, and incurable imbecility or -insanity, resulting from the accident shall be "considered as causing -total incapacity." For these and all other injuries resulting in total -incapacity to work, there must be paid to the injured employee weekly, -while incapacitated, compensation equal to half of his earnings at the -time of the injury, for a maximum and minimum period. Another section -provides that in cases resulting in partial incapacity there must be -paid to the injured employee a weekly compensation during his -incapacity, equal to half the difference between his average weekly -earnings before the injury and the amount he is able to earn -thereafter with a maximum and minimum limitation of the amount within -a limited period. - - - - -Legal Forms for Everyday Use - - -1 - -Agreement for Sale of Land - -This agreement, entered into this ____ day of ________, 19__, by and -between A.B. and C.D., witnesseth: That said A.B. has this day sold to -C.D. the following described tract of land, to-wit: (describe) for the -sum of $________, to be paid as hereinafter set forth, and upon the -payment of which said A.B. agrees to convey to said C.D. the premises -above described, free and clear from all incumbrances, by a deed of -general warranty. - -And the said C.D. agrees to pay said A.B. for said premises the sum of -$________, as follows: $________ with interest at ____ per cent on the -____ day of ________, 19__; - -The said A.B. agrees that said C.D. shall have immediate possession of -said premises for the purpose of residence, cultivation, and -improvement. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - -2 - -Agreement Concerning Party Wall - -This agreement, made this ____ day of ________, 19__, by and between -A.B. and C.D., of the city of ________ ________, witnesseth: That, -whereas, the said C.D. is the owner of the house and lot on the south -side of ________ Street, second lot east of ________ Street, and the -said A.B. is the owner of the lot adjoining the same next easterly -thereof, on which said lot there now stands a party wall on a line -parallel with ________ Street; and forty-four feet easterly from said -________ Street; and, whereas, the said A.B. has erected his -dwelling-house several feet (one story) higher than the said C.D., -whereby greater advantage may accrue to the said A.B. from said party -wall. Now, therefore, the said C.D., in consideration of the sum of -$1, to him in hand paid, the receipt whereof is hereby acknowledged, -doth grant, covenant, promise, and agree with the said A.B., that he -may peacefully and lawfully enjoy such party wall, to himself, his -heirs, and assigns, the said C.D. reserving to himself the right to -use the said portion of the party wall built by the said A.B., -whenever he may wish to build higher than his house now is. - -It is further mutually understood and agreed, between the respective -parties, that this agreement shall remain so long as the houses last, -and shall pass to the heirs and assigns of the respective parties to -these presents. - -Witness our hands and seals, the day and year first above written. - - A.B. (L.S.) - C.D. (L.S.) - - -3 - -Agreement for Building - -This agreement, entered into this ____ day of ________, 19__, between -A.B. and C.D. witnesseth: That the said A.B. hereby agrees with the -said C.D. to erect for him on (describe land) a (dwelling-house) in -conformity with the drawing and detailed specifications of one E.F., -architect, the work to be performed in a substantial and workmanlike -manner, and with the best materials of their respective kinds, the -same to be furnished, together with all things necessary to erect and -complete said building, at the cost and expense of the said A.B., -payments to be made as follows: (specify terms) upon the certificate -of the architect, provided that said estimates shall not at any time -before the completion of said building exceed the basis of 85 per cent -of the value of the work so executed. - -And the said C.D. hereby agrees with said A.B. to pay to him the sum -of $________ for the erection and completion of said building in the -manner aforesaid, (monthly) estimates to be made by said E.F., -architect, of the amount then due to said A.B. thereon, upon the -presentation of which estimate said C.D. agrees to pay 85 per cent of -the same, the remaining 15 per cent to be retained until the -completion of said building. And on the completion of said work in the -manner aforesaid to the satisfaction of said architect, and upon the -presentation of his certificate to that effect, said C.D. agrees to -pay said A.B. the balance remaining unpaid on said contract, including -the fifteen per cent retained until the completion of the work. The -said A.B. further agrees to complete said building as aforesaid and -deliver the same to said C.D. on or before the ____ day of ________, -19__. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - -4 - -Claim of Lien by Workman of Sub-Contractor - -A.B. to C.D., Dr. - -June 1st, 19__. To twenty-five days' labor at carpenter work, at $5 -per day, upon the dwelling-house situated on lot B in block 350, in -the city ________, ________ county, ________, which services were -rendered on and before the 1st day of June, 19__, and then payable. - - (Signed) C.D. - - -5 - -Agreement for Work and Labor - -This agreement, entered into this ____ day of ________, 19__, by and -between A.B. and C.D., witnesseth: That the said A.B. agrees -faithfully to labor for C.D. for the term of (six) months from the -first day of ________, 19__, at farm labor, on the farm of said C.D., -in ________ county, and to perform such other services as may be -reasonable and just, for which services said C.D. agrees to pay said -A.B. the sum of $________ per month (on the ____ day of ________, -19__.) - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - -6 - -Bond to Perform a Contract - -Know all men by these presents, that, we A.B., as principal, and C.D., -as surety, are held and firmly bound unto E.F., in the sum of -$________, for the payment of which well and truly to be made we bind -ourselves jointly and severally by these presents. - -Dated this ____ day of ________, 19__. - -Whereas, said A.B. had, by an agreement of this date, contracted in -writing with said E.F. to (here describe the contract). - -Now, therefore, the condition of this obligation is such that if the -said A.B. shall do and perform all the stipulations and agreements -contained in said written contract then this obligation to be null and -void. Otherwise to remain in full force and effect. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - -7 - -Bill of Sale - -Know all men by these presents, that ________, of the first part, for -and in consideration of the sum of ________, lawful money of the -United States, to ________ in hand paid, at or before the ensealing -and delivery of these presents by ________, of the second part, the -receipt whereof is hereby acknowledged, ha____ bargained and sold, and -by these presents do grant and convey, unto the said part ________ of -the second part, ________ executors, administrators, and assigns -(description of property; or if detailed description is contained in -schedule annexed, say, the goods and chattels particularly described -in a schedule hereunto annexed and made a part of this instrument), to -have and to hold the same unto the said part ________ of the second -part, ________ executors, administrators, and assigns forever. And -________ do____ for ________ heirs, executors, administrators, -covenant and agree, to and with the said part ________ of the second -part, to warrant and defend the sale of the said property ________ -hereby sold unto the said part ________ of the second part, ________ -________ executors, administrators, and assigns, against all and every -person and persons whomsoever. - -In witness whereof, ________ have hereunto set ________ hand ________ -and seal ________ the ____ day of ________ in the year one thousand -nine hundred and ________. - - Sealed and delivered in the presence of - (Acknowledgment clause.) - - -8 - -Bill of Sale--Shorter Form - -Know all men by these presents, that I ________ of the county of -________, in the state of ________, do hereby bargain, sell, and -convey to said ________, the following described personal property -now belonging to me, to-wit: (describe in detail). And I hereby -covenant with said ________ ________, to warrant the title of said -property to said ________ against the lawful claims of all persons -whomsoever. - -In witness whereof I have hereunto set my hand this ____ day of -________, 19__. - - (Signed) - In the presence of ________ - - -9 - -Warranty Deed - -Know all men by these presents, that we ________, and ________, -husband and wife, in consideration of the sum of $________, in hand -paid, do hereby grant, bargain, sell, and convey to ________, of -________ county, ________, the following described real estate situate -in the county of ________, and state of Iowa, to-wit: (describe -premises), to have and to hold to his heirs and assigns forever. -Together with all the tenements, hereditaments, and appurtenances -thereto belonging. And we hereby covenant with said ________ that we -are lawfully seized of said premises; that they are free from -incumbrances; that we have good right and lawful authority to sell the -same, and we covenant to warrant and defend the same against the -lawful claims of all persons whomsoever. And the said ________, hereby -relinquishes her right of dower in said premises. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - In presence of ________ - ________ ________ - - State of ________} - ________ County. } - -On this ____ day of ________, 19__, before me, a justice of the peace -in and for said county, personally came the above named ________, who -are known to me to be the identical persons whose names are affixed to -the above deed as grantors, and severally acknowledge the instrument -to be their voluntary act, and deed. - -In witness whereof I have hereunto set my hand the day and year above -written. - - A.B. - Justice of the Peace. - - -10 - -Warranty Deed in Common Use in New England - -Know all men by these presents, that I, (the grantor) of (residence, -town or city, county and state), (occupation), in consideration of -(the amount paid) to me paid by (here name the grantee or purchaser, -giving in like manner his residence and occupation), the receipt -whereof is hereby acknowledged, do hereby give, grant, bargain, sell -and convey unto the said (name the grantee, and then describe the -premises granted, minutely and accurately):-- - -To have and to hold the above-granted premises, to the said (name the -grantee), his (hers or their) heirs and assigns, to his (or her or -their) use and behoof forever. And then, the said (name the grantor), -for (myself) and (my) heirs, executors, and administrators, do -covenant with the said (name of the grantee), and with his heirs and -assigns, that I am lawfully seized in fee simple of the aforegranted -premises; that they are free from all incumbrances (if there be any -incumbrances, as a mortgage or lien, or right of way, or drain, or -air, or light, say excepting, and then describe the incumbrance), that -I have good right to sell and convey the same to the said (name of the -grantee), and his (or her) heirs and assigns forever as aforesaid; and -that I will, and my heirs, executors, and administrators shall, -warrant and defend the same to the said (name of the grantee), and his -heirs and assigns forever, against the lawful claims and demands of -all persons. - -In witness whereof, I the said (name of the grantor) and (name of his -wife), wife of said grantor, in token of her release of all right and -title of or to dower in the granted premises, have hereunto set our -hands and seals this ____ day of ________ in the year of our Lord -________ - - (Signature) (Seal) - - Signed, Sealed, and Delivered in the Presence of - - -11 - -Deed of Indenture--Short Form - -This indenture, made the ____ day of ________, 19__, between ________ -(insert occupation and residence), of the first part, and ________ -(insert occupation and residence), of the second part, - -Witnesseth: That the said part____ of the first part, in consideration -of ________ dollars, lawful money of the United States, paid by the -part____ of the second part, do ____ hereby grant and release unto the -said part____ of the second part, ____h____ heirs and assigns forever -(description of land). Together with the appurtenances and all the -estate and rights of the part____ of the first part in and to said -premises. - -To have and to hold the above-granted premises unto the said part____ -of the second part, ____h____ heirs and assigns forever. - -And that said part____ of the first part do____ covenant with said -part____ of the second part, as follows: - -That the part____ of the first part will forever warrant the title to -said premises. - -In witness whereof, the said part____ of the first part ha____ -hereunto set ____h____ hand ____ and seal ____, the day and year first -above written. - - In the presence of - (Acknowledgment clause.) - - -12 - -Quit Claim Deed - -Know all men by these presents, that we, ________ and ________, -husband and wife, in consideration of the sum of $________, in hand -paid, do hereby sell and quit claim to ________ all our right, title -and interest in and to the following described real estate, situate in -the county of ________, and state of ________, to-wit: (describe -premises) to have and to hold the above described premises to the said -________, and his heirs and assigns forever. - -In witness whereof, we have hereunto set our hands this ________ day -of ________, 19__. - - In presence of ________ - ________ ________ - - State of ________} - ________ County. } - -On this ____ day of ________, 19__, before me, a justice of the peace, -in and for said county, personally came the above named ________, who -are known to me to be the identical persons whose names are affixed to -the above deed as grantors, and severally acknowledged the instrument -to be their voluntary act and deed. - -Witness my hand the date above given. - - A.B. - Justice of the Peace. - - -13 - -Quit Claim Deed--Another Form - -This indenture, made this ____ day of ________, in the year of our -Lord, 19__, between ________, of the first part, and ________, of the -second part, witnesseth: That the said part____ of the first part, in -consideration of the sum of ________ dollars, to ________, in hand -paid by the said part____ of the second part, the receipt whereof is -hereby confessed and acknowledged, ha____ bargained, sold, remised, -and quitclaimed, and by these presents do____ bargain, sell, remise, -and quitclaim unto the said part____ of the second part ________ and -to ________, heirs and assigns forever, all ________ together with all -and singular the hereditaments and appurtenances thereto belonging, or -in anywise appertaining, and the reversion and reversions, remainder -and remainders, rents, issues, and profits thereof, and all the -estate, right, title, interest, claim, and demand whatsoever, of the -said part____ of the first part, either in law or equity, of, in, and -to the above-bargained premises, with the said hereditaments and -appurtenances, to have and to hold the said ________ to the said -part____ of the second part, ________ heirs and assigns, to the sole -and only proper benefit and behoof of the said part____ of the second -part, ________ heirs and assigns forever. - -In witness whereof, the part____ of the first part ha____ hereunto set -________ hand ____ and seal ____, the day and year first above -written. - - Sealed and delivered in the presence of - (Acknowledgment clause.) - - -14 - -Quit Claim Deed--Short Form - -In consideration of $100, to me in hand paid by C.D., I, A.B., hereby -sell, grant, release, and quitclaim to said C.D., that certain lot -(here insert description). To have and to hold the said released -premises unto the said C.D., and his heirs and assigns forever. - - Witness my hand and seal, this ____ day of ________, 19__. - (Acknowledgment clause.) - - A.B. (L.S.) - - -15 - -Mortgage - -Know all men by these presents, that ________ and ________, husband -and wife, in consideration of the sum of $________, to us in hand -paid, do hereby grant, bargain, sell, and convey to ________ of -________, the following described real estate, to-wit: (describe -premises). Together with all the tenements and appurtenances thereunto -belonging. And we do hereby covenant with said ________ that we are -lawfully seized of said premises; and we will warrant and defend, the -same against the lawful claims of all persons whomsoever. - -Provided, however, and these presents are upon this express condition. -That whereas ________ on the ____ day of ________, 19__, executed and -delivered to ________ promissory notes, as follows: The first of said -notes for the sum of $________, with interest from date, is due and -payable ________, 19__, and the second of said notes for the sum of -$________ with interest from date, is due and payable on the ____ day -of ________, 19__. Now if said ________ shall pay said notes and -interest thereon, when they shall become due, then this conveyance -shall be null and void, otherwise to remain in force and effect. - -In witness whereof we have hereunto set our hands this ________ day of -________, 19__. - - In presence of ________ - ________ ________ - -Acknowledgment as to deed. - - -16 - -Mortgage with Power of Sale - -This Indenture, made the ____ day of ________ in the year ________ -between ________ (name, residence, and occupation of mortgagor) party -of the first part, and ________ (name, residence, and occupation of -mortgagee) party of the second part, Witnesseth: That the said party -of the first part, in consideration of the sum of (the amount of the -debt) to him duly paid before the delivery hereof, has bargained and -sold, and by these presents does grant and convey to the said party of -the second part, and his heirs and assigns forever, all (here describe -the premises minutely and accurately) with the appurtenances, and all -the estate, right, and title, and interest of the said party of the -first part therein. - -This grant is intended as a security for the payment of (here describe -the debt) which payments, if duly made, will render this conveyance -void. And if default shall be made in the payment of the principal or -interest above mentioned, then the said party of the second part, or -his executors, administrators, or assigns, are hereby authorized to -sell the premises above granted, or so much thereof as will be -necessary to satisfy the amount then due with the costs and expenses -allowed by law. - -In witness whereof, the said party of the first part has hereunto set -his hand and seal the day and year first above written. - - (Signature) (Seal) - - Sealed and delivered in the presence of - STATE OF } - COUNTY OF } SS. - -On the ____ day of ________ in the year one thousand nine hundred and -________ before me personally came (name of mortgagor) who is known to -me to be the individual described in, and who executed the foregoing -instrument, and acknowledged that he executed the same, as his free -act and deed. - - -17 - -Chattel Mortgage with Power of Sale - -Know all men by these presents, that I, A.B., in consideration of the -sum of $________ paid by C.D., have bargained and sold, and by these -presents do hereby sell and convey to said C.D. the following goods, -and chattels, to-wit: (describe the articles mortgaged, or refer to -them as the goods and chattels mentioned in the schedule hereto -annexed), and which is now in my possession. - -Whereas, the said A.B. is justly indebted to C.D. in the sum of -$________, payable on the ____ day of ________, 19__, with interest at -ten per cent from the ____ day of ________, 19__ (upon a promissory -note of even date herewith, or for goods sold and delivered). - -Now the condition of the above obligation is such that if the said -A.B. shall well and truly pay said C.D. said sum of money and interest -when the same shall become due, then this conveyance shall be void, -otherwise to remain in full force and effect. It is also agreed that -said A.B. may retain possession of the said mortgaged property until -said debt becomes due. But if default be made in the payment of said -sum or any part thereof, the said C.D. and his assigns are hereby -authorized to sell said goods and chattels, or so much thereof as will -be necessary to satisfy the amount then due, together with the costs -and expenses incurred by reason of said default. - - (Signed) A.B. - In the presence of E.F. - - -18 - -Mortgage on Goods and Chattels--Another Form - -Know all men by these presents, that A.B., residing at ________, of -the first part, for securing the payment of the ________, hereinafter -mentioned, and in consideration of the sum of $1, to ________ in hand -paid, at or before the ensealing and delivery of these presents, by -C.D., of the second part, the receipt whereof is hereby acknowledged, -ha____ granted, bargained, sold, and assigned, and by these presents -do ____ grant, bargain, sell, and assign unto the said part____ of -the second part, all ________ now remaining and being ________. - -To have and to hold, all and singular, the goods and chattels above -bargained and sold, or intended so to be, unto the said part____ of -the second part, ________ executors, administrators, and assigns -forever. And the said part____ of the first part, for ________ heirs, -executors, and administrators, all and singular, the said goods and -chattels above bargained and sold unto the said part____ of the second -part, ________ executors, administrators, and assigns, against the -said part____ of the first part, and against all and every person or -persons whomsoever shall and will warrant, and by these presents -forever defend. - -Upon condition, that if the said part____ of the first part shall and -do well and truly pay, or cause to be paid, unto the said part____ of -the second part, ________ executors, administrators, or assigns, the -sum of ________, then these presents and everything herein contained -shall cease and be void. And the said part____ of the first part, for -________ executors, administrators, and assigns, do ________ covenant -and agree to and with the said part____ of the second part, ________ -executors, administrators, and assigns, to make punctual payment of -the money hereby secured ________. And in case default shall be made -in payment of the said sum above mentioned, or in case the said -part____ of the second part shall sooner choose to demand the said -goods and chattels, it shall and may be lawful for, and the said -part____ of the first part do ________ hereby authorize and empower -the said part____ of the second part, ________ executors, -administrators, and assigns, with the aid and assistance of any person -or persons, to enter and come into and upon the dwelling-house and -premises of the said part____ of the first part, and in such other -place or places as the said goods and chattels are or may be held or -placed, and take and carry away the said goods and chattels to sell -and dispose of the same for the best price they can obtain, at either -public or private sale, and out of the money to retain and pay the -said sum above mentioned, with the interest and all expenses and -charges thereon, rendering the overplus (if any) unto the said -part____ of the first part, ________ executors, administrators, and -assigns. And until default be made in the payment of the aforesaid sum -of money, the said part____ of the first part to remain and continue -in quiet and peaceable possession of the said goods and chattels, and -the full and free enjoyment of the same, unless the said part____ of -the second part, ________ executors, administrators, or assigns, shall -sooner choose to demand the same; and until such demand be made, the -possession of the said part____ of the first part shall be deemed the -possession of an agent or servant, for the sole benefit and advantage -of his principal, the said part____ of the second part. - -In witness whereof, the said part____ of the first part, ha____ -hereunto set ________ hand ____ and seal ________ this ____ day of -________, 19__. - - Sealed and delivered in the presence of - ________ County of ________ss.: - -On this ____ day of ________, 19__, before me came ________, to me -known to be the person____ described in and who executed the foregoing -instrument, and ________ acknowledged that ____ he ________ executed -the same. - - -19 - -Notice of Sale under Chattel Mortgage - -Notice is hereby given that by virtue of a chattel mortgage, dated on -the ____ day of ________, 19__, and duly filed in the office of the -county clerk of ________ county, ________ on the ____ day of ________, -19__, and executed by A.B. to C.D. to secure the payment of the sum of -$________, and upon which there is now due the sum of $________. -Default having been made in the payment of said sum, and no suit or -other proceeding at law having been instituted to recover said debt or -any part thereof, therefore, I will sell the property therein -described, viz.: (here describe the articles substantially as in the -mortgage) at public auction at the house of ________, in the (city, -town, or precinct) of ________, in ________ county, on the ____ day of -________, at one o'clock P.M. of said date. - - C.D. - Mortgagee. - -Dated ____, ________, 19__. - - -20 - -Assignment of Mortgage - -This instrument, made this ____ day of ________, 19__, between -________, of the first part, and ________, of the second part, -witnesseth: That the part____ of the first part, for a good and -valuable consideration, to ________ in hand paid by the part____ of -the second part, ha____ sold, assigned, transferred, and conveyed, and -do____ hereby sell, assign, transfer, and convey to the part____ of -the second part, a certain mortgage, bearing date the ____ day of -________, 19__, made by ________, recorded in the clerk's office of -________ county, in liber ________, of mortgages, at page ________, on -the ____ day of ________, 19__, at ____ o'clock ____m., together with -the bond accompanying said mortgage, and therein referred to, and all -sums of money due and to grow due thereon. And the part____ of the -first part hereby covenant that there is ________ due on the said bond -and mortgage the sum of ________. - -In witness whereof, the part____ of the first part ha____ hereunto set -________ hand ____ and seal ____ the day and year first above written. - -(Assignment clause.) - - -21 - -Agreement for Lease - -This is to certify that I have, on this 1st day of ________, 19__, let -and rented to C.D., lot ________, in block ________, in the city to -________, ________, together with the dwelling-house thereon, with all -the appurtenances, and the sole and uninterrupted possession thereof -for one year from this date, at the yearly rent of $________, payable -quarterly in advance; rent to cease in case of the destruction of the -premises by fire. - - (Signed) A.B. - - -22 - -Lease - -This agreement, entered into this first day of ________, 19__, between -A.B. and C.D., witnesseth: That the said A.B., in consideration of the -covenants of the said C.D., hereinafter set forth, does hereby lease -to the said C.D., from the first day of ________, 19__, to the ____ -day of ________, 19__, the following described property, to-wit: (The -southeast quarter of section 15, in township 12 north, range 14 east -of 6th principal meridian). And the said C.D., in consideration of the -leasing of the premises as above set forth, does hereby covenant and -agree to pay said A.B. the rent following, to-wit: (Insert terms and -mode of payment). The said C.D. also covenants with the said A.B. that -he will cultivate said land in a good and husband-like manner; that he -will keep said premises in as good a condition as they now are; the -usual wear and incidents by fire excepted, and that he will yield -peaceable possession of the same to said A.B. at the expiration of -said term. - -In witness whereof we have hereunto set our hands this ________ day of -________, 19__. - - A.B. - C.D. - -In presence of E.F. - - -23 - -Lease--Another Form - -Landlord and Tenant's Agreement - -This instrument, made and executed this ____ day of ________, 19__, -between ________, of the ________, part____ of the first part, and -________, of the ________, part____ of the second part, witnesseth: - -That the part____ of the first part ha____ hereby let and rented to -the part____ of the second part, and the part____ of the second part -ha____ hereby hired and taken from the part____ of the first part, -________ for the term of ________ years ________ ---- to commence the -____ day of ________, 19__, at the yearly rent of ________ dollars, -payable ________. And the part____ of the second part hereby -covenant____ to and with the part____ of the first part to make -punctual payment of the rent ________ in the manner aforesaid, and -quit and surrender the premises at the expiration of said term, in as -good state and condition as they are now in, reasonable use and wear -thereof, and damages by the elements excepted, and further -covenant____ that ____he____, the part____ of the second part, will -not use or occupy said premises for any business or purpose deemed -extra hazardous on account of fire. - -And further covenant____ that ____he____, the part____ of the second -part, will not assign this lease or underlet the said premises, or any -part thereof, to any persons whomsoever, without first obtaining the -written consent of said part____ of the first part, and in case of not -complying with this covenant, the part____ of the second part -agree____ to forfeit and pay to the part____ of the first part the sum -of ________ dollars, as and for liquidated damages which are hereby -liquidated and fixed as damages and not as a penalty. - -This lease is made and accepted on this express condition, that in -case the part____ of the second part should assign this lease or -underlet the said premises, or any part thereof, without the written -consent of the part____ of the first part, that then the part____ of -the first part, his heirs or assigns, in his option, shall have the -power and the right of terminating and ending this lease immediately, -and be entitled to the immediate possession of said premises, and to -take summary proceedings against the part____ of the second part, or -any person or persons in possession as tenant, having had due and -legal notice to quit and surrender the premises, holding over their -term. - -It is further agreed between the parties, that in case said premises -should be destroyed by fire before or during said term, that then this -lease is to cease and determine; the rent ________ to be paid up to -that time. - -In witness whereof, the parties have hereunto set their hands and -seals the day and year first above written. - - In the presence of - ________ ________ - ________ - - -24 - -Farm Lease - -This indenture, made the ____ day of ________ in the year of our Lord, -19__, between A.B., of the city of ________, party of the first part, -and C.D., of the same place, party of the second part, witnesseth: - -That the said party of the first part, in consideration of the rents, -covenants, and agreements hereinafter mentioned, reserved, and -contained on the part of the said party of the second part, his -executors, administrators, and assigns, to be paid, kept, and -performed, has demised and to farm let, unto the said party of the -second part, his executors, administrators, and assigns, all (insert -description), with the appurtenances, unto the said party of the -second part, his executors, administrators, and assigns, from the ____ -day of ________, 19__, for the term of ten years then next ensuing, -yielding and paying therefor, unto the said party of the first part, -his heirs or assigns, yearly and every year during the said term -hereby granted, the yearly rent or sum of $________, in equal -half-yearly payments, to-wit: on the 1st days of October and April in -each and every year; provided, that if the yearly rent above reserved, -or any part thereof, shall be unpaid on any day of payment whereon the -same ought to be paid as aforesaid; or if default shall be made in any -of the covenants or agreements herein contained, on the part of the -said party of the second part, his heirs or assigns, to re-enter upon -the said premises, and the same to have again, as in their first and -former estate. - -And the said party of the second part does covenant and agree, with -the said party of the first part, his heirs and assigns, that he, the -said party of the second part, his executors, administrators, or -assigns, will yearly and every year during the said term, pay unto the -said party of the first part, his heirs or assigns, the yearly rent -above reserved, on the days and in manner limited and prescribed as -aforesaid, for the payment thereof, without any deduction or delay. -And that the said party of the second part, his executors, -administrators, or assigns, will, at his own proper costs and charges, -bear, pay, and discharge all taxes, duties, and assessments, as may, -during the said term hereby granted, be charged, assessed, or imposed -upon the said demised premises. And that on the determination of the -estate hereby granted, the said party of the second part, his -executors, administrators, or assigns, shall and will leave and -surrender unto the said party of the first part, his heirs or assigns, -the said demised premises in as good stage and condition as they are -now in, ordinary wear and damages by the elements excepted. - -And the said party of the first part does covenant and agree, with the -said party of the second part, his executors, administrators, and -assigns, that the said party of the second part, his executors, -administrators, and assigns, paying the said yearly rent above -reserved, and performing the covenants and agreements aforesaid on his -part, the said party of the second part, his executors, -administrators, and assigns, shall and may at all times during the -said term hereby granted, peaceably have, hold, and enjoy the said -demised premises, without any manner of trouble or hindrance of or -from the said party of the first part, his heirs or assigns, or any -other person or persons whomsoever. - -In witness whereof, the parties to these presents have hereunto set -their hands and seals. - -Sealed and delivered in the presence of - - ________ - A.B. (L.S.) - - -25 - -Lease of Furnished Rooms - -Memorandum. It is agreed by and between A.B. and C.D., as follows, -viz.: The said A.B., in consideration of the rent hereinafter -mentioned and agreed to be paid to him, hath letten to the said C.D. -one room, up two flights of stairs forward, part of the now -dwelling-house of the said A.B. situate on ________ Street, in the -city of ________, together with the furniture at present standing -therein--that is to say: (insert furniture). To hold to the said C.D. -for the term of two years, to commence from ________, 19__, at the -yearly rent of $100, to be paid quarterly to the said A.B. - -The said C.D., in consideration hereof, agrees to pay the aforesaid -yearly rent of $100, at the times above limited for payment thereof; -and at the end of the term, or in case of any default in the payment, -shall and will, on the request of the said A.B., or his assigns, -immediately yield and deliver up to him or them, the peaceable and -quiet possession of the said room, together with the whole furniture -he, from the first entrance thereon, there found and possessed, in -good, and sufficient plight and condition, reasonable wear and tear -only excepted. - -In witness whereof the parties have signed this agreement, this ____ -day of ________, 19__. - - A.B. - C.D. - - -26 - -Assignment of Lease - -For and in consideration of the sum of $________, to me in hand paid -by E.F., I hereby assign and transfer to said E.F. a certain lease, -bearing date ________, 19__, and made by A.B. to me, C.D., for -(describe the premises), together with all and singular the buildings -and appurtenances thereunto belonging, or in any wise appertaining, -subject, however, to the rents hereafter to accrue and the covenants -and conditions contained in said lease. - - C.D. - - -27 - -Assignment of Lease--Another Form - -Know all men by these presents, that I, A.B., the within-named lessee, -for and in consideration of $50, to me in hand paid by C.D., of the -town of Franklin, County of Albany, at and before the sealing and -delivery hereof, the receipt whereof I do hereby acknowledge, have -granted, assigned and set over, and by these presents do grant, assign -and set over, unto the said C.D., his executors, administrators, and -assigns, the within indenture of lease, and all that house and farm -therein described, with the appurtenances, and also my estate, right, -title, term of years yet to come, claim and demand whatsoever, of, in, -to, or out of the same. To have and to hold the said house and farm, -and the appurtenances thereof unto the said C.D., his executors, -administrators, and assigns, for the residue of the term within -mentioned, under the yearly rent and covenants within reserved and -contained, on my part and behalf to be done, kept and performed. - -Witness my hand and seal, this June 20, 19__. - - A.B. (L.S.) - - (Acknowledgment.) - - -28 - -Notice to Quit - -To C.D.: - -I hereby notify you to leave the premises now occupied by you, to-wit: -(Lot 8 in Block 144, in the city of ________, ________ county, -________.) If you fail to comply with this notice within three days -after its service, I shall instigate legal proceedings to obtain -possession of said premises. - - (Signed) A.B. - - -29 - -Subscription to Build a Church - -Whereas, the trustees of the church corporation, known as the "Church -of the Puritans," are about erecting a church edifice for such -corporation; now, we, the undersigned, for the purpose of such -erection, hereby agree to and with such trustees and to and with each -other, to pay to B.B., the treasurer of said corporation, the several -sums by us set opposite our several names, for the purpose of such -erection, and we hereby authorize and direct the said trustees to -expend such sums in the erection of the same. The said sums are to be -paid to the said treasurer on or before the 1st day of March, 1900. - - NAMES AMOUNT - A.B. $600 - C.C. 400 - - -30 - -Power of Attorney - -Know all men by these presents, that we ________ and ________, husband -and wife of the county of ________, and state of ________, have made, -constituted and appointed, and do hereby make, constitute and appoint -________ of the county of ________, and state of ________, our true -and lawful attorney for us and in our names, place and stead, to sell -and convey by a good and sufficient deed, with full covenants of -warranty the following described real estate, to-wit: (describe), -hereby giving and granting to our said attorney full power to do and -perform every act and thing necessary to be done in the premises as -fully as we could do if personally present, hereby ratifying and -confirming all that our said attorney shall do by virtue hereof. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - In the presence of ________ - ________ ________ - - State of ________} - ________ County. } - -On this ____ day of ________, 19__, before me, a justice of the peace -in and for said county, personally came the above named ________ and -________, who are known to me to be the identical persons whose names -are affixed to the above power of attorney as makers thereof, and -severally acknowledged the instrument to be their voluntary act and -deed. - -In witness whereof I have hereunto set my hand the day and year above -written. - - A.B. - Justice of the Peace. - - -31 - -Power of Attorney to Transfer Stock - -Know all men by these presents, that ________, for value received, -ha____ bargained, sold, and assigned, and by these presents do -bargain, sell, and assign unto ________, the following described -stock, to-wit: ________ unto ________, belonging and held by -certificate No. ________, in ________ name, and hereunto annexed, and -do hereby constitute and appoint ________, true and lawful attorney, -irrevocably, for ________, and in ________ name and stead, to ________ -use, to assign and transfer the said stock unto ________ and for that -purpose to make and execute the necessary acts of assignment and -transfer, and an attorney, or attorneys under ________, for that -purpose, to make and substitute, and to do all other lawful acts -requisite for effecting the premises, hereby ratifying and confirming -the same. - -In witness whereof ________ have hereunto set ________ hand ____ and -seal ____ in the city of ________, the ____ day of ________, in the -year of our Lord, 19__. - - State of Ohio, - City and County of ________ss.: - -On the ____ day of ________, 19__, personally appeared before me -________, to me known to be the person ________ described in, and who -executed the within instrument, and acknowledged the execution of the -same for the uses and purposes therein mentioned. - - -32 - -Certificate of Stock - -No. ________ No. of shares ________ - Par value of each, $________ - -The ________ Company: - -This is to certify that ________ is the owner of ________ ________ -shares of the capital stock of the ________ Company, transferable only -on the books of the company by the holder thereof, in person or by -attorney, on the surrender of this certificate. - -In witness whereof, the said company has caused its corporate seal to -be affixed, hereto, and this certificate to be signed by its president -and treasurer. - - ________, N.Y. ________, 19__. - ________ President. - ________ Treasurer. - -On back of the certificate a blank transfer, in following form, should -be printed. - - For value received, ________ hereby sell, assign, and transfer - unto ________ shares of the within-mentioned stock, and do - hereby constitute and appoint ________, attorney to transfer - the same on the books of the company. - - Witness my hand and seal, this ____ day of ________ ________, - 19__. - - Witness: ________ - ________ (SEAL) - - -33 - -Agreement to Sell Shares of Stock - -Memorandum of agreement, made this ____ day of ________, 19__, between -A.A., of the city of New York, of the first part, and B.B., of the -same place, of the second part, witnesseth: That the said A.A. agrees -to sell and convey to the said B.B., on or before the 1st day of May -next, 1,000 shares of the capital stock of the New Haven Bank, for the -price or sum of $110 per share, and to make, execute, and deliver to -the said B.B. all assignments, transfers, and conveyances necessary to -assure the same to him, his heirs and assigns. - -In consideration whereof, the said B.B. agrees to pay unto the said -A.A. the price or sum or $110 for each and every share of the said -stock so assigned, whenever, and as soon as the said assignment and -the scrip of stock so assigned shall be properly executed and -delivered to the said B.B. - -In witness whereof, the said parties have hereunto set their hands and -seals, the day and year first above written. - - A.A. (L.S.) - B.B. (L.S.) - - -34 - -Transfer of Shares of Stock - -Know all men by these presents, that I, A.B., ________ for value -received, have bargained, sold, assigned, and transferred, and by -these presents do bargain, sell, assign, and transfer unto C.D., -sixteen shares of the capital stock, standing in my name on the books -of the ________ First National Bank, and ________ do hereby constitute -and appoint the said C.D., ________ my true and lawful attorney, -irrevocable, for me and in my name and stead, but to his use, to sell, -assign, transfer, and set over all or any part of the said stock, and -for that purpose, to make and execute all necessary acts of assignment -and transfer, and one or more persons to substitute with like full -power, hereby ratifying and confirming all that my said attorney, or -his substitute, or substitutes, shall lawfully do by virtue hereof. - -In witness whereof, I have hereunto set my hand and seal the ____ day -of ________, 19__. - - A.B. (SEAL) - - -35 - -Assignment of Policy of Insurance - -Know all men by these presents, that I, A.B., of the village of -Coxsackie, for and in consideration of $25, to me in hand paid by C.D. -of the same place, the receipt whereof is hereby acknowledged, have -sold, assigned, transferred, and set over, and by these presents do -sell, assign, transfer, and set over, unto the said C.D. the policy of -insurance, known as policy No. 23,685 of the Indemnity Insurance -Company, and all sum and sums of money, interest benefit and advantage -whatsoever, now due, or hereafter to arise, or to be had or made by -virtue thereof, to have and to hold the same unto the said C.D., and -his assigns forever. - -In witness whereof, I have hereto affixed my hand, this June 20, 19__ -(A.B.) - -(Acknowledgment.) - - -36 - -Assignment of Patent Right - -"Whereas, letters-patent, bearing the date the 10th of January, 1921, -were granted and issued by the Government of the United States, under -the seal thereof, to A.B., of the town of Bristol, of the State of -Pennsylvania, for (here state the nature of the invention) a more -particular and full description thereof is annexed to the said -letters-patents in a schedule; by which letters-patents the full and -exclusive right and liberty of making and using the said invention, -and of vending the same to others to be used, was granted to the said -A.B., his heirs, executors, and administrators, or assigns, for the -term of seventeen years, from the same date. - -Now, know all men by these presents, that I, the said A.B., for and in -consideration of the sum of $100, to me in hand paid, the receipt -whereof is hereby acknowledged, have granted, assigned and set over, -and by these presents do grant, assign, and set over unto C.D., of the -said town of Bristol, his executors, administrators, and assigns, -forever, the said letters-patent, and all my right, title and interest -in and to the said invention, so granted unto me: to have and to hold -the said letters-patent and invention, with all benefit, profit and -advantage thereof, unto the said C.D., his executors, administrators, -and assigns, in as full, ample, and beneficial manner, to all intents -and purposes, as I, the said A.B., by virtue of the said -letters-patent, may or might have or hold the same, for and during all -the rest and residue of the term for which said letters-patent are -granted. - -In witness whereof, I have hereto affixed my hand and seal, this 10th -day of June, 19__. - - A.B. (L.S.) - In the presence of - E.F. - G.H. - (Acknowledgment.) - - -37 - -Bond for Payment of Money - -(As in Form No. 6, and then as follows): - -The condition of this obligation is such, that if the above-bounden -A.B., his heirs, executors, and administrators, or any of them, shall -well and truly pay, or cause to be paid, unto the above-named C.D., -his executors, administrators, or assigns, the just and full sum of -$1,000, lawful money, as aforesaid, in manner following, to-wit: $300 -part thereof, on the ________ ____ day of ________ next ensuing the -date hereof; $300 more thereof on the ____ day of ________, the next -following; and $400, the residue, and in full payment thereof, on the -____ day of ________, which will be in the year of ________; then this -obligation to be void; but if default shall be made in payment of any -or either of the said sums on the days and times hereinbefore -mentioned and appointed for payment thereof, respectively, then this -bond shall remain in full force and virtue. - - A.B. (L.S.) - - -38 - -Articles of Co-Partnership - -This agreement entered into this ____ day of ________, 19__, by and -between A.B. and C.D., witnesseth, that said parties have formed a -co-partnership for the purpose of carrying on the business of & -________ at ________, upon the following terms and conditions: - -First: The name and style of said co-partnership shall be A.B. & C.D., -and shall continue ________ years from this date, unless sooner -terminated by the death of either of said partners. - -Second: The said A.B. shall contribute to the capital stock of said -firm the sum of $________, and the said C.D. the sum of $________, and -said partners shall be the owners of the stock in that proportion, and -any further increase of the capital stock shall be contributed by said -partners in the same ratio. - -Third: All the profits which shall accrue to said partnership shall be -equally divided between said partners; and all losses from whatever -cause shall be borne by them in proportion to their interests in the -stock of said firm. - -Fourth: Neither of said partners shall sign or in any manner become -liable upon any promissory note or other obligation, for the -accommodation of any person whatsoever, nor lend any of the -co-partnership funds without the consent in writing of the other -partner. - -Fifth: Neither party shall withdraw from the funds of the firm to -exceed the sum of $________, per annum, in ________ in installments of -not to exceed the sum of $________, but neither shall at any time be -entitled to draw in excess of his share of the profits then earned. - -Sixth: All transactions and accounts of the firm shall be kept in -regular books, which shall be open at all times to the inspection of -either party or their representatives. - -Seventh: An invoice of stock shall be taken on the first day of -January of each year, and the account between the parties settled at -that time. And an invoice be taken and an account had at any other -time when either partner shall demand the same in writing. - -Eighth: No transaction outside of the ________ business shall be -entered into by either of said partners without the consent in writing -of his co-partner. And any violation of the terms of this agreement -shall be sufficient cause for a dissolution of this co-partnership. - -In testimony whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - In the presence of G.H. - - -39 - -Articles of Co-Partnership--Another Form - -Articles of co-partnership, made this ____ day of ________, 19__, by -and between A.B. and C.D. both of the city of ________, witnesseth -that: - -The said parties hereby agree to form, and do form a co-partnership, -for the purpose of carrying on the general produce and commission -business on the following terms and articles of agreement, to the -faithful performance of which they mutually engage and bind -themselves, each to the other. - -The style and name of the co-partnership shall be B. and D., and shall -commence on the ____ day of ________, 19__, and continue for the -period of five years. - -Each of the said parties agrees to contribute to the funds of the -partnership the sum of $3,000 in cash, which shall be paid in, on or -before the ____ day of ________, 19__, and each of said parties shall -devote and give all his time and attention to the business, and to the -care and superintendence of the same. - -All profits which may accrue to the said partnership shall be divided -equally, and all losses happening to the said firm, whether from bad -debts, depreciation of goods, or any other cause or accident, and all -expenses of the business shall be borne by the said parties equally. - -All the purchases, sales transactions, and accounts of the said firm -shall be kept in regular books, which shall be always open to the -inspection of both parties and their regular representatives -respectively. - -An account of stock shall be taken, and an account between the parties -shall be settled as often as once a year, and as much oftener as -either partner may desire, and in writing request. - -Neither of the said parties shall subscribe any bond, sign or indorse -any note of hand, accept, sign, or indorse any draft or bill of -exchange, or assume any other liability, verbal or written, either in -his own name or in the name of the firm, for the accommodation of any -other person or persons whatsoever, without the consent in writing of -the other party; nor shall either party lend any of the funds of the -co-partnership without such consent of the other partner. - -No large purchase shall be made, nor any transaction out of the usual -course of the business shall be undertaken by either of the partners, -without previous consultation with, and the approbation of, the other -partner. - -Neither shall withdraw from the joint stock, at any time, more than -his share of the profits of the business then earned nor shall either -party be entitled to interest on his share of the capital; but if, at -the expiration of the year, a balance of profits be found due to -either partner, he shall be at liberty to withdraw the said balance, -or to leave it in the business, provided the other partner consent -thereto, and in that case be allowed interest on the said balance. - -At the expiration of the aforesaid term, or earlier dissolution of -this co-partnership, if the said parties, or their legal -representatives, cannot agree in the division of the stock then on -hand, the whole co-partnership effects, except the debts due to the -firm, shall be sold at public auction, at which both parties shall be -at liberty to bid and purchase like other individuals, and the -proceeds shall be divided, after payment of the debts of the firm, in -the proportions aforesaid. - -For the purpose of securing the performance of the foregoing -agreements, it is agreed, that either party, in case of any violation -of them, or either of them, by the other, shall have the right to -dissolve this co-partnership forthwith, on his becoming informed of -such violation. - -In witness whereof, we, the said A.B. and C.D., have hereto set our -hands, the day and year first above written. - -Executed and delivered in the presence of - -(Acknowledgment.) - - A.B. - C.D. - - -40 - -Letter of Credit - -A.B. & Co ________: - -_Gentlemen._--We will be responsible to you for goods sold to C.D., of -________, to an amount not exceeding ________ dollars (or, for cash -advanced to C.D., of ________ not exceeding ________ dollars), (or, -for credit secured by you to C.D., of ________, in the purchase of -(describe the kind of goods), not exceeding the sum of ________ -dollars) at any time before ________, 19__, unless this letter is -revoked prior to said date; and providing you send notice to us by -mail within ten days of the granting of such credit or making such -payment, and also in case said C.D. should default in making payment -of any part of any debt created by reason of this agreement when such -payment shall become regularly due, then notice of such default shall -be sent by mail to us within five days of such default. - - Dated, ________ 19__. (Signature) - - -41 - -Agreement for Sale of Physician's Practice - -Agreement made this ____ day of ________, 19__, between ________, -hereinafter called the vendor, and ________, hereinafter called the -purchaser. - -1. Whereas the said vendor has for many years past exercised his -profession of physician and surgeon at ________, in the county of -________, and is now desirous of retiring from his practice at -________ aforesaid, and the said purchaser is desirous of establishing -himself as a physician and surgeon at said ________, now therefore, -the said vendor agrees to sell to the said purchaser, who agrees to -purchase, the said practice and the good will and benefits thereof -from the ____ day of ________ next, together with all the fixtures, -furniture, medical books, surgical and other instruments and -apparatus, and all the drugs, medicines, bottles, and other things now -used therein, for the sum of ________ dollars; in confirmation of -which purchase the purchaser, upon the execution of these presents, -has paid the sum of ________ dollars by way of deposit and in part of -the purchase money. - -2. The said vendor further agrees that, on the payment of the residue -of the said purchase money as hereinafter mentioned, he will fully and -absolutely deliver over and assign to the said purchaser, his -executors, administrators, or assigns, the said practice or business, -and the good will thereof, for his and their own absolute use and -benefit; and likewise the full and uninterrupted possession of the -office in which the said practice is now carried on by him, together -with the fixtures, furniture, books, instruments, apparatus, and -things now used in and relating to the said practice. - -3. The said vendor will introduce and recommend the said purchaser to -his patients, friends, and others, as his successor; and will use his -best endeavors to promote and increase the prosperity of the said -practice or business. - -4. The said vendor will not reside or practise either as physician or -surgeon, or act directly or indirectly as partner or assistant to or -with any other physician or surgeon practising ________ either at -________ aforesaid, or elsewhere, within ________ miles thereof. - -5. The said purchaser, in consideration of the agreements on the part -of the vendor hereinbefore contained, hereby further agrees to pay -him, his executors, or administrators, ________ dollars, by -installments as follows: one-half part thereof on the ____ day of -________ next, upon receiving the full and peaceable possession of the -said practice, office, good will, fixtures, furniture, books, and -things hereinbefore mentioned, and the remaining half part thereon on -the ____ day of ________ next. - -In witness, etc. - - -42 - -Agreement Between Merchant and Traveling Salesman - -Agreement made this ________ of ________, between ________ of -________, and ________ of ________, merchants and co-partners, doing -business under the firm name and style of ________ & Co., of the one -part, and ________ of ________, traveling salesman of the other part. - -1. The said salesman shall enter into the service of said firm as a -traveler for them in their business of ________ merchants, for the -period of ________ years from the ____ day of ________ 19__, subject -to the general control of said firm. - -2. The said salesman shall devote the whole of his time, attention, -and energies to the performance of his duties as such salesman, and -shall not, either directly or indirectly, alone or in partnership, be -connected with or concerned in any other business or pursuit during -the said term of ________ years. - -3. The said salesman shall, subject to the control of the said firm, -keep proper books of account, and make due and correct entries of the -price of all goods sold, and of all transactions and dealings of and -in relation to the said business, and shall serve the said firm -diligently and according to his best abilities in all respects. - -4. The fixed salary of the said salesman shall be the sum of ________ -dollars per week for the first year, payable by the said firm weekly -from the commencement of the said service, on the ____ day of -________, and ________ dollars per week for the third year, payable -weekly in like manner, from the commencement of such respective years. - -5. The reasonable traveling expenses and hotel bills of the said -salesman, incurred in connection with the business of said firm, shall -be paid by the said firm, and the said firm shall from week to week -pay to the said salesman the said traveling expenses and hotel bills -in addition to the said fixed salary. - -In witness, etc. - - ________ - ________ - - -43 - -Agreement for the Adoption of Children - -This indenture made the ____ day of ________, 19__, between ________ -of ________, party of the first part, and ________, of ________, and -________ his wife, parties of the second part. - -Whereas the said party of the first part has two daughters, ________ -and ________, now aged ________ and ________ years, respectively; and -whereas the said parties of the second part are willing to adopt the -said children subject to the conditions hereinafter contained, and on -the part of the party of the first part to be observed: Now this -indenture witnesseth that the said parties covenant and agree as -follows, that is to say: - -1. The said parties of the second part shall adopt the said children, -and shall, until the said children shall respectively attain the age -of twenty-one years, or marry under that age, maintain, board, lodge, -clothe, and educate them in a manner suitable to their station, and as -if they were the lawful children of the parties of the second part and -shall at the cost of the parties of the second part, and of the -survivor of them, provide the said children with all necessaries, and -discharge all the debts and liabilities which the said children or -either of them may incur for necessaries, and indemnify the said party -of the first part against all actions, claims, and demands in respect -thereof. - -2. The said party of the first part hereby nominates and appoints the -said parties of the second part, during their lives, and after their -respective deaths the person or persons to be nominated in that -behalf, as is hereinafter mentioned, to be the guardians of the -persons and estates of the said children until they shall attain the -age of twenty-one years, or until they shall marry under that age -respectively. - -3. The said party of the first part shall not revoke the appointment -hereby expressed to be made, and will not, by deed, will, or -otherwise, appoint or apply for the appointment of any other person or -persons to be guardian or guardians of the said children or either of -them, or of their respective estates. - -4. In case of the death of either of the parties of the second part -before the said children shall attain the age of twenty-one years, or -marry under that age respectively, it shall be lawful for the survivor -of them, the said parties of the second part, by deed or will, to -nominate and appoint any person or persons, from and after the decease -of such survivor, to be guardian or guardians of the said children or -either of them. - -5. The said party of the first part shall not himself, nor shall any -person or persons claiming under him, or acting under his authority, -at any time or in any manner interfere with the training or management -of the said children or either of them, or with their or her moral, -intellectual, or religious education or instruction. - -6. If the said party of the first part shall not perform and observe -all and every of the stipulations herein contained and on his part to -be performed and observed, then and in every such case it shall be -lawful for the said parties of the second part, and the survivor of -them, by notice in writing under their, his or her hands or hand, and -addressed either to the party of the first part or to the person -setting up such claim or demand, or so interfering as aforesaid, to -put an end to the agreement hereby expressed to be made, and thereupon -the same shall absolutely cease and determine; provided that in such -event the said party of the first part, or his estate, shall be liable -to pay and satisfy all debts and liabilities incurred by or in any -wise for the benefit of the said children, or either of them, which at -the time of such determination of this agreement shall not have been -paid and satisfied. In witness, etc. - - -44 - -Release by Ward of His Guardian - -Know all men by these presents, that I, A.B., of ________, son and -heir of ________, deceased, in consideration of ________, by these -presents remise, release, and forever discharge C.D., of ________, my -guardian, of and from all manner of actions, suits, accounts, debts, -dues, and demands whatsoever, which I ever had, now have, or which I -or my executors or administrators, at any time hereafter, can or may -have, claim or demand against the said C.D., his executors or -administrators, for, touching, or concerning the management and -disposition of any of the lands, tenements, or hereditaments of the -said A.B., situate, etc., or any part thereof, or for or by reason of -any money, rents, or other profits by him received out of the same, or -any payments made thereof, during the minority of the said A.B., or by -reason of any matter, cause or thing whatsoever, from the beginning of -the world to the day of the date hereof. - -In witness whereof, I have hereunto set my hand and seal, this ____ -day of ________, one thousand nine hundred and ________. - - (Signature and seal) - ________ - -In presence of - - (Signature of witness) - ________ - ________ - - -45 - -Will - -In the name of God, amen: I, A.B., of the city of ________, in the -county of ________, and state of ________, considering the uncertainty -of this mortal life, and being of sound mind and memory, blessed be -God for the same, do make and publish this my last will and testament, -in manner and form following, that is to say: - -First: I direct that my funeral charges, the expenses of administering -my estate, and all my debts be paid out of my personal property. If -that be insufficient I authorize my executors, hereafter named, to -sell so much of my real estate as may be necessary for that purpose. - -Second: I give and bequeath to my beloved wife, C.B., the sum of -$________, in lieu of dower, and of any distributive share in my -estate to which she would otherwise be entitled. I also give and -bequeath to my beloved wife the dwelling-house and lot on which I now -reside. - -Third: I hereby give the custody of my infant children during their -minority, and while they remain unmarried, to my beloved wife, so long -as she remains my widow; but if she shall die or marry again during -the infancy of said children, then in that case, I commit their -custody and tuition to my friend E.F., of said city and state. - -Fourth: I give and bequeath all of the residue of my estate, real and -personal, to my children, share and share alike, as tenants in common, -to be paid to them as they respectively come of age. In case any one -of my children shall die in my lifetime, leaving issue of descendants, -I direct that his share shall not lapse, but shall be paid to such -descendants, in equal proportions. - -Fifth: I appoint my friend G.H. executor of this, my last will and -testament, hereby revoking all former wills by me made. - -In witness whereof I have hereunto subscribed my name this 1st day of -________, in the year of our Lord ________. - - A.B. - -We, whose names are hereunto subscribed, do hereby certify that A.B., -the testator, subscribed his name to this instrument in our presence -and in the presence of each of us, and declared at the same time in -our presence and hearing that this instrument was his last will and -testament, and we at his request, sign our names hereto in his -presence as attesting witnesses. - - L.M., of the city of ________ - N.O., of the city of ________ - - -46 - -Will--Another Form - -I, A.B., of the town of ________, in the county of ________, and state -of________, declare this to be my last will and testament: - -I give and bequeath to my wife, C.B., ________ dollars, to be received -by her in lieu of dower. - -To my son, E.B., ________ dollars (which said several legacies I -direct to be paid within ________ after my decease). - -I give and devise to my son, E.B. aforesaid, his heirs and assigns, -all (here designate the property), together with all the hereditaments -and appurtenances thereunto belonging or in anywise appertaining. - -To have and to hold the premises above described to the said E.B., his -heirs and assigns forever. - -I give and devise all the rest, residue, and remainder of my real -property, of every name and nature whatsoever, to my said daughter, -M.B. (and my daughter, O.B., to be divided equally between them, share -and share alike). - -I give and bequeath all the rest, residue and remainder of my -personal property, of what nature or kind soever, to my said wife, -C.B. - -I hereby appoint E.B. the sole executor of this will, revoking all -former wills by me made. - -In witness (etc., as in Form 45). - - -47 - -Will Bequeathing Legacies and Appointing Residuary Legatee - -I, A.B., of ________, declare this to be my last will and testament. - -I bequeath to my wife, C.B., all the fixtures, prints, books, plate, -linen, china, wines, liquors, provisions, household goods, furniture, -chattels, and effects (other than money or securities for money), -which shall at my death be in or about my dwelling-house and premises -at ________. - -I bequeath to my said wife the sum of ________ dollars, to be paid to -her within one month after my death, without interest. - -I also give and bequeath to my said wife the sum of ________ dollars. - -I also bequeath the following legacies to the several persons -hereafter named: To my nephew, E.F., the sum of ________ dollars; to -my cousin, G.H., the sum of ________ dollars; and to my friend, J.K., -the sum of ________ dollars (and so on with other pecuniary legacies). - -I also bequeath to each of my domestic servants who shall be living -with me at the time of my death in the capacity of (state the -description of servants to whom the legacies are to be given), one -year's wages, in addition to what may be due to them at that time. - -All the rest, residue and remainder of my real and personal estate, I -devise and bequeath to R.S., his heirs, executors, administrators, and -assigns, absolutely forever. - -I appoint T.U. and V.W. executors of this my will. - -In witness, etc. - - -48 - -Articles of Incorporation - -Know all men by these presents. That we, ________, ________, ________, -________, ________, ________, do associate ourselves together for the -purpose of forming and becoming a corporation in the state of -________, for the transaction of the business hereinafter described. - -1. The name of the corporation shall be (give name). The principal -place of transacting its business shall be in the city of ________, -county of ________, and state of ________. - -2. The nature of the business to be transacted by said corporation -shall be the (give name of business) and the erection and maintenance -of such buildings and structures as may be deemed necessary, and to -purchase real estate as a site therefor, and especially to ________. - -3. The authorized capital stock of said corporation shall be (state -amount) thousand dollars in shares of $________ each, to be subscribed -and paid as requested by the board of directors. - -4. The existence of this corporation shall commence on the first day -of ________, A.D., 19__, and continue during the period of ________ -years. - -5. The business of said corporation shall be conducted by a board of -directors not to exceed five in number, to be elected by the -stockholders; such election to take place at such time and be -conducted in such manner as shall be prescribed by the by-laws of said -corporation. - -6. The officers of said corporation shall be a president, secretary -and treasurer, who shall be chosen by the board of directors, and -shall hold their office for the period of one year, and until their -successors shall be elected and qualified. - -7. The highest amount of indebtedness to which said corporation shall -at any time subject itself shall be not more than ________ thousand -dollars. - -8. The manner of holding the meetings of stockholders for the election -of officers, and the method of conducting the business of the -corporation, shall be as provided by the by-laws, adopted by the board -of directors. - -In witness whereof, the undersigned have hereunto set their hand this -____ day of ________ A.D., 19__. - - ________, ________, ________ - ________, ________, ________ - - State of ________} - ________ County. } - -On this ____ day of ________, 19__, before me, A.B., a justice of the -peace, in and for the said county, personally appeared the above named -________, ________, ________, ________, who are personally known to me -to be the identical persons whose names are affixed to the above -articles, as parties thereto, and they severally acknowledged the -instrument to be their voluntary act and deed. - -Witness my hand the date aforesaid. - - A.B. - Justice of the Peace. - - - - -Index - - -Acceptance and delivery, what constitutes, 242 - -Action, defined, 4 - -Actions, different kinds of, 165 166 - -Administrator, may dispose of lease, 155, 156; - can assign remainder of lease, 157 - -Adoption of children, form for or agreement for, 312. - See _Child, Adopted_ - -Adulteration of a commodity, 260 - -Advantage, incidental, 218 - -Agency, 6; - how created, 7; - post-office agency of offerer of contract, 69, 70 - -Agent, when authority must be in writing, 7; - cannot purchase principal's property, 8; - power affected by usage or custom, 8; - invalid act of, cannot be ratified, 9; - ratifying a forgery, 9; - cannot appoint a substitute, 10; - liability of, 10; - secret instructions to, 11; - cannot act for both parties, 12; - cannot receive profit from transaction, 12; - must be faithful, 12; - termination of relation of, 13, 14, 15; - duties of affected by insanity of principal, 13; - marriage of principal, 13; - must keep principal informed, 14; - liability of principal for acts and statements, 9, 10, 11, 12, 13, 14; - auctioneer owners, 16; - auctioneer purchaser's, 16, 1; - length of term of, 17; - for corporation, 26; - bailor as, 28; - broker as, 45; - may make chattel mortgage, 53; - how should sign checks, 58; - authority of to receive stock subscriptions, 77; - deception of releases subscriber, 77, 78; - corporation can do wrong through, 98; - can be appointed to examine books, 101; - has insurable interest in goods, 126; - state prosecutes through, 164 - -Agent, general, 6, 7, 8, 10; - partner is a, 198 - -Agent, special, 6, 7, 18; - insurance broker is a, 46 - -Agisters, 30 - -Alien, may become voluntary or involuntary bankrupt, 31; - woman who marries American, 62; - may be naturalized, 62, 63; - rights of, 63; - owes temporary and limited allegiance, 63; - non-resident, 63, 64 - -Animals, vicious, a nuisance, 258 - -Annoyances, temporary, 256 - -Apologies for slander and libel, 255 - -Appeals, court of, 4 - -Apprentices, and Compensation Acts, 268 - -Arbitration, 45 - -Assault and battery, a wrong, 250 - -Assent, mutual, basis of sales and contracts to sell, 227 - -Assets, disposition of in partnership failure, 202 - -Assignment. See _Bankruptcy_: _Patent_ - -Associations, beneficial, 38; - social and business, 38; - voluntary, 39; - incorporated, 39; - articles and rules, 39; - legal status, 39; - members not partners, 39; - liability to creditors, 39, 40; - rights of members, 40; - recovery of property by members, 41; - exemption from taxation, 41; - admission of members, 41, 42; - initiation, 42; - property rights of religions, 42; - benefits to sick members, 42, 43; - power to expel, 43, 44; - expulsion in subordinate lodges, 44; - restoration of members, 44; - withdrawal of members, 44; - liability of members for promised benefit, 44, 45; - cannot confer judicial power on its officers, 45; - cannot defer future controversies to arbitration, 45 - -Assumpsit, action of, 165 - -Attorney. See _Power of Attorney_ - -Auctioneer, 16; - owner's agent, 16; - purchaser's agent, 16, 17; - must bind purchaser, 16; - completes sale, 17; - authority, how conferred, 17; - a special agent, 18; - authority of, 18, 19; - has properties in goods to be sold, 45 - -Automobile, 19; - rights of owner,19, 20; - no superior rights, 20; - non-resident driver, 20; - license, 20; - liability of bailor, 20, 21; - responsibility of hirer, 21; - sale of, by hirer, 21; - obligation on hirer's part, 21; - owner's redress of car misused, 21; - duty of owner or hirer when carrying passengers, 22; - compensation of owner, 22; - liability for using without owner's consent, 22; - liability of a corporation hirer, 22; - liability for joy riding, 22; - speed of, 22; - exclusion of, 22; - "the law of the road," 22, 23; - rights of pedestrian, 22, 23; - passing each other, 23; - backing, 23, 24; - meeting in street, 23; - at intersecting streets, 24; - obstructions in road, 24; - driver must use care to avoid injury, 24, 25; - competency of driver, 25; - must be under reasonable control, 25; - driving in a fog, 25; - liability of owner, 25 - See _Chauffeur_, _Garage Keeper_ - - -Bacon, quoted, 45 - -Bailee, liability of a minor, 26; - corporation as, 26; - finder of lost property is, 26, 27; - rights of creditor of, 28; - liability of, 28, 29; - must be informed of all faults, 28, 29; - liability of bank as, 29; - liability of a safe deposit company as, 29; - usually a keeper only, 29; - exceptions, 29, 30; - return of property at end of bailment, 30; - lien for services, 30; - has insurable interest in goods, 126; - garage keeper is a, 133 - -Bailment, 20, 26-30 - -Bailor, not responsible for negligence of hirer, 20; - may bring action against innocent purchaser, 21; - corporation as, 26; - and bailee, 26; - rights of, 28; - not always owner of thing bailed, 28; - must explain all faults, 28, 29 - -Bank, custodian of lost property, 27; - liability as bailee, 29; - not legally bound to pay check to holder, 58; - agreement to pay check is with depositor, 58; - responsible for payment of checks, 59; - not responsible for checks carelessly written, 60; - liability for forged checks, 60; - is liable if makes payment on stopped check, 61; - life of a national, 73; - can retain dividend, 78; - liability of national shareholders, 78, 79; - directors of national, 87; - directors of, 88, 91, 94; - who loans money of, 88; - president, 91, 92; - national cannot always certify a check, 99 - -Bankrupt, voluntary and involuntary defined, 31; - filing of petition of voluntary, 33; - withdrawal of petition, 33; - what must accompany petition, 33; - filing of petition against, 33, 34; - must file schedule of property, 34; - first meeting of creditors, 34; - subsequent meetings, 34; - represented by trustee, 34, 36, 37; - proving and allowing claims against, 35, 36; - insurance policy of, 37; - discharge of, 38; - punishment of, 38 - -Bankruptcy, 31; - Federal Act 1898, 31, 37, 38; - courts of, 31; - voluntary and involuntary, 31; - acts of, defined, 32, 33; - procedure in, 33-38 - -Beneficial associations. See _Associations, Beneficial_ - -Benefit, conference of a, 218 - -Bid, authority of auctioneer to accept, 18 - -Bill and note broker, 45 - -Bill of exchange, definition, 196; - assignment of drawee's funds, 196; - similarity of, and endorsed note, 196 - -Bill of Lading, 48, 243 - -Bill of sale, form for, 281 - -Boarding house, liability of keeper of, 149 - -Bonds, government, equity does not require delivery of actual bonds - purchased, 120 - -Bottomry loan, 239 - -Broker, 45; - has no property in goods to be sold, 45; - must sell in principal's name, 45; - commission, 45, 47; - acts as agent, 45; - kinds of, 45, 46, 47. - See _Agency_ - -Brokerage, 45 - -Building, form for agreement for, 278. - See _Real Estate_, _Land_ - -Burglary, excused by drunkenness, 117 - -Buy and sell, regulations concerning capacity to, 228 - -By-laws, neglect of, in holding meeting, 81 - - -Capital, 74, 78, 94 - -Carrier, 48; - kinds, 48; - authority of private, 48; - required to use great care, 48; - may modify common law by contract, 48; - can limit liability, 48, 49; - must carry all responsible passengers, 49; - regulations for carrying freight, 49; - have lien to hold freight, 50; - statutes regarding loss of life, 50; - liability for injuries, 50, 51; - sleeping car company not common, 51; - liability for loss of baggage, 51; - distinction between general and local express companies, 51, 52; - United States common, for mails, 52. - See _Mails_ - -Carrier common, duty to an intoxicated person, 118 - -Cattle, trespassing, liability of owner of, 257 - -Car, liability of principal for acts of conductor of, 11 - -Certificate of stock, form for, 301 - -Charities. See _Associations, Beneficial_ - -Charters, of national banks, 73; - perpetual, 73 - -Chattel mortgage with power of sale form for, 288. - See _Mortgage, Chattel_ - -Chauffeur, physical fitness of, 25; - employer's liability for, 25; - minor as, 57; - license, 57; - liability of employer for pay of, 57; - employer's liability for injury to, 57; - injured, when speeding, 57, 58; - liable for injury to employer, 58; - authority of, to make repairs in garage, 134. - See _Automobile_; _Garage_ - -Check, 58; - signing of, 58; - bank not legally bound to pay, to holder, 58; - payment of, when funds insufficient, 58, 59; - banks responsible for payment of, 59; - two rules relating to payment of, 60; - forged, 60; - holder of, should deposit immediately, 60, 61; - drawer may stop payment of, 61; - certified, 61; - when given in payment, 212 - -Child, adopted, 5; - rights of natural and adopted parents, 5; - rights of inheritance, 5 - -Children, must be supported by parent, 197; - who have property, 197; - protection of, by parent, 197; - of workmen, and Compensation Acts, 273; - form for agreement for adoption of, 312. - See _Adopted Child_, _Husband and Wife_ - -Church, form for subscription to build a, 299 - -Citizen, 62; - definition of, 62; - duty of, 62; - double allegiance of, 62; - state protects ordinary rights of, 62; - protection of, defined by constitution and Federal law, 62; - corporation may be included in term, 62; - who is, of United States, 62; - alien woman as, 62; - American woman loses rights by foreign marriage, 62; - alien may be naturalized, 62, 63 - -Coin, legal limit of, in payment, 211 - -Cold storage, 29 - -Compensation Acts, Workmen's, 266; - basis for computation of compensation under, 274 - -Complaint, action of, 166 - -Contract, 64; - kinds of, 64; - parties to, 65, 66; - consideration of, 66, 67, 68; - mutuality of, 68; - acceptance of, at time of offer, 68; - offer made on time, 68; - offer can be withdrawn, 68, 69; - acceptance after reasonable time, 69; - by correspondence, 69, 70; - acceptance of, by telegraph, 69; - withdrawal of, by telegraph, 69; - offers and rewards, 70, 71; - dates of, 71; - interpreted by law of place when made, 71; - execution of, 71; - damages for failure to execute, 71, 72; - effect of drunkenness on, 116, 117; - equity enforces, 118, 119, 120; - insurance policy is, 125, 126; - of insurance can be reformed by court of equity, 128; - responsibility of innkeeper may be changed by, 149; - life insurance, 167; - of a minor, 176; - to sell in the future, 227; - when necessary to be within, 242; - for manufacture not included in Statute of Frauds, 243; - form for bond to perform a, 280. - See _Deceit_, _Drunkenness_, _Quasi-Contracts_ - -Contract of service, 267 - -Contract, Quasi. See _Quasi Contract_ - -Contractors, independent, and Compensation Acts, 271 - -Conveyance of real estate, in Statute of Frauds, 242 - -Co-partnership, form for articles of, 305, 307 - -Corporate owners of vessels, 236 - -Corporation, cannot become a voluntary bankrupt, 31; - an involuntary bankrupt, 31; - definition of manufacturing, 31; - trading, 32; - through its officers can admit inability to pay debts, 32; - when paying benefits not exempt from taxes, 41; - liability for injuries, 41; - as mortgagee, 53; - may be included in term citizen, 62; - kinds of, 72, 73; - formation of, 73, 74; - perpetual charters, 73, 74; - has no heirs, 74; - continues through succession, 74; - purchase of stock by one member, 74; - capital of, 74; - reasons for forming, 75; - who can subscribe to stock of, 75; - fictitious subscriptions to stock of, 75; - stock certificates 76, 86; - capital stock increased 76; - rights of stockholders, 76; - preferred stock, 76; - subscriptions - to shares is a contract, 77; - cannot purchase own shares, 78; - has no lien on its stock, 78; - liability of shareholders, 78, 79; - appointment of receivers, 79; - assessments on stock, 79; - meetings, 80; - power of, 80; - charter of, 80; - majority shall rule may be modified, 80; - who may call meetings, 80, 81; - annual meetings, 81; - regular meetings, 81; - special meetings, 82; - notices waived, 82, 83; - who can vote, 83, 84, 85; - right of transferee, 85; - directors of, 86-93, 94, 96, 100, 101; - affairs handled by few men, 88; failure of, 92; - dividends, 92, 94-98; - wrongs of, 98; - liability for acts of agents, 98, 99; - owner of stock has insurable interest in goods, 126; - when private may make lease, 155; - municipal, and leases, 155; - may take lease, 155; - can sue for slander or libel, 253; - may be a devisee, or legatee, 264 - -Court, federal and state, 1, 4; - district, 4; - of appeal, 4; - of equity, 16, 118-122, 128; - United States district, 31; - civil, 164 - -Covenants, 104, 105, 122, 165. - See _Deeds_ - -Credit, letter of, form for, 309 - -Creditor, of bailee, 28; - assignment for benefit of, 32; - filing of petition against bankrupt, 33, 34; - claims of, 34, 35, 36; - election of trustee by, 34, 36; - right to vote at meetings, 35; - may object to discharge of bankrupt, 38; - liability of beneficial associations to, 39, 40; - several may join in giving mortgage, 53; - attachment has insurable interest in goods, 126 - -Crime, drunkenness as excuse for, 117; - how prosecuted, 2, 3. - See _Husband and Wife_, _Tort_ - -Curtesy, 101, 102 - -Custom, when no defense to chauffeur, 58; - liability of innkeeper changed by, 149. - See _Usage_ - - -Damages, nominal and compensatory, 253 - -Death, of principal or agent, 15; - of stockholder before transfer, 82; - of partner, 85; - of husband, 114; - of homesteader, 136; - separation agreement cannot be set aside by, 144; - of ward terminates lease, 155; - lease made by wife terminated by husband's, 155; - of mortgagor, 182, 183; - of partner, 201; - of inventor, 206; - of a contractor, 223; - of master of vessel, 239; - of workman, 274 - -Debts and Statutes of Limitation, 244; - revival of, 244, 245 - -Deceit, 102; - when seller not liable, 102; - purchaser of land not liable, 103; - a wink not deception, 104 - -Decisions, highest court, 1 - -Deed, 7, 104; - several, used in land deal, 104; - warranty, 104; - what warrantor agrees to do, 104, 105; - encumbrances, 105; - indenture, 105; - release or quit-claim, 106; - poll, 106; - use of seal, 106; - witnesses, 107; - lease, 107; - completed before delivery, 107; - executor of, 107; - when must be read, 107; - delivery essential, 107, 108; - should be recorded, 108, 109; - acknowledgment, 109, 110; - execution of, by married woman, 109, 110; - Commissioner of, 110; - correction of mistake, 110; - land must be bounded, 110, 111; - equity compels delivery of, 119; - of warranty, form for, 282, 283; - of indenture, form for, 284; - of quit-claim, form for, 285, 286; - of mortgage, form for, 287; - of mortgage with power of sale, form for, 287; - of mortgage on goods and chattels, form for, 289 - -Defenses, in actions for slander and libel, 254 - -Delay in telegraph messages, 246 - -Dependents of workmen, and Compensation Acts, 272 - -Deposits, how made by agent, 12. - See _Bank_; _Check_ - -Desertion, its effect on homestead, 136 - -Devise of lands, 265 - -Devisee, of mortgaged land, 182; - who may be a, 263, 264 - -Director, of corporation, 86-93, 94, 96, 100 - -Discomfort acts of, wrongs, 256 - -Dividends, 94-98, 125. - See _Corporation_ - -Divisional tree, law relating to, 113 - -Divorce, effect of on dower right, 116; - effect of on homestead, 136; - for what causes granted, 144, 145; - absolute, 146; - legal effect of, 146, 147. - See _Husband and Wife_ - -Domicile, of bankrupt, 31; - husband's becomes wife's, 139 - -Dower, 113; - defined, 113; - paramount to claims of husband's creditors, 113; - mortgage has preference, 113; - legal marriage necessary, 114; - assignment of, 114; - may be barred, 115; - non-existence of, 115; - in exchanged lands, 115; - rights of partner's widow, 115; - can be released, 116; - effect of divorce, 116 - -Drunkenness, 116; - effect of, on contracts, 116, 117; - as excuse for crime, 117; - liability of sober party, 117, 118; - responsibility of common carrier, 118; - slander, 118 - - -Earnings, the basis for computation of compensation, 274 - -Ejectment, action of, 166 - -Elevator, sale of grain in, 229 - -Employees, casual, and Compensation Acts, 270; - Federal and Compensation Acts, 271 - -Employer and employee, relations as to patents, 207, 208; - Compensation Acts, 266, 267 - -Enrollment, of vessels, 235 - -Equitable remedies, 118-122 - -Equity, court of, 3, 16, 118-122, 128; - law and, 3 - -Eviction, 160, 161 - -Exchange, bill of. See _Bill of Exchange_, _Note_, _Negotiable Paper_ - -Executor, authority to vote at corporate meetings, 84; - a foreign, 85, 208; - may dispose of lease, 155, 156; - can assign remainder of lease, 157; - when, gets mortgagor's interest, 182; - when heirs may require, to pay, 183 - -Explosives, liability of keeper of, 258 - -Express company, distinction between general and local, 51, 52 - - -Factor, 123; - employed to sell goods, 123; - has a lien on goods, 123; - authority of, 123; - limitations on, fixed by principal, 123; - use of credit, 123; - cannot exchange goods, 123; - may insure goods, 123; - cannot compound claim, 124; - has insurable interest in goods, 126. - See _Agency_ - -Farm, tenant of, 157 - -Farm lease, form for, 295 - -Federal courts, 1 - -Federal employees, and Compensation Acts, 271 - -Finder, obligation of, as to lost property, 26, 27; - of property lost in hotel or railroad car, 27; - when has lien for services, 30; - See _Bailor_ - -Fire insurance. See _Insurance, Fire_ - -Fires, starters of, liability of, 258 - -Fixtures, 132; - defined, 132, 133; - law favors tenant, seller, mortgagor, 132, 133; - what tenant can remove, 162, 163 - -Food, warranty in sale of, 261 - -Forgery, ratification of, 9; - of signature to negotiable paper, 188; - in a telegram, 247. - See _Check_; _Negotiable Paper_ - -Forms, legal: - Agreement for sale of land, 277 - Agreement concerning party wall, 277 - Agreement for building, 278 - Agreement for work and labor, 280 - Agreement for lease, 293 - Agreement to sell shares of stock, 302 - Agreement for sale of physician's practice, 309 - Agreement between merchant and traveling salesman, 311 - Agreement for adoption of children, 312 - Articles of co-partnership, 305, 307 - Articles of incorporation, 318 - Assignment of mortgage, 292 - Assignment of lease, 298 - Assignment of policy of insurance, 302 - Assignment of patent right, 304 - Bill of sale, 281 - Bond to perform a contract, 280 - Bond for payment of money, 305 - Certificate of stock, 301 - Chattel mortgage, with power of sale, 288 - Claim of lien by workman, 279 - Deed of indenture, 284 - Deed of quit-claim, 285, 286 - Deed of mortgage, 287 - Deed of mortgage with power of sale, 287 - Deed of mortgage on goods and chattels, 289 - Deed of warranty, 282, 283 - Lease, 293, 294 - Lease, farm, 295 - Lease of furnished rooms, 297 - Letter of credit, 309 - Notice of sale under mortgage, 291 - Notice to quit, 299 - Power of attorney, 299 - Power of attorney, to transfer stock, 300 - Release by ward of his guardian, 314 - Subscription to build a church, 299 - Transfer of shares of stock, 303 - Will, 315, 316, 317 - -Frauds, Statute of. See _Statute of Frauds_ - -Furnished rooms, form for lease of, 297 - - -Garage, keeper of a bailee for hire, 133; - owner's liability for car when in a, 133; - public, not a nuisance, 133; - lien of keeper of, for storage and repairs, 134; - care keeper of must use, 134; - liability of keeper of for negligence, 134; - keeper of not an insurer, 134; - keeper of must protect from theft, 134; - liability of keeper of for leaving car in alley, 134; - and for using car without permission, 135; - delivery of car by keeper of, 135; - liability of keeper of for delay in repairing, 135; - and for acts of servant, 135. - See _Automobile_, _Chauffeur_, _Bailment_ - -Gift, cannot be recovered, 218 - -Grain, sale of, in elevator, 229 - -Guardian, who can act as, 143; - may make lease, 155; - of a minor, 177; - may apply for a patent, 208; - form for release of, by his ward, 314 - - -Habeas corpus, action of, 166 - -Health of employees in relation to Compensation Acts, 268 - -Highway, 112, 135, 218. - See _Automobile_ - -Homestead, agent's authority to sell, affected by owner's marriage, 14; - definition of, 135; - cannot be seized by creditors, 135; - head of family owning definition of, 135, 136; - effect of desertion and divorce on a, 136; - what land is included in, 136; - steps necessary to procure a, 136, 137; - residence required on a, 137; - liability of owner of, for debts, 137; - can be mortgaged, 137; - can be sold and other land bought, 137; - exemption from taxes, 137 - -Huddy, quoted, 22, 23 - -Husband and wife, 137; - marriage a contract, 137; - essentials of marriage, 137; - false representations, 137; - effect of deceit in obtaining consent, 138; - of compulsion, 138; - of insanity, 138; - legal age for marriage, 138; - void marriages, 138; - marriage license, 138; - marriage performed outside jurisdiction, 138; - common law marriage, 138, 139; - husband's domicile becomes that of wife, 139; - when wife can retain her domicile, 139; - husband's liability for wife's crimes, 139, 140; - wife still liable, 139; - cannot steal from each other, 140; - right to sue each other, 140; - wife's liability for husband's wrongs, 140; - alienation of affection, 140; - wife's right to retain and manage her estate, 141; - can appoint husband to act for her, 141; - may act for husband, 141; - and as executor, administrator or guardian, 141; - wife's right to sue and be sued, 142; - husband's liability for wife's debts, 142; - duty of husband to provide home, 142; - his right to defend wife, 142; - his duty to provide home, 142; - wife must live with husband, 142; - duties of husband and wife toward each other, 142, 143; - guardian of children, 143; - husband and wife may live separately, 143; - may divide property, 143, 144; - when separation agreement cannot be sustained, 144; - death and share of estate, 144; - right of wife to use husband's credit, 144. - See _Divorce_ - - -Ice, liability for, on pavement, 162 - -Imprisonment, false, a wrong, 249 - -Imprisoned person, and Statute of Limitation, 244 - -Incapacity of workman, partial or total, compensation for, 275 - -Incorporation, form for articles of, 318 - -Indecent language in a telegram, 247 - -Indenture, 105; - form for deed of, 284 - -Indorsement, see _Negotiable Paper_ - -Infancy, period of, defined by-law, 65 - -Inheritance, adopted child, 5 - -Injunction, temporary and permanent 22; - against directors, 101; - against infringer of patent, 122; - to forbid tenants making alterations, 159 - -Innkeeper, 147; - persons must receive, 147; - persons must exclude, 147; - keeping of horses, 147; - liability for baggage, 147, 148, 149; - exempt from loss by fire, 148; - may make certain regulations, 148, 149; - keeper of boarding house not, 149 - -Insane person and Statute of Limitation, 244 - -Insanity, of principal, 13; - of agent, 13; - how affects bid at auction, 18; - of master of vessel, 240; - and wills, 264 - -Inspector, 83, 101 - -Insurance Broker, 45, 46 - -Insurance, fire, when liable for acts of agent, 6; - kinds of companies, 124, 125; - mutual company preferred, 124; - mutual plan protects against loss only, 125; - stock company pays dividends, 125; - insured must have interest in property, 125; - who has insurable interest, 126; - policy, as collateral security, 126; - policy void, 126; - policy a contract, 126; - standard policy, 126; - when is policy binding, 126, 127; - premium, 127; - policy may be assigned, 127; - when policy can be cancelled, 127, 130; - contract reformed, 128; - written and printed parts of policy, 128; - written application part of contract, 128; - interpretation of meaning, 128; - language of policy, 128, 129; - clerical errors, 129; - what policy covers, 129, 130; - when risk begins, 129; - misrepresentation, 129, 130; - concealment of facts, 130; - questions and answers a warranty, 130; - policy void, 130; - loss, total or partial, 130; - damage by water, 130; - from explosion, 131; - from theft, 131; - from lightning, 131; - from negligence, 131; - total loss, 131; - partial loss, 132; - open and valued policies, 132; - see _Agency_ - -Insurance, life, 167; - definition, 167; - validity of the contract, 167; - assignment of policy, 168, 172; - authority of general agent to vary the agreement, 168; - no contract until policy accepted by company, 169; - state requirements, 169; - delivery of policy, 169; - authority of general and special agents, 170; - payment of first premium, 170; - void under conditions contrary to public welfare, 170; - proceeds on which policy may be set aside, 171; - determination of beneficiary, 171; - date of commencement of risk, 172; - payment of premiums, 172; - reinsurance contracts, 173; - cancellation or surrender, 173, 174; - rescinding of a policy, 174; - surrender or cancellation value, 175; - conversion of policy, 175 - -Insurance money, provision for, in lease, 159 - -Insurance policy, of bankrupt, 37; - form for assignment of, 302 - -Insurer, garage keeper not an, 134; - innkeeper is, 147 - -Interstate Commerce Commission, controls interstate telegraph - business, 248 - -Invention, patentable or not, 202, 203; - requirements necessary to obtain a patent, 203; - element of novelty, 204; - prior publication, 204; - usefulness, 204; - exercise of inventive power necessary for a patent, 205; - reduction of to practice, 206; - employer presumed to be the real inventor, 208; - inventor must apply for a patent, 208; - specification of, 208; - improvement on, 209 - - -Jewelry, keeping of, by bailor, 29; - see _Carrier_, _Innkeeper_ - - -Key, delivery of, constitutes delivery of goods, 242 - - -Laborers, farm, and Compensation Acts, 268 - -Lake, title to land under and around, 112 - -Land, title to, bounded by navigable river, 112; - equity can forbid injuries to, 121; - equity will enforce covenants, 122; - devise of, in wills, 265; - form for agreement for sale of, 277 - -Land, agreement to purchase, 15; - must be in writing, 15; - how signed, 15; - how complete, 15; - oral agreement, 15, 16; - part payment, 16; - period of option to purchase, 16; - see _Contract_, _Statute of Frauds_ - -Land license, see _License_ - -Land owner, liability of, for nuisances on his property, 257; - for safety of persons and children, 259 - -Landlord, see _Lease_ - -Larceny, 27 - -Law, common, 1, 2, 3; - statute, 1, 2; - courts of, 4; - civil and criminal, 2, 164; - and equity, 3, 5; - insolvency, 31 - -Lawsuit, mode of conducting, 164 - -Lease, 151; - defined, 151; - oral or written, 151, 152, 153; - liability of lessee, 151, 159; - agreements in 152, 153; - year to year tenancy, 153; - term, defined, 153; - for a future period, 153, 154; - description of premises, 154; - distinction between, and agreement, 154; - valid, 155; - made by married woman, 155; - private corporation may make, 155; - municipal corporation restricted, 155; - corporation may take, 155; - executor may dispose of, 155, 156; - trustees may make, 156; - partner cannot make, 156; - for what can be made, 156; - ratification, 156; - construction of, 156; - presumes care on part of tenant, 156, 157; - rights of a mill tenant, 157; - rights of a farm tenant, 157; - assignment of, 157; - sublease, 157; - lessor may part with his interests in, 158; - not a warranty of good condition, 158; - lessor not required to make repairs, 158; - agreement to make repairs, 158, 159; - agreement to rebuild, 159; - alterations by tenant, 159; - renewal, 159; - rent, 160; - eviction, 160, 161; - land rented on shares, 161; - of parts of building separately, 161; - liability of lessor, 161, 162; - removals by tenant at expiration of, 162, 163; - form for agreement for, 293; - form for a, 293; 294; - form for a farm, 295; - form for assignment of, 298; - of furnished room, form for, 297 - -Legal remedies, 164-166 - -Legatee, property given to, disposition of, 37; - and cash dividends, 97, 98; - and stock dividends, 97, 98; - definition of, 263; - who may be, 264; - see _Will_ - -Lessee, see _Lease_ - -Lessor, see _Lease_ - -Letter of credit, form for, 309 - -Libel, is a wrong, 250, 251, 252; - and slander, 252 - -License, land, 149; - defined, 149, 150; - for what granted, 150; - granted informally, 150; - revocation, 150, 151; - duty of licensor to invitee, 151; - of vessels, 236 - -License to operate automobile, 20 - -Lien, of agister, 30; - of livery stable man, 30; - of groom, 30; - of freight carrier, 49; - on bank stock, 78; - of factor, 123; - of garage keeper, 134; - of innkeeper, 148; - on real estate, 180, 181; - form for claim of, by workman, 279 - -Life Insurance, see _Insurance, Life_ - -Limitation, Statutes of, 243, 244, 245 - -Livery stable, no lien on animals, 30 - -Lodging house, liability of keeper, 149 - -Lost property, 26-28 - - -McClain, Justice, quoted on life insurance, 168, 174 - -Mail, United States common carrier for, 52; - United States is not liable for loss of, 52; - private express cannot be established for, 52; - liability of postmaster and assistant and clerk, 52; - liability of driver of, 52; - assent in contracts sent by, 69, 70; - delivery of insurance policy, 169; - see _Negotiable Paper_ - -Malice, liability of corporation for, 99 - -Mandamus, issue of, 81; - action of, 166 - -Manufacture, contract for, not included in Statute of Frauds, 243 - -Manufacturer, liability of, 258 - -Margin, sale of stock on, 235 - -Marriage, 13, 14, 115, 137; - see _Husband and Wife_ - -Massachusetts courts, decision in respect to adopted child, 5 - -Masters, of vessels, law governing employment, 239; - duties and successors of, 240; - authority of, 240 - -Meetings, 83-86 - -Merchant, duty of, towards public, 151; - and traveling salesman, form for agreement between, 311 - -Merchandise Broker, 45, 46 - -Messages, telegraph, should not be made public, 247; - may be produced by order of a court, 247; - criminal offense to divulge, 247; - to open or read a sealed, 247; - repeated and unrepeated, 248 - -Minor, limited power of, 7; - bid made by, 18; - as bailee, 20; - cannot become a voluntary bankrupt, 31; - as mortgagee, 53; - as chauffeur, 57; - citizenship of, 62; - ability of to sign contracts limited, 65; - period of infancy of, fixed by law, 65; - cannot subscribe to stock, 75; - cannot be held for note, 91; - cannot make legal deed, 107; - lease made by, void, 155; - contracts of a, 176; - necessaries and luxuries supplied to a, 176; - disaffirmation of contract of a, 177; - fraudulent contract of a, 177; - can avoid sales contracts, 228; - and Statute of Limitations, 244; - may be a devisee or legatee, 264; - as employee in Compensation Acts, 268 - -Morawetz, quoted, 88, 89, 100 - -Mortgage, creditor, can force contract to give, 120; - kinds of, 177; - may cover future advances, 178; - improvements covered, 178, 179; - not an absolute conveyance, 179; - not changed by contemporaneous agreement, 179; - with power of sale, 179, 180; - how the power must be executed, 180; - mortgagor cannot purchase property sold, 180; - lien of vendor for purchase money, 180; - how subsequent purchaser is affected, 180; - notice of vendor's lien, 181; - mortgagor real owner, 181; - both parties may insure premises, 181; - rights of several mortgagees to same property, 181; - right of deviser to money due on, 182; - mode of foreclosure on a, 182; - payment by joint contributors to discharge, 183; - who can redeem a, 183; - payment by executor, 183; - rights of mortgage of vessel, 238; - form for deed of, with power of sale, 287; - form for deed of, 287; - form for notice of sale under, 291; - form for assignment of, 292; - see _Deed_, _Chattel Mortgage_, _Shipping_ - -Mortgage, Chattel, 52; - definition of, 52, 53; - form of, 52; - who may make, 53; - creditors may join in giving, 53; - description of property, 53, 54; - may be given for future advance of money, 54; - to render secure from creditor 54; - Statutes of, 55, 56; - what is included in, 55; - rights of mortgagee, 55, 56; - form for, with power of sale, 288; - form for deed of, 289; - see _Mortgage_ - -Mortgagee, 55, 56; - has insurable interest in goods, 126 - -Mortgagor, 55, 56; - favored by law in regard to fixtures, 133 - -Motorist, non-resident, 20 - - -Naturalization, 62 - -Negotiable Instruments Law, 213 - -Negotiable paper, definition, 183-197; - see _Note_, _Promissory_ - -Newspapers, offers and rewards in, 70, 71 - -Note, promissory, definition, 183; - requirements for a, 183; - unqualified promise in a, 184; - payable on a contingency, 184; - payable at a fixed future time, 184; - dating of a, 184; - seal of a, 184; - payable on demand, 184; - overdue, 185; - payable to order; 185; - payable to bearer, 185; - ante or past-dated, 185; - title to, acquired from date of delivery, 185; - a wrongly dated, 186; - authority of holder to fill blanks, 186; - incomplete until delivery, 187; - mode of delivery, 187; - ambiguity of a, 187, 188; - signature to a, 188; - signature by agent, 188; - a forged, 188; - forged indorsement on a, 188; - consideration for a, 189; - accommodation party to a, 189; - negotiation of a, 189; - negotiation by delivery of a, 189; - by indorsement and delivery, 189; - kinds of indorsement of a, 189; - striking out indorsement of a, 189; - indorsing to bank or cashier, 190; - misspelled or incorrect indorsement, 190; - holder in due course, 190; - bad faith in negotiating, 190, 191; - agreement of maker, 191; - liability of indorser, not a party to, 191; - presentment of a, for payment, 191, 192, 193; - exclusion of days in reckoning due date of, 193; - payable at bank, 193; notice of dishonor of a, 193, 194; - notice of, to joint parties, 194; - notice of, to address as directed, 194; - notice of waived, 195; - alterations in a, 195; - memorandum on a, 195; - similarity of indorsed, and bill of exchange, 196; - given in payment, 212; - and Statute of Limitations, 244 - -Non-resident Alien, 63, 64 - -Notice, of sale under mortgage, form for, 291; - of meetings, see _Corporation_; - to quit, form for, 299 - -Nuisances, private, are wrongs, 255 - - -Obligations, various, included in Statute of Limitations, 245 - -Officer, public, liability of, 52 - -Option, to purchase land, 16 - -Owners, in common, of vessels, 236, 237 - - -Parent, natural and adopted, 5; - cannot lease land of minor child, 155; - of a minor, 177; - obligations of, toward child, 197; - cessation of, 197; - protection of child by, 197; - use of child's property by, 197; - and child, relations between, 197; - see _Adopted Child_, _Husband and Wife_ - -Partner, a member of beneficial association not a, 39; - what surviving may do, 85; - may waive notice of corporate meeting, 85; - dower rights of widow of, 115; - cannot lease partnership land, 156; - non-investing, not liable for debts, 198; - a general agent, 198; - limitations of authority of a, 199; - silent or secret, liability of, 199, 200; - general or special, 200; - illegal contract made by a, 201; - death of a, 201; - succession to by executor, 201; - retiring, 201; - liquidating, authority of, 202 - -Partnership, rules for termination of agency, 14; - liability of members, 75, 78; - stock owned by, represented by partner, 85; - contract to form, cannot be enforced, 120; - member of, cannot make lease, 156; - between tenant and landlord, 161; - in a single transaction, 198; Act, 198; - liability of non-investing partners in, 198; - can hold any kind of property, 198; - partners in, are general agents, 198; - limitations of authority of partners in, 199; - reception of a new member in, 199; - formed by definite agreement in writing, 199; - silent or secret partners in, 199, 200; - limited liability, 200; - dissolution of a, 201; - death of a partner in, 201; - retiring partner in, 201; - failure of, disposition of assets, 202; - liquidating partner in, 202 - -Party wall, form for agreement concerning, 277 - -Passenger, duty of automobile owner or hirer, in carrying, 22; - compensation for carrying, 22; - see _Carrier_ - -Patent, 202; - design, 203; - invalidation of an American by a foreign, 204; - prior publication for a, 204; - defeat of on ground of lack of novelty, 204; - must be useful to get a, 204; - exercise of inventive power necessary for a, 205; - to whom can a be issued? 206; - a joint, 207; - must be issued in name of real inventors, 207; - rights of employee with a, 207; - may be issued to assignees, 208; - inventor must apply for a, 208; - specification of invention to get a, 208, 209; - duties of inventor to get a, 209; - duties of commissioner and examiner before granting a, 210; - right of appeal if not granted, 210; - infringement of, and injunction to prevent, 211; - form for assignment of right, 304 - -Pawn Broker, 45, 47 - -Payment, when can double be required, 9, 211; - legal forms of, 211, 212; - note or check given in, 212; - applications of general on several debts, 212; - receipt not conclusive evidence of, 213; - effect of a seal in a receipt for, 214; - on receipt of documents, 235; - partial, of purchase money completes sale, 243; - partial, revives debt barred by Statute of Limitations, 245; - of money, form for bond for, 305 - -Peck, quoted, 117 - -Pedestrian, rights of, 22 - -Physician, admission of, to beneficial associations, 41; - form for agreement for sale of practise of a, 309 - -Pledgee, authority of, 7; - has insurable interest in goods, 126 - -Pledgor, of stock, 85, 86 - -Policy, insurance, 168-176; - form of assignment of, 302; - see _Insurance, Fire_; _Insurance, Life_ - -Poll deed, 106 - -Possession and control, transfer of constitutes delivery, 243 - -Postmaster, liability of, 52 - -Post office, is agency of offerer of contract, 69, 70 - -Pond, title to land under and around, 112 - -Power of attorney given to an agent, 7; - given by a homesteader, 14; - revoked by woman's marriage, 14; - form for, 299; - to transfer stock, form for, 300 - -Precedent, nature of, 1 - -Preference, defined, 32 - -Preferred stock, see _Corporation_ - -Premium, see _Insurance, Life_; _Insurance, Fire_ - -Prescriptive Rights, 214; - to land, how gained, 214; - how determine whether or not fully acquired, 214; - to light and air, 215; - to use of water, 216; - to lateral support of land, 217; - excavations, 218 - -Price, fixing of, in a sale, 230; - determination of reasonable, 231 - -Promise to pay a debt, renewal of, 244, 245 - -Property, lost, 26, 27; - fraudulent transfer of, 32, 33; - real and personal, in wells, 263 - -Prosecution, liability of corporation for, 99; - malicious, is a wrong, 249 - -Prosecutor, State as, 164; - injured person as, 164 - -Publication, prior, of an invention, 204 - -Public Officers, and Compensation Acts, 272 - -Purchasers of vessels, liability of, 238 - - -Quasi Contract, 218; - definition, 218; - gift cannot be reclaimed, 218; - recovery for incidental advantage to another, 218, 219; - for service rendered as gratuity, 219; - for goods accepted without intended payment, 219; - for perished property, 220; - premium on insurance policy, 220; - recovery in case of indefinite promise, 220; - contract not executed as law requires, 220, 221; - especially Statute of Frauds, 221, 222; - recovery for use of unpaid for land, 222; - recovery impossible in case of no benefit, 222; - recovery impossible by taking advantage of one's own default, 223; - recovery for loss in course of alteration and repair, 223; - in case of illness or death of contractor, 223; - in wagering contract, 224; - in contracts made on Sunday, 224; - on partnership note given for benefit of partner, 224; - of goods delivered by carrier to wrong person, 224; - of payment made by mistake, 225; - when consideration has totally failed, 225; - voluntary payment, 225; - recovery of check not covered by deposit, 225; - goods sold as own which are not, 225; - goods that are worthless, 225; - forced benefit cannot be recovered, 226 - -Quit, form for notice to, 299 - -Quit-claim, 106; - form for deed of, 285, 286 - -Quo warranto, action of, 166 - - -Race track news by telegraph, 217 - -Railroad receivers, 8 - -Ratification, defective notice of meeting may be cured by, 83 - -Real Estate, broker, 45, 46; - deeds, 101-112; - monuments, 111; - boundaries of, in cities, 111; - non-navigable stream, 111; - tidal navigable stream, 112; - natural or artificial pond as boundary, 111, 112; - title to land in public highway, 112; - liability of examiner of title, 112, 113; - equity awards money for failure of contract, 120; - equity will enforce covenants, 122; - seller favored by law in regard to fixtures, 132, 133; - conveyance of, in Statute of Frauds, 242. - See _Lease_ - -Receipt not conclusive evidence of payment, 213 - -Receiver, duties of, 79; - has insurable interest in goods, 126. - See _Corporation_ - -Registration of vessels, 235 - -Release, 106; - by ward of his guardian, form for, 314 - -Rent, 160 - -Replevin, action of, 165 - -Representation, as distinguished from warranty, 260 - -Retraction, of slander and libel, 255 - -Revocation of wills, 266 - -Right of way, 214; - to light and air, 215; - to use of water, 216; - to lateral support of land, 217 - -Riparian owner, rights of, 112 - -Roads, public, 19 - - -Safe Deposit Company, as bailee, 29 - -Sale, 227; - future contract to sell and present sale, 227; - based on mutual assent, 227; - executory, 227; - executed, 227; - based on mutual assent, 227; - may be conditional, 227; - regulation of capacity to buy and sell, 228; - contracts of a minor, 228; - Sales Act and Statute of Frauds, 229; - limit of enforcement of sale, 229; - an undivided share, 229; - specific goods, 230; - fixing of price in a, 230; - determination of reasonable price, 231; - and warranties, 231; - satisfaction of buyer necessary, 231; - implied warranty in a, 232, 233; - transfer of ownership in a, 233; - delivery and acceptance in a, 234; - delivery of goods or documents on payment, 234; - speculative stock, 235; - of goods, wares, and merchandise in Statute of Frauds, 242; - various modes of completing, 243; - of land, form for agreement for, 297; - Bill of, form for, 281; - form for notice of, under mortgage, 291 - -Sales Act, 17, 228; - and undivided share of goods, 229; - and Statute of Frauds, 229; - and specific goods, 230; - fixing of price in, 230; - determination of reasonable price, 231; - satisfaction of buyer necessary, 231; - warranty and implied warranty, 232, 233; - delivery and acceptance, 234; - delivery of goods or documents on payment, 234 - -Seal, use of, 106; - effect of, in a receipt for payment, 214 - -Seamen, of vessels, laws pertaining to, 241 - -Separation, between husband and wife, 143, 144 - -Servants, domestic and Compensation Acts, 269 - -Service, contract of, 267 - -Shareholder, rights of, 101. - See _Corporation_ - -Shares, land rented on, 161; - of stock, form for agreement to sell, 302 - -Shipping, 235. See _Vessels_ - -Shipping Broker, 45 - -Slander, liability of corporation, 11, 12, 99; - in case of drunkenness, 118; - and libel, action of, 166; - and libel, distinctions between, 252; - is a wrong, 250, 251; - definition of, 253 - -Sleeping car, 51 - -Snow, liability for, on pavement, 162 - -Spring of water, restrictions of owner, 217 - -Statute of Frauds, and auctioneer, 17; - and lease, 152; - and recovery on contract, 221, 222; - and sale of goods, 229, 242, 243; - and delivery and acceptance, 242; - and sale of real estate, 242; - and manufacturer, 243 - -Statutes, 1, 2; - pertaining to lost property, 26, 27; - to beneficial associations, 39; - to pawn-brokers, 47; - limiting amount carrier must pay for lost life, 50; - regarding mail carrying by private express, 52; - pertaining to chattel mortgages, 55, 56; - imposing higher inheritance tax for non-resident aliens, 63; - allowing individual to form corporations with legislative aid, 73; - pertaining to married women's subscriptions to stock, 75; - provisions for corporations, 80, 81, 83, 99; - controlling bank directors, 92; - fixing liability of parties, 105; - requiring two witnesses to deed, 107; - modifying dower rights, 116; - giving insurer right to cancel fire insurance policy, 127; - providing for total loss, 131; - exempting innkeepers from loss by fire, 148; - changing responsibility of innkeeper, 149; - in New York relative to termination of leases, 154 - -Statutes of Limitation, claim barred by, and bankruptcy, 35; - application of, to directors, 90; - operation of, to cancel debt, 213; - various provisions, 243, 244, 245 - -Stock, 75; - who can subscribe to, 75; - fictitious subscriptions, 75; - certificates, 76, 86; - capital increased, 76; - preferred, 76; - subscription to, a contract, 77; - corporation cannot purchase own, 78; - corporation has no lien on its, 78; - national banking law, 78; - assessments on, 79; - majority shall rule may be modified, 80; - purchaser of, should give notice to company, 82; - sale of, 83; - trustee legal owner, 84; - executor can vote, of testator, 84, 85; - administer can vote, 85; - owned by partnership represented by partner, 85; - seller and purchaser, 85; - pledgor and pledgee, 85, 86; - transferee, 85; - dividends, 94; - owners of, can examine books, 101; - equity compels delivery of stock, 119, 120; - owner of, in corporation has insurable interest in goods, 126; - speculative sales of, 235; - form for power of attorney to transfer, 300; - certificate, form for, 301; - form for agreement to sell, 302; - form for transfer of, 303. - See _Corporation_ - -Stolen property, resale of, 261 - -Strike, excuses telegraph company for delay, 246 - -Sub-agent, 10, 15 - -Sublease, 157 - -Subscription to build a church, form for, 299 - -Subtenant, 157 - - -Taxes, of beneficial associations, 41; - on homestead, 137 - -Telegraph, 246, 248; - not a common carrier, 246; - must serve all who apply and offer to pay, 246; - cannot discriminate against another telegraph company, 246; - strike sufficient excuse for delay, 246; - can be penalized for delay in interstate business, 246; - prohibited by statute from limiting their own liability, 246; - may be prohibited from transmitting racetrack news, 247; - must transmit all messages except those containing indecent - language, 247; - may close at reasonable hours, 247; - may require sender to designate route of message, 247; - messages should not be made public, 247; - rules for within the state business differ from the rules for - interstate business, 247; - repeated and unrepeated messages, 248 - -Telephone, 246-248; - company cannot favor any telegraph company, 246; - cannot legally charge a telegraph company more than any other - patron, 246; - cannot discriminate against another telephone company, 246 - -Tenant, favored by law in regard to fixtures, 132. - See _Lease_ - -Term of lease, defined, 153 - -Terms, explanation of, 1 - -Testator, must possess sound mind, 262, 263, 264; - requirements of, 264 - -Title to bed of lakes, 112; - to real estate, 112, 113; - warranty of seller's when in possession of the goods, 261 - -Tort, action in, 166 - -Torts (or wrongs), 248-260; - definition, and examples, 248; - false imprisonment, 249; - malicious prosecution, 249; - assault and battery, 250; - defamation of reputation and character, slander, 250, 251; - must be brought to the knowledge of a third person, 251; - libel, vituperation, and abuse, 251; - distinctions between libel and slander, 252; - a corporation may be slandered, 253; - defenses in actions for slander or libel, 253; - apologies or retractions, 255; - private nuisances, 255; - motives not material, 255; - acts of discomfort amounting to nuisances, 256; - temporary annoyances, 256; - distinction between acts that annoy, and acts that injure, 257; - liability of land owner, 257; - trespassing cattle, 257; - vicious animals, 258; - starter of a fire, 258; - keeper of explosives, 258; - liability of a manufacturer, 258; - users of other persons' property, 259; - liability for acts of children, 260 - -Trades-unions, 38 - -Transfer of shares of stock, form for, 303 - -Tree, divisional, law relating to, 113 - -Trenchard, Justice, quoted, 112, 113 - -Trespass, action of, 165 - -Trespasser, 152 - -Trustee, appointment of, in bankruptcy, 36; - must give bond, 37; - removal of, 37; - death of, 37; - represents bankrupt debtor, 37; - duties, 37; - may make lease, 156; - powers of, 265 - - -Undivided share of goods, and Sales Act, 229 - -United States, common carrier for mails, 52; - liability of, for conduct of a private mail driver, 52; - citizen of, defined, 62; - act conferring citizenship on alien women, 62; - naturalization laws, 62, 63 - -Usage, affects agent's power, 8; - sales of auctioneer, 18; - may take into account in insurance policy, 128; - in presenting check for payment, 192; - creates implied warranty, 233; - delivery of goods affected by, 234 - - -Vendor, when can sell goods, 7; - may have lien for purchase money, 180; - notice of lien, 181 - -Vessels, must be registered, 235; - can be registered only by citizens of United States, 235; - sale to a foreigner, 236; - enrollment of, 236; - license of, 236; - title to, how acquired, 236; - when owned by corporations, 236; - owners or tenants in common of, 236: - limitations of authority of owners in common of, 236; - majority and minority of owners in common of, 237; - liability of purchaser of, 238; - mortgaging of, 238; - rights of mortgagor of, 238; - borrowing money on, 239; - appointment of masters of, 239; - duties, and successors of, 240; - authority of, 240; - seamen, laws pertaining to, 241, 242 - -Vituperation and abuse, a wrong, 251 - -Voluntary service, recovery for, 219 - -Voting, cumulating, described, 87, 88 - - -Ward, death of, terminates lease, 155; - form for release from guardian, 314 - -Warranty, deed of, 104, 105; - and Sales Act, 231, 232, 233, 260; - distinction between and representation, 260; - statement made simply to awaken a buyer's interest not a, 260; - implied in all cases where vendor is an expert, 261; - in sale of food, 261; - of the seller's title, when in possession of the goods, 261; - when goods are sold by sample, 261; - form for deed of, 282, 283. - See _Deceit_, _Sale_ - -Water, use of stream of, 216. - See _Prescriptive Rights_ - -Widow, rights of, 136. See _Dower_ - -Wife, rights of in will, 266; - rights in marriage. - See _Husband and Wife_ - -Will, mortgagor dies without leaving, 182; - definition, 262; - requirements for testator, 262; - witnesses of, 262; - real and personal property in, definitions of, 263; - should be in writing, 263; - devisee and legatee in, 263; - must be in accordance with laws of states, 263; - grounds on which are attacked, 263; - made by the insane, 264; - requirements of, 264; - when several are made, 264; - authority of trustee of, 265; - devise of lands in, 265; - date on which take effect, 265; - rights of wife in, 266; - revocation of, 266; - forms for, 315, 316, 317 - -Williston, quoted, on stock sales, 235 - -Witnesses of wills, number required, 262 - -Woman married, limited power of, 7; - as mortgagee, 53; - and contracts, 65; - as subscriber to stock, 75; - husband of, entitled to curtesy, 101, 102; - execution of deed by, 109, 110; - and dower, 113; - lease made by, 155; - and Statute of Limitations, 244; - may be devisee or legatee, 264. - See _Husband and Wife_ - -Work and labor, form for agreement for, 280 - -Workmen's Compensation Acts, injury to chauffeurs, 57, 266; - who is compensated under, 267; - who is not, 267; - contract of service necessary, 267; - condition of health of no consequence, 268; - minors, apprentices, and farm laborers, 268; - domestic servants, 269; - casual employees, 270; - independent contractors, 271; - Federal employees, 271; - public officers, 272; - dependents of workers, 272; - children of workmen, 273; - earnings the basis for computation of compensation, 274; - death of workman, 274; - total and partial incapacity, 275; - form for claim of lien by, 279 - -Wrongs. See _Torts_, 248-260 - - - * * * * * - - +-----------------------------------------------------------+ - | Typographical errors corrected in text: | - | | - | Page 2: adplicable replaced with applicable | - | Page 16: posession replaced with possession | - | Page 32: fradulent replaced with fraudulent | - | Page 95: fnud replaced with fund | - | Page 126: Morever replaced with Moreover | - | Page 133: morgagee replaced with mortgagee | - | Page 139: solemized replaced with solemnized | - | Page 153: acquiesence replaced with acquiescence | - | Page 171: perpared replaced with prepared | - | Page 272: volutary replaced with voluntary | - | Page 324: mortage replaced with mortgage | - | Page 326: Defences replaced with Defenses | - | | - +-----------------------------------------------------------+ - - * * * * * - - - - - -End of the Project Gutenberg EBook of Putnam's Handy Law Book for the Layman, by -Albert Sidney Bolles - -*** END OF THIS PROJECT GUTENBERG EBOOK PUTNAM'S HANDY LAW BOOK *** - -***** This file should be named 33088-8.txt or 33088-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/3/3/0/8/33088/ - -Produced by Jeannie Howse, Juliet Sutherland and the Online -Distributed Proofreading Team at http://www.pgdp.net - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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charset=iso-8859-1" /> - <title> - The Project Gutenberg eBook of Putnam's Handy Law Book for the Layman, by Albert Sidney Bolles, Ph.D., Ll.D.. - </title> - <style type="text/css"> - p { margin-top: .5em; - text-align: justify; - margin-bottom: .5em; - text-indent: 1em; - } - h1 { - text-align: center; font-family: garamond, serif; /* all headings centered */ - } - h5,h6 { - text-align: center; font-family: garamond, serif; /* all headings centered */ - } - h2 { - text-align: center; font-family: garamond, serif; /* all headings centered */ - } - h3 { - text-align: center; font-family: garamond, serif; /* all headings centered */ - } - h4 { - text-align: center; font-family: garamond, serif; /* all headings centered */ - } - hr { width: 33%; - margin-top: 1em; - margin-bottom: 1em; - } - body{margin-left: 10%; - margin-right: 10%; - } - a {text-decoration: none} /* no lines under links */ - div.centered {text-align: center;} /* work around for IE centering with CSS problem part 1 */ - div.centered table {margin-left: auto; 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border: dotted black 1px;} /* transcriber's notes */ - .ad {margin-left: 25%; margin-right: 25%; margin-top: 5%; margin-bottom: 5%; padding: 1em; border: solid black 1px;} /* frontpage ad */ - - .bb {border-bottom: solid black 1px;} - .bl {border-left: solid black 1px;} - .bt {border-top: solid black 1px;} - .br {border-right: solid black 1px;} - .bbox {border: solid black 1px;} - - .pagenum { /* uncomment the next line for invisible page numbers */ - /* visibility: hidden; */ - position: absolute; right: 2%; - font-size: 75%; - color: gray; - background-color: inherit; - text-align: right; - text-indent: 0em; - font-style: normal; - font-weight: normal; - font-variant: normal;} /* page numbers */ - - </style> - </head> -<body> - - -<pre> - -The Project Gutenberg EBook of Putnam's Handy Law Book for the Layman, by -Albert Sidney Bolles - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: Putnam's Handy Law Book for the Layman - -Author: Albert Sidney Bolles - -Release Date: July 5, 2010 [EBook #33088] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK PUTNAM'S HANDY LAW BOOK *** - - - - -Produced by Jeannie Howse, Juliet Sutherland and the Online -Distributed Proofreading Team at http://www.pgdp.net - - - - - - -</pre> - - -<br /> -<hr /> -<br /> - -<div class="tr"> -<p class="cen" style="font-weight: bold;">Transcriber's Note:</p> -<br /> -<p class="noin">Inconsistent hyphenation in the original document has been preserved.</p> -<p class="noin" style="text-align: left;">Obvious typographical errors have been corrected. -For a complete list, please see the <span style="white-space: nowrap;"><a href="#TN">end of this document</a>.</span></p> -</div> - -<br /> -<hr /> -<br /> - -<div class="ad"> -<h4>BY ALBERT SIDNEY BOLLES,<br /> -<span class="sc">Ph.D., LL.D.</span></h4> -<br /> -<p class="noin" style="font-size: 80%;"> -<span style="margin-left: 3%;">THE MODERN LAW OF BANKING</span><br /> -<span style="margin-left: 3%;">BANKS AND THEIR DEPOSITORS</span><br /> -<span style="margin-left: 3%;">BANK OFFICERS</span><br /> -<span style="margin-left: 3%;">BANK COLLECTIONS</span><br /> -<span style="margin-left: 3%;">THE NATIONAL BANK ACT AND ITS JUDICIAL INTERPRETATION</span></p> -</div> - -<br /> -<hr /> -<br /> -<br /> -<br /> -<br /> - -<h2>Putnam's Handy Law Book<br /> -for the Layman</h2> - -<br /> -<br /> -<br /> -<br /> -<hr /> -<br /> - -<h1>Putnam's<br /> -Handy Law Book<br /> -for the Layman</h1> - -<br /> -<br /> -<br /> - -<h3>By</h3> - -<h2>Albert Sidney Bolles, Ph.D., LL.D.</h2> - -<p class="cen">Formerly Professor of Commercial Law and Banking in the<br /> -University of Pennsylvania, also Lecturer on the<br /> -Same Subjects in Haverford College</p> - -<br /> -<br /> -<br /> -<br /> - -<h4>G.P. Putnam's Sons<br /> -New York and London<br /> -The Knickerbocker Press</h4> - -<br /> -<hr /> -<br /> -<br /> -<br /> -<br /> - -<div class="block"> -<h4>Copyright, 1921<br /> -by<br /> -Albert Sidney Bolles</h4> -<br /> -<p class="cen">Published September, 1921<br /> -Reprinted December, 1921<br /> -Reprinted March, July, 1922<br /> -Reprinted April, 1923</p> -<br /> -<br /> -<br /> -<h4>Made in the United States of America</h4> -</div> - -<br /> -<br /> -<br /> -<br /> -<a name="FOREWORD" id="FOREWORD"></a><hr /> -<span class='pagenum'><a name="Page_v" id="Page_v">[v]</a></span><br /> - -<h3>FOREWORD</h3> -<br /> - -<p>What useful purpose can this book serve? Most of the laws under which -we live are kept, not from knowing them, but because the good sense of -individuals leads them along legal ways. Yet in many cases their good -sense fails to discover the right way. Thus, the receiver of a check -on a bank must present it within a reasonable time after receiving it, -and if he keeps it longer the risk of loss, should the bank fail, is -his own. What is this reasonable time? One man says three days, -another a week, another a month. So one's common sense fails to -establish a definite reasonable time. It is needful to have the time -fixed, and the law therefore has established a reasonable time. There -are many cases like this in which one's common sense fails to furnish -a correct, yet needful guide.</p> - -<p>This little book contains many of the legal principles that are in -most frequent use, as readers will learn who carefully read it. Again, -if they do not always find an answer to their questions, it is -believed that in many cases they will find enough law of a general -nature from which they can safely solve their questions. They are -therefore besought to do something more than merely consult this book -for the purpose of finding ready and complete answers to their -questions, to read it and become familiar with its contents.</p> - -<p>Besides the law presented here the reader should learn to be cautious, -and not trust too much his <span class='pagenum'><a name="Page_vi" id="Page_vi">[vi]</a></span>own judgment when no rule can be found for -his guidance. Many a person has written his own will, as he has a -right to do, and after giving a legacy to a relative or friend has -nullified the gift by having the legatee, through the testator's -ignorance, sign as a witness. The writer knew a railway president who -had the temerity to draw the writing containing an important contract -between his railroad and another, and who, by unintentionally putting -a comma in the wrong place, made his road instead of the other -responsible for large losses. If this book shall make the reader -cautious concerning the legality of his undertakings, it will be worth -to him many times its price.</p> - -<p class="right">A.S.B.</p> - -<br /> -<br /> -<br /> -<br /> -<a name="toc" id="toc"></a><hr /> -<span class='pagenum'><a name="Page_vii" id="Page_vii">[vii]</a></span><br /> - -<h3>CONTENTS</h3> -<br /> - -<div class="centered"> -<table border="0" cellpadding="2" cellspacing="0" width="60%" summary="Table of Contents"> - <tr> - <td class="tdr" width="80%" style="font-size: 80%;"> </td> - <td class="tdr" width="20%" style="font-size: 80%;">PAGE</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_1">Explanation of Terms</a></td> - <td class="tdr">1</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_5">Adopted Child</a></td> - <td class="tdr">5</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_6">Agency</a></td> - <td class="tdr">6</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_15">Agreement To Purchase Land</a></td> - <td class="tdr">15</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_16">Auctioneer</a></td> - <td class="tdr">16</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_19">Automobile</a></td> - <td class="tdr">19</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_26">Bailor and Bailee</a></td> - <td class="tdr">26</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_31">Bankruptcy</a></td> - <td class="tdr">31</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_38">Beneficial Associations</a></td> - <td class="tdr">38</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_45">Broker</a></td> - <td class="tdr">45</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_48">Carrier</a></td> - <td class="tdr">48</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_52">Chattel Mortgage</a></td> - <td class="tdr">52</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_57">Chauffeur</a></td> - <td class="tdr">57</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_58">Check</a></td> - <td class="tdr">58</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_62">Citizen</a></td> - <td class="tdr">62</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_64">Contracts</a></td> - <td class="tdr">64</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_72">Corporations</a></td> - <td class="tdr">72</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_101">Curtesy</a></td> - <td class="tdr">101</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_102">Deceit</a></td> - <td class="tdr">102</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_104">Deeds</a></td> - <td class="tdr">104</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_113">Divisional Tree</a></td> - <td class="tdr">113</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_113">Dower</a><span class='pagenum'><a name="Page_viii" id="Page_viii">[viii]</a></span></td> - <td class="tdr">113</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_116">Drunkenness</a></td> - <td class="tdr">116</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_118">Equitable Remedies</a></td> - <td class="tdr">118</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_123">Factor</a></td> - <td class="tdr">123</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_124">Fire Insurance</a></td> - <td class="tdr">124</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_132">Fixtures</a></td> - <td class="tdr">132</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_133">Garage Keeper</a></td> - <td class="tdr">133</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_135">Homestead</a></td> - <td class="tdr">135</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_137">Husband and Wife</a></td> - <td class="tdr">137</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_147">Innkeeper</a></td> - <td class="tdr">147</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_149">Land License</a></td> - <td class="tdr">149</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_151">Lease</a></td> - <td class="tdr">151</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_164">Legal Remedies</a></td> - <td class="tdr">164</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_167">Life Insurance</a></td> - <td class="tdr">167</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_176">Minor</a></td> - <td class="tdr">176</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_177">Mortgage</a></td> - <td class="tdr">177</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_183">Negotiable Paper</a></td> - <td class="tdr">183</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_197">Parent and Child</a></td> - <td class="tdr">197</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_198">Partnership</a></td> - <td class="tdr">198</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_202">Patent</a></td> - <td class="tdr">202</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_211">Payment</a></td> - <td class="tdr">211</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_214">Prescriptive Rights</a></td> - <td class="tdr">214</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_218">Quasi Contracts</a></td> - <td class="tdr">218</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_227">Sale</a></td> - <td class="tdr">227</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_235">Shipping</a></td> - <td class="tdr">235</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_242">Statute of Frauds</a><span class='pagenum'><a name="Page_ix" id="Page_ix">[ix]</a></span></td> - <td class="tdr">242</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_243">Statutes of Limitation</a></td> - <td class="tdr">243</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_246">Telegraph and Telephone</a></td> - <td class="tdr">246</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_248">Torts Or Wrongs</a></td> - <td class="tdr">248</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_260">Warranty</a></td> - <td class="tdr">260</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_262">Will</a></td> - <td class="tdr">262</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_266">Workmen's Compensation Acts</a></td> - <td class="tdr">266</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_277">Legal Forms for Everyday Use</a></td> - <td class="tdr">277</td> - </tr> - <tr> - <td class="tdlsc"><a href="#Page_321">Index</a></td> - <td class="tdr">321</td> - </tr> -</table> -</div> - -<br /> -<br /> -<br /> -<br /> -<hr /> -<span class='pagenum'><a name="Page_1" id="Page_1">[1]</a></span><br /> -<br /> -<br /> -<br /> - -<h1>Putnam's Handy Law Book <br />for the Layman</h1> -<br /> - -<br /> -<p><b>Explanation of Terms.</b>—At the outset the explanation of a few terms, -often used, may be helpful to the reader. Among these are the terms -statute and common law. Statute law or statutes mean the laws enacted -by the state legislature and by the federal congress. Common law means -the decisions made by the state and federal courts. These decisions -may relate to the interpretation and application of statutes, or to -the application of former decisions or precedents, or to the -qualification and application of them, or to the making and -application of new rules or principles where none exist that are -needed to decide the case in hand.</p> - -<p>It is a rule of the most general application that legal decisions are -precedents which are to be followed in other cases of the same -character. The decisions of the highest court in each state must be -followed by the lower courts, but no courts in any state are obliged -to follow the decisions of the courts in any other state. The courts -in every state must also follow the decisions of the federal courts in -all matters of a national character. Thus if a federal court decides -the meaning or interpretation of a federal statute, a state court must -follow the interpretation in a case requiring the application of that -statute.</p> - -<p><span class='pagenum'><a name="Page_2" id="Page_2">[2]</a></span>Again, common law decisions are not binding on the courts that make -them like statutes or legislative commands. A decision may be modified -or set aside when it is regarded as no longer applicable to the -present condition of things. It may also be set aside or changed by -legislative action. The common law is therefore always slowly changing -like the ocean and is never at rest.</p> - -<p>The common law forms much the largest part of the great body of law -under which we live. This book is a collection chiefly of common law -principles; a few statutes are interwoven here and there to complete -the subjects presented.</p> - -<p>The distinction also between civil and criminal law requires -explanation. Nearly all criminal law is founded on statutes, in other -words the statutes, state and federal, define nearly all legal crimes -known to society. It is therefore true that the field of crime is not -fixed, is in truth always changing. Thus formerly if a man bought -goods on credit of another on the statement that he was worth fifty -thousand dollars and the seller afterward learned that he was not -worth fifty cents, the seller could sue the buyer to recover the value -of the goods and for any additional loss, but could do no more. Many, -perhaps all the states, now declare by statute that such an act is a -crime, and the offender can be prosecuted by the state and fined or -imprisoned or both. And the wrongdoer may still be sued in a civil -action for the loss to the seller as before.</p> - -<p>All crimes are prosecuted by the officers of the state chosen or -appointed for that purpose. Again, as in the case mentioned, the -wrongful act has a double aspect. An individual who has been wronged -may proceed against the wrongdoer to <span class='pagenum'><a name="Page_3" id="Page_3">[3]</a></span>recover his loss; the state also -has been wronged and may also proceed against him. A good illustration -is a bank defaulter. The bank may proceed through a court of law to -recover the money lost by him, or from those who have promised to make -the bank good should he wrongfully take anything; the state may also -proceed against him as a criminal for breaking a statute that forbids -him from doing such a thing. Furthermore, should the bank, as often -happens, agree to accept a sum from the defaulter and not trouble him -further, the agreement would be no bar to an action by the state -against him.</p> - -<p>The terms law and equity are frequently used in the law books and -require explanation. Formerly there was no such term as equity in the -common law. It came to be used as a supplement to the law to indicate -ways of doing things unknown to the law, which ought to be done. Thus -if a man threatened to fill up your well because it stood, as he -claimed, on his land, you had no preventive remedy at law. You could -use some force to prevent him, you could not kill him, or put out his -eyes, or treat him roughly. The law only gave you the right to proceed -against him to recover money damages for the legal injury. A court of -equity has a preventive remedy. If one threatens to fill up your well -you can petition or pray the court to order that he shall refrain -until there has been a legal hearing to determine whether he has any -right to do so and the court will order him to desist until it has -heard the case, and will enforce its order with a fine or penalty -should he disobey.</p> - -<p>The term equity contains a larger element of justice than law; and the -courts often say that an act is just or equitable, meaning that an act -which <span class='pagenum'><a name="Page_4" id="Page_4">[4]</a></span>is just or equitable may not always be a legal act. Equity -therefore is a broader term, and is in constant use in legal -proceedings.</p> - -<p>Another word frequently used in this book is action. When a person has -wronged another, for example, has not paid a promissory note that is -due, and the wronged party wishes to collect it through the courts, he -brings an action, so called, against the wrongdoer for that purpose. -Sometimes the word suit is used. Suit, or case in court, is a common -expression.</p> - -<p>Finally something should be said about courts of law. Every state has -three kinds or classes of courts. First a court in which suits are -brought and tried relating to small matters, the recovery of money, -for example, for one or two hundred dollars or less, also for small -petty criminal offenses. Next is a higher court in which suits for all -larger matters are begun and tried, as well as appeals from the lower -court. Lastly is a third court of review, usually called the supreme -court, composed in most of the states of five, or more often, seven -judges, who review the decisions of the court below whenever -application is made founded on erroneous matters, the wrongful -admission of, or refusal to admit, evidence and the like, and their -decisions form the great body of the common law.</p> - -<p>The federal government also has three courts corresponding somewhat to -the courts established by the states. First is a court existing in -every state called the district court, while some states, like New -York, are divided into several districts. An appeal lies from its -decision to the court of appeals consisting of three judges. There are -nine of these courts, one for each circuit into which the United -States is divided. Lastly appeals may be <span class='pagenum'><a name="Page_5" id="Page_5">[5]</a></span>taken from their decisions -and also from the decisions of the supreme courts of the states to the -supreme court of the United States consisting of nine judges. An -appeal does not lie in every case decided by a state court or by the -federal courts of appeal; only such cases as the highest court shall -decide after application, made in proper form, may be appealed and -heard by that tribunal.</p> - -<p>We have already explained the term equity. Formerly there were courts -to try and decide equity cases. England still maintains such courts -and a few exist in the United States; New Jersey and Delaware are two -of these states. The chief official of the court is called a -chancellor, the others vice chancellors. Instead of an action, as in a -court of law, the preliminary proceeding is called a petition or bill, -and while in substance it is similar to an action or complaint, used -in a court of law, the form is quite different. The modern tendency of -the law, considered in the most general way, is to fuse law and -equity, and to endow law judges with equity powers. For further -explanation see <i>Legal Remedies and Equitable Remedies</i>.</p> - -<br /> - -<p><b>Adopted Child.</b>—Children are sometimes adopted. By doing so the -natural parents lose all personal rights and are relieved from all -legal duties. The adopted parents acquire the right to the adopted -child's custody and control, to his services and earnings, and they -must maintain and educate him. In some states he becomes the heir of -the adopted parent like a natural child, with some limitations. Who -can inherit an adopted child's property is not clearly settled. He can -also inherit from his natural parent and kindred as if he had not been -adopted. In Massachusetts the courts <span class='pagenum'><a name="Page_6" id="Page_6">[6]</a></span>hold that an adopted child will -take like a natural child under a residuary clause in an adopted -father's will giving all the property not otherwise devised to his -child or children. See <i>Parent and Child</i>.</p> - -<br /> - -<p><b>Agency.</b>—Much of the business of our day is done by agents or -persons who represent others. The most general division is into -general and special agents. A general agent is one who has authority -to act for his principal or person he represents in all matters, quite -as the principal himself could do; or in some of his matters. Thus if -a principal had a farm he might have a general agent to act as his -farmer; if he owned a mill, another general agent who had charge of -it. If he had two mills, he might have a general agent for each, and -so on.</p> - -<p>A special agent is authorized to do a specific thing, to sell a home, -buy a horse, or effect some particular end or purpose. While this -distinction is plain enough in many cases, in others the lines run so -close together that it is difficult to decide whether one is a general -or special agent.</p> - -<p>Whenever one acts as a general agent he is supposed to have all the -authority that general agents possess who thus act for their -principals, unless the person who is dealing with him knows of the -restriction on his authority. Suppose one goes to the office of a -general insurance agent to get insurance on his home. A policy is -taken and afterwards the house burns up. The company declines to pay -because the agent made a lower rate than was authorized by his -company. The insured however knew nothing about the restriction, and -supposed that the agent had the same authority as other insurance -agents have concerning rates. The company would be obliged to pay. But -if the <span class='pagenum'><a name="Page_7" id="Page_7">[7]</a></span>insured knew that restrictions had been put on the agent and -that he was violating them in giving him the lower rate, the company -would not be liable.</p> - -<p>One who deals with a special agent must find out what authority he -possesses; therefore more care is needful in dealing with a special -than with a general agent. His authority must be strictly pursued. -Thus it is said that a person dealing with him "acts at his own -peril," is "put upon inquiry," "is chargeable with notice of the -extent of his authority," "it is his duty to ascertain," "he is bound -to inquire," "and if he does not he must suffer the consequences."</p> - -<p>In some cases the law creates an agency. Thus an unpaid vendor of -goods sometimes has authority to sell them, so has a pledgee of goods -outside the authority conferred by the contract pledging them. A -married woman whose husband does not supply her has a limited power to -buy necessaries on her husband's credit, which prevails -notwithstanding any objection he may make. A minor sometimes has the -same power.</p> - -<p>A person can act as an agent for another who cannot act for himself. -Minors therefore can thus act. Besides individuals, corporations often -act for others.</p> - -<p>The authority of an agent may be given in writing, a power of attorney -so called, or he may act, and often does, without written authority, -especially a general agent. To this rule there is one well understood -exception. If an agent is required in executing his authority to sign -a deed or other writing, especially a sealed writing, his authority -must also be equally great. In executing a deed therefore his -authority must be in writing under seal, and when the deed is -recorded, the agent's <span class='pagenum'><a name="Page_8" id="Page_8">[8]</a></span>written authority should also be recorded; this -is the usual practice. If this is not done, some person who afterward -wished to purchase the land might object because the recorded title -was defective.</p> - -<p>A particular usage or custom also affects an agent's powers. If the -principal confers on him authority to transact business of a -well-defined nature, bounded by well-defined usage and customs, the -law presumes the agency was created with reference to them. This -protection affects agents and third persons alike, the latter -therefore who act in good faith in such dealings are protected against -secret limitations of which they had no notice.</p> - -<p>An agent has no authority to purchase his principal's property. To do -this, in a sense, would be to purchase of himself. The temptation to -do this is sometimes very great, too great for him to withstand, and -so he resorts to a crooked method for accomplishing his end. He sells -the property to another party who afterward sells it back to him. The -worst violators of this principle have been railway receivers, who -have taken advantage of their position to get control of the property -entrusted to them at a sum much less than its real value. Such sales -can be set aside by proper legal procedure. By the modern rule they -are not void but are voidable, that is, can be set aside if the -creditors or other interested parties wish to do so.</p> - -<p>Whenever therefore one deals with a general agent and his authority is -disputed, unless there be restrictions known to the person dealing -with him, the liability of his principal turns on the answer to the -general question, what authority do general agents like himself have. -This is simply a question of fact, to be determined like every other -<span class='pagenum'><a name="Page_9" id="Page_9">[9]</a></span>question of fact by the court in which the controversy is pending.</p> - -<p>Another way of rendering a principal liable for the act of his agent -is by ratifying it. Suppose A professed to be the agent of B in -building a house for C, and built it so badly that C sued B to recover -damages, whose defense was, that A was not his agent. Suppose, -however, that B accepted payment for the house, this would be a -ratification of A's authority to act for B even if he did not have -proper authority in the beginning. Suppose A had authority to sell -goods for B but not to collect payment, and someone should pay him and -he ran off with the money, could his principal still collect the money -of the buyer of the goods? This is a hard case, and has happened many -times. The buyer usually is required to pay the second time. But if B, -notwithstanding his direction to his agent not to collect payment, -should receive it such conduct would operate as a ratification.</p> - -<p>Whether the authorized act arises from a contract or from a wrong or -tort, whoever with knowledge of all the facts adopts it as his own, or -knowingly appropriates the benefits, which another has assumed to do -in his behalf, will be deemed to have assumed responsibility for the -act. Of course, such action does not render an act valid that was -invalid before; its character in this respect is not changed by -anything the ratifier may do.</p> - -<p>Can a forgery be ratified? The right of the state to pursue the forger -cannot be defeated by its ratification, but so far as the act may be -regarded merely as the act of an unauthorized agent, it may be -ratified like any other. Mechem says that if at the time of signing, -the person doing so purported to act as agent, the act might be -ratified.</p> - -<p><span class='pagenum'><a name="Page_10" id="Page_10">[10]</a></span>Again, a principal cannot accept part of an agent's act and reject the -remainder. The acceptance or rejection must be complete.</p> - -<p>In appointing an agent the principal has in mind the qualifications of -the person appointed, he cannot therefore without his principal's -consent, designate or substitute another person for himself. This rule -though does not prevent him from employing other persons for a minor -service. Indeed, in many cases a general agency requires the -employment of many persons to execute the business. How far one may go -in thus employing others to execute the details, and how much ought to -be done by the general agent himself, depends on the nature of the -business. The inquiry would be one of fact, to what extent is a -general agent in his particular business expected or assumed to do the -things himself.</p> - -<p>One rule to guide an agent is this: when the act to be done is purely -mechanical or ministerial, requiring no direction or personal skill, -an agent may appoint a subagent. Thus an agent who is appointed to -execute a promissory note, or to sign a subscription agreement, or to -execute a deed, may appoint another to do these things. Likewise an -agent who is authorized to sell real estate with discretionary power -to fix the price and other terms, may employ a subagent to look up a -purchaser, or to show the land to one who is desirous of purchasing.</p> - -<p>When a person is really acting as an agent, but this is not known by -the persons with whom he is doing business, he is liable to them as if -he were the principal. It often happens for various reasons that -agents do not disclose their principals. Suppose a dealer finds out -that the agent presumably <span class='pagenum'><a name="Page_11" id="Page_11">[11]</a></span>acting for himself was, in truth, acting -for another, could the real principal be held responsible and the -agent escape, or could both be held? The answer is, after discovering -the real principal, both can be held, or either of them. The failure -of an agent to disclose his agency will not make him individually -liable if the other party knew that he was dealing with a principal -with whom he had had dealings through the agent's predecessor. Notice -of the agency to one member of a firm is not sufficient notice to the -firm to release the agent from personal responsibility in subsequent -transactions with another member who did not know and was not informed -of the agency. Again, the liability must be determined by the -conditions existing at the time of the contract, his subsequent -disclosure will not relieve the agent. Finally, while the agent may be -held in such a case, the principal also is liable, except on -instruments negotiable and under seal, on the discovery of his -relationship as principal.</p> - -<p>While secret instructions to an agent that are unknown to persons -dealing with him do not bind them, the principal is liable for any -acts within the scope of his agent's authority connected with the -business conducted by his agent for him. Some very difficult questions -arise in applying this rule. A car conductor is instructed to treat -passengers civilly and to use no harsh means with them, save in -extreme cases. How far may a conductor go with a disorderly passenger? -Very likely he would be justified in putting him off; suppose the -conductor was angry and administered hard and needless kicks in the -operation? His principal surely would not be liable, though the -conductor doubtless would be. Suppose in buying a railway ticket the -agent loses his temper and calls you a liar and a thief, you <span class='pagenum'><a name="Page_12" id="Page_12">[12]</a></span>would -have an action against him for slander, unless you happened to be one, -but you would have no action against his principal for the company did -not employ him to slander its patrons; to do this was clearly not in -the scope of his employment.</p> - -<p>An agent must not act for both parties in any transaction unless this -is understood by both of them. Nor can an agent receive any personal -profit from a transaction. Whatever profit there may be should be -given to the principal. Thus if an agent is authorized to buy a piece -of property for his principal and buys it for himself, or hides the -transaction under the name of another, the principal, after -discovering what his agent has done, can proceed to obtain the -property.</p> - -<p>An agent must be faithful and exercise reasonable skill and diligence. -Money belonging to the principal should be deposited in the -principal's name, or, if in the agent's name, his agency should be -added; otherwise if the bank failed the agent would be responsible for -the loss. Again, if the agent deposited the money in his own name the -true owner could proceed against the bank to recover it.</p> - -<p>A principal is liable for the statements and representations of his -agent that have been expressly authorized. He is also liable even for -false and fraudulent representations made in the course of the agent's -employment, especially those resulting in a contract from which the -principal reaped a benefit. Even though the statements may not have -been expressly authorized, such authority may be implied by law -because they are the natural and ordinary incidents of the agent's -position. Thus the position of a business manager often calls for a -great variety of acts, orders, notices, and the <span class='pagenum'><a name="Page_13" id="Page_13">[13]</a></span>like, and statements -made while performing them are regarded as within the line of his -duty.</p> - -<p>An agency may end at a fixed time, or when the particular object for -creating it has been accomplished, or by agreement of the parties. In -many cases an agency is created for an indefinite period, and in these -either party can terminate it whenever he desires. There are some -limitations to this principle. Neither party can wantonly sever the -relation at the loss of the other; and if one of them did he would be -liable for the damage sustained by the other. Likewise if the agent -has an interest of his own in the undertaking the principal cannot -terminate it before its completion without the agent's consent. Such a -rule is needful for his security. The bankruptcy of a business agent -operates as a revocation of his authority, but not when the act to be -done is of a personal nature like the execution of a deed.</p> - -<p>If the principal becomes insane and unable to exercise an intelligent -direction of his business, his condition operates as a revocation or -suspension for the time being of his agent's authority. If on -recovering, he manifests no will to terminate his agent's authority, -it may be considered as a mere suspension, and his assent to acts done -during the suspension may be inferred from his forbearing to express -dissent when they come to his knowledge. Likewise an agent's insanity -terminates or suspends the agency for the time being unless he has an -interest of his own in the matter. Partial derangement or monomania -will not have that effect unless the mania relates to the agency, or -destroys the agent's ability to perform it.</p> - -<p>Again, the marriage of a principal in some cases, unless a statute has -changed the common law, will <span class='pagenum'><a name="Page_14" id="Page_14">[14]</a></span>revoke the power previously given, -especially when its execution will defeat or impair rights acquired by -marriage. Thus should a man give a power of attorney to another to -sell his homestead, but before effecting a sale the principal should -marry, his marriage would revoke the power. By marrying the wife -acquires an interest in the property which cannot be taken away from -her without her consent by joining in a deed of conveyance with her -husband. Likewise the marriage of a woman would operate to revoke a -power of attorney previously given by her whenever its execution would -defeat the rights acquired by her husband. An agent's marriage usually -will not affect the continuance of his agency.</p> - -<p>When an agency is terminated it is often needful for the principal to -notify all customers for his protection, otherwise they might continue -to do business with the agent, supposing he was thus acting, and -involve him perhaps in heavy loss. This rule applies especially to -partnerships, each member of which is an agent with general authority -to do the kind of business in which it is engaged.</p> - -<p>If the authority of an agent in writing is revoked, but is still left -with him and is shown to a third person who, having no knowledge of -the revocation, makes a contract with him, the principal will be held -for its execution.</p> - -<p>Another rule of law may be given. The law assumes that any knowledge -acquired by an agent concerning his principal's business, will be -communicated to his principal, who is bound thereby. This rule though -is often difficult to apply. Thus, if a cashier of a bank should learn -that a note was defective, which was afterward discounted by his bank, -it would be regarded as having knowledge of <span class='pagenum'><a name="Page_15" id="Page_15">[15]</a></span>the defect, because it -was the cashier's duty to inform the proper officials before they -discounted it.</p> - -<p>The death of either agent or principal terminates the agency except in -cases of personal interest. And when an agent has appointed a -substitute or subagent without direct authority, and for his own -convenience, the agent's death annuls the authority of the subagent or -substitute, even though the agent was given the right of substitution. -But if the subagent's authority is derived directly from the -principal, it is not affected by the agent's death.</p> - -<br /> - -<p><b>Agreement to Purchase Land.</b>—An agreement to purchase land must be -in writing to be valid. Oral or parol agreements may be made to do -many things, but everywhere the law makes an exception of agreements -relating to land purchases. A statute that is quite similar in the -states requires this agreement to be in writing and signed by the -party against whom it is to be enforced. Thus if the seller wishes to -enforce such an agreement, he must produce a writing signed by the -purchaser; if the latter wishes to hold the seller, he must do the -same thing. The better way is to have the writing signed by both -parties.</p> - -<p>How complete must the writing be? It need not mention the sum to be -paid for the land; it can be signed with a lead pencil: a stamp -signature will suffice. The entire agreement need not be on one piece -of paper. If it can be made out from written correspondence between -the two parties this will be enough.</p> - -<p>To this rule of law are some exceptions. Therefore if an oral -agreement for the sale of land is <span class='pagenum'><a name="Page_16" id="Page_16">[16]</a></span>followed by putting the buyer into -possession, the law will compel the seller to give him a deed. The -proceeding would consist of a petition addressed to a court of equity, -which would inquire into the facts, and if they were true, would -compel the seller to give the purchaser a deed of the land. The reason -for making this exception is, the purchaser would be a trespasser had -he no right to be there: to justify his possession the law permits him -to prove, if he can, his purchase of the land; and if he has bought -it, of course he ought to have a deed of his title.</p> - -<p>Once, a purchaser who made an oral agreement and paid part of the -purchase money could compel the seller to give him a deed, and many -still think such action is sufficient to bind the bargain. This is no -longer the law. The practice gave rise to much fraud: A would assert -that he gave money to B to pay for land when in truth it was given for -some other purpose. So the courts abandoned the rule founded on the -part payment of the purchase price. A can however get back his money.</p> - -<p>An option to purchase land, contained in an agreement to sell, must be -exercised within a reasonable time, if none is fixed in the agreement. -See <i>Deed</i>.</p> - -<br /> - -<p><b>Auctioneer.</b>—An auctioneer, employed by a person to sell his -property, is primarily the owner's agent only, and he remains his -exclusive agent to the moment when he accepts the purchaser's bid and -knocks down the property to him. On accepting the bid the auctioneer -is deemed to be the agent of the purchaser also, so far as is needful -to complete the sale; he may therefore bind the purchaser by entering -his name to the sale and by <span class='pagenum'><a name="Page_17" id="Page_17">[17]</a></span>signing the memorandum thereof. His -signing is sufficient to satisfy the Statute of Frauds in any state -conferring on an agent authority to make and contract for the sale of -real and personal property without requiring his authority to be in -writing. His agency may begin before the time of the sale and continue -after it. Again, the entry of the purchaser's name must be made by the -auctioneer or his clerk immediately on the acceptance of the bid and -the striking down of the property at the place of sale. It cannot be -made afterward. The auctioneer at the sale is the agent of the -purchaser who by the act of bidding calls on him or his clerk to put -down his name as the purchaser. In such case there is little danger of -fraud. If the auctioneer could afterward do this he might change the -name, substitute another, and so perpetrate a fraud.</p> - -<p>A sale by auction is complete by the Sales Act when the auctioneer -announces its completion by the fall of the hammer, or in other -customary manner. Until such announcement is made, any bidder may -retract his bid; and the auctioneer may withdraw the goods from sale -unless the auction has been announced to be without reserve.</p> - -<p>Authority may be conferred on an auctioneer in the same manner as on -any other agent for the sale of similar property, verbally or in -writing. Even to make a contract for the sale of real estate, oral -authority to the auctioneer is sufficient, in the absence of a statute -to the contrary.</p> - -<p>Authority to sell property does not of itself imply authority to sell -it at auction, and the purchaser therefore who has notice of the -agent's authority or knowledge sufficient to put him on inquiry, -acquires no title to the property thus purchased. If goods <span class='pagenum'><a name="Page_18" id="Page_18">[18]</a></span>are sent -to an auction room to sell, this is deemed sufficient evidence of -authority to sell them in that manner and to protect whoever buys -them.</p> - -<p>As an auctioneer is ordinarily a special agent, the purchaser is -supposed to know the terms and conditions imposed by the seller on the -agent. The seller or owner therefore is not bound by any terms stated -by the auctioneer differing from those given to him. If the owner has -imposed no terms on him, then he has the implied authority usually -existing in such cases.</p> - -<p>An auctioneer has authority to accept the bid most favorable to the -seller when the sale is made without reserve and to strike down the -property to the purchaser. He cannot therefore consistently with his -duty to his principal refuse to accept bids, unless the bidder is -irresponsible or refuses to comply with the terms of the sale. He is -justified in rejecting the bids of insane persons, minors, drunken -persons, trustees of the property, and perhaps in some cases of -married women.</p> - -<p>An auctioneer cannot transfer his duty to another. This rule does not -prevent him from employing others to do incidental things connected -with the keeping and the moving of the property. He cannot sell on -credit contrary to his instructions or custom; nor would he be secure -in following custom if instructed to do otherwise. After the bid has -been accepted the bidder has no authority to withdraw it without the -owner's consent, nor can he be permitted to do so by the auctioneer. -Nor can he sell at private sale if his instruction is to sell -publicly, nor can he justify himself even if he acted in good faith -and sold the property for more than the minimum price fixed by the -owners. Nor can he sell the property to himself, nor authorize any -other <span class='pagenum'><a name="Page_19" id="Page_19">[19]</a></span>person to bid and purchase for him either directly or -indirectly. It is impossible with good faith to combine the -inconsistent capacities of seller and buyer, crier and bidder, in one -and the same transaction.</p> - -<p>He has no authority to warrant the quality of property sold except -custom or authority is expressly given to him. Nor is he an insurer of -the safety of the goods entrusted to him for sale; he must however use -ordinary and reasonable care in keeping them. Lastly, an auctioneer -should disclose his principal and contract in his name. If one bought -property therefore supposing it belonged to A, when in fact it -belonged to B, through any manipulation of the auctioneer, the bidder -would not be bound.</p> - -<br /> - -<p><b>Automobile.</b>—The members of the public have a right to use the -public avenues for the purpose of travel and of transporting property: -nor has the driver of horses any right in the road superior to the -right of the driver of an automobile. Each has the same rights, and -each is equally restricted in exercising them by the corresponding -rights of the other.</p> - -<p>Again, the public ways are not confined to the original use of them, -nor to horses and ordinary carriages. "The use to which the public -thoroughfare may be put comprehends all modern means of carrying -including the electric street railroad and automobile." It has been -declared that the fact that motor vehicles may be novel and unusual in -appearance and for that reason are likely to frighten horses which are -unaccustomed to see them, is no reason why the courts should adopt the -view of prohibiting such machines.</p> - -<p>The general rule is that all travelers have equal <span class='pagenum'><a name="Page_20" id="Page_20">[20]</a></span>rights to use the -highways. An automobile therefore has the same rights and no more than -those of a footman.</p> - -<p>The mere fact that automobiles are run by motor power, and may be -operated at a dangerous and high rate of speed, gives them no superior -rights on the highway over other vehicles, any more so than would the -driving of a race horse give the driver superior rights on the highway -over his less fortunate neighbor who is pursuing his journey behind a -slower horse.</p> - -<p>There is no authority or power in the state to exclude non-resident -motorists from the public ways, nor have the states power to place -greater restrictions or burdens on non-resident automobilists than -those imposed on their own citizens.</p> - -<p>A license to operate an automobile is merely a privilege. It does not -constitute a contract, consequently it does not necessarily pass to a -purchaser of the vehicle, and may, for a good reason, be revoked. -Moreover the charge imposed for the privilege of operating a motor on -the highway is not generally considered a tax, only a mere license or -privilege fee.</p> - -<p>An automobile may be hired from the owner. This is called in law a -bailment. The bailor is not responsible generally for any negligence -of the hirer in operating the car. Nor is the rule changed should the -hirer be an unskilled person, unless he was an immature child or -clearly lacking in mental capacity, or was intoxicated. Where the -owner of an automobile delivered it to another by agreement, who was -to pay the purchase price from the money derived from its use, and -thereafter had complete control of the machine, his negligence could -not be charged to the seller.</p> - -<p>Again, where an automobile is hired and the <span class='pagenum'><a name="Page_21" id="Page_21">[21]</a></span>chauffeur is also -furnished by the owner, who pays him for operating the car, and the -hirer has no authority over him except to direct his ways of going, -the chauffeur is regarded as the servant of the owner. He, therefore, -and not the hirer is responsible for the negligence of the chauffeur. -Of course, the rule would be changed if the hirer assumed the -management of the car: then the hirer alone would be liable for the -chauffeur's negligence.</p> - -<p>A party who hires an automobile from another is bound to take only -ordinary care of it and is not responsible for damage whenever -ordinary prudence has been exercised while the car was in his custody. -If lost through theft, or is injured as a result of violence, the -hirer is only answerable when these consequences were clearly the -result of his own imprudence or negligence. The hirer though must -account for the loss or injury. Having done this, the proof of -negligence or want of care is thrown on the bailor.</p> - -<p>If the hirer should sell the automobile without authority to a third -party, the owner or bailor may bring an action against even an -innocent purchaser who believed that the hirer had the title and power -to sell.</p> - -<p>There is an implied obligation on the hirer's part to use the car only -for the purpose and in the manner for which it was hired. And if it is -used in a different way and for a longer time, the hirer may be -responsible for a loss even though this was inevitable.</p> - -<p>Suppose the hirer misuses the car, what can the owner do? He can -repossess himself, if this can be done peaceably, otherwise he must -bring an action for the purpose. As the hirer acquires a qualified -title to the property, he can maintain an action <span class='pagenum'><a name="Page_22" id="Page_22">[22]</a></span>against all persons -except the owner, and even against him so far as the contract of -letting may set forth the relations between them.</p> - -<p>When an owner or hirer undertakes to convey a passenger to a specified -place and, while on the way, the car breaks down, if it cannot be -properly mended at the time and the owner or hirer is able to furnish -another, the law requires him to do so and thus fulfil his contract.</p> - -<p>"The owner of a motor vehicle," says Huddy, "is of course entitled to -compensation for the use of the machine. If a definite sum is not -stated in the contract between the parties, there arises an implied -undertaking that the hirer shall pay a reasonable amount. One who uses -another's automobile without consent or knowledge of the owner, may be -liable to pay a reasonable hire therefor. In case the hirer is a -corporation, there may arise the question whether the agent of the -company making the contract has authority to bind the company. Where a -machine is hired for joy riding on Sunday, it has been held that the -contract is illegal and the hirer cannot recover for the use of the -automobile."</p> - -<p>The speed of automobiles along the public highways may be regulated by -law. A municipality may forbid the use of some kinds of motor vehicles -on certain streets, but it cannot broadly exclude all of them from all -the streets. The rules regulating travel on highways in this country -are called, "the law of the road." The object of these rules is to -prevent collisions and other accidents, which would be likely to occur -if no regulations existed.</p> - -<p>A pedestrian who is about to cross a street may rely on the law of the -road that vehicles will approach on the proper side of the street. -This <span class='pagenum'><a name="Page_23" id="Page_23">[23]</a></span>rule however does not apply to travelers walking along a rural -highway. Huddy says: "When overtaking or meeting such a person, it is -the duty of both the pedestrian and the driver of the machine to -exercise ordinary care to avoid a collision, but no rule is, as a -general proposition, definitely prescribed as to which side of the -pedestrian the passage shall be made."</p> - -<p>The law of the road requiring vehicles to pass each other on the -right, contrary to the English custom, has been reënforced in many or -all the states by statutory enactments, and applies also to -automobiles. When, therefore, two vehicles meet and collide on a -public highway, which is wide enough for them to pass with safety, the -traveler on the wrong side of the road is responsible for the injury -sustained by the other. But a traveler is not justified in getting his -machine on the right-hand side of the road and then proceeding -regardless of other travelers; on the contrary, the duty of exercising -reasonable care to avoid injuries to others still continues.</p> - -<p>Not only must each one pass to the right, but each must pass on his -own side of the center line of the highway, or wrought part of the -road. And when the road is covered with snow, travelers who meet must -turn to the right of the traveled part of the road as it then appears, -regardless of what would be the traveled part when the snow is gone. -After passing the rear of the forward vehicle an automobilist must -exercise reasonable care in turning back toward the right into the -center of the highway, and if he turns too soon he may be liable for -damages caused by striking or frightening the horses. "If two vehicles -meet in the street, it is the duty of each of them, as seasonably as -he can, to <span class='pagenum'><a name="Page_24" id="Page_24">[24]</a></span>get each on his own right-hand side of the traveled way of -the street."</p> - -<p>The rights of travelers along intersecting streets are equal, and each -must exercise ordinary care to avoid injury to the other. An -automobilist nearing an intersection should run at proper speed, have -his car under reasonable control, and along the right-hand side of the -street. If two travelers approach the street crossing at the same time -neither is justified in assuming that the other will stop to let him -pass. When one vehicle reaches the intersection directly in advance of -the other, he is generally accorded the right of way, and the other -should delay his progress to enable the other to pass in safety.</p> - -<p>The driver of an automobile may be charged with negligence if, without -warning to a vehicle approaching from the rear, he turns or backs his -machine and causes a collision. Indeed, it is negligence for a -chauffeur to back his machine on a city street or public highway -without looking backward; and especially if one backs his car on a -street car track without looking for street cars.</p> - -<p>If an obstruction exists on the right-hand side of a highway, the -driver of a car may be justified in passing to the other side, and in -driving along that side until he has passed the obstacle. Under such -circumstances he has a right to be on the left side temporarily; and -if he exercises the proper degree of care while there, is not liable -for injuries arising from a collision with another traveler. But if -the obstruction is merely temporary, it may be the duty of the driver -to wait for the removal and not to pass on the wrong side of the -highway.</p> - -<p>An automobilist must exercise reasonable or ordinary care to avoid -injury to other persons using <span class='pagenum'><a name="Page_25" id="Page_25">[25]</a></span>the highway. What this is depends on -many circumstances, and each case to some extent is decided by its own -facts. Consequently thousands of cases have already arisen, and -doubtless they will still multiply as long as automobiles are used and -their users are negligent.</p> - -<p>The competency of the driver is one of the unending questions. Of -course he should be physically fit, not subject to sudden attacks of -dizziness, possessing sufficient strength and proper eyesight and a -sober non-excitable disposition. It is said, that a chauffeur is not -incompetent who requires glasses. But he certainly would be if his -eyesight was poor and could not be aided by the use of them.</p> - -<p>The driver must at all times have his car under reasonable control so -that he can stop in time to avoid injury. He must keep a reasonably -careful lookout for other travelers in order to avoid collision; also -for defects in the highway. If by reason of weather conditions, lights -or other obstructions, he is unable to see ahead of him, he should -stop his car. If there be no facilities for stopping for the night, a -driver is not negligent should he proceed through the fog.</p> - -<p>Passing to the liability of the owner of a car for the acts of his -chauffeur, the general rule is, he is then liable when the chauffeur -is acting within the scope of his owner's business. When the owner -himself is riding in the car there is less difficulty in fixing the -liability, but when the chauffeur uses the car without the owner's -consent, he is not liable for the conduct of the driver. And this is -especially so in using a car contrary to the owner's instructions and -for the chauffeur's pleasure; or in using it for his own business with -the owner's consent. And the same rule generally prevails whenever a -member <span class='pagenum'><a name="Page_26" id="Page_26">[26]</a></span>of a family uses his parent's car without his knowledge and -consent, and especially when forbidden. But the parent is liable for -the running of a car with his knowledge by a member of his family and -for the convenience or pleasure of other members. See <i>Chauffeur</i>; -<i>Garage Keeper</i>.</p> - -<br /> - -<p><b>Bailor and Bailee.</b>—To create this relation the property must be -delivered to the bailee. Though a minor cannot make such a contract, -yet if property comes into his possession he must exercise proper care -of it. Should he hire a horse and kill the animal by rash driving, he -would be liable for its value. A corporation may act as bailor or -bailee, and an agent acting therefor would render the corporation -liable unless he acted beyond the scope of his authority.</p> - -<p>Suppose one picks up a pocketbook, does he become the owner? Is he a -bailee? Yes, and must make an honest, intelligent effort to find the -owner; if failing to do so, then he may retain it as his own, -meanwhile his right as finder is perfect as against all others. Should -the true owner appear, whatever right the finder may have against him -for recompense for the care and expense in keeping and preserving the -property, his status as finder does not give him any lien unless the -owner has offered a reward to whoever will restore the property. To -this extent a lien thereon is thereby created.</p> - -<p>The statutes generally provide what a person must do who has found -lost property. Suppose a person appears who claims to be the owner of -the thing found, what shall the finder do in the way of submitting it -to his inspection? In one of the recent cases the court decided that -it was a question of fact and not of law whether the finder of lost -<span class='pagenum'><a name="Page_27" id="Page_27">[27]</a></span>property had given a fair and reasonable opportunity for its -identification before restoring it, and whether the claimant should -have been given an opportunity to inspect it in order to decide -whether it belonged to him.</p> - -<p>The finder does not take title to every article found and out of the -possession of its true owner. To have even a qualified ownership the -thing must be lost, and this does not happen unless possession has -been lost casually and involuntarily so that the mind has no recourse -to the event. A thing voluntarily laid down and forgotten is not lost -within the meaning of the rule giving the finder title to lost -property; and the owner of a shop, bank or other place where the thing -has been left is the proper custodian rather than the person who was -the discoverer.</p> - -<p>If a lost article is found on the surface of the ground, or the floor -of a shop, in the public parlor of a hotel, or near a table at an -open-air place of amusement, or in the car of a railroad it becomes, -except as against the loser, the property of the finder, who -appropriates it regardless of the place where it was found. Once a -boat was found adrift and the finder made the needful repairs to keep -it from sinking, yet the owner was mean enough to refuse to pay for -them. The court compelled him to make good the amount to the finder.</p> - -<p>The law regards the possession of an article which is lost as being -that of the legal owner who was previously in possession, until the -article is taken into the actual possession of the finder. If the -finder does not know who the owner is and there is no clue to the -ownership, there is no larceny although the finder takes the goods for -himself and converts them to his own use. If the finder knows <span class='pagenum'><a name="Page_28" id="Page_28">[28]</a></span>who the -owner is or has a reasonable clue to the ownership, which he -disregards, he is guilty of larceny.</p> - -<p>Another class of cases must be noticed. Very often articles are -delivered to another to have work done on them, hides to be tanned, or -raw materials to be worked up into fabrics. Can a creditor of the -bailee pounce on tanned hides or completed fabrics as belonging to him -and take them in satisfaction of his debt? Both parties have in truth -an interest in the goods, and in general it may be said that the -bailor cannot thus be deprived of his interest and may follow the -goods and recover them or their value.</p> - -<p>If they are destroyed while executing the agreement, who must lose? If -the bailee is not negligent or otherwise at fault, and the loss -happened by internal defect or inevitable accident, the bailor would -be the loser. And if workmen had been employed thereon, the bailor -would also be obligated to pay for their labor.</p> - -<p>To what extent can a bailee limit his liability by agreement? A bailee -who was a cold storage keeper, stated in his receipt "all damage to -property is at the owner's risk." This limitation related, so a court -decided, to loss resulting from the nature of the things stored. A -bailee received some cheese and gave a receipt slating that it was to -be kept at the owner's risk of loss from water. It was injured from -the dripping of water from overhead pipes. The bailee was, -notwithstanding his receipt, held liable.</p> - -<p>A bailor need not always be the owner of the thing bailed. He may be a -lessee, agent, or having such possession and control as would justify -him in thus acting. He should give the bailee notice of <span class='pagenum'><a name="Page_29" id="Page_29">[29]</a></span>all the -faults in the thing bailed that would expose him to danger or loss in -keeping it. For example, if it were a kicking horse, he should warn -the bailee to keep away from his legs.</p> - -<p>The courts have been often troubled about the degree of care required -of bailees, as it differs under varying circumstances. A bank that -permits a depositor to keep a box of jewelry or silver in its vault -for his accommodation, while absent from home and without receiving -any compensation therefor, is not required to exercise the same degree -of care as a safe deposit company whose chief business is to do such -things and is paid for its service. Nevertheless a bank must exercise -reasonable care, such care as is used in keeping its own things.</p> - -<p>Suppose your package is stolen by the cashier or paying teller, is the -bank responsible? That depends. If the bank knows or suspected the -official was living a gay life, it ought not to keep him, and most -banks would not. It is the better legal opinion, that a bank ought not -to keep a president, cashier or other active official who is -speculating in stocks, for the temptation to take securities not -belonging to them has been too great in many cases for them to -withstand. On the other hand if a long-trusted official, against whom -no cause for suspicion had arisen, should steal a package from the -safe, the bank would not be responsible for the loss any more than if -it had been stolen by an outsider. The bank did not employ him to -steal, but to perform the ordinary banking duties.</p> - -<p>A bailee is usually a keeper only. But the nature of the property may -require something more to be done. If he is entrusted with a milch -cow, he must have her milked, or with cattle in the winter time <span class='pagenum'><a name="Page_30" id="Page_30">[30]</a></span>which -require to be served with food, he must supply it, otherwise they -would starve. If he is keeping a horse which is taken sick, proper -treatment should be given.</p> - -<p>When the period of bailment is ended, the thing bailed must be -returned. If it consisted of a flock of sheep, cattle and the like, -all accessions must also be delivered. In many cases the bailee is not -required to return the specific property, but other property of the -same kind and quality. Thus if one delivers wheat for safekeeping, -which is put in an elevator, the contract is fulfilled by delivering -other wheat of similar kind and quality; or, if the wheat is to be -made into flour, by delivering the proper amount of the same quality -as the specific wheat bailed. A bailee has a lien for his service and -proper expenditures in caring for and preserving the thing bailed, but -not for any other debt the bailor may owe him. And if the bailee is a -finder who has bestowed labor on the article found in good faith, the -same rule applies.</p> - -<p>Agisters and livery-stable men have no lien at common law, like -carriers for keeping the animals entrusted to them because they are -under no obligation to take them into their keeping. In Pennsylvania a -different rule was long ago declared, and has ever since been -maintained. As he can agree on terms, he may make such as are -agreeable to both parties. Elsewhere he can impose his own terms, and -may demand his pay in advance, or create, by contract, a lien if he -pleases. A person who is hired as a groom to a horse for a specified -time and at a fixed price, has no lien on the horse for his service, -but has a lien for feed, keeping and shoeing, which should have been -furnished by the owner. A contract to do this is not necessary to -<span class='pagenum'><a name="Page_31" id="Page_31">[31]</a></span>create the lien, it arises as if the horse had been left for keep and -care without saying more.</p> - -<br /> - -<p><b>Bankruptcy.</b>—Before the enactment of the federal Bankruptcy Act of -1898, every state had a bankruptcy act of its own, which was generally -called an insolvency law. The federal act has superseded these by -virtue of the power granted to congress in the federal constitution -"to establish uniform laws on the subject of bankruptcies throughout -the United States."</p> - -<p>The United States district courts in the several states are made -courts of bankruptcy and have power to adjudge all persons bankrupt -who have their principal places of business, residence and domicile -within their respective districts; and jurisdiction also over others -who simply have property within their jurisdiction.</p> - -<p>Any person who owes debts, or business corporation, may become a -voluntary bankrupt. So may an alien. He may also become an involuntary -bankrupt if he has had his principal place of business here, or has -been domiciled within the jurisdiction of the court for the preceding -six months, or has property within its jurisdiction. Some corporations -are still denied voluntary action, as well as minors and insane -persons.</p> - -<p>Who may become an involuntary bankrupt? Any person, except a -wage-earner, or farmer, any unincorporated company, and any -corporation engaged principally in manufacturing, trading, printing, -publishing, or mercantile pursuits, owing debts to the amount of one -thousand dollars. What is a manufacturing corporation, within the -meaning of the law, is not even yet fully known. A corporation engaged -principally in smelting ores is one; <span class='pagenum'><a name="Page_32" id="Page_32">[32]</a></span>and a mining corporation, whose -principal business is to buy and sell ores, is deemed a trading -corporation and may become an involuntary bankrupt.</p> - -<p>Next we may inquire, what are acts of bankruptcy? One of them is an -admission of a person's inability to pay his debts. And this may be -done by a corporation through its properly organized officers. Another -act of bankruptcy is to convey, transfer, conceal or remove property -with the intention to defraud creditors. And by concealment is meant -the separation of some tangible thing like money from the debtor's -estate, and secrete it from those who have a right to seize it for -payment of their debts. The transfers of property covered by the act -are those which the common law regards as fraudulent. If, for example, -at the time of the transfer of his property one is so much indebted -that it will embarrass him in paying his debts, the transfer will be -deemed fraudulent; but a voluntary transfer, made by one who is free -from debt, cannot be impeached by subsequent creditors. The intention -to hinder, delay or defraud creditors is a question of fact to be -ascertained by proper judicial inquiry.</p> - -<p>A general assignment for the benefit of creditors is an act of -bankruptcy. Likewise a general assignment for the benefit of creditors -made by the majority of the board of directors and of the stockholders -is an act of bankruptcy. A petition for the appointment of a receiver -of a corporation under a state statute is not an assignment for the -benefit of creditors and therefore is not an act of bankruptcy.</p> - -<p>Another act of bankruptcy is to suffer or permit, when one is -insolvent, any creditor to acquire a preference through legal -proceedings. The term preference includes not only a transfer of -property, <span class='pagenum'><a name="Page_33" id="Page_33">[33]</a></span>but also the payment of money within four months from the -time of filing his petition in bankruptcy. It is immaterial to whom -the transfer is made if the purpose be to prefer one creditor to -another. Like a fraudulent transfer the intent to prefer must be -proved, though this may sometimes be presumed, as when the necessary -consequence of a transfer or payment made by an insolvent debtor is to -liquidate the debt of one creditor to the entire or partial exclusion -of others.</p> - -<p>Passing to the filing of the petition a voluntary petitioner should -file his petition in the court of bankruptcy in the judicial district -where he has principally resided for the preceding six months. When -there is no estate and no claim has been proved and no trustee has -been appointed, a bankrupt may withdraw his petition on paying the -costs and expenses. The petition must be accompanied by a schedule of -the petitioner's property, showing its kind and amount, location, -money value, and a list of his creditors and their residences when -known, the amount due to them, the security they have, and a claim to -legal exemptions, if having any. After filing a voluntary petition the -judge makes an adjudication. He may do this ex parte, that is without -notice to creditors.</p> - -<p>A petition may be filed against a person who is insolvent and has -committed an act of bankruptcy within four months after such action. -Three or more creditors who have provable claims amounting to five -hundred dollars in excess of securities held against a debtor may file -the petition, or if all the creditors are less than twelve, then one -of them may file the petition provided the debtor owes him the above -stated amount. Creditors holding claims which are secured, or have -priority, <span class='pagenum'><a name="Page_34" id="Page_34">[34]</a></span>must not be considered in determining the number of -creditors and the amount of claims for instituting involuntary -proceedings. The petition should state the names and residences of the -petitioning creditors, also that of the bankrupt, his principal place -of business, the nature of it, his act of bankruptcy, that it occurred -within four months of the filing of the petition, and that the amount -of the claims against him exceed five hundred dollars. The petition -must be signed and properly verified, and may be afterward amended for -cause in the interest of justice. On the filing of the petition a writ -of subpœna is issued addressed to the bankrupt commanding him to -appear before the court at the place and on the day mentioned to -answer the petition. The next step, after serving the petition, is for -the bankrupt to file his answer. Meanwhile his property may be seized -by a marshal or receiver on proof that he is neglecting it or that it -is deteriorating.</p> - -<p>Within ten days after one has been judicially declared to be a -bankrupt, he must file in court a schedule of his property, including -a list of his creditors and the security held by them. Then follows -the first meeting of the bankrupt's creditors, within thirty days -after the adjudication. The judge or referee must be present at this -meeting, also the bankrupt if required by the court. Before proceeding -with other business the referee may allow or disallow the claims of -creditors presented at the meeting, and may publicly examine the -bankrupt, or he may be examined at the instance of any creditor. At -this meeting the creditors may elect a trustee.</p> - -<p>Subsequent meetings may be held at any time and place by all the -creditors whose claims have <span class='pagenum'><a name="Page_35" id="Page_35">[35]</a></span>been allowed by written consent: the -court also may call a meeting whenever one fourth of those who have -proved their claims file a written request to that effect.</p> - -<p>Only a creditor who owns a demand or provable claim can vote at -creditors' meetings. Nor can other creditors through filing objections -to a claim prevent a bona fide claimant from voting. A creditor of an -individual member of a bankrupt partnership cannot vote. Nor can -creditors holding claims that are secured or that have priority vote -only to a limited extent, so far as their claims are on the same basis -as other creditors. To entitle secured and preferred creditors to vote -at the first meeting on the whole of their claims, they must surrender -their securities or priorities. If a portion of a creditor's debt is -secured and a portion is unsecured, he may vote on the unsecured -portion. An attorney, agent, or proxy may represent and vote at -creditors' meetings, first presenting written authority, which must be -filed with the referee. The referee who presides at the first meeting -makes up or decides on its membership. Matters are decided at the -meeting by a majority vote in number and amount of claims of all the -creditors whose claims have been allowed and are present.</p> - -<p>The next stage in bankruptcy proceedings is the proving and allowance -of claims. Only such debts are provable as existed at the time of -filing the petition. Every debt which may be recovered either at law -or in equity may be proved in bankruptcy. A claim barred by the -statute of limitations is not provable, nor is a contingent liability. -On the other hand a debt founded on a contract express or implied may -be proved, for example, damages arising from a breach of a contract -prior to <span class='pagenum'><a name="Page_36" id="Page_36">[36]</a></span>the adjudication in bankruptcy. Again, if there are -agreements or covenants in a contract of a continuing character the -bankrupt is still liable on them notwithstanding his discharge in -bankruptcy. If the amount of a claim is unliquidated the act sets -forth the mode of proceeding. Among other claims that may be proved -are judgments, debts founded on an open account, and rents.</p> - -<p>The claims of creditors who have received preferences are not allowed -unless they surrender them. Thus money paid on account by an insolvent -debtor must be surrendered before a claim for the balance due on the -account can be proved. If proceedings are begun by the trustee to set -aside a preferential transfer to a creditor who puts in a defense, he -cannot thereafter surrender his preference and prove his claim. If a -creditor in proving his debt fails to mention his security, if he has -any, he will be deemed to have elected to prove his claim as -unsecured.</p> - -<p>Claims that have been allowed may be reconsidered for a sufficient -reason and reallowed or rejected in whole or in part, as justice may -require, at any time before the closing of the estate. The -reëxamination may be had on the application of the trustee or of any -creditor by the referee, witnesses may be called to give evidence, and -the referee may expunge or reduce the claim or adhere to the original -allowance.</p> - -<p>The appointment of the trustee by the creditors at their first meeting -is subject to the approval or disapproval of the referee or the judge. -Should the creditors make no appointment the court appoints one. As -soon as he has been appointed it is the duty of the referee to notify -him in person or by mail of his appointment. If he fails to qualify -<span class='pagenum'><a name="Page_37" id="Page_37">[37]</a></span>or a vacancy occurs, the creditors have an opportunity to make another -appointment. If a trustee accepts he must give a bond with sureties -for the faithful performance of his duties. He may also be removed for -cause after notice by the judge only. Should he die or be removed -while serving, no suit that he was prosecuting or defending will abate -but will be continued by his successor.</p> - -<p>The trustee represents the bankrupt debtor as the custodian of all his -property that is not exempt; also the creditors, and gathers all the -bankrupt's property from every source and protects and disposes of it -for the best interests of the creditors, and pays their claims. In -short, he succeeds to all the interests of the bankrupt, is an officer -of the court and subject to its orders and directions. He must deposit -all moneys received in one of the designated depositories, can -disburse money only by check or draft, and at the final meeting of the -creditors must present a detailed statement of his administration of -the estate. During the period of settlement he must make a report to -the court in writing of the condition of the estate, the money on -hand, and other details within the first month after his appointment, -and bi-monthly thereafter unless the court orders otherwise.</p> - -<p>The federal Bankruptcy Act prescribes what property passes to the -trustee and also what is exempt. Whatever property on which a levy -could have been made by judicial process against the bankrupt passes -to the trustee. On the other hand, the income given to a legatee for -life under a will providing it shall not be subject to the claims of -creditors does not pass to the trustee. If the bankrupt has an -insurance policy with a cash surrender value payable to himself or -personal representatives <span class='pagenum'><a name="Page_38" id="Page_38">[38]</a></span>he may pay or secure this sum to the trustee -and continue to hold the policy. And a policy of insurance payable to -the wife, children, or other kin of the bankrupt is no part of the -estate and does not pass to the trustee.</p> - -<p>After one month, and within a year from the adjudication of -bankruptcy, the bankrupt may apply for a discharge. The petition must -state concisely the orders of the court and the proceedings in his -case. Creditors must have at least ten days' notice by mail of the -petition, and then the judge hears the application for discharge, and -considers the proofs in opposition by the parties in interest. Unless -some creditor objects and specifies his ground of objection, the -petition will be granted. The Bankruptcy Act states several reasons -for refusing a discharge, especially when the bankrupt has concealed -his property instead of making an honest, truthful statement -respecting it, or has not kept proper books of account with the -fraudulent intent to conceal his true financial condition and defraud -his creditors.</p> - -<p>Lastly a person may be punished by imprisonment for two years or less -on conviction of having knowingly and fraudulently concealed, while a -bankrupt or after his discharge, any property belonging to his estate -as a bankrupt, or made a false oath in any bankruptcy proceeding, or -made any false claim against his estate or used such a claim in making -a composition with his creditors.</p> - -<br /> - -<p><b>Beneficial Associations.</b>—Beneficial associations possess a varied -aspect, they are both social and business organizations. Often the -members are bound together by secret obligations and pledges. -Trades-unions have a double nature, they are <span class='pagenum'><a name="Page_39" id="Page_39">[39]</a></span>created for both -beneficial and business purposes. Originally their beneficial -character was the more important feature. Benefit societies may be -purely voluntary associations or incorporated either by statute or -charter.</p> - -<p>The articles of association formed by the members are essentially an -agreement among them by which they become bound to do specified things -and incur liabilities. They thus establish a law for themselves -somewhat like a charter of a corporation. They may adopt such rules as -they like provided they are not contrary to the laws of the land. As -the members, having made the rules, are presumed to know them, they -are therefore bound by them.</p> - -<p>The legal status of such associations, their right to sue and be sued, -the liability of the members to the public for the debts of the -association, though most important questions, are not as well settled -as they might be. In many states statutes exist defining their right -to sue and be sued, and their liability to creditors. Yet these -statutes do not cover all cases. Generally persons who associate for -charitable or benevolent purposes do not regard themselves in a legal -sense as partners. Nevertheless in fixing their liability to -creditors, dividing their property, and closing up their affairs, the -courts often, though not always, treat their association as a -partnership, and the members as partners. Thus the highest court in -New York declared that an unincorporated lodge, which had been -mis-managed, was not a partnership. The members sought to dissolve the -lodge, and distribute its property. The court said there was no power -to compel the payment of dues, and the rights of a member ceased after -his failure to meet his annual subscription. On the other hand, the -supreme <span class='pagenum'><a name="Page_40" id="Page_40">[40]</a></span>court in the same state held that the members of a voluntary -association were liable to its creditors by common law principles. -"Where such a body of men join themselves together for social -intercourse and pleasure, and assume a name under which they commence -to incur liabilities by opening an account, they become jointly liable -for any indebtedness thus incurred, and if either of them wishes to -avoid his personal responsibility by withdrawal from the body, it is -his duty to notify the creditors of such withdrawal."</p> - -<p>If one or more members order work to be done or purchase supplies, he -or they are personally liable unless credit was given to the -association.</p> - -<p>What can the members do? They cannot change the purpose for which the -association was formed without the consent of all, still less can the -executive board convert the association into a corporation. No member -has a proprietary interest in the property, nor right to a -proportionate part while he is a member, or after his withdrawal. -Should an association dissolve, then the members may divide its -property among themselves.</p> - -<p>Sometimes a quarrel springs up in one of these associations, the -members divide, who shall have the property? The members of more than -one church organization have fought this question, first among -themselves, afterwards in the courts. Suppose a quarrel breaks out in -a branch association and two parties are formed, which of them is -entitled to the property? The party that adheres to the laws and -usages of the general organization is regarded as the true -association, and is therefore entitled to the enjoyment of the -property. Though that party may be a minority of the faithful few, the -members are enough to continue the organization.</p> - -<p><span class='pagenum'><a name="Page_41" id="Page_41">[41]</a></span>Sometimes societies of a quasi religious character exist which persons -join, surrendering their property and receiving support. Suppose a -member should leave, and afterwards sue to recover his property. This -has been attempted, and usually ends in failure.</p> - -<p>Are benefit societies charities? This question is important from the -taxpayer's view, as charitable associations are taxed less than others -or perhaps entirely relieved. An Indiana court has decided that a -corporation which promises to pay a fixed sum as a benefit during a -member's illness—he of course paying his dues—is not a purely -benevolent organization, and therefore not exempt from taxation. -Masonic lodges on the other hand, are generally regarded as charitable -institutions. "The true test," says a judicial tribunal, "is to be -found in the objects of the institution."</p> - -<p>Again, a voluntary association may conduct in such a way as to create -the impression or belief that it is a corporation, and is forbidden -from denying its corporate liability for an injury or loss to a third -person. It is a familiar rule that a person who transacts business -with a partnership in the partnership name may hold all the members -liable as partners, though he did not know all their names. This rule -has sometimes been applied to a voluntary association, making it -responsible as a corporation.</p> - -<p>The articles of association regulate the admission of members. A -physician who applied for membership in a medical society was rejected -because of unprofessional conduct. A code of medical ethics adopted by -the society was declared to be binding only on the members, and -therefore did not touch the conduct of one prior to his becoming a -member of the society. If the membership of a society is <span class='pagenum'><a name="Page_42" id="Page_42">[42]</a></span>confined to -persons having the same occupation, a false representation concerning -one's occupation would be a good reason for his expulsion. In -admitting a member, if no form of election has been prescribed, each -candidate must be elected separately. This must also be done at a -regular meeting or at one properly called for that purpose. A call -therefore to transact any business that may be legally presented is -not sufficient.</p> - -<p>If a society requires a ceremony of initiation, is the election of a -member so complete that he is entitled to benefits without proper -initiation? In one of the cases the court said: "The entire system, -its existence and objects, are based upon initiation. We think, there -can be no membership without it, and no benefit, pecuniary or -otherwise, without it."</p> - -<p>Controversies concerning property rights of religious societies are -generally decided by one of three rules: (1) "was the property a fund -which is in question devoted to the express terms of the gift, grant -or sale by which it was acquired, to the support of any specific -religious doctrine or belief or was it acquired for the general use of -the society for religious purposes with no other limitation; (2) is -the society which owned it of the strictly independent or -congregational form of church government, owing no submission to any -organization outside of the congregation; (3) or is it one of a number -of such societies, united to form a more general body of churches, -with ecclesiastical control in the general association over the -members and societies of which it is composed."</p> - -<p>Many benefit societies provide for the payment of money to their sick -members. The rules providing for the payment of these may be changed -at any time as the constitution or articles of association of <span class='pagenum'><a name="Page_43" id="Page_43">[43]</a></span>a -society may prescribe. Consequently an amendment may be made -diminishing the weekly allowance to a member who is sick, and also the -time of allowing it. Of course in applying for the benefits a member -must follow the modes prescribed.</p> - -<p>The power to expel members is incident to every society or association -unless organized primarily for gain. Gainful corporations have no such -power unless it has been granted by their charter or by statute. The -revision of the list of members by dropping names is equivalent to the -expulsion of those whose names are dropped, and by a majority vote or -larger one as the rules of the society may require. Nor can the power -of expulsion be transferred from the general body to a committee or -officer. The power to expel must be exercised in good faith, not -arbitrarily or maliciously, and its sentence is conclusive like that -of a judicial tribunal. Nor will a court interfere with the decision -of a society except: first, when the decision was contrary to natural -justice and the member had no opportunity to explain the charge -against him; secondly, when the rules of the association expelling him -were not observed; thirdly, when its action against him was malicious. -Nor will a court interfere because there have been irregularities in -the proceedings, unless these were of a grave character.</p> - -<p>The charges must be serious, a violation of a reasonable by-law is a -sufficient charge. To obtain, by feigning a qualification which did -not exist, membership in a trades-union is sufficient cause for -expulsion; so is fraud in representing one's self in his application -for membership when in fact he has an incurable disease. On the other -hand, the following charges are not sufficient to justify expulsion or -suspension: slander against the society, illegally <span class='pagenum'><a name="Page_44" id="Page_44">[44]</a></span>drawing aid in -time of sickness, defrauding the society out of a small sum of money, -villifying a member, disrespectful and contemptuous language to -associates, saying the lodge would not pay and never intended to pay, -ungentlemanly conduct. In harmony with a fundamental rule of law, a -member who has once been acquitted cannot be tried again for the same -offense.</p> - -<p>As subordinate lodges of a benefit society are constituent parts of -the superior governing body, there may be an expulsion from membership -in a subordinate lodge for violating laws which generally caused -expulsion from the society itself, and there may be a conditional -expulsion or suspension. If an assessment is not paid at the fixed -time, its non-payment, by the laws of the order, works a suspension, -though a member may be restored by complying with the laws of the -order.</p> - -<p>An appeal by a member of a subordinate lodge from a vote of expulsion -does not abate by his death while the appeal is pending. If, -therefore, the judgment of the lodge is reversed, the beneficiary of -the member is entitled to the benefits due on the member's death. A -member who has been wrongfully expelled may be restored by a mandamus -proceeding issued by a court. Before making the order the court will -inquire into the facts and satisfy itself whether in expelling the -applicant the society has properly acted in accord with its rules. -Unless some rule or statute forbids, a member of a voluntary -association may withdraw at any time. When doing so, however, he -cannot avoid any obligations incurred by him to the association. On -the other hand, it cannot, after his withdrawal, impose any other -obligations on him.</p> - -<p>It has often been attempted to hold the members <span class='pagenum'><a name="Page_45" id="Page_45">[45]</a></span>of an association -liable personally for a promised benefit in time of sickness. Says -Bacon: "It may be a question of construction in each particular case -whether the members are personally liable or not. The better rule -seems to be that the members are not held personally liable."</p> - -<p>An association cannot by its constitution or by-laws confer judicial -powers on its officers to adjudge a forfeiture of property rights, or -to deprive lodges or members of their property and give it to another, -or to other members. To allow associations to do this is contrary to -public policy. For the same reason an agreement to refer future -controversies to arbitration cannot be enforced; it in effect deprives -a party of his rights under the law. He may do this in a known case, -this indeed is constantly done, but one cannot bar himself in advance -from a resort to the courts for some future controversy of which he -has no knowledge at the time of the agreement. This is a rule of law -of the widest application.</p> - -<br /> - -<p><b>Broker.</b>—A broker, unlike an auctioneer, usually has no special -property in the goods he is authorized to sell. Ordinarily also he -must sell them in the name of the principal, and his sales are -private. He receives a commission usually called brokerage. He can act -only as the agent of the other party when the terms of the contract -are settled and he is instructed to finish it. Brokers are of many -kinds. They relate to bills and notes, stocks, shipping, insurance, -real estate, pawned goods, merchandise, etc. A bill and note broker -who does not disclose the principal's name is liable like other agents -as a principal. He is also held to an implied authority, not only to -sell, but that the signatures of all the <span class='pagenum'><a name="Page_46" id="Page_46">[46]</a></span>parties thereon are genuine. -Unless he indorses it he does not warrant their solvency.</p> - -<p>An insurance broker is ordinarily employed by the person seeking -insurance, and is therefore unlike an insurance agent, who is a -representative of an insurance company, and usually has the authority -of a general agent. A delivery of a policy therefore, to an insurance -broker, would be a delivery to his principal. He is a special agent. -Unless employed generally to keep up his principal's insurance, he has -no implied authority to return a policy to be cancelled, and notice to -him that a policy had ceased, would not be notice to his principal.</p> - -<p>An insurance broker must exercise reasonable care and diligence in -selecting none but reliable companies, and in securing proper and -sufficient policies to cover the risks placed to be covered by -insurance; and if he selects companies which are then in good standing -he would not be liable should they afterward become insolvent.</p> - -<p>Merchandise brokers, unless factors, negotiate for the sale of -merchandise without having possession or control of it. Like other -agents they must serve faithfully and cannot act for both parties, -seller and buyer, in the same transaction, without the knowledge and -consent of both. In many transactions he does thus represent both by -their express or implied authority, and therefore binding both when -signing for them.</p> - -<p>A real estate broker in the employ of his principal is bound to act -for his principal alone, using his utmost good faith in his behalf. -And a promise by one of the principals in an exchange of real estate, -after the completion of the negotiations, to pay a commission to the -other party's broker, to whom he owed nothing, is void for lack of a -consideration.</p> - -<p><span class='pagenum'><a name="Page_47" id="Page_47">[47]</a></span>To gain his commission a broker must produce a person who was ready, -able and willing both to accept and live up to the terms offered by -the owner of the property. Nor can a property owner escape payment of -a broker's commission by selling the land himself and at a price less -than the limit put on the broker.</p> - -<p>The business of a pawnbroker is legally regulated by statute, and the -states usually require him to get a license. As the business may be -prohibited, a municipality or other power may regulate and control his -business. The rate of interest that he may charge is fixed by statute. -The pawnee may lose his right by exacting unlawful interest. Nor has -the pawnee the right to retain possession against the true owner of -any article that has been pawned without his consent or authority. If -the true owner has entrusted it to someone to sell, who, instead of -selling, pawns it, the pawner is protected in taking it as security. -The sale of pawned goods is usually regulated by statute. If none -exists, and there is no agreement between the parties, the sale must -be public after due notice of the time and place of sale. If there is -any surplus, arising from the sale, he must pay it to the pawner, and -not apply it on another debt that he may owe the pawnee. The pawner, -or an assignee or purchaser of the pawn ticket may redeem it within -the time fixed by law or agreement, or even beyond the agreed time if -the pawnee has not exercised his right of sale. Subject to the -pawnee's claim, the pawner has the same right over the article pawned -as he had after pawning it, and may therefore sell and transfer his -interest as before. Lastly the pawner is liable for any deficiency -after the sale of the thing pawned, unless released by statute. See -<i>Agency</i>.</p> - -<br /> - -<p><span class='pagenum'><a name="Page_48" id="Page_48">[48]</a></span><b>Carrier.</b>—Carriers are of two kinds, private and public. A private -carrier may contract orally or in writing, and must use such care in -carrying the goods entrusted to him as a man of ordinary intelligence -would of his own property. If he carries these gratuitously his -obligation is still less, nevertheless he must even then take some -care of them. Suppose he agreed to carry a package for another to the -latter's home, and on the way, being weary or sleepy, should sit down -by the wayside where people often pass and fall asleep and on -awakening should find the package missing, would he be responsible? -Authorities differ. Suppose the package was a very valuable one. A -court might hold that the man who gave it to him was a fool for -entrusting such a package voluntarily with him. Suppose however that -he was a highly trustworthy man, well known throughout the -neighborhood, then no fault could be imputed to either, and the owner -would be obliged to bear the loss.</p> - -<p>Common carriers are far more numerous and important. Receiving a -reward they are required to exercise more care in the business. The -old rule of the common law was very strict, but this has been greatly -modified. A carrier may modify the rule by contract, and the bill of -lading received by the shipper is regarded as one, and sets forth his -liability. In a general way he can relieve himself from all liability -except from his own negligence, and there are cases which hold that he -can relieve himself even from that if the shipper, for the sake of -having his goods carried at a lower price, is willing to relieve him, -in other words is willing to assume all the risk himself.</p> - -<p>A carrier can limit his liability for the loss of baggage entrusted to -his care and when one receives <span class='pagenum'><a name="Page_49" id="Page_49">[49]</a></span>a receipt describing the amount of the -carrier's liability in the event of loss. Nor can he hold the company -on the plea of ignorance by declaring he has not read it, for it is -his duty to read the receipt. Again, a carrier is thus liable only -when a traveler's baggage is entrusted to his care; if therefore he -keeps his grip or umbrella and on looking around makes the painful -discovery that he has been relieved of them, he cannot look to the -carrier for compensation.</p> - -<p>The law requires carriers to carry all who pay their fare, and are in -a sufficiently intelligent condition to take care of themselves. In -like manner the law requires them to take all freight that may be -offered, though it may make reasonable rules with regard to the time -of receiving it, mode of packing, etc. A regulation therefore that -furniture must be crated is reasonable, and a carrier may refuse to -take it unless it is thus prepared for shipment. So also is a rule -requiring glass to be boxed though the distance may be short for -carrying it. A carrier may also object to carrying things out of -season, potatoes or fruit for example in the winter in the northern -states where there is great danger of freezing, unless the shipper -assumes the risk. Vast quantities of perishable goods are carried, but -usually under definite regulations and contracts. So, too, the shipper -must declare the nature of the thing carried. Should he put diamonds -in his trunk, he could not recover for their loss, for he has no -business to carry such a valuable thing in that way. He must make -known the contents for the carrier's protection. He cannot carry an -explosive in secrecy. To attempt to do such a thing is a manifest -wrong to the carrier.</p> - -<p>A carrier has a lien or right to hold the freight <span class='pagenum'><a name="Page_50" id="Page_50">[50]</a></span>until the charge -for transporting it is paid, but if it is delivered, the lien ceases -and cannot be restored. If the carrier keeps it until the freight -charge is paid discretion must be used, and unnecessary and -unreasonable expense must not be incurred in so doing.</p> - -<p>A different rule applies to carrying passengers than applies to -freight, because the latter is under its complete control, while -passengers are not. Nevertheless the law requires a high degree of -care in carrying passengers, and is responsible in money damages -should injury occur through the carrier's negligence. In many states -statutes exist limiting the amount that a carrier must pay when life -is lost through its negligence to five thousand dollars or other sum, -while a much larger sum is often recovered for an injury, loss of a -leg, arm or the like. From the carrier's point of view therefore it is -often obliged to pay less for killing than for injuring people; this -is one of the strange anomalies of the law.</p> - -<p>When a passenger is injured and no agreement can be made with the -carrier for compensation, a suit is the result and the chief question -is one of fact, the extent of the injury, and the degree of negligence -of the carrier. If, on the other hand, the passenger was in fault -himself and contributed to the injury then the more general rule is he -can recover nothing. In some states the courts attempt to ascertain -the negligence of both parties, when both are at fault, and then award -a verdict in favor of the one least in fault. This is a difficult rule -to apply however just it may seem to be.</p> - -<p>A passenger who stands on a platform or on the steps of a street car, -when there is room inside, assumes all the risks himself. But if there -is no <span class='pagenum'><a name="Page_51" id="Page_51">[51]</a></span>room within and the conductor knows he is outside, and permits -him to ride, he is under the same protection as other passengers. An -interurban car had stopped and A who was carrying two valises -attempted to board it. The act of the conductor, who was on the rear -platform, in reaching down and taking one of the valises amounted to -an invitation to A to board the car. In signaling to the motorman to -start the car when A was stepping to the vestibule from the lower -step, thus causing the injury to him, was negligence for which the -company was liable.</p> - -<p>A sleeping car company operating in connection with ordinary trains is -not a common carrier, nor an innkeeper as to the baggage of a -passenger. Yet it is liable for ordinary negligence in protecting -passengers from loss by theft. In a well-considered case the judge -said: "Where a passenger does not deliver his property to a carrier, -but retains the exclusive possession and control of it himself, the -carrier is not liable in case of a loss, as for instance, where a -passenger's pocket is picked, or his overcoat taken. A person asleep -cannot retain manual possession or control of anything. The invitation -to make use of the bed carries with it an invitation to sleep, and an -implied agreement to take reasonable care of the guest's effects while -he is in such a state that care upon his own part is impossible. I -think it should keep a watch during the night, see to it that no -unauthorized persons intrude themselves into the car, and take -reasonable care to prevent thefts by occupants."</p> - -<p>There is a distinction between the great express companies of the -country and local express companies receiving baggage from travelers -for transportation to their immediate destination. In the <span class='pagenum'><a name="Page_52" id="Page_52">[52]</a></span>latter case -there is nothing in the nature of the transaction or the custom of the -trade which should naturally lead the shipper to suppose that he was -receiving and accepting the written evidence of a contract, and -therefore he is not bound by the terms of the receipt received, unless -there is other evidence that he assented thereto.</p> - -<p>Though the United States is a common carrier for carrying mails, it -cannot be held liable because it is a branch of the government. Mail -matter may be carried by private persons, but this is limited to -special trips. By statute no person can establish any private express -for carrying letters or packets by regular trips or at stated periods -over any post route, or between towns, cities or other places where -the mail is regularly carried.</p> - -<p>A public officer in performing his duties is exempt from all -liability. But a postmaster is liable to a person injured by his -negligence or misconduct and for the acts of a clerk or deputy -authorized by him. The assistant unless thus shielded must answer for -his own misconduct. A rider or driver employed by a contractor for -carrying the mails is an assistant in the business of the government. -Although employed and paid, and liable to be discharged at pleasure by -the contractor, the rider or driver is not engaged in his private -service; he is employed in the public service and therefore the -contractor is not liable for his conduct.</p> - -<br /> - -<p><b>Chattel Mortgage.</b>—A chattel mortgage is a conveyance of personal -property, as distinguished from real property, to secure the debt of -the lender or mortgagor. The essence of the agreement is, if the -mortgagor does not repay the money as he has agreed to do, the -mortgagee becomes the owner of <span class='pagenum'><a name="Page_53" id="Page_53">[53]</a></span>the property. Until the mortgagor -fails to execute his part of the agreement, he retains possession of -the property. By statutes that have been enacted everywhere, the -mortgagee's interest, or conditional title in the property conveyed to -him, is secure by recording the deed even though the mortgagor still -retains possession.</p> - -<p>The usual form of a chattel mortgage is a bill of sale with a -conditional clause, stating the terms of the loan and that, on the -mortgagor's failure to pay, the mortgagee may take possession of the -property. Any persons who are competent to make a contract may make a -chattel mortgage, and an agent may act for another as in many other -cases. When thus acting his authority may be either verbal, or -written, or may be shown by ratification. Persons also who have a -common ownership in chattels, tenants in common or partners for -example, may mortgage either their common or individual interests. A -husband may give a chattel mortgage to his wife, and she in turn can -give one to him. Likewise a corporation may make such a mortgage.</p> - -<p>The law is broader in the way of permitting a minor, married woman, or -corporation to be mortgagees when they cannot act as mortgagors of -their property. Two or more creditors may join in such a mortgage to -secure their separate debts. If the debt of one of them is fraudulent, -his fraud, while rendering the mortgage fraudulent as to him, will not -affect its validity as to the other.</p> - -<p>How must the mortgaged property be described? With sufficient -clearness to enable third persons to identify the property. The -description must contain reasonable details and suggest inquiries -which if followed will result in ascertaining the precise thing -conveyed. A description of a baker's stock <span class='pagenum'><a name="Page_54" id="Page_54">[54]</a></span>"stock on hand," would be -too meager, so would be a description of "our books of account, and -accounts due and to become due," but cattle described by their age, -sex and location will satisfy the law, though the cattle of other -owners should form part of the same herd, when they can be ascertained -by following out the inquiries suggested by the mortgage. Again, a -description that is wholly false avoids the mortgage, but if it is -false only in part, this may be rejected and the mortgage remain valid -for the remainder.</p> - -<p>More generally the nature of the chattels conveyed determine largely -the character of the description. Thus animals may be described by -weight, age, height, color and breed; vehicles by their style and -manufacturer's name; furniture by piece or set; crops growing or to be -grown by their location and year. A general claim of "all" articles in -a stated place is regarded as sufficient. Oral evidence is admissible -to aid the description in identifying the subject-matter of the -mortgage, and to explain the meaning and extent of the terms of the -description.</p> - -<p>A mortgage may be given for a future advance of money. Nor need the -mortgage state that it is thus given; and the fact may be proved -orally. But when the right of third parties are affected, such a -mortgage is not valid against them unless the specific sum that is to -be secured is set forth. Likewise to render a mortgage secure against -attaching creditors of the mortgagor, there must be a distinct -statement of the condition or terms of the mortgage; in other words -the creditors have a right to know what interest the mortgagee really -has in the property that secures to him rights superior to their own. -The rule should also be stated that where the rights of third parties -are in issue, it must appear that the <span class='pagenum'><a name="Page_55" id="Page_55">[55]</a></span>mortgagee acquired the mortgage -before they had any rights to the property.</p> - -<p>The statutes require that chattel mortgages should be acknowledged and -recorded. In some states the requirements are strict in respect to the -disinterestedness of the official who takes the acknowledgment. An -affidavit is another requirement. This must state several things, -especially that the mortgage was given in good faith, and the nature -and amount of the consideration.</p> - -<p>What may be mortgaged? In general, any personal property that may be -sold; many of the statutes define it. They cover a life insurance -policy, corporation stock, railway rolling stock, seamen's wages, -growing crops and trees, profits from the use of a steamboat, premiums -earned by a horse, book accounts, leasehold interests, nursery stock, -besides many other things. Whenever fixtures annexed to real estate -retain the character of personal property they may be mortgaged. And -when animals are mortgaged their natural increase are included. A -mortgage made of an unfinished article will hold the article when -finished if it can be identified.</p> - -<p>By the common law nothing could be mortgaged that was not in existence -at the time of the mortgage. By statute a mortgage may cover -after-acquired property, and this statute has become very important -especially with merchants, manufacturers, and others who are -constantly changing their stocks of goods.</p> - -<p>When the mortgagor fails to pay his debt, the right of the mortgagee -to proceed in taking the property is usually regulated by statute, -except when the parties have agreed themselves and in conformity with -statute. The rights of the <span class='pagenum'><a name="Page_56" id="Page_56">[56]</a></span>mortgagee depend in many cases on the -title, whether that has passed to him by virtue of the mortgage, or -whether it still remains conditionally in the mortgagor. Where the -mortgagor still retains the title, a clause is often put into the -mortgage to the effect that, should the mortgagor default in payment, -the mortgagee may take possession of the property and sell it; and -such a provision is valid and enforcible. Where the title is vested or -transferred to the mortgagee by virtue of the mortgage, this is -equivalent to giving him possession whenever he chooses to demand it. -In other states the mortgagee's discretion is not so broad, before -taking possession he must have reasonable grounds for believing -himself insecure, that the mortgagor has done, or threatens to do, -something that would impair the mortgagee's security.</p> - -<p>Where the common law prevails and no statute has been enacted -regulating the rights of parties, an important question is still -unsettled in cases of a mortgage given on a stock of merchandise which -permits the mortgagor to remain in possession and to sell the property -mortgaged in the course of trade. Can he do this? In many states such -a mortgage is regarded as fraudulent to creditors, in other states if -such a mortgage is not, on proper judicial inquiry, proved to be a -fraud, it will be upheld.</p> - -<p>A provision in a mortgage that it shall cover after acquired property -is regarded in some states as an executory agreement that it shall be -held by the mortgagee as security; and the mortgagee may take -possession of it, should the mortgagor fail to pay his debt, in -accordance with his promise, before the rights of third persons have -intervened. See <i>Mortgage</i>.</p> - -<br /> - -<p><span class='pagenum'><a name="Page_57" id="Page_57">[57]</a></span><b>Chauffeur.</b>—In many states minors are forbidden by statute to run -automobiles. If therefore the owner of a car permits a minor to drive -his car, he may be held liable for the injuries resulting from the -driver's negligence. Should a chauffeur's license not disclose -physical disabilities the license is not void, nor is he a trespasser -in operating the machine on the highway. Such a license though -defective is valid until revoked by the proper authority.</p> - -<p>If discharged before the expiration of the term of his employment, an -employer is still liable for his chauffeur's pay unless he has been -unwilling or unable to fulfill his contract. If, however, he has been -prevented by sickness or similar disability, he can recover, not -perhaps the amount stated in the contract, but the worth of his -services during the period of serving his employer.</p> - -<p>A chauffeur may recover damages from his employer for injuries -received while operating his car. The basis of the action is his -employer's negligence. If the engine "kicks back" while he is cranking -the car, and the employer contributed to the result by moving the -spark lever, he is liable. If he is injured while running a car from a -defective brake of which he had knowledge, he cannot recover. But if -the employer knew, and the chauffeur did not know that the brake was -defective, he could recover if injured in consequence of it. The -employer is under no duty to warn his chauffeur of obvious dangers, or -instruct him in matters that he may be fairly supposed to understand. -If a chauffeur is riding at the owner's request, who is driving the -car, he may recover if injured by the negligence of the owner in -running the machine. Under the Workmen's Compensation Laws a chauffeur -who is injured while running his car beyond the speed limit -<span class='pagenum'><a name="Page_58" id="Page_58">[58]</a></span>prescribed by statute can recover nothing. Nor is he justified by the -custom of other chauffeurs in disregarding the rule. Lastly, if the -owner of a car is injured, physically or financially, by reason of the -wrongful conduct of his chauffeur, he has a remedy against him. See -<i>Automobile</i>; <i>Garage Keeper</i>.</p> - -<br /> - -<p><b>Check.</b>—A check should be properly signed. A check signed by an -individual with the word "agent," "treasurer," or other descriptive -term, has sometimes been regarded as the check of the individual -signer, and not that of a principal or company. The proper way is to -sign the name of the principal or company, adding the name of the -person by whom this is done, thus: "John Smith by John Doe, agent," or -"The Atlas Co. by John King, Treasurer," or other official -designation.</p> - -<p>The statement will not accord with the view of many a reader, that a -bank on which a check is drawn is under no legal agreement with the -holder to pay it, whether the maker has a sufficient deposit or not. -Consequently, should the bank refuse to pay, the holder has no cause -of action against the bank. The agreement to pay is between the bank -and the depositor, and if the bank fails to fulfill its agreement with -him, he has a just cause for complaint. Sometimes a bank declines to -pay supposing, through an error of bookkeeping perhaps, that the -depositor has not money enough there to pay his check. In such a case, -as the bank is in the wrong, if the depositor has suffered from loss -of credit or in any other way from the bank's action, it must respond -and make the loss good.</p> - -<p>Suppose a person presents a check and the maker's deposit is not -enough to pay the full amount, what can be done? Usually the bank -declines to <span class='pagenum'><a name="Page_59" id="Page_59">[59]</a></span>pay. Suppose the holder says he is willing to give up the -check and take the amount in the bank? There is no reason why the bank -should not accede to his wishes. Suppose a bank should pay more than -the amount on deposit through no fraud of the holder, from whom can it -recover the amount? If the holder has been free from wrong in -presenting the check, the bank cannot look to him, but to the drawer -for repayment. If the maker of a check has no money in the bank, -perhaps he may not be a depositor, he commits a fraud in making and -giving his check to another, and the offense in many states is deemed -a crime: likewise a person who receives such a check knowing its true -nature is equally deep in the wrong.</p> - -<p>The law is very strict in its requirement of banks when paying the -checks of customers. After a check has been delivered and has -therefore passed beyond the maker's control, the law requires the -greatest care on the part of a bank in paying it. The bank must be -especially careful in examining the signature and the amount, and if -the signature has been forged, or the amount changed, the bank is -liable for an improper payment. Once an employer gave his trusted -clerk a post-dated check, which he was to present on the day -specified, and, after drawing the money, was to pay this to his -employees. The clerk changed the date to an earlier one, drew the -money, kept it and fled. The court said the bank should have detected -the alteration. The bank contended that had the clerk waited until the -proper day, and then drawn the money, it would not have been liable. -The court said that was not the case presented, the clerk did not -wait. Banks suffer, far more than the public knows, from the payment -of raised checks, for it is quite <span class='pagenum'><a name="Page_60" id="Page_60">[60]</a></span>impossible always to detect them, -yet banks are held liable therefor.</p> - -<p>There are two rules relating to the payment of checks worth -mentioning. One is, the maker of a check should use proper precaution -in making it. He should write in a way that will not be likely to -confuse the paying official. For instance, if in the above case the -maker, intending to give a post-dated check, had written the date so -imperfectly that the teller was misled, the bank would not have been -liable for paying it, or for refusing to pay because there was not -money enough in the bank at the time of presentation for payment. Some -persons are very careless in making figures; when they are, they -cannot look to the bank for the ill consequence of their own neglect.</p> - -<p>Again, if a bank paid forged checks, for example, which were returned -with other checks on the balancing of a depositor's book, and months, -perhaps years afterward, the depositor discovered the forgeries or -forged indorsements, he could, notwithstanding the lapse of time, -demand of the bank the sums wrongfully paid. This was a great hardship -to banks, and has been corrected in many states by statutes and by the -courts in others. The rule now is, the depositor must, within a -reasonable time after the return of his bank book, examine it, also -his checks, and, if payments have been improperly made, demand -immediate correction.</p> - -<p>The holder of a check should demand payment within a reasonable time -after he has received it. He may keep it longer if he pleases, but if -he does, and the bank should fail, he cannot demand payment again from -the maker of the check. He in effect says to the holder of the check -when giving it to him, "present this check to the bank within <span class='pagenum'><a name="Page_61" id="Page_61">[61]</a></span>the -proper time and it will be paid, if you keep it longer, you do it at -your risk." What is a reasonable time? The law has fixed it. If the -bank is in the town or city where the holder of the check dwells, he -must present it the day he received it, or the next day. If it is -drawn on a bank outside, the check must be forwarded for presentment -at the latest on the day after it is received. With respect to the -first class of checks therefore if the maker and receiver are both -depositors of the same bank, the operation on the part of the bank -consists simply in debiting one account and crediting another with the -amount; if checks are drawn on another bank in the same city the -receiver usually deposits them in his own bank and they are paid -through the clearing house the next day.</p> - -<p>A drawer may stop the payment of his check. And when he requests the -bank to do so it must heed his instruction, and is liable if -neglecting, though not always for the whole amount of the check. -Suppose the check was given for a bill which the maker actually owed, -yet for some reason, after giving the check, he did not wish to pay. -If it was actually due and undisputed it would be hardly just to -require the bank to pay the check over again to the holder, this would -be too much. But for whatever injury the maker of the check may have -sustained the bank must make good.</p> - -<p>When a check has been certified by the bank on which it is drawn, the -effect of the certification after the drawer has parted with it "is -precisely as if the bank had paid the money upon that check instead of -making a certificate of its being good." The check is charged up to -the maker, or should be, and therefore as between him and the bank has -been paid.</p> - -<br /> - -<p><span class='pagenum'><a name="Page_62" id="Page_62">[62]</a></span><b>Citizen.</b>—In modern usage this means a member of the body politic -who owes allegiance to the nation and is entitled to public -protection. One may be a citizen of the United States without being a -citizen of any state, for example, a citizen of the District of -Columbia, or the territory of Alaska. Citizen-ship implies the duty of -allegiance to the government, and the right of protection from it. A -citizen of the United States who resides in a state owes a double -allegiance, and can demand protection from each government. For the -ordinary rights of person and property he looks to the state for -protection. The rights for which he can seek the protection of the -United States are only such as are established by the constitution and -federal laws. For some purposes even a corporation may be included -within the term citizen, for example the right to sue in the federal -courts as a citizen of the incorporating state.</p> - -<p>By the fourteenth amendment of the federal constitution, all persons -born in the United States and subject to its jurisdiction are citizens -of the United States. In 1855 Congress passed an act conferring -citizenship on alien women who should marry American citizens. An -American woman therefore who marries an alien takes the nationality of -her husband. When her marital relation ends she may elect to retain -her marital or her original citizenship. Since minor children follow -the status of their parent, by the marriage of an alien widow to an -American citizen, her children also become American citizens.</p> - -<p>An alien may be naturalized. To do this he must have continuously -resided in the United States for five years before his application, -and he must have appeared in court at least two years before, and -there declared his intention to become a citizen of <span class='pagenum'><a name="Page_63" id="Page_63">[63]</a></span>the United States -and to renounce allegiance to his former sovereign. He must prove by -the oath of at least two persons his residence, also during that time -that he has behaved as a man of good moral character and attached to -the principles of the federal constitution. He must take an oath to -support and defend the constitution and laws of the United States and -renounce allegiance to any foreign prince. The naturalization of a -person confers citizenship on his minor children if dwelling in the -United States, also on his wife, unless she is of a race incapable of -American citizenship.</p> - -<p>The rights of aliens, from the very beginning of the American -government, have been expanded by treaty provisions and by liberal -legislation. In nearly all the states resident aliens were given the -right to take title to land, whether by deed or by inheritance, to -hold such real estate and to transfer it by law or by descent. In some -states they were given the right to vote and hold office. And at -common law they were entitled to purchase, own and sell personal -property, engage in business and to make contracts and wills. By the -fourteenth amendment to the federal constitution their rights and -privileges have been further secured.</p> - -<p>Aliens owe to the country in which they reside a temporary and limited -allegiance, that is, an obligation to obey its laws and subject -themselves to the jurisdiction of the courts. A non-resident alien is -not within the terms of the fourteenth amendment, indeed it is -doubtful if he can ask any aid or relief under the state or federal -constitutions. A statute therefore imposing a higher inheritance tax -on property passing to a non-resident alien than on his property if he -resided here is valid. Non-resident aliens can acquire no rights -incident to residence <span class='pagenum'><a name="Page_64" id="Page_64">[64]</a></span>here except as permitted by the federal -government. This power may be exercised, either through treaties made -by the president and senate, or through statutes enacted by congress. -So congress has excluded not only diseased, criminal, pauper and -anarchist immigrants, but also contract and Chinese laborers.</p> - -<br /> - -<p><b>Contracts.</b>—At the outset the various kinds of contracts should be -explained so that the principles which apply to them may be better -understood. One of the divisions is into simple contracts and -specialties. A simple contract may be verbal or it may be in writing, -but no seal is appended to the signatures of the parties. A specialty -is in writing and a seal is added to the signature. A written contract -may be a duplicate of another with a seal, yet the two belong to -different classes and different rules of law apply to them as we shall -learn.</p> - -<p>Another classification is into executed and executory contracts. An -executed contract, as the name implies, is completed, an executory -contract is to be executed or completed. An unpaid promissory note is -an executory contract, when paid it becomes an executed one.</p> - -<p>Another classification is into express or implied contracts. An -express contract is one actually made between two or more persons or -parties; an implied contract is one that the law makes for the -parties. Suppose a man worked a day for another at his request, and -nothing was said about payment, the law would require him to pay a -reasonable sum for his day's work. Another kind of contract -technically called quasi contract differs somewhat from an implied -contract and will be explained in another place.</p> - -<p><span class='pagenum'><a name="Page_65" id="Page_65">[65]</a></span>To every contract there must be two or more parties, who have the -legal right to make it. Not every person therefore who wishes to make -a contract can legally do so. Of those whose ability to contract are -limited are minors or infants. The period of infancy is fixed by law, -and is therefore a conventional, yet needful regulation. In most -states infancy ends at the age of twenty-one, though some states fix a -younger period, eighteen for women. A person becomes of age at the -beginning of the day before his twenty-first birthday. The reason for -this rule is, the law does not divide a day into a shorter period or -time except when this is required in judicial proceedings. Another -class of incapable contractors are married women. Their disability -however has been largely removed by statutes in all the states, as we -shall learn in another place.</p> - -<p>Insane and drunken persons also are under disability to make -contracts. By the old law a drunken man who made a contract was still -liable, and required to fulfill as a penalty for his conduct. A more -humane rule now prevails and he can be relieved, though like a minor, -if he wishes to avoid a contract, he must return the thing purchased, -in other words he can take no advantage of his act to the injury of -the other contracting party. If however he has given a negotiable note -that has passed into the possession of an innocent third person, who -did not know of his drunkenness at the time of making it, he can be -held for its payment. It is not quite so easy to state rules that -apply to insane persons because their conditions vary so greatly. A -person may be insane in some directions and yet his insanity may not -be of a kind affecting his capacity to make at least some kind of -contracts. <span class='pagenum'><a name="Page_66" id="Page_66">[66]</a></span>Again, he may have lucid intervals during which he is -quite as capable of contracting as other persons. And again when an -insane man has made a contract, the relief to which he is entitled -depends on circumstances. In some cases he may repudiate it, a partial -fulfillment only may be required.</p> - -<p>The law has much to say about the consideration that is an element in -every contract; in other words, there must be a cause, something to be -gained by the parties in every contract to sustain it. If A should -promise to give to B a house next week, and on the day fixed for -transferring it A should change his mind, he could not be compelled to -transfer it, for the promise would be without any consideration or -thing coming from B. But if the house had been transferred, A could -not afterwards repent of his act and demand its return. An executed -gift therefore, free from all fraudulent surroundings, is valid: the -donor of an executory gift is free to withhold its execution.</p> - -<p>A consideration need bear no relation or adequacy to the other thing -that is to be received. Nothing is more frequent than a one-sided -contract, in which one party has gained far more than the other. If -the law attempted to adjust these cases, many more courts would be -needed than now exist.</p> - -<p>We will briefly note the need of consideration in some classes of -cases. First, a voluntary undertaking to work for another without -compensation cannot be enforced. Under this head is the promise to pay -the debt of another. Why should one do such a thing? Let us remember -that should one make such a promise and keep it, the money could not -be recovered back, that is quite another thing. Again, if A owed B a -debt and delayed payment, and B should say to him, "if you will pay me -half of it <span class='pagenum'><a name="Page_67" id="Page_67">[67]</a></span>next week I will give up the rest," B would not be bound -by his promise. Suppose that B learning that A had ample means to pay, -should sue him, A could not relieve himself from liability by offering -to pay the amount A promised to take in settlement of the debt. But -should B accept one half, in fulfillment of his promise, that would be -the end of the matter.</p> - -<p>Again should a bank defaulter make good the amount taken, and the -directors, in consideration thereof, promise to take no steps towards -his prosecution by the government, there would be no valid -consideration to sustain the promise. The state would be just as free -to prosecute him as before. Very often such criminals are not -prosecuted after returning all or a part of their unlawfully taken -money, nevertheless no settlement of this kind stands in the way of -prosecution.</p> - -<p>Suppose A agreed to work for B for a month and, after working a week, -should leave him without good reason, can he recover for his week's -work? If he can get anything, he cannot claim it under his contract -for he has broken it and therefore a court could not enforce it. If he -can recover anything it is on the implied contract which the law -makes, the worth of his work after deducting the loss to his employer. -Suppose the employer should prove that he had lost more by A's going -away when he did than he had gained by his week's work, he could -recover of B, for the rule works both ways. In some states he cannot -recover anything, for, having broken his contract, he has no standing -in court.</p> - -<p>Suppose one signs his name to a subscription paper, calling for the -payment of money, to build a church, for example, and the designated -amount has been subscribed, can a subscriber refuse to pay? <span class='pagenum'><a name="Page_68" id="Page_68">[68]</a></span>He -cannot. Suppose he withdraws before the subscriptions have been -completed, what then? He can refuse. If a subscription has not been -completed, death operates as a revocation and the subscriber's estate -is not held for the amount. Sometimes a moral obligation to pay money -is a good consideration for a promising to pay it. Thus if one owes -another for a bill of goods, and the debt has ceased to be binding by -lapse of time, yet he should afterwards promise to pay, he could be -held on his promise because there was a good consideration for the -debt. Lastly a contract may be modified by mutual agreement without -another consideration.</p> - -<p>Another element in a contract is mutuality, a meeting of minds in the -same sense. In every contract there is an offer made by one party and -an acceptance or refusal by the other. When an acceptance occurs, -there is a meeting of minds, or an assent. Very often the parties do -not understand each other, they acted hastily, ignorantly perhaps, -their minds did not really meet in the same sense. In such cases there -is no contract.</p> - -<p>Generally the acceptance must be at the time of receiving the offer. -If it is not, there is no meeting of minds, no assent. A person -however may make an offer on time, this is common enough. When this is -done the other party must furnish some kind of consideration to make -the offer good for anything, otherwise the offerer can withdraw his -offer whenever he pleases. Many an offeree has been disappointed by -the action of the other party in withdrawing his offer, yet the -offerer has been clearly within his rights in doing so when he has -received no consideration for giving the other party time to think -over his offer.</p> - -<p><span class='pagenum'><a name="Page_69" id="Page_69">[69]</a></span>An eminent jurist has said "that an offer without more is an offer in -the present to be accepted or refused when made. There is no time -which a jury may consider reasonable or otherwise for the other party -to consider it, except by the agreement or concession of the party -making it. Until it is accepted it may be withdrawn, though that be at -the next instant after it is made, and a subsequent acceptance will be -of no avail."</p> - -<p>If no time is given, or no consideration for the time given, an offer -therefore may be withdrawn as soon as made if not accepted. A person -may suddenly think of something which leads him to withdraw his offer -as soon as it is out of his mouth, and in doing so is within his -rights, but if he does not, how long does his offer last? A reasonable -time. What this is depends on many things, one of the questions like -so many others in the law to which no definite answer can be given. An -offer to sell some real estate was accepted five days afterward, this -was held to be within a reasonable time. One can readily imagine cases -in which five days would not be thus regarded, or even five hours.</p> - -<p>When does assent occur in contracts made by correspondence? The rule -is in nearly every state (Massachusetts being the chief exception) -where an offeree has received an offer by letter and has put his -acceptance in the postoffice, the minds of the parties have met and -made a contract. The post-office is the agency of the offerer both to -carry his offer and bring back the return. If the offeree should use a -different agency, the telegraph for instance, to convey his -acceptance, it would not be binding until the offerer had received and -accepted it. Of course, an offerer by letter may withdraw his offer at -any time. Suppose he should receive an <span class='pagenum'><a name="Page_70" id="Page_70">[70]</a></span>acceptance by letter or -telegraph but deny it, and insist that no contract had been made. Then -the controversy would turn on the proof. If the acceptance had been by -letter, and the offeree could prove that the offeree had written and -mailed it, the offeree's proof would be complete. If the offeree sent -a telegram, then he would be obliged to prove the delivery of the -dispatch. Suppose one should mail a letter of acceptance, but before -its receipt by the offerer, should send a telegram declining the offer -which was received before the letter of acceptance? The acceptance -would stand, for as there had been a meeting of minds when the letter -was put into the postoffice, the offeree could not afterwards withdraw -his offer. A person who makes an offer cannot turn it into an -acceptance. An old uncle wrote to his nephew that he would give thirty -dollars for his horse and added, "If I hear no more about the matter, -I consider the horse is mine." The game did not work, for no man can -both make and accept an offer at the same time, and that is what the -foxy uncle tried to do.</p> - -<p>Offers and rewards are often made through the newspapers. Thus the -owner of a carbolic smoke ball offered to pay a specified sum to any -one who suffered from influenza after using one of his smoke balls in -accordance with directions if he was not cured. A person who failed to -receive the benefit advertised recovered the reward. Two other cases -may be mentioned that illustrate the uncertainty of the law. An -excited farmer offered the following reward, "Harness stolen! Owner -offers $100 to any one who will find the thief, and another $100 to -prosecute him!" The farmer cooled off and declined to pay after the -thief was caught and the court relieved him, declaring that his -advertisement <span class='pagenum'><a name="Page_71" id="Page_71">[71]</a></span>was not an offer to pay a reward, but simply an -explosion of wrath. In another case a man's house was burning, and he -offered $5,000 to any one who would bring down his wife dead or alive. -A brave fireman accomplished the feat. This offerer too cooled off and -declined to pay, but he did not escape on the ground that this was -only an explosion of affection, and was obliged to pay.</p> - -<p>Lastly a contract dates from the time of acceptance, and is construed -or interpreted by the law of the place where it was made. If it is to -be performed in another place, then the parties must be governed by -the law of that place in performing it.</p> - -<p>A contract having been made, next follows its execution. When a -contract is not executed, or not executed properly, the party injured -usually may recover his loss. Sometimes the contract states what the -offending or wrongful party must pay should he fail to execute it. -Many questions have arisen from such agreements. Suppose a contractor -agrees to build a home for another and to finish it within a fixed -time, and, failing to do so, shall forfeit or pay to the other $5,000 -as a penalty for his failure. One would think that if he failed to -execute it the other party could demand the $5,000. But the courts -have a way of their own in looking at things. Suppose the contractor's -failure did not in fact result in any loss whatever to the other -party? The courts in such a case are very reluctant to enforce the -agreement. If there had been a loss, something like that amount, then -the courts would compel him to pay. In other words, the most general -rule is, notwithstanding such a clearly written agreement, the courts -seek to do justice between the parties. Whenever the parties do not -attempt to fix the damages themselves, should their contract <span class='pagenum'><a name="Page_72" id="Page_72">[72]</a></span>not be -fulfilled, then the amount that may be recovered depends on a great -variety of circumstances. Suppose a woman should go to a store to buy -a piece of silk. She asks if the piece shown to her by the saleswoman -is all silk, who makes an affirmative reply. The buyer knows much more -about it than the saleswoman, which is often the case in buying -things, and knows it is half cotton, can the buyer recover anything? -Surely she has not been deceived. The seller may have tried to fool -her but did not, and having failed, the buyer has no legal ground for -an action. On the other hand, if the buyer was ignorant, knew nothing -about silk and had been deceived by the seller, then she would have a -clear case. This is one of the fundamentals in that large class of -cases growing out of deceit. The party seeking redress, must have been -deceived, and also injured by the deceit in order to recover. The -remedies that may be employed whenever contracting parties have -failed, or partly failed to fulfill their agreements or promises will -be considered under other heads. See <i>Deceit</i>; <i>Drunkenness</i>; <i>Quasi -Contract</i>.</p> - -<br /> - -<p><b>Corporations.</b>—There are many kinds of corporations. Those most -generally known are business corporations; and though many of them are -very large, legally they are private corporations. A railroad -corporation, though performing a public service, nevertheless is a -private corporation.</p> - -<p>Public corporations are formed for governing the people and are often -called municipal corporations. They are created or chartered by the -legislatures of the states wherein they exist. Formerly, all private -corporations in this country were granted charters by the legislative -power, and many corporations <span class='pagenum'><a name="Page_73" id="Page_73">[73]</a></span>are doing business by virtue of the -authority thus granted to them. More recently general statutes have -been enacted whereby individuals may form such corporations without -the aid of a legislature. Authority has been conferred on the courts, -secretary of state, or other official to grant to individuals, who may -apply for them, charters on complying with the requirements of these -statutes. There are other kinds of corporations, religious, charitable -and the like; only one other need be mentioned, to which the term -quasi has been applied. These resemble corporations in some ways, and -this is the reason for calling them quasi corporations. A county or -school district is such a corporation. The supervisors of a county, or -the trustees of a school district, can make contracts, own and manage -real estate for their respective bodies, sue and be sued like the -officers of other corporations.</p> - -<p>By the general comity existing between the states corporations created -in one state are permitted to carry on any lawful business in another, -and to acquire, hold and transfer property there like individuals.</p> - -<br /> - -<h5>FORMATION OF CORPORATIONS.</h5> - -<p>Formerly charters were granted to corporations for a long term of -years, or forever. The policy of the law has changed in this regard, -and the duration of their existence is limited to a comparatively -short period. The life of a national bank is only for twenty years; at -the end of that period the charter is renewed, and the charters of the -older national banks have been renewed several times. Perpetual -charters are infrequently granted, and some of the older ones have -been limited by legislative or judicial <span class='pagenum'><a name="Page_74" id="Page_74">[74]</a></span>action. A private corporation -had perpetual authority to build and maintain a bridge across the -Susquehanna River at Harrisburg, nor could any other company build one -within the distance of ten miles above or below. Notwithstanding this -clear and exclusive grant, another company was formed which attempted -to build a bridge within a mile of the other. The old company tried to -prevent by law the new company from building the bridge. The court -said that "perpetual" did not mean literally perpetual, but a long -time, that the old company had enjoyed its exclusive grant a long -time, long enough, and that the new company was justified in its -undertaking.</p> - -<p>A corporation has no heirs like an individual; it continues through -succession, one sells his interest or stock to another, and thus it -lives to the end of its charter unless it fails or, through some other -event, comes to an end. Suppose a stockholder buys all the stock of -the other members, does the corporation still exist? It does for a -limited time. How long? No court has answered this question. It -depends on the particular case. The courts also say, that he can sell -his stock to other individuals and thus practically revive a dying -corporation. A stockholder who had bought all the stock of a -corporation claimed that he should be taxed as a corporation, which -was at a lower or favored rate than that paid by individuals. The -court said the game would not work, that for the purposes of taxation -the concern must be regarded as an individual. So the stockholder knew -more after that decision than he did before.</p> - -<br /> - -<h5>CAPITAL.</h5> - -<p>Every private corporation has a capital composed usually of money, -which is advanced or <span class='pagenum'><a name="Page_75" id="Page_75">[75]</a></span>paid by its members or shareholders. Among the -reasons for forming corporations two may be stated. It is a way for -collecting money from many sources needful for an enterprise; the many -contributors are like the small streams that unite and create a great -reservoir. The other reason is, the contributors are free from the -liabilities that attach to every member of a partnership for its -entire indebtedness. A stockholder may indeed, if his corporation does -not succeed, lose a part or all of the capital he has contributed, but -no more or only a fixed amount, as will be hereafter explained.</p> - -<p>Almost anyone can subscribe for stock, with a few limitations. A minor -cannot subscribe for stock, nor can his guardian act for him. -Doubtless they do subscribe in some cases; the practical difficulties -will be shown in another connection. A married woman cannot always -subscribe, unless by virtue of a statute. What usually happens when -she wishes to subscribe is to act through a friend, who, after the -corporation is fully formed, transfers the stock to her. There is no -legal stone in the way of such a course.</p> - -<p>Sometimes fictitious subscriptions are made to induce others to -subscribe for stock. Whenever the fraud is found out an innocent -subscriber can do one of three things. If he has paid for his stock, -he can bring an action to recover it; if he has not paid, he can -refuse to do so, and set up the fraud as a defense. He can do another -thing, accept the stock and sue for the damage he has sustained by the -deceit that has been practiced on him. The discovery of a fictitious -subscriber among the number, after all have subscribed, where his -action in subscribing did not affect their action, will not justify -<span class='pagenum'><a name="Page_76" id="Page_76">[76]</a></span>them in not fulfilling their obligation to pay for their shares.</p> - -<p>The issuing of a share certificate is not an essential condition of -ownership. It is merely evidence of it, like the deed of a piece of -real estate. All the shareholders of a corporation are the owners -whether any certificates are issued to them or not. Of course a -stockholder desires to have his certificate for obvious reasons.</p> - -<p>Whenever the capital stock of a company is increased, each shareholder -has a right to his proportionate number of the new shares on -fulfilling the terms on which they are issued before they can be -offered to the public. Occasionally a clique seeks to get control of a -corporation by the issue of new stock and taking it among themselves. -They can be defeated for the courts carefully guard the rights of all -stockholders to take their shares of new stock before it can be -offered to, and taken by others.</p> - -<p>Of late years private corporations have been issuing a kind of stock, -called preferred, that must be explained. Formerly such stock was more -like a loan of money to a company, and was issued primarily as the -most feasible way of getting a fresh supply of money capital. The -lenders or takers of the stock received a fixed per cent. on their -money, which was paid before the common shareholders received -anything. His preference or dividend was not guaranteed, but the -probability of regular payment was so strong in most cases that his -shares usually possessed a real value. Preferred shareholders are not -liable for the debts of their corporations, and the right to vote at -any meeting of the shareholders is sometimes given to them, though not -always. The tendency of the day is to confer this right on them. -Whether, when the amount of <span class='pagenum'><a name="Page_77" id="Page_77">[77]</a></span>the preferred stock is increased, the -preferred shareholders are entitled to subscribe for their -proportionate amount, like common shareholders, is an open question.</p> - -<p>The authority of agents or commissioners to receive subscriptions is -strictly regarded. They cannot refuse to receive a subscription made -by a competent person, nor release a subscriber, nor vary the terms of -subscription to anyone.</p> - -<p>A subscription for shares is a contract in writing and cannot be -proved by oral evidence unless the original subscription paper has -been lost. As the contract is an open one, any subscriber must inform -himself of the legal consequences of subscribing, and cannot therefore -refuse to execute it on the ground of ignorance or misunderstanding. -Suppose an agent who was soliciting subscriptions, in reply to -questions concerning the laws relating to the proposed company, should -give incorrect answers to a subscriber, these would furnish no ground -for refusing to pay, as he has promised to do, for he could have found -out what the laws were without inquiring of the agent. This may seem a -hard rule, yet it has a wide application. In one sense it is true that -every person can find out the law for himself, the books are open, the -statutes especially may be easily found, but how many know enough to -find the laws in which they are interested?</p> - -<p>Of course if a person has been deceived by an agent, if a fraud has -been practised on him, he can avoid his contract. Thus a person who, -unable to read a subscription paper, was induced to subscribe through -misrepresentation of its contents, was not bound by it. If he wishes -to act, he must lose no time after discovering the fraud that has been -practiced on him. He cannot say, "I will abide by <span class='pagenum'><a name="Page_78" id="Page_78">[78]</a></span>a company if -successful, and will leave it if it fails." He must therefore decide -at once either to continue his membership or withdraw.</p> - -<p>A company cannot purchase its own shares unless by charter or statute -such action is clearly authorized. For, to do this is to reduce its -assets or fund for paying its indebtedness, which the law will not -permit to be done. If a company has no debts, a reduction in its -capital made in an open manner in accordance with law, is legal. The -tendency of the times everywhere is to increase the capitals of -private corporations; reductions though are sometimes made to lessen -especially the burden of taxation.</p> - -<p>A corporation has no lien on its stock for the indebtedness of the -owner unless conferred by charter or statute. Once such a lien could -be established by usage or by-law under authority given to a -corporation to regulate the transfer of its stock. The national -banking law prohibits the creation of such liens, and the strong -current of the law runs in this direction. But a bank can retain a -dividend that has been declared to reduce the indebtedness of the -owner to the bank for his stock.</p> - -<br /> - -<h5>LIABILITY OF SHAREHOLDERS.</h5> - -<p>The liability of the shareholders of a corporation is very unlike that -of members of a partnership. It was the liability of each partner for -all the debts of a concern that kept many persons from forming that -relation. The shareholders of many corporations are liable only for -the amount they have contributed and paid, or have agreed to pay. -National bank shareholders are liable for another sum, equal to the -par value of their <span class='pagenum'><a name="Page_79" id="Page_79">[79]</a></span>stock, provided as much may be needed to pay its -debts should the bank fail. Thus if a shareholder owned ten shares, -having a par value of $100 a share, he might be required to pay, -should the bank fail, $1,000 more provided as much was needed to pay -its debts. In a few states shareholders are required to pay twice the -amount of the par value of the stock if as much may be needed to pay -its indebtedness.</p> - -<p>If a corporation fail, one or more persons are usually appointed by a -court to settle its affairs, who are called receivers. Several years -are sometimes required to settle the affairs of a corporation. First -an inventory is made of its property, names of the debtors and -creditors, and the amounts due from and to them, and as soon as its -property can be converted into cash, dividends are declared and paid -to the creditors; and this work is continued until there has been a -disposition of all the property, and the amount received therefrom -less the expense of the receivership, has been paid to the creditors. -When the shareholders are required to pay more, as above explained, on -the failure of their corporation, they are notified by the receiver -how much and when they must pay. This requirement is based on an order -from the court that appointed him, which, in turn, is based on -information which he has furnished to the court of the amount that may -be needed to pay the debts of the corporation. Several assessments may -be ordered, but they never exceed in the aggregate more than the -amount of liability fixed by law, the amount or twice the amount of -the par value of the stock subscribed. Should shareholders decline to -pay these assessments as ordered, the receiver sues them and obtains -judgments, the proceeds of which are paid to the creditors.</p> - -<br /> - -<h5><span class='pagenum'><a name="Page_80" id="Page_80">[80]</a></span>MEETINGS.</h5> - -<p>The power of a corporation vests or rests in its members. The charter -and statutes provide that they shall meet, organize, elect officers, -and adopt by-laws for the more detailed governing of the corporation. -One of the most general principles pertaining to them is, the majority -shall rule. This however may be modified by charter or statute. There -are a few ancient charters which provide that, notwithstanding the -quantity of stock a shareholder may own, he is entitled to only one -vote. The writer knows of a case in which a shareholder bought nearly -all the stock of a corporation and went to the annual meeting -supposing that he could and would do as he pleased. On learning the -unwelcome truth that he had only one vote like the others he quickly -put on his hat and walked out.</p> - -<p>The statutes usually prescribe how notice of the joint meeting shall -be given. They are not mandatory, but directory, hence if all the -persons in a corporation should come together without any notice or -call whatever, and accept the charter, and do any other thing needful -to form the corporation, their action would be valid. Where the -regulations of a corporation definitely fix the place, the day, and -hour of the annual meeting at which the directors are to be elected, -no further notice of the meeting to the stockholders is needed unless -required by its charter or by-laws.</p> - -<p>A case may arise in which other persons than those designated by -statute may call a meeting. Suppose a statute prescribes that the -persons named in the certificate of incorporation, or any three of -them, may call a meeting of the shareholders, and before giving notice -all of them had died? Then <span class='pagenum'><a name="Page_81" id="Page_81">[81]</a></span>the meeting could be called by others. -Again, authority to create a corporation may fail through long delay -in calling a meeting and organizing. Should the notices for the first -meeting not be given as the law requires, it is nevertheless valid if -the shareholders have notice and join in waiving the mailing of the -required notices. Likewise a subscriber waives his notice of the first -meeting when he afterwards offers to pay for his shares.</p> - -<p>If the by-laws require that an annual meeting shall be held at a -particular time, and those whose duty it is to call it, forget to do -so, it may be held afterwards, and the officers elected and other -business transacted would be as valid as if the meeting had been held -at the proper time.</p> - -<p>Should the officer who ought to call a meeting refuse to do so he may -be compelled by law to call it. This proceeding is called a mandamus, -and is issued at the instance or request of the shareholders.</p> - -<p>"Besides annual meetings, corporations hold many stated or regular -meetings at monthly or other times. Thus if a meeting of proprietors -must be called by twelve of them, a call signed by eleven is -defective. If a statute requires a committee of a society to sign the -call, it cannot be signed by the clerk, nor by him for them. If the -trustees of a corporation must issue the call, this cannot be done by -the president. If exclusive authority to issue the call is vested in -the directors, it cannot be exercised by the president and secretary. -If the articles of association provide that meetings of shareholders -may be called by the board of directors, or by any three shareholders, -the president and cashier cannot issue a valid call. But if a board -consists of three members and there is a vacancy, the other two may -act and give the notice."</p> - -<p><span class='pagenum'><a name="Page_82" id="Page_82">[82]</a></span>A well understood distinction exists between the calling of regular -and special meetings. Regular meetings are held in the way set forth -in the charter and by-laws of a corporation; special meetings are -called at irregular times on proper authority. A notice for a special -meeting must state the object of it, and no other business can be -transacted. On the other hand unless the regular meeting is of great -importance no mention need be made of its object in the notice.</p> - -<p>An authorized meeting may be adjourned from time to time without -giving further notice, for it is only a continuation of the original -meeting. Says an eminent judge: whether a meeting is continued without -interruption for many days, or is adjourned from day to day, or from -time to time, many days intervening, it is evident that it must be -considered the same meeting.</p> - -<p>A meeting may be legally held though one of its members is incapable, -physically or mentally, from receiving notice. "The law cannot look -into the capacity of the stockholders to transact business, but can -only regard the capacity of the aggregate body when duly assembled." -On the death of a stockholder, the purchaser, if the stock has been -sold, should have it transferred, or give distinct notice to the -company how notices of its meetings should be sent to him; if -neglecting to do this, he cannot charge the corporation with neglect -should it continue to send notices to the former address.</p> - -<p>Two other points may be mentioned concerning notices. One is, they may -be waived and this is often done. Many a question though arises, what -action amounts to a waiver of notice. If each shareholder attends in -person or by proxy and participates in the meeting, he cannot -afterward question <span class='pagenum'><a name="Page_83" id="Page_83">[83]</a></span>its legality because he received no notice of it. -An improper notice may also be cured by ratification. Thus if a -secretary calls a meeting instead of the directors, and his action is -properly ratified by them, the call is effective. More generally, the -action of a meeting will be declared valid where it appears that every -stockholder who did not participate in the meeting ratified its action -afterwards. An election of trustees of a church may be valid even -though the notice lacked the proper length of time and the names of -the trustees whose seats became vacant at the election, if it was -fairly conducted and all who had the right to vote were present. -Likewise a stockholder who knows of the sale of his railroad, though -not legally notified of the meeting which authorized its sale, and was -not present, may be bound by its action through acquiescence. And a -stockholder who, after receiving notice of a meeting called by the -directors to consider their neglect of duty and who decides not to go, -is not thereby prevented from taking action against them by the -stockholders who did attend and authorized their unauthorized action. -Lastly a stockholder who was present cannot complain that notice was -not given to others; the objection is personal.</p> - -<p>Next we may inquire, who can vote at such meetings? Unless prevented -by charter, statute or by-law a stockholder may vote at any corporate -meeting even though no certificate of stock has been issued to him. -Nor does his indebtedness for his stock prevent him from voting. On -the other hand if inspectors were not bound by the record of ownership -in the company's books and went behind them to find out the real -ownership of the company's stock, they would often have a grave task -before them. Consequently in many, perhaps all of the <span class='pagenum'><a name="Page_84" id="Page_84">[84]</a></span>states, only -stockholders or those holding proxies for them can vote at a general -election. By statute the stock record of ownership is usually made the -conclusive test of the right to vote. Stockholders who thus appear on -the stock books at the date of a meeting are entitled to vote the -stock.</p> - -<p>A trustee is the legal owner of stock standing in his name and may -vote the stock for all purposes; but a testator may impose limitations -on his voting power. Should trustees under a will holding a majority -of the stock of a corporation disagree, and one of them should be -enjoined from voting it, a minority stockholder would be entitled to -an injunction to restrain the other trustee from holding an election -or voting the stock alone until the right to vote the stock had been -legally decided.</p> - -<p>A different rule applies to a naked trustee who holds the title to the -stock without any real interest in it. He can indeed vote, but in the -way directed by the beneficiary or real owner. In Colorado, by -statute, perhaps in some other states, a person to whom stock has been -issued as trustee without the knowledge of the owner, is not a bona -fide stockholder and cannot vote.</p> - -<p>An executor has the power to vote the stock of his testator. And if -one of joint executors issues a proxy authorizing the vote of the -stock belonging to the estate, and the other executor is present at -the stockholders' meeting, the vote of the stock by the executor who -is present is deemed a revocation of the proxy given by his -co-executor. And if a will gives to one of three executors the power -to vote the stock, and directs the other two to give him a proxy for -that purpose, which they decline to do, a court will order the proxy -to be given. And whenever stock is held by executors who are not -united in <span class='pagenum'><a name="Page_85" id="Page_85">[85]</a></span>voting it, they cannot vote at all. A foreign executor -should present to the inspectors of election an exemplified copy of -his letters of administration, and having done so may vote on the -stock standing in the testator's name. An administrator has the right -to vote stock belonging to the estate, even though it has not been -transferred to him in the corporation's books.</p> - -<p>A partner of a firm who owns stock in a corporation may represent the -stock in all meetings. He may therefore receive and waive notice of -them, vote when attending them, in short, participate in all matters. -And on the death of a partner the surviving partner has the right to -represent the partnership and vote on its stock.</p> - -<p>Two other kinds of stockholders still require mention, sellers and -purchasers of stock and pledgors and pledgees. Until a transfer is -entered on the books of a corporation, "the transferee, as between -himself and the company, has no right beyond that of having the -transfer properly entered. Until that is done, the person in whose -name the stock is entered on the books of the company is, as between -himself and the company, the owner to all intents and purposes, and -particularly for the purpose of an election."</p> - -<p>Many questions have arisen between pledgors and pledgees about their -rights to vote the pledged stock. Of course, whenever an agreement has -been made by them this must be respected. In other cases, if the -record remains unchanged, the pledgor can vote the stock. But if the -pledgor has transferred his right to vote the stock, he cannot ask a -court to restore his right to vote it until the purpose for which it -was pledged has been satisfied. Again a pledgor who pledges his stock -not in good faith as <span class='pagenum'><a name="Page_86" id="Page_86">[86]</a></span>security for a loan, but to enable the pledgee -to vote it and effect an unlawful purpose, cannot do this and so -defeat a statute which provides that the real owner, the pledgor, may -vote his stock.</p> - -<p>Passing to the pledgee, whenever he is registered as owner of the -stock on the company's books, its officers will not look behind these -to ascertain whether he is the real owner or not when he is voting his -stock. A court of equity though may do this, and enjoin a pledgee from -voting the stock whenever the pledgor's rights would be affected. -Should the pledgor acquiesce for years in the control of the stock by -the pledgee, who is the record owner, and not inform the company of -his ownership until the holding of a contested election, he would be -too late to claim the right to vote. Finally when a certificate of -stock has been assigned in blank as collateral security, which is -often done, and never transferred to the pledgee on the books of the -corporation, a memorandum only having been made on the stub of the -certificate in the stock book, the pledgee is not a stockholder and -cannot vote the stock. It may be added that notices of meetings should -be sent to whoever has the right to vote the stock, to the pledgor if -the stock still stands in his name, to the pledgee if the stock has -been transferred to him and stands in his name.</p> - -<br /> - -<h5>DIRECTORS.</h5> - -<p>Shareholders manage their corporations through directors or trustees -elected for that purpose. The business of some corporations is managed -by trustees who are named in the charter and who fill vacancies in -their number by electing others themselves, a self-perpetuating body. -Many <span class='pagenum'><a name="Page_87" id="Page_87">[87]</a></span>savings banks especially are thus organized and continued. From -their number they usually select a smaller number to manage or direct -its affairs.</p> - -<p>The directors are always shareholders, unless the charter of a -corporation permits the election of outsiders, a thing that rarely -happens. The national banking act requires that every director shall -own at least ten shares of stock, and many other corporations have -similar requirements. The charter or statutes prescribe at least the -minimum number that must be elected, but the maximum number is left to -the stockholders themselves. A national bank must have five directors, -not infrequently the board is composed of ten, fifteen, or even more. -A director is chosen for some real service that he is likely or -willing to perform. An individual may be chosen a bank director who -may not be able to do much in directing the affairs of the bank, yet -by reason of his wealth or business relations he may be able to -attract business to the bank and thus greatly promote its prosperity.</p> - -<p>He is elected by a majority of the votes of the shareholders. More -recently the cumulative system of voting has come into general favor. -By this system a voter may cast as many votes for each of the -candidates as he holds shares of stock, or he may distribute or -cumulate his votes on a smaller number. "Where the votes under such a -system are cast and counted, the validity of the election must be -determined precisely as in all other cases." Where the shareholders -have failed, whether voting cumulatively or otherwise, to elect a -quorum of the new board, at an annual meeting of stockholders, it is -the privilege of the shareholders to ask for successive voting for -directors to fill the board. The ruling of a chairman on one occasion, -that because <span class='pagenum'><a name="Page_88" id="Page_88">[88]</a></span>of a tie further balloting could not proceed, and that -the old board held over was arbitrary and illegal. A stockholder who -has votes enough to elect himself and other directors by cumulating -his shares in voting, but refrains from doing so in consequence of a -verbal agreement among the stockholders that he shall be chosen -president, which they fail to carry out, cannot obtain any -satisfaction from a court. A court says in effect stockholders should -not be trusted to make such agreements, and will not aid the tricked -stockholder by ordering a new election. Probably he will be fooled -only once.</p> - -<p>Having elected directors, the management of a corporation is confided -to them. What authority do they possess? This is defined by charter, -statute, by-law, and custom. Says Morawetz: "The rule limiting the -authority of the power of the majority to the general supervision of -the affairs of the corporation is established for the protection of -the individual shareholders, as well as for reasons of practical -consequence." Directors also have wide discretion in delegating their -authority. Their rights and limitations in this regard are also -bounded by charter, by-laws and usage. Formerly bank directors loaned -the money of their bank; this was their most important duty. Of late -years, especially in the larger cities, this business has been largely -delegated to a committee, chosen from their number, or to two or three -officials of the bank. The directors continue to meet, very much as -before and at their meetings the action of those who have been -entrusted with power to lend the bank's money is ratified. More and -more authority to direct or do the greater things in a corporation are -concentrated in the hands of a smaller number of individuals. Time is -ever becoming a more important element, a <span class='pagenum'><a name="Page_89" id="Page_89">[89]</a></span>smaller number of men can -act more quickly than a larger number, and so business must be more -and more concentrated to be done efficiently.</p> - -<p>A director has no authority to act separately and independently. Only -as a board, properly convened, does he represent his corporation. -While this is the law, he can and does in fact often act singly, and -his action becomes effective to bind his corporation by ratification. -Such action plays a great part in the modern corporation.</p> - -<p>Though a principal may at any time, as a general rule, revoke the -authority he has given to an agent, this does not apply to the -directors of corporations. Says Morawetz: "The majority of the board -clearly have no power to expel an individual director, or to exclude -him from inspecting the company's books and participating in its -management, although they may believe him to be hostile to the -interests of the association." A president or other official is chosen -pursuant to the charter to serve for a year or other period, and is -simply an agent in serving the corporation, he cannot be turned away -like an ordinary agent. If he conducts fraudulently, he may be -removed, but this is not an easy process as corporations long ago -found out.</p> - -<p>Directors in most cases receive no compensation though the practice is -growing of rewarding them. Unless this is fixed by charter or by the -stockholders they can get nothing, for they cannot legally vote -salaries to themselves. A director who performs a different service, -serves as an attorney, for example, may receive compensation for it. -This is a salutary rule of the law, which the courts everywhere do not -hesitate to enforce. By another rule, hardly less important, directors -cannot bind their corporation by any contract made with themselves, or -represent <span class='pagenum'><a name="Page_90" id="Page_90">[90]</a></span>their corporation in transactions wherein they have an -interest. This is only another application of a rule of agency, that -an agent cannot act at the same time for both parties. Yet there is -increasing difficulty in applying this rule because the business of -corporations has become so intermingled, and also the business of -directors, directly or indirectly, with that of the corporations they -represent. From this state of things has come another rule, that the -transactions between directors and their corporations are not actually -void but voidable, in other words if they are tainted with fraud, they -can be set aside provided proper action is taken as soon as the fraud -is discovered.</p> - -<p>Suppose directors had defrauded their corporation, but the fraud was -not discovered until several years afterward. Once it was held that -they could shield themselves behind the Statute of Limitations (see -<i>Statute of Limitations</i>) if the discovery of the fraud did not occur -until after the Statute had become effective to protect them. This is -no longer the law. Action however must be begun against them within -the proper time after discovering the fraud, otherwise the Statute may -be interposed as a bar to proceeding against them.</p> - -<p>The complication of business has led to the adoption of another -principle in managing corporations. A majority of the directors may -lawfully act as opposed to the minority; in other words if a majority -are not interested in a matter that concerns one or more of the -minority directors, the interests of the corporation are supposed to -be properly safeguarded. Yet an illustration discloses the dangerous -character of this method of doing business. Suppose each director of a -bank wished to obtain a loan of money from it. They could not legally -make such loans, <span class='pagenum'><a name="Page_91" id="Page_91">[91]</a></span>for no one would represent the bank. Suppose a -single director made such an application, that would be a proper thing -for him to do and for them to grant, for the bank would be represented -by all the directors except the applicant. Suppose it were agreed in -advance that each would make an application at different meetings that -should be favorably regarded, the series of loans would be in fact -only a single transaction in which the bank was not represented.</p> - -<p>The knowledge of a director or other officer is imputed to, or -regarded in the law as known by the bank on all matters relating to -it. Thus if a director knew that a note was signed by a minor which -was afterwards presented for discount at a directors' meeting at which -this director was present, and he forgot to tell the directors what he -knew and it was discounted, the bank would be regarded as having -knowledge that the maker was a minor, who of course could not be held -on the note. This principle has a very wide application, yet is very -difficult to apply. The tendency of the law is to narrow the -application of the rule, for directors do not in many cases impart -their knowledge, either through forgetfulness or other cause, and it -is not just to hold their corporation always for their unintentional -neglect. Often they are busy men, have greater interests of their own, -and do not remember the things they learn about matters relating to -their corporation, and if it were always held as knowing as much as -they do on all occasions, the way of a corporation would be fraught -with a grave peril.</p> - -<p>A proper distinction is made in the imputation of knowledge between -that of a bank director for example who is engaged chiefly in some -other business, and that of its president whose chief <span class='pagenum'><a name="Page_92" id="Page_92">[92]</a></span>employment is -the management of his bank. Suppose he should learn about a defective -note before it was presented for discount, the bank would be very -properly charged with his knowledge, because it would be his clear -duty to remember what he had learned and impart it to his fellow -directors.</p> - -<p>Directors sometimes go astray and cases are constantly arising to -determine their liability. When a corporation has failed or passed a -dividend nothing is more common than to accuse its directors of -negligence, incompetence or fraud. The legal rule of liability is -quite a different thing. Let us try to give this in the fewest words -possible. The charters of corporations, or statutes that apply to -directors, prescribe some definite things which they must do or not -do, and if these are violated they are clearly liable. The directors -of a bank are required to make a statement of its affairs to a -government official at a stated period, and if they neglect to do it, -or intentionally make a wrong and deceptive one, they are liable. By -many statutes they are forbidden to make loans above a certain amount, -or a fixed proportion of their bank's capital, and if they violate -this plain law they are liable. In all other cases where by charter or -statute a plain rule of duty is prescribed for directors, they are -liable, should they disregard it.</p> - -<p>Besides these clearly defined lines of duty are other lines of duty in -which the proper course of action is not so clearly defined, indeed is -largely discretionary. From the nature of the business of almost any -kind of corporation, it is impossible to prescribe in detail the -course of action directors must follow. Much must be left to their -judgment. They must on all occasions be honest and free from fraud. -This is one limitation. If they are guilty <span class='pagenum'><a name="Page_93" id="Page_93">[93]</a></span>of doing things tainted or -marked with fraud, they are liable. Fraud may be of two kinds, -omission and commission. If a director knew that his fellow directors -were doing fraudulent things, and he kept away from directors' -meetings because he did not wish to participate in their wrongdoing, -or dared not go and try to stop them, or kept silent when he should -have exposed them, he must suffer in the end as one of the number -though entirely innocent of actual participation in the fraud. Many a -director knowing or suspecting with good reason that his fellow -directors were running the corporation in an illegal manner, has -quietly sold out leaving the stockholders to find out afterwards and -from some other source about the wrongdoing of their agents. In all -such cases of omission of duty a director is held responsible for the -wrongs of his associates.</p> - -<p>Recently a court has declared that a director who desires to escape -further responsibility by resigning his position must make sure that -his resignation reaches the board. If therefore he should send it to -the secretary, who failed to deliver it to the board, his resignation -would not be effective and he would still be responsible like the -other directors for whatever the board might do.</p> - -<p>What acts are fraudulent are sometimes difficult to determine. -Different courts interpret the same act sometimes in different ways. -They do not differ so much on the application of the principle—for -all acts of fraud, whether of omission or commission, directors are -liable.</p> - -<p>There is another series of acts for which they are liable, those of -gross negligence. How gross must the act be? If it is so gross as to -amount to a fraud, they are liable; if not so gross, if no fraud is -found of any kind, nothing but negligence pure and simple, <span class='pagenum'><a name="Page_94" id="Page_94">[94]</a></span>they are -not liable at all. Most courts though go further and declare that if -they are guilty of gross negligence, even though the smell or taint of -fraud is not perceptible, they are liable. What, then, is the nature -of the acts that constitute gross negligence? These cannot be easily -defined, they differ in each case; so each case stands by itself. This -is the conclusion of the highest court in the land and which is -followed by many others. The same case therefore may be regarded -differently by different tribunals. Thus some directors were tried not -long since for wrecking a national bank. The lower court decided that -all the directors were guilty of gross negligence, on appeal the -reviewing court decided that the president only was guilty of fraud -and acquitted the others.</p> - -<br /> - -<h5>DIVIDENDS.</h5> - -<p>One of the most cheerful things a corporation can do is to declare a -dividend, especially if it be a large one. Until a dividend is -declared the profits of a corporation are simply its assets, do not -belong to the stockholders, and should it become insolvent must be -used to pay creditors. But if a dividend has been declared and the -corporation afterwards becomes insolvent before paying it, the -stockholders may insist on its payment to them instead of paying it to -the creditors.</p> - -<p>Dividends must be paid from net profits. They can never be taken from -the capital, for this would impair it and, if continued, result in the -insolvency of the corporation. The laws everywhere forbid this, and, -if violated, the directors are usually penalized. It is not an -infrequent thing to declare a dividend that has not been earned in -order to keep <span class='pagenum'><a name="Page_95" id="Page_95">[95]</a></span>up the value of the stock, and enable the directors and -their friends to sell out before the true condition of things has -become public. Such action is a palpable fraud which the law -recognizes and for which the guilty ones must answer.</p> - -<p>Nor can dividends be declared out of borrowed money, for this is no -profit, though money may be temporarily borrowed for this purpose. A -profit may have been actually made, which may not have been reduced to -money, that will justify a corporation in borrowing to pay a dividend, -assured that the loan will soon be repaid. But the rule or practice is -hedged about with limitations. Thus the premiums received by an -insurance company and interest on its capital stock constitute the -fund from which dividends are paid. Unearned premiums that have been -paid do not form a part of that fund, for, while the risk is still -running, the company may be obliged to pay them out in settling -losses.</p> - -<p>The profits of coal and other mining corporations may be divided -without making any deduction for decrease in the value of the mine -from extracting minerals. The same principle applies to all -corporations organized to operate wasting property like a mine or -patent, though in thus dividing all its net profits and accumulating -no surplus the value of the property is lessened. Except such cases, -before a corporation can lawfully set apart its profit as a dividend, -a sufficient sum must be set aside to represent the wear and tear for -the purpose of creating a fund to renew and improve the property of -the corporation.</p> - -<p>Dividends illegally declared and paid, not based on profits may be -recovered either by the corporation or by its representative for the -benefit of creditors. The fact, says Clark, that the directors <span class='pagenum'><a name="Page_96" id="Page_96">[96]</a></span>acted -in good faith under a misconception of the amount of profits possessed -by the company or that were available for that purpose is immaterial. -And if the capital stock of a company has been wrongfully paid away by -the directors as dividends, it may be recovered by the creditors from -anyone who is not an innocent receiver.</p> - -<p>Whether a dividend shall be declared, and also the amount, are -questions lying largely within the discretion of the directors. A -company may earn a large net profit, yet the directors may think it -should be used for improvements or kept for a future contingency in -business, perhaps a time of business depression. Courts will not -interfere in such cases. Corporations are sometimes organized with the -well understood intention that the earnings shall be kept until a -large surplus has been accumulated. On the other hand directors are -not permitted to abuse their power; they must act in good faith. They -cannot withhold dividends in order to depress the value of the -property and buy its stock at a lower price.</p> - -<p>Dividends must be distributed among the stockholders without unjust -discrimination. "The dividends," said a court, "must be general on all -the stock so that each stockholder will receive his proportionate -share. The directors have no right to declare a dividend on any other -principle. They cannot exclude any portion of the stockholders from an -equal participation of the profits of the company." A stockholder -cannot be deprived of his dividend because he purchased his stock a -very short time before the action of the directors in declaring a -dividend. On one occasion a person held bonds convertible into stock. -Shortly after the conversion a dividend was declared. He was as <span class='pagenum'><a name="Page_97" id="Page_97">[97]</a></span>much -entitled to his dividend as any other stockholder.</p> - -<p>To whom should the dividend be paid? To the person whose name appears -as owner on the books of the company. But if a company has notice of a -transfer of stock, a dividend subsequently declared should be paid to -the purchaser even though the transfer was not registered. In pledging -stock it is a common practice to declare that the pledgee shall be -entitled to the dividends that are declared. If nothing is said, and -the stock has been transferred on the books of the company, the -pledgee is entitled to the dividends following the general rule above -mentioned.</p> - -<p>A dividend may be payable in cash or property or a stock dividend may -be made. Such a dividend, if the stock is issued only to the extent of -the surplus profits, is not a violation of the prohibition against -reducing or withdrawing the capital stock by distribution among the -stockholders.</p> - -<p>During recent years some important questions have arisen about -dividends or income on stock given by will to the legatees or friends -of the testator. Dividends that are declared after a grant or bequest, -though earned before, go to the legatee as income. This is not the -rule everywhere. In some states the surplus profits accumulated during -the testator's life, though not divided until after his death, belong -to the estate, while the dividends or income earned and declared after -his death are paid to the legatee or beneficiary mentioned in the -will. Again, a somewhat different rule applies to stock dividends. In -some states these are regarded as an increase of capital and must be -kept as a part of the estate; in other states such stock is regarded -simply as another form of income and goes to the legatee <span class='pagenum'><a name="Page_98" id="Page_98">[98]</a></span>like any -other income flowing from the investment. The highest federal court -has declared that when a distribution of earnings is made by a -corporation among its stockholders, the question whether such -distribution is an apportionment of additional stock representing -capital, or a division of profits and income, depends upon the -substance and intent of the action of the corporation, as manifested -by its vote or resolution; and ordinarily a dividend declared in stock -is to be deemed capital, and a dividend in money is to be deemed -income of each share.</p> - -<p>A will bequeathed stock in a corporation in trust to pay the dividends -as they accrued to a daughter of the testator during her lifetime. -Stock dividends were declared by the corporation from time to time and -after the death of the testator, and these accumulated earnings were -invested by the company in permanent works. After the testator's death -the corporation was authorized by statute to increase its capital -stock. The dividends were held to be accretions to the capital, and -the income only was payable to the daughter for life.</p> - -<br /> - -<h5>WRONGS.</h5> - -<p>Passing from the action of directors in declaring dividends, the -wrongs done by corporations may be stated. As it is an impersonal, -artificial thing, a corporation cannot possibly commit a wrong or tort -like a natural person. For many years this conception of a -corporation, that it could not commit many of the well-known wrongs, -could not slander a person for example, led to perplexing -consequences. Finally the principle was established that through its -agents or servants a corporation could do wrong quite like an -individual. Thus a <span class='pagenum'><a name="Page_99" id="Page_99">[99]</a></span>corporation may be guilty of malice, and may be -punished for slander or libel, for a malicious prosecution, false -representation, for trespass should its agents unlawfully enter on the -land of another, for maintaining a nuisance and the like. A national -bank is forbidden to certify the check of a depositor unless he has -the amount of money stated in the check in the bank. And if this is -done the certifying official and all others who participated with him -in disregarding the law are made criminally liable, and on several -occasions the law has been enforced.</p> - -<p>Again, a corporation is liable for the negligence of its servants in -performing their duties, and are constantly sued for their failures. A -railroad company is sued for injuries to its passengers caused by the -improper running of its trains; for its failure to carry and deliver -freight in accordance with its obligations or agreements. Street -railways are constantly sued by passengers who are injured through the -negligence of its officials.</p> - -<p>By statutes corporations are required to do many things and, if they -fail, are liable for the consequences. These duties may be divided -into two classes, those toward the public and those that affect their -stockholders. Their public duties may again be divided into those that -are imposed on them by statute, and a still larger number by the -common law. As we have seen, stockholders confide necessarily the -management of their corporation to directors, who in most cases must -necessarily have a largely discretionary power, and who, in turn, must -appoint other agents to execute the details of the corporate business. -These not infrequently fail through incompetence or neglect to perform -their duties properly, and consequently corporations are subjected to -lawsuits in which <span class='pagenum'><a name="Page_100" id="Page_100">[100]</a></span>redress is sought by the injured parties. Some of -these wrongs for which they are liable to the public have been -mentioned, it would require too much space to mention all.</p> - -<p>The injuries done to stockholders by their directors remain for -consideration. Unless directors are restricted by action of the -stockholders at a stockholders' meeting, they have the authority -prescribed by charter and statute; outside these, their authority is -largely discretionary, and must be so. If, therefore, stockholders are -dissatisfied with their directors, as they often are, their remedy is -to elect others at the end of their term of service. If at the time of -choosing them, the annual meeting, none are chosen, the directors hold -over until they are again elected, or others are chosen in their -places. After they have been chosen, no stockholder can interfere in -any way with their discretionary authority unless he has a clear case -calling for judicial action. "Until a mistake," says Morawetz, "on the -part of the directors, individual stockholders have no right to appeal -to the courts to define the line of policy to be pursued by the -company. The courts therefore are quite unanimous in sustaining the -action of directors so long as they act within the discretionary -authority given them."</p> - -<p>Occasions happen when the removal of directors is essential to the -welfare of a corporation. Suppose they are pursuing a course clearly -ruinous to the company? In such a case the court will grant relief on -the request of the stockholders whenever the corporation itself is -unable or unwilling to do so. Primarily the corporation should proceed -against the directors, for the wrong is a corporate one. In many cases -the corporation is so completely in their control that the -stockholders are unable to do <span class='pagenum'><a name="Page_101" id="Page_101">[101]</a></span>anything through it. In such case they -must act in the name of, and in behalf of the company. And if they -succeed in establishing their case, the courts will order the removal -of the directors.</p> - -<p>Sometimes the courts, instead of going so far, will enjoin them from -doing wrongs that are feared. Suppose it is feared that directors will -declare a dividend that has not been earned, the courts on proper -proof would enjoin them from making it. Suppose it is feared they will -issue more stock and divide all the shares among themselves instead of -proportionately among all the stockholders as the law requires, in -order to get control of the company, a court would not hesitate to -restrain them.</p> - -<p>Lastly may be considered a stockholder's rights to inspect the books -of his company. This he may do at all proper times and for reasonable -purposes. And if the right is refused the courts will aid him in -making an inspection. What then is a proper purpose that justifies him -in making the request? He cannot do so to satisfy some freak, or to -annoy an official with whom he may be on bad terms. Nor can he do it -to obtain information to be used for stock-jobbing purposes. Suppose -he has reason for supposing that the books were falsified, that the -stockholders were not receiving correct accounts of the expenditures -and earnings of the company, a stockholder would certainly have a -right to make an examination, and could also employ an agent, -attorney, or expert accountant to do this for him, for his ignorance -of bookkeeping methods might debar him from making an efficient -examination were the right confined exclusively to himself.</p> - -<br /> - -<p><b>Curtesy.</b>—A husband acquires an interest or estate in land belonging -to his wife after her death. <span class='pagenum'><a name="Page_102" id="Page_102">[102]</a></span>To be entitled to it, there must be a -legal marriage. Even though it be unlawful, if not set aside during -her life, his interest in her estate cannot be defeated by afterwards -declaring the marriage void. Curtesy does not extend to land nominally -held by her, or as trustee. The wife must have had a child who might -have inherited the estate. It is immaterial whether she acquired her -estate before or after the birth of the child. As soon therefore as a -child is born, his estate or interest begins and is perfected or -consummated by her death, and may be taken at any time afterward for -his debts. What may be the effect of a divorce is not well settled. In -some states even though he is an innocent party, he forfeits his -estate. This rule is founded on the idea that he is a voluntary party, -and therefore need not have one; in other states his interest -continues. As the husband's rights to such an estate have been -abolished in many states, we refrain from adding more principles.</p> - -<br /> - -<p><b>Deceit.</b>—A seller is not liable for deceit when the knowledge, or -way of obtaining it, is equally known by both parties. If one goes -into a store to buy a bushel of apples that he has seen by the door -and inquires the price and pays for them without making any inquiry -concerning their quality, he cannot recover his money if half of them -prove to be rotten unless the seller intentionally deceived him, for -he might have inquired whether they were all like those on top and of -good quality. But if the merchant should put fine ones on top in order -to deceive a purchaser, he could recover for his loss. This rule has a -wide application. Suppose a seller keeps his store dimly lighted -intentionally so that the inferior quality of his goods cannot be -discerned, and a <span class='pagenum'><a name="Page_103" id="Page_103">[103]</a></span>person should thereby be deceived and injured, he -would have a good cause of action against the seller. Suppose a ship -was decayed in places, and these were intentionally so concealed that -they could not easily be seen by one who was examining with the -intention of purchasing, and he was thereby misled, the seller would -be liable for the loss to the purchaser. Of course, the prudent course -is to obtain a warranty, or better still, whenever practicable, buy of -one who has established a reputation for honest, fair dealing.</p> - -<p>Suppose a man purchases a piece of land, generally supposed to be an -ordinary farm, which contains, as he knows, a valuable coal mine, can -the seller after the public knowledge of the mine, recover the land or -a larger purchase price therefor? Has the purchaser deceived him? Did -the law require the purchaser to make known his superior knowledge -before purchasing? No, if it did, there would be no end to the -confusion to which such a rule would lead. It is within ordinary -experience that purchasers buy either knowing or supposing they will -reap advantages from their contracts of which the seller is ignorant. -There is no deception in this; but there is in withholding knowledge -from the buyer of the quality or condition of a thing that affects its -value, and which if known by him would probably prevent him from -purchasing. Suppose a horse is blind in one eye and the prudent horse -trader says nothing. Can the buyer recover? Ordinarily he could not, -for he ought to have looked, and if he did not know enough to look, -either he should have obtained a warranty, or have employed a -competent agent to purchase for him. Suppose the old trader, skilled -in his business, intentionally put his horse in the shadow so that the -defective <span class='pagenum'><a name="Page_104" id="Page_104">[104]</a></span>eye could not be seen, then the seller would surely have -his remedy against him. If he put his horse there accidentally he -would not.</p> - -<p>Is a wink a deception for which the winker must answer in the law? A -hardened dealer once went near a large meeting of men with a wagon -load of bottles containing cold tea. The thirsty crowd soon came -around. "One dollar a piece," he announced with a wink. The wink was -effective and the bottles were quickly sold. They were filled with -cold tea, and the buyers sued for the deceit that had been practiced -on them. They failed, the court said that a wink was not enough. -Another court might have decided otherwise.</p> - -<br /> - -<p><b>Deeds.</b>—In selling and buying land several deeds are in use. The -forms differ considerably in the different states. The most important -of them is called a warranty deed, in which the seller not only -conveys the title, but warrants or agrees to defend it against all -attacks. Suppose A sells a piece of land by warranty deed to B, who -makes the unwelcome discovery that a mortgage is existing thereon. He -notifies A and asks him to clear the title. Suppose the mortgage has -been paid, but the lender of the money, the mortgagee, forgot to give -the proper deed to show that he had received payment. And suppose he -was an ugly fellow who would not give the proper release. B could -compel him to do so, and the expense must be borne by A because his -deed of warranty required him to give a clear title.</p> - -<p>In such a deed the grantor or seller agrees or covenants to do usually -four or more specific things: first, he asserts that he has a right to -convey the land at the time of the sale. Of course, if he has not, the -agreement or covenant is at once broken <span class='pagenum'><a name="Page_105" id="Page_105">[105]</a></span>and the buyer can proceed -against him to make the title good, or to recover damages if he cannot -retain the premises. The second covenant or agreement is to the effect -that the seller has both the quantity and quality of land mentioned in -the deed. The third covenant is that there are no encumbrances on the -land, that is, no mortgages, no rights of others to pass over it, or -to take earth, water or other things from the land. The fourth -covenant is for the quiet enjoyment of the land, which is the most -general form of warranty. There may be other covenants, often there -are, while the four mentioned may be, and often are, modified.</p> - -<p>Does such a warranty bind other persons than the warrantor, in other -words are his heirs and persons to whom he may devise his lands also -indefinitely bound by his warranty? The statutes in some states fix -his liability. Where none exist the law limits the liability of -parties to the amount of assets or property they have received from -the warrantor; if they have received nothing they are not liable for -anything.</p> - -<p>A covenant to protect the buyer from encumbrances, claims, etc., does -not always relieve him from the expense of a lawsuit. Suppose A claims -a right of way over B's land and insists on using it. B brings his -action of trespass against him and wins. He cannot sue his grantor or -seller to recover the expense of the suit, for the latter would reply, -"You have won your case which is proof that the title is good as -warranted, and therefore you have no claim against me." If, on the -other hand, A had won his case B would then have a good cause of -action against his covenantor.</p> - -<p>Another kind of deed used in selling land is called an indenture. This -is signed by all the parties, and <span class='pagenum'><a name="Page_106" id="Page_106">[106]</a></span>copies are usually made and -delivered to all of them. This deed also contains warrants or -covenants like the one first described.</p> - -<p>Another kind of deed is called a release or quit-claim. By this the -grantor or party giving it conveys whatever interest he may have in -the land. It is the deed always given by a mortgagee on the payment or -discharge of his mortgage. It contains no warrants to do anything and -therefore differs from a deed of warranty. Sometimes a person conveys -a piece of land knowing that the title is defective which the -purchaser, notwithstanding the defect, is willing to buy. The seller -may safely give a quit-claim deed for he thereby sells only whatever -interest he may have.</p> - -<p>All the deeds above mentioned except an indenture, are signed only by -the selling or granting party. They become effective by delivery. They -are often called poll deeds.</p> - -<p>Every grantor must append to his name a seal. Once a seal was of the -utmost importance in the days of ignorance when persons knew not how -to write and each person had a seal of his own. As distinctive seals -have long since disappeared, seals have less significance than -formerly, nevertheless many legal rules are founded on the distinction -between sealed and unsealed instruments. Thus two written contracts -may be exact duplicates except that one of them may have no seal. The -law in most states regards the unsealed one as a mere oral or -unwritten contract, to which are applied the same rules of evidence. -The use of L.S., enclosed in brackets, thus [L.S.] is just as -effective as a seal of wax or a wafer. In many states a corporation -need not use its corporate seal, any other may be substituted. The -federal rule especially requires <span class='pagenum'><a name="Page_107" id="Page_107">[107]</a></span>the use of the corporate seal and -that it be affixed by someone who was properly authorized to do this.</p> - -<p>By statute the names of two witnesses are required, and when omitted -the deed is not only defective, but in some states at least is void. A -witness need not write his name in the grantor's presence, if asked to -sign in the proper place as a witness this will suffice.</p> - -<p>A lease of land is also a deed differing from those mentioned in -conveying the use of land for a fixed period and on varying terms.</p> - -<p>A deed should be completed before delivering it, the same rule applies -to most legal writings. Unimportant alterations may be made, and if -any are made, the question may prove difficult, are they important or -not. Of course if both parties agree to them, the validity of the deed -is not impaired. Whenever they do appear, in some states the law -presumes they were made before delivering the deed, but this is not -the rule everywhere.</p> - -<p>Who can make or execute a deed? A minor cannot make a legal deed, and -if he attempts to do so he can avoid or set it aside after he becomes -of age whenever he acts with reasonable promptitude. If he does not -thus act, his delay will be regarded as a ratifying of his previous -action. What action will have this effect is a fact to be proved -whenever the controversy arises.</p> - -<p>Usually a deed need not be read to the grantee, nor can he avoid it -because he did not know the contents, except when fraud has been -practised on him. To a blind or ignorant man a different rule applies. -The deed should be read to him, and if this is not done, or if it is -wrongly read to him, he can have it set aside in a proper legal -proceeding.</p> - -<p>Delivery is essential; to do this two things are <span class='pagenum'><a name="Page_108" id="Page_108">[108]</a></span>required. The -grantor must give up the deed and the grantee must actually accept it, -consequently the delivery of a deed after the grantor's death would -not be valid. There must be an actual delivery by him, and though a -deed may be completed in every other respect, it is not an effective -deed. A deed therefore stolen from one's drawer and delivered to the -grantee would not be valid, however innocent the grantee might be in -receiving it. Many difficulties have arisen in applying this rule. -When the question comes before a court, it seeks after the intention -of the parties, and is guided by it when ascertained. If therefore a -deed were lying on a table and the grantor should say to the grantee, -take it, and he did so, the delivery would be complete; but if he -should get it in a surreptitious way there would be no legal delivery. -Suppose a deed were mailed to the grantee, or handed to another person -to deliver to the grantee, this would be a good delivery.</p> - -<p>As soon as the deed has been delivered, it should be taken to the -recorder's office to be recorded. Every state has offices in the towns -or counties for keeping a perfect copy of all deeds relating to the -transfer of the lands within the limits of the town or county. The -object of this is to protect purchasers, for, if this were not done, -the owner of land might sell it to a purchaser a second time who knew -nothing of the previous sale, and then someone would be the loser. To -guard against such frauds the system of registration was established -at an early day in American history. A purchaser therefore should take -his deed at once to the proper recording office for record, and this -is regarded as notice to the world from the time of delivering the -deed to the recorder, who makes a note thereon of the day and <span class='pagenum'><a name="Page_109" id="Page_109">[109]</a></span>hour it -was left with him. Suppose that some creditor of the grantor, not -knowing of the sale, should attach the land as the property of the -grantor to secure a debt due to him, could he hold it as against the -purchaser? Ordinarily the purchaser could still retain the land, and -the same rule would apply between him and a second purchaser, though -buying in good faith supposing the grantor was the real owner. In some -states a statute protects the purchaser by giving him a fixed period -of two or three months or more to record his deed. The safe rule is to -leave the deed with the recorder as soon as possible after receiving -it.</p> - -<p>It is a general practice to do another thing with deeds, to make or -take an acknowledgment of them, and in some states this must be done -before they can be recorded. This consists on the part of the grantor -going before a proper officer, often a notary public, justice of the -peace, clerk of a court of record, commissioner of deeds, and making -oath that he has duly executed the above deed. This oath appears in -the form of a certificate at the bottom of the deed or appended -thereto and is signed by the officer, who also attaches his official -seal. When a deed has thus been acknowledged it can be used in a legal -proceeding as evidence without requiring further proof of its -execution. But if it had not been acknowledged, then a court would -require some proof that the deed had been made and delivered before -accepting it as proof of the fact.</p> - -<p>When a married woman executes a deed the officer who took the -acknowledgment of the deed must make an examination, apart from her -husband, to ascertain whether or no her act was voluntary, and he must -also record the fact. The acknowledgment should be made after the -examination. A defective <span class='pagenum'><a name="Page_110" id="Page_110">[110]</a></span>acknowledgment by a married woman is -worthless, nor will any court compel her to make another one. Should -she make another deed, however, with a proper acknowledgment this -would be legal.</p> - -<p>The officials who take acknowledgments possess different authority, -some can take them only of land situated in their respective states; -others have authority to take acknowledgments of deeds of land in -every state. In all the states are commissioners of deeds, so called, -who are authorized to act outside their own state. Some persons who -have an important conveyancing business have qualified themselves to -thus act as commissioners for many states, and perform a highly useful -service.</p> - -<p>If a mistake has been made in a deed can it be corrected? The general -rule is it can be amended in all cases of fraud, accident, or mistake. -How can this be done? If the grantor is unwilling to do right, the -purchaser can by a proper application to a court, or court of equity, -ask for the correction of the deed or such other relief as justice -requires. Suppose the grantor has declared in his deed that the land -contains a hundred acres and a survey finds only fifty. This would be -a palpable fraud and a court would, if requested, order the -reconveyance of the land and return of the money. Suppose the deed -covered no land at all belonging to the grantor, this would be a still -greater fraud. Suppose the deed said one hundred acres more or less, -and a survey found only fifty acres. The purchaser bought supposing -that there was no such deficit, but perhaps a small one, what would a -court do? Doubtless it would hold that the grantor tried to deceive -the other party and would grant relief.</p> - -<p>The land sold must be bounded or described. <span class='pagenum'><a name="Page_111" id="Page_111">[111]</a></span>As land is increasing -everywhere in value more pains is taken in describing it, than -formerly. Large tracts have been surveyed by the government and are -indicated as sections, quarter sections, yet even these boundaries are -sometimes imperfect, caused by incorrect surveys, whereby lands -overlap, or otherwise have defective boundaries.</p> - -<p>One of the well-known rules is, monuments control corners and -distances. This is founded on much experience, for this shows that -courses differ from variations in the compass, changes in the surface, -etc. Though monuments may be moved intentionally or by natural causes, -they can be more trusted in the long run of things.</p> - -<p>The location of a monument is a question of fact. It is sometimes said -that natural monuments possess higher value than artificial ones, this -depends on the character of the artificial one. A large stone set in a -secure place surely is a better boundary than a wayward stream whose -course is changed by every freshet. In marking the public lands of the -western territories by statute monuments must designate the corners of -the tract. But when these are lost then corners and distances become -the guide. Oral evidence may be admitted to establish the location of -monuments, and even hearsay evidence may be used for the purpose.</p> - -<p>In a city lot courses and distances play a larger part in fixing the -boundaries, and are more carefully defined. Often the boundary is to -the center of a dividing wall.</p> - -<p>The boundary of land by a non-navigable stream is to the center; and -if one owns on both sides of such a stream he is the owner also of the -bed. But if land is bounded by the bank or shore of a stream, or by -other words of clearly evident exclusion, the <span class='pagenum'><a name="Page_112" id="Page_112">[112]</a></span>stream is excluded. The -rule is different that applies to a tidal navigable stream. In some -states the boundary is high-water mark; in other states low-water. In -both cases the riparian owner, so-called, may erect a wharf extending -from his land subject to public control. The boundary of a natural -pond or lake, either in its natural state or raised artificially, is -low-water mark. Nor is the law changed by the conversion of a fresh -water pond into a salt pond by the hand of man. The boundary to an -artificial pond is through the center.</p> - -<p>The title to the bed of all lakes, ponds, and navigable rivers to the -ordinary high-water mark is vested in the states. Thus the people who -live around them may enjoy the waters the same as others enjoy tidal -waters. Nor is the state title affected by any manipulation of the -land above the surface of the water.</p> - -<p>The same rules of law apply to land situated along public highways. If -a deed should bound the land "by or along a highway," it would include -the land to the center; only words of clearly intending exclusion have -a different effect. If a deed should say "by the side" of a highway, -it might be excluded and it might not, the courts do not agree. All -agree that the intention of the parties should govern, but differ as -to intention expressed in the words they have used. The law is full of -such difficulties. If a highway is abandoned, the adjoining owners can -extend their lines to the center, unless one of them can prove that he -is entitled to more than one half.</p> - -<p>In investigating the title to real estate it is the duty of an -attorney employed for that purpose, says Justice Trenchard, "to make a -painstaking examination of the records and to report all facts -relating <span class='pagenum'><a name="Page_113" id="Page_113">[113]</a></span>to the title. He is, therefore, liable for any injury that -may result to his client from negligence in the performance of his -duties—that is, from a failure to exercise ordinary care and skill in -discovering in the records and reporting all the deeds, mortgages, -judgments, etc., that affect the title in respect to which he is -employed."</p> - -<br /> - -<p><b>Divisional Tree.</b>—When the base of a tree is wholly on the land of -one owner the whole tree belongs to him. An adjoining owner, however, -may cut off at the divisional line such branches as over-hang his land -without notice and without reference to the length of time they have -been growing. To do this he cannot go on the land of his neighbor, but -must stay on his own land. A different rule applies to a tree that -stands on a divisional line and both owners have an interest therein.</p> - -<br /> - -<p><b>Dower.</b>—Dower is the interest that a wife has in her husband's land -after his death, and consists, unless modified by statute, of the use -of one third during her life. While both live her interest is so -secured to her by law that he cannot sell and convey any of his land -unless she unites with him in signing a proper deed of conveyance. In -most states this interest or dower is paramount to the claims of her -husband's creditors. But if there is any lien on the land at the time -of his death, like a mortgage, she cannot claim a preference or -priority over the mortgagee.</p> - -<p>She can claim her dower in any land belonging to her husband which her -children, if she had any, could have inherited as the heirs of their -father. When her dower is in mortgaged land, she cannot get possession -until the mortgage has been paid. <span class='pagenum'><a name="Page_114" id="Page_114">[114]</a></span>Again, where land, wherein she has -a dower interest, must be sold, her right to the proceeds follows the -sale. If her husband was not in possession of the land claimed by him -before and after marriage, her dower will not become effective until -gaining possession. If he were only the nominal and not the real -possessor, her dower will not attach to the land, nor if he were in -possession as trustee, the real ownership belonging to another.</p> - -<p>A legal marriage is necessary to sustain a dower estate. Whenever a -marriage can be set aside for some illegality, and is not, it will -sustain her dower on his death. So, too, her dower may be lost or -barred by a legal separation; if she should re-marry, or the divorce -is set aside, her dower would revive. Her dower may also be lost -should her husband legally part with his estate, or by any legal -proceeding it should be taken away from him; thus, should another -claim it and prove that he had the better title. In other words she -loses her dower whenever her husband has no estate from which her -dower can be carved out. It is true that an adverse claimant cannot -give any title to her husband's land that would bar her right thereto. -The reason for this rule is that, like a minor, her rights cannot be -acquired against one who is unable by reason of age or other infirmity -to protect himself.</p> - -<p>The wife is entitled to have dower assigned to her immediately after -her husband's death. Until this is done, she has the right of common -law for the period of forty days, called quarantine, to reside in her -husband's house, provided she does not marry during that time.</p> - -<p>Dower may be assigned to her in two ways. One way is by direction of -the court, which ascertains by proper evidence the extent, location -and value of <span class='pagenum'><a name="Page_115" id="Page_115">[115]</a></span>the husband's lands, and then directs the sheriff to -carry out its order in assigning to her a specific portion for her use -during life. The other way is by agreement. In some states money is -assigned to her instead of land as dower.</p> - -<p>Dower may be barred by agreement made before marriage. These -arrangements, marriage settlements, are becoming more frequent with -the increase of wealth and complexities respecting the holding of -property. Sometimes a testator provides for his widow in lieu of -dower. In such a case she may accept the gift, or reject it and claim -her dower rights. Suppose a testator should own a large amount of -land, and in his will should give her only a small amount of money in -lieu of dower. If eager to get the most possible, she would reject the -gift of money and claim her dower rights. On the other hand, suppose -he had but very little or no real estate, then she doubtless would -accept the money gift, unless she could claim a still larger sum by -virtue of some statute made to fit such cases.</p> - -<p>Dower does not exist in crops or trees severed from the land, but does -exist in mines and quarries belonging to the husband which were opened -and worked during his life. If lands have been exchanged by the -husband, she can elect in which she shall take her dower, but not in -both. There can be no dower in a mere personal privilege, or in a -revocable license pertaining to land. The widow of a partner is -ordinarily entitled to dower in so much of the partnership land as is -left after the payment of the firm's debts and the adjustment of -matters between the partners. But if an agreement among them that the -land shall be considered as personal property for all purposes, then -no dower therein can be claimed by the widow of any partner.</p> - -<p><span class='pagenum'><a name="Page_116" id="Page_116">[116]</a></span>A wife can release her inchoate dower or future expectation of -receiving it by joining in a conveyance with her husband for that -purpose. In order to make the election binding, it must be made with -full knowledge on the widow's part of her husband's estate, and the -relative value of her dower interest. The election is personal, and -cannot be exercised by her representatives after her death, nor by -creditors; and if insane, this cannot be done by any committee or -guardian acting under the authority of a court.</p> - -<p>An absolute divorce, even though for the husband's fault, divests the -wife of dower, unless her right is saved by statute. Quite frequently, -the statute provides that there shall be no dower in case of divorce -for the wife's fault. Occasionally it is provided by statute that -divorce for the husband's fault shall not bar dower; and sometimes a -statute requires dower to be assigned immediately upon divorce without -awaiting the husband's death. It may be added that the principles of -the common law relating to dower have been largely modified by statute -in all the states.</p> - -<br /> - -<p><b>Drunkenness.</b>—The courts are reluctant to recognize intoxication as -an excuse either for committing a crime or for repudiating a contract, -but if from long continued intemperate habits a man has become -actually insane or incompetent, his actual mental condition will be -recognized whatever may have produced it.</p> - -<p>Again, in making a contract the other party could hardly deal with a -man badly intoxicated without knowing his condition, consequently the -element of fraud appears, and the contract may be declared invalid -either for lack of contracting capacity on the part of the drunken -man, or for <span class='pagenum'><a name="Page_117" id="Page_117">[117]</a></span>fraud on the part of the other in taking advantage of his -condition. His fraud would be still greater if he had designedly -caused the drunkenness of the other. Either objection, however, -renders the contract voidable rather than void, and should an -intoxicated party, after he became sober ratify his contract, or fail -to repudiate it and restore the consideration, if any, within a -reasonable time, he would become bound.</p> - -<p>The courts are still more reluctant to admit intoxication as an excuse -for criminal acts. The courts hold that one who voluntarily deprives -himself of self-control must have intended the consequences, therefore -it is everywhere held that one who voluntarily becomes intoxicated, -although he did so with no purpose to commit a crime when intoxicated, -cannot claim immunity from criminal responsibility, or even a -mitigation of the penalty, though having no capacity to distinguish -between right and wrong. And yet, like so many legal rules, there are -some marked exceptions to this one. Thus, since burglary is the -entering of a house with the intent to commit a felony therein, one -who blunders into a strange house because he is too drunk to know -where he is or what he is doing has not committed the crime of -burglary. So one who carried off the property of another through -drunken ignorance does not commit larceny, as there is no intent in -such a case to convert the property to the taker's own use. Another -application has been made in cases of assault with intent to kill a -person.</p> - -<p>Again, says Peck, "if one is visibly intoxicated, it is the duty of -those who come in contact with him to take his condition into account, -and their use of due care will be judged in view of that fact. Even if -the drunken person and the other are both <span class='pagenum'><a name="Page_118" id="Page_118">[118]</a></span>negligent, the sober party -may be liable under the doctrine of the last clear chance, if he fails -to exercise toward the drunken man the degree of care which is -evidently required to avoid injuring him. Especially is a common -carrier, in dealing with a passenger who is on its car in an -intoxicated condition, bound to take his helpless condition into -account in removing him from the car or otherwise handling him, and -not put him in a place of manifest danger to one in his condition."</p> - -<p>It has also been held that the intoxication of one who uttered a -slander may be admissible in mitigation of the damages, as utterances -of a drunken man could not seriously impair the reputation of any one.</p> - -<br /> - -<p><b>Equitable Remedies.</b>—Elsewhere we have told how courts of law differ -from courts of equity. In some states no separate courts exist, and -wherever legal proceedings are established by a code or system of -statute law, the form of complaint addressed to a court is quite the -same in an equity case as in any other. But in states where code -practice has not been established, the mode of setting forth one's -grievance or wrong is by a bill or petition, ending with a prayer for -relief. We will now briefly state some of the things for which relief -in equity may be sought.</p> - -<p>One of the most common things is to compel persons who refuse to -perform their contracts to execute them. Suppose one has agreed in -writing properly signed to sell his farm to another, but is unwilling -to give him a deed. It may be that he can get more for his farm, or he -has made the discovery since selling it that it is worth much more, is -underlaid with coal or oil, or that a railway is <span class='pagenum'><a name="Page_119" id="Page_119">[119]</a></span>soon to be built -near it that will enhance its value. If he went to a law court, all -that it could do would be to compel the seller to give the purchaser -such damages as he could prove he had sustained from the seller's -failure to execute his agreement. But a court of equity can go further -and compel the seller to give the purchaser a proper deed, the kind of -deed mentioned in the agreement; or, if none was specified, the kind -of deed usually given in such cases.</p> - -<p>This remedy cannot be always sought whenever the seller fails to -execute his contracts. The important limitation is, when the law has -an adequate remedy, and the injured person has no need of resorting to -a court of equity. All the ordinary agricultural and manufactured -products fall within this class, cotton, cattle, lumber, fruits, stock -in trade and the like. But if a chattel has a sentimental value to the -purchaser, a court of equity will decree that it must be delivered to -him, because in such a case the damages would obviously be inadequate. -The same rule applies to all articles of a unique or rare value that -cannot be duplicated; also to patented or copyrighted things that -cannot be procured in the open market.</p> - -<p>Suppose one has purchased the stock of a bank or railroad company, -which the seller refuses to deliver, has the buyer a legal remedy for -damages, or an equitable remedy to compel the seller to deliver the -stock, or has he the choice of remedies? The courts have divided on -this question. The better rule is, if the stock can be readily bought -in the open market, the buyer has only a law remedy to recover damages -from the seller's failure to execute his contract; if the stock cannot -be thus purchased, a money damage is not an adequate remedy, the -<span class='pagenum'><a name="Page_120" id="Page_120">[120]</a></span>purchaser wants the stock and he can, through a court of equity, -compel the seller to deliver it to him. As government bonds can always -be bought in the open market, a court of equity will not decree the -specific execution of a contract for the delivery of the actual bonds -purchased.</p> - -<p>If A has agreed to erect a building for B on his land and fails to do -it, money damages are usually an adequate remedy, but if B cannot find -any one else to do the work as well, or in as satisfactory manner, -then a court of equity would compel A to fulfil his agreement. -Likewise if a landlord has agreed to repair his tenant's premises and -neglects, the legal remedy is usually more satisfactory than a -specific execution of the agreement, because work done under -compulsion is not likely to be as well done as that done voluntarily.</p> - -<p>A contract to render personal services will not be enforced against a -person who has agreed to perform them, for several reasons, one is -that another person can be employed, another is that the thirteenth -amendment to the federal constitution, forbidding involuntary -servitude, cuts off the equitable remedy in such cases; of course the -legal remedy for damages is still effective. A contract to give a -mortgage to secure a loan of money may be enforced by the creditor, -but a contract to lend money cannot be enforced by either party, -because there is usually an open market for the lending and borrowing -of money. Likewise a contract to form a partnership cannot be -enforced, for, if it were, the unwilling partner could dissolve it and -thus nullify the action of the court.</p> - -<p>Where one sells out his business, whether commercial or professional, -and agrees not to compete with the buyer, equity will compel the -seller to <span class='pagenum'><a name="Page_121" id="Page_121">[121]</a></span>observe his contract unless it was illegal or an -unreasonable restraint on trade. This limitation is important. Thus A, -a dentist in Philadelphia, agreed with B, another dentist, not to -practice in the city for ten years a certain method of extracting -teeth. A continued to practice as before and B applied to a court of -equity to enjoin him. He failed for the reason that no one ought to -have a monopoly, so the court said, in any means or method for -relieving human suffering, like the process in dispute. If an employee -agrees not to divulge the trade secrets of his employer, equity will -enforce the agreement, for damages given in a law court would be -wholly inadequate.</p> - -<p>Another class of cases must be mentioned relating to injuries to land. -By the common law the only relief a landowner had against one who -injured it in any way was an action of waste to recover money damages. -A court of equity has power to issue a command to the person who -threatens or attempts to commit injury ordering and directing him to -desist from his purpose. This has been often used by the owners of -land against their tenants who attempted to do things that would -materially injure the property. This remedy is now often used to -secure the owner and occupier of land in its proper use against those -who attempt to commit a nuisance. While the occupier could recover -damages if he sought the aid of a law court, equity will order the -wrongdoer to abate the nuisance. Such a remedy is much more effective -than the legal one, because damages that may be recovered relate only -to a past offense, while the equitable one prevents it from happening -or from its continuance.</p> - -<p>Promises not to do some particular act on a piece of land are often -made in deeds conveying them; <span class='pagenum'><a name="Page_122" id="Page_122">[122]</a></span>they are called covenants. Equity will -usually enforce these covenants, and will compel the wrongdoer to undo -what he has done provided that relief is sought promptly. Thus if a -purchaser agrees not to build nearer the street than a stated line, he -can be enjoined from disregarding it. A purchaser therefore who built -two houses three feet beyond the agreed line was compelled to remove -them.</p> - -<p>The remedy in such a case is an injunction. It may be temporary or -permanent. Quite often when one applies for an injunction, if the -injury threatened is immediate, the court will immediately enjoin the -party from proceeding and fix a time for a future hearing to decide -whether the injunction shall be dissolved or made permanent. The time -fixed for such a hearing is within the discretion of the court, and -depends on the nature of the case. Usually the time is quite short, -enough to enable the parties to collect the evidence relating to the -controversy. The hearing is conducted very much like any other trial, -witnesses appear, all the evidence is given, and is reviewed by -contending counsel, after which the judge announces his decision. Some -of the more noteworthy injunctions of recent days have been rendered -against labor unions or their members who, having struck for higher -wages, or other ends, have sought to picket the works of their -employers and thus prevent them from employing other workers to take -the places of the strikers. The unions contend that this is an -improper use of the judicial power, whether it is or not no one will -deny that it has been long exercised.</p> - -<p>In the early days of administering the patent law injunctions were -granted against infringers. Judges soon grew more cautious when they -learned that patents were sometimes erroneously granted, and <span class='pagenum'><a name="Page_123" id="Page_123">[123]</a></span>that, on -acquiring a fuller knowledge of the controversy, there had been no -infringement. The modern practice therefore is, unless the proof is -very clear, to require a party who applies for an injunction to try -his case first and establish his patent and then, if it has been -infringed, an injunction will be issued.</p> - -<br /> - -<p><b>Factor.</b>—A factor receives and sells goods for a commission, is -usually entrusted with their possession, and sells them in his own -name. He has a special interest or property in them, and a lien -thereon for advances in money that he may make to the owners. No -formal mode of authorizing him to act is required, usually this is -done by word only, and his authorized acts may be ratified by his -principal. This authority is largely the outgrowth of usage. The -authority of a factor to fix the terms of selling may be by agreement -or by usage, like any other agent. Limitations fixed by the principal -are ordinarily binding on the factor, and, so far as they are -chargeable with notice of them, third persons also. Where goods are -confided to a factor without instructions, authority to exercise a -fair and reasonable discretion is implied. Unless restricted by his -principal, or by contrary usage, he may sell goods on a reasonable -term of credit. If he is restricted to cash sales only, or is not -protected by usage in selling on credit, he cannot do so. Secret -instructions would not affect the rights of a purchaser ignorant of -them and relying on customary authority.</p> - -<p>A factor is employed to sell goods, and not to barter or exchange -them, and if he should do this his principal could recover them. He -may insure the goods, but is not required to do so unless instructed -<span class='pagenum'><a name="Page_124" id="Page_124">[124]</a></span>or is required by usage, which plays a large part in this matter and -must be observed except as qualified by instructions.</p> - -<p>He cannot compound or compromise a claim for the purchase price, or -discharge the debt on payment of a part only, or submit a disputed -claim for arbitration, or rescind a sale, or discharge a purchaser -from any part of his obligation, or extend the time of payment, or -make, accept or indorse negotiable paper contrary to instructions or -usage, or sell the goods thus entrusted to him for sale to himself. -See <i>Agency</i>.</p> - -<br /> - -<p><b>Fire Insurance.</b>—Insurance against loss by fire is now effected in -companies organized for that purpose. Two kinds exist, stock and -mutual. In mutual companies the persons insured act together to insure -each other. The members of some of the largest mutual companies are -manufacturing corporations. The more general mode of conducting them -is to require each member to pay a premium in advance for the amount -insured which, unless unusual losses occur, will be enough to pay all -the losses for the year. If it is not all needed, the balance is -returned to the parties who paid the premiums, or is credited to them -for the following year. If the losses exceed the premiums thus paid in -advance, then an assessment is made on each member to cover the -deficiency. Generally the premium paid is more than enough to cover -the losses, and a balance is returned or credited to the insured as -above mentioned. As mutual companies do not take such risks as stock -companies, the cost of insurance is less and therefore is carried in -preference to insurance in stock companies, whenever it can be -obtained.</p> - -<p><span class='pagenum'><a name="Page_125" id="Page_125">[125]</a></span>There is another way for paying for losses in mutual companies. -Instead of paying cash premiums in advance, the insured gives a bond -or note well secured that he will pay in cash whenever a call is made -on him to cover the losses that have been incurred at the end of the -year or other period. This method is in vogue in some sections, -because still less money is required to keep property insured. Of -course besides the money to pay losses another sum is required to pay -the expense of management. It will be seen that the mutual plan is -purely for protection against loss and no profit in the way of -dividends is forthcoming, for the companies have no capital. It is -true that some companies, instead of returning the unexpended premiums -for losses retain them or a part of them and by so doing accumulate a -surplus. Many companies, however, return all the contributions not -expended for management or losses and have no surplus, or only a very -small one.</p> - -<p>Stock insurance companies proceed on a different principle. They are -organized to make money, a capital is subscribed, the rates of -insurance or premiums are fixed and after paying the expense of -management and loss, the balance is paid to the stockholders in the -way of dividends. The business is one of unusual hazard, and only a -rich person, who can afford to lose his money, ought to invest in the -stock of such companies. Their profits and losses vary greatly from -year to year; and failures have been frequent. Nevertheless some -companies have a fine record, enough to tempt them to continue -notwithstanding their trying reverses.</p> - -<p>As the contract of insurance is for an indemnity, the insured must -have some interest in the property insured, otherwise the contract is -a mere wager, <span class='pagenum'><a name="Page_126" id="Page_126">[126]</a></span>which the law condemns. Moreover the interest must -continue and exist at the time of the loss. Who, therefore, has an -insurable interest? A bailee, a carrier of goods, a consignee who has -authority to sell them, a factor, pledgee, warehouseman, an assignee -for the benefit of creditors, an executor or administrator, an -attachment creditor, but not a general creditor, a landlord, tenant, -mortgagee of real or personal property, a lienor, for example, the -holder of a mechanic's lien, a receiver, residuary legatee or devisee, -a trustee, vendees and vendors of real and personal property, the -owner of stock in a corporation, any agent who has the care and -management of his principal's property, besides many others. But a -fire insurance policy may be assigned as collateral security with the -company's consent, and continue valid though the assignee has no -interest in the property. This rule therefore is fundamental, and if -the interest of the insured in the property has been extinguished -after making his contract and prior to its loss by fire, he can get -nothing from the company. Likewise the property must have been in -existence at the time of making the contract, if it was not, the -policy is void. Many stories are told of insuring ships after learning -of their loss; such conduct is a palpable fraud.</p> - -<p>An insurance policy is a contract, of which the policy is evidence. A -standard policy has been prescribed in several states by statute: in -other states the parties are still free to make such terms as they -please. It is usual for companies to execute blank policies in due -form to be filled out and delivered by their agents. Such policies are -not valid until countersigned, unless the countersigning is waived.</p> - -<p>When does the policy become valid or binding on the insured? Says a -competent authority: "Where <span class='pagenum'><a name="Page_127" id="Page_127">[127]</a></span>a policy has been duly executed in -compliance with an application on the part of the insured, so that the -minds of the parties have fully met as to the terms and conditions of -the contract, a manual delivery of the policy to the insured is not -essential to render it binding on the company. If the contract has -become binding by the issuance of the policy and the placing it in the -hands of an agent for delivery, then the fact that such delivery is -not actually made to the insured until after the loss has occurred, -will not defeat recovery by the insured."</p> - -<p>The premium usually must be paid at the time of issuing the policy, -unless a different agreement is made concerning it. Credit may be -given, and an agent generally has authority to do this. A valid -payment may also be made in other means than money; a check or note -may be given for it.</p> - -<p>An insurance policy may be assigned, though it usually contains a -clause that the consent of the insurer is needful. When the policy -contains this clause and the insurer without valid reason refuses to -consent to an assignment, "the assignee acquires the same right as -though consent had been given."</p> - -<p>Consent to an assignment may be given by the president of the company, -without formal vote by the directors. It may also be given by the -secretary or by any other agent duly authorized.</p> - -<p>When can a policy be canceled? Unless this right is reserved in the -contract, or given by statute, the insurer cannot cancel the contract -without the consent of the insured. It often is reserved, and if -exercised, this must be done before a loss occurs, and a cancellation -made afterwards, though without knowledge of it, is void. The motive -for making it is not important. If, as a condition of cancellation, -the unearned portion of the premium is to be <span class='pagenum'><a name="Page_128" id="Page_128">[128]</a></span>returned, the failure to -return it renders the cancellation worthless. Nor is this effective -until notice has been given to the insured.</p> - -<p>A court of equity will reform a contract of insurance on the ground of -accident, fraud, and mistake. Oral evidence is admissible to prove the -fraud or mistake; it must, however, be clear before a court will grant -relief. If mistake is the ground for asking relief, the insured must -not have been guilty in causing it, and must act promptly after his -discovery. This rule does not prevent him from seeking relief when the -agent of the insurer has been negligent. Furthermore it may be granted -even after the happening of a loss.</p> - -<p>Should there be a conflict between the written and printed portions of -a policy, the written portion will be presumed to represent the intent -of the parties. If, therefore, the printed portion excludes certain -articles from the risk, and the written portion covers them, they are -included. Conditions also written or printed on the margin or back of -the policy are regarded as portions of it, and these too will control -the printed portions. Besides, the written application is usually -considered a part of the contract and the policy is construed or -interpreted in connection with it. This is especially so where the -proposals and conditions are attached to the policy. If the intent of -the policy is not clear from the language used, the surrounding -circumstances may be shown for the purpose of ascertaining the intent -of the parties. The known usage of trade may also be taken into -account in construing the language of a policy.</p> - -<p>The language of the policy should be so construed as to cover the -property within the intention of the parties, and support, if -possible, the contract of <span class='pagenum'><a name="Page_129" id="Page_129">[129]</a></span>indemnity. Mere clerical errors or mistakes -in describing it may be corrected even after it has been destroyed. -The location is an essential element, and the policy will not be -stretched to cover property not within the description. If a building -is described this does not include separate structures used in -connection with it, nor fixtures constituting no part of the -structure. Unless expressly excepted, however, insurance covers those -things which have been so annexed as to become a part of the realty -but none others. The term store fixtures covers fittings, fixtures, -furniture used in the course of trade, whether they are part of the -realty or not. Likewise the term "stock" used in a mercantile business -includes everything usually kept for sale, in that business, but -nothing more; while household furniture includes all articles -necessary and convenient for housekeeping. With respect to future -additions these are covered by the policy unless it is so drawn as to -show a clear intent to exclude them.</p> - -<p>The risk usually begins with the date of the policy, unless it is -effected by a preliminary contract. In such a case the risk begins -from the date of the preliminary contract, and continues for the -period fixed in the policy, or, if none has been fixed, for a -reasonable time.</p> - -<p>A misrepresentation voids a policy generally. It must not only be -false in fact, but the insured must have known that it was false when -making it in a substantial and material respect. The misstatement of -an agent of the insured will have the same effect. Indeed, any fraud -of the insured in procuring the policy has the effect of voiding it if -the insurer chooses to do so. Of course, the wrongful facts or acts of -the insured possess a varied character. His conduct in concealing -facts that ought to have <span class='pagenum'><a name="Page_130" id="Page_130">[130]</a></span>been made known to the insurer may have that -effect. Thus to conceal a fact of which the insured had knowledge, and -which, if known by the insurer the risk probably would not have been -taken, is a fraud rightly available to the insurer.</p> - -<p>The parties to an insurance contract may agree that the questions put -by the insurer and the answers given by the insured shall become a -warranty. This, as experience has shown, is a simpler way of effecting -a policy of insurance. When this is done a misrepresentation -constitutes a breach of warranty and the contract becomes void.</p> - -<p>The modern policy provides that it shall be void if the insured "now -has or shall hereafter make or procure any other contract of -insurance, whether valid or not, on property covered in whole or in -part by this policy." If the insured effects other insurance he must -not forget to obtain consent of the insurer, and should he forget his -good intention will not preserve his policy. Nor can the insured -protect himself by canceling the prior policy if he breaks the -condition. Nor does its expiration revive the subsequent policy. An -overstatement of existing insurance under an express warranty will -also violate the policy. While forgetfulness or good intention will -not save the insured in such cases, insurance obtained by a third -person without the knowledge of the insured on the same property will -not endanger his rights under his policy.</p> - -<p>If a fire occurs and a loss results, this may be total or partial. In -every case of loss fire must be the proximate cause of the loss. What -loss is covered by a policy has been the subject of frequent -controversy. Damage by water used to extinguish a fire is usually -covered; also damage to or loss of goods removed to prevent their -destruction from <span class='pagenum'><a name="Page_131" id="Page_131">[131]</a></span>fire in the insured or another building. Likewise -the loss caused by blowing up a building to check a fire, likewise -damage from an explosion which is the direct result of a fire, "but an -explosion due to the ignition of a match or spark of an explosive -substance, no fire resulting, is not within the terms of an ordinary -fire policy." The standard policies contain a clause relieving the -insured from liability to pay for property stolen during the progress -of a fire, or during the removal of property necessitated by fire.</p> - -<p>An exception of liability from lightning, unless followed by fire, -excludes recovery unless there is loss from burning, but it is quite -common to insure against loss from lightning as well as fire.</p> - -<p>Unless there is a stipulation in the policy the insurer is not -relieved from liability by mere negligence or carelessness of the -insured or his servants though directly contributing to the loss; on -the other hand, the insured who does not take reasonable care to avoid -loss from his negligence or that of his servants may defeat recovery -under his policy. This rule is not easy of application, cases of -clearly proved negligence are numerous, also cases free from -negligence, a third class of a doubtful nature. The field of the law -is open in every direction to these.</p> - -<p>For a total loss the insurer is liable for the entire value of the -property to the limit covered by the insurance. Thus the loss of a -building is total though some of the walls remain standing, but not -when the remnant can be restored. In some states the statutes provide -that in case of total loss the insurer shall be liable for the full -amount of insurance, and shall not be allowed to show that the -property was of less value than the amount insured.</p> - -<p><span class='pagenum'><a name="Page_132" id="Page_132">[132]</a></span>When the loss is partial the insurer is liable only for the amount of -the loss, not exceeding the insurance. The policy may limit the amount -of recovery to the cost of restoring or replacing the property, and in -such cases this is often done instead of paying the loss in money. If -each of several classes or items is separately valued, thereby -separating the liability for them, the recovery for any one class or -item is limited to the damage to the same.</p> - -<p>Lastly, in fixing the loss the distinction between open and valued -policies must be explained. A fire policy is generally written in such -a way that the liability of the insurer depends on the amount of the -loss to be determined after the loss has occurred. When this is done, -the valuation of the property in the application for a policy or in -the policy, does not fix the liability of the insurer, even though the -loss be total. This is called an open policy. On the other hand the -loss may be fixed by a stipulation in the policy, and which binds the -insurer to pay the whole sum insured in case of total loss. This is -called a valued policy. A policy is regarded as an open one, unless it -appears to have been the intention of the parties on a fair and -reasonable construction of its terms, to value the loss and so fix by -contract the amount that may be recovered.</p> - -<br /> - -<p><b>Fixtures.</b>—A fixture is something annexed to land either temporarily -or permanently. Different rules apply to persons in different -relations. The law favors removal by a tenant presuming that he does -not put in things for the landlord's benefit, unless there is an -agreement to that effect between them. On the other hand a different -rule applies between the seller and purchaser of real estate. As -between them the law presumes that the seller <span class='pagenum'><a name="Page_133" id="Page_133">[133]</a></span>intended to keep the -things affixed to the house, especially ranges and the like. On the -other hand a somewhat different rule applies between mortgagor and -mortgagee. The former is favored, but not so much as the tenant. -Suppose the mortgagor was a nurseryman, and the land was taken for the -debt by the mortgagee, would it include the trees and shrubs that had -been planted for sale? The courts have given an affirmative answer.</p> - -<p>The facts that are of special value in finding out whether a thing is -a fixture or not are: (1) the actual annexation of the article to the -realty; (2) the immediate object or purpose of the annexation; (3) the -adaptability for permanent or mere temporary use; (4) and whether the -article can be removed without material injury to the property to -which it is annexed. See <i>Lease</i>.</p> - -<br /> - -<p><b>Garage Keeper.</b>—The garage has been said to be the modern substitute -for the ancient livery stable. A garage man who receives the -automobile of another to keep or repair—a service for which the owner -is to pay a compensation—is a bailee for hire. While this relation of -bailor and bailee exists, the owner is not ordinarily responsible for -the negligence of the garageman or his servants in the care or -operation of the automobile.</p> - -<p>A public garage is not a nuisance. Even the storage of gasoline in -suitable tanks set down in the earth is not a nuisance. Yet the -business may become a nuisance when conducted in some localities, or -in an improper manner. The operation of a public garage may therefore -be enjoined in a purely residential section within a short distance of -large churches, a parochial school and houses. Likewise the odors, the -noise, and the fire hazard, which are <span class='pagenum'><a name="Page_134" id="Page_134">[134]</a></span>occasioned by the construction -and management of a garage, create a situation which justifies public -regulation.</p> - -<p>A garage keeper is generally allowed a lien on an automobile for -storage and repairs. If no price has been fixed in advance, the garage -keeper is entitled to recover of the owner the reasonable value of the -services and materials furnished. When the automobile is brought to -the garage by a chauffeur, the garage keeper should assure himself of -the chauffeur's authority to order repairs, especially those of a -permanent nature.</p> - -<p>The garage keeper when storing a car for another for compensation must -exercise reasonable care and prudence. If negligent he is liable for -the damage. It is said that the liability of a garage keeper for hire -is not affected by reason of the knowledge of the owner as to the -place where the property is kept. Its acceptance by the garageman -imposes on him the duty of exercising due care for its safety and -protection. But he is not an insurer of the property; and therefore is -not liable for loss by fire unless he has been negligent. Generally, -in such a case the burden of proof is on the owner of the machine to -show that the fire was caused by the negligence of the garageman. -Sometimes one keeps a car for another for accommodation, receiving no -compensation therefor. One who thus serves another is liable only for -gross negligence.</p> - -<p>The garage keeper must protect the property from theft. If he permits -a machine to remain in an alley when it ought to have been inside his -garage, he is liable. In one case a motorcyclist left his machine with -a garage keeper to be kept over night, and also gave permission for -its inspection by any one whom he might send around. A person -<span class='pagenum'><a name="Page_135" id="Page_135">[135]</a></span>appeared with a permit to inspect it who, under the permission, stole -it and rode away. The garage keeper was rightfully held not liable.</p> - -<p>If a garage keeper or his servant negligently runs a machine left in -his custody for storage or repairs, the garageman is liable for the -damage resulting to the owner. At the expiration of the bailment he -must deliver the machine to the owner or person authorized by him to -receive it, and is liable if neglecting or refusing. He is also liable -if delaying unreasonably to make repairs, or for making them -unskillfully. Lastly, if the car is driven by the garageman's servant -while the bailment continues, the bailee, and not the owner, is -responsible for any injury done to a third person by the servant's -negligence. Of course, if the driver was acting outside the scope of -his authority, and was using the car for personal purposes, neither -the garageman nor the owner would be responsible for whatever -happened. See <i>Automobile: Chauffeur</i>.</p> - -<br /> - -<p><b>Homestead.</b>—A legal homestead is the home or residence of a family -land owner, and includes a specific area varying in the several -states. By the more general rule the land must be connected in a -single piece, though in some states the pieces may be distinct. Though -divided by a highway this does not effect a separation, as the land -therein belongs to the owner subject to the public rights to pass and -repass and also use to keep the highway in repair. The peculiarity -about a homestead is, it is protected by law from seizure by the -owner's creditors.</p> - -<p>One of the most important questions relating to a homestead is, the -meaning of the head of a family. The term is not limited to a man -having a wife and <span class='pagenum'><a name="Page_136" id="Page_136">[136]</a></span>children. It includes an unmarried man with whom -his widowed sister and children reside; or a man who supports his -mother; likewise an unmarried woman with whom the children of a -deceased sister are living. Nor need they live under the same roof, -the essential thing is the relation and dependence existing between -them. On the death of a husband owning a homestead the right survives -to the widow, and usually to the minor children. Some statutes give -her the absolute estate, others a life interest; in some states she -loses the homestead by a subsequent marriage. In most states the -rights of surviving children end on attaining their majority. In many -states the surviving husband is entitled to the homestead right, even -though there be no children. A husband does not lose his homestead -when his wife withdraws from the family under a decree of divorce. -Non-residents as a rule are not within the privilege of the homestead -laws.</p> - -<p>On the dissolution of a marriage by divorce, as the wife ceases to be -a member of the husband's family, she loses her rights to the -homestead. The decree of divorce may, in the dissolution of the -marriage, reserve to her the right, and if she is the owner of the -homestead she may continue to occupy it as one. The mere desertion of -husband or wife by the other spouse will not, in itself, destroy the -character of the homestead although an entire dissolution of the -family will have that effect.</p> - -<p>By the federal law every head of a family, or a person twenty-one -years old and a citizen, or intended citizen, of the United States, if -not the owner elsewhere in the United States of one hundred and sixty -acres of land and has not previously obtained a federal homestead, is -entitled to a quarter section or less of the public land. Three things -are <span class='pagenum'><a name="Page_137" id="Page_137">[137]</a></span>necessary: (1) An affidavit showing that the applicant comes -under the law; (2) a formal application; (3) payment of the land -office charges. When these things are done, the certificate of entry -is delivered to the applicant and the entry is made. Then the entryman -must actually reside on and cultivate the land for three years, and at -the end of that period, he is entitled to a patent. The lands thus -acquired are not liable for any debts contracted prior to the issuing -of the patent.</p> - -<p>The head of a family can sell or mortgage his homestead, whether he is -solvent or not, nor can his creditors prevent its sale since they have -no rights therein. And if he sells his homestead and with the proceeds -buys another, the second is as fully protected from creditors as the -other.</p> - -<p>From liability for most debts a homesteader is exempt, but not for -all. Generally the homestead is not exempt from taxes, but not -everywhere from fines for public offenses or liability on official -bonds. Debts contracted prior to the acquisition of the homestead and -pre-existing liens in most states are enforceable against the -homestead. So are debts contracted in improving or preserving the -homestead. These include materials furnished, also the wages of -clerks, servants, laborers and mechanics.</p> - -<br /> - -<p><b>Husband and Wife.</b>—The law, while regarding marriage as a contract, -adds something more, for it cannot be terminated by the will or -consent of the parties; a contract on the other hand in most cases can -be. To constitute a marriage there must be an agreement or mutual -assent by the parties. This agreement must be made freely, seriously -and not as a joke. False representations of health, wealth, etc., do -not invalidate the agreement, yet <span class='pagenum'><a name="Page_138" id="Page_138">[138]</a></span>these may be grave enough to have -that effect. Consent may be obtained by deceit or compulsion so gross -as to justify a court in declaring that the parties were never legally -married. A person may be too defective mentally to give an intelligent -assent. A subsequent mental weakening would be no ground for annulling -a marriage. An Illinois court recently remarked, it is a harsh rule -that would permit a married man whose wife later in life became insane -to put her away on account of her misfortune. If one were so -intoxicated that he did not act intelligently, he could avoid his -marriage.</p> - -<p>A male at common law can marry at fourteen, a female at twelve. By -statute a later date, twenty-one for males and eighteen for females -has been fixed in many states. The right to disaffirm a marriage on -the ground of non-age, unlike the parties to a contract, applies to -both parties.</p> - -<p>In this country marriage is regulated largely by the states, though a -movement has been started to make marriage and divorce a matter of -national regulation.</p> - -<p>As marriages are of higher character than other contracts relating to -the ordinary dealings of men, even those that are prohibited by law -are for reasons of public policy not always void. They are therefore -not void, simply because the formalities prescribed by statute in -obtaining the license and solemnizing the marriage have not been -observed, when the parties afterward live together like other married -people.</p> - -<p>A marriage ceremony is not void though performed by one outside his -jurisdiction, or not having a license obtained at the proper place. -Persons who improperly grant licenses and solemnize marriages may -themselves suffer legally, but their <span class='pagenum'><a name="Page_139" id="Page_139">[139]</a></span>wrongful action cannot be -visited on others. The principle still prevails in most states that a -marriage which is good by the common law, though contrary to statutory -forms unless there is an express prohibition, is a valid marriage. In -a few states a common law marriage is invalid.</p> - -<p>A marriage that is valid by the law of the state where it was made, is -valid everywhere. Nevertheless, the courts have great difficulty in -applying the principle. Suppose that the resident of a state, for the -purpose of evading its marriage laws, should go into another state and -have the marriage solemnized, and then return, is the marriage valid -in that state? No, but to lessen the rigor of the rule, the courts -hold that both parties must have intended to evade the law, if, -therefore, one of them was innocent the marriage was valid.</p> - -<p>After marriage the husband's domicile becomes that of his wife, and -her refusal to follow him without good cause, would be in law a -desertion. It is said that a promise before marriage not to take her -away from her mother and friends will not justify her in refusing to -go with him. If, however, she had immediately after marriage, -determined to separate from him and to take legal steps to that end, -she could legally remain.</p> - -<p>A married woman by the common law is answerable personally for her -crimes as though she were unmarried, unless they were committed in her -husband's presence. When together the law presumes she acted from his -coercion, he therefore must be the sufferer, while she escapes. This -rule though does not apply to the gravest crimes; for these both are -liable. Like so many other legal rules the difficulty is in applying -it. How near to the husband must she be when committing a wrong <span class='pagenum'><a name="Page_140" id="Page_140">[140]</a></span>to -render him liable and escape herself. In one of the cases a married -woman was properly indicted for unlawfully selling intoxicating -liquors. At the time of selling them she was alone in the room, though -she had sold them by her husband's order.</p> - -<p>As the law regards husband and wife as one person, many peculiar -things flow from this relation. Thus one cannot steal from the other; -but either is criminally liable for an assault committed on the other. -By statute in some states the right of either party to sue the other -for wrongs has been greatly extended; nor is the husband liable for -wrongs committed by his wife unless he participated in them. For -example, in some states he is not liable for slanderous words spoken -by her in his absence; in other states his liability continues. On the -other hand, a wife who can manage and control her separate estate may -in turn be liable for the wrongs of her husband while he is acting -with authority as her agent.</p> - -<p>A husband has a right of action for damages against any person who -alienates his wife's affections. Nor can he be defeated by showing -that he and his wife did not live happily together. Such facts though -may be used to prove that her society was worth less than it would -have been had they lived happily, in fact, by money valuation was not -worth three cents. A husband forfeits his right to sue others for -entertainment when his own misconduct justified and actually caused -the separation, otherwise his remedy is complete against all persons -whatsoever who have lent their countenance to any agreement for -breaking up his household. On the other hand, this is a one-sided rule -in some states; in others a wife has the same right to <span class='pagenum'><a name="Page_141" id="Page_141">[141]</a></span>sue for the -alienation of her husband's affections as he has for the alienation of -hers.</p> - -<p>By statute great changes have been made in the way of permitting -married women to retain their property and manage it, and to do -business. Formerly, all the personal property of a married woman went -immediately by law to her husband, and he became responsible for her -debts. She still retained her real estate and the management of it. -Now, very generally, she also retains her personal property, also the -income, very much as if she were unmarried. She often appoints him as -her agent to manage her property, and when thus acting he is -responsible to others and to her like any other agent. He may contract -for erecting any building or improvement on her land, but should he -contract in his own name for such improvement she cannot be held -therefor, nor can any one who has done work or furnished materials put -a lien thereon for them. It may be added that his right to act as her -agent is never implied solely from the marital relation.</p> - -<p>A wife may act in a representative capacity as agent for her husband, -or for other persons, and may execute a power conferred on her by deed -or will. She may also be appointed to act as executor, administrator -or guardian, though under the common law theory her husband's consent -was needful to her acceptance of any of these undertakings.</p> - -<p>The common law relations of husband and wife have been greatly changed -by statute since about 1844. "It is now," says Peck, "the usual rule -of law throughout the United States, established in each state by its -own statutes that the wife retains title to the property owned by her -before marriage or acquired by her during the marriage, and the right -to manage, use or sell it, without the concurrence <span class='pagenum'><a name="Page_142" id="Page_142">[142]</a></span>of her husband. -The right to contract, and to sue and be sued, naturally follows from -her ownership and control of her property; in most of the states these -rights are expressly conferred by statute; and in some they have been -held to result by necessary implication."</p> - -<p>The husband is generally relieved from liability for her debts or for -her torts, except for such debts as are for her support or that of the -family, or are within her express or implied agency to act for him. -The common law estate of dower and curtesy are retained in some of the -states, in the larger number they are materially modified by statute, -or wholly abolished and replaced by a right of succession to each -other's property as defined by statute.</p> - -<p>The distinctive duties resting on a husband are to provide a home, to -support his wife and children, to protect her and them from injury or -insult. Thus a husband has the same right to protect his wife, to -assert and maintain her rights, even to kill a person, if necessary in -her defense, that he would have in his own behalf.</p> - -<p>The duty of a husband to provide a home implies his right to select -and fix the marital abode. The wife must live with him, and a refusal -on her part to live in the home provided by him would constitute her a -deserter. But he must select a home in good faith and in reasonable -accordance with his means and their accustomed mode of life.</p> - -<p>It is his duty to maintain order and law in his household. He is -therefore liable to prosecution should his wife carry on the illegal -sale of liquor, or in other ways defy the law.</p> - -<p>A husband cannot chastise his wife, but he may use force to restrain -her from committing a violent criminal wrong. Says a competent author: -"That <span class='pagenum'><a name="Page_143" id="Page_143">[143]</a></span>depends rather on the right of every one to use reasonable -efforts to prevent violence and crime than on any peculiar power of -the husband over the wife, and it would also justify like restraint of -the husband by the wife."</p> - -<p>It is the duty of the wife to assist in the maintenance of the family -by such reasonable labor as the necessities of the family and their -circumstances in life and financial position require; while the -husband has no right to require her to do more than to care for the -house and the family in the customary and proper manner. He cannot -compel her to engage in business, to work for wages, nor to work for -him in his business. The services of any kind which either may render -to the other, or for the family, are rendered in consideration of the -marriage relation, and of the mutual benefit received therefrom and -neither has any right of action against the other for them.</p> - -<p>It should be noted that the legislative revolution for the benefit of -married women has chiefly affected the property relations of husband -and wife, while their personal rights remain quite as before. Probably -no single rule of the common law was so bitterly resented and so -difficult to defend, as the vesting in the husband of the sole -guardianship of their children. By statute in many states both parents -are made guardian of them, and if they separate, the welfare of the -children is regarded as the decisive question in fixing their -guardianship, rather than the superior right of either parent.</p> - -<p>A husband and wife by the modern law may agree to live separately. The -arrangement in some states is effected through a trustee, in others -this may be done by the parties themselves. By this the parties may -agree on the disposition and division of their <span class='pagenum'><a name="Page_144" id="Page_144">[144]</a></span>property when this can -be done freely and intelligently. A separation agreement made through -fear of her husband cannot be sustained.</p> - -<p>A wife who voluntarily enters into an agreement of separation covering -all property rights cannot, after her husband's death, have it set -aside and then claim her rights in his estate, except in some states -where community rights exist. On the other hand, her right to share in -her husband's estate is not lost though she lives apart from him by -agreement, unless this shows a clear intention to relinquish all -claims to his estate.</p> - -<p>The husband must support his wife. This is the law everywhere. While -they live together the law presumes that he has given her authority to -purchase necessaries on his credit, and therefore a tradesman can -recover who shows that they were thus living and that the things -furnished befitted their condition in life. When she is living apart -from her husband the presumption is the other way, and a tradesman -cannot recover without proof of the fact of her husband's authority to -let her have the goods. But when she is living apart from him for good -cause, and would starve if the things needful to sustain life did not -come from some source, she has an absolute right to pledge her -husband's credit for them.</p> - -<p>What are the things for which she may pledge her husband's credit? -Those required to sustain life and preserve decency, besides other -things to maintain her in her social condition. Wearing apparel, -furniture, jewelry, even legal expenses incurred in regaining her -conjugal rights have been included.</p> - -<p>Besides agreements to live separately, the law for several causes -permits absolute separation. These <span class='pagenum'><a name="Page_145" id="Page_145">[145]</a></span>are prescribed by statute, and -vary greatly in the different states. Adultery is a cause recognized -in all of them, for which an absolute divorce can be granted. Cruelty -is another cause, almost as general, though more difficult to define. -Actual violence is not necessary to constitute cruelty, threats of -violence with an intention to do bodily harm will suffice. Again, the -cruelty must be unmerited. If she has justly provoked the indignation -of her husband, then his cruelty presents a different aspect. -Nevertheless, if his cruelty bears no relation to her wrongful -beginnings, she still has good ground for separation.</p> - -<p>Desertion is a general ground of divorce, the law in every state -prescribing a period of time, quite often three years. The period must -be continuous. An offer to return made by the deserted spouse in good -faith at any time before the separation has run for the statutory -period will bar a divorce, but not if the offer is made afterward. -Again, a husband who drives his wife away from him by his misconduct -deserts her as clearly as if he had left her. To cease living together -for the time fixed by statute is not desertion unless this was done -intentionally. For example, separation on account of business, -sickness, etc., is not desertion. Not only must there be an intention -to leave the other party, this must be without consent.</p> - -<p>Another cause for divorce, quite generally recognized, is habitual -drunkenness. This must be of a gross and confirmed nature. While other -causes exist the most general have now been mentioned. In some states -there is a more general ground, any reason rendering married life a -failure. Of course, much depends on the discretion, mental and moral -make-up of a judge in applying the facts to a cause <span class='pagenum'><a name="Page_146" id="Page_146">[146]</a></span>for separation -that is so general. An agreement in advance to make a cause of divorce -is everywhere condemned by the law.</p> - -<p>Divorces are of two kinds: from the bond of marriage, often called -absolute divorces, which put an end to the marriage relation and -render the parties single; and divorces from bed and board, limited -divorces, more accurately called judicial separations, in which the -marriage relation is not dissolved, but the injured party is given the -right to live separate from the other. In more than half of the -American states no distinction is made between kind of divorce, all -divorces are absolute, from the bond of marriage.</p> - -<p>The legal effect of divorces is still a grave matter. When a divorce -has been legally granted by a state, the courts of every other state -for obvious reasons recognize and try to uphold the decree or -judgment, though not all of them, and consequently strange results -follow. Thus a person who was married and living in New York leaves -his wife for good reason and goes to Connecticut. After acquiring a -legal residence there and proper standing in a court, he applies for a -divorce, the proceedings are regular in every respect and a divorce is -granted. He marries again and takes his wife to New York for a visit. -There he is sued by the first wife for support, moreover, by the laws -of New York he is an adulterer. In New York he is still married to the -first wife, in Connecticut to the second. If children are born of the -second marriage they are legitimate as long as they live in -Connecticut, illegitimate should they go to New York. One of the -latest legal writers on this difficult subject says: "Foreign divorce -judgments granted in states where the plaintiff had obtained an -actual, bona fide residence, will <span class='pagenum'><a name="Page_147" id="Page_147">[147]</a></span>doubtless continue to be recognized -by the great majority of our states, but the states of New York, -California, Maryland, Massachusetts, Vermont, South Carolina, -Pennsylvania, and possibly some other states, which have adopted the -extreme New York doctrine, are permitted by the rule established in -the Haddock case—a decision by the Supreme Court of the United -States—to continue to refuse recognition of divorce judgments in -other states."</p> - -<br /> - -<p><b>Innkeeper.</b>—An innkeeper's house is a public place to which -travelers may resort. He cannot therefore prohibit persons who come -under that character in a proper manner and at suitable times from -entering, so long as he can accommodate them. He is not obliged to -receive one who cannot pay for his entertainment. Indeed, he must -exclude some persons who apply, notably thieves. He can refuse to -admit all whom he has reason to believe will disturb the peace and -safety of his guests; and can afterward exclude all who, though -admitted, prove to be noisy and disturbers of the comfort and safety -of others. And if having a stable he is under the same obligation to -receive and care for horses as he is to receive the person to whom -they belong. Again, he is not required to provide a guest with the -precise room he may select, but only reasonable and proper -accommodations. If he refuses to do so he is liable in law to the -applicant.</p> - -<p>In caring for the baggage of a guest, the law is not as well settled -as it might be. A competent writer has said: "They are insurers of the -property of their guests committed to their care, and are liable for -its loss, unless caused by the act of God, a public enemy, or the -neglect or fault of the owner or his servants." This strictness of -liability, it is said <span class='pagenum'><a name="Page_148" id="Page_148">[148]</a></span>is necessary to protect travelers against any -collusion between the innkeeper and his servants, and to compel him to -take care that no improper persons are admitted into his house. His -charge for the entertainment of his guests is sufficient to cover this -risk; he also has a lien on their property entrusted to his care to -indemnify him against loss.</p> - -<p>By statute in many states innkeepers are exempt from loss by fires -which are in no way caused by their own negligence or that of their -servants. If a horse dies while in the innkeeper's charge, he is -liable unless he can show facts that excuse him.</p> - -<p>If the goods of a guest are stolen by the innkeeper's servants or -domestics, by another guest, or by someone outside the inn, the -innkeeper must make restitution, for it is his duty to provide honest -servants, and to exercise an exact vigilance over all persons coming -into his house as guests or otherwise. His responsibility extends to -all his servants and domestics, and he is bound in every event to pay -for them if stolen, unless they were stolen by a servant or companion -of the guest. Illness or absence of the innkeeper does not excuse him. -An innkeeper is not liable for the loss of a guest's property when -this loss is due to the fault or negligence of the guest himself. Thus -an unnecessary display of money or valuables, or leaving them where -they would tempt thieves, may be negligence. But failure to lock or -bolt his door is not necessarily negligence on the part of a guest. It -is only evidence of negligence. Nor is an innkeeper exonerated when a -theft is committed by a fellow guest with whom the owner of the -property stolen had consented to occupy the same room.</p> - -<p>An innkeeper may make needful and reasonable regulations that are to -be observed by his guests to <span class='pagenum'><a name="Page_149" id="Page_149">[149]</a></span>secure the safety of his property. When -they are made and brought to the knowledge of a guest he is bound by -them. By contract, custom and statute the responsibility of an -innkeeper may be changed. In many states by statute an innkeeper -avoids liability for the valuables of his guest unless they are -deposited with him. These statutes are construed strictly in favor of -the guest. Nor can an innkeeper even by these exempt himself from -everything, for if a guest were required to deposit all he had to -secure such protection, he would be in a strange fix. Said a Georgia -court: "Is the guest to deposit his valise there, and go and send for -it to get out a clean shirt?"</p> - -<p>If a guest goes away, leaving his valise or other things with an -innkeeper, he is not required after a reasonable time to observe such -diligence in keeping them as he receives nothing in the way of -compensation for so doing.</p> - -<p>Keepers of lodging and boarding houses are not innkeepers, nor subject -to their liabilities. The proprietor of such a house does not hold -himself out to the world as prepared to supply accommodations for all -who may apply, nor is he required to receive any persons unless he -chooses to do so; an innkeeper's freedom is restricted in this -respect. A house may have a double character of boarding house and -inn. With transient persons who, without a definite contract, remain -from day to day it is an inn; with those under definite contract it is -a boarding house.</p> - -<br /> - -<p><b>Land License.</b>—A license is an authority to do something on -another's land without acquiring ownership therein, and may be given -orally, or it may be simply a permission to use or occupy. A <span class='pagenum'><a name="Page_150" id="Page_150">[150]</a></span>license -may be executory, relating to a future act, or it may relate to an act -already done or executed. An executory license may be revoked at any -time. Thus A laid a water pipe by permission across B's land who -afterward rendered the pipe useless by cutting it. A had no redress, -for B was acting within his rights. A ought to have obtained written -authority for such action. He could, however, remove the pipe or any -other improvement he had made on the strength of the license granted -to him.</p> - -<p>A license may be to do many things on another's land. Thus one may -have a license to flood land, erect buildings, pass overland, maintain -a ditch, cut timber, use land for railroad purposes. A common form of -license is a ticket of admission to enter another's land to witness a -spectacle or similar purpose.</p> - -<p>No formality is needed to create a license. It may be in writing or be -oral, or implied from the relations or conduct of the parties, as -where a land owner assents to the doing of certain acts on his land. A -person by opening a place of business licenses the public to enter -therein for the purpose of transacting business. And a license to do a -particular act necessarily involves any act essential thereto.</p> - -<p>A license is usually revocable at the pleasure of the licensor, even -though it be in writing and under seal, or a consideration has been -given. If the licensee has expended money and made improvements on the -faith of the license, can it be revoked? On this question the courts -divide. The more general opinion seems to be that a license coupled -with a grant or interest cannot be revoked. Or, if a license has in -effect been so used as to become an easement it remains a burden on -the land though sold to a purchaser, unless he had no knowledge of -<span class='pagenum'><a name="Page_151" id="Page_151">[151]</a></span>it. A license cannot be assigned by the licensee to another.</p> - -<p>Again it is said that the revocation only affects the future exercise -of the privilege, and does not prevent the licensee from removing -structures or other movable articles placed by him thereon relying on -the license, provided he does this within a reasonable time after the -revocation. Even should the owner of land sell, the sale would not -operate as a revocation to one to remove trees that he had already cut -under a contract of sale and removal.</p> - -<p>If a person grants a license to another to come on his land, he owes -no duty to him except the negative one of not wantonly injuring or -exposing him to danger. Merchants invite the public into their stores -to buy wares, but those who accompany them without any intention of -purchasing are not invitees, they are mere licensees. The duty of the -storekeeper to one who enters his premises by mere license is not to -keep the premises in a non-hazardous state, but only to abstain from -acts willfully injurious to him.</p> - -<br /> - -<p><b>Lease.</b>—A lease is for the use of land, usually for a few years or -shorter period. The lessor is more generally known as the landlord, -and the lessee as the tenant. The lease may be oral, though the better -way is to put the agreement in writing. If it be for a house or other -building the lessee should insist on this, otherwise he would fare -much worse should the building be destroyed by fire. Doubtless many do -not know that, unless the lessee makes a specific agreement relieving -himself, he is liable for the rent of a building, just the same if it -is burned down as if he were still the occupier. This is the <span class='pagenum'><a name="Page_152" id="Page_152">[152]</a></span>common -law, which has been changed in some states by statute.</p> - -<p>If the lease is for more than a year, or other short period, the -Statute of Frauds, so called, requires that it must be in writing. If -the time be less, a verbal lease may be made, even though the lessee -does not take immediate possession of the premises. If on the other -hand, it exceeds the statutory period, it is not absolutely void, but -continues during the joint wills of both parties, and may therefore -cease at the will of either party. If the landlord wishes to terminate -it, he must give the tenant notice to quit; should he disregard the -law and take immediate possession he would be a trespasser.</p> - -<p>When the terms of a lease are in doubt, they are construed in favor of -the tenant. A lease to a specified day continues during the whole of -it, though custom or statute may prescribe a different rule. A term -may also continue during the option of either of the parties to be -ended on notice by the party exercising the option.</p> - -<p>The most usual agreements or covenants in a lease are on the part of -the lessor for quiet enjoyment, which secures the tenant against any -hindrance or disturbance of his possession and enjoyment of the -premises from persons deriving their title from the landlord, or from -any one else who claims to be the owner. Also against all -encumbrances, in other words, that no one has any easements or other -rights in the premises. The landlord also usually agrees to repair, -and often to renew the lease, and the lessee to pay rent, to insure -and not to assign or underlet, without the landlord's consent. The -parties may of course agree to do any other lawful thing, for example, -sometimes the tenant agrees to make repairs, to reside in the -<span class='pagenum'><a name="Page_153" id="Page_153">[153]</a></span>premises, not to engage in some kinds of business, to cultivate the -land, if the lease be of a farm, in a specified way. Again though an -oral lease for a term of years at a stated annual rent may not fulfill -the requirement of the Statute of Frauds, the parties may conform to -it and thus create a tenancy in fact from which the law will imply a -leasing from year to year. If therefore the tenant with the -acquiescence of the landlord continues in possession for several -months after the expiration of the original term, a tenancy for -another year will be created with a corresponding liability on the -part of the tenant for a full year's rent. And the measure and extent -of the tenant's liability would be the same, whether his continued -occupancy related to the original lease, or to a subsequent one just -like it, made as the first was soon to expire.</p> - -<p>The definite period for which a lease is given is called a term. If a -lease is from the first day of January, it begins on the second day -and lasts through the last day mentioned; in carefully drawn leases -the number of days is fixed to avoid all dispute. A lease for a year -with the privilege of remaining three years or longer does not mean a -single period of three years, but three yearly periods as the tenant -may elect.</p> - -<p>A lease may be made to take effect in the future, provided the time -for taking possession is not so far away as to violate some statute to -the contrary. A lease for an hundred years in some states is deemed a -parting with the absolute title to lands though railroads make long -leases running for ninety-nine years. If the length of the term is not -definitely expressed in the lease, the time may be ascertained by -other evidence. When a lease is to run for one or more years "from" a -specified day, <span class='pagenum'><a name="Page_154" id="Page_154">[154]</a></span>the corresponding day of the year is excluded from the -term, unless a contrary custom exists. A lease to a specified day ends -with its expiration. If there be a doubt on which of two days a lease -terminates, the lessee may decide. More generally, leases of doubtful -duration are construed in favor of the tenants. By statute in New York -leases which do not specify the length of occupation, extend to the -first of the following May after taking possession.</p> - -<p>A lease must describe clearly the premises, nor can a defective -description be cured by outside evidence. Any language will suffice -that shows the intention of the parties. The words "grant," "demise," -and "to farm let," have a technical meaning, and are generally used, -but other words may be and often are used. A memorandum expressing the -consent of the owner that another shall have immediate possession of -the premises, and shall continue to occupy them at a specified rent -and for a definite term, is a sufficient lease; in general, any -agreement under which one person obtains the right of enjoyment to -property of another, with his consent and in subordination.</p> - -<p>A distinction exists between a lease and an agreement for a lease, -which should be understood, though it sometimes is not by the parties -themselves. If the agreement is a lease, it cannot be changed by other -evidence, for it is a completed contract; but if it is an agreement -for a lease, then it is not complete and other evidence may be -produced to show what the parties intended. How can the nature of the -agreement be tested? By ascertaining whether it is complete or not. -Thus A wrote to B that he would take his home at a stipulated rent for -two years if he would put in a furnace, with which offer B at once -complied.</p> - -<p><span class='pagenum'><a name="Page_155" id="Page_155">[155]</a></span>This was a lease, for by putting in the furnace nothing more remained -to be done. If he had not put in the furnace, or not before the time A -was to take possession, there would have been no lease, unless A had -waived his offer and taken possession.</p> - -<p>Of course to make a valid lease there must be competent parties. A -lease made by a minor is not void, but he may avoid or cancel it by -some positive act. Can he do this before attaining his majority? On -this the authorities differ. Again appears the risk of making -contracts with minors, though the situation many times seems clearly -to justify such action. A guardian may lease his minor's land for the -period of his minority; if leased beyond, the ward may have the lease -canceled for the excess. A lease terminates on the death of the ward, -whatever may be the length of the term. A parent cannot lease the land -of his minor child like a guardian.</p> - -<p>By common law a lease made by a married woman was avoided after her -husband's death. The modern statutes excluding her husband's power of -control over her property and authorizing her to take and hold -property as if she were an unmarried woman, have abolished both his -power to invalidate the lease and also her power to repudiate it after -his death.</p> - -<p>A private corporation may make a lease of its property provided that -in doing so it acts within its charter. A municipal corporation, while -it may lease property belonging thereto of a private nature, cannot -lease property which has been devoted to public use. A corporation -whether public or private may take a lease of property so far as this -may be a proper means of carrying out the purposes for which the -corporation was created.</p> - -<p>Executors and administrators may dispose of a <span class='pagenum'><a name="Page_156" id="Page_156">[156]</a></span>lease belonging to the -deceased, or make new leases for terms within the period covered by -it. Trustees have a still larger authority to lease the lands -entrusted to them, unless restricted by the terms of their -trusteeship, or by statute. Though a member of a partnership, as we -have seen, is an agent, he cannot make valid lease of partnership -land.</p> - -<p>What may be leased? Besides land, the right to a wharf, to flow with -water the land of another, to go over another's land. An ordinary -boarder, who has a room and boards in the house of another and who -retains the possession and care of his room, is not a tenant. On the -other hand the letting of an entire floor for lodgings may create a -tenancy, and so may even a single room. A lease for an unlawful -purpose is void, for example, for the sale of spirituous liquors -contrary to law.</p> - -<p>If the premises are occupied by the lessee and his rent is paid as -specified in the lease, this is regarded as a ratification by him of -an invalid or void lease. To this rule are some exceptions.</p> - -<p>A rule of construction may here be added; if a blank form is used in -making a lease and the printed and written parts or agreements are -inconsistent, the matters written are regarded as expressing the -intention of the parties.</p> - -<p>Much might be said concerning the use of the premises. If a farm is -rented and the lease is silent on the matter, the law presumes that -the tenant will use it in a proper and husbandlike manner, like other -exemplary farmers in that vicinity. He must cultivate the soil -properly, preserve the timber, consume the hay as fodder to the -cattle, if such be the custom, and keep the buildings and fences in -repair. Manure in the ordinary course of farming belongs to the farm. -To manure made in livery <span class='pagenum'><a name="Page_157" id="Page_157">[157]</a></span>stables a different rule applies and the -tenant can remove it. If the lease be of a mill it usually provides -how it shall be run, if it be a house in the city and nothing is said -about its use the law implies that there shall be no waste or -destruction beyond the ordinary wear and tear. To use the doors for -firewood is not uncommon with tenants, unless they are not burnable, -though surely it is not a proper use of a leased house.</p> - -<p>A farm tenant has the right to take and use material found on the land -suitable and needful to repair the buildings, fences, also dead and -fallen timber for fuel. He cannot use shrubbery and ornamental trees -for this purpose, nor cut standing timber for this purpose. He is -entitled also to the way going crop, but must remove it during his -lease. He cannot go on the land afterward and remove crops, unless he -was prevented by some good reason from removing them while he was in -possession.</p> - -<p>Can a lessee assign or sublet his lease? Of course this may be -forbidden, and often is by the lessor, without his consent. If the -lease is silent this can be done. If the lessee die, his executor or -administrator can assign the remainder of his term. A lease may also -be assigned if the lessee become insolvent, also by a new partnership -created by the addition or retirement of a member. A transfer by the -lessee of the whole or a part of his interest for a part of the time -is a sublease and not an assignment. And whenever a sublease is made, -the rights of the original lessor are not changed, nor does he -recognize in any way the sub-tenant unless by agreement, nor has he -any right of action against him. Of course there is nothing to prevent -the parties from making any arrangement that may be agreeable to -them.</p> - -<p><span class='pagenum'><a name="Page_158" id="Page_158">[158]</a></span>As the lessee may assign or sublet unless forbidden, so may the lessor -part with his interest in the leased premises. When an assignment of -it is made, the assignee may sue in his own name for rent accruing -after the assignment.</p> - -<p>The lease of a private residence is not a warranty that it is -reasonably fit for occupancy. Thus saith the law. Nor can a lessee, -unless the lessor has misrepresented the healthfulness of the place, -leave after the unwelcome discovery that it is not healthful. This -seems to be rather harsh, but the rule is founded on the presumption -that the lessee will examine the house before leasing and make proper -inquiries about its healthfulness.</p> - -<p>By the common law the lessor was not required to make repairs. This -has been changed in some states by statute. He is not required to make -repairs needed and known to the tenant at the time of making his -lease. Hallways, staircases, elevators, and the like that are used in -common by the tenants of a building and are under the landlord's -control, must be kept in repair by him. If he shall let a many storied -building to several tenants, to each tenant a story, who have -exclusive possession thereof, the lessor will not be liable to any -lessee for the damage caused by another.</p> - -<p>If the landlord agrees to make repairs and keep the tenement in good -condition, he is required to keep it in essentially the same condition -as it was when the tenant took possession. Should the house or other -building be destroyed by fire what then? An agreement to keep it in -good repair imposes an obligation on the landlord's part to rebuild. -But an agreement by the lessee to keep and leave it in good repair, -does not require him to rebuild should it be destroyed by fire, or -other cause without any <span class='pagenum'><a name="Page_159" id="Page_159">[159]</a></span>fault of his own. If the lease provides that -the insurance money, when the landlord has insured the premises, shall -be applied to rebuild in the event of fire, he must regard his -agreement, but if there be no such agreement, the tenant cannot compel -his landlord to thus apply it. Should the lessor fail to fulfill his -agreement to repair, the tenant is not excused from paying his rent, -nor justified in leaving the premises. His remedy is to sue his -landlord for the damages or injury to himself. And even if the -premises be destroyed by fire the tenant must continue to pay his rent -unless he has been wise enough to relieve himself by a proper clause, -or unless some kindly statute has been passed relieving him on the -happening of such an event. No oral stipulation, that the parties -should make covering the effect of loss by fire or other contingency, -would be binding if contrary to the terms of the written lease. As -this is the highest form of the agreement, all verbal stipulations to -the contrary must give way.</p> - -<p>A tenant can make no permanent alteration without his landlord's -consent; and should he do so and injure the premises the landlord may -recover damages, or, if such an alteration is feared or threatened, he -may prevent it by obtaining an injunction from a court ordering the -tenant not to make it and penalizing him should the order be -disobeyed.</p> - -<p>When a lease is renewed, the new lease may be regarded in two -different ways. It may be considered as the continuation of the lease, -and thereby protecting all the interests created under it. And this -will be the case whenever the old lease clearly shows that if a -renewal should be made this was the intention of the parties. When -nothing is said, a renewed lease is a surrender of the old one and -<span class='pagenum'><a name="Page_160" id="Page_160">[160]</a></span>different conditions may arise. It is important therefore when -providing for the renewal of a lease to specify what the parties -intend, whether a renewal or continuation on the old terms, or a -renewal on other terms to be fixed at another time.</p> - -<p>Usually a lease specifies not only the amount of rent to be paid, but -the time of payment. If silent, yearly rent is not due until the end -of the year, quarterly rent at the end of the quarter, monthly rent at -the end of the month. When a lessee is evicted or turned out of -possession by his landlord, he is excused from paying rent. What, -therefore, is an eviction? Any act by the landlord, or by his agent, -impairing the worth of the premises to the tenant, for example, the -destruction of a summer house, turning rooting pigs into the premises, -the erection of a new building rendering the leased premises unfit for -occupation. One of the curious cases is the lease of a distillery -which could not be run because the landlord prevented the lessee from -getting a license. In like manner if the landlord is to furnish heat -and fails to do so, the tenant is justified in leaving. More -generally, any act by the landlord whereby the leased premises are -rendered unfit or impossible for the purpose intended, and affecting -the health and comfort of the tenant, is an eviction.</p> - -<p>The eviction must be done by the lessor. An act done by a wrongdoer, -not under the lessor's order, will not justify the lessee in quitting. -Thus the darkening by an adjacent owner of the lessee's premises by -erecting a structure, however injurious it might be, would not justify -the lessee in quitting and refusing to pay his agreed rent. This is -one of the risks taken when making the lease.</p> - -<p>Suppose a person occupying state land is evicted <span class='pagenum'><a name="Page_161" id="Page_161">[161]</a></span>by the state, must -he continue to pay rent? In Missouri the rent ceases, or if evicted of -a part, he must pay rent on the remainder. In some states he must -still continue to pay his rent and then demand compensation for his -loss.</p> - -<p>Sometimes land is rented on shares, a very common way in the olden -time. When this is done, the relation of landlord and tenant may be -created, or perhaps a partnership relation. If the farmer is to do the -work of a servant of the owner of the farm, receiving in return -therefor, a specified part of the crops, the agreement is one of -hiring and not a lease. If the farmer has rightful possession of the -use of the land, then the payment of his rent in produce does not -affect his relation as a tenant. The natural increase of stock leased -with a farm belongs to the tenant, and a landlord cannot recover for -the death of cattle in the tenant's possession, unless he can prove -his tenant's negligence. And if a lessee should sell part of the stock -contrary to the lease, the purchaser would be liable therefor.</p> - -<p>A landlord often leases separate parts of a building to different -tenants, while the stairways and passages to them, though intended for -their use, are still under his control. He thus invites the tenants -and other persons having relations with them to use the approaches to -obtain access to their rooms or apartments, and is accordingly liable -when they are not kept in proper repair; the same as any owner of -structures either expressly or impliedly invites persons to enter -them. If therefore he should leave elevator shafts, or hatchways -unguarded, he would be clearly liable for the consequences. So, too, -should a mill owner have a defective bridge to his mill, forming part -of a common way thereto, he would be liable for the consequences.</p> - -<p><span class='pagenum'><a name="Page_162" id="Page_162">[162]</a></span>The lessor is liable if he leaves his premises with a way or cellar -entrance, or coal hole inadequately guarded at the time the lessee -takes possession, but not if the guard or covering gets out of repair -during the tenancy, or is temporarily left unguarded by the tenant or -some third person. If the hole or other dangerous place is made -without proper authority, it is considered a nuisance and the owner is -liable for all injuries whether he has rented the premises or not. Who -is liable for injuries caused to travelers by ice and snow on the -pavement? This is a hard question to answer in a short space. If the -ice or snow has accumulated by reason of a defective roof, then the -landlord is liable because of its faulty construction. In some parts -of the country it is most difficult to keep the walks safe in winter. -Experience has led the parties to make stipulations defining and -fixing their liability. Many states also have statutes and cities -ordinances regulating the duties and liabilities of landlords and -tenants.</p> - -<p>When a lease is about to expire a difficult question sometimes arises, -what can the tenant take away with him? Of course he can remove all -his furniture and the things that can be separated without injury to -the premises, but during his tenancy, he may have added things -possessing a more permanent nature, called fixtures, these he cannot -remove. The courts have had great difficulty in deciding in some cases -what these are. In a general way it may be said that whatever a tenant -adds to the premises can be removed, while he is still in possession, -without material injury to it, but he cannot remove anything -afterwards. Suppose the tenant erects a building, can he remove it? -One would not think of his building this for the benefit of his -landlord. Suppose he had built it on <span class='pagenum'><a name="Page_163" id="Page_163">[163]</a></span>a foundation from which it could -be easily removed, a court would have no difficulty in deciding that -it belonged to the tenant. Many cases have arisen about ranges and -stoves. An ordinary stove of course can be removed; suppose it is -affixed to the house in such a way that some portion of the wall will -be detached by the removal, can this be done? Not if the wall will be -badly injured. How badly? This is a question of fact to be answered by -inquiry in every case. Among the fixtures that can be removed are -hangings and tapestries, ornamental chimney pieces, wooden cornices, -wainscoting affixed to the wall by screws and spikes, bells and bell -wires, chandeliers, cisterns and sinks though fastened by nails and -set into the floor, fire frame fixed in the fireplace, pipes for gas -or water, grates removable without injury to the building, pumps, -stoves, ranges and furnaces, gas ranges and water closet appliances, -washtubs fastened to the house, gas fixtures and shelves. A greenhouse -is not removable, nor gutters placed in the roof of a dwelling, nor a -stairway, nor flowers, shrubs, or bushes planted for ornamental -purposes.</p> - -<p>Chattels placed by a tenant on leased premises for the purpose of -carrying on his business or trade are generally regarded as personal -property. Annexations of this kind are called trade fixtures and the -law is liberal in permitting their removal. Show cases, counters and -shelves, engines, boilers, machinery, tanks in a distillery, a bowling -alley, bar fixtures, even buildings are removable. The same liberal -rule applies to agricultural implements. A tenant, therefore, if -wishing to remove whatever he may have added, should be careful about -their nature, or protect himself by an effective agreement.</p> - -<br /> - -<p><span class='pagenum'><a name="Page_164" id="Page_164">[164]</a></span><b>Legal Remedies.</b>—Elsewhere we have shown how civil and criminal law -differ. In criminal proceedings the state is a party and prosecutes -offenders through agents or attorneys who are chosen or appointed for -that purpose. In all civil offenses the person injured prosecutes the -offender, through the courts established by the state for that -purpose. Suppose A owed B one hundred dollars for which he gave his -promissory note payable in ninety days from date, and which on its -maturity A declined to pay. B could then have recourse to a court of -law to collect the money. If knowing nothing about the mode of -proceeding he would employ a lawyer; if he was familiar with legal -proceedings he could do this himself.</p> - -<p>What is the first step taken by a lawyer? He makes out a writ or -complaint stating B's course of action against A—that he has loaned -him a sum of money which he has not paid as he promised to do, and he -is summoned to appear in court at a certain time and place and answer -why he does not pay and the court is asked to render judgment against -him, if there is no defense, for the money due with the addition of -the costs incurred in seeking the aid of the court to collect the -money. This writ, declaration, or complaint is given to the sheriff of -the court where either A or B lives, who "serves" it on A. This -service consists in reading a copy of it by the sheriff, or by one of -his deputies or a constable, or other authorized person, to A, or in -leaving a true and attested copy thereof with him, which has become -the universal practice. This is the ordinary mode of beginning a legal -action against a person or corporation.</p> - -<p>An action thus begun is followed by a trial of the case unless it is -settled. Usually the trial comes off <span class='pagenum'><a name="Page_165" id="Page_165">[165]</a></span>within a few months, but not -infrequently long delays occur. If, after the introduction of -testimony, judgment is rendered in favor of B, an "execution" or order -is issued by the court directing the sheriff to levy on A's property, -whatever he may have, save a small sum, household furniture and the -like, and sell it and turn over the proceeds to B in payment of his -debt. If there was a balance left from the sale of A's property after -satisfying the judgment of the court and the costs of the legal -proceedings, it would be paid to A. This, in fewest words, is the mode -of proceeding in a court of law to obtain redress in a civil suit or -action.</p> - -<p>There are several kinds of actions or remedies used in different cases -and these will now be explained. First, is the action of assumpsit. -This is the form of action used whenever one sues to recover on all -kinds of promises, those implied by the law as well as express -promises, not under seal. They include all ordinary promises to do -things either orally or in writing. Next, is the action of covenant. -This is used whenever one sues to recover for some failure on the part -of a person who has given a deed or other sealed writing. Suppose the -purchaser of land discovered there was an unpaid mortgage thereon, -though the deed covenants or declares that it is free from all -encumbrances. The vendee or purchaser would sue to recover for a -broken covenant. Another action is replevin which is used to recover -specific goods. Suppose someone had taken my horse and refused to -deliver the animal to me. The proper remedy would be replevin. Suppose -I did not wish to have the horse back, but only its value or worth. -Then the proper remedy would be an action of trover. Another form of -action in much use is called trespass. This is <span class='pagenum'><a name="Page_166" id="Page_166">[166]</a></span>used to recover -damages for injuries to persons and property. If a person knocked me -down and I sued him to recover for the injury, trespass would be the -proper form of action. In many states an action in tort instead of -trespass is the proper remedy. If one should come upon my land and -take away wood, grass, stone, or in any way injure it, trespass also -would be the form of action. Ejectment is the action employed to eject -or turn out a wrongful possessor and recover possession of land. In -this action the title or ownership of the land lies at the foundation; -and the title to many a piece has been settled in an action of -ejectment. One of the most familiar actions is habeas corpus, which is -employed to recover a person's liberty from illegal restraint. As the -actions of slander and libel have been described, only two others -require notice, mandamus and quo warranto. The first of these is used -to compel one to do something. A familiar example is that of a city -which refuses to pay a judgment that has been rendered against it. The -court in this action commands the city to pay, and it must obey unless -there exists a legal defense. A quo warranto is the form of legal -action to which a person resorts to get possession of an office to -which he is entitled, but is denied him. Suppose one is elected mayor -of a city, but for some reason or other, the one in possession is -determined to keep him out. He would bring this action and a court -would then decide whether he was entitled to it or not, and if he -were, the court would proceed to put him in possession.</p> - -<p>In many of the states, especially the newer ones, not all of these -different forms of action are used. Only one form, called a complaint, -includes most of them. While the substitution of this has simplified -<span class='pagenum'><a name="Page_167" id="Page_167">[167]</a></span>the modes of redress, the substance of the complaint really embodies, -as before, the different kinds of injuries above explained.</p> - -<br /> - -<p><b>Life Insurance.</b>—The contract of life insurance is a mutual -agreement whereby the insurer agrees on the payment of a fixed sum or -premium to pay to a person designated in the policy on the happening -of a contingency, usually death, a sum of money. By another form of -insurance the insurance may be made payable at a fixed time, or -before, should the insured die before that period.</p> - -<p>The contract to be valid must be for the benefit of one having an -insurable interest, otherwise the contract is a wager, which the law -condemns. This is sufficient if the person taking the insurance has -such an interest arising from his relation to the insured as creditor -and surety, or from the ties of blood or marriage that will justify a -reasonable expectation of advantage or benefit from the continuation -of his life. It is not needful that this expectation or benefit should -possess a pecuniary valuation. The mutual legal rights and liabilities -of father and minor child are sufficient to create an insurable -interest on the part of each in the life of the other; also the -relationship of brother and sister, and that of husband and wife. -Likewise a man and a woman who are engaged to be married; and a -creditor has an insurable interest in the life of his debtor. And this -interest covers not only the amount of the indebtedness, but also -future advances, and the cost of taking out and keeping up the -insurance. A partner who has advanced the capital of the business has -an insurable interest in the life of his partner. More generally any -person who invests money relying on the efforts of another <span class='pagenum'><a name="Page_168" id="Page_168">[168]</a></span>to produce -a return has an insurable interest in such person's life. A surety -therefore has an insurable interest in the life of his principal; an -executor in the life of a person who has granted an annuity to the -testator; a common carrier even may insure against loss from injuries -to passengers. But the relationship between uncle or aunt, nephew and -niece and that of cousin is not sufficient to support a policy taken -by one in the life of the other.</p> - -<p>A policy may be assigned to one who has no insurable interest if made -in good faith, and not as a cloak for the procuring of insurance by -one having no insurable interest. This rule does not prevail -everywhere, but the courts which do not accept this rule usually -protect the assignee who has paid the premiums to the amount of his -payments, while the estate of the insured takes the balance that may -come from the insurer, whenever the assignment of the policy is not -invalid. An assignment to one who has an insurable interest as -relative, creditor and the like, is always valid.</p> - -<p>A general agent, says Justice McClain, "may bind the company by an -agreement as to rate of premiums, or other terms of the contract, even -as against the express provisions of a policy subsequently issued, -there being no negligence on the part of the insured in failing to -advise himself as to the terms of the policy; but if the want of -authority of the agent to vary the terms of the application is brought -home to the applicant, oral communications of the insured to the agent -are not to be considered in determining the validity of the insurance. -If the agent has exceeded his authority as to the terms of the -proposed contract, the company cannot reject that part which the -agent <span class='pagenum'><a name="Page_169" id="Page_169">[169]</a></span>was without authority to make and enforce the rest, but must -accept or reject in toto."</p> - -<p>Until a proposition for insurance has been accepted by the company -there is no contract. Delay in accepting an application which is -subject to approval does not effect an acceptance. There may be a -binding contract of insurance as soon as the company has accepted the -application, or on the delivery and acceptance of it by the company's -agent, when he has authority to do so. In order to complete the -contract before issuing the policy there must be an agreement to this -effect, and before the death of the applicant. The receipt by an agent -for the first premium, or of a note therefor, subject to the approval -of the application by the company, does not effect a contract between -insurer and insured.</p> - -<p>Some states have enacted statutes prescribing requirements for life -insurance policies, or standard forms. Delivery to a third person for -the insured may be sufficient. The contract becomes complete when the -policy is put in the mail, postage prepaid, for delivery in due course -to the insured. Delivery to the insured for examination of course does -not effect any engagement on the part of the insurer, nor does a -delivery on condition.</p> - -<p>It is often stated that the delivery shall not be effectual to create -a contract unless the insured is alive and in good health when the -policy is delivered and the first premium is paid. Indeed, how could -it be valid if the insurer is dead? And if the contract is with a -person other than the insured as beneficiary, it would be void on the -ground of mistake. Likewise, under such a condition, a policy does not -become effective, without a waiver, if the insured is in ill health at -the time of its delivery or payment of the premium.</p> - -<p><span class='pagenum'><a name="Page_170" id="Page_170">[170]</a></span>Unless waived by the company, there is usually a stipulation to the -effect that the company shall not become bound until the first premium -has been actually paid and accepted by the company or its authorized -agent. But if the premium is actually paid by the agent of the company -for the insured by virtue of an agreement between them, this will bind -the company. The payment of the premium by a third person without the -knowledge of the insured does not have the same effect.</p> - -<p>A general agent has authority to waive the stipulation, that the -policy shall not take effect until the first premium is paid, though -of course he may be restricted in this regard, but a special agent -cannot waive this stipulation; though if he acts otherwise and the -company ratifies his act, it is bound. A provision also that a policy -shall not be valid unless the premium is paid when the insured is in -good health may be waived by an agent who has authority to take -applications, collect premiums and deliver policies.</p> - -<p>Passing to the nature of the contract, if made in violation of a -statute, or if contrary to public policy and this is known by both -parties, it is void. Thus a stipulation that a policy shall be payable -though the insured may be executed for a crime is contrary to public -policy and is therefore void. The same is true of a stipulation -insuring against death by suicide while sane. It is against public -policy to allow one person to have insurance on the life of another -without his knowledge. A policy issued on a person beyond a specified -age is prohibited by statute.</p> - -<p>What is the effect of fraud in negotiating and issuing policies? If -the company or its agent perpetrates a fraud whereby one is induced to -take <span class='pagenum'><a name="Page_171" id="Page_171">[171]</a></span>out a policy, he can at his option declare it void, unless so -negligent in acting as to work an acquiescence of it. But if acting in -a proper way and time he can set up fraud as a defense in an action to -get the premium for which the contract has stipulated; or he may sue -to have the policy declared void and his premiums returned to him; or -he may bring an action against the company or its agent, or both, to -recover the damages he may have sustained by the fraud that has been -practiced on him.</p> - -<p>On the other hand, if the insured has been wronged, the courts furnish -relief, and perhaps may set the policy aside. Mistake is a common -ground of relief; it must in all cases be clearly proved. And if a -policy is susceptible of two constructions, the ambiguity is to be -resolved in favor of the insured. As the company framed the policy all -of its provisions in its favor are strictly construed. It may be added -that the construction which the parties themselves have put upon a -contract of life insurance will be generally followed in determining -their intention. Again, the entire contract is to be construed -together for the purpose of giving effect to each clause and as -between general and specific provisions relating to the same matter -the specific provisions control.</p> - -<p>In determining who is the beneficiary under the terms of a policy of -life insurance the courts are governed by the intentions of the -parties. They need not be named if they can be otherwise identified, -and may be designated in a separate paper prepared for that purpose. -The amount named in the policy generally fixes the liability of the -company. To obviate the wager feature, the amount of insurance -effected for a creditor on the life of his debtor ought to be limited -to the amount of the debt with <span class='pagenum'><a name="Page_172" id="Page_172">[172]</a></span>interest and premiums during the -expectancy of the life insured.</p> - -<p>The risk is presumed to begin from the date of the policy and to -continue until the happening of the contingency or time when payment -is to be made by the insured. It may be added that words or figures -written or printed on the margin of a policy of life insurance, on its -back, or on a slip, with reference to the terms and conditions of the -contract, constitute a part of it and must be considered in deciding -its meaning. But representations made in a prospectus or circular -issued by a life insurance company are no part of a contract.</p> - -<p>The payment of premiums to a general agent without notice of any -limitation of his authority to receive payments will bind the company, -but a different rule applies to a special agent. The premiums may be -paid by the insured, or the beneficiary, or by the agent of the -company whenever he has agreed to pay them for the insuring party. A -discount allowed by the company for the punctual payment of premiums -belongs not to the agent, but to the insured. Cash is usually paid, -though other arrangements also exist for taking notes, that are -ultimately paid in cash or from the earnings of the company, and -belong to the insured and would be paid to him. In mutual life -insurance companies a portion of the premium is often paid in this -manner.</p> - -<p>A policy of life insurance payable to the insured, or in the event of -his death to his personal representatives, may be assigned unless -forbidden by statute, therefore a policy payable to the wife of the -insured, or another may be assigned by the united act of the insured -and the beneficiary. Thus a policy taken out for a wife's benefit is -often assigned <span class='pagenum'><a name="Page_173" id="Page_173">[173]</a></span>by her and her husband to his creditors to secure -their debts. In some states statutes forbid the assignment of such -policies for the benefit of creditors. The written assignment must be -delivered to the assignee to be effective. On some occasions -assignments have been declared valid where the intention was clearly -proved though both the written assignment and the policy remained in -the possession of the assignor. An assignee who holds a policy as -security is entitled on its payment only to the amount of his claim -and advances with interest, including premiums paid to keep the policy -alive and thus preserve his security. More generally premiums paid for -this purpose are chargeable on the proceeds of the insurance, but a -mere volunteer who pays the premiums acquires no lien on the proceeds -of the policy when it is paid. Nor can one who ought to pay the -premiums give a lien on the policy to another for money advanced by -him to pay them; and an assignee who has promised to pay the premiums -may be liable should he fail to keep the policy alive.</p> - -<p>Contracts of reinsurance are often made by all insurance companies. In -some states the reinsuring company becomes liable to an action by the -beneficiary named in the original policy. Where the reinsuring -company, by agreement, undertakes to reinsure the members of the other -company should they execute applications for that purpose, any member -who does this is not required to be reexamined or comply with other -conditions respecting his age or health.</p> - -<p>A policy may be canceled or surrendered by mutual agreement. After the -death of the insured the rights of the parties become fixed, and there -can be no cancellation. During his lifetime the <span class='pagenum'><a name="Page_174" id="Page_174">[174]</a></span>insured may abandon -his contract by refusing to pay the premiums, but an intention to -abandon will not be presumed, nor will the taking out of a second -policy before his failure to pay the premiums on the other establish -an abandonment. If both parties treat the contract as void, neither -can revive it without the consent of the other. As the beneficiary has -a vested or definite interest in the contract, the insured cannot, by -surrendering the policy, cut off the rights of the beneficiary without -his or her consent unless permitted to do so by the contract itself.</p> - -<p>A surrender or cancellation of a policy may be avoided on the ground -of mutual mistake. But the insured cannot seek cancellation on the -ground that he thought it was something else when his mistake was -simply his own in not reading the release.</p> - -<p>A policy may be rescinded whenever fraud has been practiced by either -party. Thus, should a greater premium be demanded than that stated in -the contract this would be a good reason for rescinding on the part of -the part of the insured. Likewise, if he was induced to take out the -insurance by the fraud of the company or its agent, unless he has lost -his right to rescind through inaction or negligence. Likewise, the -company may rescind for fraud practiced by the insured by -misrepresentation or other fraudulent acts concerning his age, health, -etc. Concealment of facts may and often does operate as a fraud on the -company. Says Justice McClain: "If the applicant has answered the -questions asked in the application he is justified in assuming that no -other information is desired. On the other hand if he wholly fails to -answer questions the company waives information as to matters thus -asked for by accepting the application <span class='pagenum'><a name="Page_175" id="Page_175">[175]</a></span>without objection. If, -however, the applicant purports to answer a question by giving only an -incomplete answer, concealing facts which should properly be stated in -response to the question, and these concealed facts are material, the -policy is voidable." If a material change for the worse in the health -of the applicant takes place after the application and medical -examination, it is the duty of the applicant to disclose it. The -failure to disclose facts of which the applicant is ignorant, or which -are immaterial to the risk, is not ground for avoiding the policy.</p> - -<p>When a policy is surrendered or canceled by the contract or by -statute, the insured may be entitled to the surrender value of his -policy. The amount is to be determined by the period for which the -policy has to run, the amount of the annual premium, the age of the -insured, and the probability of the continuance of his life stated in -the usual life tables. The value of an immatured paid-up policy is the -unearned premium called the reserve and is to be computed in the same -manner as that of a policy on which annual premiums are paid. The -beneficiary is entitled to the surrender value as against the insured, -as well as the creditors, unless the beneficiary has consented to -giving them the preference.</p> - -<p>By a clause in the contract of insurance or by statute, the insured -can convert his policy into a paid-up policy for such an amount as the -premiums would have secured. These conversions often happen where the -insured is unable or unwilling to continue to pay the premiums -required to maintain the policy. Formerly on the failure of the -insured to pay, policies lapsed or were forfeited, and the insurance -companies gained large sums from this <span class='pagenum'><a name="Page_176" id="Page_176">[176]</a></span>source. This led to legislation -and to the creation of paid-up policies. These are issued on somewhat -different terms, but the principle in all of them is the same.</p> - -<br /> - -<p><b>Minor.</b>—The contracts of a minor are of two kinds, those for -necessaries and other things. Contracts for necessaries made by him -the law will uphold. They are really implied contracts which the law -will sustain for his benefit and protection. What are necessaries is a -question of fact, not always easily answered. Much depends on a -minor's place in society and condition. The question is for a jury to -decide, also whether the prices for them are reasonable or not. One of -the well-known cases occurred many years ago. The bill against the -minor was for more than a thousand dollars for twelve coats, seventeen -vests, twenty-three pairs of trousers, five canes, fur caps, chip hats -and other things, in less than six months. The jury rendered a verdict -for almost the entire amount, but the reviewing court remarked that -the bill made the members shudder, that the seller must have known -that all these things were not needed for the minor's comfort within -that short period, and the verdict was therefore set aside.</p> - -<p>The question is constantly arising, what are necessaries? A thing -might be to one and not to another. Thus a bicycle merely for pleasure -would not be a necessity; one that is used to go to and from an -individual's daily work would be. A dentist's bill for repairing one's -teeth has been disputed, the law, though, generally favors the -preservation of human teeth. Education furnished to a minor may be a -necessary thing, yet only when it is suitable to his wants and -condition. Should a <span class='pagenum'><a name="Page_177" id="Page_177">[177]</a></span>minor repudiate a contract, the law is observed -if he restores all that he has received, or that is capable of -restoration.</p> - -<p>With respect to contracts for other things, they are not always void, -but may be avoided. If they have not been executed, he can disavow -them at any time. If nothing is done during infancy inaction operates -generally as an affirmation. If he disaffirms a contract, he must -return the thing purchased or received, or make the best restitution -he can, for it would not be just to retain possession and refuse -payment.</p> - -<p>A different rule applies to a minor who makes a fraudulent contract. -Suppose he buys goods assuring the seller that he is twenty-one years -of age when in fact he is not, though nearly so. Can the seller -recover on his contract? No, but the law has another way of reaching -him. He is liable in an action of deceit, and the amount or damage -that may be recovered is that of the goods sold to him.</p> - -<p>A minor who has a parent or guardian cannot make a contract even for -necessaries, nor is he under any obligation to pay his bills for them. -Should he be in need of such things and his guardian or parent be -unwilling to furnish them, they can be compelled by law if having the -means to provide him with whatever he requires.</p> - -<br /> - -<p><b>Mortgage.</b>—Two kinds of mortgages are given, one kind is secured by -real estate, the other kind by personal property. In both the borrower -of money pledges his property as security while the money remains -unpaid. During this period he usually remains in possession and -control of the property, though not always. The borrower is called the -mortgagor, the lender the mortgagee. <span class='pagenum'><a name="Page_178" id="Page_178">[178]</a></span>The contract is in writing -sealed, is in fact a deed. Sometimes the contract is in two writings, -the conveyance of the land and security in one, and the conditions or -defeasance on which the conveyance is made in another. It is more -usual, however, to set forth the transaction in a single writing or -conveyance.</p> - -<p>A mortgage may be so made as to cover future advances, but it will not -cover them in preference to advances or loans made by another without -any knowledge of them. Nor need another person who makes such a loan -inquire whether a mortgagor has made any other loan, or for a larger -amount than that stated on the public record, where the mortgage deed -is recorded. For, it should be added, a mortgage deed is recorded like -any other for the benefit of all parties, not only to secure the -mortgagee from a later purchaser who might buy if knowing nothing of -the prior mortgage, but from another who might be willing to lend on -such security like himself; or from a creditor of the mortgagor who -might attach the property as belonging to him, if he did not know of -the existence of the mortgage. As the record is public, and may be -examined by everyone, all who are interested in the property are -supposed to examine it and thus find out whether it has been -mortgaged, and if it has been, the conditions of the mortgage, and if -they do not, their neglect is their own.</p> - -<p>Improvements, additions of every kind to property after it has been -mortgaged, become a part of it, and if the mortgagee takes future -possession, they pass to him. But a difficult question arises -sometimes, what additions or improvements are included? We have -learned what they are whenever a tenancy relation exists. The law does -not <span class='pagenum'><a name="Page_179" id="Page_179">[179]</a></span>favor a mortgagor to the same extent. The test to apply is that -of intention. If a mill has been mortgaged, the rule is very broad and -the mortgage covers machinery attached by bolts and screws though -removable without injury to the premises. If a mortgage has been -given, by no evidence can it be shown that the deed was intended as an -absolute or entire conveyance of the property. On the other hand by -proper evidence it can be shown that an absolute conveyance was -intended to be only a mortgage. This has been often done. One may ask, -why does the rule not work both ways? There is a much stronger -probability of making a mistake in the second case than in the other. -One of the facts of great importance in such a dispute is the amount -of the consideration or money paid. Suppose a piece of land was worth -$1000 and the deed mentioned only $100, unless there was some other -explanation, there would be a strong probability that the parties -intended only a mortgage which for some reason or other was not -completed.</p> - -<p>Again, it is a rule of law that an agreement which is in fact a -mortgage cannot be changed in character by any other agreement made at -the time between the parties relating to the repayment of the money -and the return of the property. The law presumes that the entire -transaction was embodied in the agreement. "Once a mortgage always a -mortgage." Of course this rule does not prevent the parties from -making any later arrangement they please about the property.</p> - -<p>A mortgage may be made with a power of sale whereby, should the debt -be not paid at the time fixed, a valid title may be acquired by a -purchase from the mortgagee. The mortgagee thus becomes a kind of -trustee or agent for the debtor. This is a g<span class='pagenum'><a name="Page_180" id="Page_180">[180]</a></span>reat responsibility to -repose in the mortgagee, and he must perform the trust in good faith -in every respect. He must proceed in a way that will best serve the -interest of the mortgagor, and strictly observe the terms stated in -the mortgage, otherwise the sale will not be valid and the mortgagor -can recover his property. If there is a surplus after satisfying the -mortgage debt it must be paid to the mortgagor, or, if he is dead, to -his heir. Such deeds of trust are made by large corporations to secure -loans, and may be made to secure future advances as well as present -ones.</p> - -<p>If the property is sold to satisfy the mortgage debt, the mortgagee -cannot purchase it, unless authorized by statute, or by the terms of -the mortgage; but if it is sold by an officer of the law, the -mortgagee is as free to purchase it as any other individual. This -rule, though, is denied by some courts, which hold he cannot because -the officer is acting as the mortgagee's agent.</p> - -<p>A vendor or seller of property, may have for the money he is to -receive a lien, which is nearly the same thing as a mortgage. A -subsequent purchaser would be affected by this lien, however innocent -he might be of its existence. But if the purchaser should mortgage the -property to a third person, who should put his deed on record, he -would gain a valid lien over the vendor. This lien is founded on the -idea that the vendor holds the land in trust for the purchaser until -he has paid for it, but is not recognized in every state. It is -reasonable to suppose that the owner will not sell his land until he -has been paid, or the purchase money has been secured. The lien will -also prevail against any assignment that the vendor may make for the -benefit of creditors, provided he <span class='pagenum'><a name="Page_181" id="Page_181">[181]</a></span>enforces his lien before the -assignee begins to execute his trust.</p> - -<p>Much has been said about the notice of the vendor's lien. Any -reasonable notice will suffice, but what is such a notice to charge, -for example, a second purchaser with knowledge? Payment of a part of -the money is held to be knowledge of the lien. Again, a vendee who has -paid any part of the purchase money before the delivery of the deed to -him has a lien for the amount advanced. A third party who pays the -purchase money to the vendor for the purchaser and takes a note for -the amount does not have such a lien.</p> - -<p>The mortgagor in most states is regarded as the real owner and remains -in possession; and the mortgagee has a lien, or security for his -advance of money or whatever it may be. The mortgagor may sell his -land at any time subject to the mortgage, in other words he cannot by -any sale impair the mortgagee's security. On the other hand, the -mortgagee can transfer, sell or assign his mortgage to another, and -this is often done.</p> - -<p>Both parties may insure the premises though the mortgagee cannot -exceed his debt. If they are destroyed by fire, the mortgagor cannot -claim to have the insurance applied in liquidation of the mortgage -debt. The mortgagee, therefore, can first collect the insurance money -and then proceed to collect the debt that is due to him from the -mortgagor. If the sums collected from the two sources exceed the -amount advanced to the mortgagor that is only the mortgagee's affair. -But if he insures the property at the mortgagor's request or at his -expense, then the mortgagor would have the benefit of the insurance.</p> - -<p>Frequently several mortgages are made of the <span class='pagenum'><a name="Page_182" id="Page_182">[182]</a></span>same property. The one -that is the first recorded has the first lien, the one recorded next -the second lien, and so on. And if the property is subsequently sold -to pay the mortgage, the first mortgagee has the first claim to the -money received, the second mortgagee next and so on. If there is not -enough to pay all, the last mortgagee is the first to be cut off, or -to receive less than the full amount due to him.</p> - -<p>If a testator devises mortgaged land, is the devisee or person who -receives the land also entitled to the money due from the mortgagor? -Generally, but not everywhere. A bequest of money securities includes -a note secured by mortgage. The mortgagor's interest in the land on -his death, if leaving no will directing who shall take it, goes to his -heirs, and not to his executor or administrator like other personal -property. Of course, if there were no other property that could be -used to pay his debts, if he had any, it could be claimed and taken by -his creditors for that purpose.</p> - -<p>The mortgage usually states a time for paying the debt, and if the -terms are not observed, the mortgagee may proceed to take the -property. This he cannot do in an arbitrary way, except in the case of -mortgages in which the mortgagee is entrusted with power to sell the -property and apply the money in payment of the debt. In other cases -the mortgagee must apply to the court to fix a time for the sale of -the property, if the mortgagor fails to make payment. The courts -usually give the mortgagor a period of several weeks or months to pay, -and if payment is not made at the end of this period, the land is sold -by an officer of the court, who conveys the title to the new -purchaser, and if there is any surplus left after satisfying the -<span class='pagenum'><a name="Page_183" id="Page_183">[183]</a></span>mortgage, this is returned to the mortgagor. If there is a deficit, he -is still liable therefor. Any person who is interested in a mortgaged -estate has the right to redeem it; heirs, devisees, creditors. On the -death of a mortgagor his heirs may call his executor or administrator -to pay the mortgage out of the personal estate if there is any, and -not from the sale of real estate, because it was given, so the law -presumes, for the benefit of the personal estate belonging to the -mortgagor. Or, if the land has been given to a devisee, he can require -the executor or administrator to pay the mortgage. Again, if two -persons are jointly liable for the debt, and one of them pays it, he -may call on the other to contribute his portion. See <i>Chattel -Mortgage</i>.</p> - -<br /> - -<p><b>Negotiable Paper.</b>—By negotiable paper is meant paper that can be -sold and transferred. The law on this subject is now regulated by a -statute that is nearly uniform in almost all the states of the Union. -The courts are constantly applying it, and in doing so are putting -their meaning or interpretation on the words of the statute. Thus far -they have looked with quite similar eyes, and no serious differences -have arisen.</p> - -<p>The statute declares that a promissory note must be in writing and -signed by the maker or drawer; that it must contain an unconditional -promise or order to pay a certain sum of money on demand, or at a -fixed future time to order or to bearer. And if the note is addressed -to a drawee he must be named or indicated with reasonable certainty. A -note may be written payable with interest or by stated installments, -or with exchange, or with costs of collection, or an attorney's fee in -case payment shall not be made at maturity.</p> - -<p><span class='pagenum'><a name="Page_184" id="Page_184">[184]</a></span>An unqualified order or promise to pay is unconditional within the -meaning of the law even though it indicates a particular fund from -which it is to be paid, or a statement of the transaction on which the -note is based. Thus the indorsement of the words "per contract" on the -back of a note written at the time of its execution does not affect -its negotiability.</p> - -<p>A note payable at a fixed future time may be at a fixed period after -date or sight, or on or before a fixed future time specified therein, -or on or at a fixed period after the occurrence of a specified event -which is certain to happen, though the time of happening be uncertain. -A note that is payable on a contingency is not negotiable, and the -happening of the event does not cure the defect. Likewise a note which -contains an order or promise to do any act in addition to the payment -of money is not negotiable. To this rule, though, are some exceptions. -Thus a note may be negotiable that authorizes the sale of collateral -securities that have been delivered to the holder if the note is not -paid at maturity. But a note stating that the title to property for -which it is given shall remain in the payee, and that he shall have -the right to declare the money due and take possession of the property -whenever he may deem himself insecure "even before the maturity of the -note," is not negotiable.</p> - -<p>Again, the validity and negotiable character of a note is not affected -by the fact that it is not dated, or does not specify the value given -or the place where it is drawn, or the place where it is payable, or -bears a seal, or designates a particular kind of current money in -which payment is to be made. Furthermore, a note is payable on demand -when it is thus stated, or is payable at sight or on <span class='pagenum'><a name="Page_185" id="Page_185">[185]</a></span>presentation. -Also an overdue note accepted or indorsed is regarded as payable on -demand, so far as the maker is concerned.</p> - -<p>A note may be drawn payable to the order of a specified person, or to -him or his order, or it may be drawn payable to the order of a payee -who is not the maker, drawer or drawee, or it may be drawn payable to -the order of the drawer or maker, or to the drawee, or to two or more -payees jointly, or to one or some of several payees, or to the holder -of an office for the time being.</p> - -<p>Again, a note is payable to the bearer when it is thus expressed, or -to a person named therein or bearer, or when it is payable to the -order of a fictitious or non-existing person, and the fact is known to -the person making it so payable, or when the name of the payee does -not purport to be the name of any person, or when the only or last -indorsement is an indorsement in blank. On one occasion funds were -deposited in a bank in the name of a federal disbursing agent under -treasury regulations that "any check drawn by a disbursing office upon -moneys thus deposited must be in favor of the party by name to whom -payment is to be made and payable to order." The disbursing officer -fraudulently drew checks payable to fictitious payees and cashed them -under forged indorsements of the fictitious payees' name. The court -held that the checks were not payable to bearer and that the bank was -not protected in paying them.</p> - -<p>A note is not invalid for the reason only that it is ante dated or -post dated, provided this is not done for an illegal or fraudulent -purpose. The person to whom it is delivered acquires the title from -the date of delivery. If a note expressed to be payable at a fixed -period after the date is issued undated, or <span class='pagenum'><a name="Page_186" id="Page_186">[186]</a></span>the acceptance of such a -note is ante dated, the holder may insert the true date of issue or -acceptance. Nor does the insertion of the wrong date avoid the note in -the hands of a regular subsequent holder. More generally, when a note -is wanting in any particular material, the holder or possessor has the -authority to complete it by filling up the blanks. This authority -extends to every incomplete feature of the note and may be used for -inserting the date, amount, name of the payee, and time and place of -payment. When authority is conferred on another to fill blanks it must -be strictly followed. If a note is drawn payable with interest at the -rate of __ per cent, it draws interest at the legal rate, although the -blank is not filled. The presumption that a note was completed before -it was signed and not afterwards does not arise in a note written in -several inks and by different hands. And the purchaser of a note with -an unfilled blank is put on inquiry respecting the authority of a -person entrusted with an incomplete note. Thus A signed blank forms of -notes and left them with his attorney, but with no authority to -complete and issue them until instructed. The attorney filled them up -without further instructions and issued them to a person who knew they -had been signed, that the attorney had a power of attorney to act for -A, but did not attempt to read or otherwise ascertain its terms. A was -not prevented from denying the validity of the notes. In another case -a person who signed a number of notes in blank as to date, payee and -amount, and left them in his desk in his office, whence they were -stolen, filled in and indorsed to B for value before maturity and -without notice of any defects, was nevertheless not liable on them. -When therefore an incomplete instrument has not <span class='pagenum'><a name="Page_187" id="Page_187">[187]</a></span>been delivered it -cannot be completed and negotiated without authority, and if it is, it -is not a valid contract in the hands of any holder as against the -person whose signature was placed thereon before delivery.</p> - -<p>Every contract on a negotiable note is incomplete and revocable until -its delivery. As between the immediate parties, and also a remote -party other than a holder in due course, the delivery, in order to be -effectual, must be made either by the authority of the party making, -drawing, accepting or indorsing as the case may be. The delivery may -be shown to have been conditional, or for a special purpose only, and -not for the purpose of transferring the property of the note. But -where the note is in the hands of a holder in due course, a valid -delivery thereof by all parties prior to him is conclusively presumed.</p> - -<p>When the language of a note is ambiguous the following rules of -construction are applied: (a) if there is a discrepancy between the -words and figures in expressing the amount, the words control, if the -words are ambiguous or uncertain, reference may be had to the figures -to fix the amount; (b) if the note provides for paying interest -without specifying the date from which it is to run, the interest runs -from the date of the note, if this is undated, from the issue of it; -(c) if not dated a note will be considered as dated from the time of -issue; (d) if there is a conflict between the written and printed -provisions, the former will prevail; (e) if it is doubtful whether the -instrument is a bill or note, the holder may elect which it shall be; -(f) it is not clear in what capacity the person making the note -intended to sign he is to be deemed an indorser; (g) when a note -containing the words "I promise to <span class='pagenum'><a name="Page_188" id="Page_188">[188]</a></span>pay" is signed by two or more -persons, they are deemed to be jointly and severally liable thereon.</p> - -<p>The signature of any party may be made by a duly authorized agent. No -particular form of appointment is necessary for this purpose, and the -authority of the agent may be established as in other cases of agency. -If, however, one signs as agent without disclosing his principal, he -is personally liable. Thus, a husband signed a note in his own name -without adding more. As he had disclosed no principal, he was -personally bound, and his wife, for whom he claimed to have signed the -note, was not liable. The maker of a note added to his signature, -"Pastor of St. Frances' church." This was regarded as his personal -note, all besides his name were words merely of description. A person -signed a note thus: "Estate of William R. Clark by William R. Clark, -Jr., Trustee." As he was not authorized to borrow on behalf of the -trust and give a note as trustee, he was individually liable -notwithstanding the form of the note.</p> - -<p>Where the signature is forged or made without the authority of the -person whose signature it purports to be it is wholly inoperative. -Thus A cashed a number of drafts and checks payable to B's order on a -forged indorsement of B's name by B's bookkeeper, who appropriated the -money to his own use. Nevertheless, B recovered the amount of the -drafts and checks from A, nor was his negligence in not examining the -bookkeeper's books or accounts a good defense. In another case before -a note was delivered to and accepted by the payee, A, whose name -appeared on the back, was shown the note who said, "Everything is all -right." Afterward he resisted payment on the ground of forgery. As the -payee was induced to take the note on A's <span class='pagenum'><a name="Page_189" id="Page_189">[189]</a></span>statement of its -genuineness, he could not escape payment.</p> - -<p>Every negotiable note is deemed to have been issued for a valuable -consideration, and every person, whose signature appears thereon, to -have become a party for the value. An accommodation party is one who -has signed the note as maker, drawee, acceptor or indorser without -receiving value therefor, and for the purpose of lending his name to -some other person. Such a person is liable on the note to a holder for -value, though the latter knew he was only an accommodation party.</p> - -<p>What is meant by negotiating a note? By transferring it in a way -whereby the transferee becomes the holder or owner. If payable to -bearer it is negotiated by delivery; if payable to order it is -negotiated by indorsement and delivery. An indorsement may be either -special or in blank; and it may also be either restrictive, or -qualified, or conditional. A special indorsement specifies the person -to whom, or to whose order the note is payable. An indorsement in -blank specifies no indorsee, and a note thus indorsed is payable to -bearer and may be negotiated by delivery. The holder may convert a -blank indorsement into a special one by writing over the signature of -the indorser in blank any contract consistent with the character of -the indorsement. By a qualified indorsement the indorser becomes a -mere assignor of the note, and is made so by adding to his signature -the words "without recourse," or others of similar import. Such an -indorsement does not impair the negotiable character of the note. When -a note is payable to the order of two or more payees or indorsers who -are not partners, all must indorse unless the one indorsing has -authority to <span class='pagenum'><a name="Page_190" id="Page_190">[190]</a></span>indorse for the others. Again, where a note is drawn or -indorsed to a person as cashier or other fiscal officer of a bank or -corporation of which he is the officer, it may be negotiated by either -the indorsement of the bank or corporation or by the indorsement of -the officer. And where the name of a payee or indorser is wrongly -designated or misspelled he may indorse the note as therein described, -adding, if he thinks fit, his proper signature. The holder may at any -time strike out any indorsement which is not necessary to the title. -When this is done, he and all subsequent indorsers are thereby -relieved from liability on the note.</p> - -<p>The holder of a negotiable note may sue thereon in his own name; and -payment to him in due course discharges it. Who is a holder in due -course? One who holds a note on the following conditions: (a) that it -is complete and regular on its face; (b) that he became the holder -before it was overdue and without notice that it had been dishonored; -(c) that he took it in good faith and for value; (d) that at the time -of its negotiation to him he had no notice of any infirmity in the -note or defect in the title of the person negotiating it. A note -therefore, providing that any delinquency in the payment of interest -"shall cause the whole note to immediately become due and collectable" -is made overdue by the maker's failure to pay the interest when due, -and a subsequent taker cannot be a holder in due course.</p> - -<p>To constitute notice of an infirmity in a note or defect in the title -of the person negotiating it, the person to whom it is negotiated must -have had such actual knowledge of the infirmity or defect that his -action in taking the note amounted to bad faith, but merely suspicious -circumstances are not enough to put a prudent man on inquiry.</p> - -<p><span class='pagenum'><a name="Page_191" id="Page_191">[191]</a></span>On the other hand if the purchaser does suspect and fails to -investigate, lest a defense be disclosed to the maker of the note, he -is not a purchaser in good faith. The maker of a note engages that he -will pay it according to its terms and admits the signature of the -payee and his capacity to indorse, and engages that on due -presentation the draft will be accepted or paid or both, according to -its terms, and that if it is dishonored, and the needful proceedings -in consequence are taken, he will pay the amount. A person placing his -signature on a note otherwise than as maker, drawer or acceptor is -deemed to be an indorser unless he clearly indicates his intention to -be bound in some other way. The Negotiable Instruments Act fixes the -liability of a person who is not a party to a note, and who indorses -it before delivery. The law was in great confusion before this act -established a definite rule. Such a person is now liable as indorser -in accordance with the following rules: (a) if the note is payable to -the order of a third person, he is liable to the payee and to all -subsequent parties; (b) if payable to the order of the maker or -drawer, or if payable to bearer he is liable to all parties subsequent -to the maker or drawer; (c) if he signs for the accommodation of the -payee he is liable to all parties subsequent to the payee.</p> - -<p>Presentment for payment is not necessary in order to charge the person -primarily liable on a note, but if it is payable at a mentioned place -and he is able and willing to pay it there at maturity, such action is -equivalent to a tender of payment on his part. Presentment for -payment, of course, is needful to charge the drawee and indorsers. -When the note is not payable on demand, presentment must be made on -the day it falls due. When it is <span class='pagenum'><a name="Page_192" id="Page_192">[192]</a></span>payable on demand, presentment must -be made within a reasonable time after its issue. This rule does not -apply to all bills of exchange. Thus unreasonable delay in presenting -a check will discharge the indorser whether such delay is a cause of -loss to him or not. Likewise a certificate of deposit payable on -demand must be presented for payment within a reasonable time after -its issue in order to hold the indorser. "The usage of trade or -business includes the usage of banks relating to presentment of checks -for payment. It is sufficient diligence to charge an indorser if a -check on the bank in another place is forwarded through various banks -for collection in accordance with the regular usage of the business, -although presentment might have been more promptly made if a more -direct course had been taken." Presentment for payment must be made by -the holder or by some person authorized by him to receive payment, at -a reasonable hour on a business day and at a defined place, and to the -person primarily liable thereon. And if he is absent or inaccessible -then to any person who is at the place where presentment is made. If a -note is payable at a bank the payor has until the close of banking -hours to pay it, and if, before the close of the bank day, he deposits -money enough to pay it a demand earlier in the day is premature. Delay -for presenting a note for payment is excused where the delay is caused -by circumstances beyond the holder's control, and he is in no way -negligent. Nor need presentment for payment be made when after using -reasonable diligence it cannot be made, or where the drawee of a bill -is a fictitious person, and lastly where presentment, express or -implied, has been waived.</p> - -<p>Every negotiable note is payable at the time <span class='pagenum'><a name="Page_193" id="Page_193">[193]</a></span>fixed therein. When the -day of maturity falls on Sunday or a holiday, the note is payable on -the next succeeding business day. Notes falling due on Saturday are to -be presented for payment on the next succeeding business day, except -that notes payable on demand may, at the option of the holder, be -presented for payment before twelve o'clock noon on Saturday when that -entire day is not a holiday.</p> - -<p>When the note is payable at a fixed period after the date, after -sight, or after the happening of a specified event, the time of -payment is determined by excluding the day from which the time is to -begin to run, and includes the date of payment. And where a note is -made payable at a bank it is equivalent to an order to the bank to pay -it for the account of the principal debtor thereon. In accordance with -the notation on the margin of a note the holder sent it for collection -to a bank which held, as a special deposit, the maker's money. The -cashier at maturity notified the maker who directed the cashier to pay -the note. The cashier said "All right, your note is paid." The note -was regarded as paid.</p> - -<p>When a negotiable note has been dishonored by non-acceptance or -non-payment, notice of dishonor must be given to the drawer and to -each indorser, and any drawer or indorser to whom such notice is not -given is discharged. A written notice need not be signed and an -insufficient notice may be supplemented by verbal communication. Nor -does misdescription of the note vitiate the notice unless the party to -whom the notice is given is in fact misled thereby. The notice may be -in writing or merely oral, and may be given in any terms which -sufficiently identify the note and indicate that it <span class='pagenum'><a name="Page_194" id="Page_194">[194]</a></span>has been -dishonored by non-acceptance or non-payment. It may be delivered -personally or through the mails. Where the parties to be notified are -partners, notice to any one of them is notice to all even though there -has been a dissolution. But notice to joint parties who are not -partners must be given to each of them, unless one of them has -authority to receive the notice for the others.</p> - -<p>When the person giving, and the person who is to receive notice reside -in the same place, it must be given within the following times: (a) if -given at the place of business of the person who is to receive notice -this must be done before the close of the business hours on the day; -(b) if given at his residence it must be given before the usual hours -of rest on the day following; (c) if sent by mail it must be deposited -in the post office in time to reach him in usual course on the day -following. If the parties reside in different places the notice must -be sent within the following times: (a) if sent by mail it must be -deposited in the post office in time to go by mail the day following -the day of dishonor, or if there be no mail at a convenient hour on -that day by the next mail thereafter; (b) if given otherwise than -through the post office then within the time notice would have been -received in due course of mail if it had been deposited in the post -office had it been deposited in the post office as above described.</p> - -<p>If a party had added an address to his signature the notice must be -sent to that address, if he has not, then the notice must be sent as -follows: (a) either to the post office nearest to his place of -residence or to the post office where he is accustomed to receive his -letters, or if he lives in one place and has his place of business in -another, notice may be <span class='pagenum'><a name="Page_195" id="Page_195">[195]</a></span>sent to either place, or if sojourning in -another place, the notice may be sent there. In any event if he -receives the notice within the time specified, it will satisfy the -law.</p> - -<p>Of course notice may be waived; sometimes, also, it is quite -impossible to give notice; whenever this happens the law does not -require notice to be given.</p> - -<p>Something should be added concerning alterations that are made -occasionally in negotiable instruments. Any alteration which changes -the date, the sum payable either of principal or interest, the time or -place of payment, the number or the relations of the parties, the -medium or currency in which payment is to be made, or which adds a -place of payment where no place of payment is specified, or any other -change or addition which alters the effect of the instrument in any -respect is a material one and ought not to be made. To add the words -"with interest," with or without a fixed rate, is a material -alteration. But the insertion by the payee of the words "interest" -after the making of a note by authority of maker will not vitiate it. -And if a note had the clause, "interest at __ per cent," the insertion -of the legal rate would not be a material alteration since the legal -import would not be changed.</p> - -<p>The position of a writing on a note is not important, for the effect -of the contract is to be gathered from the four corners of the paper. -The general rule is, if a memorandum written on an instrument in the -margin or at the foot is made before or at the time of its execution, -it is considered a part thereof, and if it affects the operation of -the terms of the body of the instrument it is a material part. It -follows that words written by a party on the margin of an instrument -after its execution and delivery, <span class='pagenum'><a name="Page_196" id="Page_196">[196]</a></span>constitute an alteration if -intended to affect the terms of the instrument and would have such -effect if they were there when the instrument was executed.</p> - -<p>A bill of exchange is an unconditional order in writing addressed by -one person to another, signed by the person giving it, requiring the -person to whom it is addressed to pay on demand or at a fixed -determinable future time a certain sum of money to order or bearer. A -bill of itself does not operate as an assignment of the funds in the -hands of the drawee available for its payment, nor is the drawee -liable on a bill until he accepts or agrees to pay it. An inland bill -is one drawn and payable within a state. Any other is a foreign bill.</p> - -<p>An indorsed promissory note and an accepted bill are very much the -same thing, and that is why the law always treats of both together. -The maker of a note incurs the same obligations as the acceptor of a -bill, both are the parties primarily liable thereon, and the indorser -of a note and the drawer of a note are both secondarily liable on -proper notification of the failure of the primary parties to pay, as -we have learned. The payees in both cases are the same. The acceptance -of a bill is the signifying by the drawee that he has assented to the -drawer's order, and must be in writing. An unconditional promise in -writing to accept a bill before it is drawn is deemed an actual -acceptance in favor of every person who on the faith thereof receives -the bill for value. The drawee is allowed twenty-four hours after -presentment to decide whether or not he will accept the bill; but the -acceptance, if given, dates from the day of presentation. Furthermore, -an acceptance may be qualified as to time, acceptance of payment in -part only and in other ways. <span class='pagenum'><a name="Page_197" id="Page_197">[197]</a></span>When a foreign bill is not accepted it -must be protested, which must specify the time and place of -presentment, and other particulars, and is usually made by a notary -public, though this can be done by other persons.</p> - -<br /> - -<p><b>Parent and Child.</b>—A parent is legally as well as morally bound to -support his children who are incapable to care for themselves. Should -a wife be divorced from her husband his duty to maintain the children -would not fall on her, unless she also had the custody of them. A -father's obligation to maintain his child continues until he is able -to provide for himself. The legal obligation ceases by common law as -soon as a child attains majority, however helpless he may be or great -may be his father's wealth.</p> - -<p>A child that has property of his own, while his father's means are not -enough, may be supported from his own means. Even the principal may be -used in this manner. Generally if the father has ample means, he must -use them to educate his child. When the father can use the child's -fortune and how much, is sometimes a difficult question to answer. The -education of a child is now largely regulated by statute.</p> - -<p>A parent may protect his child, even a homicide is justifiable. A -parent can also correct his child. Says an excellent authority: "The -rights of parents result from their duties. As they are bound to -maintain and educate their children, the law has given them such -authority, and, in support of that authority, a right to the exercise -of such discipline as may be requisite to the discharge of the sacred -trust." See <i>Adopted Child</i>; <i>Husband and Wife</i>.</p> - -<br /> - -<p><span class='pagenum'><a name="Page_198" id="Page_198">[198]</a></span><b>Partnership.</b>—There may be a partnership in a single transaction, -for example, to buy and sell a load of potatoes. Persons may be liable -as partners to others who had no intention of creating that relation. -If A acts in such a way by speech or deeds as to create the belief in -B that he is a partner, and thus believing B sells goods to the -partnership, A is liable as a partner for them. On the other hand if B -knew that A was not a partner, he could not hold him as one. In many -cases it is difficult to determine whether one is a partner or not. -Many tests have been applied. The most general is that of intention. -Simply sharing in the profits and losses will not always suffice. This -was long considered a proper test but it broke down after many -applications. Thus, suppose a clerk is paid by giving him a fixed -percentage of the profits as a compensation, is he a partner? He was -so regarded on one occasion, and the firm having failed he was made -liable for all its debts. That is one of the consequences attending -the relation, every partner is liable for the entire indebtedness of -the amount he may have contributed. The clerk contributed nothing, -nevertheless he was liable like the others. Today the courts would -decide such a case differently. It would inquire whether the partners -intended to make him a partner, or only gave him a share of the -profits as a mode of paying him for his service. The recent -Partnership Act contains this test.</p> - -<p>A partnership may usually hold any kind of property, real and -personal, and not infrequently is formed to cultivate or deal in land.</p> - -<p>A partner is a general agent. Hence the risk of creating the relation. -Being a general agent he can bind his partnership for any acts within -the <span class='pagenum'><a name="Page_199" id="Page_199">[199]</a></span>scope of his authority. Yet there are limitations. If a -partnership was engaged in selling dry goods, a partner could hardly -bind his partners by making a contract with a person for a quantity of -iron, unless it was needed in rebuilding the store, or in some other -connection with the business. He can make and indorse negotiable paper -that is used in connection with the business. Suppose he borrows money -on his own note and he gives the money to his firm, is it responsible -for the amount? This has proved a hard question for the courts. If the -money though loaned on his note was for the benefit of the -partnership, and it was known at the time that it was to be used in -that way, the partnership would be liable; but if the money was to be -used by the borrower and this was known and believed by the lender he -could look only to the borrower for payment.</p> - -<p>The receiving of a new member constitutes a new partnership. It may -reorganize the old partnership and become responsible for its debts, -or it may not. Unless recognized in some way by paying interest on -them and the like, the new member does not become responsible for -them.</p> - -<p>A partnership is formed usually by a definite agreement that is put in -writing. Yet it may be simply an oral agreement with very general -terms about the contribution of capital or skill of the respective -partners and their division of profits. They may and usually do have -distinct fields of employment, each doing the thing for which he is, -or supposed to be, best prepared. By reason of their general -liability, in the olden days persons who wished to thus engage and yet -not be responsible, were kept in the background, and were known as -secret and dormant partners. If found out they <span class='pagenum'><a name="Page_200" id="Page_200">[200]</a></span>were liable because -they were to share in the profits. The fact that they were unknown -when credit was given to the partnership at the time of selling goods -to the concern did not shield them from liability after the discovery -of their relation.</p> - -<p>The difficulty has since been removed in two ways, by incorporating -the partners into a corporation whose powers and liabilities are fixed -by law and therefore known to all, and by forming limited liability -partnerships. These consist of two or more general partners, also -special partners who contribute an amount of capital, of which the -public is publicly informed. If such an association is unsuccessful, -the special partners may indeed lose all, or a part of the capital -they have contributed, but are liable for no more. This is a great -improvement over the secret and dormant methods of getting the capital -needed for partnership purposes. One of the matters that should be -carefully guarded in forming a limited liability partnership is to -contribute the full amount of capital advertised. If any deception is -practiced, or mistake made, whereby a smaller amount is contributed, -should the partnership not succeed, the special partners become liable -as general partners for the full amount. Once such a partnership was -formed with three special partners who contributed each $100,000, and -at the end of two years were told that their profits individually were -$60,000. Each was asked to contribute $100,000 more, and feeling happy -over his venture, he put in $40,000 more, which, added to his profits, -made up the required amount. When the concern failed a few years -afterwards the books showed that neither special partner was ever -entitled to $60,000 as profits. Though innocent, for they had never -examined the books, they were <span class='pagenum'><a name="Page_201" id="Page_201">[201]</a></span>held as general partners for the entire -indebtedness of the concern.</p> - -<p>An illegal contract made by a partner will not bind his partnership, -for all parties are supposed to know the law, and an illegal bargain -cannot be enforced, for example, an agreement to pay usurious -interest.</p> - -<p>How may a partnership be dissolved? Unless the time is fixed by -agreement, it may be dissolved by any member whenever he pleases to do -so, though he cannot act wantonly to the manifest injury of the others -without making himself responsible for their loss. And if a partner -should attempt to transfer his interest before the time fixed for -ending the relation without good reason, to the manifest injury of the -other partners, he can be legally restrained from taking such action.</p> - -<p>The death of a partner causes a dissolution. Nor can executors or -administrators succeed to his place, though they often do so for a -short period to prevent the interruption of the business and to enable -all parties to fare better than they would by its sudden ending. Yet -it is awkward for these officials to thus act, and in so doing they -incur an unpleasant personal responsibility. To relieve them from this -some states have passed statutes permitting them to thus act with the -other partners under the direction and orders of the court having -charge of the estate.</p> - -<p>A partner who retires should give notice of his retirement to relieve -himself from future liability. For, should he neglect, and persons -continued to sell on credit to the firm, supposing he was a member, he -would be liable as before. The statutes in some states regulate his -duty in this regard; it is one that he cannot safely omit.</p> - -<p><span class='pagenum'><a name="Page_202" id="Page_202">[202]</a></span>Should a partnership fail, the general rule with respect to the assets -is the partnership property must be used to pay partnership debts, and -the individual property of partners to pay their individual debts. If -a partner has anything left after paying his individual debts, it must -be devoted to paying the partnership debts. If the partnership has -anything left after paying its debts, this belongs to the partners in -accordance with their agreement in contributing it and the earnings, -and must be devoted to the payment of their individual debts.</p> - -<p>Lastly concerning the authority of a liquidating partner. He can do -many things, give renewal notes, make indorsements, collect debts due -the partnership, and even revive an outlawed debt. Of course the -affairs of a partnership may be settled by some other person than a -partner; not infrequently a receiver is appointed who acts under the -order of the court that appointed him.</p> - -<p>An agreement between a liquidating partner and the other partners, to -take all the property and pay all the debts, is limited in its effect -to themselves and does not affect others. After the partnership assets -have been transferred to a liquidating partner, or to any other person -for liquidation, a debtor who has notice of the transfer is not -justified in making a settlement with any one else. And if he should -do so, the liquidator could require him to pay again to himself.</p> - -<br /> - -<p><b>Patent.</b>—In the United States the thing patentable is a new and -useful art, machine, manufacture or composition of matter, or new and -useful improvement thereof, or new, original and ornamental design for -an article of manufacture. An idea, principle or law of nature is not -patentable, but only <span class='pagenum'><a name="Page_203" id="Page_203">[203]</a></span>the means for utilizing the idea or principle. -Many a great discovery has slipped away from the inventor or -discoverer, because he sought to hold the discovery or invention of -the principle as his own, instead of limiting his claim to the means -or methods of putting his principle into use. Morse's invention of -telegraphy is one of them. An art or process is patentable as well as -machinery, though the inventor may not know the abstract principles -involved in his art. But he must know and describe the steps by which -the result is accomplished. A composition of matter is a mechanical -mixture or chemical combination of two or more substances; and an -improvement is an addition to, or change in, a known art, machine, -manufacture or composition of matter, which produces a useful result -and is patentable if it amounts to invention. Lastly "a patentable -design may consist of a new and ornamental shape given to an article -of manufacture, or of an ornamentation to be placed upon an article of -old shape." It is said that the law relating to this subject intends -that the patentability of a design shall be determined by its appeal -to the eyes of the ordinary man, and not to the eyes of a jury of -artists. Design patents are granted for different periods, three years -and a half, seven years and fourteen years, as the applicant may -elect.</p> - -<p>The subject matter of a patent must be new and useful. It must be new -not only to the patentee, but to all the people in this country, and -at the time he filed his invention. The federal law, however, secures -a patentee who had no knowledge that his invention had been discovered -abroad and which had not been patented there, nor described in a -printed publication. Before the enactment of this law a patent was not -granted without showing <span class='pagenum'><a name="Page_204" id="Page_204">[204]</a></span>that the applicant was the original inventor -with relation to every part of the world.</p> - -<p>Much has been said concerning the novelty of an invention. This may be -in the use of an old means in a new way; or a change of shape or form -to produce new functions and results, but the changes must amount to -invention, which is more than mere novelty.</p> - -<p>A foreign patent in order to invalidate an American patent must -antedate the invention patented. A foreign patent exists as a patent -only as of the date when the invention was published. In England an -invention is not patented within the meaning of the act of Congress -until the enrollment of the complete specification.</p> - -<p>What is meant by a prior publication? It is a printed book, newspaper -or document of a public nature disclosing the invention intended and -actually employed for the purpose of informing the public. Publication -in a book of general circulation is sufficient; business catalogues or -circulars are not such publications as are meant in the law.</p> - -<p>To defeat a patent on the ground of want of novelty the proof of prior -use or knowledge must be convincing, sufficient to establish the fact -beyond a reasonable doubt. The recollection of one witness concerning -the peculiar construction of a piece of machinery, especially if the -structure is one of complex character, is not enough evidence to -defeat a patent. Much less evidence, however, might be sufficient to -prove that a very simple invention had been anticipated.</p> - -<p>To justify the granting of a patent it must be useful. If the -invention be frivolous or pernicious, the inventor cannot secure for -it legal protection. <span class='pagenum'><a name="Page_205" id="Page_205">[205]</a></span>The use of the invention must not be contrary to -public health or morals. It is not needful that the invention should -be the best of its kind, or that it should accomplish all that the -inventor claims for it. Furthermore, its utility depends on the state -of the art at the time of making the claim or issuing the patent; its -subsequent inutility does not invalidate the patent. Extensive use is -evidence of utility. The presumption of law favors a patent, and the -burden of proof is on the one attacking it to show that it is not -useful. The infringement of an invention is in effect an admission of -utility, because use implies utility.</p> - -<p>A patent also calls for the exercise of inventive power. Though -invention must be seen in every patent, it is difficult to define. -Says a former commissioner of patents, Justice Duell: "It is a matter -resting in judgment and therefore no fixed rule for its determination -is possible." Some principles, however, assist in defining the term. -"Thus, it is declared that an act of invention is primarily mental and -involves the conception or mental construction of a means not -previously known for accomplishing a useful result. It is not the mere -adaptation of old means by common reasoning, but is the construction -of new means through an exercise of the creative faculties of the -mind." Between invention and discovery the patent laws draw no -distinction. Again, it has been often said that the design of the -patent laws is to reward those who make a substantial invention or -discovery, which is an additional step in the useful arts. The law -never intended to grant a monopoly for every trifling device which -would naturally occur to a skilled mechanic in the ordinary progress -of manufacture.</p> - -<p><span class='pagenum'><a name="Page_206" id="Page_206">[206]</a></span>An article of manufacture is not patentable because means have been -devised to make it more perfectly than before; it must be new in -itself and not merely in its workmanship. A machine-made article -therefore is not patentable simply because it is thus made, and no -longer by hand.</p> - -<p>The substitution of an art, manufacture, or composition of matter of -one element or device for another which does the same thing in the -same way and accomplishes a similar result is not invention. Even if -the substituted part performs the function better, there is no -patentable invention unless some new function or result is secured. -Changes therefore of the relative location of parts without changing -the functions performed by them are not an invention, nor is the -omission of a part with a corresponding omission of function.</p> - -<p>A patent can issue only to the inventor, or if he is dead to his -executor or administrator. If there be two original inventors the one -who first made it or brought it to this country is entitled to a -patent. A patent granted on the application of a non-inventor is void. -By first inventor is meant the one who first had a mental conception -of the invention provided he exercised diligence in perfecting it. If -there be a rival claimant the party who first reduced to practice the -invention was, until the contrary fact is shown, the first inventor. -One who merely utilizes the ideas of others is not an original -inventor and is not entitled to a patent. In the United States any -person, regardless of residence, citizenship or age may obtain a -patent.</p> - -<p>An invention is reduced to practice when it is so far perfected that -it may be put into practical and successful use. The machine may not -be <span class='pagenum'><a name="Page_207" id="Page_207">[207]</a></span>perfectly constructed, but it embodies all the essential elements -of the invention. Demonstration of its success by actual use is -usually necessary, but not always. The reduction to practice must be -by the applicant for a patent, or by his agent; to do this by a third -party will not suffice. The person who first conceived the invention, -but was later than his rival in reducing it to practice, is not -regarded as the first inventor unless he exercised due diligence to -perfect his invention after the time that his rival entered the field -against him.</p> - -<p>Two or more parties may contribute in developing an idea and producing -an invention, which is truly the result of their joint mental efforts, -and not the separate invention of either. In such case both must apply -for the patent, which is granted to them jointly. But if a patent is -thus issued to two and only one of them is the inventor, the patent is -invalid. Nor can one of two joint inventors make application and -secure the patent on assignment from the other; both must join.</p> - -<p>The patent must issue on the application of and in the name of the -real inventor even though he was employed to make it for the benefit -of another. Notwithstanding, the employer is the owner of the patent -and may compel the patentee to transfer it to him. Of course their -respective rights may be changed by agreement. If no agreement exists, -a company that employs a skilled workman to make improvements on its -machinery is not entitled to the patents granted to the workman. Says -Justice Duell: "An employee, performing all the duties assigned to him -in his department of service, may exercise his inventive faculties in -any direction he chooses with the assurance that whatever invention he -may thus conceive and perfect is his individual <span class='pagenum'><a name="Page_208" id="Page_208">[208]</a></span>property. The -company, however, has an implied license to make, use and sell the -invention."</p> - -<p>Where a party employs another to assist him in perfecting an invention -the presumption is that the employer is the real inventor of the thing -produced by their joint effort. On the other hand, where a person is -employed to exercise his inventive skill, because he is known to be -the possessor of it, Edison for example, the presumption is in favor -of the employee. Government employees may secure patents on inventions -made by them during their employment, after their relationship has -ceased. The government may have an implied license to use the -invention without any title thereto.</p> - -<p>Patents may be issued and reissued to assignees on the application of -inventors. On the death of an inventor before a patent has been issued -to him, his executor or administrator may apply therefor, who takes -the patent in trust for the heirs. A foreign executor or administrator -may make a similar application. He must, however, present a proper -certificate of his authority to act. Likewise, a legally appointed -guardian or conservator of an insane inventor may apply for and obtain -a patent in trust for him.</p> - -<p>The inventor must apply to the commissioner of patents for letters -patent which secure to him his invention. The application comprises a -petition, specification, claims, oath, drawings if the nature of the -invention may be thus shown, and a model, when this is required by the -patent office. A fee of fifteen dollars also must be sent with the -papers. The application must be signed by the inventor and two -witnesses.</p> - -<p>The specification is the written description of the invention and of -the manner and process of making, <span class='pagenum'><a name="Page_209" id="Page_209">[209]</a></span>constructing, compounding, and -using the invention; whatever it may be. He must describe not merely -the principle of the invention, but the mode of applying it in such a -clear, intelligible manner that those who are "skilled in the art" -can, without other aid, use the invention. Nothing should be left to -experiment. The phrase "skilled in the art" means persons of ordinary -skill. Whether a description is clear, exact and sufficient is a -question for the jury whenever it is a matter of legal contention.</p> - -<p>In describing an improvement the same rule is applied. The description -should show clearly the nature of it. The description should -distinguish between the old and the new. "A description in a patent -for an improvement is sufficient if a practical mechanic acquainted -with the construction of the old machine in which the improvement is -made, can, with the aid of the patent and diagram, adopt the -improvement." If an inventor intentionally conceals facts or misleads -the public by an erroneous description, his patent is void.</p> - -<p>Concerning the claim or claims with which the inventor concludes his -specification many questions have arisen. First, the claim must be -clearly stated so that the public may know what it is. The claim -should not be too broad. Several claims may be made, but they should -not be varying phraseology for the same thing. They should state the -physical structure or elements of mechanism by which the end or result -is produced.</p> - -<p>The inventor must make oath that he believes himself to be the -original and first inventor, that he does not believe that the thing -was ever before known or used, and as to his citizenship. If dead <span class='pagenum'><a name="Page_210" id="Page_210">[210]</a></span>or -insane, the oath must be made by his executor, administrator, or other -representative. After the application is granted another fee of twenty -dollars must be paid.</p> - -<p>The commissioner of patents must make an examination for the purpose -of deciding whether a patent may be granted or allowed. This -examination is made by an examiner, whose decision, however, is not -conclusive and may be set aside by the commissioner. The patent office -is not confined to technical evidence in rejecting applications, but -may base its action on anything disclosing the facts relating to the -matter.</p> - -<p>When objection is made to the form of the application, an amendment -may be made by the applicant or his attorney to correct the error; and -this may be done at any time prior to the entry by the first examiner -of a final order of rejection, and within one year from the date of -the preceding action by the patent office.</p> - -<p>When two parties apply for a patent for substantially the same thing -an interference is declared and the respective parties must present -proofs in support of their claims. The question between them is -priority of invention. The proceeding then is much like an equity -trial with perhaps a wider latitude in admitting evidence bearing on -the inquiry.</p> - -<p>The applicant, if dissatisfied with the rejection of his claim by the -first examiner, or with the decision in an interference case, can -appeal to the board of the examiners-in-chief, and if dissatisfied -with their decision he may appeal to the commissioner in person, and -if still dissatisfied he can appeal to the Court of Appeals of the -District of Columbia. All appeals must be taken from the patent office -within <span class='pagenum'><a name="Page_211" id="Page_211">[211]</a></span>a year, or a shorter period, if one has been fixed in a -decision.</p> - -<p>The decision of the commissioner of patents in granting a patent is -not conclusive that the inventor is the first and original inventor, -but only prima facie, that is, in the absence of other evidence to the -contrary. Consequently, the question of patentability in every case -may be reexamined in the courts. In the early days of administering -the patent law an inventor often applied to a court for an injunction -to prevent an infringer from continuing his work. The court, assuming -that the patent had been properly granted, did not hesitate, on -adequate proof of the infringement to grant the injunction. The courts -were not slow in finding out that patents were sometimes granted that -ought not to have been, and so the practice was changed and patentees -were required to establish their right to a patent in a court of law -before a court would enjoin an infringer, except in very clear cases. -These hearings in the courts to decide the claims of patentees, are -often prolonged, running through years to collect testimony, and are -appealed from one court to another finally reaching the supreme -federal tribunal. After a patent is thus judicially established -injunctions are readily granted against all infringers.</p> - -<br /> - -<p><b>Payment.</b>—In making payment the parties to an agreement always have -in mind cash, unless they otherwise agree. Not every kind of money can -be used, nor only in limited amounts. Thus, if one owed another a -thousand dollars he could not deliver to him, unless he were willing -to accept them, one thousand silver dollar pieces, but only ten of -them. Nor can a debtor compel his creditor <span class='pagenum'><a name="Page_212" id="Page_212">[212]</a></span>to receive one cent and -five cent pieces to a greater amount than twenty-five cents. National -bank notes may be paid or tendered to the government, and by one bank -to another, yet they may be refused by an individual in payment of his -debt. It is important, when one owes another and there is a dispute -over the amount, that the debtor should tender or offer to pay his -creditor the proper kind of money, because should he offer him some -other kind, national bank notes for example instead of United States -notes, or those issued by the federal reserve bank, and he declined to -take them and should afterwards sue his debtor for the amount, the -latter's offer to pay in national bank notes would be regarded as no -payment, or even offer of payment.</p> - -<p>A note or check given for a bill of goods is not payment. In everyday -affairs a check is thus given and received, in fact it is only a -payment conditioned on payment of the check. Consequently if it is not -paid, the creditor can sue to recover on the check, or for the -original goods as he might elect. In most cases he would ignore the -check and sue for the original bill. Suppose some one had endorsed the -maker's check, then the creditor would probably sue on that in order -to hold both parties.</p> - -<p>Does a debtor who turns over a note to his creditor in payment, -thereby cancel the debt? If he does not, of course the creditor can -still sue the debtor; but if he turned the note over in actual -payment, then his right to sue his debtor is gone. What was the -intention of the two parties? This is a question of fact to be -ascertained like any other.</p> - -<p>How shall the money be applied of one who owes several debts to the -same person and makes a general payment? The debtor can make the -<span class='pagenum'><a name="Page_213" id="Page_213">[213]</a></span>application, if he does not, the creditor can do so; if neither does -this, then the law applies it, first to the payment of interest that -may be due on any of the debts, and the balance left, should there be -any, to the payment of the principal. Of several debts the law applies -it to the oldest debt. Again, if there is a surety for any of the -debts, he may insist on the application of the money in order to be -relieved.</p> - -<p>If a depositor in a bank has made a note payable there this is -regarded very much like a check, it is a direction to the bank to pay -it, especially by the Negotiable Instruments law. Unless the maker of -a note is insolvent, a bank can never pay the unmatured note of a -depositor. Nor can a bank apply a deposit, which is known to be trust -money, or belonging to another person than the depositor to the -payment of his note. Generally a bank declines to pay a note that is -overdue though there is no law, except in a few states, against paying -it should the bank decide to do so. In all cases a depositor may make -any application of his deposit he desires, for it is his own and the -bank cannot divert it in any way against his direction.</p> - -<p>A receipt taken in payment of a debt is not conclusive evidence of -payment and may be contradicted by other evidence, though it is -regarded on its face as payment. When received, a receipt should be -kept for at least six years, because it is such strong evidence of -payment. After that period the statutes of limitation in most states -have the effect of canceling a debt, on the theory or presumption that -it has been paid. If the debtor afterward promises to pay, his new -promise is valid though there is no consideration therefor, and he is -legally required to pay the debt.</p> - -<p>Should a receipt also contain any other statement <span class='pagenum'><a name="Page_214" id="Page_214">[214]</a></span>or contract beside -the payment of money, this would have the same effect as any other -contract between the parties, and would be equally binding on them.</p> - -<p>The effect of a seal after the receiptor's name may be explained in -this connection. A sued B and C for a debt. Before trial he gave C a -receipt stating that if he did not recover from B he would -nevertheless not hold C liable. Having failed in his suit against B, -he sought to hold C notwithstanding his receipt releasing him. And he -succeeded for the reason that his release was given without -consideration and therefore was worthless. Had A added after his name -a seal this would have imported or implied a consideration and the -receipt would have been an effective release.</p> - -<br /> - -<p><b>Prescriptive rights.</b>—A person may gain rights in the land of -another by acting in such a way as to indicate that he clearly makes a -claim to them. Thus, if a man goes over the land of another in the -same direction to his own land for a period of fifteen years or -longer, the period differing in the several states, he acquires the -right to continue, in other words he acquires a permanent right of way -by such action. As such a right is contrary to the interest of -another, it cannot be gained against a person who is incapable of -preventing the acquisition of such a right if he pleases. Such a -right, therefore, cannot be gained against a minor, nor an insane -person, nor any one who is incapable of defending his possessions.</p> - -<p>Whether the right has been fully acquired is not always easily -determined. Suppose one claims a right of way over another's land, and -the right is disputed. How often has he traveled that way? <span class='pagenum'><a name="Page_215" id="Page_215">[215]</a></span>Has the -other person known of his going and said nothing? Again, suppose a man -sells another a piece of his farm away from a road, the law presumes -that he intended to grant or permit the buyer to have ingress and -egress to his land, otherwise he would not have purchased. This is -called a way of necessity. Can the purchaser choose any outlet he -pleases? The law says he must exercise reasonable discretion in making -his selection.</p> - -<p>When a way has been acquired by such use, the law is strict in -confining the gainer in the use of it. Thus A buys a piece of land of -another for the purpose of erecting a house thereon. The use of the -way thereto must be confined to A and his family, friends and those -who come to see him on business. Suppose A should decide to divide it -into building lots, which would require a greatly increased use of the -way. This could not be done without a new agreement with the seller. -Again, a tenant cannot by any use of the land acquire a right therein -that will continue beyond his lease. If he had a long lease, say -thirty years, and could gain a prescriptive right by an adverse use of -fifteen or twenty years, he would, if gaining any prescriptive rights, -be obliged to give them up at the end of his tenancy. In claiming a -right of way the use need not be exclusive. Other persons may also use -the way with the same claim of right.</p> - -<p>The owner of land has no natural right to light or air and cannot -complain that either has been cut off by the erection of buildings on -adjoining land. He may, however, acquire, by grant or some other way, -a right to have light and air enter a particular window, or other -place, without interruption by the owner of adjacent land. Nor can he -acquire a right to light and air across another's <span class='pagenum'><a name="Page_216" id="Page_216">[216]</a></span>land for his own -house by simply erecting it on the edge of his own land while the -adjoining land is unoccupied. To erect windows on that side is not an -adverse use of the land adjoining. But a person may gain a right to -light and air by presumption, and if one has acquired the right to -maintain a window in a specified place he loses his right by closing -it up and opening another of a different size in another place. And -the same thing happens to one who tears down his house and builds a -new one with windows of the same size and in the same places as in the -old one. A person cannot maintain an action against another for -cutting off his view unless the right has been expressly acquired.</p> - -<p>The general rule with respect to the use of water is, any person -through whose land flows a stream may use it in a reasonable manner. -What is such a use has occasioned many a legal dispute, especially -among mill owners. Each one of them located on a stream may use the -water, but can they hold it back for any length of time? As a general -rule this can be done for a short time in order to get the use of the -power, if they could not, the water could run to waste and no one -would derive any benefit. Again, can any diversion be made of it? Any -use, almost, is a diversion. If one used water even to supply his -cattle, it would be a diversion, yet such a use ordinarily is lawful. -Suppose one had a very large herd, then the use might be excessive -especially in view of the needs of other users on the stream. A still -more important question has arisen of late concerning the fouling of -water. Has a factory the right of putting its dyestuffs into the -water, impairing its quality and rendering it unfit for use by all -below? This cannot be legally done. Can a stream be used as a sewer? -Naturally all the water in a valley <span class='pagenum'><a name="Page_217" id="Page_217">[217]</a></span>flows downward and at last -reaches a stream running through it. As population increases the use -of streams becomes greater, and questions concerning their use more -difficult.</p> - -<p>Suppose a land owner on the hillside wishes to use all the surplus -water, can he gather it and thus prevent its flowing to the land -below? He can. Can he build ditches or other obstructions whereby he -can collect the water and pass it to the land below in other than the -natural way? He cannot. On the other hand, the lower proprietor can, -if he pleases, make an embankment that will prevent the water from -coming upon his land. This, though, is not the law everywhere.</p> - -<p>The owners of a well may prevent its overflow and thereby cut off -water that formerly ran into a stream. But the owner of a spring that -flows into the land of another cannot change its course, nor exhaust -the water, nor pollute it to the injury of another. Nor can surface -water be changed into a water course by impounding it. On the other -hand this rule does not apply to water or springs beneath the surface. -If in digging a well the source of supply to another is cut off, it is -a loss for which there is no redress, unless the well has been dug -maliciously. But where percolating water abounds and is obtained by -artesian wells a land owner has no right to sink wells on his land and -draw off the water supply of his neighbor. The right to cut ice is a -natural one, and the owner of a lake or stream may cut a reasonable -quantity, but not enough to diminish the water appreciably to the -lower proprietor.</p> - -<p>While a person has the natural right also to the lateral support of -his land, yet he cannot use it to the injury of another. This is a -legal maxim. If, <span class='pagenum'><a name="Page_218" id="Page_218">[218]</a></span>therefore, he should excavate to the edge of his -land and his neighbor's building should in consequence fall down, -would he be without redress? The rule is, the excavation must be made -in a reasonable manner. This is a question of fact in every -controversy of the kind. The owner of land adjoining a highway has no -right to the lateral support of the soil of the street. Therefore, if -the grade of a street were lowered by proper authority and one's house -located by the side of it should fall, he would have no redress -against the city or other public body.</p> - -<br /> - -<p><b>Quasi Contracts.</b>—A quasi contract is a legal obligation arising -without the assent of one from the receipt of a benefit which, if -retained, would be unjust. The law therefore compels him to make -restitution. He is required to do this, not because he has promised to -make restitution, but because he has received a benefit which he -cannot justly retain.</p> - -<p>If one at the time of conferring a benefit on another confers it as a -gift, it cannot afterward be claimed that the gift was conferred -relying on a supposed contract. Consequently, though the donor's -intention may be subsequently altered, no obligation to make -restitution will arise. Nor does the failure of the donee to -reciprocate the donor's generosity or indirectly reward him, create -any right or claim on the donor's part to a return from the donee.</p> - -<p>Where one, in the preservation of his own property or the promotion of -his own interests, bestows some incidental advantage to another, there -is no legal obligation to pay for the value of it. Thus the owner of -the lower part of a house is not liable for the advantage resulting to -him from the <span class='pagenum'><a name="Page_219" id="Page_219">[219]</a></span>repair of the roof by the owner of the upper part and -roof. Nor is one who has thickened and strengthened that part of an -ancient party wall which is on his own land, in order to sustain the -building he is erecting, entitled to recover from the adjoining owner -who used the wall. Nor can anything be recovered from the owner of a -vessel by the underwriters who had her docked for repairs though by -such docking the owner gained an important benefit. Nor can one who in -pumping out his quarry frees another quarry from water recover -anything for the service. Nor can one who is benefited by experiments -made by another to test the value of patented inventions, in which -both are interested, be legally required to pay for the benefit he has -received.</p> - -<p>As no expectation of payment does presumptively arise when services -are rendered by one member of a family to another member, one who -claims payment for them must prove that they were not rendered as a -gratuity, but on the legal supposition that he had a right to -compensation.</p> - -<p>One who knows or who has reason to believe that compensation is -expected for goods or services tendered to him ought not to accept -them unless he intends to pay for them. If he does his act of -acceptance will be regarded as a promise of payment, and can be -enforced. But if one accepts goods or services without knowledge or -reason to believe that compensation will be expected, what then? -Suppose A sends a barrel of apples to B supposing, from their previous -course of dealing, that B will return them if he does not want them? B -should either return them or pay. Suppose B is misinformed and learns -that A is giving a barrel of apples to each of his customers? Then he -would <span class='pagenum'><a name="Page_220" id="Page_220">[220]</a></span>be justified in keeping them until he learned the truth.</p> - -<p>If, in making a contract it is taken for granted by both parties that -a certain fact exists, which, if not existing, would make the contract -impossible of execution, the contract is void. Thus, in contracts for -the sale of specific personal property, its existence at the time of -the sale is generally assumed. If the property has perished or been -destroyed, the contract is void. The same rule has been applied to the -sale of non-existent reality, of the transfer of void or spurious -securities, of the assignment of a void lease. In all these cases the -money paid in misreliance on the void contract is recoverable.</p> - -<p>Premiums paid on a policy of marine insurance by one who in reality -had no goods on board, or for a voyage that was never begun, may be -recovered. The existence of a risk is assumed by both parties, in fact -there is no risk, consequently there was nothing to which the contract -of insurance related.</p> - -<p>"A promise," says Woodward, "which is so general or indefinite that it -does not enable the courts to determine the nature and extent of the -obligation assumed must be regarded as no promise at all. Such has -been the fate of a promise to pay good wages; a promise to convey a -hundred acres of land, the land not being described; a promise to -divide profits, no rate of division being indicated. Instances might -be multiplied. A benefit conferred, in the honest, though mistaken, -belief that such a promise is binding ought in justice to be restored. -Restitution is accordingly enforced."</p> - -<p>The law requires some kinds of contracts to be executed in a -particular manner. Thus, by statute, many municipalities can make -contracts, or those of a particular kind, only on sealed bids or -proposals <span class='pagenum'><a name="Page_221" id="Page_221">[221]</a></span>and after proper advertising for bids, etc. If these things -are not done, the contract made in disregard of them is invalid. The -courts of this country have got into deep confusion in applying this -rule to private corporations. Suppose a corporation makes a loan -without proper authority and receives the money, can the lender -recover it? The corporation had no right to borrow, of this the lender -knew as well as the borrower. Both parties are in the wrong. The -highest court in this country has been more consistent than many of -the state courts, and holds that a contract it cannot make for lack of -legal power is not made and cannot be ratified. "No performance on -either side can give the unlawful contract any validity, or be the -foundation of any right of action upon it." Nevertheless though a -contract is unlawful and void because the corporation was unable to -make it, a court strives to do justice between the parties by -permitting property or money, parted with on faith of the unlawful -contract, to be recovered back, or compensation to be made therefor.</p> - -<p>The lack of another legal requirement in making contracts gives rise -to serious consequences. We have learned that the Statute of Frauds -requires for the validity of many contracts that a memorandum of them -be made in writing and signed by one or both contracting parties. By -English law the statute provides a rule of evidence, that a writing -must be shown as proof of a contract before the courts will consider -it as having been made; by some of the American courts a contract that -does not meet the requirements of the statute is held to be void; by -other courts they declare that though the contract is not void it -cannot be enforced.</p> - -<p>While the Statute of Frauds in some states is <span class='pagenum'><a name="Page_222" id="Page_222">[222]</a></span>regarded as completely -nullifying contracts not conforming to its requirements, they are not -anywhere held to be illegal, that is, are not made in violation of -law. "There appears," says Woodward, "to be no reason of policy, -therefore, for denying to a party thereto in a proper case, the aid of -the court in obtaining quasi contractual relief, or the right to -establish the justice of his quasi contractual demand by proving the -terms of the unenforceable agreement. True, the evidence of the -agreement in such a case, must be oral; but since the evidence is for -the purpose of proving, not a contract as such, but a transaction -resulting in an unjust benefit to the defendant, its introduction -would seem not to contravene the statute."</p> - -<p>A purchaser of land under an oral contract, who is given possession -and subsequently fails to pay, is liable for the use of the land to -him while he has occupied it. Though the act of the seller in giving -the purchaser possession without conveying the title may not be -regarded as a part performance of the contract of sale, yet the -benefit resulting to the purchaser creates an obligation to make -restitution which the courts will enforce. The improvement of land by -the purchaser under an oral contract is an act which enables him to -enforce the contract in equity. Improvements made by a lessee under an -oral lease within the statute are governed by the same rules as those -of improvements made by a purchaser.</p> - -<p>If no benefit has been derived from the contract, nothing can be -recovered. Thus, a son worked for his father on his father's farm -under an unenforceable contract with his uncle. The latter was under -no quasi contractual obligation to pay the value of such service, -since he had derived no benefit from <span class='pagenum'><a name="Page_223" id="Page_223">[223]</a></span>them. Likewise one who, relying -on an unenforceable contract, constructed a wood-chopping machine that -was not accepted could not recover for the value of his labor and -materials.</p> - -<p>Again, where one party by his own act or default has prevented the -other party from fully performing his contract, the party thus -preventing performance cannot take advantage of his own act or -default, and screen himself from payment for what has been done under -the contract. Thus, if one party agrees with another to work on a -house the law implies that the employee owns the building in which the -work is to be done. This is a part of the contract whether the house -is clearly specified or not. Therefore, an employer who does not own -the house, or parts with it before the work is completed, is liable to -the other party.</p> - -<p>The destruction of a thing in the course of alteration or repair -without the fault of the bailee is a case like that above mentioned. -The labor and materials are expended in response to the desire of the -owner of the property, and therefore it is just that he should pay for -the property he destroyed. In one of the old cases a horse was sent to -a farrier to be cured and was burnt before a cure was completely -effected. Nevertheless, the farrier was entitled to payment for what -he had done. Likewise, the owner of a ship that is destroyed by fire a -few hours before the completion of repairs, cannot escape payment on -the ground that he has reaped no advantage.</p> - -<p>As the illness or death of a contractor does not, like fire or -shipwreck, deprive the other party of the fruits of what has been -already done, the benefit resulting to him is more obvious, and the -element of hardship is wanting that appears in many of the <span class='pagenum'><a name="Page_224" id="Page_224">[224]</a></span>cases. The -value of his services or the materials he may have used may therefore -be recovered. In one of the cases A agreed that he and his wife should -live in B's house and maintain him for life. As A's wife died the -contract could not be performed. Nevertheless, A recovered the value -of the service he had rendered to B during the lifetime of his wife.</p> - -<p>Wagering contracts either by statute or judicial decision are illegal -and void in most or all the states. In many of them the statute -permits the recovery of the money from the stakeholder or the winner. -Payment over to the winner after notice or demand by the loser is not -a good defense in an action against the stakeholder. Again, the winner -is liable who, when receiving the money, knows that the stakeholder -has been notified not to pay it over, or has received notice not to -take it.</p> - -<p>The legality of contracts made or to be performed on Sunday is -determined generally by statute. Generally, when a contract is made on -Sunday, or is fully performed on both sides, the money paid or other -thing done in execution of it cannot be recovered. Again, one who is -induced by fraudulent representations to enter into a contract which -is in violation of a Sunday law is not so much in the wrong as the -other, and consequently may recover a benefit he has conferred on the -other party in performing the contract.</p> - -<p>If a member of a firm gives a promissory note signed by the -partnership name, for a debt of his own, which his partner is -compelled to pay, he may recover the money from the other. So, if a -carrier by mistake delivered goods to the wrong person who keeps them, -and the carrier is obliged to pay for their value, he can recover the -amount of the other person who thus wrongfully keeps them.</p> - -<p><span class='pagenum'><a name="Page_225" id="Page_225">[225]</a></span>Whenever a person makes a payment to another under such a mistake of -the material facts as to create a belief in the existence of a -liability which does not really exist, the money may be recovered -back. Such an obligation arises where money is paid as due on the -basis of erroneous accounts, and on a true statement of account is -found not to have been due. A voluntary payment with knowledge of all -the facts cannot be recovered, even though there may have been no -obligation to pay.</p> - -<p>A person cannot recover money paid under a mistake of fact who has -received the equivalent for which he bargained, because there is no -failure of consideration. Nor is the fact immaterial that he need not, -and would not have made the payment had he known the true state of -things. A bank, for example, that pays the check of a depositor under -the erroneous belief that it has sufficient funds, may not recover -from the payee the excess to the depositor's credit. But if the -purchaser of goods has paid the price, and the seller fails to deliver -them, the purchaser may recover his money. And in any case, a person -who has paid money under an agreement which he may rescind and does -so, because there was a failure of consideration, may recover what he -has paid. An action will lie against a person who sells goods as his -own, but which do not belong to him, whenever the real owner claims -them from the purchaser. In like manner an action will lie against a -person who sells bills, notes, bonds, stock or other securities which -prove to be worthless, or against a person who agrees to transfer the -title to land which, for lack of title or other reason, cannot pass.</p> - -<p>As a rule, the consideration of a contract must totally fail to -entitle a person to recover back the <span class='pagenum'><a name="Page_226" id="Page_226">[226]</a></span>money he has paid. If the -consideration has only partly failed, the remedy, if there is any, is -for a breach of the contract, and not to recover back the money he has -paid. Thus, if an article is sold with a warranty of its quality, and -it is not worthless, his remedy is an action to recover damages for a -breach of the warranty, and not an action to recover back the money -paid for the thing purchased.</p> - -<p>A liability cannot be imposed on a person without his act or consent. -One man cannot force a benefit on another without his knowledge or -consent, and then compel him to pay for it. "If a person," says Clark, -"intentionally and knowingly performs services for another or -otherwise confers a benefit on him without his knowledge, so that he -has no opportunity to refuse the benefit, the law will not create a -liability to pay for it. So, where a person supplies another with -goods, the latter supposing that he is being supplied by another -person with whom he had contracted for the goods, the law will not -even imply a promise to pay for the goods." Where benefits are -conferred by one person on another under such circumstances as to -raise no promise in fact or in law to pay for them, he may, -nevertheless, become liable by retaining them. Thus, if a person were -to receive goods from another reasonably but mistakenly believing them -to be intended as a gift, and, after learning of his mistake, should -retain them, when he might return them, or if he should receive part -of the goods purchased from another, and retain them after failure of -the latter to supply the rest of the goods, the law would compel him -to pay for them. And the same rule applies where benefits are in any -other way received under such circumstances as to create no -contractual obligation, and are retained when they should in <span class='pagenum'><a name="Page_227" id="Page_227">[227]</a></span>justice -be returned. If, however, the benefits thus received are incapable of -being returned, as where they consist of services, or of materials -which have been used in repairing a house, no liability is created.</p> - -<br /> - -<p><b>Sale.</b>—By a contract to sell goods the seller agrees to transfer the -property in them to the buyer for a consideration called the price. -There is an important distinction between a contract to sell in the -future and a present sale. The first is called an executory, the other -an executed, sale. If the goods are to be transferred, there is an -executed sale even though the price is not to be paid at the same -time. But if the price is paid, and the goods are not then to pass, -the transaction is a contract to sell, or an executory sale. Both -kinds of sales may be by deed or sealed contract as well as by parol -or orally.</p> - -<p>Sales and contracts to sell are based on mutual assent, the intent, -therefore, of the parties fixes the nature and terms of the bargain. -If the offerer understood the transaction to differ from that which -his words plainly expressed, it is immaterial, "as his obligation must -be measured by his overt acts." Thus, if an offer to buy or sell is -sent by telegraph, and is improperly transmitted by the telegraph -company, an acceptance by the offeree creates a binding bargain. By -using the telegraph as an agency of communication, the offerer makes -himself responsible for the offer actually delivered. Of course the -telegraph company would be responsible to the offerer for any damage -he may have suffered unless relieved by some neglect or fault of the -sender of the message.</p> - -<p>A contract of sale may be conditional, for example, that the property -shall not be transferred until the price is paid. Though the property -is <span class='pagenum'><a name="Page_228" id="Page_228">[228]</a></span>transferred by the sale, promises or obligations may still be -unperformed by the seller. Or the transfer of the title may be -conditional on payment of the price. In such sales the goods are -delivered to the buyer, but the title is retained by the seller until -payment.</p> - -<p>The capacity to buy and sell is regulated by the general law -concerning the capacity to contract, transfer and acquire property. -When necessaries are sold and delivered to a minor, or to an insane or -drunken person, or to a married woman, who is lacking in mental -capacity to make a contract, he must, by the general Sales Act, pay a -reasonable price therefor. Necessary goods by this act mean those -suitable to the condition of the life of the minor or other persons -above mentioned at the time of their purchase and delivery.</p> - -<p>As we have seen (See <i>Minor</i>) a minor may avoid his contracts. The -right to do this is given for his protection, and should not be -stretched beyond his needs. Therefore the right is confined to himself -or his legal representatives. Neither creditors, nor trustees, nor -assignees in bankruptcy can do this, but his heirs can do this, and -probably his guardian. By the common law a purchaser for value who did -not know that the seller bought them of a minor could not retain them -if the minor wished to reclaim them as his own. This rule has been -changed by the Sales Act, and a bona fide purchaser is therefore safe -in purchasing such goods even though the seller did buy them from a -minor.</p> - -<p>As a minor may disaffirm his contract, any act clearly showing this -intent is sufficient. "It was early settled," says Williston, "that an -infant's conveyance of realty could be avoided only after he attained -his majority. In the case of personal <span class='pagenum'><a name="Page_229" id="Page_229">[229]</a></span>property a sale may be avoided -during his minority by an infant seller or buyer. Though an infant may -thus avoid his sales, purchases or contracts during infancy, he can -make no effective ratification until he becomes of age, for an -infant's ratification clearly can be no more effective than his -original bargain."</p> - -<p>In the Sales Act the Statute of Frauds (See <i>Statute of Frauds</i>) has -been reënacted, and provides that in a sale or contract to sell goods -amounting to five hundred dollars or more, it cannot be enforced -unless the buyer shall accept a part of the goods, or give something -in earnest to bind the contract, or in part payment, or makes some -note or memorandum in writing of the sale which is signed by the party -or his agent against whom the other party seeks enforcement.</p> - -<p>This statute applies to a contract for goods that may be intended for -future delivery, but not to goods that are to be manufactured by the -seller especially for the buyer and are not suitable for sale to -others in the ordinary course of the seller's business.</p> - -<p>The Sales Act contains an important section relating to the sale of an -undivided share of goods. If the parties intend to effect a present -sale, the buyer becomes an owner in common with the owner of the -remaining shares. How important is this section may be easily learned. -The grain of many owners is often mingled in an elevator. It is -delivered to those who call for it, the kinds and quantities mentioned -in the receipts given to them at the times of storing it. The grain in -the elevator may be delivered many times before a particular depositor -makes his demand. The elevator company must keep on hand enough grain -to meet all <span class='pagenum'><a name="Page_230" id="Page_230">[230]</a></span>outstanding receipts. Each depositor thus retains title -to some portion of the grain in the elevator. The company is the -bailee with the power to change the bailor's separate ownership into -an ownership in common with others of a larger mass, and back again. -At any given moment all the holders of receipts for the grain are -tenants in common of the amount in store, each owning a share and all -owning the entire amount, each having the right to sell his share and -demand its separation and delivery in accordance with custom and the -terms of the receipt.</p> - -<p>When a party has specific goods which, without his knowledge, have -perished partly or wholly, the buyer may treat the sale as avoided, or -as transferring the property in all of the existing goods and as -binding him to pay the full agreed price if the sale was indivisible, -or if divisible the agreed price for the goods in which the property -passes. One can readily imagine trouble when none of the goods have -been destroyed but all are in a condition inferior to that supposed at -the time of the bargain. In such a case the "only question is whether -the article has been so far destroyed as no longer to answer the -description of it given by the contract."</p> - -<p>The price may be fixed by the contract or in such a manner as the -parties may agree, and may be made payable in personal or real -property. When the price is not determined in the way mentioned in the -Sales Act, the buyer must pay a reasonable price. This is a question -of fact in each case. Usually, the price, either in an executed sale -or in a contract to sell, is fixed by the parties at the time of -making the bargain. In the agreement to sell there must be a -consideration on both sides to sustain it. Sometimes the parties agree -that the amount of the price shall vary according to the happening, or -failure to <span class='pagenum'><a name="Page_231" id="Page_231">[231]</a></span>happen, of a future event. Such a contract may be a wager, -which is forbidden by law, or it may be legal, as we shall soon learn. -Whenever no price has been fixed the law has established a rule, a -reasonable price. It is the intention and understanding of the parties -that a buyer who orders a barrel of flour from his grocer will pay a -reasonable price. Likewise a buyer who orders a carriage to be made -for him and says nothing about the price.</p> - -<p>What is a reasonable price? Generally the market price at the time and -place fixed by the contract or by law for delivering the goods, but -not always. Under unusual conditions the market price does not furnish -the only test. Said the court in one of these cases: a reasonable -price may or may not agree with the current price of the commodity at -the place of shipment at the precise time of making it. The current -price of the day may be highly unreasonable from accidental -circumstances, by the action of the seller himself in purposely -keeping back the supply.</p> - -<p>With respect to warranties the Sales Act provides that when the sale -is made on a condition which is not performed, the party for whose -benefit the condition was made may refuse to proceed with the contract -or sale, or may waive performance of the condition. The nonperformance -may be treated as a breach of warranty. Thus time may be an important -element in a contract, and an agreement to deliver goods by a -specified time is a condition or warranty. And if there is a delay in -delivering, unless it may be a trifling one, the buyer may refuse to -accept the goods.</p> - -<p>A common condition in more recent times qualifying the obligation of -the buyer is that the goods shall be satisfactory to him. By this is -<span class='pagenum'><a name="Page_232" id="Page_232">[232]</a></span>meant the satisfaction of the buyer after the exercise of an honest -judgment. In New York and some other states a somewhat different rule -prevails. Unless the things covered by the contract involve personal -taste, the contract imposes on the seller the requirement only that a -reasonable man would be satisfied with performing it, thus not leaving -the question of its satisfactory performance entirely to the buyer. -This, Williston says, is an arbitrary refusal of the court to enforce -the contract that the parties made and seems unwarranted.</p> - -<p>Warranties may be express or implied. By the Sales Act any affirmation -of fact or any promise by the seller relating to the goods is an -express warranty if the natural tendency of such affirmation or -promise is to induce the buyer to purchase the goods, and if the buyer -purchases the goods relying thereon.</p> - -<p>In a contract to sell or a sale, unless a contrary intention appears, -there is an implied warranty on the part of the seller that in the -case of a sale he has the right to sell the goods, also, in the case -of a contract to sell them, he will have the right to do this at the -time of passing the property. More briefly the seller warrants the -title to the property which is the subject of sale. Whether the seller -is in or out of possession of the property, he can by appropriate -words sell such interest as he may have therein. But persons also sell -property not owned by themselves by authority of others or of the law. -Unless they expressly warrant the title they are not liable for lack -of it. Sales of this nature are made by a sheriff, or other judicial -officer, auctioneer or mortgagee, assignee in bankruptcy, executor or -administrator, guardian, or simply an agent.</p> - -<p>When there is a contract to sell, or a sale of goods <span class='pagenum'><a name="Page_233" id="Page_233">[233]</a></span>by description, -there is an implied warranty that they shall correspond with the -description; and if the contract or sale is by sample, as well as by -description, it is not sufficient that the bulk of the goods -corresponds with the sample if these do not also correspond with the -description. The Sales Act contains elaborate provisions relating to -implied warranties of the quality of things sold. There is no implied -warranty of the quality or fitness of goods for any particular purpose -unless the buyer makes known to the seller the purpose for which they -are required, and he also relies on the seller's judgment of their -fitness for the use he intends to make of them. Again, if the buyer -has examined the goods there is no implied warranty of the defects -which such an examination ought to have revealed. An implied warranty -as to quality or fitness for a particular purpose may also be annexed -by the usage of trade. There is an implied warranty that the bulk -shall correspond with the sample in quality, and that the buyer shall -have a reasonable opportunity of comparing the bulk with the sample.</p> - -<p>When does the transfer of ownership occur? When there is an -unconditional contract to sell them the property therein passes to the -buyer on the making of the contract, regardless of the time of payment -or delivery or both. When goods are delivered to the buyer "on sale or -return," giving the buyer an option to return them instead of paying -the price, the property passes to the buyer on delivery, but the -property may go back to the seller by returning or tendering the goods -within the time specified in the contract. When the goods are -delivered to the buyer on approval or on trial or other similar terms, -the property passes to the buyer, <span class='pagenum'><a name="Page_234" id="Page_234">[234]</a></span>(1) when he signifies his approval -or acceptance of them, (2) or if he retains them beyond the time fixed -for their return, or if none has been fixed, beyond a reasonable time.</p> - -<p>It is the duty of the seller to deliver the goods, and of the buyer to -accept and pay for them, in accordance with the terms of the contract -of sale. Unless otherwise agreed, delivery of the goods and payment of -the price are concurrent conditions, the seller, therefore, must be -ready and willing to give possession of the goods to the buyer in -exchange for the price, and the buyer must be willing and ready to pay -the price in exchange for the possession of the goods.</p> - -<p>Whether it is for the buyer to take possession of the goods or for the -seller to send them to the buyer, is a question depending in each case -on the contract, express or implied, between the parties. Apart from -contract, or usage of trade to the contrary, the place of delivery is -the seller's place of business, if he have one, and if not, his -residence. Again, when by the contract of sale of goods no time for -sending them has been fixed, the seller must send them within a -reasonable time.</p> - -<p>Vast quantities of goods are bought and sent forward to buyers, which -are not to be delivered until payment. The Sales Act provides that -where goods are shipped and by the bill of lading that is given for -them they are to be delivered to the order of the buyer or of his -agents, but possession of the bill of lading is to be retained by the -seller or his agent, he thereby reserves his right to the possession -of the goods as against the buyer. Very often a buyer of wheat, for -example, will draw a bill of exchange on his principal or company -living in the place where the goods are to be delivered and will <span class='pagenum'><a name="Page_235" id="Page_235">[235]</a></span>have -it discounted by a bank using the money to pay the seller. The wheat -may be in an elevator, or it may be in transit. In either case the -bank receives a document, elevator receipt, or bill of lading, and -thus becomes the real owner of the wheat, and can control it afterward -until it is actually delivered to the consignee, whoever he may be. -This is the bank's security for making the loan. The bank sends -forward the bill of exchange to its correspondent bank in the place -where the consignee lives and the wheat is to be delivered with -instructions to deliver it when the bill is paid.</p> - -<p>With respect to speculative sales of stock, so well known by every -one, a contract, says Williston, giving one party or the other an -option to carry out the transaction or not at pleasure, is not a -wager, unless forbidden, as in some states is done by statute. A -contract to sell goods in the future, which the seller does not own at -the time is, aside from the statute, not only legal but common. "The -test," says Williston, "adopted in the absence of statute, -distinguishes between contracts to buy and sell in which the actual -delivery of the property is contemplated, and similar contracts in -which it is contemplated merely that a settlement shall be made -between the parties based on fluctuations in the market price. A -contract of the former kind is legal; one of the latter kind is a -wagering contract, and illegal."</p> - -<br /> - -<p><b>Shipping.</b>—The federal statutes require that every ship or vessel of -the United States shall be registered or enrolled in the office of the -collector of customs of the district that includes the home port of -the vessel. None but citizens of the United States can have their -vessels registered. <span class='pagenum'><a name="Page_236" id="Page_236">[236]</a></span>Consequently the sale of a vessel to a foreigner -denationalizes her. If sold to an American, she must be registered -anew. On arriving at a foreign port masters of vessels must deposit -their registers with the consul or commercial agent at that port.</p> - -<p>Enrollment is the term used to describe the registry of a vessel -engaged in coastwise or inland navigation or commerce. Registration is -applied to vessels engaged in foreign commerce. License means the same -as enrollment, but is applied to small vessels of twenty tons burden -or less. The federal laws on this subject do not apply to vessels that -are used on nonnavigable waters of the country.</p> - -<p>The title to a vessel may be acquired by purchase or building. If a -vessel is built for a party no title thereto passes until she is ready -for delivery and has been approved and accepted by him. This, however, -is no arbitrary rule, and is often modified especially when payment is -made in installments and during the construction of the vessel.</p> - -<p>Nowadays many vessels are owned by corporations, and the rules that -apply to corporations of course determine the ownership of their -property. In other cases the several owners of a vessel are tenants in -common, and not co-partners, unless by agreement they have established -other relations among themselves. They may, of course, become partners -and be governed by the rules that apply to persons thus related. When -they are related as tenants in common one part owner has no power to -bind the others in any way beyond the necessary and regular use of the -vessel. He cannot sell or mortgage the interests of the others, draw -drafts or notes in their name, apply the freight money earned to pay -his individual debt, or procure insurance for the other owners.</p> - -<p><span class='pagenum'><a name="Page_237" id="Page_237">[237]</a></span>The majority rule governs in employing the vessel. The majority -therefore have the right to control the use of the vessel on giving -security to the minority, if required, to bring back and to restore to -them the vessel, or if lost to pay them for the value of their shares. -The minority owners in like manner may use the vessel if the majority -are unwilling to employ her. A court of admiralty will in such a case -act for the parties.</p> - -<p>Each part owner is entitled to his share of the profits, and is also -liable for the expenses of the vessel unless he has dissented from the -voyage. But part owners who dissent from the voyage and take security -for the safe return of the vessel are not entitled to share in the -profits, nor are they liable for the expenses.</p> - -<p>A part owner may bind the others for necessary supplies and repairs -required that are procured on credit, unless his general authority to -do this has been restricted. The ship's husband or managing owner has -authority to do whatever is necessary for the prosecution of the -voyage and earning the freight money. For such purposes he is the -agent of the owners and can bind them by his contracts, unless his -authority is revoked or modified.</p> - -<p>Any owner can sell his interest whenever he pleases, and all of them -may authorize the sale of the entire vessel. A writing is required to -pass the title, but as between the parties an oral sale and delivery -will suffice, at common law. In many cases a bill of sale is required -by statute. The writing should describe what things are transferred, -but general terms such as appurtenances and necessaries have a fixed -meaning which are understood. Intention is the guide to determine what -passes in such a sale, as in cases of fixtures already considered.</p> - -<p><span class='pagenum'><a name="Page_238" id="Page_238">[238]</a></span>When the bill of sale is executed the purchaser becomes entitled to -all the benefits of ownership, and incurs all the liabilities. If the -sale is unconditional, the purchaser is liable for supplies though he -may never have taken possession of the vessel, and neither the master -nor the merchant furnishing the supplies knew of the sale. The -purchaser is not liable for repairs made and supplies furnished before -the sale, unless he has agreed to pay for them, or the vessel was at -sea at the time. If she was, the purchaser takes her subject to all -encumbrances on her, and to all lawful contracts made by the master -before learning of the purchase.</p> - -<p>A vessel may be mortgaged, and the federal statutes state how this -shall be done. A shipbuilder may make a contract whereby he mortgages -the vessel to be built in advance of its construction, and a lien -attaches as it comes into existence. Such a mortgage is postponed or -comes after a maritime lien, that will soon be explained, but comes -before the debts of general creditors.</p> - -<p>The mortgagor, so long as he retains possession, has all the rights of -ownership, and all contracts made by him are valid which do not impair -the security of the mortgage. When the mortgagee takes possession of -the vessel he is entitled to all the earnings that accrue, but not to -those which the mortgagor has reserved, even though they are for the -current voyage. Furthermore, his interest may be attached by his -creditors. The discharge and foreclosure of mortgages on vessels are -governed for the most part by the rules that apply to chattel -mortgages. A mortgage on a vessel should be recorded, and many of the -rules and usages that apply to the recording of deeds apply also to -such mortgages.</p> - -<p><span class='pagenum'><a name="Page_239" id="Page_239">[239]</a></span>A contract may be made for a loan of money on the bottom of a vessel -at a rate much greater than the usual rate of interest. Such a loan is -sanctioned to enable the master to obtain money for supplies or -repairs at some foreign port where they could not be otherwise -obtained. The loan is on the security of the vessel and if she never -arrives, the lender loses his money. If she does arrive at the port of -her destination, the borrower personally, as well as the vessel, is -liable for the repayment of the loan with the agreed interest thereon. -This maritime loan is highly regarded in legal tribunals, and is -liberally construed by them to carry into effect the intention of the -parties.</p> - -<p>Such a loan or bond can be given by the master of the vessel only in -case of necessity and great distress in a foreign port, where the -owner is not present and has no representative with funds, and where -the master has no other means of getting money. The master has a large -discretion. "The necessity must be such as would induce a prudent -owner to provide funds for the cost of them on the security of the -ship, and that if the master did not take the money the voyage would -be defeated or at least retarded." The general purpose of the loan is -to effectuate the objects of the voyage and the safety of the ship.</p> - -<p>The appointment and employment of a master is wholly within the -discretion of the owners. On his death or removal in a foreign port a -successor may be appointed by the consul resident there of the country -to which the vessel belongs, or by an agent of the owners, or by the -consignees of the cargo who have advanced money for repairing the -vessel. The registry acts of the United States require the putting of -the master's name in the <span class='pagenum'><a name="Page_240" id="Page_240">[240]</a></span>register, but if this is not done his -authority is not impaired; and the one to whom the navigation and -control of a vessel is entrusted is considered her master, although -the name of another appears on the register. His contract may contain -any stipulation to which the parties may agree. The right of a master -to command his vessel is personal to him; and a sale by a master who -is part owner of the vessel of his interest therein transfers no right -to the command of the vessel which the other owners are bound to -respect. Whenever he becomes incapable of commanding by reason of -sickness, insanity, or other reason, the command with the duties -pertaining thereto devolves on the first mate until the appointment of -another master; should he be absent or incapable of acting, then the -second mate and so on down the rank of officers.</p> - -<p>The master must do all things for the protection and preservation of -the several interests entrusted to him, the owners, charterers, cargo -owners, underwriters. He must render a full and satisfactory account -to the owners of the vessel of moneys secured and his disbursements -before demanding any wages. At sea he is the supreme officer, has sole -authority over both officers and crew to do justice to all persons -under his command, and to protect passengers and seamen from bad -treatment while they are on board. It is said that in respect to -passengers he owes a higher and more delicate duty than he owes to the -crew, but at the same time he has the necessary control over his -passengers and may make proper regulations for their government to -ensure their safety, promote their comfort and preserve decent order.</p> - -<p>He has authority to bind the owners when they are not present for -expenditures needful in the way <span class='pagenum'><a name="Page_241" id="Page_241">[241]</a></span>of repairs, supplies and other -necessaries reasonably fit and proper for the safety of the vessel and -the completion of the voyage.</p> - -<p>As the seamen who serve on a vessel are generally ignorant and -improvident, the execution of shipping articles are required by -federal statute where the vessel is bound on a foreign voyage, or from -a port in one state to a port in another. If these articles are not -made seamen have the right to leave the vessel at any time, and may -recover the highest rate of wages paid at their shipping port. The -articles must be signed by the seaman and by the master, and the -contract must be executed before the vessel proceeds on its voyage. -The seaman is not bound by any new or unusual stipulation put into the -articles affecting his rights without full knowledge of it, and -especially when he cannot read and the stipulation is not read and -explained to him. Once executed, the articles cannot be varied by a -verbal agreement between master and seaman.</p> - -<p>The articles must specify clearly and definitely the nature of the -intended voyage, the port at which it is to end and its duration. -Indefinite articles, leaving to the option of the master whether the -voyage shall be long or to one or more foreign ports, or short to -nearby domestic ports, are void. The articles must also state the -amount of wages each seaman is to receive. Articles are void that fix -a forfeiture of wages in excess of the amount named in the statute, or -restrict the time in which seamen must sue for their wages. The -contract may be dissolved by cruel treatment by the master and by an -abandonment of the vessel without the master's consent, but not by the -death, disability, removal or resignation of the master and the -substitution of another. Besides the wages a seaman may recover, -<span class='pagenum'><a name="Page_242" id="Page_242">[242]</a></span>should the master break the contract, are his expenses in returning to -the port of shipment including also general damages.</p> - -<p>Claims for wages are "highly favored in admiralty courts," and -discharges are not justified for trivial causes, nor for a single -offense unless it is an aggravated one. Such causes are continued -disobedience or insubordination, rebellious conduct, gross dishonesty, -embezzlement or theft, habitual drunkenness, habitually stirring up -quarrels, or by his own fault rendering himself incapable of -performing duty. The master must receive back a seaman when he has -thus been discharged who repents and offers to return to his duty and -make satisfaction, unless the offense was of an aggravated character. -This is the general rule, though from its nature there is much room -for its application.</p> - -<br /> - -<p><b>Statute of Frauds.</b>—Some contracts must be in writing to comply with -a statute called the Statute of Frauds, which has been enacted with -variations in all the states. One of the most important sections -relates to the conveyance of real estate. This requires that the -agreement for its sale must be in writing. (See <i>Agreement for Sale of -Land</i>.)</p> - -<p>Another section relates to the sale of goods, wares and merchandise. -This has not been enacted in every state. If the amount is above that -mentioned in the statute, thirty to one hundred dollars, there must be -a written contract or delivery and acceptance of the goods to -constitute a contract. If A sells a bill of goods to B, who declines -to receive them, and the contract is wholly verbal, he can shield -himself behind this statute wherever it prevails. Many questions -therefore arise, what is a delivery and acceptance? A delivery of a -key of a <span class='pagenum'><a name="Page_243" id="Page_243">[243]</a></span>building containing the property is sufficient. The delivery -of a bill of lading of goods properly indorsed, making entries of the -goods sold, pointing them out or identifying them is enough to comply -with the statute. Whenever there has been a transfer of possession and -control by the seller to the purchaser to which the latter has -assented there has been a sale. Or, more broadly, whenever there has -been such action as to show clearly an intention to sell and accept -the property the sale is complete. Part payment of the purchase money -for personal property is generally regarded as showing such intention.</p> - -<p>To a contract for the manufacture of a thing the statute does not -apply. Simple as this answer may be, the law soon gets into -difficulties in deciding whether a contract is for the making of a -thing, or for the thing itself; whether the important element is the -skill or labor that is to be expended, or the thing without regard to -the process of making. Thus, if a contract is with one to paint a -portrait, the statute would not apply, for the skill of the artist is -the important thing purchased, and not the canvas, paint, etc., he -must use. To a contract for a locomotive the statute would apply. "If -the contract states or implies that the thing is to be made by the -seller, and also blends together the price of the thing and -compensation for work, labor, skill and material, so that they cannot -be discriminated, it is not a contract of purchase and sale, but a -contract of hiring and service, or a bargain by which one party -undertakes to labor in a certain way for the other party," and the -statute does not apply to it.</p> - -<br /> - -<p><b>Statutes of Limitation.</b>—In all the states statutes have been -enacted which provide that if the <span class='pagenum'><a name="Page_244" id="Page_244">[244]</a></span>rights of parties to legal redress -are not enforced within a specified period, the courts are closed to -them. Thus, in most states a statute provides that a holder or owner -of a promissory note who neglects to sue the debtor within six years -from its maturity cannot do so afterwards. The note is not absolutely -void, though the law presumes it has been paid. As the note is not -void, payment may be effected as we shall soon learn.</p> - -<p>Suppose one is indebted to a merchant, if the debt is not paid within -six years in most states and nothing has happened, the debt in popular -language is outlawed, in other words cannot be collected by resort to -law. The time begins to run as soon as the debt has accrued; if it be -a debt to a merchant, as soon as one has stopped trading with him. To -the operation of this rule are some important exceptions. It does not -run in favor of a minor, married woman or insane or imprisoned person; -or not whenever or wherever they are not capable of contracting. But a -disability arising after the statute has begun to run in his favor -will not prevent it from running.</p> - -<p>The Statute of Limitations generally bars the remedy or right to -pursue the debtor in a court of law, it does not extinguish the right -or debt, and therefore the right to pursue a debtor may be revived by -a new promise to pay. One may ask, is not a debtor a foolish man to -acknowledge that he is a debtor after the law has released him from -his debt? Yes, from a purely selfish point of view. Nevertheless, the -moral obligation remains, and happily all morality has not yet fled -from the world. One may ask, is not such a promise void because there -is no consideration received for it? No, for the reason that there was -a consideration for the <span class='pagenum'><a name="Page_245" id="Page_245">[245]</a></span>original obligation, and this is sufficient -to sustain the renewed promise to pay it. In some states the statutes -provide that such an acknowledgment to pay a debt after the statute -has barred it, must be in writing, and signed by the debtor or his -agent. The most general rule is, to remove the bar of the statute, -there must be either an express promise to pay, or an acknowledgment -of the debt accompanied by an expression of willingness to pay it. To -simply acknowledge the existence of a debt is not enough, there must -be indicated or expressed a willingness to pay.</p> - -<p>A debt may also be revived by part payment. Payment on account of the -principal, or payment of interest on the debt will prevent the statute -from running against it. Payment to have that effect must be made with -reference to the original debt and in such a way as to effect an -acknowledgment of it.</p> - -<p>While a debtor may always apply a payment to any one or more of -different debts he owes his creditor, if he fails to do so the -creditor can make the application even to a debt which is already -barred by the statute, but his application will not remove the bar to -the remainder of the debt. To have that effect the appropriation must -be made by the debtor himself.</p> - -<p>Statutes of limitation apply to many obligations, and the times or -dates at which they become outlawed or outside the scope of legal -redress, vary in the different states. In many of them an ordinary -book account or negotiable note is outlawed after six years, and -cannot be enforced after that time unless the debtor has revived it by -a new promise or part payment. A judgment against one usually runs -twenty years.</p> - -<br /> - -<p><span class='pagenum'><a name="Page_246" id="Page_246">[246]</a></span><b>Telegraph and Telephone.</b>—Though the business of a telegraph company -is public in its nature, it is not a common carrier, and it may -therefore set up reasonable regulations for the reception, -transmission and delivery of messages. As it is a quasi public -corporation, it must extend its services to all that apply therefor -and offer to pay the charges. And if refusing it may be compelled to -do these things. The company may charge more to one person than to -another when the service is unlike, though not enough to amount to an -unjust discrimination. The difference in charges must bear some -relation to the different services rendered.</p> - -<p>A telephone company cannot legally discriminate between two competing -telegraph companies by giving one the telephone call word "Telegram" -and thereby depriving the other telegraph company of business. Nor can -a telephone company legally charge a higher rental for a telephone to -a telegraph company than to any other patron. Nor can a telegraph -company discriminate against another in refusing credit which is given -to other responsible parties.</p> - -<p>A strike may be a sufficient excuse for failure to have sent messages -promptly, though not excusing a railroad company for failure to -deliver freight as if no strike had happened. A state may impose a -penalty on a telegraph company for failure to deliver promptly in the -state messages coming from other states. And a state may impose a -penalty on a telegraph company for failure to perform its clear common -law duty to transmit messages without unreasonable delay, and this -statute applies to messages to points outside the state if it relates -to delay within the state. A state statute prohibiting telegraph -companies from limiting their liability for <span class='pagenum'><a name="Page_247" id="Page_247">[247]</a></span>the transmission of -telegrams within the state is constitutional. The state may prohibit a -telegraph company from transmitting racetrack news. A telegraph -company must transmit a message unless it contains indecent language. -Nor is it liable for libel in transmitting a telegram stating that a -person had been bought up.</p> - -<p>It is reasonable for a telegraph company to close its office on -holidays, except two hours in the morning and two hours in the -afternoon, and therefore is not liable for delay in transmitting a -message because of this delay. The unauthorized writing out and -sending of a telegram in another person's name is a forgery.</p> - -<p>When a telegram must pass over two connecting lines the receiving -company may require the sender to designate what route the message is -to take, and to pay an extra charge for the words indicating such -route. A telegraph company is not privileged in transmitting messages, -but they should not be made public, except to produce them when -legally required in court. Under the New York statutes it is a -criminal offense for a telegraph employee to divulge the contents of a -telegram to any other person than the addressee, except when it -relates to unlawful business. In that case the employee may give -information to the public officer who is prosecuting the unlawful -sender. It is a criminal offense to open or read a sealed telegram, or -to tap a telegraph wire in order to read messages in course of -transmission.</p> - -<p>In regulating the receipt, transmission and delivery of telegraph -messages, the rules differ from those that are to be transmitted -within the state from the rules for interstate messages. The rules -with respect to the latter are governed by the <span class='pagenum'><a name="Page_248" id="Page_248">[248]</a></span>Interstate Commerce -Act of 1910, state messages are governed by the laws of their -respective states. By the federal law, therefore, a telegraph company -providing one rate for unrepeated messages, and another and higher -rate for those repeated, may stipulate for a reasonable limitation of -its responsibility when the lower rate is paid. And if the contract -provides that for any damage resulting from sending the telegram, the -sender must give notice within sixty days, he is bound by this -stipulation, and is without redress if he delays to act beyond the -time.</p> - -<br /> - -<p><b>Torts or Wrongs.</b>—"A tort is an act or omission which unlawfully -violates a person's right created by the law, and for which the -appropriate remedy is a common law action for damages by the injured -person." The right that is violated is private and not public, which -marks off a tort from a crime. Again, the wrongful act may be a -violation of both a private and public right, in which case both the -individual and the state have a remedy against the wrongdoer. Thus A -without excuse attacks B and bruises his nose. B has an action to -recover damages against him for despoiling his countenance; the state -also may proceed against him in a criminal action for his breach of -the public peace. Another illustration may be given. A clerk embezzles -money from his bank. It sues him and perhaps his bondsmen and recovers -the money. Embezzlement, however, is a criminal offense, and the -recovery of the money taken does not affect in any way the right of -the state to proceed against the embezzler. Indeed, an individual who -has been wronged cannot by any restitution or settlement that he may -make with the wrongdoer impair the right of the state to punish him.</p> - -<p><span class='pagenum'><a name="Page_249" id="Page_249">[249]</a></span>Torts or wrongs are very numerous for which the wrongdoer may be held -liable. The first to be mentioned is false imprisonment. The law -punishes false imprisonment as a crime; the person unlawfully -imprisoned also has a civil action for damages. A person is said to be -imprisoned "in any case where he is arrested by force and against his -will, although it be on the high street or elsewhere and not in a -house." Mere words are not an arrest. If an officer says, "I arrest -you," and you run away, there is no arrest. But if an officer touches -you and takes you into custody there is an arrest even though you run -away afterward.</p> - -<p>A malicious prosecution is another wrong. A person who brings his -action for this wrong must prove four things: first, that the -prosecution has terminated in the complainant's favor; second, that it -was instituted maliciously; third, that it was brought without -probable cause; fourth, that it damaged or injured the complainant. -The term malice means something more than "the intentional doing of a -wrongful act to the injury of another without legal excuse." It means -that the original prosecutor was actuated by some "improper or -sinister motive." The term "probable cause" requires explanation. -Nothing is better settled, says one of the courts, than this, that -when the person who brings such an action against another "submits his -facts to his attorney, who advises they are sufficient, and he acts -thereon in good faith, such advice is a defense to an action for -malicious prosecution." That such advice may be a good defense a full -and honest disclosure of all the facts must be made to him. Such -advice will not serve as a screen if based on a fragmentary, -incomplete statement of facts.</p> - -<p><span class='pagenum'><a name="Page_250" id="Page_250">[250]</a></span>A very common tort is an assault and battery. A person who threatens -another with immediate personal violence, having the means and -opportunity for executing the threat, commits an assault for which -damages may be recovered in a proper action. To raise a club over the -head of another and threaten to strike if he speaks, would be an -assault. "Absence of intent," says Burdick, "on the part of the -defendant to put the plaintiff in fear of bodily harm, is pertinent to -the defense that the injury was accidental, or due to a practical -joke."</p> - -<p>A battery, as distinguished from an assault, is the inflicting of -actual violence on a person, though the degree of violence is -immaterial. The least touching of another in anger, or as a -trespasser, is a battery. Forcibly cutting the hair of a person -without legal authority, or injuring the clothing on a person, or -snatching an article from his hand, or cutting a rope or belt attached -to him, or striking a horse on which one is riding, or that is -attached to his carriage, or overturning a chair in which he is -seated, is a battery; likewise, if the assailant throws a stone or -missile which hits the other, or spits in his face.</p> - -<p>There may be a justifiable assault, the law has long recognized this. -A public officer is justified in using force in performing his duty, -so is a private individual in defending himself, his family or his -property, or in enforcing lawful discipline at home, in school, on -board a ship, or other public conveyance, or in restraining one -mentally or physically incapacitated.</p> - -<p>Another injury for which the law furnishes redress is that affecting -reputation and character. It is true that the damages one may recover, -however great, may be an inadequate redress, yet it is the <span class='pagenum'><a name="Page_251" id="Page_251">[251]</a></span>best the -law can do. The party injured by a libel or slander brings his action -and wins his victory over his enemy, yet the battlefield remains and -the scar of the wound inflicted. The issue in an action for defamation -is not the character of the plaintiff, but the wrongfulness of the -particular statement. Therefore "it is not a defense to a libel or -slander that the plaintiff has been guilty of offenses other than -those imputed to him, or of offenses of a similar character; and such -facts are not competent in mitigation of damages."</p> - -<p>As the gist of the tort consists of the injury done to one's -reputation, the defamatory statement must have been published. A -person has no cause of action against another for defamatory words -spoken to him; they must have been heard by a third person. The -plaintiff may make out a case by showing that the libel was contained -on the back of a postal card, or by other evidence that makes it a -matter of reasonable inference that the libelous matter was brought to -the actual knowledge of a third person.</p> - -<p>A person who voluntarily engages in the interchange of opprobrious -epithets and mutual vituperation and abuse has been held to license -his antagonist to reply in like manner. "The right to answer a libel -by libel is analogous to the right to defend one's self against an -assault upon his person. The resistance may be carried to a successful -termination, but the means used must be reasonable." Common carriers, -news-vendors, proprietors of circulating libraries and others who are -merely unconscious vehicles for carrying defamation generally escape -liability for its publication.</p> - -<p>If the publication of a libel is the result of the joint efforts of -several persons, each is responsible <span class='pagenum'><a name="Page_252" id="Page_252">[252]</a></span>for the wrong done to the -plaintiff. If A writes a libel, and B prints it and C publishes it, -the person wronged may sue all jointly, or either one of them -separately. The publication of the same slander by different persons -is not a joint tort, it is a distinct wrong done by each slanderer.</p> - -<p>There are distinctions between libel and slander that must be now -stated. Slander is applied to oral speech or its equivalent, libel to -matters expressed in writing or print, pictures, effigies or other -visible and permanent forms. Libel is a criminal offense as well as a -tort, while the slander of private persons is not a common law crime; -but some forms of slander are crimes by statute. Falsely and -maliciously to charge one with committing a felony or other indictable -offense involving moral turpitude is in some states a crime. -Scandalous matter is not necessary to make a libel. "It is enough if -the defendant induces an ill opinion to be held of the plaintiff, or -to make him contemptible or ridiculous." Says Burdick: "Any censorious -or ridiculing writing, picture or sign made intentionally and without -just cause and excuse is a libel upon its victim. The degree of -censure or ridicule is not material. If the language is such that -others, knowing the circumstances, would reasonably think it -defamatory of the person complaining of and injured by it, then it is -actionable."</p> - -<p>In many cases of libels which affect the victim chiefly or solely in -his office or vocation their tendency to cause injury is so clear that -proof may be unnecessary. Thus, to import insanity or incompetency to -a professional man, or that a public official is dishonest and corrupt -is actionable. And when a libelous publication is directed against a -class or body of persons, for example, the medical <span class='pagenum'><a name="Page_253" id="Page_253">[253]</a></span>staff of a public -hospital, any member of the body may maintain an action for the wrong.</p> - -<p>A corporation has no character like a natural person to defend, but a -defamatory charge which directly affects its credit and injures its -business reputation is an actionable one. On the other hand as a -corporation must transact its business and perform its duties through -natural persons it is now well settled that a corporation is liable in -damages for slander, as it is for other torts.</p> - -<p>Slanderous words that are actionable have been thus classified by the -United States Supreme Court: "(1) words falsely spoken of a person -which impute to the party the commission of some criminal offense -involving moral turpitude, for which the party, if the charge be true, -may be indicted and punished; (2) words falsely spoken of a person -which impute that the party is infected with some infectious disease, -where, if the charge is true, it would exclude him from society; (3) -defamatory words falsely spoken of a person which impute to the party -unfitness to perform the duties of an office or employment of profit -or the want of integrity in the discharge of his duties of such office -or employment; (4) defamatory words falsely spoken of a party which -prejudice such party in his or her profession or trade."</p> - -<p>The damages may be either nominal, one dollar is often given in such -cases, or compensatory, larger damages, as a punishment. The amount -rendered is within the province of the jury, but courts do not -hesitate to modify or set aside verdicts which are deemed excessive or -too meager.</p> - -<p>The defenses in such actions may be briefly described. The truth of -the charge is a complete defense to a civil action for slander or -libel, because <span class='pagenum'><a name="Page_254" id="Page_254">[254]</a></span>"the law will not permit a man to recover damages in -respect to an injury to a character which he either does not or ought -not to possess." A privileged communication is another defense. The -heads of the executive departments of government are absolutely -privileged for defamatory statements made by them while acting within -the limits of their authority. Their motives do not become the subject -of inquiry in a civil suit for damages. Judicial officers are shielded -by this rule while discharging their duties. The publication of -judicial proceedings is conditionally privileged. The condition is -that the proceedings are public, are decent and fit for publication, -that the reports are full and fair, and that their publication is not -inspired by malice. Says Burdick: "The reports of such proceedings are -usually made without reference to the individuals concerned, and for -the information and benefit of the public. The law, therefore, -presumes that they are made in good faith." The full and fair reports -of parliamentary and legislative proceedings are also conditionally -privileged as well as the reports of judicial proceedings, and for the -same reasons. The publication of the proceedings of quasi public -bodies, like state, medical, and ecclesiastical societies has been -deemed conditionally privileged. But "professional publishers of news -are not exempt, or a privileged class, from the consequences of damage -done by false news. Their communications are not privileged merely -because made in public journals." Statements rendered by mercantile or -collection agencies to inquirers for business purposes are clearly -privileged. But whether the circulation among all their subscribers of -a sheet containing such statements is privileged is a disputed -question among the courts. Again, <span class='pagenum'><a name="Page_255" id="Page_255">[255]</a></span>every statement made with the -object of protecting some interest of the writer or speaker and which -is reasonably necessary for such purpose is conditionally privileged. -Fair comment is another defense. The most frequent subjects of fair -comment from which spring actions for defamations are the character -and conduct of public men or candidates for office; and literary, -artistic, or commercial productions offered to the public. Whether a -particular statement is an unfair aspersion of one's personal -character, or a fair comment on his public conduct, is a question -usually for the jury.</p> - -<p>At common law a defamer could not insist on an opportunity to retract -or apologize, but he could give in evidence any apology or retraction -to lessen the damages. This rule has formed the basis of a statute in -some of the states. Though attacked on constitutional grounds, it has -been sustained in Minnesota, North Carolina and perhaps in other -commonwealths. Where it can be made, the apology and retraction must -be full, fair, prompt.</p> - -<p>Passing to private nuisances, a wrong or tort consists in wrongfully -disturbing one in the reasonably comfortable use and enjoyment of his -property. Ordinarily the motive of the wrongdoer is not material in -determining his maintenance of a nuisance. Some things and trades are -considered as nuisances of themselves, for example, a slaughter house -in a large town, a pigsty near a dwelling house, a house of ill fame, -the fouling of a spring, well or stream; keeping a large quantity of -explosives near a public dwelling, or animals or other property -dangerous to human life. Likewise, a hospital that operates to destroy -the peace, quiet and comfort of those in adjoining residences, affects -their health and value of their property is a private <span class='pagenum'><a name="Page_256" id="Page_256">[256]</a></span>nuisance, -against which action may be taken for its removal or abatement. Public -cemeteries come under the same ban. They will not be adjudged a -nuisance simply because they offend the fancy, delicacy, or -fastidiousness of neighbors, or even depreciate the value of adjoining -property.</p> - -<p>When a business is carried on, structures are erected, or excavations -are made which are nuisances, the actor is liable in damages for them -whether he exercised due care in constructing and maintaining them or -not. The same rule applies to the owner or keeper of a savage and -dangerous animal.</p> - -<p>Acts of discomfort that amount to a nuisance are such as produce this -effect to persons of ordinary sensibility who live in the locality -where the nuisance exists. Noises, odors, smoke, or dust may -constitute an actionable nuisance in one locality and not in another. -If the nuisances are from ordinary musical instruments in the dwelling -of a neighbor, or from his children, yet are only of a kind that may -be expected in such a neighborhood, they must be borne, unless -prohibited by law. On the other hand, the same amount of noise caused -by horses in the basement of an adjoining house is an actionable -nuisance.</p> - -<p>A temporary annoyance is quite another thing. The erection of an iron -building near a dwelling might, during the period of construction, -cause great noise and discomfort, yet the occupier of the dwelling -would have no remedy. But there is a limit to the conduct of the -annoyer. He must act reasonably. He cannot blast rock, or hammer -metal, or operate noisy steam drills at all hours of the day and -night. He must conform to the habits of the community, and not -unreasonably disturb his <span class='pagenum'><a name="Page_257" id="Page_257">[257]</a></span>neighbors, during ordinary working hours. -There is a distinction also between acts that annoy and those that -injure adjoining property. Generally acts of the latter kind are -actionable. If one fixes his residence near a nuisance, formerly he -had no remedy. This is no longer the law. When, however, a court is -asked to enjoin or stop a useful and lawful business in a place, the -court will inquire whether the business has long existed and the place -has grown up by reason of its existence. If this prove to be the case -a court will reluctantly interfere. Yet, if the business is actually -harmful to health or injurious to property, it will be enjoined -however great the loss may be to the owner.</p> - -<p>While a land owner is not liable for a nuisance created on his land by -a stranger, whose acts cannot in any way be attributed to him, he is -liable for a nuisance resulting from a licensee's use of his property. -Thus, if a licensee by attaching a wire to a chimney converts it into -a nuisance to passers-by, the land owner who knowingly permits the -nuisance to continue will be liable for the damages that result. Nor -can one who has fouled a stream or the air, or who indulges in -disturbing noises, defend himself for doing these things by showing -that others did them before he began.</p> - -<p>As a person acts at his peril in maintaining a nuisance, so is the -owner of trespassing cattle liable for all the harm done by them, -whether he knows of their disposition to do harm or not. But he is not -liable for harm done by them while they are driven along the highway -without negligence on the driver's part; nor is he liable for mischief -done by them to the person or personal property of one at other times -without knowledge of their viciousness or other proof of negligence. -Nor is he liable <span class='pagenum'><a name="Page_258" id="Page_258">[258]</a></span>by the common law as an insurer against all damage -done by them when they escape from his land.</p> - -<p>When vicious animals are kept for any purpose and are a menace to -human beings they are a nuisance. Hence, they may be killed without -incurring liability, and should they do damage their owner or -responsible keeper must answer for it. If the animal be a vicious dog, -the owner must exercise a degree of care commensurate with the danger -to others following his escape from custody, and must secure it from -injuring anyone who does not unlawfully provoke or intermeddle with -the animal.</p> - -<p>By the early common law a person who started a fire, even for a -needful and lawful purpose, was responsible for the consequences. This -rule has been modified with time. "A person," says Burdick, "does not -start a fire on his land at his peril. If it spreads beyond his -premises and harms others his liability for the harm must be grounded -on his negligence. The same is true of his liability for electricity -escaping from his control. In both cases the care he must exercise in -guarding the dangerous element varies with the hazard to which it -exposes others."</p> - -<p>The liability of a person who keeps explosives is not absolute, unless -he is maintaining a nuisance. Otherwise he is liable only when -negligent. If he is ignorant of the character of the explosive, and -without fault in not knowing, his duty of care is fixed by the -apparent character of the article. Suppose a carrier was carrying a -trunk containing an explosive of which he had no knowledge or reason -for supposing was there, surely he would not be held liable if it -exploded and caused injury.</p> - -<p>The liability of a manufacturer, seller, lender, or user of things is -not that of an insurer in making, <span class='pagenum'><a name="Page_259" id="Page_259">[259]</a></span>selling, lending or using them. But -he does incur liability whenever he fails to exercise such care as is -fairly needful to protect others against the hazard in buying and -using them. A druggist, therefore, who affixes a wrong label to a -bottle of medicine and thereby injures a person who uses it is -responsible. And the rule would apply whether the taker was the -purchaser or some other person.</p> - -<p>When persons are invited on one's premises for mutual advantage, the -inviter owes the duty of ordinary care. He is not an insurer of their -safety, nor need he exercise extraordinary care in guarding them from -harm, unless there was unusual danger. Suppose a man had a way which -persons used in going to and from his business, and he began to dig a -well near the way and left the place unprotected during its -construction, undoubtedly the owner would be liable. Suppose the well -was a considerable distance from the way where persons did not usually -go and had no occasion for going. Then he would not be liable. How far -away from the road could he dig without thought of the public? The -answer would depend on the facts in the case.</p> - -<p>A somewhat different rule has been applied to children. Although a -child of tender years who meets with an injury on the premises of a -private owner may be a technical trespasser, yet the owner may be -liable, if the things causing the injury have been left exposed and -unguarded, and are of such a nature as to be attractive to children, -appealing to their childish curiosity and instincts. Unguarded -premises, which are thus supplied with dangerous attractions, are -regarded as holding out implied invitations to children. There has -been a great deal of controversy over this important rule. Those -opposed say, if everywhere applied, it would render <span class='pagenum'><a name="Page_260" id="Page_260">[260]</a></span>the owner of a -fruit tree, for example, liable for damages to a trespassing boy who, -in attempting to get the fruit, should fall from the tree and be -injured. Professor Burdick, after a full review of the cases, says -that the tide of judicial opinion is setting the other way. Children, -therefore, who invade the premises of a person without any right are -trespassers like older people. The duty of caring for children remains -with their parents and guardians; and if they are injured while -unlawfully going on the land of others their parents cannot visit the -consequences of their neglect on the owners of the land where the -injuries happened.</p> - -<br /> - -<p><b>Warranty.</b>—The law, assuming that the purchaser knows or can find -out the quality and worth of things, does not make an implied warranty -of them generally. The legal maxim is, "Let the purchaser beware." He -must take care of himself. In many cases, though, he does obtain a -warranty. He must, however, distinguish between this and a mere -representation. It may be difficult to draw the line always, but it -exists. A statement that is not intended as a warranty, made simply to -awaken the buyer's interest in the thing for sale, is not a warranty. -Nor does the law imply a warranty from the payment of a full price. -Formerly, when a commodity was adulterated, it could be returned, and -the courts became sorely troubled to defend an adulteration. More -recently, statutes have cleared away the difficulty, and are a great -protection to buyers. In many cases, doubtless, they know more about -the quality and condition of the things they buy than the -inexperienced salesmen who are behind the counters, so they need no -protection from the law; when they do need it a warranty may serve <span class='pagenum'><a name="Page_261" id="Page_261">[261]</a></span>a -good purpose. In articles concerning which the seller does possess a -superior knowledge, precious stones, drugs, medicines, and the like, -the modern law has raised an implied warranty for the buyer's -protection. In this class of cases the buyer and seller do not deal on -equal terms. The vendor is professedly an expert.</p> - -<p>In a sale of food there is no longer an implied warranty of fitness, -unless the buyer expressly or by inspection acquaints the seller with -the purpose of the purchase and unless it appears that the buyer -relies on the seller's skill and judgment. Even then, if the buyer has -examined the goods and has discovered a defect, there is no warranty. -The burden of showing that he has made known his purpose and that he -has relied on the seller is on the purchaser who claims the existence -of an implied warranty.</p> - -<p>There is another implied warranty, that of the seller's title, when he -is in possession of the goods. This is limited to persons who are -acting for themselves, and not agents, trustees, officers of the law, -who are acting for others. An innocent purchaser of goods, therefore, -for a good consideration obtains a good title, even from a vendee who -has obtained them by fraud, as against the original vendor. This rule, -though very broad, does not prevent a lawful owner from recovering his -property. Thus, if a farmer's oxen were stolen and the thief should -sell them as his own, and the purchaser should pay for them, -nevertheless the farmer could recover them. The only exception to this -rule is negotiable paper. This is made in order to surround it with -greater protection.</p> - -<p>Where goods are sold by sample there is a warranty that the goods will -be like the sample, but there is no warranty of the sample itself. In -one of <span class='pagenum'><a name="Page_262" id="Page_262">[262]</a></span>the well-known cases hops were sold by sample, and after the -hops had been delivered the discovery was made that they had been -injured by heating. The buyer sued though failed to recover anything, -for it was proved that they were like the sample, which had been shown -several months before, and at that time the heating had not begun. As -they were sold at the earlier period, their condition at the time of -the delivery did not affect the sale. See <i>Deceit</i>; <i>Sale</i>.</p> - -<br /> - -<p><b>Will.</b>—A will is a disposition of one's property to take effect -after his death. He is called a testator, and must possess a sound -mind to make an effective will. He must be able to comprehend what he -is doing. Wills are often contested on the ground that the testator's -mind was feeble and that undue influence was exercised over him in -disposing of his property. Married women can make wills like their -husbands and so can a minor in many states.</p> - -<p>All of the states have enacted statutes on the subject which require -various things; one of the most important is the witnessing of wills. -Generally, three witnesses are required. An eminent judge, not long -since, made a will to please his wife leaving a large sum to found an -institution. He was opposed to the thing. The astute judge had no -witnesses, so he both fooled his wife and pleased himself, for his -will was worthless. The statutes require the witnesses to sign in the -testator's presence, who often give important testimony of his -competency whenever his will is contested. As they may be called for -this purpose, intelligence should be used in selecting persons to -become witnesses. A witness who is competent at the time of signing -does not become incompetent by reason of anything <span class='pagenum'><a name="Page_263" id="Page_263">[263]</a></span>that may happen to -him afterward. A witness should not be given anything in the will, -for, if this is done, his act of witnessing in perhaps all the states -violates the gift. Though this may be the consequence the rest of the -will is not thereby impaired. The property given is either real or -personal. Real property consists of land extending indefinitely upward -and downward, every building thereon, every growing thing, likewise -all minerals and in some cases even ice. Personal property includes -everything of a movable nature. A transformation is often effected. A -tree while standing on the land is a part thereof; cut down it becomes -personal property.</p> - -<p>A will should be in writing; and this in most states is a statutory -requirement, to guard against the wrongs and frauds that might -otherwise arise. A testator may write his own will, indeed to do so -would be a good test of will-making capacity. If he is unable to write -his name, he may make his mark. When this is done, there should be -ample proof that he did so, for a mark can be so easily made by any -one.</p> - -<p>A person to whom real estate is given is called a devisee; the -receiver of personal property a legatee. When the testator gives real -estate he must have regard to the laws of the state where it is -situated; in giving personal property he is governed by the law of the -state where he resides, his domicil. Many a devise has been declared -invalid, because the testator in devising it did not comply with the -law of the state where the land was located.</p> - -<p>The principal ground on which wills are attacked is feebleness of -mind, lack of mental capacity. The question assumes this form: did the -testator at the time he executed his will have sufficient mental -<span class='pagenum'><a name="Page_264" id="Page_264">[264]</a></span>capacity to do it. An eminent jurist, Chief Justice Redfield, has said -that he must have undoubtedly sufficient active memory to perceive the -more obvious relations of things to each other. Even if unable to -manage his business, he can nevertheless make a will if he knows what -he is doing.</p> - -<p>Again an insane person may make a will provided this is done during a -lucid interval. Many a person is insane only at times or on particular -subjects and therefore may be competent to make a rational disposition -of his property. Some persons have curious religious beliefs, -prejudices against persons, governments and institutions, and yet -these vagaries may not impair their capacity to dispose of their -property in a legal and rational manner.</p> - -<p>Another requirement of a testator is that he must declare in the -presence of the witnesses that it is his last will and testament. This -is called a publication of the will. Of course, his will must be -completed when this is done. Suppose a person makes several wills, -which one of them is effective? The last one. A will should be dated, -suppose this has been forgotten, what then? The last will must be -established, if possible, by other evidence. Suppose it is believed -that the last will has been destroyed, and a prior will is found, can -this be set up as establishing the testator's disposition of his -property? It is not his last will, for he has made another.</p> - -<p>Any person may be a devisee or legatee including married women, minors -and corporations. If a bequest is made to a corporation not in -existence, is it valid? By some courts this can be done, by others -this power is denied to a testator. Many a well-meant bequest to a -noble charity has been smitten down because there was no legal donee -then existing to receive the gift. A testator may <span class='pagenum'><a name="Page_265" id="Page_265">[265]</a></span>bequeath property -to a trustee who shall select the objects of the testator's bounty.</p> - -<p>The thing bequeathed must be described with sufficient clearness to -identify it, nothing more is required. In some cases proper evidence -may be used to identify things where the description in the will is -ambiguous.</p> - -<p>A devise of lands may consist of the entire estate or interest of the -testator, or he may give the devisee a lesser interest in them. It is -a common thing for a testator to devise the use of land to a person -during his lifetime, and after his death the entire interest or fee to -another. He usually adds a final or residuary clause to his will to -the effect, that all he may have which has not been bequeathed to any -one specifically shall be given to one or more persons or objects -named in his will. Or, if a legacy shall lapse, that is, the person to -whom it has been given shall die, or for any other reason cannot, or -will not take it, it falls into the residuary portion and goes to the -residuary legatee.</p> - -<p>If a will does not contain such a clause, and there is no statute in -the way, then a lapsed legacy or other property, not covered by the -will, goes to such persons as the law has prescribed whenever persons -die leaving no will, or, in legal language, die intestate.</p> - -<p>A will takes effect from the testator's death and so does the validity -of all the bequests. Thus, should a person mentioned as legatee die -before the testator, the legacy would be invalid. But many or all of -the states have provided by statute for the continuation of these in -many cases. Thus, should a son, to whom his father has devised some -land, die leaving children, they take it in place of their father. -These statutes vary much, some limiting the <span class='pagenum'><a name="Page_266" id="Page_266">[266]</a></span>substitution to the -lineal heirs of the deceased, son, grandson, etc., others extending -the substitutes to the collateral heirs of any devisee or legatee.</p> - -<p>Again, by statute and common law a wife is entitled on the death of -her husband to a specific portion of his property. Should he not give -her as much by his will, unless he had made an agreement with her -before marriage with respect to what she was to receive, she may -renounce her rights under her husband's will and claim what the law -would give her as if he had made no will.</p> - -<p>A will can be revoked any time. The common way is to destroy it. -Another way is to dispose during his lifetime of his property. In one -of the cases a testator had indorsed on his will in his own -handwriting "canceled." Though this was not signed, it was held to be -a revocation. In another case a blind testator called for his will -which was handed to him. He gave it back with the direction to put it -in the fire. Instead of doing so another piece of paper was -substituted and burned. This was a downright fraud, and the court -justly held that the will had been revoked.</p> - -<br /> - -<p><b>Workmen's Compensation Acts.</b>—Who is entitled to compensation by -these acts? The proper test to apply is, whether the employer -possessed the power to control the other while at work at the machine -or other thing from which the injury arose. Says Honnold: "In the -ordinary acceptance of the term, one who is engaged to render services -in a particular transaction is not an employee; the term employee -embracing continuity of service and excluding those employed for a -single and special transaction. It does not usually include -physicians, pastors or professional nurses. It may, however, <span class='pagenum'><a name="Page_267" id="Page_267">[267]</a></span>include -those not engaged in manual labor, such as a school-teacher. The fact -that a workman furnishes tools and materials, or undertakes to do a -specified job will not prevent his being an employee. A deaconess, -living and working in a hospital and receiving an annuity to cover -clothing and expenses, is not an employee of the hospital," nor is an -employee of a religious home for the aged who works around the house -for which he is not paid any fixed amount. A director of a bank is not -an employee within the meaning of the acts under consideration.</p> - -<p>To be an employee there must be a contract of service. This is not the -same thing as a contract for services. By the latter relationship one -is an independent contractor and excluded from the acts. The contract -of service need not be actually made, it may be implied, for example, -the case of a substitute who is engaged by an employee in accordance -with custom. A contract of service is not created by the relation of -landlord and tenant, carrier and passenger, bailor and bailee, nor by -professional service, nor by forming a partnership, nor by performing -manual labor beyond the employer's control. Whether a contract of -service arises from charitable work depends on the circumstances of -the particular case. State employees are within these acts in some -states, and excluded in others, likewise municipal employees. By the -federal act the term "laborer" is used to designate men who do work -that requires but little skill as distinguished from an artisan who -practices an industrial art. The act includes a storekeeper, an -inspector who performs no manual labor, a messenger in the government -printing office, the master of a dredge, the matron of an Indian -school, a transit man, a surveyor, a clerk engaged in office work, an -<span class='pagenum'><a name="Page_268" id="Page_268">[268]</a></span>assistant veterinarian, a laboratory assistant, a dock master.</p> - -<p>Compensation legislation is not limited to healthy employees. One's -previous physical condition is of no consequence in determining the -amount of relief to be afforded. Nevertheless, it is a circumstance to -be considered in ascertaining, when one has been injured, whether the -injury resulted from the work or from his health.</p> - -<p>In some of the compensation acts minors are excluded, in other acts he -is protected by them. An apprentice who is qualifying himself to -operate an elevator is an employee within the Minnesota Act. Many of -the acts provide that the term employee shall include every person in -the service of another under any contract of hire, except one whose -employment is casual, or is not in the usual course of the trade, -business profession or occupation of his employer.</p> - -<p>Farm laborers are outside these acts in some states. Thus, in -Massachusetts "the workmen's compensation act was not intended to -confer its advantages upon farm laborers, or to impose its burdens -upon farmers." But a farmer may adopt it if he desires. And any -contract of insurance made by him under its terms is valid and -enforceable. Such an exemption, however, does not except employees -working for one who is engaged in a commercial or other -non-agricultural enterprise though he be a farmer. Likewise, a farmer -carrying on a market garden may procure insurance covering his drivers -and helpers employed in distributing the produce of his farm without -insuring other employees who are merely farm laborers. The right to -compensation is determined by the character of the labor one is -actually doing when the accident occurs, <span class='pagenum'><a name="Page_269" id="Page_269">[269]</a></span>rather than by the fact that -the employee occasionally does farm labor. Thus, plowing is usually -farm labor, but if it is done to make land ready for building a house -it is not. If a farmer does not avail himself of the act for all of -his employees, he may procure insurance for a limited portion of them. -"If there are those," says Chief Justice Rugg, "separable from others -by classification and definition, whose labor is more exposed and -dangerous, or whom he may desire to protect for any other reason, -there is nothing in the act to prevent him from doing so."</p> - -<p>Likewise, domestic servants are excluded by some of these acts, who -are they? "A household servant is one who dwells under the same roof -with the family under circumstances making him a member thereof." And -his status is determined rather by his relation to the family than by -his relation to the service. Thus, a workman who is hired to tend the -furnace, mow the lawn, and do odd jobs about the house, who has a room -therein and eats at the family table, is a household servant. On the -other hand, a chauffeur who is hired by the month to run the -employer's private automobile, but is not living as a member of the -family, is not a household servant. In many cases, however, he is one. -While it is doubtful whether the test of living in the employer's -house is the sole test of household service, it is essential that he -is engaged in rendering service in the house, such as cleaning, -cooking or washing. On one occasion, a porter in a saloon was sent -upstairs by the proprietor to wash the windows in the apartment where -the proprietor lived with his family. While thus engaged he fell to -the sidewalk and was injured. The court regarded him as a household -servant.</p> - -<p><span class='pagenum'><a name="Page_270" id="Page_270">[270]</a></span>Many of the acts exclude from their protection casual employees. This -term is a difficult one to define, and has been omitted in many of the -acts. Where this is done all employees engaged in the usual course of -the trade, business, occupation, or profession of their employer, with -some exceptions, receive compensation. Ordinarily, an employment is -casual when it is for a single day, or by the hour, but does not apply -to one who is employed to render a service that recurs with some -regularity. Thus, one who is employed as a workman in a sawmill on -such days as it was in operation for four months was not a casual -employee. Casual employment in the Connecticut act means occasional or -incidental employment. In California, if the length of employment is -less than a week it is casual, even though contrary to agreement the -employee took more than a week to do the work for which he was hired, -and which a skillful employee could have finished within a week.</p> - -<p>"The question whether an employment is casual must be determined with -reference to the scope and purpose of the hiring rather than with sole -regard to the duration and regularity of the service. One who enters -into a contract of employment for an entire season is not a casual -employee merely because he may be required to work for only short and -irregular periods." Thus, a longshoreman who is employed at a certain -sum per hour to help load a ship, having frequently rendered a similar -service on other occasions, is not a casual employee; nor is one who -keeps machinery and boats in order at an amusement park; nor is a boy -who is called at irregular intervals for service in a butcher's shop -when extra help is needed, or in the absence of a regular employee; -nor is one who is employed during <span class='pagenum'><a name="Page_271" id="Page_271">[271]</a></span>a packing season to drive for a -packer whenever he is needed.</p> - -<p>The compensation law does not apply to independent contractors. It is -difficult, however, to draw the line in many cases. Generally, an -independent contractor is one who exercises an independent employment -and contracts to do a piece of work according to his own method, -without being subject to the control of the employer. A test that is -sometimes applied is, who has the right to direct what shall be done -and when and how, and who has the right of general control. When, -therefore, one exercises an independent employment, selects his own -help and has the control of them, and the method of conducting the -work, he is an independent contractor. Again, he may change his -relation for a time, and become an employee, or he may be a contractor -for a part of his service and an employee for a part. Thus, one who -was injured while operating a launch to bring supplies to a dredge for -his employer was an employee and not an independent contractor, though -he was one in conducting the work of dredging. Likewise, a physician -who is employed on a salary by another physician, who in turn is -serving a manufactory, is an employee of the latter and not an -independent contractor, though he is still engaged to some extent in -his own private practice.</p> - -<p>By the Federal act an employee must be "employed by the United States -to be entitled to its benefits." Thus, a plate printer in the bureau -of engraving and printing who is paid by the piece, and who bonds -himself and hires and pays his own help, also the owner of a power -boat chartered to the government and operated by the owner in its -service, are contractors, and not federal employees. <span class='pagenum'><a name="Page_272" id="Page_272">[272]</a></span>A workman, -therefore, who is employed by a government contractor is not an -employee of the government. On the other hand, one who is employed and -carried on the pay rolls of the reclamation service, though working -for the contractor, is employed by the government, likewise, a workman -employed in the forest service who is working with others for county -supervisors who, in turn, are executing a contract with the -government.</p> - -<p>As public officers are not employees within the meaning of the -compensation acts, they may be distinguished from others who are -employees. Unless the statute says so, a policeman is not an employee -of the city which he serves, but an officer holding a public trust. On -the other hand, a night policeman or marshal is an employee by the -Wisconsin law. Firemen and deputy sheriffs on a fee basis are officers -rather than employees.</p> - -<p>The compensation acts secure compensation not only for injured -workmen, but should they die, to their dependents. Who then is a -dependent? "Dependency," says Honnold, "does not depend on an answer -to the question whether the alleged dependents could support -themselves without the earnings of the person who is no longer living, -but whether they were in fact supported in whole or in part by such -earnings intentionally by him. Occasional gifts do not prove -dependency, yet purely voluntary contributions may establish -dependency. Voluntary contributions of money, support or service by a -brother to a sister or by a sister to a brother are not complete -evidence of the dependency of either. Compensation cannot be awarded -to dependents who do not belong to the classes of relatives mentioned -in the statutes."</p> - -<p><span class='pagenum'><a name="Page_273" id="Page_273">[273]</a></span>The phrase, actual dependents, means dependents in fact whether they -are wholly or partially dependent. Partial dependency, giving a right -to compensation may exist though the contributions are at irregular -intervals and of irregular amounts, and the dependent has other means -of supporting himself. An employee contributed all of his earnings to -his mother who was partially dependent on him for support. Five other -children contributed to the family fund. It was held that the mother -was entitled to a weekly compensation equal to one half of the weekly -compensation of her deceased son. A dependent who is an alien living -in a foreign country is not debarred from receiving compensation. By -some of the acts such compensation to nonresidents is limited to a -father or mother.</p> - -<p>Children who are entitled to compensation as dependents include -stepchildren, illegitimate children, children adopted by the workman, -also posthumous, legitimate and illegitimate.</p> - -<p>The federal act provides that if the injured artisan or laborer die -within the year after his injury "leaving a widow, or a child or -children under sixteen years of age, or a dependent parent, they shall -be entitled to compensation." The word parent, while including both -parents, does not include a stepfather or a stepmother, or a foster -parent who has not been legally adopted. The question of dependence is -one of fact; contributions by the deceased tend to establish this, but -are not conclusive. The word child or children used in the act is not -limited to a child or children born in wedlock, but includes -illegitimate offspring, and children legally adopted. If an injured -workman dies before he has made application for or received -compensation, it may be paid from the date of the <span class='pagenum'><a name="Page_274" id="Page_274">[274]</a></span>injury to the date -of his death, as well as for the remainder of the year to his widow or -family.</p> - -<p>The earnings of a workman are the basis for computing the amount of -compensation he is to receive for an injury. These include anything -that he receives for his labor that possesses a money value. In the -way of illustrating more clearly what he may receive the outline of a -section of the Massachusetts Act may be given. It provides what the -workman may receive when his injury is partial from the insurance -association which has become liable therefor. A weekly compensation -equal to one half the difference between his average weekly wages -before the injury and the average weekly wages which he is able to -earn thereafter; but not more than ten dollars a week, nor for a -longer period than three hundred weeks from the date of the injury. -Formerly, when injured, he received as compensation a sum fixed by -agreement between himself and his employer; and if they could not -agree, as often happened, then he sued his employer and the court -decided the amount the employer must pay. These suits were often -costly, long contested, and if the employee won his counsel often took -such a large share as to leave a disappointing amount to the employee. -On the other hand, many an employee magnified his injury, juries were -usually sympathetic, especially if the employer was a corporation, and -from the general dissatisfaction has been created the new system.</p> - -<p>Having stated in the most general way what the law provides for a -workman who has been injured, there remains the statement of what is -done when the workman dies from his accident. The Arizona law -illustrates this as well as any other. When he dies within six months -thereafter and leaves a <span class='pagenum'><a name="Page_275" id="Page_275">[275]</a></span>widow, and a minor child or children -dependent on his earnings for support and education, then the employer -must pay to the personal representative of the deceased workman for -the benefit of the widow and children a sum equal to twenty-four -hundred times one half of the daily wages or earnings of the deceased, -not exceeding in any case more than four thousand dollars. If the -employer has insured the lives of his employees in an insurance -company, for which the acts quite generally provide, then of course -payment of the benefits are paid by the company to those who are -entitled to them.</p> - -<p>Some of the compensation acts provide compensation for both total and -partial incapacity resulting from injuries which do not prove fatal. -Thus the Connecticut act provides that loss of sight, the loss or -paralysis of certain physical members, and incurable imbecility or -insanity, resulting from the accident shall be "considered as causing -total incapacity." For these and all other injuries resulting in total -incapacity to work, there must be paid to the injured employee weekly, -while incapacitated, compensation equal to half of his earnings at the -time of the injury, for a maximum and minimum period. Another section -provides that in cases resulting in partial incapacity there must be -paid to the injured employee a weekly compensation during his -incapacity, equal to half the difference between his average weekly -earnings before the injury and the amount he is able to earn -thereafter with a maximum and minimum limitation of the amount within -a limited period.</p> - -<br /> -<span class='pagenum'><a name="Page_276" id="Page_276">[276]</a></span><br /> -<br /> -<br /> -<hr /> -<span class='pagenum'><a name="Page_277" id="Page_277">[277]</a></span><br /> - -<h3>Legal Forms for Everyday Use</h3> - -<br /> - -<div class="forms"> - -<h4>1</h4> - -<h4>Agreement for Sale of Land</h4> - -<p>This agreement, entered into this ____ day of ________, 19__, by and -between A.B. and C.D., witnesseth: That said A.B. has this day sold to -C.D. the following described tract of land, to-wit: (describe) for the -sum of $________, to be paid as hereinafter set forth, and upon the -payment of which said A.B. agrees to convey to said C.D. the premises -above described, free and clear from all incumbrances, by a deed of -general warranty.</p> - -<p>And the said C.D. agrees to pay said A.B. for said premises the sum of -$________, as follows: $________ with interest at ____ per cent on the -____ day of ________, 19__;</p> - -<p>The said A.B. agrees that said C.D. shall have immediate possession of -said premises for the purpose of residence, cultivation, and -improvement.</p> - -<p>In witness whereof we have hereunto set our hands this ____ day of -________, 19__.</p> - -<p class="right">A.B.<br /> -C.D.</p> - -<br /> - -<h4>2</h4> - -<h4>Agreement Concerning Party Wall</h4> - -<p>This agreement, made this ____ day of ________, 19__, by and between -A.B. and C.D., of the city of ________ ________, witnesseth: That, -whereas, the said C.D. is the owner <span class='pagenum'><a name="Page_278" id="Page_278">[278]</a></span>of the house and lot on the south -side of ________ Street, second lot east of ________ Street, and the -said A.B. is the owner of the lot adjoining the same next easterly -thereof, on which said lot there now stands a party wall on a line -parallel with ________ Street; and forty-four feet easterly from said -________ Street; and, whereas, the said A.B. has erected his -dwelling-house several feet (one story) higher than the said C.D., -whereby greater advantage may accrue to the said A.B. from said party -wall. Now, therefore, the said C.D., in consideration of the sum of -$1, to him in hand paid, the receipt whereof is hereby acknowledged, -doth grant, covenant, promise, and agree with the said A.B., that he -may peacefully and lawfully enjoy such party wall, to himself, his -heirs, and assigns, the said C.D. reserving to himself the right to -use the said portion of the party wall built by the said A.B., -whenever he may wish to build higher than his house now is.</p> - -<p>It is further mutually understood and agreed, between the respective -parties, that this agreement shall remain so long as the houses last, -and shall pass to the heirs and assigns of the respective parties to -these presents.</p> - -<p>Witness our hands and seals, the day and year first above written.</p> - -<p class="right">A.B. (<span class="sc">L.S.</span>)<br /> -C.D. (<span class="sc">L.S.</span>)</p> - -<br /> - -<h4>3</h4> - -<h4>Agreement for Building</h4> - -<p>This agreement, entered into this ____ day of ________, 19__, between -A.B. and C.D. witnesseth: That the said A.B. hereby agrees with the -said C.D. to erect for him on (describe land) a (dwelling-house) in -conformity with the drawing and detailed specifications of one E.F., -architect, the work to be performed in a substantial and workmanlike -manner, and with the best materials of their respective kinds, the -same to be furnished, together with all things necessary to erect and -<span class='pagenum'><a name="Page_279" id="Page_279">[279]</a></span>complete said building, at the cost and expense of the said A.B., -payments to be made as follows: (specify terms) upon the certificate -of the architect, provided that said estimates shall not at any time -before the completion of said building exceed the basis of 85 per cent -of the value of the work so executed.</p> - -<p>And the said C.D. hereby agrees with said A.B. to pay to him the sum -of $________ for the erection and completion of said building in the -manner aforesaid, (monthly) estimates to be made by said E.F., -architect, of the amount then due to said A.B. thereon, upon the -presentation of which estimate said C.D. agrees to pay 85 per cent of -the same, the remaining 15 per cent to be retained until the -completion of said building. And on the completion of said work in the -manner aforesaid to the satisfaction of said architect, and upon the -presentation of his certificate to that effect, said C.D. agrees to -pay said A.B. the balance remaining unpaid on said contract, including -the fifteen per cent retained until the completion of the work. The -said A.B. further agrees to complete said building as aforesaid and -deliver the same to said C.D. on or before the ____ day of ________, -19__.</p> - -<p>In witness whereof we have hereunto set our hands this ____ day of -________, 19__.</p> - -<p class="right">A.B.<br /> -C.D.</p> - -<br /> - -<h4>4</h4> - -<h4>Claim of Lien by Workman of Sub-Contractor</h4> - -<p>A.B. to C.D., Dr.</p> - -<p>June 1st, 19__. To twenty-five days' labor at carpenter work, at $5 -per day, upon the dwelling-house situated on lot B in block 350, in -the city ________, ________ county, ________, which services were -rendered on and before the 1st day of June, 19__, and then payable.</p> - -<p class="right"><span style="padding-right: 35%;">(Signed)</span>C.D.</p> - -<br /> - -<h4><span class='pagenum'><a name="Page_280" id="Page_280">[280]</a></span>5</h4> - -<h4>Agreement for Work and Labor</h4> - -<p>This agreement, entered into this ____ day of ________, 19__, by and -between A.B. and C.D., witnesseth: That the said A.B. agrees -faithfully to labor for C.D. for the term of (six) months from the -first day of ________, 19__, at farm labor, on the farm of said C.D., -in ________ county, and to perform such other services as may be -reasonable and just, for which services said C.D. agrees to pay said -A.B. the sum of $________ per month (on the ____ day of ________, -19__.)</p> - -<p>In witness whereof we have hereunto set our hands this ____ day of -________, 19__.</p> - -<p class="right">A.B.<br /> -C.D.</p> - -<br /> - -<h4>6</h4> - -<h4>Bond to Perform a Contract</h4> - -<p>Know all men by these presents, that, we A.B., as principal, and C.D., -as surety, are held and firmly bound unto E.F., in the sum of -$________, for the payment of which well and truly to be made we bind -ourselves jointly and severally by these presents.</p> - -<p>Dated this ____ day of ________, 19__.</p> - -<p>Whereas, said A.B. had, by an agreement of this date, contracted in -writing with said E.F. to (here describe the contract).</p> - -<p>Now, therefore, the condition of this obligation is such that if the -said A.B. shall do and perform all the stipulations and agreements -contained in said written contract then this obligation to be null and -void. Otherwise to remain in full force and effect.</p> - -<p>In witness whereof we have hereunto set our hands this ____ day of -________, 19__.</p> - -<p class="right">A.B.<br /> -C.D.</p> - -<br /> - -<h4><span class='pagenum'><a name="Page_281" id="Page_281">[281]</a></span>7</h4> - -<h4>Bill of Sale</h4> - -<p>Know all men by these presents, that ________, of the first part, for -and in consideration of the sum of ________, lawful money of the -United States, to ________ in hand paid, at or before the ensealing -and delivery of these presents by ________, of the second part, the -receipt whereof is hereby acknowledged, ha____ bargained and sold, and -by these presents do grant and convey, unto the said part ________ of -the second part, ________ executors, administrators, and assigns -(description of property; or if detailed description is contained in -schedule annexed, say, the goods and chattels particularly described -in a schedule hereunto annexed and made a part of this instrument), to -have and to hold the same unto the said part ________ of the second -part, ________ executors, administrators, and assigns forever. And -________ do____ for ________ heirs, executors, administrators, -covenant and agree, to and with the said part ________ of the second -part, to warrant and defend the sale of the said property ________ -hereby sold unto the said part ________ of the second part, ________ -________ executors, administrators, and assigns, against all and every -person and persons whomsoever.</p> - -<p>In witness whereof, ________ have hereunto set ________ hand ________ -and seal ________ the ____ day of ________ in the year one thousand -nine hundred and ________.</p> - -<p>Sealed and delivered in the presence of</p> -<p>(Acknowledgment clause.)</p> - -<br /> - -<h4>8</h4> - -<h4>Bill of Sale—Shorter Form</h4> - -<p>Know all men by these presents, that I ________ of the county of -________, in the state of ________, do hereby bargain, sell, and -convey to said ________, the following <span class='pagenum'><a name="Page_282" id="Page_282">[282]</a></span>described personal property -now belonging to me, to-wit: (describe in detail). And I hereby -covenant with said ________ ________, to warrant the title of said -property to said ________ against the lawful claims of all persons -whomsoever.</p> - -<p>In witness whereof I have hereunto set my hand this ____ day of -________, 19__.</p> - -<p>(Signed)</p> -<p>In the presence of ________</p> - -<br /> - -<h4>9</h4> - -<h4>Warranty Deed</h4> - -<p>Know all men by these presents, that we ________, and ________, -husband and wife, in consideration of the sum of $________, in hand -paid, do hereby grant, bargain, sell, and convey to ________, of -________ county, ________, the following described real estate situate -in the county of ________, and state of Iowa, to-wit: (describe -premises), to have and to hold to his heirs and assigns forever. -Together with all the tenements, hereditaments, and appurtenances -thereto belonging. And we hereby covenant with said ________ that we -are lawfully seized of said premises; that they are free from -incumbrances; that we have good right and lawful authority to sell the -same, and we covenant to warrant and defend the same against the -lawful claims of all persons whomsoever. And the said ________, hereby -relinquishes her right of dower in said premises.</p> - -<p>In witness whereof we have hereunto set our hands this ____ day of -________, 19__.</p> - -<p>In presence of <span style="padding-left: 45%;">__________</span><br /> -<span style="margin-left: 1em;">__________</span> <span style="padding-left: 46%;">__________</span></p> - -<p class="noin"><span style="margin-left: 1em;">State of __________ }</span><br /> -<span style="margin-left: 1em;">__________ County. }</span></p> - -<p>On this ____ day of ________, 19__, before me, a justice of the peace -in and for said county, personally came the above <span class='pagenum'><a name="Page_283" id="Page_283">[283]</a></span>named ________, who -are known to me to be the identical persons whose names are affixed to -the above deed as grantors, and severally acknowledge the instrument -to be their voluntary act, and deed.</p> - -<p>In witness whereof I have hereunto set my hand the day and year above -written.</p> - -<p class="right">A.B.<br /> -Justice of the Peace.</p> - -<br /> - -<h4>10</h4> - -<h4>Warranty Deed in Common Use in New England</h4> - -<p>Know all men by these presents, that I, (the grantor) of (residence, -town or city, county and state), (occupation), in consideration of -(the amount paid) to me paid by (here name the grantee or purchaser, -giving in like manner his residence and occupation), the receipt -whereof is hereby acknowledged, do hereby give, grant, bargain, sell -and convey unto the said (name the grantee, and then describe the -premises granted, minutely and accurately):—</p> - -<p>To have and to hold the above-granted premises, to the said (name the -grantee), his (hers or their) heirs and assigns, to his (or her or -their) use and behoof forever. And then, the said (name the grantor), -for (myself) and (my) heirs, executors, and administrators, do -covenant with the said (name of the grantee), and with his heirs and -assigns, that I am lawfully seized in fee simple of the aforegranted -premises; that they are free from all incumbrances (if there be any -incumbrances, as a mortgage or lien, or right of way, or drain, or -air, or light, say excepting, and then describe the incumbrance), that -I have good right to sell and convey the same to the said (name of the -grantee), and his (or her) heirs and assigns forever as aforesaid; and -that I will, and my heirs, executors, and administrators shall, -warrant and defend the same to the said (name of the grantee), and his -heirs and <span class='pagenum'><a name="Page_284" id="Page_284">[284]</a></span>assigns forever, against the lawful claims and demands of -all persons.</p> - -<p>In witness whereof, I the said (name of the grantor) and (name of his -wife), wife of said grantor, in token of her release of all right and -title of or to dower in the granted premises, have hereunto set our -hands and seals this ____ day of ________ in the year of our Lord -________</p> - -<p class="right">(Signature) (Seal)</p> - -<p>Signed, Sealed, and Delivered in the Presence of</p> - -<br /> - -<h4>11</h4> - -<h4>Deed of Indenture—Short Form</h4> - -<p>This indenture, made the ____ day of ________, 19__, between ________ -(insert occupation and residence), of the first part, and ________ -(insert occupation and residence), of the second part,</p> - -<p>Witnesseth: That the said part____ of the first part, in consideration -of ________ dollars, lawful money of the United States, paid by the -part____ of the second part, do ____ hereby grant and release unto the -said part____ of the second part, ____h____ heirs and assigns forever -(description of land). Together with the appurtenances and all the -estate and rights of the part____ of the first part in and to said -premises.</p> - -<p>To have and to hold the above-granted premises unto the said part____ -of the second part, ____h____ heirs and assigns forever.</p> - -<p>And that said part____ of the first part do____ covenant with said -part____ of the second part, as follows:</p> - -<p>That the part____ of the first part will forever warrant the title to -said premises.</p> - -<p>In witness whereof, the said part____ of the first part ha____ -hereunto set ____h____ hand ____ and seal ____, the day and year first -above written.</p> - -<p class="noin" style="margin-left: 1em;">In the presence of<br /> -(Acknowledgment clause.)</p> - -<br /> - -<h4><span class='pagenum'><a name="Page_285" id="Page_285">[285]</a></span>12</h4> - -<h4>Quit Claim Deed</h4> - -<p>Know all men by these presents, that we, ________ and ________, -husband and wife, in consideration of the sum of $________, in hand -paid, do hereby sell and quit claim to ________ all our right, title -and interest in and to the following described real estate, situate in -the county of ________, and state of ________, to-wit: (describe -premises) to have and to hold the above described premises to the said -________, and his heirs and assigns forever.</p> - -<p>In witness whereof, we have hereunto set our hands this ________ day -of ________, 19__.</p> - -<p>In presence of <span style="padding-left: 45%;">__________</span><br /> -<span style="margin-left: 1em;">__________</span> <span style="padding-left: 46%;">__________</span></p> - -<p class="noin"><span style="margin-left: 1em;">State of __________ }</span><br /> -<span style="margin-left: 1em;">__________ County. }</span></p> - -<p>On this ____ day of ________, 19__, before me, a justice of the peace, -in and for said county, personally came the above named ________, who -are known to me to be the identical persons whose names are affixed to -the above deed as grantors, and severally acknowledged the instrument -to be their voluntary act and deed.</p> - -<p>Witness my hand the date above given.</p> - -<p class="right">A.B.<br /> -Justice of the Peace.</p> - -<br /> - -<h4>13</h4> - -<h4>Quit Claim Deed—Another Form</h4> - -<p>This indenture, made this ____ day of ________, in the year of our -Lord, 19__, between ________, of the first part, and ________, of the -second part, witnesseth: That the said part____ of the first part, in -consideration of the <span class='pagenum'><a name="Page_286" id="Page_286">[286]</a></span>sum of ________ dollars, to ________, in hand -paid by the said part____ of the second part, the receipt whereof is -hereby confessed and acknowledged, ha____ bargained, sold, remised, -and quitclaimed, and by these presents do____ bargain, sell, remise, -and quitclaim unto the said part____ of the second part ________ and -to ________, heirs and assigns forever, all ________ together with all -and singular the hereditaments and appurtenances thereto belonging, or -in anywise appertaining, and the reversion and reversions, remainder -and remainders, rents, issues, and profits thereof, and all the -estate, right, title, interest, claim, and demand whatsoever, of the -said part____ of the first part, either in law or equity, of, in, and -to the above-bargained premises, with the said hereditaments and -appurtenances, to have and to hold the said ________ to the said -part____ of the second part, ________ heirs and assigns, to the sole -and only proper benefit and behoof of the said part____ of the second -part, ________ heirs and assigns forever.</p> - -<p>In witness whereof, the part____ of the first part ha____ hereunto set -________ hand ____ and seal ____, the day and year first above -written.</p> - -<p class="noin" style="margin-left: 1em;">Sealed and delivered in the presence of<br /> -(Acknowledgment clause.)</p> - -<br /> - -<h4>14</h4> - -<h4>Quit Claim Deed—Short Form</h4> - -<p>In consideration of $100, to me in hand paid by C.D., I, A.B., hereby -sell, grant, release, and quitclaim to said C.D., that certain lot -(here insert description). To have and to hold the said released -premises unto the said C.D., and his heirs and assigns forever.</p> - -<span style="margin-left: 1em;">Witness my hand and seal, this ____ day of ________, 19__.</span><br /> -<span style="margin-left: 1em;">(Acknowledgment clause.)</span><br /> - -<p class="right">A.B. (L.S.)</p> - -<br /> - -<h4><span class='pagenum'><a name="Page_287" id="Page_287">[287]</a></span>15</h4> - -<h4>Mortgage</h4> - -<p>Know all men by these presents, that ________ and ________, husband -and wife, in consideration of the sum of $________, to us in hand -paid, do hereby grant, bargain, sell, and convey to ________ of -________, the following described real estate, to-wit: (describe -premises). Together with all the tenements and appurtenances thereunto -belonging. And we do hereby covenant with said ________ that we are -lawfully seized of said premises; and we will warrant and defend, the -same against the lawful claims of all persons whomsoever.</p> - -<p>Provided, however, and these presents are upon this express condition. -That whereas ________ on the ____ day of ________, 19__, executed and -delivered to ________ promissory notes, as follows: The first of said -notes for the sum of $________, with interest from date, is due and -payable ________, 19__, and the second of said notes for the sum of -$________ with interest from date, is due and payable on the ____ day -of ________, 19__. Now if said ________ shall pay said notes and -interest thereon, when they shall become due, then this conveyance -shall be null and void, otherwise to remain in force and effect.</p> - -<p>In witness whereof we have hereunto set our hands this ________ day of -________, 19__.</p> - -<p>In presence of <span style="padding-left: 45%;">__________</span><br /> -<span style="margin-left: 1em;">__________</span> <span style="padding-left: 46%;">__________</span></p> - -<p>Acknowledgment as to deed.</p> - -<br /> - -<h4>16</h4> - -<h4>Mortgage with Power of Sale</h4> - -<p>This Indenture, made the ____ day of ________ in the year ________ -between ________ (name, residence, and <span class='pagenum'><a name="Page_288" id="Page_288">[288]</a></span>occupation of mortgagor) party -of the first part, and ________ (name, residence, and occupation of -mortgagee) party of the second part, Witnesseth: That the said party -of the first part, in consideration of the sum of (the amount of the -debt) to him duly paid before the delivery hereof, has bargained and -sold, and by these presents does grant and convey to the said party of -the second part, and his heirs and assigns forever, all (here describe -the premises minutely and accurately) with the appurtenances, and all -the estate, right, and title, and interest of the said party of the -first part therein.</p> - -<p>This grant is intended as a security for the payment of (here describe -the debt) which payments, if duly made, will render this conveyance -void. And if default shall be made in the payment of the principal or -interest above mentioned, then the said party of the second part, or -his executors, administrators, or assigns, are hereby authorized to -sell the premises above granted, or so much thereof as will be -necessary to satisfy the amount then due with the costs and expenses -allowed by law.</p> - -<p>In witness whereof, the said party of the first part has hereunto set -his hand and seal the day and year first above written.</p> - -<p class="right">(Signature) (Seal)</p> - -<p>Sealed and delivered in the presence of<br /> -<span style="margin-left: 2em;" class="fakesc">STATE OF }</span><br /> -<span style="margin-left: 2em;" class="fakesc">COUNTY OF } SS.</span></p> - -<p>On the ____ day of ________ in the year one thousand nine hundred and -________ before me personally came (name of mortgagor) who is known to -me to be the individual described in, and who executed the foregoing -instrument, and acknowledged that he executed the same, as his free -act and deed.</p> - -<br /> - -<h4>17</h4> - -<h4>Chattel Mortgage with Power of Sale</h4> - -<p>Know all men by these presents, that I, A.B., in consideration of the -sum of $________ paid by C.D., have bargained <span class='pagenum'><a name="Page_289" id="Page_289">[289]</a></span>and sold, and by these -presents do hereby sell and convey to said C.D. the following goods, -and chattels, to-wit: (describe the articles mortgaged, or refer to -them as the goods and chattels mentioned in the schedule hereto -annexed), and which is now in my possession.</p> - -<p>Whereas, the said A.B. is justly indebted to C.D. in the sum of -$________, payable on the ____ day of ________, 19__, with interest at -ten per cent from the ____ day of ________, 19__ (upon a promissory -note of even date herewith, or for goods sold and delivered).</p> - -<p>Now the condition of the above obligation is such that if the said -A.B. shall well and truly pay said C.D. said sum of money and interest -when the same shall become due, then this conveyance shall be void, -otherwise to remain in full force and effect. It is also agreed that -said A.B. may retain possession of the said mortgaged property until -said debt becomes due. But if default be made in the payment of said -sum or any part thereof, the said C.D. and his assigns are hereby -authorized to sell said goods and chattels, or so much thereof as will -be necessary to satisfy the amount then due, together with the costs -and expenses incurred by reason of said default.</p> - -<p class="right"><span style="padding-right: 65%;">(Signed)</span> A.B.<br /> -<span style="padding-right: 60%;">In the presence of E.F.</span></p> - -<br /> - -<h4>18</h4> - -<h4>Mortgage on Goods and Chattels—Another Form</h4> - -<p>Know all men by these presents, that A.B., residing at ________, of -the first part, for securing the payment of the ________, hereinafter -mentioned, and in consideration of the sum of $1, to ________ in hand -paid, at or before the ensealing and delivery of these presents, by -C.D., of the second part, the receipt whereof is hereby acknowledged, -ha____ granted, bargained, sold, and assigned, and by these presents -do ____ grant, bargain, sell, and assign unto the said <span class='pagenum'><a name="Page_290" id="Page_290">[290]</a></span>part____ of -the second part, all ________ now remaining and being ________.</p> - -<p>To have and to hold, all and singular, the goods and chattels above -bargained and sold, or intended so to be, unto the said part____ of -the second part, ________ executors, administrators, and assigns -forever. And the said part____ of the first part, for ________ heirs, -executors, and administrators, all and singular, the said goods and -chattels above bargained and sold unto the said part____ of the second -part, ________ executors, administrators, and assigns, against the -said part____ of the first part, and against all and every person or -persons whomsoever shall and will warrant, and by these presents -forever defend.</p> - -<p>Upon condition, that if the said part____ of the first part shall and -do well and truly pay, or cause to be paid, unto the said part____ of -the second part, ________ executors, administrators, or assigns, the -sum of ________, then these presents and everything herein contained -shall cease and be void. And the said part____ of the first part, for -________ executors, administrators, and assigns, do ________ covenant -and agree to and with the said part____ of the second part, ________ -executors, administrators, and assigns, to make punctual payment of -the money hereby secured ________. And in case default shall be made -in payment of the said sum above mentioned, or in case the said -part____ of the second part shall sooner choose to demand the said -goods and chattels, it shall and may be lawful for, and the said -part____ of the first part do ________ hereby authorize and empower -the said part____ of the second part, ________ executors, -administrators, and assigns, with the aid and assistance of any person -or persons, to enter and come into and upon the dwelling-house and -premises of the said part____ of the first part, and in such other -place or places as the said goods and chattels are or may be held or -placed, and take and carry away the said goods and chattels to sell -and dispose of the same for the best price they can obtain, at either -public or private sale, and <span class='pagenum'><a name="Page_291" id="Page_291">[291]</a></span>out of the money to retain and pay the -said sum above mentioned, with the interest and all expenses and -charges thereon, rendering the overplus (if any) unto the said -part____ of the first part, ________ executors, administrators, and -assigns. And until default be made in the payment of the aforesaid sum -of money, the said part____ of the first part to remain and continue -in quiet and peaceable possession of the said goods and chattels, and -the full and free enjoyment of the same, unless the said part____ of -the second part, ________ executors, administrators, or assigns, shall -sooner choose to demand the same; and until such demand be made, the -possession of the said part____ of the first part shall be deemed the -possession of an agent or servant, for the sole benefit and advantage -of his principal, the said part____ of the second part.</p> - -<p>In witness whereof, the said part____ of the first part, ha____ -hereunto set ________ hand ____ and seal ________ this ____ day of -________, 19__.</p> - -<p class="noin" style="margin-left: 1em;">Sealed and delivered in the presence of<br /> -________ County of ________ss.:</p> - -<p>On this ____ day of ________, 19__, before me came ________, to me -known to be the person____ described in and who executed the foregoing -instrument, and ________ acknowledged that ____ he ________ executed -the same.</p> - -<br /> - -<h4>19</h4> - -<h4>Notice of Sale under Chattel Mortgage</h4> - -<p>Notice is hereby given that by virtue of a chattel mortgage, dated on -the ____ day of ________, 19__, and duly filed in the office of the -county clerk of ________ county, ________ on the ____ day of ________, -19__, and executed by A.B. to C.D. to secure the payment of the sum of -$________, and upon which there is now due the <span class='pagenum'><a name="Page_292" id="Page_292">[292]</a></span>sum of $________. -Default having been made in the payment of said sum, and no suit or -other proceeding at law having been instituted to recover said debt or -any part thereof, therefore, I will sell the property therein -described, viz.: (here describe the articles substantially as in the -mortgage) at public auction at the house of ________, in the (city, -town, or precinct) of ________, in ________ county, on the ____ day of -________, at one o'clock <span class="sc">P.M.</span> of said date.</p> - -<p class="right">C.D.<br /> -Mortgagee.</p> - -<p class="noin">Dated ____, ________, 19__.</p> - -<br /> - -<h4>20</h4> - -<h4>Assignment of Mortgage</h4> - -<p>This instrument, made this ____ day of ________, 19__, between -________, of the first part, and ________, of the second part, -witnesseth: That the part____ of the first part, for a good and -valuable consideration, to ________ in hand paid by the part____ of -the second part, ha____ sold, assigned, transferred, and conveyed, and -do____ hereby sell, assign, transfer, and convey to the part____ of -the second part, a certain mortgage, bearing date the ____ day of -________, 19__, made by ________, recorded in the clerk's office of -________ county, in liber ________, of mortgages, at page ________, on -the ____ day of ________, 19__, at ____ o'clock ____m., together with -the bond accompanying said mortgage, and therein referred to, and all -sums of money due and to grow due thereon. And the part____ of the -first part hereby covenant that there is ________ due on the said bond -and mortgage the sum of ________.</p> - -<p>In witness whereof, the part____ of the first part ha____ hereunto set -________ hand ____ and seal ____ the day and year first above written.</p> - -<p>(Assignment clause.)</p> - -<br /> - -<h4><span class='pagenum'><a name="Page_293" id="Page_293">[293]</a></span>21</h4> - -<p>Agreement for Lease</p> - -<p>This is to certify that I have, on this 1st day of ________, 19__, let -and rented to C.D., lot ________, in block ________, in the city to -________, ________, together with the dwelling-house thereon, with all -the appurtenances, and the sole and uninterrupted possession thereof -for one year from this date, at the yearly rent of $________, payable -quarterly in advance; rent to cease in case of the destruction of the -premises by fire.</p> - -<p class="right"><span style="padding-right: 35%;">(Signed)</span> A.B.</p> - -<br /> - -<h4>22</h4> - -<h4>Lease</h4> - -<p>This agreement, entered into this first day of ________, 19__, between -A.B. and C.D., witnesseth: That the said A.B., in consideration of the -covenants of the said C.D., hereinafter set forth, does hereby lease -to the said C.D., from the first day of ________, 19__, to the ____ -day of ________, 19__, the following described property, to-wit: (The -southeast quarter of section 15, in township 12 north, range 14 east -of 6th principal meridian). And the said C.D., in consideration of the -leasing of the premises as above set forth, does hereby covenant and -agree to pay said A.B. the rent following, to-wit: (Insert terms and -mode of payment). The said C.D. also covenants with the said A.B. that -he will cultivate said land in a good and husband-like manner; that he -will keep said premises in as good a condition as they now are; the -usual wear and incidents by fire excepted, and that he will yield -peaceable possession of the same to said A.B. at the expiration of -said term.</p> - -<p>In witness whereof we have hereunto set our hands this ________ day of -________, 19__.</p> - -<p class="right">A.B.<br /> -C.D.</p> - -<p>In presence of E.F.</p> - -<br /> - -<h4><span class='pagenum'><a name="Page_294" id="Page_294">[294]</a></span>23</h4> - -<h4>Lease—Another Form</h4> - -<h4>Landlord and Tenant's Agreement</h4> - -<p>This instrument, made and executed this ____ day of ________, 19__, -between ________, of the ________, part____ of the first part, and -________, of the ________, part____ of the second part, witnesseth:</p> - -<p>That the part____ of the first part ha____ hereby let and rented to -the part____ of the second part, and the part____ of the second part -ha____ hereby hired and taken from the part____ of the first part, -________ for the term of ________ years ________ —— to commence the -____ day of ________, 19__, at the yearly rent of ________ dollars, -payable ________. And the part____ of the second part hereby -covenant____ to and with the part____ of the first part to make -punctual payment of the rent ________ in the manner aforesaid, and -quit and surrender the premises at the expiration of said term, in as -good state and condition as they are now in, reasonable use and wear -thereof, and damages by the elements excepted, and further -covenant____ that ____he____, the part____ of the second part, will -not use or occupy said premises for any business or purpose deemed -extra hazardous on account of fire.</p> - -<p>And further covenant____ that ____he____, the part____ of the second -part, will not assign this lease or underlet the said premises, or any -part thereof, to any persons whomsoever, without first obtaining the -written consent of said part____ of the first part, and in case of not -complying with this covenant, the part____ of the second part -agree____ to forfeit and pay to the part____ of the first part the sum -of ________ dollars, as and for liquidated damages which are hereby -liquidated and fixed as damages and not as a penalty.</p> - -<p>This lease is made and accepted on this express condition, that in -case the part____ of the second part should assign this lease or -underlet the said premises, or any part thereof, <span class='pagenum'><a name="Page_295" id="Page_295">[295]</a></span>without the written -consent of the part____ of the first part, that then the part____ of -the first part, his heirs or assigns, in his option, shall have the -power and the right of terminating and ending this lease immediately, -and be entitled to the immediate possession of said premises, and to -take summary proceedings against the part____ of the second part, or -any person or persons in possession as tenant, having had due and -legal notice to quit and surrender the premises, holding over their -term.</p> - -<p>It is further agreed between the parties, that in case said premises -should be destroyed by fire before or during said term, that then this -lease is to cease and determine; the rent ________ to be paid up to -that time.</p> - -<p>In witness whereof, the parties have hereunto set their hands and -seals the day and year first above written.</p> - -<p>In presence of <span style="padding-left: 45%;">__________</span><br /> -<span style="margin-left: 4%;">__________</span> <span style="padding-left: 44%;"> __________</span></p> - -<br /> - -<h4>24</h4> - -<h4>Farm Lease</h4> - -<p>This indenture, made the ____ day of ________ in the year of our Lord, -19__, between A.B., of the city of ________, party of the first part, -and C.D., of the same place, party of the second part, witnesseth:</p> - -<p>That the said party of the first part, in consideration of the rents, -covenants, and agreements hereinafter mentioned, reserved, and -contained on the part of the said party of the second part, his -executors, administrators, and assigns, to be paid, kept, and -performed, has demised and to farm let, unto the said party of the -second part, his executors, administrators, and assigns, all (insert -description), with the appurtenances, unto the said party of the -second part, his executors, administrators, and assigns, from the ____ -day of ________, 19__, for the term of ten years then next ensuing, -yielding and paying therefor, unto the said party of the first part, -his heirs or assigns, yearly and every year during the said term -hereby <span class='pagenum'><a name="Page_296" id="Page_296">[296]</a></span>granted, the yearly rent or sum of $________, in equal -half-yearly payments, to-wit: on the 1st days of October and April in -each and every year; provided, that if the yearly rent above reserved, -or any part thereof, shall be unpaid on any day of payment whereon the -same ought to be paid as aforesaid; or if default shall be made in any -of the covenants or agreements herein contained, on the part of the -said party of the second part, his heirs or assigns, to re-enter upon -the said premises, and the same to have again, as in their first and -former estate.</p> - -<p>And the said party of the second part does covenant and agree, with -the said party of the first part, his heirs and assigns, that he, the -said party of the second part, his executors, administrators, or -assigns, will yearly and every year during the said term, pay unto the -said party of the first part, his heirs or assigns, the yearly rent -above reserved, on the days and in manner limited and prescribed as -aforesaid, for the payment thereof, without any deduction or delay. -And that the said party of the second part, his executors, -administrators, or assigns, will, at his own proper costs and charges, -bear, pay, and discharge all taxes, duties, and assessments, as may, -during the said term hereby granted, be charged, assessed, or imposed -upon the said demised premises. And that on the determination of the -estate hereby granted, the said party of the second part, his -executors, administrators, or assigns, shall and will leave and -surrender unto the said party of the first part, his heirs or assigns, -the said demised premises in as good stage and condition as they are -now in, ordinary wear and damages by the elements excepted.</p> - -<p>And the said party of the first part does covenant and agree, with the -said party of the second part, his executors, administrators, and -assigns, that the said party of the second part, his executors, -administrators, and assigns, paying the said yearly rent above -reserved, and performing the covenants and agreements aforesaid on his -part, the said party of the second part, his executors, -administrators, and assigns, shall and may at all times during the -said term hereby granted, peaceably have, <span class='pagenum'><a name="Page_297" id="Page_297">[297]</a></span>hold, and enjoy the said -demised premises, without any manner of trouble or hindrance of or -from the said party of the first part, his heirs or assigns, or any -other person or persons whomsoever.</p> - -<p>In witness whereof, the parties to these presents have hereunto set -their hands and seals.</p> - -<p>Sealed and delivered in the presence of</p> - -<p class="right">____________<br /> -A.B. (<span class="fakesc">L.S.</span>)</p> - -<br /> - -<h4>25</h4> - -<h4>Lease of Furnished Rooms</h4> - -<p>Memorandum. It is agreed by and between A.B. and C.D., as follows, -viz.: The said A.B., in consideration of the rent hereinafter -mentioned and agreed to be paid to him, hath letten to the said C.D. -one room, up two flights of stairs forward, part of the now -dwelling-house of the said A.B. situate on ________ Street, in the -city of ________, together with the furniture at present standing -therein—that is to say: (insert furniture). To hold to the said C.D. -for the term of two years, to commence from ________, 19__, at the -yearly rent of $100, to be paid quarterly to the said A.B.</p> - -<p>The said C.D., in consideration hereof, agrees to pay the aforesaid -yearly rent of $100, at the times above limited for payment thereof; -and at the end of the term, or in case of any default in the payment, -shall and will, on the request of the said A.B., or his assigns, -immediately yield and deliver up to him or them, the peaceable and -quiet possession of the said room, together with the whole furniture -he, from the first entrance thereon, there found and possessed, in -good, and sufficient plight and condition, reasonable wear and tear -only excepted.</p> - -<p>In witness whereof the parties have signed this agreement, this ____ -day of ________, 19__.</p> - -<p class="right">A.B.<br /> -C.D.</p> - -<br /> - -<h4><span class='pagenum'><a name="Page_298" id="Page_298">[298]</a></span>26</h4> - -<h4>Assignment of Lease</h4> - -<p>For and in consideration of the sum of $________, to me in hand paid -by E.F., I hereby assign and transfer to said E.F. a certain lease, -bearing date ________, 19__, and made by A.B. to me, C.D., for -(describe the premises), together with all and singular the buildings -and appurtenances thereunto belonging, or in any wise appertaining, -subject, however, to the rents hereafter to accrue and the covenants -and conditions contained in said lease.</p> - -<p class="right">C.D.</p> - -<br /> - -<h4>27</h4> - -<h4>Assignment of Lease—Another Form</h4> - -<p>Know all men by these presents, that I, A.B., the within-named lessee, -for and in consideration of $50, to me in hand paid by C.D., of the -town of Franklin, County of Albany, at and before the sealing and -delivery hereof, the receipt whereof I do hereby acknowledge, have -granted, assigned and set over, and by these presents do grant, assign -and set over, unto the said C.D., his executors, administrators, and -assigns, the within indenture of lease, and all that house and farm -therein described, with the appurtenances, and also my estate, right, -title, term of years yet to come, claim and demand whatsoever, of, in, -to, or out of the same. To have and to hold the said house and farm, -and the appurtenances thereof unto the said C.D., his executors, -administrators, and assigns, for the residue of the term within -mentioned, under the yearly rent and covenants within reserved and -contained, on my part and behalf to be done, kept and performed.</p> - -<p>Witness my hand and seal, this June 20, 19__.</p> - -<p class="right">A.B. (<span class="fakesc">L.S.</span>)</p> - -<p>(Acknowledgment.)</p> - -<br /> - -<h4><span class='pagenum'><a name="Page_299" id="Page_299">[299]</a></span>28</h4> - -<h4>Notice to Quit</h4> - -<p class="noin">To C.D.:</p> - -<p>I hereby notify you to leave the premises now occupied by you, to-wit: -(Lot 8 in Block 144, in the city of ________, ________ county, -________.) If you fail to comply with this notice within three days -after its service, I shall instigate legal proceedings to obtain -possession of said premises.</p> - -<p class="right"><span style="padding-right: 35%;">(Signed)</span> A.B.</p> - -<br /> - -<h4>29</h4> - -<h4>Subscription to Build a Church</h4> - -<p>Whereas, the trustees of the church corporation, known as the "Church -of the Puritans," are about erecting a church edifice for such -corporation; now, we, the undersigned, for the purpose of such -erection, hereby agree to and with such trustees and to and with each -other, to pay to B.B., the treasurer of said corporation, the several -sums by us set opposite our several names, for the purpose of such -erection, and we hereby authorize and direct the said trustees to -expend such sums in the erection of the same. The said sums are to be -paid to the said treasurer on or before the 1st day of March, 1900.</p> - -<div class="centered"> -<table border="0" cellpadding="1" cellspacing="0" width="60%" summary="Sums"> - <tr> - <td class="tdl" width="80%" style="font-size: 80%;">NAMES</td> - <td class="tdr" width="20%" style="font-size: 80%;">AMOUNT</td> - </tr> - <tr> - <td class="tdl">A.B.</td> - <td class="tdr">$600</td> - </tr> - <tr> - <td class="tdl">C.C.</td> - <td class="tdr">400</td> - </tr> -</table> -</div> - -<br /> - -<h4>30</h4> - -<h4>Power of Attorney</h4> - -<p>Know all men by these presents, that we ________ and ________, husband -and wife of the county of ________, <span class='pagenum'><a name="Page_300" id="Page_300">[300]</a></span>and state of ________, have made, -constituted and appointed, and do hereby make, constitute and appoint -________ of the county of ________, and state of ________, our true -and lawful attorney for us and in our names, place and stead, to sell -and convey by a good and sufficient deed, with full covenants of -warranty the following described real estate, to-wit: (describe), -hereby giving and granting to our said attorney full power to do and -perform every act and thing necessary to be done in the premises as -fully as we could do if personally present, hereby ratifying and -confirming all that our said attorney shall do by virtue hereof.</p> - -<p>In witness whereof we have hereunto set our hands this ____ day of -________, 19__.</p> - -<p>In presence of <span style="padding-left: 45%;">__________</span><br /> -<span style="margin-left: 1em;">__________</span> <span style="padding-left: 46%;">__________</span></p> - -<p class="noin"><span style="margin-left: 1em;">State of __________ }</span><br /> -<span style="margin-left: 1em;">__________ County. }</span></p> - -<p>On this ____ day of ________, 19__, before me, a justice of the peace -in and for said county, personally came the above named ________ and -________, who are known to me to be the identical persons whose names -are affixed to the above power of attorney as makers thereof, and -severally acknowledged the instrument to be their voluntary act and -deed.</p> - -<p>In witness whereof I have hereunto set my hand the day and year above -written.</p> - -<p class="right">A.B.<br /> -Justice of the Peace.</p> - -<br /> - -<h4>31</h4> - -<h4>Power of Attorney to Transfer Stock</h4> - -<p>Know all men by these presents, that ________, for value received, -ha____ bargained, sold, and assigned, and by these presents do -bargain, sell, and assign unto ________, <span class='pagenum'><a name="Page_301" id="Page_301">[301]</a></span>the following described -stock, to-wit: ________ unto ________, belonging and held by -certificate No. ________, in ________ name, and hereunto annexed, and -do hereby constitute and appoint ________, true and lawful attorney, -irrevocably, for ________, and in ________ name and stead, to ________ -use, to assign and transfer the said stock unto ________ and for that -purpose to make and execute the necessary acts of assignment and -transfer, and an attorney, or attorneys under ________, for that -purpose, to make and substitute, and to do all other lawful acts -requisite for effecting the premises, hereby ratifying and confirming -the same.</p> - -<p>In witness whereof ________ have hereunto set ________ hand ____ and -seal ____ in the city of ________, the ____ day of ________, in the -year of our Lord, 19__.</p> - -<p class="noin" style="margin-left: 1em;"><span class="sc">State of Ohio</span>,<br /> -City and County of ________ss.:</p> - -<p>On the ____ day of ________, 19__, personally appeared before me -________, to me known to be the person ________ described in, and who -executed the within instrument, and acknowledged the execution of the -same for the uses and purposes therein mentioned.</p> - -<br /> - -<h4>32</h4> - -<h4>Certificate of Stock</h4> - -<p class="right"><span style="padding-right: 55%;">No. ________</span> No. of shares ________<br /> -Par value of each, $________</p> - -<p class="noin">The ________ Company:</p> - -<p>This is to certify that ________ is the owner of ________ ________ -shares of the capital stock of the ________ Company, transferable only -on the books of the company by the holder thereof, in person or by -attorney, on the surrender of this certificate.</p> - -<p><span class='pagenum'><a name="Page_302" id="Page_302">[302]</a></span>In witness whereof, the said company has caused its corporate seal to -be affixed, hereto, and this certificate to be signed by its president -and treasurer.</p> - -<p>________, N.Y. ________, 19__.</p> - -<p class="right">________ President.<br /> -________ Treasurer.</p> - -<p>On back of the certificate a blank transfer, in following form, should -be printed.</p> - -<p>For value received, ________ hereby sell, assign, and transfer -unto ________ shares of the within-mentioned stock, and do -hereby constitute and appoint ________, attorney to transfer -the same on the books of the company.</p> - -<p>Witness my hand and seal, this ____ day of ________, -19__.</p> - -<p class="right"><span style="padding-right: 55%;">Witness:</span> __________<br /> -<span class="fakesc">(SEAL)</span></p> - -<br /> - -<h4>33</h4> - -<h4>Agreement to Sell Shares of Stock</h4> - -<p>Memorandum of agreement, made this ____ day of ________, 19__, between -A.A., of the city of New York, of the first part, and B.B., of the -same place, of the second part, witnesseth: That the said A.A. agrees -to sell and convey to the said B.B., on or before the 1st day of May -next, 1,000 shares of the capital stock of the New Haven Bank, for the -price or sum of $110 per share, and to make, execute, and deliver to -the said B.B. all assignments, transfers, and conveyances necessary to -assure the same to him, his heirs and assigns.</p> - -<p>In consideration whereof, the said B.B. agrees to pay unto the said -A.A. the price or sum or $110 for each and every share of the said -stock so assigned, whenever, and as soon as the said assignment and -the scrip of stock so assigned shall be properly executed and -delivered to the said B.B.</p> - -<p><span class='pagenum'><a name="Page_303" id="Page_303">[303]</a></span>In witness whereof, the said parties have hereunto set their hands and -seals, the day and year first above written.</p> - -<p class="right">A.A. (L.S.)<br /> -B.B. (L.S.)</p> - -<br /> - -<h4>34</h4> - -<h4>Transfer of Shares of Stock</h4> - -<p>Know all men by these presents, that I, A.B., ________ for value -received, have bargained, sold, assigned, and transferred, and by -these presents do bargain, sell, assign, and transfer unto C.D., -sixteen shares of the capital stock, standing in my name on the books -of the ________ First National Bank, and ________ do hereby constitute -and appoint the said C.D., ________ my true and lawful attorney, -irrevocable, for me and in my name and stead, but to his use, to sell, -assign, transfer, and set over all or any part of the said stock, and -for that purpose, to make and execute all necessary acts of assignment -and transfer, and one or more persons to substitute with like full -power, hereby ratifying and confirming all that my said attorney, or -his substitute, or substitutes, shall lawfully do by virtue hereof.</p> - -<p>In witness whereof, I have hereunto set my hand and seal the ____ day -of ________, 19__.</p> - -<p class="right">A.B. (<span class="fakesc">SEAL</span>)</p> - -<br /> - -<h4>35</h4> - -<h4>Assignment of Policy of Insurance</h4> - -<p>Know all men by these presents, that I, A.B., of the village of -Coxsackie, for and in consideration of $25, to me in hand paid by C.D. -of the same place, the receipt whereof is hereby acknowledged, have -sold, assigned, transferred, and set over, and by these presents do -sell, assign, transfer, and set over, unto the said C.D. the policy of -insurance, known as policy <span class='pagenum'><a name="Page_304" id="Page_304">[304]</a></span>No. 23,685 of the Indemnity Insurance -Company, and all sum and sums of money, interest benefit and advantage -whatsoever, now due, or hereafter to arise, or to be had or made by -virtue thereof, to have and to hold the same unto the said C.D., and -his assigns forever.</p> - -<p>In witness whereof, I have hereto affixed my hand, this June 20, 19__ -(A.B.)</p> - -<p>(Acknowledgment.)</p> - -<br /> - -<h4>36</h4> - -<h4>Assignment of Patent Right</h4> - -<p>"Whereas, letters-patent, bearing the date the 10th of January, 1921, -were granted and issued by the Government of the United States, under -the seal thereof, to A.B., of the town of Bristol, of the State of -Pennsylvania, for (here state the nature of the invention) a more -particular and full description thereof is annexed to the said -letters-patents in a schedule; by which letters-patents the full and -exclusive right and liberty of making and using the said invention, -and of vending the same to others to be used, was granted to the said -A.B., his heirs, executors, and administrators, or assigns, for the -term of seventeen years, from the same date.</p> - -<p>Now, know all men by these presents, that I, the said A.B., for and in -consideration of the sum of $100, to me in hand paid, the receipt -whereof is hereby acknowledged, have granted, assigned and set over, -and by these presents do grant, assign, and set over unto C.D., of the -said town of Bristol, his executors, administrators, and assigns, -forever, the said letters-patent, and all my right, title and interest -in and to the said invention, so granted unto me: to have and to hold -the said letters-patent and invention, with all benefit, profit and -advantage thereof, unto the said C.D., his executors, administrators, -and assigns, in as full, ample, and beneficial manner, to all intents -and purposes, as I, the said A.B., by virtue of the said -letters-patent, may or might have or hold the same, for and during all -the <span class='pagenum'><a name="Page_305" id="Page_305">[305]</a></span>rest and residue of the term for which said letters-patent are -granted.</p> - -<p>In witness whereof, I have hereto affixed my hand and seal, this 10th -day of June, 19__.</p> - -<p class="right">A.B. (<span class="fakesc">L.S.</span>)</p> - -<p>In the presence of<br /> -<span style="padding-left: 4%;">E.F.</span><br /> -<span style="padding-left: 4%;">G.H.</span><br /> -(Acknowledgment.)</p> - -<br /> - -<h4>37</h4> - -<h4>Bond for Payment of Money</h4> - -<p>(As in Form No. 6, and then as follows):</p> - -<p>The condition of this obligation is such, that if the above-bounden -A.B., his heirs, executors, and administrators, or any of them, shall -well and truly pay, or cause to be paid, unto the above-named C.D., -his executors, administrators, or assigns, the just and full sum of -$1,000, lawful money, as aforesaid, in manner following, to-wit: $300 -part thereof, on the ________ ____ day of ________ next ensuing the -date hereof; $300 more thereof on the ____ day of ________, the next -following; and $400, the residue, and in full payment thereof, on the -____ day of ________, which will be in the year of ________; then this -obligation to be void; but if default shall be made in payment of any -or either of the said sums on the days and times hereinbefore -mentioned and appointed for payment thereof, respectively, then this -bond shall remain in full force and virtue.</p> - -<p class="right">A.B. (<span class="fakesc">L.S.</span>)</p> - -<br /> - -<h4>38</h4> - -<h4>Articles of Co-Partnership</h4> - -<p>This agreement entered into this ____ day of ________, 19__, by and -between A.B. and C.D., witnesseth, that said <span class='pagenum'><a name="Page_306" id="Page_306">[306]</a></span>parties have formed a -co-partnership for the purpose of carrying on the business of & -________ at ________, upon the following terms and conditions:</p> - -<p>First: The name and style of said co-partnership shall be A.B. & C.D., -and shall continue ________ years from this date, unless sooner -terminated by the death of either of said partners.</p> - -<p>Second: The said A.B. shall contribute to the capital stock of said -firm the sum of $________, and the said C.D. the sum of $________, and -said partners shall be the owners of the stock in that proportion, and -any further increase of the capital stock shall be contributed by said -partners in the same ratio.</p> - -<p>Third: All the profits which shall accrue to said partnership shall be -equally divided between said partners; and all losses from whatever -cause shall be borne by them in proportion to their interests in the -stock of said firm.</p> - -<p>Fourth: Neither of said partners shall sign or in any manner become -liable upon any promissory note or other obligation, for the -accommodation of any person whatsoever, nor lend any of the -co-partnership funds without the consent in writing of the other -partner.</p> - -<p>Fifth: Neither party shall withdraw from the funds of the firm to -exceed the sum of $________, per annum, in ________ in installments of -not to exceed the sum of $________, but neither shall at any time be -entitled to draw in excess of his share of the profits then earned.</p> - -<p>Sixth: All transactions and accounts of the firm shall be kept in -regular books, which shall be open at all times to the inspection of -either party or their representatives.</p> - -<p>Seventh: An invoice of stock shall be taken on the first day of -January of each year, and the account between the parties settled at -that time. And an invoice be taken and an account had at any other -time when either partner shall demand the same in writing.</p> - -<p>Eighth: No transaction outside of the ________ business <span class='pagenum'><a name="Page_307" id="Page_307">[307]</a></span>shall be -entered into by either of said partners without the consent in writing -of his co-partner. And any violation of the terms of this agreement -shall be sufficient cause for a dissolution of this co-partnership.</p> - -<p>In testimony whereof we have hereunto set our hands this ____ day of -________, 19__.</p> - -<p class="right">A.B.<br /> -C.D.</p> - -<span style="margin-left: 1em;">In the presence of G.H.</span><br /> - -<br /> - -<h4>39</h4> - -<h4>Articles of Co-Partnership—Another Form</h4> - -<p>Articles of co-partnership, made this ____ day of ________, 19__, by -and between A.B. and C.D. both of the city of ________, witnesseth -that:</p> - -<p>The said parties hereby agree to form, and do form a co-partnership, -for the purpose of carrying on the general produce and commission -business on the following terms and articles of agreement, to the -faithful performance of which they mutually engage and bind -themselves, each to the other.</p> - -<p>The style and name of the co-partnership shall be B. and D., and shall -commence on the ____ day of ________, 19__, and continue for the -period of five years.</p> - -<p>Each of the said parties agrees to contribute to the funds of the -partnership the sum of $3,000 in cash, which shall be paid in, on or -before the ____ day of ________, 19__, and each of said parties shall -devote and give all his time and attention to the business, and to the -care and superintendence of the same.</p> - -<p>All profits which may accrue to the said partnership shall be divided -equally, and all losses happening to the said firm, whether from bad -debts, depreciation of goods, or any other cause or accident, and all -expenses of the business shall be borne by the said parties equally.</p> - -<p><span class='pagenum'><a name="Page_308" id="Page_308">[308]</a></span>All the purchases, sales transactions, and accounts of the said firm -shall be kept in regular books, which shall be always open to the -inspection of both parties and their regular representatives -respectively.</p> - -<p>An account of stock shall be taken, and an account between the parties -shall be settled as often as once a year, and as much oftener as -either partner may desire, and in writing request.</p> - -<p>Neither of the said parties shall subscribe any bond, sign or indorse -any note of hand, accept, sign, or indorse any draft or bill of -exchange, or assume any other liability, verbal or written, either in -his own name or in the name of the firm, for the accommodation of any -other person or persons whatsoever, without the consent in writing of -the other party; nor shall either party lend any of the funds of the -co-partnership without such consent of the other partner.</p> - -<p>No large purchase shall be made, nor any transaction out of the usual -course of the business shall be undertaken by either of the partners, -without previous consultation with, and the approbation of, the other -partner.</p> - -<p>Neither shall withdraw from the joint stock, at any time, more than -his share of the profits of the business then earned nor shall either -party be entitled to interest on his share of the capital; but if, at -the expiration of the year, a balance of profits be found due to -either partner, he shall be at liberty to withdraw the said balance, -or to leave it in the business, provided the other partner consent -thereto, and in that case be allowed interest on the said balance.</p> - -<p>At the expiration of the aforesaid term, or earlier dissolution of -this co-partnership, if the said parties, or their legal -representatives, cannot agree in the division of the stock then on -hand, the whole co-partnership effects, except the debts due to the -firm, shall be sold at public auction, at which both parties shall be -at liberty to bid and purchase like other individuals, and the -proceeds shall be divided, after payment of the debts of the firm, in -the proportions aforesaid.</p> - -<p>For the purpose of securing the performance of the foregoing -<span class='pagenum'><a name="Page_309" id="Page_309">[309]</a></span>agreements, it is agreed, that either party, in case of any violation -of them, or either of them, by the other, shall have the right to -dissolve this co-partnership forthwith, on his becoming informed of -such violation.</p> - -<p>In witness whereof, we, the said A.B. and C.D., have hereto set our -hands, the day and year first above written.</p> - -<p>Executed and delivered in the presence of</p> - -<p>(Acknowledgment.)</p> - -<p class="right">A.B.<br /> -C.D.</p> - -<br /> - -<h4>40</h4> - -<h4>Letter of Credit</h4> - -<p class="noin">A.B. & Co ________:</p> - -<p><i>Gentlemen.</i>—We will be responsible to you for goods sold to C.D., of -________, to an amount not exceeding ________ dollars (or, for cash -advanced to C.D., of ________ not exceeding ________ dollars), (or, -for credit secured by you to C.D., of ________, in the purchase of -(describe the kind of goods), not exceeding the sum of ________ -dollars) at any time before ________, 19__, unless this letter is -revoked prior to said date; and providing you send notice to us by -mail within ten days of the granting of such credit or making such -payment, and also in case said C.D. should default in making payment -of any part of any debt created by reason of this agreement when such -payment shall become regularly due, then notice of such default shall -be sent by mail to us within five days of such default.</p> - -<p>Dated, ________ 19__. <span style="padding-left: 55%;">(Signature)</span></p> - -<br /> - -<h4>41</h4> - -<h4>Agreement for Sale of Physician's Practice</h4> - -<p>Agreement made this ____ day of ________, 19__, between ________, -hereinafter called the vendor, and ________, hereinafter called the -purchaser.</p> - -<p><span class='pagenum'><a name="Page_310" id="Page_310">[310]</a></span>1. Whereas the said vendor has for many years past exercised his -profession of physician and surgeon at ________, in the county of -________, and is now desirous of retiring from his practice at -________ aforesaid, and the said purchaser is desirous of establishing -himself as a physician and surgeon at said ________, now therefore, -the said vendor agrees to sell to the said purchaser, who agrees to -purchase, the said practice and the good will and benefits thereof -from the ____ day of ________ next, together with all the fixtures, -furniture, medical books, surgical and other instruments and -apparatus, and all the drugs, medicines, bottles, and other things now -used therein, for the sum of ________ dollars; in confirmation of -which purchase the purchaser, upon the execution of these presents, -has paid the sum of ________ dollars by way of deposit and in part of -the purchase money.</p> - -<p>2. The said vendor further agrees that, on the payment of the residue -of the said purchase money as hereinafter mentioned, he will fully and -absolutely deliver over and assign to the said purchaser, his -executors, administrators, or assigns, the said practice or business, -and the good will thereof, for his and their own absolute use and -benefit; and likewise the full and uninterrupted possession of the -office in which the said practice is now carried on by him, together -with the fixtures, furniture, books, instruments, apparatus, and -things now used in and relating to the said practice.</p> - -<p>3. The said vendor will introduce and recommend the said purchaser to -his patients, friends, and others, as his successor; and will use his -best endeavors to promote and increase the prosperity of the said -practice or business.</p> - -<p>4. The said vendor will not reside or practise either as physician or -surgeon, or act directly or indirectly as partner or assistant to or -with any other physician or surgeon practising ________ either at -________ aforesaid, or elsewhere, within ________ miles thereof.</p> - -<p>5. The said purchaser, in consideration of the agreements <span class='pagenum'><a name="Page_311" id="Page_311">[311]</a></span>on the part -of the vendor hereinbefore contained, hereby further agrees to pay -him, his executors, or administrators, ________ dollars, by -installments as follows: one-half part thereof on the ____ day of -________ next, upon receiving the full and peaceable possession of the -said practice, office, good will, fixtures, furniture, books, and -things hereinbefore mentioned, and the remaining half part thereon on -the ____ day of ________ next.</p> - -<p>In witness, etc.</p> - -<br /> - -<h4>42</h4> - -<h4>Agreement Between Merchant and Traveling Salesman</h4> - -<p>Agreement made this ________ of ________, between ________ of -________, and ________ of ________, merchants and co-partners, doing -business under the firm name and style of ________ & Co., of the one -part, and ________ of ________, traveling salesman of the other part.</p> - -<p>1. The said salesman shall enter into the service of said firm as a -traveler for them in their business of ________ merchants, for the -period of ________ years from the ____ day of ________ 19__, subject -to the general control of said firm.</p> - -<p>2. The said salesman shall devote the whole of his time, attention, -and energies to the performance of his duties as such salesman, and -shall not, either directly or indirectly, alone or in partnership, be -connected with or concerned in any other business or pursuit during -the said term of ________ years.</p> - -<p>3. The said salesman shall, subject to the control of the said firm, -keep proper books of account, and make due and correct entries of the -price of all goods sold, and of all transactions and dealings of and -in relation to the said business, and shall serve the said firm -diligently and according to his best abilities in all respects.</p> - -<p>4. The fixed salary of the said salesman shall be the sum of <span class='pagenum'><a name="Page_312" id="Page_312">[312]</a></span>________ -dollars per week for the first year, payable by the said firm weekly -from the commencement of the said service, on the ____ day of -________, and ________ dollars per week for the third year, payable -weekly in like manner, from the commencement of such respective years.</p> - -<p>5. The reasonable traveling expenses and hotel bills of the said -salesman, incurred in connection with the business of said firm, shall -be paid by the said firm, and the said firm shall from week to week -pay to the said salesman the said traveling expenses and hotel bills -in addition to the said fixed salary.</p> - -<p>In witness, etc.</p> - -<p class="right">__________<br /> -__________</p> - -<br /> - -<h4>43</h4> - -<h4>Agreement for the Adoption of Children</h4> - -<p>This indenture made the ____ day of ________, 19__, between ________ -of ________, party of the first part, and ________, of ________, and -________ his wife, parties of the second part.</p> - -<p>Whereas the said party of the first part has two daughters, ________ -and ________, now aged ________ and ________ years, respectively; and -whereas the said parties of the second part are willing to adopt the -said children subject to the conditions hereinafter contained, and on -the part of the party of the first part to be observed: Now this -indenture witnesseth that the said parties covenant and agree as -follows, that is to say:</p> - -<p>1. The said parties of the second part shall adopt the said children, -and shall, until the said children shall respectively attain the age -of twenty-one years, or marry under that age, maintain, board, lodge, -clothe, and educate them in a manner suitable to their station, and as -if they were the lawful children of the parties of the second part and -shall at the cost of the parties of the second part, and of the -survivor of them, provide <span class='pagenum'><a name="Page_313" id="Page_313">[313]</a></span>the said children with all necessaries, and -discharge all the debts and liabilities which the said children or -either of them may incur for necessaries, and indemnify the said party -of the first part against all actions, claims, and demands in respect -thereof.</p> - -<p>2. The said party of the first part hereby nominates and appoints the -said parties of the second part, during their lives, and after their -respective deaths the person or persons to be nominated in that -behalf, as is hereinafter mentioned, to be the guardians of the -persons and estates of the said children until they shall attain the -age of twenty-one years, or until they shall marry under that age -respectively.</p> - -<p>3. The said party of the first part shall not revoke the appointment -hereby expressed to be made, and will not, by deed, will, or -otherwise, appoint or apply for the appointment of any other person or -persons to be guardian or guardians of the said children or either of -them, or of their respective estates.</p> - -<p>4. In case of the death of either of the parties of the second part -before the said children shall attain the age of twenty-one years, or -marry under that age respectively, it shall be lawful for the survivor -of them, the said parties of the second part, by deed or will, to -nominate and appoint any person or persons, from and after the decease -of such survivor, to be guardian or guardians of the said children or -either of them.</p> - -<p>5. The said party of the first part shall not himself, nor shall any -person or persons claiming under him, or acting under his authority, -at any time or in any manner interfere with the training or management -of the said children or either of them, or with their or her moral, -intellectual, or religious education or instruction.</p> - -<p>6. If the said party of the first part shall not perform and observe -all and every of the stipulations herein contained and on his part to -be performed and observed, then and in every such case it shall be -lawful for the said parties of the second part, and the survivor of -them, by notice in writing under their, his or her hands or hand, and -addressed either to the party of the first part or to the person -setting up such claim or <span class='pagenum'><a name="Page_314" id="Page_314">[314]</a></span>demand, or so interfering as aforesaid, to -put an end to the agreement hereby expressed to be made, and thereupon -the same shall absolutely cease and determine; provided that in such -event the said party of the first part, or his estate, shall be liable -to pay and satisfy all debts and liabilities incurred by or in any -wise for the benefit of the said children, or either of them, which at -the time of such determination of this agreement shall not have been -paid and satisfied. In witness, etc.</p> - -<br /> - -<h4>44</h4> - -<h4>Release by Ward of His Guardian</h4> - -<p>Know all men by these presents, that I, A.B., of ________, son and -heir of ________, deceased, in consideration of ________, by these -presents remise, release, and forever discharge C.D., of ________, my -guardian, of and from all manner of actions, suits, accounts, debts, -dues, and demands whatsoever, which I ever had, now have, or which I -or my executors or administrators, at any time hereafter, can or may -have, claim or demand against the said C.D., his executors or -administrators, for, touching, or concerning the management and -disposition of any of the lands, tenements, or hereditaments of the -said A.B., situate, etc., or any part thereof, or for or by reason of -any money, rents, or other profits by him received out of the same, or -any payments made thereof, during the minority of the said A.B., or by -reason of any matter, cause or thing whatsoever, from the beginning of -the world to the day of the date hereof.</p> - -<p>In witness whereof, I have hereunto set my hand and seal, this ____ -day of ________, one thousand nine hundred and ________.</p> - -<p class="right">(Signature and seal)<br /> -________</p> - -<p>In presence of</p> - -<p class="right">(Signature of witness)<br /> -__________<br /> -__________</p> - -<br /> - -<h4><span class='pagenum'><a name="Page_315" id="Page_315">[315]</a></span>45</h4> - -<h4>Will</h4> - -<p>In the name of God, amen: I, A.B., of the city of ________, in the -county of ________, and state of ________, considering the uncertainty -of this mortal life, and being of sound mind and memory, blessed be -God for the same, do make and publish this my last will and testament, -in manner and form following, that is to say:</p> - -<p>First: I direct that my funeral charges, the expenses of administering -my estate, and all my debts be paid out of my personal property. If -that be insufficient I authorize my executors, hereafter named, to -sell so much of my real estate as may be necessary for that purpose.</p> - -<p>Second: I give and bequeath to my beloved wife, C.B., the sum of -$________, in lieu of dower, and of any distributive share in my -estate to which she would otherwise be entitled. I also give and -bequeath to my beloved wife the dwelling-house and lot on which I now -reside.</p> - -<p>Third: I hereby give the custody of my infant children during their -minority, and while they remain unmarried, to my beloved wife, so long -as she remains my widow; but if she shall die or marry again during -the infancy of said children, then in that case, I commit their -custody and tuition to my friend E.F., of said city and state.</p> - -<p>Fourth: I give and bequeath all of the residue of my estate, real and -personal, to my children, share and share alike, as tenants in common, -to be paid to them as they respectively come of age. In case any one -of my children shall die in my lifetime, leaving issue of descendants, -I direct that his share shall not lapse, but shall be paid to such -descendants, in equal proportions.</p> - -<p>Fifth: I appoint my friend G.H. executor of this, my last will and -testament, hereby revoking all former wills by me made.</p> - -<p><span class='pagenum'><a name="Page_316" id="Page_316">[316]</a></span>In witness whereof I have hereunto subscribed my name this 1st day of -________, in the year of our Lord ________.</p> - -<p class="right">A.B.</p> - -<p>We, whose names are hereunto subscribed, do hereby certify that A.B., -the testator, subscribed his name to this instrument in our presence -and in the presence of each of us, and declared at the same time in -our presence and hearing that this instrument was his last will and -testament, and we at his request, sign our names hereto in his -presence as attesting witnesses.</p> - -<p class="right">L.M., of the city of ________<br /> -N.O., of the city of ________</p> - -<br /> - -<h4>46</h4> - -<h4>Will—Another Form</h4> - -<p>I, A.B., of the town of ________, in the county of ________, and state -of________, declare this to be my last will and testament:</p> - -<p>I give and bequeath to my wife, C.B., ________ dollars, to be received -by her in lieu of dower.</p> - -<p>To my son, E.B., ________ dollars (which said several legacies I -direct to be paid within ________ after my decease).</p> - -<p>I give and devise to my son, E.B. aforesaid, his heirs and assigns, -all (here designate the property), together with all the hereditaments -and appurtenances thereunto belonging or in anywise appertaining.</p> - -<p>To have and to hold the premises above described to the said E.B., his -heirs and assigns forever.</p> - -<p>I give and devise all the rest, residue, and remainder of my real -property, of every name and nature whatsoever, to my said daughter, -M.B. (and my daughter, O.B., to be divided equally between them, share -and share alike).</p> - -<p>I give and bequeath all the rest, residue and remainder of <span class='pagenum'><a name="Page_317" id="Page_317">[317]</a></span>my -personal property, of what nature or kind soever, to my said wife, -C.B.</p> - -<p>I hereby appoint E.B. the sole executor of this will, revoking all -former wills by me made.</p> - -<p>In witness (etc., as in Form 45).</p> - -<br /> - -<h4>47</h4> - -<h4>Will Bequeathing Legacies and Appointing Residuary Legatee</h4> - -<p>I, A.B., of ________, declare this to be my last will and testament.</p> - -<p>I bequeath to my wife, C.B., all the fixtures, prints, books, plate, -linen, china, wines, liquors, provisions, household goods, furniture, -chattels, and effects (other than money or securities for money), -which shall at my death be in or about my dwelling-house and premises -at ________.</p> - -<p>I bequeath to my said wife the sum of ________ dollars, to be paid to -her within one month after my death, without interest.</p> - -<p>I also give and bequeath to my said wife the sum of ________ dollars.</p> - -<p>I also bequeath the following legacies to the several persons -hereafter named: To my nephew, E.F., the sum of ________ dollars; to -my cousin, G.H., the sum of ________ dollars; and to my friend, J.K., -the sum of ________ dollars (and so on with other pecuniary legacies).</p> - -<p>I also bequeath to each of my domestic servants who shall be living -with me at the time of my death in the capacity of (state the -description of servants to whom the legacies are to be given), one -year's wages, in addition to what may be due to them at that time.</p> - -<p>All the rest, residue and remainder of my real and personal estate, I -devise and bequeath to R.S., his heirs, executors, administrators, and -assigns, absolutely forever.</p> - -<p><span class='pagenum'><a name="Page_318" id="Page_318">[318]</a></span>I appoint T.U. and V.W. executors of this my will.</p> - -<p>In witness, etc.</p> - -<br /> - -<h4>48</h4> - -<h4>Articles of Incorporation</h4> - -<p>Know all men by these presents. That we, ________, ________, ________, -________, ________, ________, do associate ourselves together for the -purpose of forming and becoming a corporation in the state of -________, for the transaction of the business hereinafter described.</p> - -<p>1. The name of the corporation shall be (give name). The principal -place of transacting its business shall be in the city of ________, -county of ________, and state of ________.</p> - -<p>2. The nature of the business to be transacted by said corporation -shall be the (give name of business) and the erection and maintenance -of such buildings and structures as may be deemed necessary, and to -purchase real estate as a site therefor, and especially to ________.</p> - -<p>3. The authorized capital stock of said corporation shall be (state -amount) thousand dollars in shares of $________ each, to be subscribed -and paid as requested by the board of directors.</p> - -<p>4. The existence of this corporation shall commence on the first day -of ________, A.D., 19__, and continue during the period of ________ -years.</p> - -<p>5. The business of said corporation shall be conducted by a board of -directors not to exceed five in number, to be elected by the -stockholders; such election to take place at such time and be -conducted in such manner as shall be prescribed by the by-laws of said -corporation.</p> - -<p>6. The officers of said corporation shall be a president, secretary -and treasurer, who shall be chosen by the board of directors, and -shall hold their office for the period of one year, and until their -successors shall be elected and qualified.</p> - -<p>7. The highest amount of indebtedness to which said <span class='pagenum'><a name="Page_319" id="Page_319">[319]</a></span>corporation shall -at any time subject itself shall be not more than ________ thousand -dollars.</p> - -<p>8. The manner of holding the meetings of stockholders for the election -of officers, and the method of conducting the business of the -corporation, shall be as provided by the by-laws, adopted by the board -of directors.</p> - -<p>In witness whereof, the undersigned have hereunto set their hand this -____ day of ________ A.D., 19__.</p> - -<p class="right">________, ________, ________<br /> -________, ________, ________</p> - -<span style="margin-left: 1em;">State of ________ }</span><br /> -<span style="margin-left: 1em;">________ County. }</span><br /> - -<p>On this ____ day of ________, 19__, before me, A.B., a justice of the -peace, in and for the said county, personally appeared the above named -________, ________, ________, ________, who are personally known to me -to be the identical persons whose names are affixed to the above -articles, as parties thereto, and they severally acknowledged the -instrument to be their voluntary act and deed.</p> - -<p>Witness my hand the date aforesaid.</p> - -<p class="right">A.B.<br /> -Justice of the Peace.</p> - -</div> - -<br /> -<br /> -<span class='pagenum'><a name="Page_320" id="Page_320">[320]</a></span><br /> -<br /> -<span class='pagenum'><a name="Page_321" id="Page_321">[321]</a></span><hr /> -<br /> - -<h3>Index</h3> -<br /> - -<ul><li>Acceptance and delivery, what constitutes, <a href="#Page_242">242</a></li> - -<li>Action, defined, <a href="#Page_4">4</a></li> - -<li>Actions, different kinds of, <a href="#Page_165">165</a> 166</li> - -<li>Administrator, may dispose of lease, <a href="#Page_155">155</a>, <a href="#Page_156">156</a>; - <ul class="nest"> - <li>can assign remainder of lease, <a href="#Page_157">157</a></li> - </ul> -</li> - -<li>Adoption of children, form for or agreement for, <a href="#Page_312">312</a>. - <ul class="nest"> - <li>See <i>Child, Adopted</i></li> - </ul> -</li> - -<li>Adulteration of a commodity, <a href="#Page_260">260</a></li> - -<li>Advantage, incidental, <a href="#Page_218">218</a></li> - -<li>Agency, <a href="#Page_6">6</a>; - <ul class="nest"> - <li>how created, <a href="#Page_7">7</a>;</li> - <li>post-office agency of offerer of contract, <a href="#Page_69">69</a>, <a href="#Page_70">70</a></li> - </ul> -</li> - -<li>Agent, when authority must be in writing, <a href="#Page_7">7</a>; - <ul class="nest"> - <li>cannot purchase principal's property, <a href="#Page_8">8</a>;</li> - <li>power affected by usage or custom, <a href="#Page_8">8</a>;</li> - <li>invalid act of, cannot be ratified, <a href="#Page_9">9</a>;</li> - <li>ratifying a forgery, <a href="#Page_9">9</a>;</li> - <li>cannot appoint a substitute, <a href="#Page_10">10</a>;</li> - <li>liability of, <a href="#Page_10">10</a>;</li> - <li>secret instructions to, <a href="#Page_11">11</a>;</li> - <li>cannot act for both parties, <a href="#Page_12">12</a>;</li> - <li>cannot receive profit from transaction, <a href="#Page_12">12</a>;</li> - <li>must be faithful, <a href="#Page_12">12</a>;</li> - <li>termination of relation of, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>, <a href="#Page_15">15</a>;</li> - <li>duties of affected by insanity of principal, <a href="#Page_13">13</a>;</li> - <li>marriage of principal, <a href="#Page_13">13</a>;</li> - <li>must keep principal informed, <a href="#Page_14">14</a>;</li> - <li>liability of principal for acts and statements, <a href="#Page_9">9</a>, <a href="#Page_10">10</a>, <a href="#Page_11">11</a>, <a href="#Page_12">12</a>, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>;</li> - <li>auctioneer owners, <a href="#Page_16">16</a>;</li> - <li>auctioneer purchaser's, <a href="#Page_16">16</a>, <a href="#Page_1">1</a>;</li> - <li>length of term of, <a href="#Page_17">17</a>;</li> - <li>for corporation, <a href="#Page_26">26</a>;</li> - <li>bailor as, <a href="#Page_28">28</a>;</li> - <li>broker as, <a href="#Page_45">45</a>;</li> - <li>may make chattel mortgage, <a href="#Page_53">53</a>;</li> - <li>how should sign checks, <a href="#Page_58">58</a>;</li> - <li>authority of to receive stock subscriptions, <a href="#Page_77">77</a>;</li> - <li>deception of releases subscriber, <a href="#Page_77">77</a>, <a href="#Page_78">78</a>;</li> - <li>corporation can do wrong through, <a href="#Page_98">98</a>;</li> - <li>can be appointed to examine books, <a href="#Page_101">101</a>;</li> - <li>has insurable interest in goods, <a href="#Page_126">126</a>;</li> - <li>state prosecutes through, <a href="#Page_164">164</a></li> - </ul> -</li> - -<li>Agent, general, <a href="#Page_6">6</a>, <a href="#Page_7">7</a>, <a href="#Page_8">8</a>, <a href="#Page_10">10</a>; - <ul class="nest"> - <li>partner is a, <a href="#Page_198">198</a></li> - </ul> -</li> - -<li>Agent, special, <a href="#Page_6">6</a>, <a href="#Page_7">7</a>, <a href="#Page_18">18</a>; - <ul class="nest"> - <li>insurance broker is a, <a href="#Page_46">46</a></li> - </ul> -</li> - -<li>Agisters, <a href="#Page_30">30</a></li> - -<li>Alien, may become voluntary or involuntary bankrupt, <a href="#Page_31">31</a>; - <ul class="nest"> - <li>woman who marries American, <a href="#Page_62">62</a>;</li> - <li>may be naturalized, <a href="#Page_62">62</a>, <a href="#Page_63">63</a>;</li> - <li>rights of, <a href="#Page_63">63</a>;</li> - <li>owes temporary and limited allegiance, <a href="#Page_63">63</a>;</li> - <li>non-resident, <a href="#Page_63">63</a>, <a href="#Page_64">64</a></li> - </ul> -</li> - -<li>Animals, vicious, a nuisance, <a href="#Page_258">258</a></li> - -<li>Annoyances, temporary, <a href="#Page_256">256</a></li> - -<li>Apologies for slander and libel, <a href="#Page_255">255</a></li> - -<li>Appeals, court of, <a href="#Page_4">4</a></li> - -<li>Apprentices, and Compensation Acts, <a href="#Page_268">268</a></li> - -<li>Arbitration, <a href="#Page_45">45</a></li> - -<li>Assault and battery, a wrong, <a href="#Page_250">250</a></li> - -<li>Assent, mutual, basis of sales and contracts to sell, <a href="#Page_227">227</a></li> - -<li><span class='pagenum'><a name="Page_322" id="Page_322">[322]</a></span>Assets, disposition of in partnership failure, <a href="#Page_202">202</a></li> - -<li>Assignment. See <i>Bankruptcy</i>: <i>Patent</i></li> - -<li>Associations, beneficial, <a href="#Page_38">38</a>; - <ul class="nest"> - <li>social and business, <a href="#Page_38">38</a>;</li> - <li>voluntary, <a href="#Page_39">39</a>;</li> - <li>incorporated, <a href="#Page_39">39</a>;</li> - <li>articles and rules, <a href="#Page_39">39</a>;</li> - <li>legal status, <a href="#Page_39">39</a>;</li> - <li>members not partners, <a href="#Page_39">39</a>;</li> - <li>liability to creditors, <a href="#Page_39">39</a>, <a href="#Page_40">40</a>;</li> - <li>rights of members, <a href="#Page_40">40</a>;</li> - <li>recovery of property by members, <a href="#Page_41">41</a>;</li> - <li>exemption from taxation, <a href="#Page_41">41</a>;</li> - <li>admission of members, <a href="#Page_41">41</a>, <a href="#Page_42">42</a>;</li> - <li>initiation, <a href="#Page_42">42</a>;</li> - <li>property rights of religions, <a href="#Page_42">42</a>;</li> - <li>benefits to sick members, <a href="#Page_42">42</a>, <a href="#Page_43">43</a>;</li> - <li>power to expel, <a href="#Page_43">43</a>, <a href="#Page_44">44</a>;</li> - <li>expulsion in subordinate lodges, <a href="#Page_44">44</a>;</li> - <li>restoration of members, <a href="#Page_44">44</a>;</li> - <li>withdrawal of members, <a href="#Page_44">44</a>;</li> - <li>liability of members for promised benefit, <a href="#Page_44">44</a>, <a href="#Page_45">45</a>;</li> - <li>cannot confer judicial power on its officers, <a href="#Page_45">45</a>;</li> - <li>cannot defer future controversies to arbitration, <a href="#Page_45">45</a></li> - </ul> -</li> - -<li>Assumpsit, action of, <a href="#Page_165">165</a></li> - -<li>Attorney. See <i>Power of Attorney</i></li> - -<li>Auctioneer, <a href="#Page_16">16</a>; - <ul class="nest"> - <li>owner's agent, <a href="#Page_16">16</a>;</li> - <li>purchaser's agent, <a href="#Page_16">16</a>, <a href="#Page_17">17</a>;</li> - <li>must bind purchaser, <a href="#Page_16">16</a>;</li> - <li>completes sale, <a href="#Page_17">17</a>;</li> - <li>authority, how conferred, <a href="#Page_17">17</a>;</li> - <li>a special agent, <a href="#Page_18">18</a>;</li> - <li>authority of, <a href="#Page_18">18</a>, <a href="#Page_19">19</a>;</li> - <li>has properties in goods to be sold, <a href="#Page_45">45</a></li> - </ul> -</li> - -<li>Automobile, <a href="#Page_19">19</a>; - <ul class="nest"> - <li>rights of owner,19, <a href="#Page_20">20</a>;</li> - <li>no superior rights, <a href="#Page_20">20</a>;</li> - <li>non-resident driver, <a href="#Page_20">20</a>;</li> - <li>license, <a href="#Page_20">20</a>;</li> - <li>liability of bailor, <a href="#Page_20">20</a>, <a href="#Page_21">21</a>;</li> - <li>responsibility of hirer, <a href="#Page_21">21</a>;</li> - <li>sale of, by hirer, <a href="#Page_21">21</a>;</li> - <li>obligation on hirer's part, <a href="#Page_21">21</a>;</li> - <li>owner's redress of car misused, <a href="#Page_21">21</a>;</li> - <li>duty of owner or hirer when carrying passengers, <a href="#Page_22">22</a>;</li> - <li>compensation of owner, <a href="#Page_22">22</a>;</li> - <li>liability for using without owner's consent, <a href="#Page_22">22</a>;</li> - <li>liability of a corporation hirer, <a href="#Page_22">22</a>;</li> - <li>liability for joy riding, <a href="#Page_22">22</a>;</li> - <li>speed of, <a href="#Page_22">22</a>;</li> - <li>exclusion of, <a href="#Page_22">22</a>;</li> - <li>"the law of the road," <a href="#Page_22">22</a>, <a href="#Page_23">23</a>;</li> - <li>rights of pedestrian, <a href="#Page_22">22</a>, <a href="#Page_23">23</a>;</li> - <li>passing each other, <a href="#Page_23">23</a>;</li> - <li>backing, <a href="#Page_23">23</a>, <a href="#Page_24">24</a>;</li> - <li>meeting in street, <a href="#Page_23">23</a>;</li> - <li>at intersecting streets, <a href="#Page_24">24</a>;</li> - <li>obstructions in road, <a href="#Page_24">24</a>;</li> - <li>driver must use care to avoid injury, <a href="#Page_24">24</a>, <a href="#Page_25">25</a>;</li> - <li>competency of driver, <a href="#Page_25">25</a>;</li> - <li>must be under reasonable control, <a href="#Page_25">25</a>;</li> - <li>driving in a fog, <a href="#Page_25">25</a>;</li> - <li>liability of owner, <a href="#Page_25">25</a></li> - <li>See <i>Chauffeur</i>, <i>Garage Keeper</i></li> - </ul> -<br /></li> - - -<li>Bacon, quoted, <a href="#Page_45">45</a></li> - -<li>Bailee, liability of a minor, <a href="#Page_26">26</a>; - <ul class="nest"> - <li>corporation as, <a href="#Page_26">26</a>;</li> - <li>finder of lost property is, <a href="#Page_26">26</a>, <a href="#Page_27">27</a>;</li> - <li>rights of creditor of, <a href="#Page_28">28</a>;</li> - <li>liability of, <a href="#Page_28">28</a>, <a href="#Page_29">29</a>;</li> - <li>must be informed of all faults, <a href="#Page_28">28</a>, <a href="#Page_29">29</a>;</li> - <li>liability of bank as, <a href="#Page_29">29</a>;</li> - <li>liability of a safe deposit company as, <a href="#Page_29">29</a>;</li> - <li>usually a keeper only, <a href="#Page_29">29</a>;</li> - <li>exceptions, <a href="#Page_29">29</a>, <a href="#Page_30">30</a>;</li> - <li>return of property at end of bailment, <a href="#Page_30">30</a>;</li> - <li>lien for services, <a href="#Page_30">30</a>;</li> - <li>has insurable interest in goods, <a href="#Page_126">126</a>;</li> - <li>garage keeper is a, <a href="#Page_133">133</a></li> - </ul> -</li> - -<li>Bailment, <a href="#Page_20">20</a>, <a href="#Page_26">26</a>-30</li> - -<li>Bailor, not responsible for negligence of hirer, <a href="#Page_20">20</a>; - <ul class="nest"> - <li>may bring action against innocent purchaser, <a href="#Page_21">21</a>;</li> - <li>corporation as, <a href="#Page_26">26</a>;</li> - <li>and bailee, <a href="#Page_26">26</a>;</li> - <li>rights of, <a href="#Page_28">28</a>;</li> - <li>not always owner of thing bailed, <a href="#Page_28">28</a>;</li> - <li>must explain all faults, <a href="#Page_28">28</a>, <a href="#Page_29">29</a></li> - </ul> -</li> - -<li>Bank, custodian of lost property, <a href="#Page_27">27</a>; - <ul class="nest"> - <li>liability as bailee, <a href="#Page_29">29</a>;</li> - <li>not legally bound to pay check to holder, <a href="#Page_58">58</a>;</li> - <li><span class='pagenum'><a name="Page_323" id="Page_323">[323]</a></span>agreement to pay check is with depositor, <a href="#Page_58">58</a>;</li> - <li>responsible for payment of checks, <a href="#Page_59">59</a>;</li> - <li>not responsible for checks carelessly written, <a href="#Page_60">60</a>;</li> - <li>liability for forged checks, <a href="#Page_60">60</a>;</li> - <li>is liable if makes payment on stopped check, <a href="#Page_61">61</a>;</li> - <li>life of a national, <a href="#Page_73">73</a>;</li> - <li>can retain dividend, <a href="#Page_78">78</a>;</li> - <li>liability of national shareholders, <a href="#Page_78">78</a>, <a href="#Page_79">79</a>;</li> - <li>directors of national, <a href="#Page_87">87</a>;</li> - <li>directors of, <a href="#Page_88">88</a>, <a href="#Page_91">91</a>, <a href="#Page_94">94</a>;</li> - <li>who loans money of, <a href="#Page_88">88</a>;</li> - <li>president, <a href="#Page_91">91</a>, <a href="#Page_92">92</a>;</li> - <li>national cannot always certify a check, <a href="#Page_99">99</a></li> - </ul> -</li> - -<li>Bankrupt, voluntary and involuntary defined, <a href="#Page_31">31</a>; - <ul class="nest"> - <li>filing of petition of voluntary, <a href="#Page_33">33</a>;</li> - <li>withdrawal of petition, <a href="#Page_33">33</a>;</li> - <li>what must accompany petition, <a href="#Page_33">33</a>;</li> - <li>filing of petition against, <a href="#Page_33">33</a>, <a href="#Page_34">34</a>;</li> - <li>must file schedule of property, <a href="#Page_34">34</a>;</li> - <li>first meeting of creditors, <a href="#Page_34">34</a>;</li> - <li>subsequent meetings, <a href="#Page_34">34</a>;</li> - <li>represented by trustee, <a href="#Page_34">34</a>, <a href="#Page_36">36</a>, <a href="#Page_37">37</a>;</li> - <li>proving and allowing claims against, <a href="#Page_35">35</a>, <a href="#Page_36">36</a>;</li> - <li>insurance policy of, <a href="#Page_37">37</a>;</li> - <li>discharge of, <a href="#Page_38">38</a>;</li> - <li>punishment of, <a href="#Page_38">38</a></li> - </ul> -</li> - -<li>Bankruptcy, <a href="#Page_31">31</a>; - <ul class="nest"> - <li>Federal Act 1898, <a href="#Page_31">31</a>, <a href="#Page_37">37</a>, <a href="#Page_38">38</a>;</li> - <li>courts of, <a href="#Page_31">31</a>;</li> - <li>voluntary and involuntary, <a href="#Page_31">31</a>;</li> - <li>acts of, defined, <a href="#Page_32">32</a>, <a href="#Page_33">33</a>;</li> - <li>procedure in, <a href="#Page_33">33</a>-38</li> - </ul> -</li> - -<li>Beneficial associations. See <i>Associations, Beneficial</i></li> - -<li>Benefit, conference of a, <a href="#Page_218">218</a></li> - -<li>Bid, authority of auctioneer to accept, <a href="#Page_18">18</a></li> - -<li>Bill and note broker, <a href="#Page_45">45</a></li> - -<li>Bill of exchange, definition, <a href="#Page_196">196</a>; - <ul class="nest"> - <li>assignment of drawee's funds, <a href="#Page_196">196</a>;</li> - <li>similarity of, and endorsed note, <a href="#Page_196">196</a></li> - </ul> -</li> - -<li>Bill of Lading, <a href="#Page_48">48</a>, <a href="#Page_243">243</a></li> - -<li>Bill of sale, form for, <a href="#Page_281">281</a></li> - -<li>Boarding house, liability of keeper of, <a href="#Page_149">149</a></li> - -<li>Bonds, government, equity does not require delivery of actual bonds purchased, <a href="#Page_120">120</a></li> - -<li>Bottomry loan, <a href="#Page_239">239</a></li> - -<li>Broker, <a href="#Page_45">45</a>; - <ul class="nest"> - <li>has no property in goods to be sold, <a href="#Page_45">45</a>;</li> - <li>must sell in principal's name, <a href="#Page_45">45</a>;</li> - <li>commission, <a href="#Page_45">45</a>, <a href="#Page_47">47</a>;</li> - <li>acts as agent, <a href="#Page_45">45</a>;</li> - <li>kinds of, <a href="#Page_45">45</a>, <a href="#Page_46">46</a>, <a href="#Page_47">47</a>.</li> - <li>See <i>Agency</i></li> - </ul> -</li> - -<li>Brokerage, <a href="#Page_45">45</a></li> - -<li>Building, form for agreement for, <a href="#Page_278">278</a>. - <ul class="nest"> - <li>See <i>Real Estate</i>, <i>Land</i></li> - </ul> -</li> - -<li>Burglary, excused by drunkenness, <a href="#Page_117">117</a></li> - -<li>Buy and sell, regulations concerning capacity to, <a href="#Page_228">228</a></li> - -<li>By-laws, neglect of, in holding meeting, <a href="#Page_81">81</a><br /><br /></li> - - -<li>Capital, <a href="#Page_74">74</a>, <a href="#Page_78">78</a>, <a href="#Page_94">94</a></li> - -<li>Carrier, <a href="#Page_48">48</a>; - <ul class="nest"> - <li>kinds, <a href="#Page_48">48</a>;</li> - <li>authority of private, <a href="#Page_48">48</a>;</li> - <li>required to use great care, <a href="#Page_48">48</a>;</li> - <li>may modify common law by contract, <a href="#Page_48">48</a>;</li> - <li>can limit liability, <a href="#Page_48">48</a>, <a href="#Page_49">49</a>;</li> - <li>must carry all responsible passengers, <a href="#Page_49">49</a>;</li> - <li>regulations for carrying freight, <a href="#Page_49">49</a>;</li> - <li>have lien to hold freight, <a href="#Page_50">50</a>;</li> - <li>statutes regarding loss of life, <a href="#Page_50">50</a>;</li> - <li>liability for injuries, <a href="#Page_50">50</a>, <a href="#Page_51">51</a>;</li> - <li>sleeping car company not common, <a href="#Page_51">51</a>;</li> - <li>liability for loss of baggage, <a href="#Page_51">51</a>;</li> - <li>distinction between general and local express companies, <a href="#Page_51">51</a>, <a href="#Page_52">52</a>;</li> - <li>United States common, for mails, <a href="#Page_52">52</a>.</li> - <li>See <i>Mails</i></li> - </ul> -</li> - -<li>Carrier common, duty to an intoxicated person, <a href="#Page_118">118</a></li> - -<li><span class='pagenum'><a name="Page_324" id="Page_324">[324]</a></span>Cattle, trespassing, liability of owner of, <a href="#Page_257">257</a></li> - -<li>Car, liability of principal for acts of conductor of, <a href="#Page_11">11</a></li> - -<li>Certificate of stock, form for, <a href="#Page_301">301</a></li> - -<li>Charities. See <i>Associations, Beneficial</i></li> - -<li>Charters, of national banks, <a href="#Page_73">73</a>; - <ul class="nest"> - <li>perpetual, <a href="#Page_73">73</a></li> - </ul> -</li> - -<li>Chattel mortgage with power of sale form for, <a href="#Page_288">288</a>. - <ul class="nest"> - <li>See <i>Mortgage, Chattel</i></li> - </ul> -</li> - -<li>Chauffeur, physical fitness of, <a href="#Page_25">25</a>; - <ul class="nest"> - <li>employer's liability for, <a href="#Page_25">25</a>;</li> - <li>minor as, <a href="#Page_57">57</a>;</li> - <li>license, <a href="#Page_57">57</a>;</li> - <li>liability of employer for pay of, <a href="#Page_57">57</a>;</li> - <li>employer's liability for injury to, <a href="#Page_57">57</a>;</li> - <li>injured, when speeding, <a href="#Page_57">57</a>, <a href="#Page_58">58</a>;</li> - <li>liable for injury to employer, <a href="#Page_58">58</a>;</li> - <li>authority of, to make repairs in garage, <a href="#Page_134">134</a>.</li> - <li>See <i>Automobile</i>; <i>Garage</i></li> - </ul> -</li> - -<li>Check, <a href="#Page_58">58</a>; - <ul class="nest"> - <li>signing of, <a href="#Page_58">58</a>;</li> - <li>bank not legally bound to pay, to holder, <a href="#Page_58">58</a>;</li> - <li>payment of, when funds insufficient, <a href="#Page_58">58</a>, <a href="#Page_59">59</a>;</li> - <li>banks responsible for payment of, <a href="#Page_59">59</a>;</li> - <li>two rules relating to payment of, <a href="#Page_60">60</a>;</li> - <li>forged, <a href="#Page_60">60</a>;</li> - <li>holder of, should deposit immediately, <a href="#Page_60">60</a>, <a href="#Page_61">61</a>;</li> - <li>drawer may stop payment of, <a href="#Page_61">61</a>;</li> - <li>certified, <a href="#Page_61">61</a>;</li> - <li>when given in payment, <a href="#Page_212">212</a></li> - </ul> -</li> - -<li>Child, adopted, <a href="#Page_5">5</a>; - <ul class="nest"> - <li>rights of natural and adopted parents, <a href="#Page_5">5</a>;</li> - <li>rights of inheritance, <a href="#Page_5">5</a></li> - </ul> -</li> - -<li>Children, must be supported by parent, <a href="#Page_197">197</a>; - <ul class="nest"> - <li>who have property, <a href="#Page_197">197</a>;</li> - <li>protection of, by parent, <a href="#Page_197">197</a>;</li> - <li>of workmen, and Compensation Acts, <a href="#Page_273">273</a>;</li> - <li>form for agreement for adoption of, <a href="#Page_312">312</a>.</li> - <li>See <i>Adopted Child</i>, <i>Husband and Wife</i></li> - </ul> -</li> - -<li>Church, form for subscription to build a, <a href="#Page_299">299</a></li> - -<li>Citizen, <a href="#Page_62">62</a>; - <ul class="nest"> - <li>definition of, <a href="#Page_62">62</a>;</li> - <li>duty of, <a href="#Page_62">62</a>;</li> - <li>double allegiance of, <a href="#Page_62">62</a>;</li> - <li>state protects ordinary rights of, <a href="#Page_62">62</a>;</li> - <li>protection of, defined by constitution and Federal law, <a href="#Page_62">62</a>;</li> - <li>corporation may be included in term, <a href="#Page_62">62</a>;</li> - <li>who is, of United States, <a href="#Page_62">62</a>;</li> - <li>alien woman as, <a href="#Page_62">62</a>;</li> - <li>American woman loses rights by foreign marriage, <a href="#Page_62">62</a>;</li> - <li>alien may be naturalized, <a href="#Page_62">62</a>, <a href="#Page_63">63</a></li> - </ul> -</li> - -<li>Coin, legal limit of, in payment, <a href="#Page_211">211</a></li> - -<li>Cold storage, <a href="#Page_29">29</a></li> - -<li>Compensation Acts, Workmen's, <a href="#Page_266">266</a>; - <ul class="nest"> - <li>basis for computation of compensation under, <a href="#Page_274">274</a></li> - </ul> -</li> - -<li>Complaint, action of, <a href="#Page_166">166</a></li> - -<li>Contract, <a href="#Page_64">64</a>; - <ul class="nest"> - <li>kinds of, <a href="#Page_64">64</a>;</li> - <li>parties to, <a href="#Page_65">65</a>, <a href="#Page_66">66</a>;</li> - <li>consideration of, <a href="#Page_66">66</a>, <a href="#Page_67">67</a>, <a href="#Page_68">68</a>;</li> - <li>mutuality of, <a href="#Page_68">68</a>;</li> - <li>acceptance of, at time of offer, <a href="#Page_68">68</a>;</li> - <li>offer made on time, <a href="#Page_68">68</a>;</li> - <li>offer can be withdrawn, <a href="#Page_68">68</a>, <a href="#Page_69">69</a>;</li> - <li>acceptance after reasonable time, <a href="#Page_69">69</a>;</li> - <li>by correspondence, <a href="#Page_69">69</a>, <a href="#Page_70">70</a>;</li> - <li>acceptance of, by telegraph, <a href="#Page_69">69</a>;</li> - <li>withdrawal of, by telegraph, <a href="#Page_69">69</a>;</li> - <li>offers and rewards, <a href="#Page_70">70</a>, <a href="#Page_71">71</a>;</li> - <li>dates of, <a href="#Page_71">71</a>;</li> - <li>interpreted by law of place when made, <a href="#Page_71">71</a>;</li> - <li>execution of, <a href="#Page_71">71</a>;</li> - <li>damages for failure to execute, <a href="#Page_71">71</a>, <a href="#Page_72">72</a>;</li> - <li>effect of drunkenness on, <a href="#Page_116">116</a>, <a href="#Page_117">117</a>;</li> - <li>equity enforces, <a href="#Page_118">118</a>, <a href="#Page_119">119</a>, <a href="#Page_120">120</a>;</li> - <li>insurance policy is, <a href="#Page_125">125</a>, <a href="#Page_126">126</a>;</li> - <li>of insurance can be reformed by court of equity, <a href="#Page_128">128</a>;</li> - <li>responsibility of innkeeper may be changed by, <a href="#Page_149">149</a>;</li> - <li>life insurance, <a href="#Page_167">167</a>;</li> - <li>of a minor, <a href="#Page_176">176</a>;</li> - <li>to sell in the future, <a href="#Page_227">227</a>;</li> - <li><span class='pagenum'><a name="Page_325" id="Page_325">[325]</a></span>when necessary to be within, <a href="#Page_242">242</a>;</li> - <li>for manufacture not included in Statute of Frauds, <a href="#Page_243">243</a>;</li> - <li>form for bond to perform a, <a href="#Page_280">280</a>.</li> - <li>See <i>Deceit</i>, <i>Drunkenness</i>, <i>Quasi-Contracts</i></li> - </ul> -</li> - -<li>Contract of service, <a href="#Page_267">267</a></li> - -<li>Contract, Quasi. See <i>Quasi Contract</i></li> - -<li>Contractors, independent, and Compensation Acts, <a href="#Page_271">271</a></li> - -<li>Conveyance of real estate, in Statute of Frauds, <a href="#Page_242">242</a></li> - -<li>Co-partnership, form for articles of, <a href="#Page_305">305</a>, <a href="#Page_307">307</a></li> - -<li>Corporate owners of vessels, <a href="#Page_236">236</a></li> - -<li>Corporation, cannot become a voluntary bankrupt, <a href="#Page_31">31</a>; - <ul class="nest"> - <li>an involuntary bankrupt, <a href="#Page_31">31</a>;</li> - <li>definition of manufacturing, <a href="#Page_31">31</a>;</li> - <li>trading, <a href="#Page_32">32</a>;</li> - <li>through its officers can admit inability to pay debts, <a href="#Page_32">32</a>;</li> - <li>when paying benefits not exempt from taxes, <a href="#Page_41">41</a>;</li> - <li>liability for injuries, <a href="#Page_41">41</a>;</li> - <li>as mortgagee, <a href="#Page_53">53</a>;</li> - <li>may be included in term citizen, <a href="#Page_62">62</a>;</li> - <li>kinds of, <a href="#Page_72">72</a>, <a href="#Page_73">73</a>;</li> - <li>formation of, <a href="#Page_73">73</a>, <a href="#Page_74">74</a>;</li> - <li>perpetual charters, <a href="#Page_73">73</a>, <a href="#Page_74">74</a>;</li> - <li>has no heirs, <a href="#Page_74">74</a>;</li> - <li>continues through succession, <a href="#Page_74">74</a>;</li> - <li>purchase of stock by one member, <a href="#Page_74">74</a>;</li> - <li>capital of, <a href="#Page_74">74</a>;</li> - <li>reasons for forming, <a href="#Page_75">75</a>;</li> - <li>who can subscribe to stock of, <a href="#Page_75">75</a>;</li> - <li>fictitious subscriptions to stock of, <a href="#Page_75">75</a>;</li> - <li>stock certificates <a href="#Page_76">76</a>, <a href="#Page_86">86</a>;</li> - <li>capital stock increased <a href="#Page_76">76</a>;</li> - <li>rights of stockholders, <a href="#Page_76">76</a>;</li> - <li>preferred stock, <a href="#Page_76">76</a>;</li> - <li>subscriptions</li> - <li>to shares is a contract, <a href="#Page_77">77</a>;</li> - <li>cannot purchase own shares, <a href="#Page_78">78</a>;</li> - <li>has no lien on its stock, <a href="#Page_78">78</a>;</li> - <li>liability of shareholders, <a href="#Page_78">78</a>, <a href="#Page_79">79</a>;</li> - <li>appointment of receivers, <a href="#Page_79">79</a>;</li> - <li>assessments on stock, <a href="#Page_79">79</a>;</li> - <li>meetings, <a href="#Page_80">80</a>;</li> - <li>power of, <a href="#Page_80">80</a>;</li> - <li>charter of, <a href="#Page_80">80</a>;</li> - <li>majority shall rule may be modified, <a href="#Page_80">80</a>;</li> - <li>who may call meetings, <a href="#Page_80">80</a>, <a href="#Page_81">81</a>;</li> - <li>annual meetings, <a href="#Page_81">81</a>;</li> - <li>regular meetings, <a href="#Page_81">81</a>;</li> - <li>special meetings, <a href="#Page_82">82</a>;</li> - <li>notices waived, <a href="#Page_82">82</a>, <a href="#Page_83">83</a>;</li> - <li>who can vote, <a href="#Page_83">83</a>, <a href="#Page_84">84</a>, <a href="#Page_85">85</a>;</li> - <li>right of transferee, <a href="#Page_85">85</a>;</li> - <li>directors of, <a href="#Page_86">86</a>-93, <a href="#Page_94">94</a>, <a href="#Page_96">96</a>, <a href="#Page_100">100</a>, <a href="#Page_101">101</a>;</li> - <li>affairs handled by few men, <a href="#Page_88">88</a>; failure of, <a href="#Page_92">92</a>;</li> - <li>dividends, <a href="#Page_92">92</a>, <a href="#Page_94">94</a>-98;</li> - <li>wrongs of, <a href="#Page_98">98</a>;</li> - <li>liability for acts of agents, <a href="#Page_98">98</a>, <a href="#Page_99">99</a>;</li> - <li>owner of stock has insurable interest in goods, <a href="#Page_126">126</a>;</li> - <li>when private may make lease, <a href="#Page_155">155</a>;</li> - <li>municipal, and leases, <a href="#Page_155">155</a>;</li> - <li>may take lease, <a href="#Page_155">155</a>;</li> - <li>can sue for slander or libel, <a href="#Page_253">253</a>;</li> - <li>may be a devisee, or legatee, <a href="#Page_264">264</a></li> - </ul> -</li> - -<li>Court, federal and state, <a href="#Page_1">1</a>, <a href="#Page_4">4</a>; - <ul class="nest"> - <li>district, <a href="#Page_4">4</a>;</li> - <li>of appeal, <a href="#Page_4">4</a>;</li> - <li>of equity, <a href="#Page_16">16</a>, <a href="#Page_118">118</a>-122, <a href="#Page_128">128</a>;</li> - <li>United States district, <a href="#Page_31">31</a>;</li> - <li>civil, <a href="#Page_164">164</a></li> - </ul> -</li> - -<li>Covenants, <a href="#Page_104">104</a>, <a href="#Page_105">105</a>, <a href="#Page_122">122</a>, <a href="#Page_165">165</a>. - <ul class="nest"> - <li>See <i>Deeds</i></li> - </ul> -</li> - -<li>Credit, letter of, form for, <a href="#Page_309">309</a></li> - -<li>Creditor, of bailee, <a href="#Page_28">28</a>; - <ul class="nest"> - <li>assignment for benefit of, <a href="#Page_32">32</a>;</li> - <li>filing of petition against bankrupt, <a href="#Page_33">33</a>, <a href="#Page_34">34</a>;</li> - <li>claims of, <a href="#Page_34">34</a>, <a href="#Page_35">35</a>, <a href="#Page_36">36</a>;</li> - <li>election of trustee by, <a href="#Page_34">34</a>, <a href="#Page_36">36</a>;</li> - <li>right to vote at meetings, <a href="#Page_35">35</a>;</li> - <li>may object to discharge of bankrupt, <a href="#Page_38">38</a>;</li> - <li>liability of beneficial associations to, <a href="#Page_39">39</a>, <a href="#Page_40">40</a>;</li> - <li>several may join in giving mortgage, <a href="#Page_53">53</a>;</li> - <li>attachment has insurable interest in goods, <a href="#Page_126">126</a></li> - </ul> -</li> - -<li>Crime, drunkenness as excuse for, <a href="#Page_117">117</a>; - <ul class="nest"> - <li>how prosecuted, <a href="#Page_2">2</a>, <a href="#Page_3">3</a>.</li> - <li>See <i>Husband and Wife</i>, <i>Tort</i></li> - </ul> -</li> - -<li>Curtesy, <a href="#Page_101">101</a>, <a href="#Page_102">102</a></li> - -<li>Custom, when no defense to chauffeur, <a href="#Page_58">58</a>; - <ul class="nest"> - <li><span class='pagenum'><a name="Page_326" id="Page_326">[326]</a></span>liability of innkeeper changed by, <a href="#Page_149">149</a>.</li> - <li>See <i>Usage</i></li> - </ul> -<br /></li> - - -<li>Damages, nominal and compensatory, <a href="#Page_253">253</a></li> - -<li>Death, of principal or agent, <a href="#Page_15">15</a>; - <ul class="nest"> - <li>of stockholder before transfer, <a href="#Page_82">82</a>;</li> - <li>of partner, <a href="#Page_85">85</a>;</li> - <li>of husband, <a href="#Page_114">114</a>;</li> - <li>of homesteader, <a href="#Page_136">136</a>;</li> - <li>separation agreement cannot be set aside by, <a href="#Page_144">144</a>;</li> - <li>of ward terminates lease, <a href="#Page_155">155</a>;</li> - <li>lease made by wife terminated by husband's, <a href="#Page_155">155</a>;</li> - <li>of mortgagor, <a href="#Page_182">182</a>, <a href="#Page_183">183</a>;</li> - <li>of partner, <a href="#Page_201">201</a>;</li> - <li>of inventor, <a href="#Page_206">206</a>;</li> - <li>of a contractor, <a href="#Page_223">223</a>;</li> - <li>of master of vessel, <a href="#Page_239">239</a>;</li> - <li>of workman, <a href="#Page_274">274</a></li> - </ul> -</li> - -<li>Debts and Statutes of Limitation, <a href="#Page_244">244</a>; - <ul class="nest"> - <li>revival of, <a href="#Page_244">244</a>, <a href="#Page_245">245</a></li> - </ul> -</li> - -<li>Deceit, <a href="#Page_102">102</a>; - <ul class="nest"> - <li>when seller not liable, <a href="#Page_102">102</a>;</li> - <li>purchaser of land not liable, <a href="#Page_103">103</a>;</li> - <li>a wink not deception, <a href="#Page_104">104</a></li> - </ul> -</li> - -<li>Decisions, highest court, <a href="#Page_1">1</a></li> - -<li>Deed, <a href="#Page_7">7</a>, <a href="#Page_104">104</a>; - <ul class="nest"> - <li>several, used in land deal, <a href="#Page_104">104</a>;</li> - <li>warranty, <a href="#Page_104">104</a>;</li> - <li>what warrantor agrees to do, <a href="#Page_104">104</a>, <a href="#Page_105">105</a>;</li> - <li>encumbrances, <a href="#Page_105">105</a>;</li> - <li>indenture, <a href="#Page_105">105</a>;</li> - <li>release or quit-claim, <a href="#Page_106">106</a>;</li> - <li>poll, <a href="#Page_106">106</a>;</li> - <li>use of seal, <a href="#Page_106">106</a>;</li> - <li>witnesses, <a href="#Page_107">107</a>;</li> - <li>lease, <a href="#Page_107">107</a>;</li> - <li>completed before delivery, <a href="#Page_107">107</a>;</li> - <li>executor of, <a href="#Page_107">107</a>;</li> - <li>when must be read, <a href="#Page_107">107</a>;</li> - <li>delivery essential, <a href="#Page_107">107</a>, <a href="#Page_108">108</a>;</li> - <li>should be recorded, <a href="#Page_108">108</a>, <a href="#Page_109">109</a>;</li> - <li>acknowledgment, <a href="#Page_109">109</a>, <a href="#Page_110">110</a>;</li> - <li>execution of, by married woman, <a href="#Page_109">109</a>, <a href="#Page_110">110</a>;</li> - <li>Commissioner of, <a href="#Page_110">110</a>;</li> - <li>correction of mistake, <a href="#Page_110">110</a>;</li> - <li>land must be bounded, <a href="#Page_110">110</a>, <a href="#Page_111">111</a>;</li> - <li>equity compels delivery of, <a href="#Page_119">119</a>;</li> - <li>of warranty, form for, <a href="#Page_282">282</a>, <a href="#Page_283">283</a>;</li> - <li>of indenture, form for, <a href="#Page_284">284</a>;</li> - <li>of quit-claim, form for, <a href="#Page_285">285</a>, <a href="#Page_286">286</a>;</li> - <li>of mortgage, form for, <a href="#Page_287">287</a>;</li> - <li>of mortgage with power of sale, form for, <a href="#Page_287">287</a>;</li> - <li>of mortgage on goods and chattels, form for, <a href="#Page_289">289</a></li> - </ul> -</li> - -<li>Defenses, in actions for slander and libel, <a href="#Page_254">254</a></li> - -<li>Delay in telegraph messages, <a href="#Page_246">246</a></li> - -<li>Dependents of workmen, and Compensation Acts, <a href="#Page_272">272</a></li> - -<li>Deposits, how made by agent, <a href="#Page_12">12</a>. - <ul class="nest"> - <li>See <i>Bank</i>; <i>Check</i></li> - </ul> -</li> - -<li>Desertion, its effect on homestead, <a href="#Page_136">136</a></li> - -<li>Devise of lands, <a href="#Page_265">265</a></li> - -<li>Devisee, of mortgaged land, <a href="#Page_182">182</a>; - <ul class="nest"> - <li>who may be a, <a href="#Page_263">263</a>, <a href="#Page_264">264</a></li> - </ul> -</li> - -<li>Director, of corporation, <a href="#Page_86">86</a>-93, <a href="#Page_94">94</a>, <a href="#Page_96">96</a>, <a href="#Page_100">100</a></li> - -<li>Discomfort acts of, wrongs, <a href="#Page_256">256</a></li> - -<li>Dividends, <a href="#Page_94">94</a>-98, <a href="#Page_125">125</a>. - <ul class="nest"> - <li>See <i>Corporation</i></li> - </ul> -</li> - -<li>Divisional tree, law relating to, <a href="#Page_113">113</a></li> - -<li>Divorce, effect of on dower right, <a href="#Page_116">116</a>; - <ul class="nest"> - <li>effect of on homestead, <a href="#Page_136">136</a>;</li> - <li>for what causes granted, <a href="#Page_144">144</a>, <a href="#Page_145">145</a>;</li> - <li>absolute, <a href="#Page_146">146</a>;</li> - <li>legal effect of, <a href="#Page_146">146</a>, <a href="#Page_147">147</a>.</li> - <li>See <i>Husband and Wife</i></li> - </ul> -</li> - -<li>Domicile, of bankrupt, <a href="#Page_31">31</a>; - <ul class="nest"> - <li>husband's becomes wife's, <a href="#Page_139">139</a></li> - </ul> -</li> - -<li>Dower, <a href="#Page_113">113</a>; - <ul class="nest"> - <li>defined, <a href="#Page_113">113</a>;</li> - <li>paramount to claims of husband's creditors, <a href="#Page_113">113</a>;</li> - <li>mortgage has preference, <a href="#Page_113">113</a>;</li> - <li>legal marriage necessary, <a href="#Page_114">114</a>;</li> - <li>assignment of, <a href="#Page_114">114</a>;</li> - <li>may be barred, <a href="#Page_115">115</a>;</li> - <li>non-existence of, <a href="#Page_115">115</a>;</li> - <li>in exchanged lands, <a href="#Page_115">115</a>;</li> - <li>rights of partner's widow, <a href="#Page_115">115</a>;</li> - <li>can be released, <a href="#Page_116">116</a>;</li> - <li>effect of divorce, <a href="#Page_116">116</a></li> - </ul> -</li> - -<li>Drunkenness, <a href="#Page_116">116</a>; - <ul class="nest"> - <li>effect of, on contracts, <a href="#Page_116">116</a>, <a href="#Page_117">117</a>;</li> - <li>as excuse for crime, <a href="#Page_117">117</a>;</li> - <li><span class='pagenum'><a name="Page_327" id="Page_327">[327]</a></span>liability of sober party, <a href="#Page_117">117</a>, <a href="#Page_118">118</a>;</li> - <li>responsibility of common carrier, <a href="#Page_118">118</a>;</li> - <li>slander, <a href="#Page_118">118</a></li> - </ul> -<br /></li> - - -<li>Earnings, the basis for computation of compensation, <a href="#Page_274">274</a></li> - -<li>Ejectment, action of, <a href="#Page_166">166</a></li> - -<li>Elevator, sale of grain in, <a href="#Page_229">229</a></li> - -<li>Employees, casual, and Compensation Acts, <a href="#Page_270">270</a>; - <ul class="nest"> - <li>Federal and Compensation Acts, <a href="#Page_271">271</a></li> - </ul> -</li> - -<li>Employer and employee, relations as to patents, <a href="#Page_207">207</a>, <a href="#Page_208">208</a>; - <ul class="nest"> - <li>Compensation Acts, <a href="#Page_266">266</a>, <a href="#Page_267">267</a></li> - </ul> -</li> - -<li>Enrollment, of vessels, <a href="#Page_235">235</a></li> - -<li>Equitable remedies, <a href="#Page_118">118</a>-122</li> - -<li>Equity, court of, <a href="#Page_3">3</a>, <a href="#Page_16">16</a>, <a href="#Page_118">118</a>-122, <a href="#Page_128">128</a>; - <ul class="nest"> - <li>law and, <a href="#Page_3">3</a></li> - </ul> -</li> - -<li>Eviction, <a href="#Page_160">160</a>, <a href="#Page_161">161</a></li> - -<li>Exchange, bill of. See <i>Bill of Exchange</i>, <i>Note</i>, <i>Negotiable Paper</i></li> - -<li>Executor, authority to vote at corporate meetings, <a href="#Page_84">84</a>; - <ul class="nest"> - <li>a foreign, <a href="#Page_85">85</a>, <a href="#Page_208">208</a>;</li> - <li>may dispose of lease, <a href="#Page_155">155</a>, <a href="#Page_156">156</a>;</li> - <li>can assign remainder of lease, <a href="#Page_157">157</a>;</li> - <li>when, gets mortgagor's interest, <a href="#Page_182">182</a>;</li> - <li>when heirs may require, to pay, <a href="#Page_183">183</a></li> - </ul> -</li> - -<li>Explosives, liability of keeper of, <a href="#Page_258">258</a></li> - -<li>Express company, distinction between general and local, <a href="#Page_51">51</a>, <a href="#Page_52">52</a><br /><br /></li> - - -<li>Factor, <a href="#Page_123">123</a>; - <ul class="nest"> - <li>employed to sell goods, <a href="#Page_123">123</a>;</li> - <li>has a lien on goods, <a href="#Page_123">123</a>;</li> - <li>authority of, <a href="#Page_123">123</a>;</li> - <li>limitations on, fixed by principal, <a href="#Page_123">123</a>;</li> - <li>use of credit, <a href="#Page_123">123</a>;</li> - <li>cannot exchange goods, <a href="#Page_123">123</a>;</li> - <li>may insure goods, <a href="#Page_123">123</a>;</li> - <li>cannot compound claim, <a href="#Page_124">124</a>;</li> - <li>has insurable interest in goods, <a href="#Page_126">126</a>.</li> - <li>See <i>Agency</i></li> - </ul> -</li> - -<li>Farm, tenant of, <a href="#Page_157">157</a></li> - -<li>Farm lease, form for, <a href="#Page_295">295</a></li> - -<li>Federal courts, <a href="#Page_1">1</a></li> - -<li>Federal employees, and Compensation Acts, <a href="#Page_271">271</a></li> - -<li>Finder, obligation of, as to lost property, <a href="#Page_26">26</a>, <a href="#Page_27">27</a>; - <ul class="nest"> - <li>of property lost in hotel or railroad car, <a href="#Page_27">27</a>;</li> - <li>when has lien for services, <a href="#Page_30">30</a>;</li> - <li>See <i>Bailor</i></li> - </ul> -</li> - -<li>Fire insurance. See <i>Insurance, Fire</i></li> - -<li>Fires, starters of, liability of, <a href="#Page_258">258</a></li> - -<li>Fixtures, <a href="#Page_132">132</a>; - <ul class="nest"> - <li>defined, <a href="#Page_132">132</a>, <a href="#Page_133">133</a>;</li> - <li>law favors tenant, seller, mortgagor, <a href="#Page_132">132</a>, <a href="#Page_133">133</a>;</li> - <li>what tenant can remove, <a href="#Page_162">162</a>, <a href="#Page_163">163</a></li> - </ul> -</li> - -<li>Food, warranty in sale of, <a href="#Page_261">261</a></li> - -<li>Forgery, ratification of, <a href="#Page_9">9</a>; - <ul class="nest"> - <li>of signature to negotiable paper, <a href="#Page_188">188</a>;</li> - <li>in a telegram, <a href="#Page_247">247</a>.</li> - <li>See <i>Check</i>; <i>Negotiable Paper</i></li> - </ul> -</li> - -<li>Forms, legal: - <ul class="nest"> - <li>Agreement for sale of land, <a href="#Page_277">277</a></li> - <li>Agreement concerning party wall, <a href="#Page_277">277</a></li> - <li>Agreement for building, <a href="#Page_278">278</a></li> - <li>Agreement for work and labor, <a href="#Page_280">280</a></li> - <li>Agreement for lease, <a href="#Page_293">293</a></li> - <li>Agreement to sell shares of stock, <a href="#Page_302">302</a></li> - <li>Agreement for sale of physician's practice, <a href="#Page_309">309</a></li> - <li>Agreement between merchant and traveling salesman, <a href="#Page_311">311</a></li> - <li>Agreement for adoption of children, <a href="#Page_312">312</a></li> - <li>Articles of co-partnership, <a href="#Page_305">305</a>, <a href="#Page_307">307</a></li> - <li>Articles of incorporation, <a href="#Page_318">318</a></li> - <li>Assignment of mortgage, <a href="#Page_292">292</a></li> - <li>Assignment of lease, <a href="#Page_298">298</a></li> - <li>Assignment of policy of insurance, <a href="#Page_302">302</a></li> - <li><span class='pagenum'><a name="Page_328" id="Page_328">[328]</a></span>Assignment of patent right, <a href="#Page_304">304</a></li> - <li>Bill of sale, <a href="#Page_281">281</a></li> - <li>Bond to perform a contract, <a href="#Page_280">280</a></li> - <li>Bond for payment of money, <a href="#Page_305">305</a></li> - <li>Certificate of stock, <a href="#Page_301">301</a></li> - <li>Chattel mortgage, with power of sale, <a href="#Page_288">288</a></li> - <li>Claim of lien by workman, <a href="#Page_279">279</a></li> - <li>Deed of indenture, <a href="#Page_284">284</a></li> - <li>Deed of quit-claim, <a href="#Page_285">285</a>, <a href="#Page_286">286</a></li> - <li>Deed of mortgage, <a href="#Page_287">287</a></li> - <li>Deed of mortgage with power of sale, <a href="#Page_287">287</a></li> - <li>Deed of mortgage on goods and chattels, <a href="#Page_289">289</a></li> - <li>Deed of warranty, <a href="#Page_282">282</a>, <a href="#Page_283">283</a></li> - <li>Lease, <a href="#Page_293">293</a>, <a href="#Page_294">294</a></li> - <li>Lease, farm, <a href="#Page_295">295</a></li> - <li>Lease of furnished rooms, <a href="#Page_297">297</a></li> - <li>Letter of credit, <a href="#Page_309">309</a></li> - <li>Notice of sale under mortgage, <a href="#Page_291">291</a></li> - <li>Notice to quit, <a href="#Page_299">299</a></li> - <li>Power of attorney, <a href="#Page_299">299</a></li> - <li>Power of attorney, to transfer stock, <a href="#Page_300">300</a></li> - <li>Release by ward of his guardian, <a href="#Page_314">314</a></li> - <li>Subscription to build a church, <a href="#Page_299">299</a></li> - <li>Transfer of shares of stock, <a href="#Page_303">303</a></li> - <li>Will, <a href="#Page_315">315</a>, <a href="#Page_316">316</a>, <a href="#Page_317">317</a></li> - </ul> -</li> - -<li>Frauds, Statute of. See <i>Statute of Frauds</i></li> - -<li>Furnished rooms, form for lease of, <a href="#Page_297">297</a><br /><br /></li> - - -<li>Garage, keeper of a bailee for hire, <a href="#Page_133">133</a>; - <ul class="nest"> - <li>owner's liability for car when in a, <a href="#Page_133">133</a>;</li> - <li>public, not a nuisance, <a href="#Page_133">133</a>;</li> - <li>lien of keeper of, for storage and repairs, <a href="#Page_134">134</a>;</li> - <li>care keeper of must use, <a href="#Page_134">134</a>;</li> - <li>liability of keeper of for negligence, <a href="#Page_134">134</a>;</li> - <li>keeper of not an insurer, <a href="#Page_134">134</a>;</li> - <li>keeper of must protect from theft, <a href="#Page_134">134</a>;</li> - <li>liability of keeper of for leaving car in alley, <a href="#Page_134">134</a>;</li> - <li>and for using car without permission, <a href="#Page_135">135</a>;</li> - <li>delivery of car by keeper of, <a href="#Page_135">135</a>;</li> - <li>liability of keeper of for delay in repairing, <a href="#Page_135">135</a>;</li> - <li>and for acts of servant, <a href="#Page_135">135</a>.</li> - <li>See <i>Automobile</i>, <i>Chauffeur</i>, <i>Bailment</i></li> - </ul> -</li> - -<li>Gift, cannot be recovered, <a href="#Page_218">218</a></li> - -<li>Grain, sale of, in elevator, <a href="#Page_229">229</a></li> - -<li>Guardian, who can act as, <a href="#Page_143">143</a>; - <ul class="nest"> - <li>may make lease, <a href="#Page_155">155</a>;</li> - <li>of a minor, <a href="#Page_177">177</a>;</li> - <li>may apply for a patent, <a href="#Page_208">208</a>;</li> - <li>form for release of, by his ward, <a href="#Page_314">314</a></li> - </ul> -<br /></li> - - -<li>Habeas corpus, action of, <a href="#Page_166">166</a></li> - -<li>Health of employees in relation to Compensation Acts, <a href="#Page_268">268</a></li> - -<li>Highway, <a href="#Page_112">112</a>, <a href="#Page_135">135</a>, <a href="#Page_218">218</a>. - <ul class="nest"> - <li>See <i>Automobile</i></li> - </ul> -</li> - -<li>Homestead, agent's authority to sell, affected by owner's marriage, <a href="#Page_14">14</a>; - <ul class="nest"> - <li>definition of, <a href="#Page_135">135</a>;</li> - <li>cannot be seized by creditors, <a href="#Page_135">135</a>;</li> - <li>head of family owning definition of, <a href="#Page_135">135</a>, <a href="#Page_136">136</a>;</li> - <li>effect of desertion and divorce on a, <a href="#Page_136">136</a>;</li> - <li>what land is included in, <a href="#Page_136">136</a>;</li> - <li>steps necessary to procure a, <a href="#Page_136">136</a>, <a href="#Page_137">137</a>;</li> - <li>residence required on a, <a href="#Page_137">137</a>;</li> - <li>liability of owner of, for debts, <a href="#Page_137">137</a>;</li> - <li>can be mortgaged, <a href="#Page_137">137</a>;</li> - <li>can be sold and other land bought, <a href="#Page_137">137</a>;</li> - <li>exemption from taxes, <a href="#Page_137">137</a></li> - </ul> -</li> - -<li>Huddy, quoted, <a href="#Page_22">22</a>, <a href="#Page_23">23</a></li> - -<li>Husband and wife, <a href="#Page_137">137</a>; - <ul class="nest"> - <li>marriage a contract, <a href="#Page_137">137</a>;</li> - <li>essentials of marriage, <a href="#Page_137">137</a>;</li> - <li>false representations, <a href="#Page_137">137</a>;</li> - <li>effect of deceit in obtaining consent, <a href="#Page_138">138</a>;</li> - <li>of compulsion, <a href="#Page_138">138</a>;</li> - <li>of insanity, <a href="#Page_138">138</a>;</li> - <li><span class='pagenum'><a name="Page_329" id="Page_329">[329]</a></span>legal age for marriage, <a href="#Page_138">138</a>;</li> - <li>void marriages, <a href="#Page_138">138</a>;</li> - <li>marriage license, <a href="#Page_138">138</a>;</li> - <li>marriage performed outside jurisdiction, <a href="#Page_138">138</a>;</li> - <li>common law marriage, <a href="#Page_138">138</a>, <a href="#Page_139">139</a>;</li> - <li>husband's domicile becomes that of wife, <a href="#Page_139">139</a>;</li> - <li>when wife can retain her domicile, <a href="#Page_139">139</a>;</li> - <li>husband's liability for wife's crimes, <a href="#Page_139">139</a>, <a href="#Page_140">140</a>;</li> - <li>wife still liable, <a href="#Page_139">139</a>;</li> - <li>cannot steal from each other, <a href="#Page_140">140</a>;</li> - <li>right to sue each other, <a href="#Page_140">140</a>;</li> - <li>wife's liability for husband's wrongs, <a href="#Page_140">140</a>;</li> - <li>alienation of affection, <a href="#Page_140">140</a>;</li> - <li>wife's right to retain and manage her estate, <a href="#Page_141">141</a>;</li> - <li>can appoint husband to act for her, <a href="#Page_141">141</a>;</li> - <li>may act for husband, <a href="#Page_141">141</a>;</li> - <li>and as executor, administrator or guardian, <a href="#Page_141">141</a>;</li> - <li>wife's right to sue and be sued, <a href="#Page_142">142</a>;</li> - <li>husband's liability for wife's debts, <a href="#Page_142">142</a>;</li> - <li>duty of husband to provide home, <a href="#Page_142">142</a>;</li> - <li>his right to defend wife, <a href="#Page_142">142</a>;</li> - <li>his duty to provide home, <a href="#Page_142">142</a>;</li> - <li>wife must live with husband, <a href="#Page_142">142</a>;</li> - <li>duties of husband and wife toward each other, <a href="#Page_142">142</a>, <a href="#Page_143">143</a>;</li> - <li>guardian of children, <a href="#Page_143">143</a>;</li> - <li>husband and wife may live separately, <a href="#Page_143">143</a>;</li> - <li>may divide property, <a href="#Page_143">143</a>, <a href="#Page_144">144</a>;</li> - <li>when separation agreement cannot be sustained, <a href="#Page_144">144</a>;</li> - <li>death and share of estate, <a href="#Page_144">144</a>;</li> - <li>right of wife to use husband's credit, <a href="#Page_144">144</a>.</li> - <li>See <i>Divorce</i></li> - </ul> -<br /></li> - - -<li>Ice, liability for, on pavement, <a href="#Page_162">162</a></li> - -<li>Imprisonment, false, a wrong, <a href="#Page_249">249</a></li> - -<li>Imprisoned person, and Statute of Limitation, <a href="#Page_244">244</a></li> - -<li>Incapacity of workman, partial or total, compensation for, <a href="#Page_275">275</a></li> - -<li>Incorporation, form for articles of, <a href="#Page_318">318</a></li> - -<li>Indecent language in a telegram, <a href="#Page_247">247</a></li> - -<li>Indenture, <a href="#Page_105">105</a>; - <ul class="nest"> - <li>form for deed of, <a href="#Page_284">284</a></li> - </ul> -</li> - -<li>Indorsement, see <i>Negotiable Paper</i></li> - -<li>Infancy, period of, defined by-law, <a href="#Page_65">65</a></li> - -<li>Inheritance, adopted child, <a href="#Page_5">5</a></li> - -<li>Injunction, temporary and permanent <a href="#Page_22">22</a>; - <ul class="nest"> - <li>against directors, <a href="#Page_101">101</a>;</li> - <li>against infringer of patent, <a href="#Page_122">122</a>;</li> - <li>to forbid tenants making alterations, <a href="#Page_159">159</a></li> - </ul> -</li> - -<li>Innkeeper, <a href="#Page_147">147</a>; - <ul class="nest"> - <li>persons must receive, <a href="#Page_147">147</a>;</li> - <li>persons must exclude, <a href="#Page_147">147</a>;</li> - <li>keeping of horses, <a href="#Page_147">147</a>;</li> - <li>liability for baggage, <a href="#Page_147">147</a>, <a href="#Page_148">148</a>, <a href="#Page_149">149</a>;</li> - <li>exempt from loss by fire, <a href="#Page_148">148</a>;</li> - <li>may make certain regulations, <a href="#Page_148">148</a>, <a href="#Page_149">149</a>;</li> - <li>keeper of boarding house not, <a href="#Page_149">149</a></li> - </ul> -</li> - -<li>Insane person and Statute of Limitation, <a href="#Page_244">244</a></li> - -<li>Insanity, of principal, <a href="#Page_13">13</a>; - <ul class="nest"> - <li>of agent, <a href="#Page_13">13</a>;</li> - <li>how affects bid at auction, <a href="#Page_18">18</a>;</li> - <li>of master of vessel, <a href="#Page_240">240</a>;</li> - <li>and wills, <a href="#Page_264">264</a></li> - </ul> -</li> - -<li>Inspector, <a href="#Page_83">83</a>, <a href="#Page_101">101</a></li> - -<li>Insurance Broker, <a href="#Page_45">45</a>, <a href="#Page_46">46</a></li> - -<li>Insurance, fire, when liable for acts of agent, <a href="#Page_6">6</a>; - <ul class="nest"> - <li>kinds of companies, <a href="#Page_124">124</a>, <a href="#Page_125">125</a>;</li> - <li>mutual company preferred, <a href="#Page_124">124</a>;</li> - <li>mutual plan protects against loss only, <a href="#Page_125">125</a>;</li> - <li>stock company pays dividends, <a href="#Page_125">125</a>;</li> - <li>insured must have interest in property, <a href="#Page_125">125</a>;</li> - <li>who has insurable interest, <a href="#Page_126">126</a>;</li> - <li>policy, as collateral security, <a href="#Page_126">126</a>;</li> - <li>policy void, <a href="#Page_126">126</a>;</li> - <li>policy a contract, <a href="#Page_126">126</a>;</li> - <li>standard policy, <a href="#Page_126">126</a>;</li> - <li>when is policy binding, <a href="#Page_126">126</a>, <a href="#Page_127">127</a>;</li> - <li>premium, <a href="#Page_127">127</a>;</li> - <li>policy may be assigned, <a href="#Page_127">127</a>;</li> - <li>when policy can be cancelled, <a href="#Page_127">127</a>, <a href="#Page_130">130</a>;</li> - <li><span class='pagenum'><a name="Page_330" id="Page_330">[330]</a></span>contract reformed, <a href="#Page_128">128</a>;</li> - <li>written and printed parts of policy, <a href="#Page_128">128</a>;</li> - <li>written application part of contract, <a href="#Page_128">128</a>;</li> - <li>interpretation of meaning, <a href="#Page_128">128</a>;</li> - <li>language of policy, <a href="#Page_128">128</a>, <a href="#Page_129">129</a>;</li> - <li>clerical errors, <a href="#Page_129">129</a>;</li> - <li>what policy covers, <a href="#Page_129">129</a>, <a href="#Page_130">130</a>;</li> - <li>when risk begins, <a href="#Page_129">129</a>;</li> - <li>misrepresentation, <a href="#Page_129">129</a>, <a href="#Page_130">130</a>;</li> - <li>concealment of facts, <a href="#Page_130">130</a>;</li> - <li>questions and answers a warranty, <a href="#Page_130">130</a>;</li> - <li>policy void, <a href="#Page_130">130</a>;</li> - <li>loss, total or partial, <a href="#Page_130">130</a>;</li> - <li>damage by water, <a href="#Page_130">130</a>;</li> - <li>from explosion, <a href="#Page_131">131</a>;</li> - <li>from theft, <a href="#Page_131">131</a>;</li> - <li>from lightning, <a href="#Page_131">131</a>;</li> - <li>from negligence, <a href="#Page_131">131</a>;</li> - <li>total loss, <a href="#Page_131">131</a>;</li> - <li>partial loss, <a href="#Page_132">132</a>;</li> - <li>open and valued policies, <a href="#Page_132">132</a>;</li> - <li>see <i>Agency</i></li> - </ul> -</li> - -<li>Insurance, life, <a href="#Page_167">167</a>; - <ul class="nest"> - <li>definition, <a href="#Page_167">167</a>;</li> - <li>validity of the contract, <a href="#Page_167">167</a>;</li> - <li>assignment of policy, <a href="#Page_168">168</a>, <a href="#Page_172">172</a>;</li> - <li>authority of general agent to vary the agreement, <a href="#Page_168">168</a>;</li> - <li>no contract until policy accepted by company, <a href="#Page_169">169</a>;</li> - <li>state requirements, <a href="#Page_169">169</a>;</li> - <li>delivery of policy, <a href="#Page_169">169</a>;</li> - <li>authority of general and special agents, <a href="#Page_170">170</a>;</li> - <li>payment of first premium, <a href="#Page_170">170</a>;</li> - <li>void under conditions contrary to public welfare, <a href="#Page_170">170</a>;</li> - <li>proceeds on which policy may be set aside, <a href="#Page_171">171</a>;</li> - <li>determination of beneficiary, <a href="#Page_171">171</a>;</li> - <li>date of commencement of risk, <a href="#Page_172">172</a>;</li> - <li>payment of premiums, <a href="#Page_172">172</a>;</li> - <li>reinsurance contracts, <a href="#Page_173">173</a>;</li> - <li>cancellation or surrender, <a href="#Page_173">173</a>, <a href="#Page_174">174</a>;</li> - <li>rescinding of a policy, <a href="#Page_174">174</a>;</li> - <li>surrender or cancellation value, <a href="#Page_175">175</a>;</li> - <li>conversion of policy, <a href="#Page_175">175</a></li> - </ul> -</li> - -<li>Insurance money, provision for, in lease, <a href="#Page_159">159</a></li> - -<li>Insurance policy, of bankrupt, <a href="#Page_37">37</a>; - <ul class="nest"> - <li>form for assignment of, <a href="#Page_302">302</a></li> - </ul> -</li> - -<li>Insurer, garage keeper not an, <a href="#Page_134">134</a>; - <ul class="nest"> - <li>innkeeper is, <a href="#Page_147">147</a></li> - </ul> -</li> - -<li>Interstate Commerce Commission, controls interstate telegraph business, <a href="#Page_248">248</a></li> - -<li>Invention, patentable or not, <a href="#Page_202">202</a>, <a href="#Page_203">203</a>; - <ul class="nest"> - <li>requirements necessary to obtain a patent, <a href="#Page_203">203</a>;</li> - <li>element of novelty, <a href="#Page_204">204</a>;</li> - <li>prior publication, <a href="#Page_204">204</a>;</li> - <li>usefulness, <a href="#Page_204">204</a>;</li> - <li>exercise of inventive power necessary for a patent, <a href="#Page_205">205</a>;</li> - <li>reduction of to practice, <a href="#Page_206">206</a>;</li> - <li>employer presumed to be the real inventor, <a href="#Page_208">208</a>;</li> - <li>inventor must apply for a patent, <a href="#Page_208">208</a>;</li> - <li>specification of, <a href="#Page_208">208</a>;</li> - <li>improvement on, <a href="#Page_209">209</a></li> - </ul> -<br /></li> - - -<li>Jewelry, keeping of, by bailor, <a href="#Page_29">29</a>; - <ul class="nest"> - <li>see <i>Carrier</i>, <i>Innkeeper</i></li> - </ul> -<br /></li> - - -<li>Key, delivery of, constitutes delivery of goods, <a href="#Page_242">242</a><br /><br /></li> - - -<li>Laborers, farm, and Compensation Acts, <a href="#Page_268">268</a></li> - -<li>Lake, title to land under and around, <a href="#Page_112">112</a></li> - -<li>Land, title to, bounded by navigable river, <a href="#Page_112">112</a>; - <ul class="nest"> - <li>equity can forbid injuries to, <a href="#Page_121">121</a>;</li> - <li>equity will enforce covenants, <a href="#Page_122">122</a>;</li> - <li>devise of, in wills, <a href="#Page_265">265</a>;</li> - <li>form for agreement for sale of, <a href="#Page_277">277</a></li> - </ul> -</li> - -<li>Land, agreement to purchase, <a href="#Page_15">15</a>; - <ul class="nest"> - <li>must be in writing, <a href="#Page_15">15</a>;</li> - <li>how signed, <a href="#Page_15">15</a>;</li> - <li>how complete, <a href="#Page_15">15</a>;</li> - <li>oral agreement, <a href="#Page_15">15</a>, <a href="#Page_16">16</a>;</li> - <li>part payment, <a href="#Page_16">16</a>;</li> - <li>period of option to purchase, <a href="#Page_16">16</a>;</li> - <li>see <i>Contract</i>, <i>Statute of Frauds</i></li> - </ul> -</li> - -<li>Land license, see <i>License</i></li> - -<li>Land owner, liability of, for nuisances on his property, <a href="#Page_257">257</a>; - <ul class="nest"> - <li>for safety of persons and children, <a href="#Page_259">259</a></li> - </ul> -</li> - -<li><span class='pagenum'><a name="Page_331" id="Page_331">[331]</a></span>Landlord, see <i>Lease</i></li> - -<li>Larceny, <a href="#Page_27">27</a></li> - -<li>Law, common, <a href="#Page_1">1</a>, <a href="#Page_2">2</a>, <a href="#Page_3">3</a>; - <ul class="nest"> - <li>statute, <a href="#Page_1">1</a>, <a href="#Page_2">2</a>;</li> - <li>courts of, <a href="#Page_4">4</a>;</li> - <li>civil and criminal, <a href="#Page_2">2</a>, <a href="#Page_164">164</a>;</li> - <li>and equity, <a href="#Page_3">3</a>, <a href="#Page_5">5</a>;</li> - <li>insolvency, <a href="#Page_31">31</a></li> - </ul> -</li> - -<li>Lawsuit, mode of conducting, <a href="#Page_164">164</a></li> - -<li>Lease, <a href="#Page_151">151</a>; - <ul class="nest"> - <li>defined, <a href="#Page_151">151</a>;</li> - <li>oral or written, <a href="#Page_151">151</a>, <a href="#Page_152">152</a>, <a href="#Page_153">153</a>;</li> - <li>liability of lessee, <a href="#Page_151">151</a>, <a href="#Page_159">159</a>;</li> - <li>agreements in <a href="#Page_152">152</a>, <a href="#Page_153">153</a>;</li> - <li>year to year tenancy, <a href="#Page_153">153</a>;</li> - <li>term, defined, <a href="#Page_153">153</a>;</li> - <li>for a future period, <a href="#Page_153">153</a>, <a href="#Page_154">154</a>;</li> - <li>description of premises, <a href="#Page_154">154</a>;</li> - <li>distinction between, and agreement, <a href="#Page_154">154</a>;</li> - <li>valid, <a href="#Page_155">155</a>;</li> - <li>made by married woman, <a href="#Page_155">155</a>;</li> - <li>private corporation may make, <a href="#Page_155">155</a>;</li> - <li>municipal corporation restricted, <a href="#Page_155">155</a>;</li> - <li>corporation may take, <a href="#Page_155">155</a>;</li> - <li>executor may dispose of, <a href="#Page_155">155</a>, <a href="#Page_156">156</a>;</li> - <li>trustees may make, <a href="#Page_156">156</a>;</li> - <li>partner cannot make, <a href="#Page_156">156</a>;</li> - <li>for what can be made, <a href="#Page_156">156</a>;</li> - <li>ratification, <a href="#Page_156">156</a>;</li> - <li>construction of, <a href="#Page_156">156</a>;</li> - <li>presumes care on part of tenant, <a href="#Page_156">156</a>, <a href="#Page_157">157</a>;</li> - <li>rights of a mill tenant, <a href="#Page_157">157</a>;</li> - <li>rights of a farm tenant, <a href="#Page_157">157</a>;</li> - <li>assignment of, <a href="#Page_157">157</a>;</li> - <li>sublease, <a href="#Page_157">157</a>;</li> - <li>lessor may part with his interests in, <a href="#Page_158">158</a>;</li> - <li>not a warranty of good condition, <a href="#Page_158">158</a>;</li> - <li>lessor not required to make repairs, <a href="#Page_158">158</a>;</li> - <li>agreement to make repairs, <a href="#Page_158">158</a>, <a href="#Page_159">159</a>;</li> - <li>agreement to rebuild, <a href="#Page_159">159</a>;</li> - <li>alterations by tenant, <a href="#Page_159">159</a>;</li> - <li>renewal, <a href="#Page_159">159</a>;</li> - <li>rent, <a href="#Page_160">160</a>;</li> - <li>eviction, <a href="#Page_160">160</a>, <a href="#Page_161">161</a>;</li> - <li>land rented on shares, <a href="#Page_161">161</a>;</li> - <li>of parts of building separately, <a href="#Page_161">161</a>;</li> - <li>liability of lessor, <a href="#Page_161">161</a>, <a href="#Page_162">162</a>;</li> - <li>removals by tenant at expiration of, <a href="#Page_162">162</a>, <a href="#Page_163">163</a>;</li> - <li>form for agreement for, <a href="#Page_293">293</a>;</li> - <li>form for a, <a href="#Page_293">293</a>; <a href="#Page_294">294</a>;</li> - <li>form for a farm, <a href="#Page_295">295</a>;</li> - <li>form for assignment of, <a href="#Page_298">298</a>;</li> - <li>of furnished room, form for, <a href="#Page_297">297</a></li> - </ul> -</li> - -<li>Legal remedies, <a href="#Page_164">164</a>-166</li> - -<li>Legatee, property given to, disposition of, <a href="#Page_37">37</a>; - <ul class="nest"> - <li>and cash dividends, <a href="#Page_97">97</a>, <a href="#Page_98">98</a>;</li> - <li>and stock dividends, <a href="#Page_97">97</a>, <a href="#Page_98">98</a>;</li> - <li>definition of, <a href="#Page_263">263</a>;</li> - <li>who may be, <a href="#Page_264">264</a>;</li> - <li>see <i>Will</i></li> - </ul> -</li> - -<li>Lessee, see <i>Lease</i></li> - -<li>Lessor, see <i>Lease</i></li> - -<li>Letter of credit, form for, <a href="#Page_309">309</a></li> - -<li>Libel, is a wrong, <a href="#Page_250">250</a>, <a href="#Page_251">251</a>, <a href="#Page_252">252</a>; - <ul class="nest"> - <li>and slander, <a href="#Page_252">252</a></li> - </ul> -</li> - -<li>License, land, <a href="#Page_149">149</a>; - <ul class="nest"> - <li>defined, <a href="#Page_149">149</a>, <a href="#Page_150">150</a>;</li> - <li>for what granted, <a href="#Page_150">150</a>;</li> - <li>granted informally, <a href="#Page_150">150</a>;</li> - <li>revocation, <a href="#Page_150">150</a>, <a href="#Page_151">151</a>;</li> - <li>duty of licensor to invitee, <a href="#Page_151">151</a>;</li> - <li>of vessels, <a href="#Page_236">236</a></li> - </ul> -</li> - -<li>License to operate automobile, <a href="#Page_20">20</a></li> - -<li>Lien, of agister, <a href="#Page_30">30</a>; - <ul class="nest"> - <li>of livery stable man, <a href="#Page_30">30</a>;</li> - <li>of groom, <a href="#Page_30">30</a>;</li> - <li>of freight carrier, <a href="#Page_49">49</a>;</li> - <li>on bank stock, <a href="#Page_78">78</a>;</li> - <li>of factor, <a href="#Page_123">123</a>;</li> - <li>of garage keeper, <a href="#Page_134">134</a>;</li> - <li>of innkeeper, <a href="#Page_148">148</a>;</li> - <li>on real estate, <a href="#Page_180">180</a>, <a href="#Page_181">181</a>;</li> - <li>form for claim of, by workman, <a href="#Page_279">279</a></li> - </ul> -</li> - -<li>Life Insurance, see <i>Insurance, Life</i></li> - -<li>Limitation, Statutes of, <a href="#Page_243">243</a>, <a href="#Page_244">244</a>, <a href="#Page_245">245</a></li> - -<li>Livery stable, no lien on animals, <a href="#Page_30">30</a></li> - -<li>Lodging house, liability of keeper, <a href="#Page_149">149</a></li> - -<li>Lost property, <a href="#Page_26">26</a>-28<br /><br /></li> - - -<li>McClain, Justice, quoted on life insurance, <a href="#Page_168">168</a>, <a href="#Page_174">174</a></li> - -<li>Mail, United States common carrier for, <a href="#Page_52">52</a>; - <ul class="nest"> - <li>United States is not liable for loss of, <a href="#Page_52">52</a>;</li> - <li>private express cannot be established for, <a href="#Page_52">52</a>;</li> - <li>liability of postmaster and assistant and clerk, <a href="#Page_52">52</a>;</li> - <li>liability of driver of, <a href="#Page_52">52</a>;</li> - <li>assent in contracts sent by, <a href="#Page_69">69</a>, <a href="#Page_70">70</a>;</li> - <li><span class='pagenum'><a name="Page_332" id="Page_332">[332]</a></span>delivery of insurance policy, <a href="#Page_169">169</a>;</li> - <li>see <i>Negotiable Paper</i></li> - </ul> -</li> - -<li>Malice, liability of corporation for, <a href="#Page_99">99</a></li> - -<li>Mandamus, issue of, <a href="#Page_81">81</a>; - <ul class="nest"> - <li>action of, <a href="#Page_166">166</a></li> - </ul> -</li> - -<li>Manufacture, contract for, not included in Statute of Frauds, <a href="#Page_243">243</a></li> - -<li>Manufacturer, liability of, <a href="#Page_258">258</a></li> - -<li>Margin, sale of stock on, <a href="#Page_235">235</a></li> - -<li>Marriage, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>, <a href="#Page_115">115</a>, <a href="#Page_137">137</a>; - <ul class="nest"> - <li>see <i>Husband and Wife</i></li> - </ul> -</li> - -<li>Massachusetts courts, decision in respect to adopted child, <a href="#Page_5">5</a></li> - -<li>Masters, of vessels, law governing employment, <a href="#Page_239">239</a>; - <ul class="nest"> - <li>duties and successors of, <a href="#Page_240">240</a>;</li> - <li>authority of, <a href="#Page_240">240</a></li> - </ul> -</li> - -<li>Meetings, <a href="#Page_83">83</a>-86</li> - -<li>Merchant, duty of, towards public, <a href="#Page_151">151</a>; - <ul class="nest"> - <li>and traveling salesman, form for agreement between, <a href="#Page_311">311</a></li> - </ul> -</li> - -<li>Merchandise Broker, <a href="#Page_45">45</a>, <a href="#Page_46">46</a></li> - -<li>Messages, telegraph, should not be made public, <a href="#Page_247">247</a>; - <ul class="nest"> - <li>may be produced by order of a court, <a href="#Page_247">247</a>;</li> - <li>criminal offense to divulge, <a href="#Page_247">247</a>;</li> - <li>to open or read a sealed, <a href="#Page_247">247</a>;</li> - <li>repeated and unrepeated, <a href="#Page_248">248</a></li> - </ul> -</li> - -<li>Minor, limited power of, <a href="#Page_7">7</a>; - <ul class="nest"> - <li>bid made by, <a href="#Page_18">18</a>;</li> - <li>as bailee, <a href="#Page_20">20</a>;</li> - <li>cannot become a voluntary bankrupt, <a href="#Page_31">31</a>;</li> - <li>as mortgagee, <a href="#Page_53">53</a>;</li> - <li>as chauffeur, <a href="#Page_57">57</a>;</li> - <li>citizenship of, <a href="#Page_62">62</a>;</li> - <li>ability of to sign contracts limited, <a href="#Page_65">65</a>;</li> - <li>period of infancy of, fixed by law, <a href="#Page_65">65</a>;</li> - <li>cannot subscribe to stock, <a href="#Page_75">75</a>;</li> - <li>cannot be held for note, <a href="#Page_91">91</a>;</li> - <li>cannot make legal deed, <a href="#Page_107">107</a>;</li> - <li>lease made by, void, <a href="#Page_155">155</a>;</li> - <li>contracts of a, <a href="#Page_176">176</a>;</li> - <li>necessaries and luxuries supplied to a, <a href="#Page_176">176</a>;</li> - <li>disaffirmation of contract of a, <a href="#Page_177">177</a>;</li> - <li>fraudulent contract of a, <a href="#Page_177">177</a>;</li> - <li>can avoid sales contracts, <a href="#Page_228">228</a>;</li> - <li>and Statute of Limitations, <a href="#Page_244">244</a>;</li> - <li>may be a devisee or legatee, <a href="#Page_264">264</a>;</li> - <li>as employee in Compensation Acts, <a href="#Page_268">268</a></li> - </ul> -</li> - -<li>Morawetz, quoted, <a href="#Page_88">88</a>, <a href="#Page_89">89</a>, <a href="#Page_100">100</a></li> - -<li>Mortgage, creditor, can force contract to give, <a href="#Page_120">120</a>; - <ul class="nest"> - <li>kinds of, <a href="#Page_177">177</a>;</li> - <li>may cover future advances, <a href="#Page_178">178</a>;</li> - <li>improvements covered, <a href="#Page_178">178</a>, <a href="#Page_179">179</a>;</li> - <li>not an absolute conveyance, <a href="#Page_179">179</a>;</li> - <li>not changed by contemporaneous agreement, <a href="#Page_179">179</a>;</li> - <li>with power of sale, <a href="#Page_179">179</a>, <a href="#Page_180">180</a>;</li> - <li>how the power must be executed, <a href="#Page_180">180</a>;</li> - <li>mortgagor cannot purchase property sold, <a href="#Page_180">180</a>;</li> - <li>lien of vendor for purchase money, <a href="#Page_180">180</a>;</li> - <li>how subsequent purchaser is affected, <a href="#Page_180">180</a>;</li> - <li>notice of vendor's lien, <a href="#Page_181">181</a>;</li> - <li>mortgagor real owner, <a href="#Page_181">181</a>;</li> - <li>both parties may insure premises, <a href="#Page_181">181</a>;</li> - <li>rights of several mortgagees to same property, <a href="#Page_181">181</a>;</li> - <li>right of deviser to money due on, <a href="#Page_182">182</a>;</li> - <li>mode of foreclosure on a, <a href="#Page_182">182</a>;</li> - <li>payment by joint contributors to discharge, <a href="#Page_183">183</a>;</li> - <li>who can redeem a, <a href="#Page_183">183</a>;</li> - <li>payment by executor, <a href="#Page_183">183</a>;</li> - <li>rights of mortgage of vessel, <a href="#Page_238">238</a>;</li> - <li>form for deed of, with power of sale, <a href="#Page_287">287</a>;</li> - <li>form for deed of, <a href="#Page_287">287</a>;</li> - <li>form for notice of sale under, <a href="#Page_291">291</a>;</li> - <li>form for assignment of, <a href="#Page_292">292</a>;</li> - <li>see <i>Deed</i>, <i>Chattel Mortgage</i>, <i>Shipping</i></li> - </ul> -</li> - -<li>Mortgage, Chattel, <a href="#Page_52">52</a>; - <ul class="nest"> - <li>definition of, <a href="#Page_52">52</a>, <a href="#Page_53">53</a>;</li> - <li>form of, <a href="#Page_52">52</a>;</li> - <li>who may make, <a href="#Page_53">53</a>;</li> - <li>creditors may join in giving, <a href="#Page_53">53</a>;</li> - <li>description of property, <a href="#Page_53">53</a>, <a href="#Page_54">54</a>;</li> - <li>may be given for future advance of money, <a href="#Page_54">54</a>;</li> - <li>to render secure from creditor <a href="#Page_54">54</a>;</li> - <li><span class='pagenum'><a name="Page_333" id="Page_333">[333]</a></span>Statutes of, <a href="#Page_55">55</a>, <a href="#Page_56">56</a>;</li> - <li>what is included in, <a href="#Page_55">55</a>;</li> - <li>rights of mortgagee, <a href="#Page_55">55</a>, <a href="#Page_56">56</a>;</li> - <li>form for, with power of sale, <a href="#Page_288">288</a>;</li> - <li>form for deed of, <a href="#Page_289">289</a>;</li> - <li>see <i>Mortgage</i></li> - </ul> -</li> - -<li>Mortgagee, <a href="#Page_55">55</a>, <a href="#Page_56">56</a>; - <ul class="nest"> - <li>has insurable interest in goods, <a href="#Page_126">126</a></li> - </ul> -</li> - -<li>Mortgagor, <a href="#Page_55">55</a>, <a href="#Page_56">56</a>; - <ul class="nest"> - <li>favored by law in regard to fixtures, <a href="#Page_133">133</a></li> - </ul> -</li> - -<li>Motorist, non-resident, <a href="#Page_20">20</a><br /><br /></li> - - -<li>Naturalization, <a href="#Page_62">62</a></li> - -<li>Negotiable Instruments Law, <a href="#Page_213">213</a></li> - -<li>Negotiable paper, definition, <a href="#Page_183">183</a>-197; - <ul class="nest"> - <li>see <i>Note</i>, <i>Promissory</i></li> - </ul> -</li> - -<li>Newspapers, offers and rewards in, <a href="#Page_70">70</a>, <a href="#Page_71">71</a></li> - -<li>Note, promissory, definition, <a href="#Page_183">183</a>; - <ul class="nest"> - <li>requirements for a, <a href="#Page_183">183</a>;</li> - <li>unqualified promise in a, <a href="#Page_184">184</a>;</li> - <li>payable on a contingency, <a href="#Page_184">184</a>;</li> - <li>payable at a fixed future time, <a href="#Page_184">184</a>;</li> - <li>dating of a, <a href="#Page_184">184</a>;</li> - <li>seal of a, <a href="#Page_184">184</a>;</li> - <li>payable on demand, <a href="#Page_184">184</a>;</li> - <li>overdue, <a href="#Page_185">185</a>;</li> - <li>payable to order; <a href="#Page_185">185</a>;</li> - <li>payable to bearer, <a href="#Page_185">185</a>;</li> - <li>ante or past-dated, <a href="#Page_185">185</a>;</li> - <li>title to, acquired from date of delivery, <a href="#Page_185">185</a>;</li> - <li>a wrongly dated, <a href="#Page_186">186</a>;</li> - <li>authority of holder to fill blanks, <a href="#Page_186">186</a>;</li> - <li>incomplete until delivery, <a href="#Page_187">187</a>;</li> - <li>mode of delivery, <a href="#Page_187">187</a>;</li> - <li>ambiguity of a, <a href="#Page_187">187</a>, <a href="#Page_188">188</a>;</li> - <li>signature to a, <a href="#Page_188">188</a>;</li> - <li>signature by agent, <a href="#Page_188">188</a>;</li> - <li>a forged, <a href="#Page_188">188</a>;</li> - <li>forged indorsement on a, <a href="#Page_188">188</a>;</li> - <li>consideration for a, <a href="#Page_189">189</a>;</li> - <li>accommodation party to a, <a href="#Page_189">189</a>;</li> - <li>negotiation of a, <a href="#Page_189">189</a>;</li> - <li>negotiation by delivery of a, <a href="#Page_189">189</a>;</li> - <li>by indorsement and delivery, <a href="#Page_189">189</a>;</li> - <li>kinds of indorsement of a, <a href="#Page_189">189</a>;</li> - <li>striking out indorsement of a, <a href="#Page_189">189</a>;</li> - <li>indorsing to bank or cashier, <a href="#Page_190">190</a>;</li> - <li>misspelled or incorrect indorsement, <a href="#Page_190">190</a>;</li> - <li>holder in due course, <a href="#Page_190">190</a>;</li> - <li>bad faith in negotiating, <a href="#Page_190">190</a>, <a href="#Page_191">191</a>;</li> - <li>agreement of maker, <a href="#Page_191">191</a>;</li> - <li>liability of indorser, not a party to, <a href="#Page_191">191</a>;</li> - <li>presentment of a, for payment, <a href="#Page_191">191</a>, <a href="#Page_192">192</a>, <a href="#Page_193">193</a>;</li> - <li>exclusion of days in reckoning due date of, <a href="#Page_193">193</a>;</li> - <li>payable at bank, <a href="#Page_193">193</a>; notice of dishonor of a, <a href="#Page_193">193</a>, <a href="#Page_194">194</a>;</li> - <li>notice of, to joint parties, <a href="#Page_194">194</a>;</li> - <li>notice of, to address as directed, <a href="#Page_194">194</a>;</li> - <li>notice of waived, <a href="#Page_195">195</a>;</li> - <li>alterations in a, <a href="#Page_195">195</a>;</li> - <li>memorandum on a, <a href="#Page_195">195</a>;</li> - <li>similarity of indorsed, and bill of exchange, <a href="#Page_196">196</a>;</li> - <li>given in payment, <a href="#Page_212">212</a>;</li> - <li>and Statute of Limitations, <a href="#Page_244">244</a></li> - </ul> -</li> - -<li>Non-resident Alien, <a href="#Page_63">63</a>, <a href="#Page_64">64</a></li> - -<li>Notice, of sale under mortgage, form for, <a href="#Page_291">291</a>; - <ul class="nest"> - <li>of meetings, see <i>Corporation</i>;</li> - <li>to quit, form for, <a href="#Page_299">299</a></li> - </ul> -</li> - -<li>Nuisances, private, are wrongs, <a href="#Page_255">255</a><br /><br /></li> - - -<li>Obligations, various, included in Statute of Limitations, <a href="#Page_245">245</a></li> - -<li>Officer, public, liability of, <a href="#Page_52">52</a></li> - -<li>Option, to purchase land, <a href="#Page_16">16</a></li> - -<li>Owners, in common, of vessels, <a href="#Page_236">236</a>, <a href="#Page_237">237</a><br /><br /></li> - - -<li>Parent, natural and adopted, <a href="#Page_5">5</a>; - <ul class="nest"> - <li>cannot lease land of minor child, <a href="#Page_155">155</a>;</li> - <li>of a minor, <a href="#Page_177">177</a>;</li> - <li>obligations of, toward child, <a href="#Page_197">197</a>;</li> - <li>cessation of, <a href="#Page_197">197</a>;</li> - <li>protection of child by, <a href="#Page_197">197</a>;</li> - <li>use of child's property by, <a href="#Page_197">197</a>;</li> - <li>and child, relations between, <a href="#Page_197">197</a>;</li> - <li>see <i>Adopted Child</i>, <i>Husband and Wife</i></li> - </ul> -</li> - -<li>Partner, a member of beneficial association not a, <a href="#Page_39">39</a>; - <ul class="nest"> - <li><span class='pagenum'><a name="Page_334" id="Page_334">[334]</a></span>what surviving may do, <a href="#Page_85">85</a>;</li> - <li>may waive notice of corporate meeting, <a href="#Page_85">85</a>;</li> - <li>dower rights of widow of, <a href="#Page_115">115</a>;</li> - <li>cannot lease partnership land, <a href="#Page_156">156</a>;</li> - <li>non-investing, not liable for debts, <a href="#Page_198">198</a>;</li> - <li>a general agent, <a href="#Page_198">198</a>;</li> - <li>limitations of authority of a, <a href="#Page_199">199</a>;</li> - <li>silent or secret, liability of, <a href="#Page_199">199</a>, <a href="#Page_200">200</a>;</li> - <li>general or special, <a href="#Page_200">200</a>;</li> - <li>illegal contract made by a, <a href="#Page_201">201</a>;</li> - <li>death of a, <a href="#Page_201">201</a>;</li> - <li>succession to by executor, <a href="#Page_201">201</a>;</li> - <li>retiring, <a href="#Page_201">201</a>;</li> - <li>liquidating, authority of, <a href="#Page_202">202</a></li> - </ul> -</li> - -<li>Partnership, rules for termination of agency, <a href="#Page_14">14</a>; - <ul class="nest"> - <li>liability of members, <a href="#Page_75">75</a>, <a href="#Page_78">78</a>;</li> - <li>stock owned by, represented by partner, <a href="#Page_85">85</a>;</li> - <li>contract to form, cannot be enforced, <a href="#Page_120">120</a>;</li> - <li>member of, cannot make lease, <a href="#Page_156">156</a>;</li> - <li>between tenant and landlord, <a href="#Page_161">161</a>;</li> - <li>in a single transaction, <a href="#Page_198">198</a>; Act, <a href="#Page_198">198</a>;</li> - <li>liability of non-investing partners in, <a href="#Page_198">198</a>;</li> - <li>can hold any kind of property, <a href="#Page_198">198</a>;</li> - <li>partners in, are general agents, <a href="#Page_198">198</a>;</li> - <li>limitations of authority of partners in, <a href="#Page_199">199</a>;</li> - <li>reception of a new member in, <a href="#Page_199">199</a>;</li> - <li>formed by definite agreement in writing, <a href="#Page_199">199</a>;</li> - <li>silent or secret partners in, <a href="#Page_199">199</a>, <a href="#Page_200">200</a>;</li> - <li>limited liability, <a href="#Page_200">200</a>;</li> - <li>dissolution of a, <a href="#Page_201">201</a>;</li> - <li>death of a partner in, <a href="#Page_201">201</a>;</li> - <li>retiring partner in, <a href="#Page_201">201</a>;</li> - <li>failure of, disposition of assets, <a href="#Page_202">202</a>;</li> - <li>liquidating partner in, <a href="#Page_202">202</a></li> - </ul> -</li> - -<li>Party wall, form for agreement concerning, <a href="#Page_277">277</a></li> - -<li>Passenger, duty of automobile owner or hirer, in carrying, <a href="#Page_22">22</a>; - <ul class="nest"> - <li>compensation for carrying, <a href="#Page_22">22</a>;</li> - <li>see <i>Carrier</i></li> - </ul> -</li> - -<li>Patent, <a href="#Page_202">202</a>; - <ul class="nest"> - <li>design, <a href="#Page_203">203</a>;</li> - <li>invalidation of an American by a foreign, <a href="#Page_204">204</a>;</li> - <li>prior publication for a, <a href="#Page_204">204</a>;</li> - <li>defeat of on ground of lack of novelty, <a href="#Page_204">204</a>;</li> - <li>must be useful to get a, <a href="#Page_204">204</a>;</li> - <li>exercise of inventive power necessary for a, <a href="#Page_205">205</a>;</li> - <li>to whom can a be issued? <a href="#Page_206">206</a>;</li> - <li>a joint, <a href="#Page_207">207</a>;</li> - <li>must be issued in name of real inventors, <a href="#Page_207">207</a>;</li> - <li>rights of employee with a, <a href="#Page_207">207</a>;</li> - <li>may be issued to assignees, <a href="#Page_208">208</a>;</li> - <li>inventor must apply for a, <a href="#Page_208">208</a>;</li> - <li>specification of invention to get a, <a href="#Page_208">208</a>, <a href="#Page_209">209</a>;</li> - <li>duties of inventor to get a, <a href="#Page_209">209</a>;</li> - <li>duties of commissioner and examiner before granting a, <a href="#Page_210">210</a>;</li> - <li>right of appeal if not granted, <a href="#Page_210">210</a>;</li> - <li>infringement of, and injunction to prevent, <a href="#Page_211">211</a>;</li> - <li>form for assignment of right, <a href="#Page_304">304</a></li> - </ul> -</li> - -<li>Pawn Broker, <a href="#Page_45">45</a>, <a href="#Page_47">47</a></li> - -<li>Payment, when can double be required, <a href="#Page_9">9</a>, <a href="#Page_211">211</a>; - <ul class="nest"> - <li>legal forms of, <a href="#Page_211">211</a>, <a href="#Page_212">212</a>;</li> - <li>note or check given in, <a href="#Page_212">212</a>;</li> - <li>applications of general on several debts, <a href="#Page_212">212</a>;</li> - <li>receipt not conclusive evidence of, <a href="#Page_213">213</a>;</li> - <li>effect of a seal in a receipt for, <a href="#Page_214">214</a>;</li> - <li>on receipt of documents, <a href="#Page_235">235</a>;</li> - <li>partial, of purchase money completes sale, <a href="#Page_243">243</a>;</li> - <li>partial, revives debt barred by Statute of Limitations, <a href="#Page_245">245</a>;</li> - <li>of money, form for bond for, <a href="#Page_305">305</a></li> - </ul> -</li> - -<li>Peck, quoted, <a href="#Page_117">117</a></li> - -<li>Pedestrian, rights of, <a href="#Page_22">22</a></li> - -<li>Physician, admission of, to beneficial associations, <a href="#Page_41">41</a>; - <ul class="nest"> - <li>form for agreement for sale of practise of a, <a href="#Page_309">309</a></li> - </ul> -</li> - -<li>Pledgee, authority of, <a href="#Page_7">7</a>; - <ul class="nest"> - <li>has insurable interest in goods, <a href="#Page_126">126</a></li> - </ul> -</li> - -<li>Pledgor, of stock, <a href="#Page_85">85</a>, <a href="#Page_86">86</a></li> - -<li><span class='pagenum'><a name="Page_335" id="Page_335">[335]</a></span>Policy, insurance, <a href="#Page_168">168</a>-176; - <ul class="nest"> - <li>form of assignment of, <a href="#Page_302">302</a>;</li> - <li>see <i>Insurance, Fire</i>; <i>Insurance, Life</i></li> - </ul> -</li> - -<li>Poll deed, <a href="#Page_106">106</a></li> - -<li>Possession and control, transfer of constitutes delivery, <a href="#Page_243">243</a></li> - -<li>Postmaster, liability of, <a href="#Page_52">52</a></li> - -<li>Post office, is agency of offerer of contract, <a href="#Page_69">69</a>, <a href="#Page_70">70</a></li> - -<li>Pond, title to land under and around, <a href="#Page_112">112</a></li> - -<li>Power of attorney given to an agent, <a href="#Page_7">7</a>; - <ul class="nest"> - <li>given by a homesteader, <a href="#Page_14">14</a>;</li> - <li>revoked by woman's marriage, <a href="#Page_14">14</a>;</li> - <li>form for, <a href="#Page_299">299</a>;</li> - <li>to transfer stock, form for, <a href="#Page_300">300</a></li> - </ul> -</li> - -<li>Precedent, nature of, <a href="#Page_1">1</a></li> - -<li>Preference, defined, <a href="#Page_32">32</a></li> - -<li>Preferred stock, see <i>Corporation</i></li> - -<li>Premium, see <i>Insurance, Life</i>; <i>Insurance, Fire</i></li> - -<li>Prescriptive Rights, <a href="#Page_214">214</a>; - <ul class="nest"> - <li>to land, how gained, <a href="#Page_214">214</a>;</li> - <li>how determine whether or not fully acquired, <a href="#Page_214">214</a>;</li> - <li>to light and air, <a href="#Page_215">215</a>;</li> - <li>to use of water, <a href="#Page_216">216</a>;</li> - <li>to lateral support of land, <a href="#Page_217">217</a>;</li> - <li>excavations, <a href="#Page_218">218</a></li> - </ul> -</li> - -<li>Price, fixing of, in a sale, <a href="#Page_230">230</a>; - <ul class="nest"> - <li>determination of reasonable, <a href="#Page_231">231</a></li> - </ul> -</li> - -<li>Promise to pay a debt, renewal of, <a href="#Page_244">244</a>, <a href="#Page_245">245</a></li> - -<li>Property, lost, <a href="#Page_26">26</a>, <a href="#Page_27">27</a>; - <ul class="nest"> - <li>fraudulent transfer of, <a href="#Page_32">32</a>, <a href="#Page_33">33</a>;</li> - <li>real and personal, in wells, <a href="#Page_263">263</a></li> - </ul> -</li> - -<li>Prosecution, liability of corporation for, <a href="#Page_99">99</a>; - <ul class="nest"> - <li>malicious, is a wrong, <a href="#Page_249">249</a></li> - </ul> -</li> - -<li>Prosecutor, State as, <a href="#Page_164">164</a>; - <ul class="nest"> - <li>injured person as, <a href="#Page_164">164</a></li> - </ul> -</li> - -<li>Publication, prior, of an invention, <a href="#Page_204">204</a></li> - -<li>Public Officers, and Compensation Acts, <a href="#Page_272">272</a></li> - -<li>Purchasers of vessels, liability of, <a href="#Page_238">238</a><br /><br /></li> - - -<li>Quasi Contract, <a href="#Page_218">218</a>; - <ul class="nest"> - <li>definition, <a href="#Page_218">218</a>;</li> - <li>gift cannot be reclaimed, <a href="#Page_218">218</a>;</li> - <li>recovery for incidental advantage to another, <a href="#Page_218">218</a>, <a href="#Page_219">219</a>;</li> - <li>for service rendered as gratuity, <a href="#Page_219">219</a>;</li> - <li>for goods accepted without intended payment, <a href="#Page_219">219</a>;</li> - <li>for perished property, <a href="#Page_220">220</a>;</li> - <li>premium on insurance policy, <a href="#Page_220">220</a>;</li> - <li>recovery in case of indefinite promise, <a href="#Page_220">220</a>;</li> - <li>contract not executed as law requires, <a href="#Page_220">220</a>, <a href="#Page_221">221</a>;</li> - <li>especially Statute of Frauds, <a href="#Page_221">221</a>, <a href="#Page_222">222</a>;</li> - <li>recovery for use of unpaid for land, <a href="#Page_222">222</a>;</li> - <li>recovery impossible in case of no benefit, <a href="#Page_222">222</a>;</li> - <li>recovery impossible by taking advantage of one's own default, <a href="#Page_223">223</a>;</li> - <li>recovery for loss in course of alteration and repair, <a href="#Page_223">223</a>;</li> - <li>in case of illness or death of contractor, <a href="#Page_223">223</a>;</li> - <li>in wagering contract, <a href="#Page_224">224</a>;</li> - <li>in contracts made on Sunday, <a href="#Page_224">224</a>;</li> - <li>on partnership note given for benefit of partner, <a href="#Page_224">224</a>;</li> - <li>of goods delivered by carrier to wrong person, <a href="#Page_224">224</a>;</li> - <li>of payment made by mistake, <a href="#Page_225">225</a>;</li> - <li>when consideration has totally failed, <a href="#Page_225">225</a>;</li> - <li>voluntary payment, <a href="#Page_225">225</a>;</li> - <li>recovery of check not covered by deposit, <a href="#Page_225">225</a>;</li> - <li>goods sold as own which are not, <a href="#Page_225">225</a>;</li> - <li>goods that are worthless, <a href="#Page_225">225</a>;</li> - <li>forced benefit cannot be recovered, <a href="#Page_226">226</a></li> - </ul> -</li> - -<li>Quit, form for notice to, <a href="#Page_299">299</a></li> - -<li>Quit-claim, <a href="#Page_106">106</a>; - <ul class="nest"> - <li>form for deed of, <a href="#Page_285">285</a>, <a href="#Page_286">286</a></li> - </ul> -</li> - -<li>Quo warranto, action of, <a href="#Page_166">166</a><br /><br /></li> - - -<li>Race track news by telegraph, <a href="#Page_217">217</a></li> - -<li><span class='pagenum'><a name="Page_336" id="Page_336">[336]</a></span>Railroad receivers, <a href="#Page_8">8</a></li> - -<li>Ratification, defective notice of meeting may be cured by, <a href="#Page_83">83</a></li> - -<li>Real Estate, broker, <a href="#Page_45">45</a>, <a href="#Page_46">46</a>; - <ul class="nest"> - <li>deeds, <a href="#Page_101">101</a>-112;</li> - <li>monuments, <a href="#Page_111">111</a>;</li> - <li>boundaries of, in cities, <a href="#Page_111">111</a>;</li> - <li>non-navigable stream, <a href="#Page_111">111</a>;</li> - <li>tidal navigable stream, <a href="#Page_112">112</a>;</li> - <li>natural or artificial pond as boundary, <a href="#Page_111">111</a>, <a href="#Page_112">112</a>;</li> - <li>title to land in public highway, <a href="#Page_112">112</a>;</li> - <li>liability of examiner of title, <a href="#Page_112">112</a>, <a href="#Page_113">113</a>;</li> - <li>equity awards money for failure of contract, <a href="#Page_120">120</a>;</li> - <li>equity will enforce covenants, <a href="#Page_122">122</a>;</li> - <li>seller favored by law in regard to fixtures, <a href="#Page_132">132</a>, <a href="#Page_133">133</a>;</li> - <li>conveyance of, in Statute of Frauds, <a href="#Page_242">242</a>.</li> - <li>See <i>Lease</i></li> - </ul> -</li> - -<li>Receipt not conclusive evidence of payment, <a href="#Page_213">213</a></li> - -<li>Receiver, duties of, <a href="#Page_79">79</a>; - <ul class="nest"> - <li>has insurable interest in goods, <a href="#Page_126">126</a>.</li> - <li>See <i>Corporation</i></li> - </ul> -</li> - -<li>Registration of vessels, <a href="#Page_235">235</a></li> - -<li>Release, <a href="#Page_106">106</a>; - <ul class="nest"> - <li>by ward of his guardian, form for, <a href="#Page_314">314</a></li> - </ul> -</li> - -<li>Rent, <a href="#Page_160">160</a></li> - -<li>Replevin, action of, <a href="#Page_165">165</a></li> - -<li>Representation, as distinguished from warranty, <a href="#Page_260">260</a></li> - -<li>Retraction, of slander and libel, <a href="#Page_255">255</a></li> - -<li>Revocation of wills, <a href="#Page_266">266</a></li> - -<li>Right of way, <a href="#Page_214">214</a>; - <ul class="nest"> - <li>to light and air, <a href="#Page_215">215</a>;</li> - <li>to use of water, <a href="#Page_216">216</a>;</li> - <li>to lateral support of land, <a href="#Page_217">217</a></li> - </ul> -</li> - -<li>Riparian owner, rights of, <a href="#Page_112">112</a></li> - -<li>Roads, public, <a href="#Page_19">19</a><br /><br /></li> - - -<li>Safe Deposit Company, as bailee, <a href="#Page_29">29</a></li> - -<li>Sale, <a href="#Page_227">227</a>; - <ul class="nest"> - <li>future contract to sell and present sale, <a href="#Page_227">227</a>;</li> - <li>based on mutual assent, <a href="#Page_227">227</a>;</li> - <li>executory, <a href="#Page_227">227</a>;</li> - <li>executed, <a href="#Page_227">227</a>;</li> - <li>based on mutual assent, <a href="#Page_227">227</a>;</li> - <li>may be conditional, <a href="#Page_227">227</a>;</li> - <li>regulation of capacity to buy and sell, <a href="#Page_228">228</a>;</li> - <li>contracts of a minor, <a href="#Page_228">228</a>;</li> - <li>Sales Act and Statute of Frauds, <a href="#Page_229">229</a>;</li> - <li>limit of enforcement of sale, <a href="#Page_229">229</a>;</li> - <li>an undivided share, <a href="#Page_229">229</a>;</li> - <li>specific goods, <a href="#Page_230">230</a>;</li> - <li>fixing of price in a, <a href="#Page_230">230</a>;</li> - <li>determination of reasonable price, <a href="#Page_231">231</a>;</li> - <li>and warranties, <a href="#Page_231">231</a>;</li> - <li>satisfaction of buyer necessary, <a href="#Page_231">231</a>;</li> - <li>implied warranty in a, <a href="#Page_232">232</a>, <a href="#Page_233">233</a>;</li> - <li>transfer of ownership in a, <a href="#Page_233">233</a>;</li> - <li>delivery and acceptance in a, <a href="#Page_234">234</a>;</li> - <li>delivery of goods or documents on payment, <a href="#Page_234">234</a>;</li> - <li>speculative stock, <a href="#Page_235">235</a>;</li> - <li>of goods, wares, and merchandise in Statute of Frauds, <a href="#Page_242">242</a>;</li> - <li>various modes of completing, <a href="#Page_243">243</a>;</li> - <li>of land, form for agreement for, <a href="#Page_297">297</a>;</li> - <li>Bill of, form for, <a href="#Page_281">281</a>;</li> - <li>form for notice of, under mortgage, <a href="#Page_291">291</a></li> - </ul> -</li> - -<li>Sales Act, <a href="#Page_17">17</a>, <a href="#Page_228">228</a>; - <ul class="nest"> - <li>and undivided share of goods, <a href="#Page_229">229</a>;</li> - <li>and Statute of Frauds, <a href="#Page_229">229</a>;</li> - <li>and specific goods, <a href="#Page_230">230</a>;</li> - <li>fixing of price in, <a href="#Page_230">230</a>;</li> - <li>determination of reasonable price, <a href="#Page_231">231</a>;</li> - <li>satisfaction of buyer necessary, <a href="#Page_231">231</a>;</li> - <li>warranty and implied warranty, <a href="#Page_232">232</a>, <a href="#Page_233">233</a>;</li> - <li>delivery and acceptance, <a href="#Page_234">234</a>;</li> - <li>delivery of goods or documents on payment, <a href="#Page_234">234</a></li> - </ul> -</li> - -<li>Seal, use of, <a href="#Page_106">106</a>; - <ul class="nest"> - <li>effect of, in a receipt for payment, <a href="#Page_214">214</a></li> - </ul> -</li> - -<li>Seamen, of vessels, laws pertaining to, <a href="#Page_241">241</a></li> - -<li>Separation, between husband and wife, <a href="#Page_143">143</a>, <a href="#Page_144">144</a></li> - -<li>Servants, domestic and Compensation Acts, <a href="#Page_269">269</a></li> - -<li>Service, contract of, <a href="#Page_267">267</a></li> - -<li>Shareholder, rights of, <a href="#Page_101">101</a>. - <ul class="nest"> - <li>See <i>Corporation</i></li> - </ul> -</li> - -<li><span class='pagenum'><a name="Page_337" id="Page_337">[337]</a></span>Shares, land rented on, <a href="#Page_161">161</a>; - <ul class="nest"> - <li>of stock, form for agreement to sell, <a href="#Page_302">302</a></li> - </ul> -</li> - -<li>Shipping, <a href="#Page_235">235</a>. See <i>Vessels</i></li> - -<li>Shipping Broker, <a href="#Page_45">45</a></li> - -<li>Slander, liability of corporation, <a href="#Page_11">11</a>, <a href="#Page_12">12</a>, <a href="#Page_99">99</a>; - <ul class="nest"> - <li>in case of drunkenness, <a href="#Page_118">118</a>;</li> - <li>and libel, action of, <a href="#Page_166">166</a>;</li> - <li>and libel, distinctions between, <a href="#Page_252">252</a>;</li> - <li>is a wrong, <a href="#Page_250">250</a>, <a href="#Page_251">251</a>;</li> - <li>definition of, <a href="#Page_253">253</a></li> - </ul> -</li> - -<li>Sleeping car, <a href="#Page_51">51</a></li> - -<li>Snow, liability for, on pavement, <a href="#Page_162">162</a></li> - -<li>Spring of water, restrictions of owner, <a href="#Page_217">217</a></li> - -<li>Statute of Frauds, and auctioneer, <a href="#Page_17">17</a>; - <ul class="nest"> - <li>and lease, <a href="#Page_152">152</a>;</li> - <li>and recovery on contract, <a href="#Page_221">221</a>, <a href="#Page_222">222</a>;</li> - <li>and sale of goods, <a href="#Page_229">229</a>, <a href="#Page_242">242</a>, <a href="#Page_243">243</a>;</li> - <li>and delivery and acceptance, <a href="#Page_242">242</a>;</li> - <li>and sale of real estate, <a href="#Page_242">242</a>;</li> - <li>and manufacturer, <a href="#Page_243">243</a></li> - </ul> -</li> - -<li>Statutes, <a href="#Page_1">1</a>, <a href="#Page_2">2</a>; - <ul class="nest"> - <li>pertaining to lost property, <a href="#Page_26">26</a>, <a href="#Page_27">27</a>;</li> - <li>to beneficial associations, <a href="#Page_39">39</a>;</li> - <li>to pawn-brokers, <a href="#Page_47">47</a>;</li> - <li>limiting amount carrier must pay for lost life, <a href="#Page_50">50</a>;</li> - <li>regarding mail carrying by private express, <a href="#Page_52">52</a>;</li> - <li>pertaining to chattel mortgages, <a href="#Page_55">55</a>, <a href="#Page_56">56</a>;</li> - <li>imposing higher inheritance tax for non-resident aliens, <a href="#Page_63">63</a>;</li> - <li>allowing individual to form corporations with legislative aid, <a href="#Page_73">73</a>;</li> - <li>pertaining to married women's subscriptions to stock, <a href="#Page_75">75</a>;</li> - <li>provisions for corporations, <a href="#Page_80">80</a>, <a href="#Page_81">81</a>, <a href="#Page_83">83</a>, <a href="#Page_99">99</a>;</li> - <li>controlling bank directors, <a href="#Page_92">92</a>;</li> - <li>fixing liability of parties, <a href="#Page_105">105</a>;</li> - <li>requiring two witnesses to deed, <a href="#Page_107">107</a>;</li> - <li>modifying dower rights, <a href="#Page_116">116</a>;</li> - <li>giving insurer right to cancel fire insurance policy, <a href="#Page_127">127</a>;</li> - <li>providing for total loss, <a href="#Page_131">131</a>;</li> - <li>exempting innkeepers from loss by fire, <a href="#Page_148">148</a>;</li> - <li>changing responsibility of innkeeper, <a href="#Page_149">149</a>;</li> - <li>in New York relative to termination of leases, <a href="#Page_154">154</a></li> - </ul> -</li> - -<li>Statutes of Limitation, claim barred by, and bankruptcy, <a href="#Page_35">35</a>; - <ul class="nest"> - <li>application of, to directors, <a href="#Page_90">90</a>;</li> - <li>operation of, to cancel debt, <a href="#Page_213">213</a>;</li> - <li>various provisions, <a href="#Page_243">243</a>, <a href="#Page_244">244</a>, <a href="#Page_245">245</a></li> - </ul> -</li> - -<li>Stock, <a href="#Page_75">75</a>; - <ul class="nest"> - <li>who can subscribe to, <a href="#Page_75">75</a>;</li> - <li>fictitious subscriptions, <a href="#Page_75">75</a>;</li> - <li>certificates, <a href="#Page_76">76</a>, <a href="#Page_86">86</a>;</li> - <li>capital increased, <a href="#Page_76">76</a>;</li> - <li>preferred, <a href="#Page_76">76</a>;</li> - <li>subscription to, a contract, <a href="#Page_77">77</a>;</li> - <li>corporation cannot purchase own, <a href="#Page_78">78</a>;</li> - <li>corporation has no lien on its, <a href="#Page_78">78</a>;</li> - <li>national banking law, <a href="#Page_78">78</a>;</li> - <li>assessments on, <a href="#Page_79">79</a>;</li> - <li>majority shall rule may be modified, <a href="#Page_80">80</a>;</li> - <li>purchaser of, should give notice to company, <a href="#Page_82">82</a>;</li> - <li>sale of, <a href="#Page_83">83</a>;</li> - <li>trustee legal owner, <a href="#Page_84">84</a>;</li> - <li>executor can vote, of testator, <a href="#Page_84">84</a>, <a href="#Page_85">85</a>;</li> - <li>administer can vote, <a href="#Page_85">85</a>;</li> - <li>owned by partnership represented by partner, <a href="#Page_85">85</a>;</li> - <li>seller and purchaser, <a href="#Page_85">85</a>;</li> - <li>pledgor and pledgee, <a href="#Page_85">85</a>, <a href="#Page_86">86</a>;</li> - <li>transferee, <a href="#Page_85">85</a>;</li> - <li>dividends, <a href="#Page_94">94</a>;</li> - <li>owners of, can examine books, <a href="#Page_101">101</a>;</li> - <li>equity compels delivery of stock, <a href="#Page_119">119</a>, <a href="#Page_120">120</a>;</li> - <li>owner of, in corporation has insurable interest in goods, <a href="#Page_126">126</a>;</li> - <li>speculative sales of, <a href="#Page_235">235</a>;</li> - <li>form for power of attorney to transfer, <a href="#Page_300">300</a>;</li> - <li>certificate, form for, <a href="#Page_301">301</a>;</li> - <li>form for agreement to sell, <a href="#Page_302">302</a>;</li> - <li>form for transfer of, <a href="#Page_303">303</a>.</li> - <li>See <i>Corporation</i></li> - </ul> -</li> - -<li>Stolen property, resale of, <a href="#Page_261">261</a></li> - -<li>Strike, excuses telegraph company for delay, <a href="#Page_246">246</a></li> - -<li><span class='pagenum'><a name="Page_338" id="Page_338">[338]</a></span>Sub-agent, <a href="#Page_10">10</a>, <a href="#Page_15">15</a></li> - -<li>Sublease, <a href="#Page_157">157</a></li> - -<li>Subscription to build a church, form for, <a href="#Page_299">299</a></li> - -<li>Subtenant, <a href="#Page_157">157</a><br /><br /></li> - - -<li>Taxes, of beneficial associations, <a href="#Page_41">41</a>; - <ul class="nest"> - <li>on homestead, <a href="#Page_137">137</a></li> - </ul> -</li> - -<li>Telegraph, <a href="#Page_246">246</a>, <a href="#Page_248">248</a>; - <ul class="nest"> - <li>not a common carrier, <a href="#Page_246">246</a>;</li> - <li>must serve all who apply and offer to pay, <a href="#Page_246">246</a>;</li> - <li>cannot discriminate against another telegraph company, <a href="#Page_246">246</a>;</li> - <li>strike sufficient excuse for delay, <a href="#Page_246">246</a>;</li> - <li>can be penalized for delay in interstate business, <a href="#Page_246">246</a>;</li> - <li>prohibited by statute from limiting their own liability, <a href="#Page_246">246</a>;</li> - <li>may be prohibited from transmitting racetrack news, <a href="#Page_247">247</a>;</li> - <li>must transmit all messages except those containing indecent language, <a href="#Page_247">247</a>;</li> - <li>may close at reasonable hours, <a href="#Page_247">247</a>;</li> - <li>may require sender to designate route of message, <a href="#Page_247">247</a>;</li> - <li>messages should not be made public, <a href="#Page_247">247</a>;</li> - <li>rules for within the state business differ from the rules for interstate business, <a href="#Page_247">247</a>;</li> - <li>repeated and unrepeated messages, <a href="#Page_248">248</a></li> - </ul> -</li> - -<li>Telephone, <a href="#Page_246">246</a>-248; - <ul class="nest"> - <li>company cannot favor any telegraph company, <a href="#Page_246">246</a>;</li> - <li>cannot legally charge a telegraph company more than any other patron, <a href="#Page_246">246</a>;</li> - <li>cannot discriminate against another telephone company, <a href="#Page_246">246</a></li> - </ul> -</li> - -<li>Tenant, favored by law in regard to fixtures, <a href="#Page_132">132</a>. - <ul class="nest"> - <li>See <i>Lease</i></li> - </ul> -</li> - -<li>Term of lease, defined, <a href="#Page_153">153</a></li> - -<li>Terms, explanation of, <a href="#Page_1">1</a></li> - -<li>Testator, must possess sound mind, <a href="#Page_262">262</a>, <a href="#Page_263">263</a>, <a href="#Page_264">264</a>; - <ul class="nest"> - <li>requirements of, <a href="#Page_264">264</a></li> - </ul> -</li> - -<li>Title to bed of lakes, <a href="#Page_112">112</a>; - <ul class="nest"> - <li>to real estate, <a href="#Page_112">112</a>, <a href="#Page_113">113</a>;</li> - <li>warranty of seller's when in possession of the goods, <a href="#Page_261">261</a></li> - </ul> -</li> - -<li>Tort, action in, <a href="#Page_166">166</a></li> - -<li>Torts (or wrongs), <a href="#Page_248">248</a>-260; - <ul class="nest"> - <li>definition, and examples, <a href="#Page_248">248</a>;</li> - <li>false imprisonment, <a href="#Page_249">249</a>;</li> - <li>malicious prosecution, <a href="#Page_249">249</a>;</li> - <li>assault and battery, <a href="#Page_250">250</a>;</li> - <li>defamation of reputation and character, slander, <a href="#Page_250">250</a>, <a href="#Page_251">251</a>;</li> - <li>must be brought to the knowledge of a third person, <a href="#Page_251">251</a>;</li> - <li>libel, vituperation, and abuse, <a href="#Page_251">251</a>;</li> - <li>distinctions between libel and slander, <a href="#Page_252">252</a>;</li> - <li>a corporation may be slandered, <a href="#Page_253">253</a>;</li> - <li>defenses in actions for slander or libel, <a href="#Page_253">253</a>;</li> - <li>apologies or retractions, <a href="#Page_255">255</a>;</li> - <li>private nuisances, <a href="#Page_255">255</a>;</li> - <li>motives not material, <a href="#Page_255">255</a>;</li> - <li>acts of discomfort amounting to nuisances, <a href="#Page_256">256</a>;</li> - <li>temporary annoyances, <a href="#Page_256">256</a>;</li> - <li>distinction between acts that annoy, and acts that injure, <a href="#Page_257">257</a>;</li> - <li>liability of land owner, <a href="#Page_257">257</a>;</li> - <li>trespassing cattle, <a href="#Page_257">257</a>;</li> - <li>vicious animals, <a href="#Page_258">258</a>;</li> - <li>starter of a fire, <a href="#Page_258">258</a>;</li> - <li>keeper of explosives, <a href="#Page_258">258</a>;</li> - <li>liability of a manufacturer, <a href="#Page_258">258</a>;</li> - <li>users of other persons' property, <a href="#Page_259">259</a>;</li> - <li>liability for acts of children, <a href="#Page_260">260</a></li> - </ul> -</li> - -<li>Trades-unions, <a href="#Page_38">38</a></li> - -<li>Transfer of shares of stock, form for, <a href="#Page_303">303</a></li> - -<li>Tree, divisional, law relating to, <a href="#Page_113">113</a></li> - -<li>Trenchard, Justice, quoted, <a href="#Page_112">112</a>, <a href="#Page_113">113</a></li> - -<li>Trespass, action of, <a href="#Page_165">165</a></li> - -<li>Trespasser, <a href="#Page_152">152</a></li> - -<li>Trustee, appointment of, in bankruptcy, <a href="#Page_36">36</a>; - <ul class="nest"> - <li>must give bond, <a href="#Page_37">37</a>;</li> - <li>removal of, <a href="#Page_37">37</a>;</li> - <li>death of, <a href="#Page_37">37</a>;</li> - <li><span class='pagenum'><a name="Page_339" id="Page_339">[339]</a></span>represents bankrupt debtor, <a href="#Page_37">37</a>;</li> - <li>duties, <a href="#Page_37">37</a>;</li> - <li>may make lease, <a href="#Page_156">156</a>;</li> - <li>powers of, <a href="#Page_265">265</a></li> - </ul> -<br /></li> - - -<li>Undivided share of goods, and Sales Act, <a href="#Page_229">229</a></li> - -<li>United States, common carrier for mails, <a href="#Page_52">52</a>; - <ul class="nest"> - <li>liability of, for conduct of a private mail driver, <a href="#Page_52">52</a>;</li> - <li>citizen of, defined, <a href="#Page_62">62</a>;</li> - <li>act conferring citizenship on alien women, <a href="#Page_62">62</a>;</li> - <li>naturalization laws, <a href="#Page_62">62</a>, <a href="#Page_63">63</a></li> - </ul> -</li> - -<li>Usage, affects agent's power, <a href="#Page_8">8</a>; - <ul class="nest"> - <li>sales of auctioneer, <a href="#Page_18">18</a>;</li> - <li>may take into account in insurance policy, <a href="#Page_128">128</a>;</li> - <li>in presenting check for payment, <a href="#Page_192">192</a>;</li> - <li>creates implied warranty, <a href="#Page_233">233</a>;</li> - <li>delivery of goods affected by, <a href="#Page_234">234</a></li> - </ul> -<br /></li> - - -<li>Vendor, when can sell goods, <a href="#Page_7">7</a>; - <ul class="nest"> - <li>may have lien for purchase money, <a href="#Page_180">180</a>;</li> - <li>notice of lien, <a href="#Page_181">181</a></li> - </ul> -</li> - -<li>Vessels, must be registered, <a href="#Page_235">235</a>; - <ul class="nest"> - <li>can be registered only by citizens of United States, <a href="#Page_235">235</a>;</li> - <li>sale to a foreigner, <a href="#Page_236">236</a>;</li> - <li>enrollment of, <a href="#Page_236">236</a>;</li> - <li>license of, <a href="#Page_236">236</a>;</li> - <li>title to, how acquired, <a href="#Page_236">236</a>;</li> - <li>when owned by corporations, <a href="#Page_236">236</a>;</li> - <li>owners or tenants in common of, <a href="#Page_236">236</a>:</li> - <li>limitations of authority of owners in common of, <a href="#Page_236">236</a>;</li> - <li>majority and minority of owners in common of, <a href="#Page_237">237</a>;</li> - <li>liability of purchaser of, <a href="#Page_238">238</a>;</li> - <li>mortgaging of, <a href="#Page_238">238</a>;</li> - <li>rights of mortgagor of, <a href="#Page_238">238</a>;</li> - <li>borrowing money on, <a href="#Page_239">239</a>;</li> - <li>appointment of masters of, <a href="#Page_239">239</a>;</li> - <li>duties, and successors of, <a href="#Page_240">240</a>;</li> - <li>authority of, <a href="#Page_240">240</a>;</li> - <li>seamen, laws pertaining to, <a href="#Page_241">241</a>, <a href="#Page_242">242</a></li> - </ul> -</li> - -<li>Vituperation and abuse, a wrong, <a href="#Page_251">251</a></li> - -<li>Voluntary service, recovery for, <a href="#Page_219">219</a></li> - -<li>Voting, cumulating, described, <a href="#Page_87">87</a>, <a href="#Page_88">88</a><br /><br /></li> - - -<li>Ward, death of, terminates lease, <a href="#Page_155">155</a>; - <ul class="nest"> - <li>form for release from guardian, <a href="#Page_314">314</a></li> - </ul> -</li> - -<li>Warranty, deed of, <a href="#Page_104">104</a>, <a href="#Page_105">105</a>; - <ul class="nest"> - <li>and Sales Act, <a href="#Page_231">231</a>, <a href="#Page_232">232</a>, <a href="#Page_233">233</a>, <a href="#Page_260">260</a>;</li> - <li>distinction between and representation, <a href="#Page_260">260</a>;</li> - <li>statement made simply to awaken a buyer's interest not a, <a href="#Page_260">260</a>;</li> - <li>implied in all cases where vendor is an expert, <a href="#Page_261">261</a>;</li> - <li>in sale of food, <a href="#Page_261">261</a>;</li> - <li>of the seller's title, when in possession of the goods, <a href="#Page_261">261</a>;</li> - <li>when goods are sold by sample, <a href="#Page_261">261</a>;</li> - <li>form for deed of, <a href="#Page_282">282</a>, <a href="#Page_283">283</a>.</li> - <li>See <i>Deceit</i>, <i>Sale</i></li> - </ul> -</li> - -<li>Water, use of stream of, <a href="#Page_216">216</a>. - <ul class="nest"> - <li>See <i>Prescriptive Rights</i></li> - </ul> -</li> - -<li>Widow, rights of, <a href="#Page_136">136</a>. See <i>Dower</i></li> - -<li>Wife, rights of in will, <a href="#Page_266">266</a>; - <ul class="nest"> - <li>rights in marriage.</li> - <li>See <i>Husband and Wife</i></li> - </ul> -</li> - -<li>Will, mortgagor dies without leaving, <a href="#Page_182">182</a>; - <ul class="nest"> - <li>definition, <a href="#Page_262">262</a>;</li> - <li>requirements for testator, <a href="#Page_262">262</a>;</li> - <li>witnesses of, <a href="#Page_262">262</a>;</li> - <li>real and personal property in, definitions of, <a href="#Page_263">263</a>;</li> - <li>should be in writing, <a href="#Page_263">263</a>;</li> - <li>devisee and legatee in, <a href="#Page_263">263</a>;</li> - <li>must be in accordance with laws of states, <a href="#Page_263">263</a>;</li> - <li>grounds on which are attacked, <a href="#Page_263">263</a>;</li> - <li>made by the insane, <a href="#Page_264">264</a>;</li> - <li>requirements of, <a href="#Page_264">264</a>;</li> - <li>when several are made, <a href="#Page_264">264</a>;</li> - <li>authority of trustee of, <a href="#Page_265">265</a>;</li> - <li>devise of lands in, <a href="#Page_265">265</a>;</li> - <li>date on which take effect, <a href="#Page_265">265</a>;</li> - <li>rights of wife in, <a href="#Page_266">266</a>;</li> - <li>revocation of, <a href="#Page_266">266</a>;</li> - <li>forms for, <a href="#Page_315">315</a>, <a href="#Page_316">316</a>, <a href="#Page_317">317</a></li> - </ul> -</li> - -<li><span class='pagenum'><a name="Page_340" id="Page_340">[340]</a></span>Williston, quoted, on stock sales, <a href="#Page_235">235</a></li> - -<li>Witnesses of wills, number required, <a href="#Page_262">262</a></li> - -<li>Woman married, limited power of, <a href="#Page_7">7</a>; - <ul class="nest"> - <li>as mortgagee, <a href="#Page_53">53</a>;</li> - <li>and contracts, <a href="#Page_65">65</a>;</li> - <li>as subscriber to stock, <a href="#Page_75">75</a>;</li> - <li>husband of, entitled to curtesy, <a href="#Page_101">101</a>, <a href="#Page_102">102</a>;</li> - <li>execution of deed by, <a href="#Page_109">109</a>, <a href="#Page_110">110</a>;</li> - <li>and dower, <a href="#Page_113">113</a>;</li> - <li>lease made by, <a href="#Page_155">155</a>;</li> - <li>and Statute of Limitations, <a href="#Page_244">244</a>;</li> - <li>may be devisee or legatee, <a href="#Page_264">264</a>.</li> - <li>See <i>Husband and Wife</i></li> - </ul> -</li> - -<li>Work and labor, form for agreement for, <a href="#Page_280">280</a></li> - -<li>Workmen's Compensation Acts, injury to chauffeurs, <a href="#Page_57">57</a>, <a href="#Page_266">266</a>; - <ul class="nest"> - <li>who is compensated under, <a href="#Page_267">267</a>;</li> - <li>who is not, <a href="#Page_267">267</a>;</li> - <li>contract of service necessary, <a href="#Page_267">267</a>;</li> - <li>condition of health of no consequence, <a href="#Page_268">268</a>;</li> - <li>minors, apprentices, and farm laborers, <a href="#Page_268">268</a>;</li> - <li>domestic servants, <a href="#Page_269">269</a>;</li> - <li>casual employees, <a href="#Page_270">270</a>;</li> - <li>independent contractors, <a href="#Page_271">271</a>;</li> - <li>Federal employees, <a href="#Page_271">271</a>;</li> - <li>public officers, <a href="#Page_272">272</a>;</li> - <li>dependents of workers, <a href="#Page_272">272</a>;</li> - <li>children of workmen, <a href="#Page_273">273</a>;</li> - <li>earnings the basis for computation of compensation, <a href="#Page_274">274</a>;</li> - <li>death of workman, <a href="#Page_274">274</a>;</li> - <li>total and partial incapacity, <a href="#Page_275">275</a>;</li> - <li>form for claim of lien by, <a href="#Page_279">279</a></li> - </ul> -</li> - -<li>Wrongs. See <i>Torts</i>, <a href="#Page_248">248</a>-260</li> -</ul> - -<br /> -<hr /> -<br /> - -<div class="tr"> -<p class="cen"><a name="TN" id="TN"></a>Typographical errors corrected in text:</p> -<br /> - Page 2: adplicable replaced with applicable<br /> - Page 16: posession replaced with possession<br /> - Page 32: fradulent replaced with fraudulent<br /> - Page 95: fnud replaced with fund<br /> - Page 126: Morever replaced with Moreover<br /> - Page 133: morgagee replaced with mortgagee<br /> - Page 139: solemized replaced with solemnized<br /> - Page 153: acquiesence replaced with acquiescence<br /> - Page 171: perpared replaced with prepared<br /> - Page 272: volutary replaced with voluntary<br /> - Page 324: mortage replaced with mortgage<br /> - Page 326: Defences replaced with Defenses<br /> -</div> - -<br /> -<hr /> -<br /> - - - - - - - - -<pre> - - - - - -End of the Project Gutenberg EBook of Putnam's Handy Law Book for the Layman, by -Albert Sidney Bolles - -*** END OF THIS PROJECT GUTENBERG EBOOK PUTNAM'S HANDY LAW BOOK *** - -***** This file should be named 33088-h.htm or 33088-h.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/3/3/0/8/33088/ - -Produced by Jeannie Howse, Juliet Sutherland and the Online -Distributed Proofreading Team at http://www.pgdp.net - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: Putnam's Handy Law Book for the Layman - -Author: Albert Sidney Bolles - -Release Date: July 5, 2010 [EBook #33088] - -Language: English - -Character set encoding: ASCII - -*** START OF THIS PROJECT GUTENBERG EBOOK PUTNAM'S HANDY LAW BOOK *** - - - - -Produced by Jeannie Howse, Juliet Sutherland and the Online -Distributed Proofreading Team at http://www.pgdp.net - - - - - - - * * * * * - - +-----------------------------------------------------------+ - | Transcriber's Note: | - | | - | Inconsistent hyphenation in the original document has | - | been preserved. Bolded text is represented =like so=. | - | | - | Obvious typographical errors have been corrected. For | - | a complete list, please see the end of this document. | - | | - +-----------------------------------------------------------+ - - * * * * * - - - - - BY ALBERT SIDNEY BOLLES, - PH.D., LL.D. - - THE MODERN LAW OF BANKING - BANKS AND THEIR DEPOSITORS - BANK OFFICERS - BANK COLLECTIONS - THE NATIONAL BANK ACT AND ITS JUDICIAL INTERPRETATION - - - - -Putnam's Handy Law Book -for the Layman - - - - -Putnam's -Handy Law Book -for the Layman - - -By - -Albert Sidney Bolles, Ph.D., LL.D. - -Formerly Professor of Commercial Law and Banking in the -University of Pennsylvania, also Lecturer on the -Same Subjects in Haverford College - - - - -G.P. Putnam's Sons -New York and London -The Knickerbocker Press - - - - -Copyright, 1921 -by -Albert Sidney Bolles - -Published September, 1921 -Reprinted December, 1921 - " March, July, 1922 - " April, 1923 - - -[Illustration] - -Made in the United States of America - - - - -FOREWORD - - -What useful purpose can this book serve? Most of the laws under which -we live are kept, not from knowing them, but because the good sense of -individuals leads them along legal ways. Yet in many cases their good -sense fails to discover the right way. Thus, the receiver of a check -on a bank must present it within a reasonable time after receiving it, -and if he keeps it longer the risk of loss, should the bank fail, is -his own. What is this reasonable time? One man says three days, -another a week, another a month. So one's common sense fails to -establish a definite reasonable time. It is needful to have the time -fixed, and the law therefore has established a reasonable time. There -are many cases like this in which one's common sense fails to furnish -a correct, yet needful guide. - -This little book contains many of the legal principles that are in -most frequent use, as readers will learn who carefully read it. Again, -if they do not always find an answer to their questions, it is -believed that in many cases they will find enough law of a general -nature from which they can safely solve their questions. They are -therefore besought to do something more than merely consult this book -for the purpose of finding ready and complete answers to their -questions, to read it and become familiar with its contents. - -Besides the law presented here the reader should learn to be cautious, -and not trust too much his own judgment when no rule can be found for -his guidance. Many a person has written his own will, as he has a -right to do, and after giving a legacy to a relative or friend has -nullified the gift by having the legatee, through the testator's -ignorance, sign as a witness. The writer knew a railway president who -had the temerity to draw the writing containing an important contract -between his railroad and another, and who, by unintentionally putting -a comma in the wrong place, made his road instead of the other -responsible for large losses. If this book shall make the reader -cautious concerning the legality of his undertakings, it will be worth -to him many times its price. - - A.S.B. - - - - -CONTENTS - - - PAGE - - EXPLANATION OF TERMS 1 - - ADOPTED CHILD 5 - - AGENCY 6 - - AGREEMENT TO PURCHASE LAND 15 - - AUCTIONEER 16 - - AUTOMOBILE 19 - - BAILOR AND BAILEE 26 - - BANKRUPTCY 31 - - BENEFICIAL ASSOCIATIONS 38 - - BROKER 45 - - CARRIER 48 - - CHATTEL MORTGAGE 52 - - CHAUFFEUR 57 - - CHECK 58 - - CITIZEN 62 - - CONTRACTS 64 - - CORPORATIONS 72 - - CURTESY 101 - - DECEIT 102 - - DEEDS 104 - - DIVISIONAL TREE 113 - - DOWER 113 - - DRUNKENNESS 116 - - EQUITABLE REMEDIES 118 - - FACTOR 123 - - FIRE INSURANCE 124 - - FIXTURES 132 - - GARAGE KEEPER 133 - - HOMESTEAD 135 - - HUSBAND AND WIFE 137 - - INNKEEPER 147 - - LAND LICENSE 149 - - LEASE 151 - - LEGAL REMEDIES 164 - - LIFE INSURANCE 167 - - MINOR 176 - - MORTGAGE 177 - - NEGOTIABLE PAPER 183 - - PARENT AND CHILD 197 - - PARTNERSHIP 198 - - PATENT 202 - - PAYMENT 211 - - PRESCRIPTIVE RIGHTS 214 - - QUASI CONTRACTS 218 - - SALE 227 - - SHIPPING 235 - - STATUTE OF FRAUDS 242 - - STATUTES OF LIMITATION 243 - - TELEGRAPH AND TELEPHONE 246 - - TORTS OR WRONGS 248 - - WARRANTY 260 - - WILL 262 - - WORKMEN'S COMPENSATION ACTS 266 - - LEGAL FORMS FOR EVERYDAY USE 277 - - INDEX 321 - - - - -Putnam's Handy Law Book for the Layman - - -=Explanation of Terms.=--At the outset the explanation of a few terms, -often used, may be helpful to the reader. Among these are the terms -statute and common law. Statute law or statutes mean the laws enacted -by the state legislature and by the federal congress. Common law means -the decisions made by the state and federal courts. These decisions -may relate to the interpretation and application of statutes, or to -the application of former decisions or precedents, or to the -qualification and application of them, or to the making and -application of new rules or principles where none exist that are -needed to decide the case in hand. - -It is a rule of the most general application that legal decisions are -precedents which are to be followed in other cases of the same -character. The decisions of the highest court in each state must be -followed by the lower courts, but no courts in any state are obliged -to follow the decisions of the courts in any other state. The courts -in every state must also follow the decisions of the federal courts in -all matters of a national character. Thus if a federal court decides -the meaning or interpretation of a federal statute, a state court must -follow the interpretation in a case requiring the application of that -statute. - -Again, common law decisions are not binding on the courts that make -them like statutes or legislative commands. A decision may be modified -or set aside when it is regarded as no longer applicable to the -present condition of things. It may also be set aside or changed by -legislative action. The common law is therefore always slowly changing -like the ocean and is never at rest. - -The common law forms much the largest part of the great body of law -under which we live. This book is a collection chiefly of common law -principles; a few statutes are interwoven here and there to complete -the subjects presented. - -The distinction also between civil and criminal law requires -explanation. Nearly all criminal law is founded on statutes, in other -words the statutes, state and federal, define nearly all legal crimes -known to society. It is therefore true that the field of crime is not -fixed, is in truth always changing. Thus formerly if a man bought -goods on credit of another on the statement that he was worth fifty -thousand dollars and the seller afterward learned that he was not -worth fifty cents, the seller could sue the buyer to recover the value -of the goods and for any additional loss, but could do no more. Many, -perhaps all the states, now declare by statute that such an act is a -crime, and the offender can be prosecuted by the state and fined or -imprisoned or both. And the wrongdoer may still be sued in a civil -action for the loss to the seller as before. - -All crimes are prosecuted by the officers of the state chosen or -appointed for that purpose. Again, as in the case mentioned, the -wrongful act has a double aspect. An individual who has been wronged -may proceed against the wrongdoer to recover his loss; the state also -has been wronged and may also proceed against him. A good illustration -is a bank defaulter. The bank may proceed through a court of law to -recover the money lost by him, or from those who have promised to make -the bank good should he wrongfully take anything; the state may also -proceed against him as a criminal for breaking a statute that forbids -him from doing such a thing. Furthermore, should the bank, as often -happens, agree to accept a sum from the defaulter and not trouble him -further, the agreement would be no bar to an action by the state -against him. - -The terms law and equity are frequently used in the law books and -require explanation. Formerly there was no such term as equity in the -common law. It came to be used as a supplement to the law to indicate -ways of doing things unknown to the law, which ought to be done. Thus -if a man threatened to fill up your well because it stood, as he -claimed, on his land, you had no preventive remedy at law. You could -use some force to prevent him, you could not kill him, or put out his -eyes, or treat him roughly. The law only gave you the right to proceed -against him to recover money damages for the legal injury. A court of -equity has a preventive remedy. If one threatens to fill up your well -you can petition or pray the court to order that he shall refrain -until there has been a legal hearing to determine whether he has any -right to do so and the court will order him to desist until it has -heard the case, and will enforce its order with a fine or penalty -should he disobey. - -The term equity contains a larger element of justice than law; and the -courts often say that an act is just or equitable, meaning that an act -which is just or equitable may not always be a legal act. Equity -therefore is a broader term, and is in constant use in legal -proceedings. - -Another word frequently used in this book is action. When a person has -wronged another, for example, has not paid a promissory note that is -due, and the wronged party wishes to collect it through the courts, he -brings an action, so called, against the wrongdoer for that purpose. -Sometimes the word suit is used. Suit, or case in court, is a common -expression. - -Finally something should be said about courts of law. Every state has -three kinds or classes of courts. First a court in which suits are -brought and tried relating to small matters, the recovery of money, -for example, for one or two hundred dollars or less, also for small -petty criminal offenses. Next is a higher court in which suits for all -larger matters are begun and tried, as well as appeals from the lower -court. Lastly is a third court of review, usually called the supreme -court, composed in most of the states of five, or more often, seven -judges, who review the decisions of the court below whenever -application is made founded on erroneous matters, the wrongful -admission of, or refusal to admit, evidence and the like, and their -decisions form the great body of the common law. - -The federal government also has three courts corresponding somewhat to -the courts established by the states. First is a court existing in -every state called the district court, while some states, like New -York, are divided into several districts. An appeal lies from its -decision to the court of appeals consisting of three judges. There are -nine of these courts, one for each circuit into which the United -States is divided. Lastly appeals may be taken from their decisions -and also from the decisions of the supreme courts of the states to the -supreme court of the United States consisting of nine judges. An -appeal does not lie in every case decided by a state court or by the -federal courts of appeal; only such cases as the highest court shall -decide after application, made in proper form, may be appealed and -heard by that tribunal. - -We have already explained the term equity. Formerly there were courts -to try and decide equity cases. England still maintains such courts -and a few exist in the United States; New Jersey and Delaware are two -of these states. The chief official of the court is called a -chancellor, the others vice chancellors. Instead of an action, as in a -court of law, the preliminary proceeding is called a petition or bill, -and while in substance it is similar to an action or complaint, used -in a court of law, the form is quite different. The modern tendency of -the law, considered in the most general way, is to fuse law and -equity, and to endow law judges with equity powers. For further -explanation see _Legal Remedies and Equitable Remedies_. - - -=Adopted Child.=--Children are sometimes adopted. By doing so the -natural parents lose all personal rights and are relieved from all -legal duties. The adopted parents acquire the right to the adopted -child's custody and control, to his services and earnings, and they -must maintain and educate him. In some states he becomes the heir of -the adopted parent like a natural child, with some limitations. Who -can inherit an adopted child's property is not clearly settled. He can -also inherit from his natural parent and kindred as if he had not been -adopted. In Massachusetts the courts hold that an adopted child will -take like a natural child under a residuary clause in an adopted -father's will giving all the property not otherwise devised to his -child or children. See _Parent and Child_. - - -=Agency.=--Much of the business of our day is done by agents or -persons who represent others. The most general division is into -general and special agents. A general agent is one who has authority -to act for his principal or person he represents in all matters, quite -as the principal himself could do; or in some of his matters. Thus if -a principal had a farm he might have a general agent to act as his -farmer; if he owned a mill, another general agent who had charge of -it. If he had two mills, he might have a general agent for each, and -so on. - -A special agent is authorized to do a specific thing, to sell a home, -buy a horse, or effect some particular end or purpose. While this -distinction is plain enough in many cases, in others the lines run so -close together that it is difficult to decide whether one is a general -or special agent. - -Whenever one acts as a general agent he is supposed to have all the -authority that general agents possess who thus act for their -principals, unless the person who is dealing with him knows of the -restriction on his authority. Suppose one goes to the office of a -general insurance agent to get insurance on his home. A policy is -taken and afterwards the house burns up. The company declines to pay -because the agent made a lower rate than was authorized by his -company. The insured however knew nothing about the restriction, and -supposed that the agent had the same authority as other insurance -agents have concerning rates. The company would be obliged to pay. But -if the insured knew that restrictions had been put on the agent and -that he was violating them in giving him the lower rate, the company -would not be liable. - -One who deals with a special agent must find out what authority he -possesses; therefore more care is needful in dealing with a special -than with a general agent. His authority must be strictly pursued. -Thus it is said that a person dealing with him "acts at his own -peril," is "put upon inquiry," "is chargeable with notice of the -extent of his authority," "it is his duty to ascertain," "he is bound -to inquire," "and if he does not he must suffer the consequences." - -In some cases the law creates an agency. Thus an unpaid vendor of -goods sometimes has authority to sell them, so has a pledgee of goods -outside the authority conferred by the contract pledging them. A -married woman whose husband does not supply her has a limited power to -buy necessaries on her husband's credit, which prevails -notwithstanding any objection he may make. A minor sometimes has the -same power. - -A person can act as an agent for another who cannot act for himself. -Minors therefore can thus act. Besides individuals, corporations often -act for others. - -The authority of an agent may be given in writing, a power of attorney -so called, or he may act, and often does, without written authority, -especially a general agent. To this rule there is one well understood -exception. If an agent is required in executing his authority to sign -a deed or other writing, especially a sealed writing, his authority -must also be equally great. In executing a deed therefore his -authority must be in writing under seal, and when the deed is -recorded, the agent's written authority should also be recorded; this -is the usual practice. If this is not done, some person who afterward -wished to purchase the land might object because the recorded title -was defective. - -A particular usage or custom also affects an agent's powers. If the -principal confers on him authority to transact business of a -well-defined nature, bounded by well-defined usage and customs, the -law presumes the agency was created with reference to them. This -protection affects agents and third persons alike, the latter -therefore who act in good faith in such dealings are protected against -secret limitations of which they had no notice. - -An agent has no authority to purchase his principal's property. To do -this, in a sense, would be to purchase of himself. The temptation to -do this is sometimes very great, too great for him to withstand, and -so he resorts to a crooked method for accomplishing his end. He sells -the property to another party who afterward sells it back to him. The -worst violators of this principle have been railway receivers, who -have taken advantage of their position to get control of the property -entrusted to them at a sum much less than its real value. Such sales -can be set aside by proper legal procedure. By the modern rule they -are not void but are voidable, that is, can be set aside if the -creditors or other interested parties wish to do so. - -Whenever therefore one deals with a general agent and his authority is -disputed, unless there be restrictions known to the person dealing -with him, the liability of his principal turns on the answer to the -general question, what authority do general agents like himself have. -This is simply a question of fact, to be determined like every other -question of fact by the court in which the controversy is pending. - -Another way of rendering a principal liable for the act of his agent -is by ratifying it. Suppose A professed to be the agent of B in -building a house for C, and built it so badly that C sued B to recover -damages, whose defense was, that A was not his agent. Suppose, -however, that B accepted payment for the house, this would be a -ratification of A's authority to act for B even if he did not have -proper authority in the beginning. Suppose A had authority to sell -goods for B but not to collect payment, and someone should pay him and -he ran off with the money, could his principal still collect the money -of the buyer of the goods? This is a hard case, and has happened many -times. The buyer usually is required to pay the second time. But if B, -notwithstanding his direction to his agent not to collect payment, -should receive it such conduct would operate as a ratification. - -Whether the authorized act arises from a contract or from a wrong or -tort, whoever with knowledge of all the facts adopts it as his own, or -knowingly appropriates the benefits, which another has assumed to do -in his behalf, will be deemed to have assumed responsibility for the -act. Of course, such action does not render an act valid that was -invalid before; its character in this respect is not changed by -anything the ratifier may do. - -Can a forgery be ratified? The right of the state to pursue the forger -cannot be defeated by its ratification, but so far as the act may be -regarded merely as the act of an unauthorized agent, it may be -ratified like any other. Mechem says that if at the time of signing, -the person doing so purported to act as agent, the act might be -ratified. - -Again, a principal cannot accept part of an agent's act and reject the -remainder. The acceptance or rejection must be complete. - -In appointing an agent the principal has in mind the qualifications of -the person appointed, he cannot therefore without his principal's -consent, designate or substitute another person for himself. This rule -though does not prevent him from employing other persons for a minor -service. Indeed, in many cases a general agency requires the -employment of many persons to execute the business. How far one may go -in thus employing others to execute the details, and how much ought to -be done by the general agent himself, depends on the nature of the -business. The inquiry would be one of fact, to what extent is a -general agent in his particular business expected or assumed to do the -things himself. - -One rule to guide an agent is this: when the act to be done is purely -mechanical or ministerial, requiring no direction or personal skill, -an agent may appoint a subagent. Thus an agent who is appointed to -execute a promissory note, or to sign a subscription agreement, or to -execute a deed, may appoint another to do these things. Likewise an -agent who is authorized to sell real estate with discretionary power -to fix the price and other terms, may employ a subagent to look up a -purchaser, or to show the land to one who is desirous of purchasing. - -When a person is really acting as an agent, but this is not known by -the persons with whom he is doing business, he is liable to them as if -he were the principal. It often happens for various reasons that -agents do not disclose their principals. Suppose a dealer finds out -that the agent presumably acting for himself was, in truth, acting -for another, could the real principal be held responsible and the -agent escape, or could both be held? The answer is, after discovering -the real principal, both can be held, or either of them. The failure -of an agent to disclose his agency will not make him individually -liable if the other party knew that he was dealing with a principal -with whom he had had dealings through the agent's predecessor. Notice -of the agency to one member of a firm is not sufficient notice to the -firm to release the agent from personal responsibility in subsequent -transactions with another member who did not know and was not informed -of the agency. Again, the liability must be determined by the -conditions existing at the time of the contract, his subsequent -disclosure will not relieve the agent. Finally, while the agent may be -held in such a case, the principal also is liable, except on -instruments negotiable and under seal, on the discovery of his -relationship as principal. - -While secret instructions to an agent that are unknown to persons -dealing with him do not bind them, the principal is liable for any -acts within the scope of his agent's authority connected with the -business conducted by his agent for him. Some very difficult questions -arise in applying this rule. A car conductor is instructed to treat -passengers civilly and to use no harsh means with them, save in -extreme cases. How far may a conductor go with a disorderly passenger? -Very likely he would be justified in putting him off; suppose the -conductor was angry and administered hard and needless kicks in the -operation? His principal surely would not be liable, though the -conductor doubtless would be. Suppose in buying a railway ticket the -agent loses his temper and calls you a liar and a thief, you would -have an action against him for slander, unless you happened to be one, -but you would have no action against his principal for the company did -not employ him to slander its patrons; to do this was clearly not in -the scope of his employment. - -An agent must not act for both parties in any transaction unless this -is understood by both of them. Nor can an agent receive any personal -profit from a transaction. Whatever profit there may be should be -given to the principal. Thus if an agent is authorized to buy a piece -of property for his principal and buys it for himself, or hides the -transaction under the name of another, the principal, after -discovering what his agent has done, can proceed to obtain the -property. - -An agent must be faithful and exercise reasonable skill and diligence. -Money belonging to the principal should be deposited in the -principal's name, or, if in the agent's name, his agency should be -added; otherwise if the bank failed the agent would be responsible for -the loss. Again, if the agent deposited the money in his own name the -true owner could proceed against the bank to recover it. - -A principal is liable for the statements and representations of his -agent that have been expressly authorized. He is also liable even for -false and fraudulent representations made in the course of the agent's -employment, especially those resulting in a contract from which the -principal reaped a benefit. Even though the statements may not have -been expressly authorized, such authority may be implied by law -because they are the natural and ordinary incidents of the agent's -position. Thus the position of a business manager often calls for a -great variety of acts, orders, notices, and the like, and statements -made while performing them are regarded as within the line of his -duty. - -An agency may end at a fixed time, or when the particular object for -creating it has been accomplished, or by agreement of the parties. In -many cases an agency is created for an indefinite period, and in these -either party can terminate it whenever he desires. There are some -limitations to this principle. Neither party can wantonly sever the -relation at the loss of the other; and if one of them did he would be -liable for the damage sustained by the other. Likewise if the agent -has an interest of his own in the undertaking the principal cannot -terminate it before its completion without the agent's consent. Such a -rule is needful for his security. The bankruptcy of a business agent -operates as a revocation of his authority, but not when the act to be -done is of a personal nature like the execution of a deed. - -If the principal becomes insane and unable to exercise an intelligent -direction of his business, his condition operates as a revocation or -suspension for the time being of his agent's authority. If on -recovering, he manifests no will to terminate his agent's authority, -it may be considered as a mere suspension, and his assent to acts done -during the suspension may be inferred from his forbearing to express -dissent when they come to his knowledge. Likewise an agent's insanity -terminates or suspends the agency for the time being unless he has an -interest of his own in the matter. Partial derangement or monomania -will not have that effect unless the mania relates to the agency, or -destroys the agent's ability to perform it. - -Again, the marriage of a principal in some cases, unless a statute has -changed the common law, will revoke the power previously given, -especially when its execution will defeat or impair rights acquired by -marriage. Thus should a man give a power of attorney to another to -sell his homestead, but before effecting a sale the principal should -marry, his marriage would revoke the power. By marrying the wife -acquires an interest in the property which cannot be taken away from -her without her consent by joining in a deed of conveyance with her -husband. Likewise the marriage of a woman would operate to revoke a -power of attorney previously given by her whenever its execution would -defeat the rights acquired by her husband. An agent's marriage usually -will not affect the continuance of his agency. - -When an agency is terminated it is often needful for the principal to -notify all customers for his protection, otherwise they might continue -to do business with the agent, supposing he was thus acting, and -involve him perhaps in heavy loss. This rule applies especially to -partnerships, each member of which is an agent with general authority -to do the kind of business in which it is engaged. - -If the authority of an agent in writing is revoked, but is still left -with him and is shown to a third person who, having no knowledge of -the revocation, makes a contract with him, the principal will be held -for its execution. - -Another rule of law may be given. The law assumes that any knowledge -acquired by an agent concerning his principal's business, will be -communicated to his principal, who is bound thereby. This rule though -is often difficult to apply. Thus, if a cashier of a bank should learn -that a note was defective, which was afterward discounted by his bank, -it would be regarded as having knowledge of the defect, because it -was the cashier's duty to inform the proper officials before they -discounted it. - -The death of either agent or principal terminates the agency except in -cases of personal interest. And when an agent has appointed a -substitute or subagent without direct authority, and for his own -convenience, the agent's death annuls the authority of the subagent or -substitute, even though the agent was given the right of substitution. -But if the subagent's authority is derived directly from the -principal, it is not affected by the agent's death. - - -=Agreement to Purchase Land.=--An agreement to purchase land must be -in writing to be valid. Oral or parol agreements may be made to do -many things, but everywhere the law makes an exception of agreements -relating to land purchases. A statute that is quite similar in the -states requires this agreement to be in writing and signed by the -party against whom it is to be enforced. Thus if the seller wishes to -enforce such an agreement, he must produce a writing signed by the -purchaser; if the latter wishes to hold the seller, he must do the -same thing. The better way is to have the writing signed by both -parties. - -How complete must the writing be? It need not mention the sum to be -paid for the land; it can be signed with a lead pencil: a stamp -signature will suffice. The entire agreement need not be on one piece -of paper. If it can be made out from written correspondence between -the two parties this will be enough. - -To this rule of law are some exceptions. Therefore if an oral -agreement for the sale of land is followed by putting the buyer into -possession, the law will compel the seller to give him a deed. The -proceeding would consist of a petition addressed to a court of equity, -which would inquire into the facts, and if they were true, would -compel the seller to give the purchaser a deed of the land. The reason -for making this exception is, the purchaser would be a trespasser had -he no right to be there: to justify his possession the law permits him -to prove, if he can, his purchase of the land; and if he has bought -it, of course he ought to have a deed of his title. - -Once, a purchaser who made an oral agreement and paid part of the -purchase money could compel the seller to give him a deed, and many -still think such action is sufficient to bind the bargain. This is no -longer the law. The practice gave rise to much fraud: A would assert -that he gave money to B to pay for land when in truth it was given for -some other purpose. So the courts abandoned the rule founded on the -part payment of the purchase price. A can however get back his money. - -An option to purchase land, contained in an agreement to sell, must be -exercised within a reasonable time, if none is fixed in the agreement. -See _Deed_. - - -=Auctioneer.=--An auctioneer, employed by a person to sell his -property, is primarily the owner's agent only, and he remains his -exclusive agent to the moment when he accepts the purchaser's bid and -knocks down the property to him. On accepting the bid the auctioneer -is deemed to be the agent of the purchaser also, so far as is needful -to complete the sale; he may therefore bind the purchaser by entering -his name to the sale and by signing the memorandum thereof. His -signing is sufficient to satisfy the Statute of Frauds in any state -conferring on an agent authority to make and contract for the sale of -real and personal property without requiring his authority to be in -writing. His agency may begin before the time of the sale and continue -after it. Again, the entry of the purchaser's name must be made by the -auctioneer or his clerk immediately on the acceptance of the bid and -the striking down of the property at the place of sale. It cannot be -made afterward. The auctioneer at the sale is the agent of the -purchaser who by the act of bidding calls on him or his clerk to put -down his name as the purchaser. In such case there is little danger of -fraud. If the auctioneer could afterward do this he might change the -name, substitute another, and so perpetrate a fraud. - -A sale by auction is complete by the Sales Act when the auctioneer -announces its completion by the fall of the hammer, or in other -customary manner. Until such announcement is made, any bidder may -retract his bid; and the auctioneer may withdraw the goods from sale -unless the auction has been announced to be without reserve. - -Authority may be conferred on an auctioneer in the same manner as on -any other agent for the sale of similar property, verbally or in -writing. Even to make a contract for the sale of real estate, oral -authority to the auctioneer is sufficient, in the absence of a statute -to the contrary. - -Authority to sell property does not of itself imply authority to sell -it at auction, and the purchaser therefore who has notice of the -agent's authority or knowledge sufficient to put him on inquiry, -acquires no title to the property thus purchased. If goods are sent -to an auction room to sell, this is deemed sufficient evidence of -authority to sell them in that manner and to protect whoever buys -them. - -As an auctioneer is ordinarily a special agent, the purchaser is -supposed to know the terms and conditions imposed by the seller on the -agent. The seller or owner therefore is not bound by any terms stated -by the auctioneer differing from those given to him. If the owner has -imposed no terms on him, then he has the implied authority usually -existing in such cases. - -An auctioneer has authority to accept the bid most favorable to the -seller when the sale is made without reserve and to strike down the -property to the purchaser. He cannot therefore consistently with his -duty to his principal refuse to accept bids, unless the bidder is -irresponsible or refuses to comply with the terms of the sale. He is -justified in rejecting the bids of insane persons, minors, drunken -persons, trustees of the property, and perhaps in some cases of -married women. - -An auctioneer cannot transfer his duty to another. This rule does not -prevent him from employing others to do incidental things connected -with the keeping and the moving of the property. He cannot sell on -credit contrary to his instructions or custom; nor would he be secure -in following custom if instructed to do otherwise. After the bid has -been accepted the bidder has no authority to withdraw it without the -owner's consent, nor can he be permitted to do so by the auctioneer. -Nor can he sell at private sale if his instruction is to sell -publicly, nor can he justify himself even if he acted in good faith -and sold the property for more than the minimum price fixed by the -owners. Nor can he sell the property to himself, nor authorize any -other person to bid and purchase for him either directly or -indirectly. It is impossible with good faith to combine the -inconsistent capacities of seller and buyer, crier and bidder, in one -and the same transaction. - -He has no authority to warrant the quality of property sold except -custom or authority is expressly given to him. Nor is he an insurer of -the safety of the goods entrusted to him for sale; he must however use -ordinary and reasonable care in keeping them. Lastly, an auctioneer -should disclose his principal and contract in his name. If one bought -property therefore supposing it belonged to A, when in fact it -belonged to B, through any manipulation of the auctioneer, the bidder -would not be bound. - - -=Automobile.=--The members of the public have a right to use the -public avenues for the purpose of travel and of transporting property: -nor has the driver of horses any right in the road superior to the -right of the driver of an automobile. Each has the same rights, and -each is equally restricted in exercising them by the corresponding -rights of the other. - -Again, the public ways are not confined to the original use of them, -nor to horses and ordinary carriages. "The use to which the public -thoroughfare may be put comprehends all modern means of carrying -including the electric street railroad and automobile." It has been -declared that the fact that motor vehicles may be novel and unusual in -appearance and for that reason are likely to frighten horses which are -unaccustomed to see them, is no reason why the courts should adopt the -view of prohibiting such machines. - -The general rule is that all travelers have equal rights to use the -highways. An automobile therefore has the same rights and no more than -those of a footman. - -The mere fact that automobiles are run by motor power, and may be -operated at a dangerous and high rate of speed, gives them no superior -rights on the highway over other vehicles, any more so than would the -driving of a race horse give the driver superior rights on the highway -over his less fortunate neighbor who is pursuing his journey behind a -slower horse. - -There is no authority or power in the state to exclude non-resident -motorists from the public ways, nor have the states power to place -greater restrictions or burdens on non-resident automobilists than -those imposed on their own citizens. - -A license to operate an automobile is merely a privilege. It does not -constitute a contract, consequently it does not necessarily pass to a -purchaser of the vehicle, and may, for a good reason, be revoked. -Moreover the charge imposed for the privilege of operating a motor on -the highway is not generally considered a tax, only a mere license or -privilege fee. - -An automobile may be hired from the owner. This is called in law a -bailment. The bailor is not responsible generally for any negligence -of the hirer in operating the car. Nor is the rule changed should the -hirer be an unskilled person, unless he was an immature child or -clearly lacking in mental capacity, or was intoxicated. Where the -owner of an automobile delivered it to another by agreement, who was -to pay the purchase price from the money derived from its use, and -thereafter had complete control of the machine, his negligence could -not be charged to the seller. - -Again, where an automobile is hired and the chauffeur is also -furnished by the owner, who pays him for operating the car, and the -hirer has no authority over him except to direct his ways of going, -the chauffeur is regarded as the servant of the owner. He, therefore, -and not the hirer is responsible for the negligence of the chauffeur. -Of course, the rule would be changed if the hirer assumed the -management of the car: then the hirer alone would be liable for the -chauffeur's negligence. - -A party who hires an automobile from another is bound to take only -ordinary care of it and is not responsible for damage whenever -ordinary prudence has been exercised while the car was in his custody. -If lost through theft, or is injured as a result of violence, the -hirer is only answerable when these consequences were clearly the -result of his own imprudence or negligence. The hirer though must -account for the loss or injury. Having done this, the proof of -negligence or want of care is thrown on the bailor. - -If the hirer should sell the automobile without authority to a third -party, the owner or bailor may bring an action against even an -innocent purchaser who believed that the hirer had the title and power -to sell. - -There is an implied obligation on the hirer's part to use the car only -for the purpose and in the manner for which it was hired. And if it is -used in a different way and for a longer time, the hirer may be -responsible for a loss even though this was inevitable. - -Suppose the hirer misuses the car, what can the owner do? He can -repossess himself, if this can be done peaceably, otherwise he must -bring an action for the purpose. As the hirer acquires a qualified -title to the property, he can maintain an action against all persons -except the owner, and even against him so far as the contract of -letting may set forth the relations between them. - -When an owner or hirer undertakes to convey a passenger to a specified -place and, while on the way, the car breaks down, if it cannot be -properly mended at the time and the owner or hirer is able to furnish -another, the law requires him to do so and thus fulfil his contract. - -"The owner of a motor vehicle," says Huddy, "is of course entitled to -compensation for the use of the machine. If a definite sum is not -stated in the contract between the parties, there arises an implied -undertaking that the hirer shall pay a reasonable amount. One who uses -another's automobile without consent or knowledge of the owner, may be -liable to pay a reasonable hire therefor. In case the hirer is a -corporation, there may arise the question whether the agent of the -company making the contract has authority to bind the company. Where a -machine is hired for joy riding on Sunday, it has been held that the -contract is illegal and the hirer cannot recover for the use of the -automobile." - -The speed of automobiles along the public highways may be regulated by -law. A municipality may forbid the use of some kinds of motor vehicles -on certain streets, but it cannot broadly exclude all of them from all -the streets. The rules regulating travel on highways in this country -are called, "the law of the road." The object of these rules is to -prevent collisions and other accidents, which would be likely to occur -if no regulations existed. - -A pedestrian who is about to cross a street may rely on the law of the -road that vehicles will approach on the proper side of the street. -This rule however does not apply to travelers walking along a rural -highway. Huddy says: "When overtaking or meeting such a person, it is -the duty of both the pedestrian and the driver of the machine to -exercise ordinary care to avoid a collision, but no rule is, as a -general proposition, definitely prescribed as to which side of the -pedestrian the passage shall be made." - -The law of the road requiring vehicles to pass each other on the -right, contrary to the English custom, has been reenforced in many or -all the states by statutory enactments, and applies also to -automobiles. When, therefore, two vehicles meet and collide on a -public highway, which is wide enough for them to pass with safety, the -traveler on the wrong side of the road is responsible for the injury -sustained by the other. But a traveler is not justified in getting his -machine on the right-hand side of the road and then proceeding -regardless of other travelers; on the contrary, the duty of exercising -reasonable care to avoid injuries to others still continues. - -Not only must each one pass to the right, but each must pass on his -own side of the center line of the highway, or wrought part of the -road. And when the road is covered with snow, travelers who meet must -turn to the right of the traveled part of the road as it then appears, -regardless of what would be the traveled part when the snow is gone. -After passing the rear of the forward vehicle an automobilist must -exercise reasonable care in turning back toward the right into the -center of the highway, and if he turns too soon he may be liable for -damages caused by striking or frightening the horses. "If two vehicles -meet in the street, it is the duty of each of them, as seasonably as -he can, to get each on his own right-hand side of the traveled way of -the street." - -The rights of travelers along intersecting streets are equal, and each -must exercise ordinary care to avoid injury to the other. An -automobilist nearing an intersection should run at proper speed, have -his car under reasonable control, and along the right-hand side of the -street. If two travelers approach the street crossing at the same time -neither is justified in assuming that the other will stop to let him -pass. When one vehicle reaches the intersection directly in advance of -the other, he is generally accorded the right of way, and the other -should delay his progress to enable the other to pass in safety. - -The driver of an automobile may be charged with negligence if, without -warning to a vehicle approaching from the rear, he turns or backs his -machine and causes a collision. Indeed, it is negligence for a -chauffeur to back his machine on a city street or public highway -without looking backward; and especially if one backs his car on a -street car track without looking for street cars. - -If an obstruction exists on the right-hand side of a highway, the -driver of a car may be justified in passing to the other side, and in -driving along that side until he has passed the obstacle. Under such -circumstances he has a right to be on the left side temporarily; and -if he exercises the proper degree of care while there, is not liable -for injuries arising from a collision with another traveler. But if -the obstruction is merely temporary, it may be the duty of the driver -to wait for the removal and not to pass on the wrong side of the -highway. - -An automobilist must exercise reasonable or ordinary care to avoid -injury to other persons using the highway. What this is depends on -many circumstances, and each case to some extent is decided by its own -facts. Consequently thousands of cases have already arisen, and -doubtless they will still multiply as long as automobiles are used and -their users are negligent. - -The competency of the driver is one of the unending questions. Of -course he should be physically fit, not subject to sudden attacks of -dizziness, possessing sufficient strength and proper eyesight and a -sober non-excitable disposition. It is said, that a chauffeur is not -incompetent who requires glasses. But he certainly would be if his -eyesight was poor and could not be aided by the use of them. - -The driver must at all times have his car under reasonable control so -that he can stop in time to avoid injury. He must keep a reasonably -careful lookout for other travelers in order to avoid collision; also -for defects in the highway. If by reason of weather conditions, lights -or other obstructions, he is unable to see ahead of him, he should -stop his car. If there be no facilities for stopping for the night, a -driver is not negligent should he proceed through the fog. - -Passing to the liability of the owner of a car for the acts of his -chauffeur, the general rule is, he is then liable when the chauffeur -is acting within the scope of his owner's business. When the owner -himself is riding in the car there is less difficulty in fixing the -liability, but when the chauffeur uses the car without the owner's -consent, he is not liable for the conduct of the driver. And this is -especially so in using a car contrary to the owner's instructions and -for the chauffeur's pleasure; or in using it for his own business with -the owner's consent. And the same rule generally prevails whenever a -member of a family uses his parent's car without his knowledge and -consent, and especially when forbidden. But the parent is liable for -the running of a car with his knowledge by a member of his family and -for the convenience or pleasure of other members. See _Chauffeur_; -_Garage Keeper_. - - -=Bailor and Bailee.=--To create this relation the property must be -delivered to the bailee. Though a minor cannot make such a contract, -yet if property comes into his possession he must exercise proper care -of it. Should he hire a horse and kill the animal by rash driving, he -would be liable for its value. A corporation may act as bailor or -bailee, and an agent acting therefor would render the corporation -liable unless he acted beyond the scope of his authority. - -Suppose one picks up a pocketbook, does he become the owner? Is he a -bailee? Yes, and must make an honest, intelligent effort to find the -owner; if failing to do so, then he may retain it as his own, -meanwhile his right as finder is perfect as against all others. Should -the true owner appear, whatever right the finder may have against him -for recompense for the care and expense in keeping and preserving the -property, his status as finder does not give him any lien unless the -owner has offered a reward to whoever will restore the property. To -this extent a lien thereon is thereby created. - -The statutes generally provide what a person must do who has found -lost property. Suppose a person appears who claims to be the owner of -the thing found, what shall the finder do in the way of submitting it -to his inspection? In one of the recent cases the court decided that -it was a question of fact and not of law whether the finder of lost -property had given a fair and reasonable opportunity for its -identification before restoring it, and whether the claimant should -have been given an opportunity to inspect it in order to decide -whether it belonged to him. - -The finder does not take title to every article found and out of the -possession of its true owner. To have even a qualified ownership the -thing must be lost, and this does not happen unless possession has -been lost casually and involuntarily so that the mind has no recourse -to the event. A thing voluntarily laid down and forgotten is not lost -within the meaning of the rule giving the finder title to lost -property; and the owner of a shop, bank or other place where the thing -has been left is the proper custodian rather than the person who was -the discoverer. - -If a lost article is found on the surface of the ground, or the floor -of a shop, in the public parlor of a hotel, or near a table at an -open-air place of amusement, or in the car of a railroad it becomes, -except as against the loser, the property of the finder, who -appropriates it regardless of the place where it was found. Once a -boat was found adrift and the finder made the needful repairs to keep -it from sinking, yet the owner was mean enough to refuse to pay for -them. The court compelled him to make good the amount to the finder. - -The law regards the possession of an article which is lost as being -that of the legal owner who was previously in possession, until the -article is taken into the actual possession of the finder. If the -finder does not know who the owner is and there is no clue to the -ownership, there is no larceny although the finder takes the goods for -himself and converts them to his own use. If the finder knows who the -owner is or has a reasonable clue to the ownership, which he -disregards, he is guilty of larceny. - -Another class of cases must be noticed. Very often articles are -delivered to another to have work done on them, hides to be tanned, or -raw materials to be worked up into fabrics. Can a creditor of the -bailee pounce on tanned hides or completed fabrics as belonging to him -and take them in satisfaction of his debt? Both parties have in truth -an interest in the goods, and in general it may be said that the -bailor cannot thus be deprived of his interest and may follow the -goods and recover them or their value. - -If they are destroyed while executing the agreement, who must lose? If -the bailee is not negligent or otherwise at fault, and the loss -happened by internal defect or inevitable accident, the bailor would -be the loser. And if workmen had been employed thereon, the bailor -would also be obligated to pay for their labor. - -To what extent can a bailee limit his liability by agreement? A bailee -who was a cold storage keeper, stated in his receipt "all damage to -property is at the owner's risk." This limitation related, so a court -decided, to loss resulting from the nature of the things stored. A -bailee received some cheese and gave a receipt slating that it was to -be kept at the owner's risk of loss from water. It was injured from -the dripping of water from overhead pipes. The bailee was, -notwithstanding his receipt, held liable. - -A bailor need not always be the owner of the thing bailed. He may be a -lessee, agent, or having such possession and control as would justify -him in thus acting. He should give the bailee notice of all the -faults in the thing bailed that would expose him to danger or loss in -keeping it. For example, if it were a kicking horse, he should warn -the bailee to keep away from his legs. - -The courts have been often troubled about the degree of care required -of bailees, as it differs under varying circumstances. A bank that -permits a depositor to keep a box of jewelry or silver in its vault -for his accommodation, while absent from home and without receiving -any compensation therefor, is not required to exercise the same degree -of care as a safe deposit company whose chief business is to do such -things and is paid for its service. Nevertheless a bank must exercise -reasonable care, such care as is used in keeping its own things. - -Suppose your package is stolen by the cashier or paying teller, is the -bank responsible? That depends. If the bank knows or suspected the -official was living a gay life, it ought not to keep him, and most -banks would not. It is the better legal opinion, that a bank ought not -to keep a president, cashier or other active official who is -speculating in stocks, for the temptation to take securities not -belonging to them has been too great in many cases for them to -withstand. On the other hand if a long-trusted official, against whom -no cause for suspicion had arisen, should steal a package from the -safe, the bank would not be responsible for the loss any more than if -it had been stolen by an outsider. The bank did not employ him to -steal, but to perform the ordinary banking duties. - -A bailee is usually a keeper only. But the nature of the property may -require something more to be done. If he is entrusted with a milch -cow, he must have her milked, or with cattle in the winter time which -require to be served with food, he must supply it, otherwise they -would starve. If he is keeping a horse which is taken sick, proper -treatment should be given. - -When the period of bailment is ended, the thing bailed must be -returned. If it consisted of a flock of sheep, cattle and the like, -all accessions must also be delivered. In many cases the bailee is not -required to return the specific property, but other property of the -same kind and quality. Thus if one delivers wheat for safekeeping, -which is put in an elevator, the contract is fulfilled by delivering -other wheat of similar kind and quality; or, if the wheat is to be -made into flour, by delivering the proper amount of the same quality -as the specific wheat bailed. A bailee has a lien for his service and -proper expenditures in caring for and preserving the thing bailed, but -not for any other debt the bailor may owe him. And if the bailee is a -finder who has bestowed labor on the article found in good faith, the -same rule applies. - -Agisters and livery-stable men have no lien at common law, like -carriers for keeping the animals entrusted to them because they are -under no obligation to take them into their keeping. In Pennsylvania a -different rule was long ago declared, and has ever since been -maintained. As he can agree on terms, he may make such as are -agreeable to both parties. Elsewhere he can impose his own terms, and -may demand his pay in advance, or create, by contract, a lien if he -pleases. A person who is hired as a groom to a horse for a specified -time and at a fixed price, has no lien on the horse for his service, -but has a lien for feed, keeping and shoeing, which should have been -furnished by the owner. A contract to do this is not necessary to -create the lien, it arises as if the horse had been left for keep and -care without saying more. - - -=Bankruptcy.=--Before the enactment of the federal Bankruptcy Act of -1898, every state had a bankruptcy act of its own, which was generally -called an insolvency law. The federal act has superseded these by -virtue of the power granted to congress in the federal constitution -"to establish uniform laws on the subject of bankruptcies throughout -the United States." - -The United States district courts in the several states are made -courts of bankruptcy and have power to adjudge all persons bankrupt -who have their principal places of business, residence and domicile -within their respective districts; and jurisdiction also over others -who simply have property within their jurisdiction. - -Any person who owes debts, or business corporation, may become a -voluntary bankrupt. So may an alien. He may also become an involuntary -bankrupt if he has had his principal place of business here, or has -been domiciled within the jurisdiction of the court for the preceding -six months, or has property within its jurisdiction. Some corporations -are still denied voluntary action, as well as minors and insane -persons. - -Who may become an involuntary bankrupt? Any person, except a -wage-earner, or farmer, any unincorporated company, and any -corporation engaged principally in manufacturing, trading, printing, -publishing, or mercantile pursuits, owing debts to the amount of one -thousand dollars. What is a manufacturing corporation, within the -meaning of the law, is not even yet fully known. A corporation engaged -principally in smelting ores is one; and a mining corporation, whose -principal business is to buy and sell ores, is deemed a trading -corporation and may become an involuntary bankrupt. - -Next we may inquire, what are acts of bankruptcy? One of them is an -admission of a person's inability to pay his debts. And this may be -done by a corporation through its properly organized officers. Another -act of bankruptcy is to convey, transfer, conceal or remove property -with the intention to defraud creditors. And by concealment is meant -the separation of some tangible thing like money from the debtor's -estate, and secrete it from those who have a right to seize it for -payment of their debts. The transfers of property covered by the act -are those which the common law regards as fraudulent. If, for example, -at the time of the transfer of his property one is so much indebted -that it will embarrass him in paying his debts, the transfer will be -deemed fraudulent; but a voluntary transfer, made by one who is free -from debt, cannot be impeached by subsequent creditors. The intention -to hinder, delay or defraud creditors is a question of fact to be -ascertained by proper judicial inquiry. - -A general assignment for the benefit of creditors is an act of -bankruptcy. Likewise a general assignment for the benefit of creditors -made by the majority of the board of directors and of the stockholders -is an act of bankruptcy. A petition for the appointment of a receiver -of a corporation under a state statute is not an assignment for the -benefit of creditors and therefore is not an act of bankruptcy. - -Another act of bankruptcy is to suffer or permit, when one is -insolvent, any creditor to acquire a preference through legal -proceedings. The term preference includes not only a transfer of -property, but also the payment of money within four months from the -time of filing his petition in bankruptcy. It is immaterial to whom -the transfer is made if the purpose be to prefer one creditor to -another. Like a fraudulent transfer the intent to prefer must be -proved, though this may sometimes be presumed, as when the necessary -consequence of a transfer or payment made by an insolvent debtor is to -liquidate the debt of one creditor to the entire or partial exclusion -of others. - -Passing to the filing of the petition a voluntary petitioner should -file his petition in the court of bankruptcy in the judicial district -where he has principally resided for the preceding six months. When -there is no estate and no claim has been proved and no trustee has -been appointed, a bankrupt may withdraw his petition on paying the -costs and expenses. The petition must be accompanied by a schedule of -the petitioner's property, showing its kind and amount, location, -money value, and a list of his creditors and their residences when -known, the amount due to them, the security they have, and a claim to -legal exemptions, if having any. After filing a voluntary petition the -judge makes an adjudication. He may do this ex parte, that is without -notice to creditors. - -A petition may be filed against a person who is insolvent and has -committed an act of bankruptcy within four months after such action. -Three or more creditors who have provable claims amounting to five -hundred dollars in excess of securities held against a debtor may file -the petition, or if all the creditors are less than twelve, then one -of them may file the petition provided the debtor owes him the above -stated amount. Creditors holding claims which are secured, or have -priority, must not be considered in determining the number of -creditors and the amount of claims for instituting involuntary -proceedings. The petition should state the names and residences of the -petitioning creditors, also that of the bankrupt, his principal place -of business, the nature of it, his act of bankruptcy, that it occurred -within four months of the filing of the petition, and that the amount -of the claims against him exceed five hundred dollars. The petition -must be signed and properly verified, and may be afterward amended for -cause in the interest of justice. On the filing of the petition a writ -of subpoena is issued addressed to the bankrupt commanding him to -appear before the court at the place and on the day mentioned to -answer the petition. The next step, after serving the petition, is for -the bankrupt to file his answer. Meanwhile his property may be seized -by a marshal or receiver on proof that he is neglecting it or that it -is deteriorating. - -Within ten days after one has been judicially declared to be a -bankrupt, he must file in court a schedule of his property, including -a list of his creditors and the security held by them. Then follows -the first meeting of the bankrupt's creditors, within thirty days -after the adjudication. The judge or referee must be present at this -meeting, also the bankrupt if required by the court. Before proceeding -with other business the referee may allow or disallow the claims of -creditors presented at the meeting, and may publicly examine the -bankrupt, or he may be examined at the instance of any creditor. At -this meeting the creditors may elect a trustee. - -Subsequent meetings may be held at any time and place by all the -creditors whose claims have been allowed by written consent: the -court also may call a meeting whenever one fourth of those who have -proved their claims file a written request to that effect. - -Only a creditor who owns a demand or provable claim can vote at -creditors' meetings. Nor can other creditors through filing objections -to a claim prevent a bona fide claimant from voting. A creditor of an -individual member of a bankrupt partnership cannot vote. Nor can -creditors holding claims that are secured or that have priority vote -only to a limited extent, so far as their claims are on the same basis -as other creditors. To entitle secured and preferred creditors to vote -at the first meeting on the whole of their claims, they must surrender -their securities or priorities. If a portion of a creditor's debt is -secured and a portion is unsecured, he may vote on the unsecured -portion. An attorney, agent, or proxy may represent and vote at -creditors' meetings, first presenting written authority, which must be -filed with the referee. The referee who presides at the first meeting -makes up or decides on its membership. Matters are decided at the -meeting by a majority vote in number and amount of claims of all the -creditors whose claims have been allowed and are present. - -The next stage in bankruptcy proceedings is the proving and allowance -of claims. Only such debts are provable as existed at the time of -filing the petition. Every debt which may be recovered either at law -or in equity may be proved in bankruptcy. A claim barred by the -statute of limitations is not provable, nor is a contingent liability. -On the other hand a debt founded on a contract express or implied may -be proved, for example, damages arising from a breach of a contract -prior to the adjudication in bankruptcy. Again, if there are -agreements or covenants in a contract of a continuing character the -bankrupt is still liable on them notwithstanding his discharge in -bankruptcy. If the amount of a claim is unliquidated the act sets -forth the mode of proceeding. Among other claims that may be proved -are judgments, debts founded on an open account, and rents. - -The claims of creditors who have received preferences are not allowed -unless they surrender them. Thus money paid on account by an insolvent -debtor must be surrendered before a claim for the balance due on the -account can be proved. If proceedings are begun by the trustee to set -aside a preferential transfer to a creditor who puts in a defense, he -cannot thereafter surrender his preference and prove his claim. If a -creditor in proving his debt fails to mention his security, if he has -any, he will be deemed to have elected to prove his claim as -unsecured. - -Claims that have been allowed may be reconsidered for a sufficient -reason and reallowed or rejected in whole or in part, as justice may -require, at any time before the closing of the estate. The -reexamination may be had on the application of the trustee or of any -creditor by the referee, witnesses may be called to give evidence, and -the referee may expunge or reduce the claim or adhere to the original -allowance. - -The appointment of the trustee by the creditors at their first meeting -is subject to the approval or disapproval of the referee or the judge. -Should the creditors make no appointment the court appoints one. As -soon as he has been appointed it is the duty of the referee to notify -him in person or by mail of his appointment. If he fails to qualify -or a vacancy occurs, the creditors have an opportunity to make another -appointment. If a trustee accepts he must give a bond with sureties -for the faithful performance of his duties. He may also be removed for -cause after notice by the judge only. Should he die or be removed -while serving, no suit that he was prosecuting or defending will abate -but will be continued by his successor. - -The trustee represents the bankrupt debtor as the custodian of all his -property that is not exempt; also the creditors, and gathers all the -bankrupt's property from every source and protects and disposes of it -for the best interests of the creditors, and pays their claims. In -short, he succeeds to all the interests of the bankrupt, is an officer -of the court and subject to its orders and directions. He must deposit -all moneys received in one of the designated depositories, can -disburse money only by check or draft, and at the final meeting of the -creditors must present a detailed statement of his administration of -the estate. During the period of settlement he must make a report to -the court in writing of the condition of the estate, the money on -hand, and other details within the first month after his appointment, -and bi-monthly thereafter unless the court orders otherwise. - -The federal Bankruptcy Act prescribes what property passes to the -trustee and also what is exempt. Whatever property on which a levy -could have been made by judicial process against the bankrupt passes -to the trustee. On the other hand, the income given to a legatee for -life under a will providing it shall not be subject to the claims of -creditors does not pass to the trustee. If the bankrupt has an -insurance policy with a cash surrender value payable to himself or -personal representatives he may pay or secure this sum to the trustee -and continue to hold the policy. And a policy of insurance payable to -the wife, children, or other kin of the bankrupt is no part of the -estate and does not pass to the trustee. - -After one month, and within a year from the adjudication of -bankruptcy, the bankrupt may apply for a discharge. The petition must -state concisely the orders of the court and the proceedings in his -case. Creditors must have at least ten days' notice by mail of the -petition, and then the judge hears the application for discharge, and -considers the proofs in opposition by the parties in interest. Unless -some creditor objects and specifies his ground of objection, the -petition will be granted. The Bankruptcy Act states several reasons -for refusing a discharge, especially when the bankrupt has concealed -his property instead of making an honest, truthful statement -respecting it, or has not kept proper books of account with the -fraudulent intent to conceal his true financial condition and defraud -his creditors. - -Lastly a person may be punished by imprisonment for two years or less -on conviction of having knowingly and fraudulently concealed, while a -bankrupt or after his discharge, any property belonging to his estate -as a bankrupt, or made a false oath in any bankruptcy proceeding, or -made any false claim against his estate or used such a claim in making -a composition with his creditors. - - -=Beneficial Associations.=--Beneficial associations possess a varied -aspect, they are both social and business organizations. Often the -members are bound together by secret obligations and pledges. -Trades-unions have a double nature, they are created for both -beneficial and business purposes. Originally their beneficial -character was the more important feature. Benefit societies may be -purely voluntary associations or incorporated either by statute or -charter. - -The articles of association formed by the members are essentially an -agreement among them by which they become bound to do specified things -and incur liabilities. They thus establish a law for themselves -somewhat like a charter of a corporation. They may adopt such rules as -they like provided they are not contrary to the laws of the land. As -the members, having made the rules, are presumed to know them, they -are therefore bound by them. - -The legal status of such associations, their right to sue and be sued, -the liability of the members to the public for the debts of the -association, though most important questions, are not as well settled -as they might be. In many states statutes exist defining their right -to sue and be sued, and their liability to creditors. Yet these -statutes do not cover all cases. Generally persons who associate for -charitable or benevolent purposes do not regard themselves in a legal -sense as partners. Nevertheless in fixing their liability to -creditors, dividing their property, and closing up their affairs, the -courts often, though not always, treat their association as a -partnership, and the members as partners. Thus the highest court in -New York declared that an unincorporated lodge, which had been -mis-managed, was not a partnership. The members sought to dissolve the -lodge, and distribute its property. The court said there was no power -to compel the payment of dues, and the rights of a member ceased after -his failure to meet his annual subscription. On the other hand, the -supreme court in the same state held that the members of a voluntary -association were liable to its creditors by common law principles. -"Where such a body of men join themselves together for social -intercourse and pleasure, and assume a name under which they commence -to incur liabilities by opening an account, they become jointly liable -for any indebtedness thus incurred, and if either of them wishes to -avoid his personal responsibility by withdrawal from the body, it is -his duty to notify the creditors of such withdrawal." - -If one or more members order work to be done or purchase supplies, he -or they are personally liable unless credit was given to the -association. - -What can the members do? They cannot change the purpose for which the -association was formed without the consent of all, still less can the -executive board convert the association into a corporation. No member -has a proprietary interest in the property, nor right to a -proportionate part while he is a member, or after his withdrawal. -Should an association dissolve, then the members may divide its -property among themselves. - -Sometimes a quarrel springs up in one of these associations, the -members divide, who shall have the property? The members of more than -one church organization have fought this question, first among -themselves, afterwards in the courts. Suppose a quarrel breaks out in -a branch association and two parties are formed, which of them is -entitled to the property? The party that adheres to the laws and -usages of the general organization is regarded as the true -association, and is therefore entitled to the enjoyment of the -property. Though that party may be a minority of the faithful few, the -members are enough to continue the organization. - -Sometimes societies of a quasi religious character exist which persons -join, surrendering their property and receiving support. Suppose a -member should leave, and afterwards sue to recover his property. This -has been attempted, and usually ends in failure. - -Are benefit societies charities? This question is important from the -taxpayer's view, as charitable associations are taxed less than others -or perhaps entirely relieved. An Indiana court has decided that a -corporation which promises to pay a fixed sum as a benefit during a -member's illness--he of course paying his dues--is not a purely -benevolent organization, and therefore not exempt from taxation. -Masonic lodges on the other hand, are generally regarded as charitable -institutions. "The true test," says a judicial tribunal, "is to be -found in the objects of the institution." - -Again, a voluntary association may conduct in such a way as to create -the impression or belief that it is a corporation, and is forbidden -from denying its corporate liability for an injury or loss to a third -person. It is a familiar rule that a person who transacts business -with a partnership in the partnership name may hold all the members -liable as partners, though he did not know all their names. This rule -has sometimes been applied to a voluntary association, making it -responsible as a corporation. - -The articles of association regulate the admission of members. A -physician who applied for membership in a medical society was rejected -because of unprofessional conduct. A code of medical ethics adopted by -the society was declared to be binding only on the members, and -therefore did not touch the conduct of one prior to his becoming a -member of the society. If the membership of a society is confined to -persons having the same occupation, a false representation concerning -one's occupation would be a good reason for his expulsion. In -admitting a member, if no form of election has been prescribed, each -candidate must be elected separately. This must also be done at a -regular meeting or at one properly called for that purpose. A call -therefore to transact any business that may be legally presented is -not sufficient. - -If a society requires a ceremony of initiation, is the election of a -member so complete that he is entitled to benefits without proper -initiation? In one of the cases the court said: "The entire system, -its existence and objects, are based upon initiation. We think, there -can be no membership without it, and no benefit, pecuniary or -otherwise, without it." - -Controversies concerning property rights of religious societies are -generally decided by one of three rules: (1) "was the property a fund -which is in question devoted to the express terms of the gift, grant -or sale by which it was acquired, to the support of any specific -religious doctrine or belief or was it acquired for the general use of -the society for religious purposes with no other limitation; (2) is -the society which owned it of the strictly independent or -congregational form of church government, owing no submission to any -organization outside of the congregation; (3) or is it one of a number -of such societies, united to form a more general body of churches, -with ecclesiastical control in the general association over the -members and societies of which it is composed." - -Many benefit societies provide for the payment of money to their sick -members. The rules providing for the payment of these may be changed -at any time as the constitution or articles of association of a -society may prescribe. Consequently an amendment may be made -diminishing the weekly allowance to a member who is sick, and also the -time of allowing it. Of course in applying for the benefits a member -must follow the modes prescribed. - -The power to expel members is incident to every society or association -unless organized primarily for gain. Gainful corporations have no such -power unless it has been granted by their charter or by statute. The -revision of the list of members by dropping names is equivalent to the -expulsion of those whose names are dropped, and by a majority vote or -larger one as the rules of the society may require. Nor can the power -of expulsion be transferred from the general body to a committee or -officer. The power to expel must be exercised in good faith, not -arbitrarily or maliciously, and its sentence is conclusive like that -of a judicial tribunal. Nor will a court interfere with the decision -of a society except: first, when the decision was contrary to natural -justice and the member had no opportunity to explain the charge -against him; secondly, when the rules of the association expelling him -were not observed; thirdly, when its action against him was malicious. -Nor will a court interfere because there have been irregularities in -the proceedings, unless these were of a grave character. - -The charges must be serious, a violation of a reasonable by-law is a -sufficient charge. To obtain, by feigning a qualification which did -not exist, membership in a trades-union is sufficient cause for -expulsion; so is fraud in representing one's self in his application -for membership when in fact he has an incurable disease. On the other -hand, the following charges are not sufficient to justify expulsion or -suspension: slander against the society, illegally drawing aid in -time of sickness, defrauding the society out of a small sum of money, -villifying a member, disrespectful and contemptuous language to -associates, saying the lodge would not pay and never intended to pay, -ungentlemanly conduct. In harmony with a fundamental rule of law, a -member who has once been acquitted cannot be tried again for the same -offense. - -As subordinate lodges of a benefit society are constituent parts of -the superior governing body, there may be an expulsion from membership -in a subordinate lodge for violating laws which generally caused -expulsion from the society itself, and there may be a conditional -expulsion or suspension. If an assessment is not paid at the fixed -time, its non-payment, by the laws of the order, works a suspension, -though a member may be restored by complying with the laws of the -order. - -An appeal by a member of a subordinate lodge from a vote of expulsion -does not abate by his death while the appeal is pending. If, -therefore, the judgment of the lodge is reversed, the beneficiary of -the member is entitled to the benefits due on the member's death. A -member who has been wrongfully expelled may be restored by a mandamus -proceeding issued by a court. Before making the order the court will -inquire into the facts and satisfy itself whether in expelling the -applicant the society has properly acted in accord with its rules. -Unless some rule or statute forbids, a member of a voluntary -association may withdraw at any time. When doing so, however, he -cannot avoid any obligations incurred by him to the association. On -the other hand, it cannot, after his withdrawal, impose any other -obligations on him. - -It has often been attempted to hold the members of an association -liable personally for a promised benefit in time of sickness. Says -Bacon: "It may be a question of construction in each particular case -whether the members are personally liable or not. The better rule -seems to be that the members are not held personally liable." - -An association cannot by its constitution or by-laws confer judicial -powers on its officers to adjudge a forfeiture of property rights, or -to deprive lodges or members of their property and give it to another, -or to other members. To allow associations to do this is contrary to -public policy. For the same reason an agreement to refer future -controversies to arbitration cannot be enforced; it in effect deprives -a party of his rights under the law. He may do this in a known case, -this indeed is constantly done, but one cannot bar himself in advance -from a resort to the courts for some future controversy of which he -has no knowledge at the time of the agreement. This is a rule of law -of the widest application. - - -=Broker.=--A broker, unlike an auctioneer, usually has no special -property in the goods he is authorized to sell. Ordinarily also he -must sell them in the name of the principal, and his sales are -private. He receives a commission usually called brokerage. He can act -only as the agent of the other party when the terms of the contract -are settled and he is instructed to finish it. Brokers are of many -kinds. They relate to bills and notes, stocks, shipping, insurance, -real estate, pawned goods, merchandise, etc. A bill and note broker -who does not disclose the principal's name is liable like other agents -as a principal. He is also held to an implied authority, not only to -sell, but that the signatures of all the parties thereon are genuine. -Unless he indorses it he does not warrant their solvency. - -An insurance broker is ordinarily employed by the person seeking -insurance, and is therefore unlike an insurance agent, who is a -representative of an insurance company, and usually has the authority -of a general agent. A delivery of a policy therefore, to an insurance -broker, would be a delivery to his principal. He is a special agent. -Unless employed generally to keep up his principal's insurance, he has -no implied authority to return a policy to be cancelled, and notice to -him that a policy had ceased, would not be notice to his principal. - -An insurance broker must exercise reasonable care and diligence in -selecting none but reliable companies, and in securing proper and -sufficient policies to cover the risks placed to be covered by -insurance; and if he selects companies which are then in good standing -he would not be liable should they afterward become insolvent. - -Merchandise brokers, unless factors, negotiate for the sale of -merchandise without having possession or control of it. Like other -agents they must serve faithfully and cannot act for both parties, -seller and buyer, in the same transaction, without the knowledge and -consent of both. In many transactions he does thus represent both by -their express or implied authority, and therefore binding both when -signing for them. - -A real estate broker in the employ of his principal is bound to act -for his principal alone, using his utmost good faith in his behalf. -And a promise by one of the principals in an exchange of real estate, -after the completion of the negotiations, to pay a commission to the -other party's broker, to whom he owed nothing, is void for lack of a -consideration. - -To gain his commission a broker must produce a person who was ready, -able and willing both to accept and live up to the terms offered by -the owner of the property. Nor can a property owner escape payment of -a broker's commission by selling the land himself and at a price less -than the limit put on the broker. - -The business of a pawnbroker is legally regulated by statute, and the -states usually require him to get a license. As the business may be -prohibited, a municipality or other power may regulate and control his -business. The rate of interest that he may charge is fixed by statute. -The pawnee may lose his right by exacting unlawful interest. Nor has -the pawnee the right to retain possession against the true owner of -any article that has been pawned without his consent or authority. If -the true owner has entrusted it to someone to sell, who, instead of -selling, pawns it, the pawner is protected in taking it as security. -The sale of pawned goods is usually regulated by statute. If none -exists, and there is no agreement between the parties, the sale must -be public after due notice of the time and place of sale. If there is -any surplus, arising from the sale, he must pay it to the pawner, and -not apply it on another debt that he may owe the pawnee. The pawner, -or an assignee or purchaser of the pawn ticket may redeem it within -the time fixed by law or agreement, or even beyond the agreed time if -the pawnee has not exercised his right of sale. Subject to the -pawnee's claim, the pawner has the same right over the article pawned -as he had after pawning it, and may therefore sell and transfer his -interest as before. Lastly the pawner is liable for any deficiency -after the sale of the thing pawned, unless released by statute. See -_Agency_. - - -=Carrier.=--Carriers are of two kinds, private and public. A private -carrier may contract orally or in writing, and must use such care in -carrying the goods entrusted to him as a man of ordinary intelligence -would of his own property. If he carries these gratuitously his -obligation is still less, nevertheless he must even then take some -care of them. Suppose he agreed to carry a package for another to the -latter's home, and on the way, being weary or sleepy, should sit down -by the wayside where people often pass and fall asleep and on -awakening should find the package missing, would he be responsible? -Authorities differ. Suppose the package was a very valuable one. A -court might hold that the man who gave it to him was a fool for -entrusting such a package voluntarily with him. Suppose however that -he was a highly trustworthy man, well known throughout the -neighborhood, then no fault could be imputed to either, and the owner -would be obliged to bear the loss. - -Common carriers are far more numerous and important. Receiving a -reward they are required to exercise more care in the business. The -old rule of the common law was very strict, but this has been greatly -modified. A carrier may modify the rule by contract, and the bill of -lading received by the shipper is regarded as one, and sets forth his -liability. In a general way he can relieve himself from all liability -except from his own negligence, and there are cases which hold that he -can relieve himself even from that if the shipper, for the sake of -having his goods carried at a lower price, is willing to relieve him, -in other words is willing to assume all the risk himself. - -A carrier can limit his liability for the loss of baggage entrusted to -his care and when one receives a receipt describing the amount of the -carrier's liability in the event of loss. Nor can he hold the company -on the plea of ignorance by declaring he has not read it, for it is -his duty to read the receipt. Again, a carrier is thus liable only -when a traveler's baggage is entrusted to his care; if therefore he -keeps his grip or umbrella and on looking around makes the painful -discovery that he has been relieved of them, he cannot look to the -carrier for compensation. - -The law requires carriers to carry all who pay their fare, and are in -a sufficiently intelligent condition to take care of themselves. In -like manner the law requires them to take all freight that may be -offered, though it may make reasonable rules with regard to the time -of receiving it, mode of packing, etc. A regulation therefore that -furniture must be crated is reasonable, and a carrier may refuse to -take it unless it is thus prepared for shipment. So also is a rule -requiring glass to be boxed though the distance may be short for -carrying it. A carrier may also object to carrying things out of -season, potatoes or fruit for example in the winter in the northern -states where there is great danger of freezing, unless the shipper -assumes the risk. Vast quantities of perishable goods are carried, but -usually under definite regulations and contracts. So, too, the shipper -must declare the nature of the thing carried. Should he put diamonds -in his trunk, he could not recover for their loss, for he has no -business to carry such a valuable thing in that way. He must make -known the contents for the carrier's protection. He cannot carry an -explosive in secrecy. To attempt to do such a thing is a manifest -wrong to the carrier. - -A carrier has a lien or right to hold the freight until the charge -for transporting it is paid, but if it is delivered, the lien ceases -and cannot be restored. If the carrier keeps it until the freight -charge is paid discretion must be used, and unnecessary and -unreasonable expense must not be incurred in so doing. - -A different rule applies to carrying passengers than applies to -freight, because the latter is under its complete control, while -passengers are not. Nevertheless the law requires a high degree of -care in carrying passengers, and is responsible in money damages -should injury occur through the carrier's negligence. In many states -statutes exist limiting the amount that a carrier must pay when life -is lost through its negligence to five thousand dollars or other sum, -while a much larger sum is often recovered for an injury, loss of a -leg, arm or the like. From the carrier's point of view therefore it is -often obliged to pay less for killing than for injuring people; this -is one of the strange anomalies of the law. - -When a passenger is injured and no agreement can be made with the -carrier for compensation, a suit is the result and the chief question -is one of fact, the extent of the injury, and the degree of negligence -of the carrier. If, on the other hand, the passenger was in fault -himself and contributed to the injury then the more general rule is he -can recover nothing. In some states the courts attempt to ascertain -the negligence of both parties, when both are at fault, and then award -a verdict in favor of the one least in fault. This is a difficult rule -to apply however just it may seem to be. - -A passenger who stands on a platform or on the steps of a street car, -when there is room inside, assumes all the risks himself. But if there -is no room within and the conductor knows he is outside, and permits -him to ride, he is under the same protection as other passengers. An -interurban car had stopped and A who was carrying two valises -attempted to board it. The act of the conductor, who was on the rear -platform, in reaching down and taking one of the valises amounted to -an invitation to A to board the car. In signaling to the motorman to -start the car when A was stepping to the vestibule from the lower -step, thus causing the injury to him, was negligence for which the -company was liable. - -A sleeping car company operating in connection with ordinary trains is -not a common carrier, nor an innkeeper as to the baggage of a -passenger. Yet it is liable for ordinary negligence in protecting -passengers from loss by theft. In a well-considered case the judge -said: "Where a passenger does not deliver his property to a carrier, -but retains the exclusive possession and control of it himself, the -carrier is not liable in case of a loss, as for instance, where a -passenger's pocket is picked, or his overcoat taken. A person asleep -cannot retain manual possession or control of anything. The invitation -to make use of the bed carries with it an invitation to sleep, and an -implied agreement to take reasonable care of the guest's effects while -he is in such a state that care upon his own part is impossible. I -think it should keep a watch during the night, see to it that no -unauthorized persons intrude themselves into the car, and take -reasonable care to prevent thefts by occupants." - -There is a distinction between the great express companies of the -country and local express companies receiving baggage from travelers -for transportation to their immediate destination. In the latter case -there is nothing in the nature of the transaction or the custom of the -trade which should naturally lead the shipper to suppose that he was -receiving and accepting the written evidence of a contract, and -therefore he is not bound by the terms of the receipt received, unless -there is other evidence that he assented thereto. - -Though the United States is a common carrier for carrying mails, it -cannot be held liable because it is a branch of the government. Mail -matter may be carried by private persons, but this is limited to -special trips. By statute no person can establish any private express -for carrying letters or packets by regular trips or at stated periods -over any post route, or between towns, cities or other places where -the mail is regularly carried. - -A public officer in performing his duties is exempt from all -liability. But a postmaster is liable to a person injured by his -negligence or misconduct and for the acts of a clerk or deputy -authorized by him. The assistant unless thus shielded must answer for -his own misconduct. A rider or driver employed by a contractor for -carrying the mails is an assistant in the business of the government. -Although employed and paid, and liable to be discharged at pleasure by -the contractor, the rider or driver is not engaged in his private -service; he is employed in the public service and therefore the -contractor is not liable for his conduct. - - -=Chattel Mortgage.=--A chattel mortgage is a conveyance of personal -property, as distinguished from real property, to secure the debt of -the lender or mortgagor. The essence of the agreement is, if the -mortgagor does not repay the money as he has agreed to do, the -mortgagee becomes the owner of the property. Until the mortgagor -fails to execute his part of the agreement, he retains possession of -the property. By statutes that have been enacted everywhere, the -mortgagee's interest, or conditional title in the property conveyed to -him, is secure by recording the deed even though the mortgagor still -retains possession. - -The usual form of a chattel mortgage is a bill of sale with a -conditional clause, stating the terms of the loan and that, on the -mortgagor's failure to pay, the mortgagee may take possession of the -property. Any persons who are competent to make a contract may make a -chattel mortgage, and an agent may act for another as in many other -cases. When thus acting his authority may be either verbal, or -written, or may be shown by ratification. Persons also who have a -common ownership in chattels, tenants in common or partners for -example, may mortgage either their common or individual interests. A -husband may give a chattel mortgage to his wife, and she in turn can -give one to him. Likewise a corporation may make such a mortgage. - -The law is broader in the way of permitting a minor, married woman, or -corporation to be mortgagees when they cannot act as mortgagors of -their property. Two or more creditors may join in such a mortgage to -secure their separate debts. If the debt of one of them is fraudulent, -his fraud, while rendering the mortgage fraudulent as to him, will not -affect its validity as to the other. - -How must the mortgaged property be described? With sufficient -clearness to enable third persons to identify the property. The -description must contain reasonable details and suggest inquiries -which if followed will result in ascertaining the precise thing -conveyed. A description of a baker's stock "stock on hand," would be -too meager, so would be a description of "our books of account, and -accounts due and to become due," but cattle described by their age, -sex and location will satisfy the law, though the cattle of other -owners should form part of the same herd, when they can be ascertained -by following out the inquiries suggested by the mortgage. Again, a -description that is wholly false avoids the mortgage, but if it is -false only in part, this may be rejected and the mortgage remain valid -for the remainder. - -More generally the nature of the chattels conveyed determine largely -the character of the description. Thus animals may be described by -weight, age, height, color and breed; vehicles by their style and -manufacturer's name; furniture by piece or set; crops growing or to be -grown by their location and year. A general claim of "all" articles in -a stated place is regarded as sufficient. Oral evidence is admissible -to aid the description in identifying the subject-matter of the -mortgage, and to explain the meaning and extent of the terms of the -description. - -A mortgage may be given for a future advance of money. Nor need the -mortgage state that it is thus given; and the fact may be proved -orally. But when the right of third parties are affected, such a -mortgage is not valid against them unless the specific sum that is to -be secured is set forth. Likewise to render a mortgage secure against -attaching creditors of the mortgagor, there must be a distinct -statement of the condition or terms of the mortgage; in other words -the creditors have a right to know what interest the mortgagee really -has in the property that secures to him rights superior to their own. -The rule should also be stated that where the rights of third parties -are in issue, it must appear that the mortgagee acquired the mortgage -before they had any rights to the property. - -The statutes require that chattel mortgages should be acknowledged and -recorded. In some states the requirements are strict in respect to the -disinterestedness of the official who takes the acknowledgment. An -affidavit is another requirement. This must state several things, -especially that the mortgage was given in good faith, and the nature -and amount of the consideration. - -What may be mortgaged? In general, any personal property that may be -sold; many of the statutes define it. They cover a life insurance -policy, corporation stock, railway rolling stock, seamen's wages, -growing crops and trees, profits from the use of a steamboat, premiums -earned by a horse, book accounts, leasehold interests, nursery stock, -besides many other things. Whenever fixtures annexed to real estate -retain the character of personal property they may be mortgaged. And -when animals are mortgaged their natural increase are included. A -mortgage made of an unfinished article will hold the article when -finished if it can be identified. - -By the common law nothing could be mortgaged that was not in existence -at the time of the mortgage. By statute a mortgage may cover -after-acquired property, and this statute has become very important -especially with merchants, manufacturers, and others who are -constantly changing their stocks of goods. - -When the mortgagor fails to pay his debt, the right of the mortgagee -to proceed in taking the property is usually regulated by statute, -except when the parties have agreed themselves and in conformity with -statute. The rights of the mortgagee depend in many cases on the -title, whether that has passed to him by virtue of the mortgage, or -whether it still remains conditionally in the mortgagor. Where the -mortgagor still retains the title, a clause is often put into the -mortgage to the effect that, should the mortgagor default in payment, -the mortgagee may take possession of the property and sell it; and -such a provision is valid and enforcible. Where the title is vested or -transferred to the mortgagee by virtue of the mortgage, this is -equivalent to giving him possession whenever he chooses to demand it. -In other states the mortgagee's discretion is not so broad, before -taking possession he must have reasonable grounds for believing -himself insecure, that the mortgagor has done, or threatens to do, -something that would impair the mortgagee's security. - -Where the common law prevails and no statute has been enacted -regulating the rights of parties, an important question is still -unsettled in cases of a mortgage given on a stock of merchandise which -permits the mortgagor to remain in possession and to sell the property -mortgaged in the course of trade. Can he do this? In many states such -a mortgage is regarded as fraudulent to creditors, in other states if -such a mortgage is not, on proper judicial inquiry, proved to be a -fraud, it will be upheld. - -A provision in a mortgage that it shall cover after acquired property -is regarded in some states as an executory agreement that it shall be -held by the mortgagee as security; and the mortgagee may take -possession of it, should the mortgagor fail to pay his debt, in -accordance with his promise, before the rights of third persons have -intervened. See _Mortgage_. - - -=Chauffeur.=--In many states minors are forbidden by statute to run -automobiles. If therefore the owner of a car permits a minor to drive -his car, he may be held liable for the injuries resulting from the -driver's negligence. Should a chauffeur's license not disclose -physical disabilities the license is not void, nor is he a trespasser -in operating the machine on the highway. Such a license though -defective is valid until revoked by the proper authority. - -If discharged before the expiration of the term of his employment, an -employer is still liable for his chauffeur's pay unless he has been -unwilling or unable to fulfill his contract. If, however, he has been -prevented by sickness or similar disability, he can recover, not -perhaps the amount stated in the contract, but the worth of his -services during the period of serving his employer. - -A chauffeur may recover damages from his employer for injuries -received while operating his car. The basis of the action is his -employer's negligence. If the engine "kicks back" while he is cranking -the car, and the employer contributed to the result by moving the -spark lever, he is liable. If he is injured while running a car from a -defective brake of which he had knowledge, he cannot recover. But if -the employer knew, and the chauffeur did not know that the brake was -defective, he could recover if injured in consequence of it. The -employer is under no duty to warn his chauffeur of obvious dangers, or -instruct him in matters that he may be fairly supposed to understand. -If a chauffeur is riding at the owner's request, who is driving the -car, he may recover if injured by the negligence of the owner in -running the machine. Under the Workmen's Compensation Laws a chauffeur -who is injured while running his car beyond the speed limit -prescribed by statute can recover nothing. Nor is he justified by the -custom of other chauffeurs in disregarding the rule. Lastly, if the -owner of a car is injured, physically or financially, by reason of the -wrongful conduct of his chauffeur, he has a remedy against him. See -_Automobile_; _Garage Keeper_. - - -=Check.=--A check should be properly signed. A check signed by an -individual with the word "agent," "treasurer," or other descriptive -term, has sometimes been regarded as the check of the individual -signer, and not that of a principal or company. The proper way is to -sign the name of the principal or company, adding the name of the -person by whom this is done, thus: "John Smith by John Doe, agent," or -"The Atlas Co. by John King, Treasurer," or other official -designation. - -The statement will not accord with the view of many a reader, that a -bank on which a check is drawn is under no legal agreement with the -holder to pay it, whether the maker has a sufficient deposit or not. -Consequently, should the bank refuse to pay, the holder has no cause -of action against the bank. The agreement to pay is between the bank -and the depositor, and if the bank fails to fulfill its agreement with -him, he has a just cause for complaint. Sometimes a bank declines to -pay supposing, through an error of bookkeeping perhaps, that the -depositor has not money enough there to pay his check. In such a case, -as the bank is in the wrong, if the depositor has suffered from loss -of credit or in any other way from the bank's action, it must respond -and make the loss good. - -Suppose a person presents a check and the maker's deposit is not -enough to pay the full amount, what can be done? Usually the bank -declines to pay. Suppose the holder says he is willing to give up the -check and take the amount in the bank? There is no reason why the bank -should not accede to his wishes. Suppose a bank should pay more than -the amount on deposit through no fraud of the holder, from whom can it -recover the amount? If the holder has been free from wrong in -presenting the check, the bank cannot look to him, but to the drawer -for repayment. If the maker of a check has no money in the bank, -perhaps he may not be a depositor, he commits a fraud in making and -giving his check to another, and the offense in many states is deemed -a crime: likewise a person who receives such a check knowing its true -nature is equally deep in the wrong. - -The law is very strict in its requirement of banks when paying the -checks of customers. After a check has been delivered and has -therefore passed beyond the maker's control, the law requires the -greatest care on the part of a bank in paying it. The bank must be -especially careful in examining the signature and the amount, and if -the signature has been forged, or the amount changed, the bank is -liable for an improper payment. Once an employer gave his trusted -clerk a post-dated check, which he was to present on the day -specified, and, after drawing the money, was to pay this to his -employees. The clerk changed the date to an earlier one, drew the -money, kept it and fled. The court said the bank should have detected -the alteration. The bank contended that had the clerk waited until the -proper day, and then drawn the money, it would not have been liable. -The court said that was not the case presented, the clerk did not -wait. Banks suffer, far more than the public knows, from the payment -of raised checks, for it is quite impossible always to detect them, -yet banks are held liable therefor. - -There are two rules relating to the payment of checks worth -mentioning. One is, the maker of a check should use proper precaution -in making it. He should write in a way that will not be likely to -confuse the paying official. For instance, if in the above case the -maker, intending to give a post-dated check, had written the date so -imperfectly that the teller was misled, the bank would not have been -liable for paying it, or for refusing to pay because there was not -money enough in the bank at the time of presentation for payment. Some -persons are very careless in making figures; when they are, they -cannot look to the bank for the ill consequence of their own neglect. - -Again, if a bank paid forged checks, for example, which were returned -with other checks on the balancing of a depositor's book, and months, -perhaps years afterward, the depositor discovered the forgeries or -forged indorsements, he could, notwithstanding the lapse of time, -demand of the bank the sums wrongfully paid. This was a great hardship -to banks, and has been corrected in many states by statutes and by the -courts in others. The rule now is, the depositor must, within a -reasonable time after the return of his bank book, examine it, also -his checks, and, if payments have been improperly made, demand -immediate correction. - -The holder of a check should demand payment within a reasonable time -after he has received it. He may keep it longer if he pleases, but if -he does, and the bank should fail, he cannot demand payment again from -the maker of the check. He in effect says to the holder of the check -when giving it to him, "present this check to the bank within the -proper time and it will be paid, if you keep it longer, you do it at -your risk." What is a reasonable time? The law has fixed it. If the -bank is in the town or city where the holder of the check dwells, he -must present it the day he received it, or the next day. If it is -drawn on a bank outside, the check must be forwarded for presentment -at the latest on the day after it is received. With respect to the -first class of checks therefore if the maker and receiver are both -depositors of the same bank, the operation on the part of the bank -consists simply in debiting one account and crediting another with the -amount; if checks are drawn on another bank in the same city the -receiver usually deposits them in his own bank and they are paid -through the clearing house the next day. - -A drawer may stop the payment of his check. And when he requests the -bank to do so it must heed his instruction, and is liable if -neglecting, though not always for the whole amount of the check. -Suppose the check was given for a bill which the maker actually owed, -yet for some reason, after giving the check, he did not wish to pay. -If it was actually due and undisputed it would be hardly just to -require the bank to pay the check over again to the holder, this would -be too much. But for whatever injury the maker of the check may have -sustained the bank must make good. - -When a check has been certified by the bank on which it is drawn, the -effect of the certification after the drawer has parted with it "is -precisely as if the bank had paid the money upon that check instead of -making a certificate of its being good." The check is charged up to -the maker, or should be, and therefore as between him and the bank has -been paid. - - -=Citizen.=--In modern usage this means a member of the body politic -who owes allegiance to the nation and is entitled to public -protection. One may be a citizen of the United States without being a -citizen of any state, for example, a citizen of the District of -Columbia, or the territory of Alaska. Citizen-ship implies the duty of -allegiance to the government, and the right of protection from it. A -citizen of the United States who resides in a state owes a double -allegiance, and can demand protection from each government. For the -ordinary rights of person and property he looks to the state for -protection. The rights for which he can seek the protection of the -United States are only such as are established by the constitution and -federal laws. For some purposes even a corporation may be included -within the term citizen, for example the right to sue in the federal -courts as a citizen of the incorporating state. - -By the fourteenth amendment of the federal constitution, all persons -born in the United States and subject to its jurisdiction are citizens -of the United States. In 1855 Congress passed an act conferring -citizenship on alien women who should marry American citizens. An -American woman therefore who marries an alien takes the nationality of -her husband. When her marital relation ends she may elect to retain -her marital or her original citizenship. Since minor children follow -the status of their parent, by the marriage of an alien widow to an -American citizen, her children also become American citizens. - -An alien may be naturalized. To do this he must have continuously -resided in the United States for five years before his application, -and he must have appeared in court at least two years before, and -there declared his intention to become a citizen of the United States -and to renounce allegiance to his former sovereign. He must prove by -the oath of at least two persons his residence, also during that time -that he has behaved as a man of good moral character and attached to -the principles of the federal constitution. He must take an oath to -support and defend the constitution and laws of the United States and -renounce allegiance to any foreign prince. The naturalization of a -person confers citizenship on his minor children if dwelling in the -United States, also on his wife, unless she is of a race incapable of -American citizenship. - -The rights of aliens, from the very beginning of the American -government, have been expanded by treaty provisions and by liberal -legislation. In nearly all the states resident aliens were given the -right to take title to land, whether by deed or by inheritance, to -hold such real estate and to transfer it by law or by descent. In some -states they were given the right to vote and hold office. And at -common law they were entitled to purchase, own and sell personal -property, engage in business and to make contracts and wills. By the -fourteenth amendment to the federal constitution their rights and -privileges have been further secured. - -Aliens owe to the country in which they reside a temporary and limited -allegiance, that is, an obligation to obey its laws and subject -themselves to the jurisdiction of the courts. A non-resident alien is -not within the terms of the fourteenth amendment, indeed it is -doubtful if he can ask any aid or relief under the state or federal -constitutions. A statute therefore imposing a higher inheritance tax -on property passing to a non-resident alien than on his property if he -resided here is valid. Non-resident aliens can acquire no rights -incident to residence here except as permitted by the federal -government. This power may be exercised, either through treaties made -by the president and senate, or through statutes enacted by congress. -So congress has excluded not only diseased, criminal, pauper and -anarchist immigrants, but also contract and Chinese laborers. - - -=Contracts.=--At the outset the various kinds of contracts should be -explained so that the principles which apply to them may be better -understood. One of the divisions is into simple contracts and -specialties. A simple contract may be verbal or it may be in writing, -but no seal is appended to the signatures of the parties. A specialty -is in writing and a seal is added to the signature. A written contract -may be a duplicate of another with a seal, yet the two belong to -different classes and different rules of law apply to them as we shall -learn. - -Another classification is into executed and executory contracts. An -executed contract, as the name implies, is completed, an executory -contract is to be executed or completed. An unpaid promissory note is -an executory contract, when paid it becomes an executed one. - -Another classification is into express or implied contracts. An -express contract is one actually made between two or more persons or -parties; an implied contract is one that the law makes for the -parties. Suppose a man worked a day for another at his request, and -nothing was said about payment, the law would require him to pay a -reasonable sum for his day's work. Another kind of contract -technically called quasi contract differs somewhat from an implied -contract and will be explained in another place. - -To every contract there must be two or more parties, who have the -legal right to make it. Not every person therefore who wishes to make -a contract can legally do so. Of those whose ability to contract are -limited are minors or infants. The period of infancy is fixed by law, -and is therefore a conventional, yet needful regulation. In most -states infancy ends at the age of twenty-one, though some states fix a -younger period, eighteen for women. A person becomes of age at the -beginning of the day before his twenty-first birthday. The reason for -this rule is, the law does not divide a day into a shorter period or -time except when this is required in judicial proceedings. Another -class of incapable contractors are married women. Their disability -however has been largely removed by statutes in all the states, as we -shall learn in another place. - -Insane and drunken persons also are under disability to make -contracts. By the old law a drunken man who made a contract was still -liable, and required to fulfill as a penalty for his conduct. A more -humane rule now prevails and he can be relieved, though like a minor, -if he wishes to avoid a contract, he must return the thing purchased, -in other words he can take no advantage of his act to the injury of -the other contracting party. If however he has given a negotiable note -that has passed into the possession of an innocent third person, who -did not know of his drunkenness at the time of making it, he can be -held for its payment. It is not quite so easy to state rules that -apply to insane persons because their conditions vary so greatly. A -person may be insane in some directions and yet his insanity may not -be of a kind affecting his capacity to make at least some kind of -contracts. Again, he may have lucid intervals during which he is -quite as capable of contracting as other persons. And again when an -insane man has made a contract, the relief to which he is entitled -depends on circumstances. In some cases he may repudiate it, a partial -fulfillment only may be required. - -The law has much to say about the consideration that is an element in -every contract; in other words, there must be a cause, something to be -gained by the parties in every contract to sustain it. If A should -promise to give to B a house next week, and on the day fixed for -transferring it A should change his mind, he could not be compelled to -transfer it, for the promise would be without any consideration or -thing coming from B. But if the house had been transferred, A could -not afterwards repent of his act and demand its return. An executed -gift therefore, free from all fraudulent surroundings, is valid: the -donor of an executory gift is free to withhold its execution. - -A consideration need bear no relation or adequacy to the other thing -that is to be received. Nothing is more frequent than a one-sided -contract, in which one party has gained far more than the other. If -the law attempted to adjust these cases, many more courts would be -needed than now exist. - -We will briefly note the need of consideration in some classes of -cases. First, a voluntary undertaking to work for another without -compensation cannot be enforced. Under this head is the promise to pay -the debt of another. Why should one do such a thing? Let us remember -that should one make such a promise and keep it, the money could not -be recovered back, that is quite another thing. Again, if A owed B a -debt and delayed payment, and B should say to him, "if you will pay me -half of it next week I will give up the rest," B would not be bound -by his promise. Suppose that B learning that A had ample means to pay, -should sue him, A could not relieve himself from liability by offering -to pay the amount A promised to take in settlement of the debt. But -should B accept one half, in fulfillment of his promise, that would be -the end of the matter. - -Again should a bank defaulter make good the amount taken, and the -directors, in consideration thereof, promise to take no steps towards -his prosecution by the government, there would be no valid -consideration to sustain the promise. The state would be just as free -to prosecute him as before. Very often such criminals are not -prosecuted after returning all or a part of their unlawfully taken -money, nevertheless no settlement of this kind stands in the way of -prosecution. - -Suppose A agreed to work for B for a month and, after working a week, -should leave him without good reason, can he recover for his week's -work? If he can get anything, he cannot claim it under his contract -for he has broken it and therefore a court could not enforce it. If he -can recover anything it is on the implied contract which the law -makes, the worth of his work after deducting the loss to his employer. -Suppose the employer should prove that he had lost more by A's going -away when he did than he had gained by his week's work, he could -recover of B, for the rule works both ways. In some states he cannot -recover anything, for, having broken his contract, he has no standing -in court. - -Suppose one signs his name to a subscription paper, calling for the -payment of money, to build a church, for example, and the designated -amount has been subscribed, can a subscriber refuse to pay? He -cannot. Suppose he withdraws before the subscriptions have been -completed, what then? He can refuse. If a subscription has not been -completed, death operates as a revocation and the subscriber's estate -is not held for the amount. Sometimes a moral obligation to pay money -is a good consideration for a promising to pay it. Thus if one owes -another for a bill of goods, and the debt has ceased to be binding by -lapse of time, yet he should afterwards promise to pay, he could be -held on his promise because there was a good consideration for the -debt. Lastly a contract may be modified by mutual agreement without -another consideration. - -Another element in a contract is mutuality, a meeting of minds in the -same sense. In every contract there is an offer made by one party and -an acceptance or refusal by the other. When an acceptance occurs, -there is a meeting of minds, or an assent. Very often the parties do -not understand each other, they acted hastily, ignorantly perhaps, -their minds did not really meet in the same sense. In such cases there -is no contract. - -Generally the acceptance must be at the time of receiving the offer. -If it is not, there is no meeting of minds, no assent. A person -however may make an offer on time, this is common enough. When this is -done the other party must furnish some kind of consideration to make -the offer good for anything, otherwise the offerer can withdraw his -offer whenever he pleases. Many an offeree has been disappointed by -the action of the other party in withdrawing his offer, yet the -offerer has been clearly within his rights in doing so when he has -received no consideration for giving the other party time to think -over his offer. - -An eminent jurist has said "that an offer without more is an offer in -the present to be accepted or refused when made. There is no time -which a jury may consider reasonable or otherwise for the other party -to consider it, except by the agreement or concession of the party -making it. Until it is accepted it may be withdrawn, though that be at -the next instant after it is made, and a subsequent acceptance will be -of no avail." - -If no time is given, or no consideration for the time given, an offer -therefore may be withdrawn as soon as made if not accepted. A person -may suddenly think of something which leads him to withdraw his offer -as soon as it is out of his mouth, and in doing so is within his -rights, but if he does not, how long does his offer last? A reasonable -time. What this is depends on many things, one of the questions like -so many others in the law to which no definite answer can be given. An -offer to sell some real estate was accepted five days afterward, this -was held to be within a reasonable time. One can readily imagine cases -in which five days would not be thus regarded, or even five hours. - -When does assent occur in contracts made by correspondence? The rule -is in nearly every state (Massachusetts being the chief exception) -where an offeree has received an offer by letter and has put his -acceptance in the postoffice, the minds of the parties have met and -made a contract. The post-office is the agency of the offerer both to -carry his offer and bring back the return. If the offeree should use a -different agency, the telegraph for instance, to convey his -acceptance, it would not be binding until the offerer had received and -accepted it. Of course, an offerer by letter may withdraw his offer at -any time. Suppose he should receive an acceptance by letter or -telegraph but deny it, and insist that no contract had been made. Then -the controversy would turn on the proof. If the acceptance had been by -letter, and the offeree could prove that the offeree had written and -mailed it, the offeree's proof would be complete. If the offeree sent -a telegram, then he would be obliged to prove the delivery of the -dispatch. Suppose one should mail a letter of acceptance, but before -its receipt by the offerer, should send a telegram declining the offer -which was received before the letter of acceptance? The acceptance -would stand, for as there had been a meeting of minds when the letter -was put into the postoffice, the offeree could not afterwards withdraw -his offer. A person who makes an offer cannot turn it into an -acceptance. An old uncle wrote to his nephew that he would give thirty -dollars for his horse and added, "If I hear no more about the matter, -I consider the horse is mine." The game did not work, for no man can -both make and accept an offer at the same time, and that is what the -foxy uncle tried to do. - -Offers and rewards are often made through the newspapers. Thus the -owner of a carbolic smoke ball offered to pay a specified sum to any -one who suffered from influenza after using one of his smoke balls in -accordance with directions if he was not cured. A person who failed to -receive the benefit advertised recovered the reward. Two other cases -may be mentioned that illustrate the uncertainty of the law. An -excited farmer offered the following reward, "Harness stolen! Owner -offers $100 to any one who will find the thief, and another $100 to -prosecute him!" The farmer cooled off and declined to pay after the -thief was caught and the court relieved him, declaring that his -advertisement was not an offer to pay a reward, but simply an -explosion of wrath. In another case a man's house was burning, and he -offered $5,000 to any one who would bring down his wife dead or alive. -A brave fireman accomplished the feat. This offerer too cooled off and -declined to pay, but he did not escape on the ground that this was -only an explosion of affection, and was obliged to pay. - -Lastly a contract dates from the time of acceptance, and is construed -or interpreted by the law of the place where it was made. If it is to -be performed in another place, then the parties must be governed by -the law of that place in performing it. - -A contract having been made, next follows its execution. When a -contract is not executed, or not executed properly, the party injured -usually may recover his loss. Sometimes the contract states what the -offending or wrongful party must pay should he fail to execute it. -Many questions have arisen from such agreements. Suppose a contractor -agrees to build a home for another and to finish it within a fixed -time, and, failing to do so, shall forfeit or pay to the other $5,000 -as a penalty for his failure. One would think that if he failed to -execute it the other party could demand the $5,000. But the courts -have a way of their own in looking at things. Suppose the contractor's -failure did not in fact result in any loss whatever to the other -party? The courts in such a case are very reluctant to enforce the -agreement. If there had been a loss, something like that amount, then -the courts would compel him to pay. In other words, the most general -rule is, notwithstanding such a clearly written agreement, the courts -seek to do justice between the parties. Whenever the parties do not -attempt to fix the damages themselves, should their contract not be -fulfilled, then the amount that may be recovered depends on a great -variety of circumstances. Suppose a woman should go to a store to buy -a piece of silk. She asks if the piece shown to her by the saleswoman -is all silk, who makes an affirmative reply. The buyer knows much more -about it than the saleswoman, which is often the case in buying -things, and knows it is half cotton, can the buyer recover anything? -Surely she has not been deceived. The seller may have tried to fool -her but did not, and having failed, the buyer has no legal ground for -an action. On the other hand, if the buyer was ignorant, knew nothing -about silk and had been deceived by the seller, then she would have a -clear case. This is one of the fundamentals in that large class of -cases growing out of deceit. The party seeking redress, must have been -deceived, and also injured by the deceit in order to recover. The -remedies that may be employed whenever contracting parties have -failed, or partly failed to fulfill their agreements or promises will -be considered under other heads. See _Deceit_; _Drunkenness_; _Quasi -Contract_. - - -=Corporations.=--There are many kinds of corporations. Those most -generally known are business corporations; and though many of them are -very large, legally they are private corporations. A railroad -corporation, though performing a public service, nevertheless is a -private corporation. - -Public corporations are formed for governing the people and are often -called municipal corporations. They are created or chartered by the -legislatures of the states wherein they exist. Formerly, all private -corporations in this country were granted charters by the legislative -power, and many corporations are doing business by virtue of the -authority thus granted to them. More recently general statutes have -been enacted whereby individuals may form such corporations without -the aid of a legislature. Authority has been conferred on the courts, -secretary of state, or other official to grant to individuals, who may -apply for them, charters on complying with the requirements of these -statutes. There are other kinds of corporations, religious, charitable -and the like; only one other need be mentioned, to which the term -quasi has been applied. These resemble corporations in some ways, and -this is the reason for calling them quasi corporations. A county or -school district is such a corporation. The supervisors of a county, or -the trustees of a school district, can make contracts, own and manage -real estate for their respective bodies, sue and be sued like the -officers of other corporations. - -By the general comity existing between the states corporations created -in one state are permitted to carry on any lawful business in another, -and to acquire, hold and transfer property there like individuals. - - -FORMATION OF CORPORATIONS. - -Formerly charters were granted to corporations for a long term of -years, or forever. The policy of the law has changed in this regard, -and the duration of their existence is limited to a comparatively -short period. The life of a national bank is only for twenty years; at -the end of that period the charter is renewed, and the charters of the -older national banks have been renewed several times. Perpetual -charters are infrequently granted, and some of the older ones have -been limited by legislative or judicial action. A private corporation -had perpetual authority to build and maintain a bridge across the -Susquehanna River at Harrisburg, nor could any other company build one -within the distance of ten miles above or below. Notwithstanding this -clear and exclusive grant, another company was formed which attempted -to build a bridge within a mile of the other. The old company tried to -prevent by law the new company from building the bridge. The court -said that "perpetual" did not mean literally perpetual, but a long -time, that the old company had enjoyed its exclusive grant a long -time, long enough, and that the new company was justified in its -undertaking. - -A corporation has no heirs like an individual; it continues through -succession, one sells his interest or stock to another, and thus it -lives to the end of its charter unless it fails or, through some other -event, comes to an end. Suppose a stockholder buys all the stock of -the other members, does the corporation still exist? It does for a -limited time. How long? No court has answered this question. It -depends on the particular case. The courts also say, that he can sell -his stock to other individuals and thus practically revive a dying -corporation. A stockholder who had bought all the stock of a -corporation claimed that he should be taxed as a corporation, which -was at a lower or favored rate than that paid by individuals. The -court said the game would not work, that for the purposes of taxation -the concern must be regarded as an individual. So the stockholder knew -more after that decision than he did before. - - -CAPITAL. - -Every private corporation has a capital composed usually of money, -which is advanced or paid by its members or shareholders. Among the -reasons for forming corporations two may be stated. It is a way for -collecting money from many sources needful for an enterprise; the many -contributors are like the small streams that unite and create a great -reservoir. The other reason is, the contributors are free from the -liabilities that attach to every member of a partnership for its -entire indebtedness. A stockholder may indeed, if his corporation does -not succeed, lose a part or all of the capital he has contributed, but -no more or only a fixed amount, as will be hereafter explained. - -Almost anyone can subscribe for stock, with a few limitations. A minor -cannot subscribe for stock, nor can his guardian act for him. -Doubtless they do subscribe in some cases; the practical difficulties -will be shown in another connection. A married woman cannot always -subscribe, unless by virtue of a statute. What usually happens when -she wishes to subscribe is to act through a friend, who, after the -corporation is fully formed, transfers the stock to her. There is no -legal stone in the way of such a course. - -Sometimes fictitious subscriptions are made to induce others to -subscribe for stock. Whenever the fraud is found out an innocent -subscriber can do one of three things. If he has paid for his stock, -he can bring an action to recover it; if he has not paid, he can -refuse to do so, and set up the fraud as a defense. He can do another -thing, accept the stock and sue for the damage he has sustained by the -deceit that has been practiced on him. The discovery of a fictitious -subscriber among the number, after all have subscribed, where his -action in subscribing did not affect their action, will not justify -them in not fulfilling their obligation to pay for their shares. - -The issuing of a share certificate is not an essential condition of -ownership. It is merely evidence of it, like the deed of a piece of -real estate. All the shareholders of a corporation are the owners -whether any certificates are issued to them or not. Of course a -stockholder desires to have his certificate for obvious reasons. - -Whenever the capital stock of a company is increased, each shareholder -has a right to his proportionate number of the new shares on -fulfilling the terms on which they are issued before they can be -offered to the public. Occasionally a clique seeks to get control of a -corporation by the issue of new stock and taking it among themselves. -They can be defeated for the courts carefully guard the rights of all -stockholders to take their shares of new stock before it can be -offered to, and taken by others. - -Of late years private corporations have been issuing a kind of stock, -called preferred, that must be explained. Formerly such stock was more -like a loan of money to a company, and was issued primarily as the -most feasible way of getting a fresh supply of money capital. The -lenders or takers of the stock received a fixed per cent. on their -money, which was paid before the common shareholders received -anything. His preference or dividend was not guaranteed, but the -probability of regular payment was so strong in most cases that his -shares usually possessed a real value. Preferred shareholders are not -liable for the debts of their corporations, and the right to vote at -any meeting of the shareholders is sometimes given to them, though not -always. The tendency of the day is to confer this right on them. -Whether, when the amount of the preferred stock is increased, the -preferred shareholders are entitled to subscribe for their -proportionate amount, like common shareholders, is an open question. - -The authority of agents or commissioners to receive subscriptions is -strictly regarded. They cannot refuse to receive a subscription made -by a competent person, nor release a subscriber, nor vary the terms of -subscription to anyone. - -A subscription for shares is a contract in writing and cannot be -proved by oral evidence unless the original subscription paper has -been lost. As the contract is an open one, any subscriber must inform -himself of the legal consequences of subscribing, and cannot therefore -refuse to execute it on the ground of ignorance or misunderstanding. -Suppose an agent who was soliciting subscriptions, in reply to -questions concerning the laws relating to the proposed company, should -give incorrect answers to a subscriber, these would furnish no ground -for refusing to pay, as he has promised to do, for he could have found -out what the laws were without inquiring of the agent. This may seem a -hard rule, yet it has a wide application. In one sense it is true that -every person can find out the law for himself, the books are open, the -statutes especially may be easily found, but how many know enough to -find the laws in which they are interested? - -Of course if a person has been deceived by an agent, if a fraud has -been practised on him, he can avoid his contract. Thus a person who, -unable to read a subscription paper, was induced to subscribe through -misrepresentation of its contents, was not bound by it. If he wishes -to act, he must lose no time after discovering the fraud that has been -practiced on him. He cannot say, "I will abide by a company if -successful, and will leave it if it fails." He must therefore decide -at once either to continue his membership or withdraw. - -A company cannot purchase its own shares unless by charter or statute -such action is clearly authorized. For, to do this is to reduce its -assets or fund for paying its indebtedness, which the law will not -permit to be done. If a company has no debts, a reduction in its -capital made in an open manner in accordance with law, is legal. The -tendency of the times everywhere is to increase the capitals of -private corporations; reductions though are sometimes made to lessen -especially the burden of taxation. - -A corporation has no lien on its stock for the indebtedness of the -owner unless conferred by charter or statute. Once such a lien could -be established by usage or by-law under authority given to a -corporation to regulate the transfer of its stock. The national -banking law prohibits the creation of such liens, and the strong -current of the law runs in this direction. But a bank can retain a -dividend that has been declared to reduce the indebtedness of the -owner to the bank for his stock. - - -LIABILITY OF SHAREHOLDERS. - -The liability of the shareholders of a corporation is very unlike that -of members of a partnership. It was the liability of each partner for -all the debts of a concern that kept many persons from forming that -relation. The shareholders of many corporations are liable only for -the amount they have contributed and paid, or have agreed to pay. -National bank shareholders are liable for another sum, equal to the -par value of their stock, provided as much may be needed to pay its -debts should the bank fail. Thus if a shareholder owned ten shares, -having a par value of $100 a share, he might be required to pay, -should the bank fail, $1,000 more provided as much was needed to pay -its debts. In a few states shareholders are required to pay twice the -amount of the par value of the stock if as much may be needed to pay -its indebtedness. - -If a corporation fail, one or more persons are usually appointed by a -court to settle its affairs, who are called receivers. Several years -are sometimes required to settle the affairs of a corporation. First -an inventory is made of its property, names of the debtors and -creditors, and the amounts due from and to them, and as soon as its -property can be converted into cash, dividends are declared and paid -to the creditors; and this work is continued until there has been a -disposition of all the property, and the amount received therefrom -less the expense of the receivership, has been paid to the creditors. -When the shareholders are required to pay more, as above explained, on -the failure of their corporation, they are notified by the receiver -how much and when they must pay. This requirement is based on an order -from the court that appointed him, which, in turn, is based on -information which he has furnished to the court of the amount that may -be needed to pay the debts of the corporation. Several assessments may -be ordered, but they never exceed in the aggregate more than the -amount of liability fixed by law, the amount or twice the amount of -the par value of the stock subscribed. Should shareholders decline to -pay these assessments as ordered, the receiver sues them and obtains -judgments, the proceeds of which are paid to the creditors. - - -MEETINGS. - -The power of a corporation vests or rests in its members. The charter -and statutes provide that they shall meet, organize, elect officers, -and adopt by-laws for the more detailed governing of the corporation. -One of the most general principles pertaining to them is, the majority -shall rule. This however may be modified by charter or statute. There -are a few ancient charters which provide that, notwithstanding the -quantity of stock a shareholder may own, he is entitled to only one -vote. The writer knows of a case in which a shareholder bought nearly -all the stock of a corporation and went to the annual meeting -supposing that he could and would do as he pleased. On learning the -unwelcome truth that he had only one vote like the others he quickly -put on his hat and walked out. - -The statutes usually prescribe how notice of the joint meeting shall -be given. They are not mandatory, but directory, hence if all the -persons in a corporation should come together without any notice or -call whatever, and accept the charter, and do any other thing needful -to form the corporation, their action would be valid. Where the -regulations of a corporation definitely fix the place, the day, and -hour of the annual meeting at which the directors are to be elected, -no further notice of the meeting to the stockholders is needed unless -required by its charter or by-laws. - -A case may arise in which other persons than those designated by -statute may call a meeting. Suppose a statute prescribes that the -persons named in the certificate of incorporation, or any three of -them, may call a meeting of the shareholders, and before giving notice -all of them had died? Then the meeting could be called by others. -Again, authority to create a corporation may fail through long delay -in calling a meeting and organizing. Should the notices for the first -meeting not be given as the law requires, it is nevertheless valid if -the shareholders have notice and join in waiving the mailing of the -required notices. Likewise a subscriber waives his notice of the first -meeting when he afterwards offers to pay for his shares. - -If the by-laws require that an annual meeting shall be held at a -particular time, and those whose duty it is to call it, forget to do -so, it may be held afterwards, and the officers elected and other -business transacted would be as valid as if the meeting had been held -at the proper time. - -Should the officer who ought to call a meeting refuse to do so he may -be compelled by law to call it. This proceeding is called a mandamus, -and is issued at the instance or request of the shareholders. - -"Besides annual meetings, corporations hold many stated or regular -meetings at monthly or other times. Thus if a meeting of proprietors -must be called by twelve of them, a call signed by eleven is -defective. If a statute requires a committee of a society to sign the -call, it cannot be signed by the clerk, nor by him for them. If the -trustees of a corporation must issue the call, this cannot be done by -the president. If exclusive authority to issue the call is vested in -the directors, it cannot be exercised by the president and secretary. -If the articles of association provide that meetings of shareholders -may be called by the board of directors, or by any three shareholders, -the president and cashier cannot issue a valid call. But if a board -consists of three members and there is a vacancy, the other two may -act and give the notice." - -A well understood distinction exists between the calling of regular -and special meetings. Regular meetings are held in the way set forth -in the charter and by-laws of a corporation; special meetings are -called at irregular times on proper authority. A notice for a special -meeting must state the object of it, and no other business can be -transacted. On the other hand unless the regular meeting is of great -importance no mention need be made of its object in the notice. - -An authorized meeting may be adjourned from time to time without -giving further notice, for it is only a continuation of the original -meeting. Says an eminent judge: whether a meeting is continued without -interruption for many days, or is adjourned from day to day, or from -time to time, many days intervening, it is evident that it must be -considered the same meeting. - -A meeting may be legally held though one of its members is incapable, -physically or mentally, from receiving notice. "The law cannot look -into the capacity of the stockholders to transact business, but can -only regard the capacity of the aggregate body when duly assembled." -On the death of a stockholder, the purchaser, if the stock has been -sold, should have it transferred, or give distinct notice to the -company how notices of its meetings should be sent to him; if -neglecting to do this, he cannot charge the corporation with neglect -should it continue to send notices to the former address. - -Two other points may be mentioned concerning notices. One is, they may -be waived and this is often done. Many a question though arises, what -action amounts to a waiver of notice. If each shareholder attends in -person or by proxy and participates in the meeting, he cannot -afterward question its legality because he received no notice of it. -An improper notice may also be cured by ratification. Thus if a -secretary calls a meeting instead of the directors, and his action is -properly ratified by them, the call is effective. More generally, the -action of a meeting will be declared valid where it appears that every -stockholder who did not participate in the meeting ratified its action -afterwards. An election of trustees of a church may be valid even -though the notice lacked the proper length of time and the names of -the trustees whose seats became vacant at the election, if it was -fairly conducted and all who had the right to vote were present. -Likewise a stockholder who knows of the sale of his railroad, though -not legally notified of the meeting which authorized its sale, and was -not present, may be bound by its action through acquiescence. And a -stockholder who, after receiving notice of a meeting called by the -directors to consider their neglect of duty and who decides not to go, -is not thereby prevented from taking action against them by the -stockholders who did attend and authorized their unauthorized action. -Lastly a stockholder who was present cannot complain that notice was -not given to others; the objection is personal. - -Next we may inquire, who can vote at such meetings? Unless prevented -by charter, statute or by-law a stockholder may vote at any corporate -meeting even though no certificate of stock has been issued to him. -Nor does his indebtedness for his stock prevent him from voting. On -the other hand if inspectors were not bound by the record of ownership -in the company's books and went behind them to find out the real -ownership of the company's stock, they would often have a grave task -before them. Consequently in many, perhaps all of the states, only -stockholders or those holding proxies for them can vote at a general -election. By statute the stock record of ownership is usually made the -conclusive test of the right to vote. Stockholders who thus appear on -the stock books at the date of a meeting are entitled to vote the -stock. - -A trustee is the legal owner of stock standing in his name and may -vote the stock for all purposes; but a testator may impose limitations -on his voting power. Should trustees under a will holding a majority -of the stock of a corporation disagree, and one of them should be -enjoined from voting it, a minority stockholder would be entitled to -an injunction to restrain the other trustee from holding an election -or voting the stock alone until the right to vote the stock had been -legally decided. - -A different rule applies to a naked trustee who holds the title to the -stock without any real interest in it. He can indeed vote, but in the -way directed by the beneficiary or real owner. In Colorado, by -statute, perhaps in some other states, a person to whom stock has been -issued as trustee without the knowledge of the owner, is not a bona -fide stockholder and cannot vote. - -An executor has the power to vote the stock of his testator. And if -one of joint executors issues a proxy authorizing the vote of the -stock belonging to the estate, and the other executor is present at -the stockholders' meeting, the vote of the stock by the executor who -is present is deemed a revocation of the proxy given by his -co-executor. And if a will gives to one of three executors the power -to vote the stock, and directs the other two to give him a proxy for -that purpose, which they decline to do, a court will order the proxy -to be given. And whenever stock is held by executors who are not -united in voting it, they cannot vote at all. A foreign executor -should present to the inspectors of election an exemplified copy of -his letters of administration, and having done so may vote on the -stock standing in the testator's name. An administrator has the right -to vote stock belonging to the estate, even though it has not been -transferred to him in the corporation's books. - -A partner of a firm who owns stock in a corporation may represent the -stock in all meetings. He may therefore receive and waive notice of -them, vote when attending them, in short, participate in all matters. -And on the death of a partner the surviving partner has the right to -represent the partnership and vote on its stock. - -Two other kinds of stockholders still require mention, sellers and -purchasers of stock and pledgors and pledgees. Until a transfer is -entered on the books of a corporation, "the transferee, as between -himself and the company, has no right beyond that of having the -transfer properly entered. Until that is done, the person in whose -name the stock is entered on the books of the company is, as between -himself and the company, the owner to all intents and purposes, and -particularly for the purpose of an election." - -Many questions have arisen between pledgors and pledgees about their -rights to vote the pledged stock. Of course, whenever an agreement has -been made by them this must be respected. In other cases, if the -record remains unchanged, the pledgor can vote the stock. But if the -pledgor has transferred his right to vote the stock, he cannot ask a -court to restore his right to vote it until the purpose for which it -was pledged has been satisfied. Again a pledgor who pledges his stock -not in good faith as security for a loan, but to enable the pledgee -to vote it and effect an unlawful purpose, cannot do this and so -defeat a statute which provides that the real owner, the pledgor, may -vote his stock. - -Passing to the pledgee, whenever he is registered as owner of the -stock on the company's books, its officers will not look behind these -to ascertain whether he is the real owner or not when he is voting his -stock. A court of equity though may do this, and enjoin a pledgee from -voting the stock whenever the pledgor's rights would be affected. -Should the pledgor acquiesce for years in the control of the stock by -the pledgee, who is the record owner, and not inform the company of -his ownership until the holding of a contested election, he would be -too late to claim the right to vote. Finally when a certificate of -stock has been assigned in blank as collateral security, which is -often done, and never transferred to the pledgee on the books of the -corporation, a memorandum only having been made on the stub of the -certificate in the stock book, the pledgee is not a stockholder and -cannot vote the stock. It may be added that notices of meetings should -be sent to whoever has the right to vote the stock, to the pledgor if -the stock still stands in his name, to the pledgee if the stock has -been transferred to him and stands in his name. - - -DIRECTORS. - -Shareholders manage their corporations through directors or trustees -elected for that purpose. The business of some corporations is managed -by trustees who are named in the charter and who fill vacancies in -their number by electing others themselves, a self-perpetuating body. -Many savings banks especially are thus organized and continued. From -their number they usually select a smaller number to manage or direct -its affairs. - -The directors are always shareholders, unless the charter of a -corporation permits the election of outsiders, a thing that rarely -happens. The national banking act requires that every director shall -own at least ten shares of stock, and many other corporations have -similar requirements. The charter or statutes prescribe at least the -minimum number that must be elected, but the maximum number is left to -the stockholders themselves. A national bank must have five directors, -not infrequently the board is composed of ten, fifteen, or even more. -A director is chosen for some real service that he is likely or -willing to perform. An individual may be chosen a bank director who -may not be able to do much in directing the affairs of the bank, yet -by reason of his wealth or business relations he may be able to -attract business to the bank and thus greatly promote its prosperity. - -He is elected by a majority of the votes of the shareholders. More -recently the cumulative system of voting has come into general favor. -By this system a voter may cast as many votes for each of the -candidates as he holds shares of stock, or he may distribute or -cumulate his votes on a smaller number. "Where the votes under such a -system are cast and counted, the validity of the election must be -determined precisely as in all other cases." Where the shareholders -have failed, whether voting cumulatively or otherwise, to elect a -quorum of the new board, at an annual meeting of stockholders, it is -the privilege of the shareholders to ask for successive voting for -directors to fill the board. The ruling of a chairman on one occasion, -that because of a tie further balloting could not proceed, and that -the old board held over was arbitrary and illegal. A stockholder who -has votes enough to elect himself and other directors by cumulating -his shares in voting, but refrains from doing so in consequence of a -verbal agreement among the stockholders that he shall be chosen -president, which they fail to carry out, cannot obtain any -satisfaction from a court. A court says in effect stockholders should -not be trusted to make such agreements, and will not aid the tricked -stockholder by ordering a new election. Probably he will be fooled -only once. - -Having elected directors, the management of a corporation is confided -to them. What authority do they possess? This is defined by charter, -statute, by-law, and custom. Says Morawetz: "The rule limiting the -authority of the power of the majority to the general supervision of -the affairs of the corporation is established for the protection of -the individual shareholders, as well as for reasons of practical -consequence." Directors also have wide discretion in delegating their -authority. Their rights and limitations in this regard are also -bounded by charter, by-laws and usage. Formerly bank directors loaned -the money of their bank; this was their most important duty. Of late -years, especially in the larger cities, this business has been largely -delegated to a committee, chosen from their number, or to two or three -officials of the bank. The directors continue to meet, very much as -before and at their meetings the action of those who have been -entrusted with power to lend the bank's money is ratified. More and -more authority to direct or do the greater things in a corporation are -concentrated in the hands of a smaller number of individuals. Time is -ever becoming a more important element, a smaller number of men can -act more quickly than a larger number, and so business must be more -and more concentrated to be done efficiently. - -A director has no authority to act separately and independently. Only -as a board, properly convened, does he represent his corporation. -While this is the law, he can and does in fact often act singly, and -his action becomes effective to bind his corporation by ratification. -Such action plays a great part in the modern corporation. - -Though a principal may at any time, as a general rule, revoke the -authority he has given to an agent, this does not apply to the -directors of corporations. Says Morawetz: "The majority of the board -clearly have no power to expel an individual director, or to exclude -him from inspecting the company's books and participating in its -management, although they may believe him to be hostile to the -interests of the association." A president or other official is chosen -pursuant to the charter to serve for a year or other period, and is -simply an agent in serving the corporation, he cannot be turned away -like an ordinary agent. If he conducts fraudulently, he may be -removed, but this is not an easy process as corporations long ago -found out. - -Directors in most cases receive no compensation though the practice is -growing of rewarding them. Unless this is fixed by charter or by the -stockholders they can get nothing, for they cannot legally vote -salaries to themselves. A director who performs a different service, -serves as an attorney, for example, may receive compensation for it. -This is a salutary rule of the law, which the courts everywhere do not -hesitate to enforce. By another rule, hardly less important, directors -cannot bind their corporation by any contract made with themselves, or -represent their corporation in transactions wherein they have an -interest. This is only another application of a rule of agency, that -an agent cannot act at the same time for both parties. Yet there is -increasing difficulty in applying this rule because the business of -corporations has become so intermingled, and also the business of -directors, directly or indirectly, with that of the corporations they -represent. From this state of things has come another rule, that the -transactions between directors and their corporations are not actually -void but voidable, in other words if they are tainted with fraud, they -can be set aside provided proper action is taken as soon as the fraud -is discovered. - -Suppose directors had defrauded their corporation, but the fraud was -not discovered until several years afterward. Once it was held that -they could shield themselves behind the Statute of Limitations (see -_Statute of Limitations_) if the discovery of the fraud did not occur -until after the Statute had become effective to protect them. This is -no longer the law. Action however must be begun against them within -the proper time after discovering the fraud, otherwise the Statute may -be interposed as a bar to proceeding against them. - -The complication of business has led to the adoption of another -principle in managing corporations. A majority of the directors may -lawfully act as opposed to the minority; in other words if a majority -are not interested in a matter that concerns one or more of the -minority directors, the interests of the corporation are supposed to -be properly safeguarded. Yet an illustration discloses the dangerous -character of this method of doing business. Suppose each director of a -bank wished to obtain a loan of money from it. They could not legally -make such loans, for no one would represent the bank. Suppose a -single director made such an application, that would be a proper thing -for him to do and for them to grant, for the bank would be represented -by all the directors except the applicant. Suppose it were agreed in -advance that each would make an application at different meetings that -should be favorably regarded, the series of loans would be in fact -only a single transaction in which the bank was not represented. - -The knowledge of a director or other officer is imputed to, or -regarded in the law as known by the bank on all matters relating to -it. Thus if a director knew that a note was signed by a minor which -was afterwards presented for discount at a directors' meeting at which -this director was present, and he forgot to tell the directors what he -knew and it was discounted, the bank would be regarded as having -knowledge that the maker was a minor, who of course could not be held -on the note. This principle has a very wide application, yet is very -difficult to apply. The tendency of the law is to narrow the -application of the rule, for directors do not in many cases impart -their knowledge, either through forgetfulness or other cause, and it -is not just to hold their corporation always for their unintentional -neglect. Often they are busy men, have greater interests of their own, -and do not remember the things they learn about matters relating to -their corporation, and if it were always held as knowing as much as -they do on all occasions, the way of a corporation would be fraught -with a grave peril. - -A proper distinction is made in the imputation of knowledge between -that of a bank director for example who is engaged chiefly in some -other business, and that of its president whose chief employment is -the management of his bank. Suppose he should learn about a defective -note before it was presented for discount, the bank would be very -properly charged with his knowledge, because it would be his clear -duty to remember what he had learned and impart it to his fellow -directors. - -Directors sometimes go astray and cases are constantly arising to -determine their liability. When a corporation has failed or passed a -dividend nothing is more common than to accuse its directors of -negligence, incompetence or fraud. The legal rule of liability is -quite a different thing. Let us try to give this in the fewest words -possible. The charters of corporations, or statutes that apply to -directors, prescribe some definite things which they must do or not -do, and if these are violated they are clearly liable. The directors -of a bank are required to make a statement of its affairs to a -government official at a stated period, and if they neglect to do it, -or intentionally make a wrong and deceptive one, they are liable. By -many statutes they are forbidden to make loans above a certain amount, -or a fixed proportion of their bank's capital, and if they violate -this plain law they are liable. In all other cases where by charter or -statute a plain rule of duty is prescribed for directors, they are -liable, should they disregard it. - -Besides these clearly defined lines of duty are other lines of duty in -which the proper course of action is not so clearly defined, indeed is -largely discretionary. From the nature of the business of almost any -kind of corporation, it is impossible to prescribe in detail the -course of action directors must follow. Much must be left to their -judgment. They must on all occasions be honest and free from fraud. -This is one limitation. If they are guilty of doing things tainted or -marked with fraud, they are liable. Fraud may be of two kinds, -omission and commission. If a director knew that his fellow directors -were doing fraudulent things, and he kept away from directors' -meetings because he did not wish to participate in their wrongdoing, -or dared not go and try to stop them, or kept silent when he should -have exposed them, he must suffer in the end as one of the number -though entirely innocent of actual participation in the fraud. Many a -director knowing or suspecting with good reason that his fellow -directors were running the corporation in an illegal manner, has -quietly sold out leaving the stockholders to find out afterwards and -from some other source about the wrongdoing of their agents. In all -such cases of omission of duty a director is held responsible for the -wrongs of his associates. - -Recently a court has declared that a director who desires to escape -further responsibility by resigning his position must make sure that -his resignation reaches the board. If therefore he should send it to -the secretary, who failed to deliver it to the board, his resignation -would not be effective and he would still be responsible like the -other directors for whatever the board might do. - -What acts are fraudulent are sometimes difficult to determine. -Different courts interpret the same act sometimes in different ways. -They do not differ so much on the application of the principle--for -all acts of fraud, whether of omission or commission, directors are -liable. - -There is another series of acts for which they are liable, those of -gross negligence. How gross must the act be? If it is so gross as to -amount to a fraud, they are liable; if not so gross, if no fraud is -found of any kind, nothing but negligence pure and simple, they are -not liable at all. Most courts though go further and declare that if -they are guilty of gross negligence, even though the smell or taint of -fraud is not perceptible, they are liable. What, then, is the nature -of the acts that constitute gross negligence? These cannot be easily -defined, they differ in each case; so each case stands by itself. This -is the conclusion of the highest court in the land and which is -followed by many others. The same case therefore may be regarded -differently by different tribunals. Thus some directors were tried not -long since for wrecking a national bank. The lower court decided that -all the directors were guilty of gross negligence, on appeal the -reviewing court decided that the president only was guilty of fraud -and acquitted the others. - - -DIVIDENDS. - -One of the most cheerful things a corporation can do is to declare a -dividend, especially if it be a large one. Until a dividend is -declared the profits of a corporation are simply its assets, do not -belong to the stockholders, and should it become insolvent must be -used to pay creditors. But if a dividend has been declared and the -corporation afterwards becomes insolvent before paying it, the -stockholders may insist on its payment to them instead of paying it to -the creditors. - -Dividends must be paid from net profits. They can never be taken from -the capital, for this would impair it and, if continued, result in the -insolvency of the corporation. The laws everywhere forbid this, and, -if violated, the directors are usually penalized. It is not an -infrequent thing to declare a dividend that has not been earned in -order to keep up the value of the stock, and enable the directors and -their friends to sell out before the true condition of things has -become public. Such action is a palpable fraud which the law -recognizes and for which the guilty ones must answer. - -Nor can dividends be declared out of borrowed money, for this is no -profit, though money may be temporarily borrowed for this purpose. A -profit may have been actually made, which may not have been reduced to -money, that will justify a corporation in borrowing to pay a dividend, -assured that the loan will soon be repaid. But the rule or practice is -hedged about with limitations. Thus the premiums received by an -insurance company and interest on its capital stock constitute the -fund from which dividends are paid. Unearned premiums that have been -paid do not form a part of that fund, for, while the risk is still -running, the company may be obliged to pay them out in settling -losses. - -The profits of coal and other mining corporations may be divided -without making any deduction for decrease in the value of the mine -from extracting minerals. The same principle applies to all -corporations organized to operate wasting property like a mine or -patent, though in thus dividing all its net profits and accumulating -no surplus the value of the property is lessened. Except such cases, -before a corporation can lawfully set apart its profit as a dividend, -a sufficient sum must be set aside to represent the wear and tear for -the purpose of creating a fund to renew and improve the property of -the corporation. - -Dividends illegally declared and paid, not based on profits may be -recovered either by the corporation or by its representative for the -benefit of creditors. The fact, says Clark, that the directors acted -in good faith under a misconception of the amount of profits possessed -by the company or that were available for that purpose is immaterial. -And if the capital stock of a company has been wrongfully paid away by -the directors as dividends, it may be recovered by the creditors from -anyone who is not an innocent receiver. - -Whether a dividend shall be declared, and also the amount, are -questions lying largely within the discretion of the directors. A -company may earn a large net profit, yet the directors may think it -should be used for improvements or kept for a future contingency in -business, perhaps a time of business depression. Courts will not -interfere in such cases. Corporations are sometimes organized with the -well understood intention that the earnings shall be kept until a -large surplus has been accumulated. On the other hand directors are -not permitted to abuse their power; they must act in good faith. They -cannot withhold dividends in order to depress the value of the -property and buy its stock at a lower price. - -Dividends must be distributed among the stockholders without unjust -discrimination. "The dividends," said a court, "must be general on all -the stock so that each stockholder will receive his proportionate -share. The directors have no right to declare a dividend on any other -principle. They cannot exclude any portion of the stockholders from an -equal participation of the profits of the company." A stockholder -cannot be deprived of his dividend because he purchased his stock a -very short time before the action of the directors in declaring a -dividend. On one occasion a person held bonds convertible into stock. -Shortly after the conversion a dividend was declared. He was as much -entitled to his dividend as any other stockholder. - -To whom should the dividend be paid? To the person whose name appears -as owner on the books of the company. But if a company has notice of a -transfer of stock, a dividend subsequently declared should be paid to -the purchaser even though the transfer was not registered. In pledging -stock it is a common practice to declare that the pledgee shall be -entitled to the dividends that are declared. If nothing is said, and -the stock has been transferred on the books of the company, the -pledgee is entitled to the dividends following the general rule above -mentioned. - -A dividend may be payable in cash or property or a stock dividend may -be made. Such a dividend, if the stock is issued only to the extent of -the surplus profits, is not a violation of the prohibition against -reducing or withdrawing the capital stock by distribution among the -stockholders. - -During recent years some important questions have arisen about -dividends or income on stock given by will to the legatees or friends -of the testator. Dividends that are declared after a grant or bequest, -though earned before, go to the legatee as income. This is not the -rule everywhere. In some states the surplus profits accumulated during -the testator's life, though not divided until after his death, belong -to the estate, while the dividends or income earned and declared after -his death are paid to the legatee or beneficiary mentioned in the -will. Again, a somewhat different rule applies to stock dividends. In -some states these are regarded as an increase of capital and must be -kept as a part of the estate; in other states such stock is regarded -simply as another form of income and goes to the legatee like any -other income flowing from the investment. The highest federal court -has declared that when a distribution of earnings is made by a -corporation among its stockholders, the question whether such -distribution is an apportionment of additional stock representing -capital, or a division of profits and income, depends upon the -substance and intent of the action of the corporation, as manifested -by its vote or resolution; and ordinarily a dividend declared in stock -is to be deemed capital, and a dividend in money is to be deemed -income of each share. - -A will bequeathed stock in a corporation in trust to pay the dividends -as they accrued to a daughter of the testator during her lifetime. -Stock dividends were declared by the corporation from time to time and -after the death of the testator, and these accumulated earnings were -invested by the company in permanent works. After the testator's death -the corporation was authorized by statute to increase its capital -stock. The dividends were held to be accretions to the capital, and -the income only was payable to the daughter for life. - - -WRONGS. - -Passing from the action of directors in declaring dividends, the -wrongs done by corporations may be stated. As it is an impersonal, -artificial thing, a corporation cannot possibly commit a wrong or tort -like a natural person. For many years this conception of a -corporation, that it could not commit many of the well-known wrongs, -could not slander a person for example, led to perplexing -consequences. Finally the principle was established that through its -agents or servants a corporation could do wrong quite like an -individual. Thus a corporation may be guilty of malice, and may be -punished for slander or libel, for a malicious prosecution, false -representation, for trespass should its agents unlawfully enter on the -land of another, for maintaining a nuisance and the like. A national -bank is forbidden to certify the check of a depositor unless he has -the amount of money stated in the check in the bank. And if this is -done the certifying official and all others who participated with him -in disregarding the law are made criminally liable, and on several -occasions the law has been enforced. - -Again, a corporation is liable for the negligence of its servants in -performing their duties, and are constantly sued for their failures. A -railroad company is sued for injuries to its passengers caused by the -improper running of its trains; for its failure to carry and deliver -freight in accordance with its obligations or agreements. Street -railways are constantly sued by passengers who are injured through the -negligence of its officials. - -By statutes corporations are required to do many things and, if they -fail, are liable for the consequences. These duties may be divided -into two classes, those toward the public and those that affect their -stockholders. Their public duties may again be divided into those that -are imposed on them by statute, and a still larger number by the -common law. As we have seen, stockholders confide necessarily the -management of their corporation to directors, who in most cases must -necessarily have a largely discretionary power, and who, in turn, must -appoint other agents to execute the details of the corporate business. -These not infrequently fail through incompetence or neglect to perform -their duties properly, and consequently corporations are subjected to -lawsuits in which redress is sought by the injured parties. Some of -these wrongs for which they are liable to the public have been -mentioned, it would require too much space to mention all. - -The injuries done to stockholders by their directors remain for -consideration. Unless directors are restricted by action of the -stockholders at a stockholders' meeting, they have the authority -prescribed by charter and statute; outside these, their authority is -largely discretionary, and must be so. If, therefore, stockholders are -dissatisfied with their directors, as they often are, their remedy is -to elect others at the end of their term of service. If at the time of -choosing them, the annual meeting, none are chosen, the directors hold -over until they are again elected, or others are chosen in their -places. After they have been chosen, no stockholder can interfere in -any way with their discretionary authority unless he has a clear case -calling for judicial action. "Until a mistake," says Morawetz, "on the -part of the directors, individual stockholders have no right to appeal -to the courts to define the line of policy to be pursued by the -company. The courts therefore are quite unanimous in sustaining the -action of directors so long as they act within the discretionary -authority given them." - -Occasions happen when the removal of directors is essential to the -welfare of a corporation. Suppose they are pursuing a course clearly -ruinous to the company? In such a case the court will grant relief on -the request of the stockholders whenever the corporation itself is -unable or unwilling to do so. Primarily the corporation should proceed -against the directors, for the wrong is a corporate one. In many cases -the corporation is so completely in their control that the -stockholders are unable to do anything through it. In such case they -must act in the name of, and in behalf of the company. And if they -succeed in establishing their case, the courts will order the removal -of the directors. - -Sometimes the courts, instead of going so far, will enjoin them from -doing wrongs that are feared. Suppose it is feared that directors will -declare a dividend that has not been earned, the courts on proper -proof would enjoin them from making it. Suppose it is feared they will -issue more stock and divide all the shares among themselves instead of -proportionately among all the stockholders as the law requires, in -order to get control of the company, a court would not hesitate to -restrain them. - -Lastly may be considered a stockholder's rights to inspect the books -of his company. This he may do at all proper times and for reasonable -purposes. And if the right is refused the courts will aid him in -making an inspection. What then is a proper purpose that justifies him -in making the request? He cannot do so to satisfy some freak, or to -annoy an official with whom he may be on bad terms. Nor can he do it -to obtain information to be used for stock-jobbing purposes. Suppose -he has reason for supposing that the books were falsified, that the -stockholders were not receiving correct accounts of the expenditures -and earnings of the company, a stockholder would certainly have a -right to make an examination, and could also employ an agent, -attorney, or expert accountant to do this for him, for his ignorance -of bookkeeping methods might debar him from making an efficient -examination were the right confined exclusively to himself. - - -=Curtesy.=--A husband acquires an interest or estate in land belonging -to his wife after her death. To be entitled to it, there must be a -legal marriage. Even though it be unlawful, if not set aside during -her life, his interest in her estate cannot be defeated by afterwards -declaring the marriage void. Curtesy does not extend to land nominally -held by her, or as trustee. The wife must have had a child who might -have inherited the estate. It is immaterial whether she acquired her -estate before or after the birth of the child. As soon therefore as a -child is born, his estate or interest begins and is perfected or -consummated by her death, and may be taken at any time afterward for -his debts. What may be the effect of a divorce is not well settled. In -some states even though he is an innocent party, he forfeits his -estate. This rule is founded on the idea that he is a voluntary party, -and therefore need not have one; in other states his interest -continues. As the husband's rights to such an estate have been -abolished in many states, we refrain from adding more principles. - - -=Deceit.=--A seller is not liable for deceit when the knowledge, or -way of obtaining it, is equally known by both parties. If one goes -into a store to buy a bushel of apples that he has seen by the door -and inquires the price and pays for them without making any inquiry -concerning their quality, he cannot recover his money if half of them -prove to be rotten unless the seller intentionally deceived him, for -he might have inquired whether they were all like those on top and of -good quality. But if the merchant should put fine ones on top in order -to deceive a purchaser, he could recover for his loss. This rule has a -wide application. Suppose a seller keeps his store dimly lighted -intentionally so that the inferior quality of his goods cannot be -discerned, and a person should thereby be deceived and injured, he -would have a good cause of action against the seller. Suppose a ship -was decayed in places, and these were intentionally so concealed that -they could not easily be seen by one who was examining with the -intention of purchasing, and he was thereby misled, the seller would -be liable for the loss to the purchaser. Of course, the prudent course -is to obtain a warranty, or better still, whenever practicable, buy of -one who has established a reputation for honest, fair dealing. - -Suppose a man purchases a piece of land, generally supposed to be an -ordinary farm, which contains, as he knows, a valuable coal mine, can -the seller after the public knowledge of the mine, recover the land or -a larger purchase price therefor? Has the purchaser deceived him? Did -the law require the purchaser to make known his superior knowledge -before purchasing? No, if it did, there would be no end to the -confusion to which such a rule would lead. It is within ordinary -experience that purchasers buy either knowing or supposing they will -reap advantages from their contracts of which the seller is ignorant. -There is no deception in this; but there is in withholding knowledge -from the buyer of the quality or condition of a thing that affects its -value, and which if known by him would probably prevent him from -purchasing. Suppose a horse is blind in one eye and the prudent horse -trader says nothing. Can the buyer recover? Ordinarily he could not, -for he ought to have looked, and if he did not know enough to look, -either he should have obtained a warranty, or have employed a -competent agent to purchase for him. Suppose the old trader, skilled -in his business, intentionally put his horse in the shadow so that the -defective eye could not be seen, then the seller would surely have -his remedy against him. If he put his horse there accidentally he -would not. - -Is a wink a deception for which the winker must answer in the law? A -hardened dealer once went near a large meeting of men with a wagon -load of bottles containing cold tea. The thirsty crowd soon came -around. "One dollar a piece," he announced with a wink. The wink was -effective and the bottles were quickly sold. They were filled with -cold tea, and the buyers sued for the deceit that had been practiced -on them. They failed, the court said that a wink was not enough. -Another court might have decided otherwise. - - -=Deeds.=--In selling and buying land several deeds are in use. The -forms differ considerably in the different states. The most important -of them is called a warranty deed, in which the seller not only -conveys the title, but warrants or agrees to defend it against all -attacks. Suppose A sells a piece of land by warranty deed to B, who -makes the unwelcome discovery that a mortgage is existing thereon. He -notifies A and asks him to clear the title. Suppose the mortgage has -been paid, but the lender of the money, the mortgagee, forgot to give -the proper deed to show that he had received payment. And suppose he -was an ugly fellow who would not give the proper release. B could -compel him to do so, and the expense must be borne by A because his -deed of warranty required him to give a clear title. - -In such a deed the grantor or seller agrees or covenants to do usually -four or more specific things: first, he asserts that he has a right to -convey the land at the time of the sale. Of course, if he has not, the -agreement or covenant is at once broken and the buyer can proceed -against him to make the title good, or to recover damages if he cannot -retain the premises. The second covenant or agreement is to the effect -that the seller has both the quantity and quality of land mentioned in -the deed. The third covenant is that there are no encumbrances on the -land, that is, no mortgages, no rights of others to pass over it, or -to take earth, water or other things from the land. The fourth -covenant is for the quiet enjoyment of the land, which is the most -general form of warranty. There may be other covenants, often there -are, while the four mentioned may be, and often are, modified. - -Does such a warranty bind other persons than the warrantor, in other -words are his heirs and persons to whom he may devise his lands also -indefinitely bound by his warranty? The statutes in some states fix -his liability. Where none exist the law limits the liability of -parties to the amount of assets or property they have received from -the warrantor; if they have received nothing they are not liable for -anything. - -A covenant to protect the buyer from encumbrances, claims, etc., does -not always relieve him from the expense of a lawsuit. Suppose A claims -a right of way over B's land and insists on using it. B brings his -action of trespass against him and wins. He cannot sue his grantor or -seller to recover the expense of the suit, for the latter would reply, -"You have won your case which is proof that the title is good as -warranted, and therefore you have no claim against me." If, on the -other hand, A had won his case B would then have a good cause of -action against his covenantor. - -Another kind of deed used in selling land is called an indenture. This -is signed by all the parties, and copies are usually made and -delivered to all of them. This deed also contains warrants or -covenants like the one first described. - -Another kind of deed is called a release or quit-claim. By this the -grantor or party giving it conveys whatever interest he may have in -the land. It is the deed always given by a mortgagee on the payment or -discharge of his mortgage. It contains no warrants to do anything and -therefore differs from a deed of warranty. Sometimes a person conveys -a piece of land knowing that the title is defective which the -purchaser, notwithstanding the defect, is willing to buy. The seller -may safely give a quit-claim deed for he thereby sells only whatever -interest he may have. - -All the deeds above mentioned except an indenture, are signed only by -the selling or granting party. They become effective by delivery. They -are often called poll deeds. - -Every grantor must append to his name a seal. Once a seal was of the -utmost importance in the days of ignorance when persons knew not how -to write and each person had a seal of his own. As distinctive seals -have long since disappeared, seals have less significance than -formerly, nevertheless many legal rules are founded on the distinction -between sealed and unsealed instruments. Thus two written contracts -may be exact duplicates except that one of them may have no seal. The -law in most states regards the unsealed one as a mere oral or -unwritten contract, to which are applied the same rules of evidence. -The use of L.S., enclosed in brackets, thus [L.S.] is just as -effective as a seal of wax or a wafer. In many states a corporation -need not use its corporate seal, any other may be substituted. The -federal rule especially requires the use of the corporate seal and -that it be affixed by someone who was properly authorized to do this. - -By statute the names of two witnesses are required, and when omitted -the deed is not only defective, but in some states at least is void. A -witness need not write his name in the grantor's presence, if asked to -sign in the proper place as a witness this will suffice. - -A lease of land is also a deed differing from those mentioned in -conveying the use of land for a fixed period and on varying terms. - -A deed should be completed before delivering it, the same rule applies -to most legal writings. Unimportant alterations may be made, and if -any are made, the question may prove difficult, are they important or -not. Of course if both parties agree to them, the validity of the deed -is not impaired. Whenever they do appear, in some states the law -presumes they were made before delivering the deed, but this is not -the rule everywhere. - -Who can make or execute a deed? A minor cannot make a legal deed, and -if he attempts to do so he can avoid or set it aside after he becomes -of age whenever he acts with reasonable promptitude. If he does not -thus act, his delay will be regarded as a ratifying of his previous -action. What action will have this effect is a fact to be proved -whenever the controversy arises. - -Usually a deed need not be read to the grantee, nor can he avoid it -because he did not know the contents, except when fraud has been -practised on him. To a blind or ignorant man a different rule applies. -The deed should be read to him, and if this is not done, or if it is -wrongly read to him, he can have it set aside in a proper legal -proceeding. - -Delivery is essential; to do this two things are required. The -grantor must give up the deed and the grantee must actually accept it, -consequently the delivery of a deed after the grantor's death would -not be valid. There must be an actual delivery by him, and though a -deed may be completed in every other respect, it is not an effective -deed. A deed therefore stolen from one's drawer and delivered to the -grantee would not be valid, however innocent the grantee might be in -receiving it. Many difficulties have arisen in applying this rule. -When the question comes before a court, it seeks after the intention -of the parties, and is guided by it when ascertained. If therefore a -deed were lying on a table and the grantor should say to the grantee, -take it, and he did so, the delivery would be complete; but if he -should get it in a surreptitious way there would be no legal delivery. -Suppose a deed were mailed to the grantee, or handed to another person -to deliver to the grantee, this would be a good delivery. - -As soon as the deed has been delivered, it should be taken to the -recorder's office to be recorded. Every state has offices in the towns -or counties for keeping a perfect copy of all deeds relating to the -transfer of the lands within the limits of the town or county. The -object of this is to protect purchasers, for, if this were not done, -the owner of land might sell it to a purchaser a second time who knew -nothing of the previous sale, and then someone would be the loser. To -guard against such frauds the system of registration was established -at an early day in American history. A purchaser therefore should take -his deed at once to the proper recording office for record, and this -is regarded as notice to the world from the time of delivering the -deed to the recorder, who makes a note thereon of the day and hour it -was left with him. Suppose that some creditor of the grantor, not -knowing of the sale, should attach the land as the property of the -grantor to secure a debt due to him, could he hold it as against the -purchaser? Ordinarily the purchaser could still retain the land, and -the same rule would apply between him and a second purchaser, though -buying in good faith supposing the grantor was the real owner. In some -states a statute protects the purchaser by giving him a fixed period -of two or three months or more to record his deed. The safe rule is to -leave the deed with the recorder as soon as possible after receiving -it. - -It is a general practice to do another thing with deeds, to make or -take an acknowledgment of them, and in some states this must be done -before they can be recorded. This consists on the part of the grantor -going before a proper officer, often a notary public, justice of the -peace, clerk of a court of record, commissioner of deeds, and making -oath that he has duly executed the above deed. This oath appears in -the form of a certificate at the bottom of the deed or appended -thereto and is signed by the officer, who also attaches his official -seal. When a deed has thus been acknowledged it can be used in a legal -proceeding as evidence without requiring further proof of its -execution. But if it had not been acknowledged, then a court would -require some proof that the deed had been made and delivered before -accepting it as proof of the fact. - -When a married woman executes a deed the officer who took the -acknowledgment of the deed must make an examination, apart from her -husband, to ascertain whether or no her act was voluntary, and he must -also record the fact. The acknowledgment should be made after the -examination. A defective acknowledgment by a married woman is -worthless, nor will any court compel her to make another one. Should -she make another deed, however, with a proper acknowledgment this -would be legal. - -The officials who take acknowledgments possess different authority, -some can take them only of land situated in their respective states; -others have authority to take acknowledgments of deeds of land in -every state. In all the states are commissioners of deeds, so called, -who are authorized to act outside their own state. Some persons who -have an important conveyancing business have qualified themselves to -thus act as commissioners for many states, and perform a highly useful -service. - -If a mistake has been made in a deed can it be corrected? The general -rule is it can be amended in all cases of fraud, accident, or mistake. -How can this be done? If the grantor is unwilling to do right, the -purchaser can by a proper application to a court, or court of equity, -ask for the correction of the deed or such other relief as justice -requires. Suppose the grantor has declared in his deed that the land -contains a hundred acres and a survey finds only fifty. This would be -a palpable fraud and a court would, if requested, order the -reconveyance of the land and return of the money. Suppose the deed -covered no land at all belonging to the grantor, this would be a still -greater fraud. Suppose the deed said one hundred acres more or less, -and a survey found only fifty acres. The purchaser bought supposing -that there was no such deficit, but perhaps a small one, what would a -court do? Doubtless it would hold that the grantor tried to deceive -the other party and would grant relief. - -The land sold must be bounded or described. As land is increasing -everywhere in value more pains is taken in describing it, than -formerly. Large tracts have been surveyed by the government and are -indicated as sections, quarter sections, yet even these boundaries are -sometimes imperfect, caused by incorrect surveys, whereby lands -overlap, or otherwise have defective boundaries. - -One of the well-known rules is, monuments control corners and -distances. This is founded on much experience, for this shows that -courses differ from variations in the compass, changes in the surface, -etc. Though monuments may be moved intentionally or by natural causes, -they can be more trusted in the long run of things. - -The location of a monument is a question of fact. It is sometimes said -that natural monuments possess higher value than artificial ones, this -depends on the character of the artificial one. A large stone set in a -secure place surely is a better boundary than a wayward stream whose -course is changed by every freshet. In marking the public lands of the -western territories by statute monuments must designate the corners of -the tract. But when these are lost then corners and distances become -the guide. Oral evidence may be admitted to establish the location of -monuments, and even hearsay evidence may be used for the purpose. - -In a city lot courses and distances play a larger part in fixing the -boundaries, and are more carefully defined. Often the boundary is to -the center of a dividing wall. - -The boundary of land by a non-navigable stream is to the center; and -if one owns on both sides of such a stream he is the owner also of the -bed. But if land is bounded by the bank or shore of a stream, or by -other words of clearly evident exclusion, the stream is excluded. The -rule is different that applies to a tidal navigable stream. In some -states the boundary is high-water mark; in other states low-water. In -both cases the riparian owner, so-called, may erect a wharf extending -from his land subject to public control. The boundary of a natural -pond or lake, either in its natural state or raised artificially, is -low-water mark. Nor is the law changed by the conversion of a fresh -water pond into a salt pond by the hand of man. The boundary to an -artificial pond is through the center. - -The title to the bed of all lakes, ponds, and navigable rivers to the -ordinary high-water mark is vested in the states. Thus the people who -live around them may enjoy the waters the same as others enjoy tidal -waters. Nor is the state title affected by any manipulation of the -land above the surface of the water. - -The same rules of law apply to land situated along public highways. If -a deed should bound the land "by or along a highway," it would include -the land to the center; only words of clearly intending exclusion have -a different effect. If a deed should say "by the side" of a highway, -it might be excluded and it might not, the courts do not agree. All -agree that the intention of the parties should govern, but differ as -to intention expressed in the words they have used. The law is full of -such difficulties. If a highway is abandoned, the adjoining owners can -extend their lines to the center, unless one of them can prove that he -is entitled to more than one half. - -In investigating the title to real estate it is the duty of an -attorney employed for that purpose, says Justice Trenchard, "to make a -painstaking examination of the records and to report all facts -relating to the title. He is, therefore, liable for any injury that -may result to his client from negligence in the performance of his -duties--that is, from a failure to exercise ordinary care and skill in -discovering in the records and reporting all the deeds, mortgages, -judgments, etc., that affect the title in respect to which he is -employed." - - -=Divisional Tree.=--When the base of a tree is wholly on the land of -one owner the whole tree belongs to him. An adjoining owner, however, -may cut off at the divisional line such branches as over-hang his land -without notice and without reference to the length of time they have -been growing. To do this he cannot go on the land of his neighbor, but -must stay on his own land. A different rule applies to a tree that -stands on a divisional line and both owners have an interest therein. - - -=Dower.=--Dower is the interest that a wife has in her husband's land -after his death, and consists, unless modified by statute, of the use -of one third during her life. While both live her interest is so -secured to her by law that he cannot sell and convey any of his land -unless she unites with him in signing a proper deed of conveyance. In -most states this interest or dower is paramount to the claims of her -husband's creditors. But if there is any lien on the land at the time -of his death, like a mortgage, she cannot claim a preference or -priority over the mortgagee. - -She can claim her dower in any land belonging to her husband which her -children, if she had any, could have inherited as the heirs of their -father. When her dower is in mortgaged land, she cannot get possession -until the mortgage has been paid. Again, where land, wherein she has -a dower interest, must be sold, her right to the proceeds follows the -sale. If her husband was not in possession of the land claimed by him -before and after marriage, her dower will not become effective until -gaining possession. If he were only the nominal and not the real -possessor, her dower will not attach to the land, nor if he were in -possession as trustee, the real ownership belonging to another. - -A legal marriage is necessary to sustain a dower estate. Whenever a -marriage can be set aside for some illegality, and is not, it will -sustain her dower on his death. So, too, her dower may be lost or -barred by a legal separation; if she should re-marry, or the divorce -is set aside, her dower would revive. Her dower may also be lost -should her husband legally part with his estate, or by any legal -proceeding it should be taken away from him; thus, should another -claim it and prove that he had the better title. In other words she -loses her dower whenever her husband has no estate from which her -dower can be carved out. It is true that an adverse claimant cannot -give any title to her husband's land that would bar her right thereto. -The reason for this rule is that, like a minor, her rights cannot be -acquired against one who is unable by reason of age or other infirmity -to protect himself. - -The wife is entitled to have dower assigned to her immediately after -her husband's death. Until this is done, she has the right of common -law for the period of forty days, called quarantine, to reside in her -husband's house, provided she does not marry during that time. - -Dower may be assigned to her in two ways. One way is by direction of -the court, which ascertains by proper evidence the extent, location -and value of the husband's lands, and then directs the sheriff to -carry out its order in assigning to her a specific portion for her use -during life. The other way is by agreement. In some states money is -assigned to her instead of land as dower. - -Dower may be barred by agreement made before marriage. These -arrangements, marriage settlements, are becoming more frequent with -the increase of wealth and complexities respecting the holding of -property. Sometimes a testator provides for his widow in lieu of -dower. In such a case she may accept the gift, or reject it and claim -her dower rights. Suppose a testator should own a large amount of -land, and in his will should give her only a small amount of money in -lieu of dower. If eager to get the most possible, she would reject the -gift of money and claim her dower rights. On the other hand, suppose -he had but very little or no real estate, then she doubtless would -accept the money gift, unless she could claim a still larger sum by -virtue of some statute made to fit such cases. - -Dower does not exist in crops or trees severed from the land, but does -exist in mines and quarries belonging to the husband which were opened -and worked during his life. If lands have been exchanged by the -husband, she can elect in which she shall take her dower, but not in -both. There can be no dower in a mere personal privilege, or in a -revocable license pertaining to land. The widow of a partner is -ordinarily entitled to dower in so much of the partnership land as is -left after the payment of the firm's debts and the adjustment of -matters between the partners. But if an agreement among them that the -land shall be considered as personal property for all purposes, then -no dower therein can be claimed by the widow of any partner. - -A wife can release her inchoate dower or future expectation of -receiving it by joining in a conveyance with her husband for that -purpose. In order to make the election binding, it must be made with -full knowledge on the widow's part of her husband's estate, and the -relative value of her dower interest. The election is personal, and -cannot be exercised by her representatives after her death, nor by -creditors; and if insane, this cannot be done by any committee or -guardian acting under the authority of a court. - -An absolute divorce, even though for the husband's fault, divests the -wife of dower, unless her right is saved by statute. Quite frequently, -the statute provides that there shall be no dower in case of divorce -for the wife's fault. Occasionally it is provided by statute that -divorce for the husband's fault shall not bar dower; and sometimes a -statute requires dower to be assigned immediately upon divorce without -awaiting the husband's death. It may be added that the principles of -the common law relating to dower have been largely modified by statute -in all the states. - - -=Drunkenness.=--The courts are reluctant to recognize intoxication as -an excuse either for committing a crime or for repudiating a contract, -but if from long continued intemperate habits a man has become -actually insane or incompetent, his actual mental condition will be -recognized whatever may have produced it. - -Again, in making a contract the other party could hardly deal with a -man badly intoxicated without knowing his condition, consequently the -element of fraud appears, and the contract may be declared invalid -either for lack of contracting capacity on the part of the drunken -man, or for fraud on the part of the other in taking advantage of his -condition. His fraud would be still greater if he had designedly -caused the drunkenness of the other. Either objection, however, -renders the contract voidable rather than void, and should an -intoxicated party, after he became sober ratify his contract, or fail -to repudiate it and restore the consideration, if any, within a -reasonable time, he would become bound. - -The courts are still more reluctant to admit intoxication as an excuse -for criminal acts. The courts hold that one who voluntarily deprives -himself of self-control must have intended the consequences, therefore -it is everywhere held that one who voluntarily becomes intoxicated, -although he did so with no purpose to commit a crime when intoxicated, -cannot claim immunity from criminal responsibility, or even a -mitigation of the penalty, though having no capacity to distinguish -between right and wrong. And yet, like so many legal rules, there are -some marked exceptions to this one. Thus, since burglary is the -entering of a house with the intent to commit a felony therein, one -who blunders into a strange house because he is too drunk to know -where he is or what he is doing has not committed the crime of -burglary. So one who carried off the property of another through -drunken ignorance does not commit larceny, as there is no intent in -such a case to convert the property to the taker's own use. Another -application has been made in cases of assault with intent to kill a -person. - -Again, says Peck, "if one is visibly intoxicated, it is the duty of -those who come in contact with him to take his condition into account, -and their use of due care will be judged in view of that fact. Even if -the drunken person and the other are both negligent, the sober party -may be liable under the doctrine of the last clear chance, if he fails -to exercise toward the drunken man the degree of care which is -evidently required to avoid injuring him. Especially is a common -carrier, in dealing with a passenger who is on its car in an -intoxicated condition, bound to take his helpless condition into -account in removing him from the car or otherwise handling him, and -not put him in a place of manifest danger to one in his condition." - -It has also been held that the intoxication of one who uttered a -slander may be admissible in mitigation of the damages, as utterances -of a drunken man could not seriously impair the reputation of any one. - - -=Equitable Remedies.=--Elsewhere we have told how courts of law differ -from courts of equity. In some states no separate courts exist, and -wherever legal proceedings are established by a code or system of -statute law, the form of complaint addressed to a court is quite the -same in an equity case as in any other. But in states where code -practice has not been established, the mode of setting forth one's -grievance or wrong is by a bill or petition, ending with a prayer for -relief. We will now briefly state some of the things for which relief -in equity may be sought. - -One of the most common things is to compel persons who refuse to -perform their contracts to execute them. Suppose one has agreed in -writing properly signed to sell his farm to another, but is unwilling -to give him a deed. It may be that he can get more for his farm, or he -has made the discovery since selling it that it is worth much more, is -underlaid with coal or oil, or that a railway is soon to be built -near it that will enhance its value. If he went to a law court, all -that it could do would be to compel the seller to give the purchaser -such damages as he could prove he had sustained from the seller's -failure to execute his agreement. But a court of equity can go further -and compel the seller to give the purchaser a proper deed, the kind of -deed mentioned in the agreement; or, if none was specified, the kind -of deed usually given in such cases. - -This remedy cannot be always sought whenever the seller fails to -execute his contracts. The important limitation is, when the law has -an adequate remedy, and the injured person has no need of resorting to -a court of equity. All the ordinary agricultural and manufactured -products fall within this class, cotton, cattle, lumber, fruits, stock -in trade and the like. But if a chattel has a sentimental value to the -purchaser, a court of equity will decree that it must be delivered to -him, because in such a case the damages would obviously be inadequate. -The same rule applies to all articles of a unique or rare value that -cannot be duplicated; also to patented or copyrighted things that -cannot be procured in the open market. - -Suppose one has purchased the stock of a bank or railroad company, -which the seller refuses to deliver, has the buyer a legal remedy for -damages, or an equitable remedy to compel the seller to deliver the -stock, or has he the choice of remedies? The courts have divided on -this question. The better rule is, if the stock can be readily bought -in the open market, the buyer has only a law remedy to recover damages -from the seller's failure to execute his contract; if the stock cannot -be thus purchased, a money damage is not an adequate remedy, the -purchaser wants the stock and he can, through a court of equity, -compel the seller to deliver it to him. As government bonds can always -be bought in the open market, a court of equity will not decree the -specific execution of a contract for the delivery of the actual bonds -purchased. - -If A has agreed to erect a building for B on his land and fails to do -it, money damages are usually an adequate remedy, but if B cannot find -any one else to do the work as well, or in as satisfactory manner, -then a court of equity would compel A to fulfil his agreement. -Likewise if a landlord has agreed to repair his tenant's premises and -neglects, the legal remedy is usually more satisfactory than a -specific execution of the agreement, because work done under -compulsion is not likely to be as well done as that done voluntarily. - -A contract to render personal services will not be enforced against a -person who has agreed to perform them, for several reasons, one is -that another person can be employed, another is that the thirteenth -amendment to the federal constitution, forbidding involuntary -servitude, cuts off the equitable remedy in such cases; of course the -legal remedy for damages is still effective. A contract to give a -mortgage to secure a loan of money may be enforced by the creditor, -but a contract to lend money cannot be enforced by either party, -because there is usually an open market for the lending and borrowing -of money. Likewise a contract to form a partnership cannot be -enforced, for, if it were, the unwilling partner could dissolve it and -thus nullify the action of the court. - -Where one sells out his business, whether commercial or professional, -and agrees not to compete with the buyer, equity will compel the -seller to observe his contract unless it was illegal or an -unreasonable restraint on trade. This limitation is important. Thus A, -a dentist in Philadelphia, agreed with B, another dentist, not to -practice in the city for ten years a certain method of extracting -teeth. A continued to practice as before and B applied to a court of -equity to enjoin him. He failed for the reason that no one ought to -have a monopoly, so the court said, in any means or method for -relieving human suffering, like the process in dispute. If an employee -agrees not to divulge the trade secrets of his employer, equity will -enforce the agreement, for damages given in a law court would be -wholly inadequate. - -Another class of cases must be mentioned relating to injuries to land. -By the common law the only relief a landowner had against one who -injured it in any way was an action of waste to recover money damages. -A court of equity has power to issue a command to the person who -threatens or attempts to commit injury ordering and directing him to -desist from his purpose. This has been often used by the owners of -land against their tenants who attempted to do things that would -materially injure the property. This remedy is now often used to -secure the owner and occupier of land in its proper use against those -who attempt to commit a nuisance. While the occupier could recover -damages if he sought the aid of a law court, equity will order the -wrongdoer to abate the nuisance. Such a remedy is much more effective -than the legal one, because damages that may be recovered relate only -to a past offense, while the equitable one prevents it from happening -or from its continuance. - -Promises not to do some particular act on a piece of land are often -made in deeds conveying them; they are called covenants. Equity will -usually enforce these covenants, and will compel the wrongdoer to undo -what he has done provided that relief is sought promptly. Thus if a -purchaser agrees not to build nearer the street than a stated line, he -can be enjoined from disregarding it. A purchaser therefore who built -two houses three feet beyond the agreed line was compelled to remove -them. - -The remedy in such a case is an injunction. It may be temporary or -permanent. Quite often when one applies for an injunction, if the -injury threatened is immediate, the court will immediately enjoin the -party from proceeding and fix a time for a future hearing to decide -whether the injunction shall be dissolved or made permanent. The time -fixed for such a hearing is within the discretion of the court, and -depends on the nature of the case. Usually the time is quite short, -enough to enable the parties to collect the evidence relating to the -controversy. The hearing is conducted very much like any other trial, -witnesses appear, all the evidence is given, and is reviewed by -contending counsel, after which the judge announces his decision. Some -of the more noteworthy injunctions of recent days have been rendered -against labor unions or their members who, having struck for higher -wages, or other ends, have sought to picket the works of their -employers and thus prevent them from employing other workers to take -the places of the strikers. The unions contend that this is an -improper use of the judicial power, whether it is or not no one will -deny that it has been long exercised. - -In the early days of administering the patent law injunctions were -granted against infringers. Judges soon grew more cautious when they -learned that patents were sometimes erroneously granted, and that, on -acquiring a fuller knowledge of the controversy, there had been no -infringement. The modern practice therefore is, unless the proof is -very clear, to require a party who applies for an injunction to try -his case first and establish his patent and then, if it has been -infringed, an injunction will be issued. - - -=Factor.=--A factor receives and sells goods for a commission, is -usually entrusted with their possession, and sells them in his own -name. He has a special interest or property in them, and a lien -thereon for advances in money that he may make to the owners. No -formal mode of authorizing him to act is required, usually this is -done by word only, and his authorized acts may be ratified by his -principal. This authority is largely the outgrowth of usage. The -authority of a factor to fix the terms of selling may be by agreement -or by usage, like any other agent. Limitations fixed by the principal -are ordinarily binding on the factor, and, so far as they are -chargeable with notice of them, third persons also. Where goods are -confided to a factor without instructions, authority to exercise a -fair and reasonable discretion is implied. Unless restricted by his -principal, or by contrary usage, he may sell goods on a reasonable -term of credit. If he is restricted to cash sales only, or is not -protected by usage in selling on credit, he cannot do so. Secret -instructions would not affect the rights of a purchaser ignorant of -them and relying on customary authority. - -A factor is employed to sell goods, and not to barter or exchange -them, and if he should do this his principal could recover them. He -may insure the goods, but is not required to do so unless instructed -or is required by usage, which plays a large part in this matter and -must be observed except as qualified by instructions. - -He cannot compound or compromise a claim for the purchase price, or -discharge the debt on payment of a part only, or submit a disputed -claim for arbitration, or rescind a sale, or discharge a purchaser -from any part of his obligation, or extend the time of payment, or -make, accept or indorse negotiable paper contrary to instructions or -usage, or sell the goods thus entrusted to him for sale to himself. -See _Agency_. - - -=Fire Insurance.=--Insurance against loss by fire is now effected in -companies organized for that purpose. Two kinds exist, stock and -mutual. In mutual companies the persons insured act together to insure -each other. The members of some of the largest mutual companies are -manufacturing corporations. The more general mode of conducting them -is to require each member to pay a premium in advance for the amount -insured which, unless unusual losses occur, will be enough to pay all -the losses for the year. If it is not all needed, the balance is -returned to the parties who paid the premiums, or is credited to them -for the following year. If the losses exceed the premiums thus paid in -advance, then an assessment is made on each member to cover the -deficiency. Generally the premium paid is more than enough to cover -the losses, and a balance is returned or credited to the insured as -above mentioned. As mutual companies do not take such risks as stock -companies, the cost of insurance is less and therefore is carried in -preference to insurance in stock companies, whenever it can be -obtained. - -There is another way for paying for losses in mutual companies. -Instead of paying cash premiums in advance, the insured gives a bond -or note well secured that he will pay in cash whenever a call is made -on him to cover the losses that have been incurred at the end of the -year or other period. This method is in vogue in some sections, -because still less money is required to keep property insured. Of -course besides the money to pay losses another sum is required to pay -the expense of management. It will be seen that the mutual plan is -purely for protection against loss and no profit in the way of -dividends is forthcoming, for the companies have no capital. It is -true that some companies, instead of returning the unexpended premiums -for losses retain them or a part of them and by so doing accumulate a -surplus. Many companies, however, return all the contributions not -expended for management or losses and have no surplus, or only a very -small one. - -Stock insurance companies proceed on a different principle. They are -organized to make money, a capital is subscribed, the rates of -insurance or premiums are fixed and after paying the expense of -management and loss, the balance is paid to the stockholders in the -way of dividends. The business is one of unusual hazard, and only a -rich person, who can afford to lose his money, ought to invest in the -stock of such companies. Their profits and losses vary greatly from -year to year; and failures have been frequent. Nevertheless some -companies have a fine record, enough to tempt them to continue -notwithstanding their trying reverses. - -As the contract of insurance is for an indemnity, the insured must -have some interest in the property insured, otherwise the contract is -a mere wager, which the law condemns. Moreover the interest must -continue and exist at the time of the loss. Who, therefore, has an -insurable interest? A bailee, a carrier of goods, a consignee who has -authority to sell them, a factor, pledgee, warehouseman, an assignee -for the benefit of creditors, an executor or administrator, an -attachment creditor, but not a general creditor, a landlord, tenant, -mortgagee of real or personal property, a lienor, for example, the -holder of a mechanic's lien, a receiver, residuary legatee or devisee, -a trustee, vendees and vendors of real and personal property, the -owner of stock in a corporation, any agent who has the care and -management of his principal's property, besides many others. But a -fire insurance policy may be assigned as collateral security with the -company's consent, and continue valid though the assignee has no -interest in the property. This rule therefore is fundamental, and if -the interest of the insured in the property has been extinguished -after making his contract and prior to its loss by fire, he can get -nothing from the company. Likewise the property must have been in -existence at the time of making the contract, if it was not, the -policy is void. Many stories are told of insuring ships after learning -of their loss; such conduct is a palpable fraud. - -An insurance policy is a contract, of which the policy is evidence. A -standard policy has been prescribed in several states by statute: in -other states the parties are still free to make such terms as they -please. It is usual for companies to execute blank policies in due -form to be filled out and delivered by their agents. Such policies are -not valid until countersigned, unless the countersigning is waived. - -When does the policy become valid or binding on the insured? Says a -competent authority: "Where a policy has been duly executed in -compliance with an application on the part of the insured, so that the -minds of the parties have fully met as to the terms and conditions of -the contract, a manual delivery of the policy to the insured is not -essential to render it binding on the company. If the contract has -become binding by the issuance of the policy and the placing it in the -hands of an agent for delivery, then the fact that such delivery is -not actually made to the insured until after the loss has occurred, -will not defeat recovery by the insured." - -The premium usually must be paid at the time of issuing the policy, -unless a different agreement is made concerning it. Credit may be -given, and an agent generally has authority to do this. A valid -payment may also be made in other means than money; a check or note -may be given for it. - -An insurance policy may be assigned, though it usually contains a -clause that the consent of the insurer is needful. When the policy -contains this clause and the insurer without valid reason refuses to -consent to an assignment, "the assignee acquires the same right as -though consent had been given." - -Consent to an assignment may be given by the president of the company, -without formal vote by the directors. It may also be given by the -secretary or by any other agent duly authorized. - -When can a policy be canceled? Unless this right is reserved in the -contract, or given by statute, the insurer cannot cancel the contract -without the consent of the insured. It often is reserved, and if -exercised, this must be done before a loss occurs, and a cancellation -made afterwards, though without knowledge of it, is void. The motive -for making it is not important. If, as a condition of cancellation, -the unearned portion of the premium is to be returned, the failure to -return it renders the cancellation worthless. Nor is this effective -until notice has been given to the insured. - -A court of equity will reform a contract of insurance on the ground of -accident, fraud, and mistake. Oral evidence is admissible to prove the -fraud or mistake; it must, however, be clear before a court will grant -relief. If mistake is the ground for asking relief, the insured must -not have been guilty in causing it, and must act promptly after his -discovery. This rule does not prevent him from seeking relief when the -agent of the insurer has been negligent. Furthermore it may be granted -even after the happening of a loss. - -Should there be a conflict between the written and printed portions of -a policy, the written portion will be presumed to represent the intent -of the parties. If, therefore, the printed portion excludes certain -articles from the risk, and the written portion covers them, they are -included. Conditions also written or printed on the margin or back of -the policy are regarded as portions of it, and these too will control -the printed portions. Besides, the written application is usually -considered a part of the contract and the policy is construed or -interpreted in connection with it. This is especially so where the -proposals and conditions are attached to the policy. If the intent of -the policy is not clear from the language used, the surrounding -circumstances may be shown for the purpose of ascertaining the intent -of the parties. The known usage of trade may also be taken into -account in construing the language of a policy. - -The language of the policy should be so construed as to cover the -property within the intention of the parties, and support, if -possible, the contract of indemnity. Mere clerical errors or mistakes -in describing it may be corrected even after it has been destroyed. -The location is an essential element, and the policy will not be -stretched to cover property not within the description. If a building -is described this does not include separate structures used in -connection with it, nor fixtures constituting no part of the -structure. Unless expressly excepted, however, insurance covers those -things which have been so annexed as to become a part of the realty -but none others. The term store fixtures covers fittings, fixtures, -furniture used in the course of trade, whether they are part of the -realty or not. Likewise the term "stock" used in a mercantile business -includes everything usually kept for sale, in that business, but -nothing more; while household furniture includes all articles -necessary and convenient for housekeeping. With respect to future -additions these are covered by the policy unless it is so drawn as to -show a clear intent to exclude them. - -The risk usually begins with the date of the policy, unless it is -effected by a preliminary contract. In such a case the risk begins -from the date of the preliminary contract, and continues for the -period fixed in the policy, or, if none has been fixed, for a -reasonable time. - -A misrepresentation voids a policy generally. It must not only be -false in fact, but the insured must have known that it was false when -making it in a substantial and material respect. The misstatement of -an agent of the insured will have the same effect. Indeed, any fraud -of the insured in procuring the policy has the effect of voiding it if -the insurer chooses to do so. Of course, the wrongful facts or acts of -the insured possess a varied character. His conduct in concealing -facts that ought to have been made known to the insurer may have that -effect. Thus to conceal a fact of which the insured had knowledge, and -which, if known by the insurer the risk probably would not have been -taken, is a fraud rightly available to the insurer. - -The parties to an insurance contract may agree that the questions put -by the insurer and the answers given by the insured shall become a -warranty. This, as experience has shown, is a simpler way of effecting -a policy of insurance. When this is done a misrepresentation -constitutes a breach of warranty and the contract becomes void. - -The modern policy provides that it shall be void if the insured "now -has or shall hereafter make or procure any other contract of -insurance, whether valid or not, on property covered in whole or in -part by this policy." If the insured effects other insurance he must -not forget to obtain consent of the insurer, and should he forget his -good intention will not preserve his policy. Nor can the insured -protect himself by canceling the prior policy if he breaks the -condition. Nor does its expiration revive the subsequent policy. An -overstatement of existing insurance under an express warranty will -also violate the policy. While forgetfulness or good intention will -not save the insured in such cases, insurance obtained by a third -person without the knowledge of the insured on the same property will -not endanger his rights under his policy. - -If a fire occurs and a loss results, this may be total or partial. In -every case of loss fire must be the proximate cause of the loss. What -loss is covered by a policy has been the subject of frequent -controversy. Damage by water used to extinguish a fire is usually -covered; also damage to or loss of goods removed to prevent their -destruction from fire in the insured or another building. Likewise -the loss caused by blowing up a building to check a fire, likewise -damage from an explosion which is the direct result of a fire, "but an -explosion due to the ignition of a match or spark of an explosive -substance, no fire resulting, is not within the terms of an ordinary -fire policy." The standard policies contain a clause relieving the -insured from liability to pay for property stolen during the progress -of a fire, or during the removal of property necessitated by fire. - -An exception of liability from lightning, unless followed by fire, -excludes recovery unless there is loss from burning, but it is quite -common to insure against loss from lightning as well as fire. - -Unless there is a stipulation in the policy the insurer is not -relieved from liability by mere negligence or carelessness of the -insured or his servants though directly contributing to the loss; on -the other hand, the insured who does not take reasonable care to avoid -loss from his negligence or that of his servants may defeat recovery -under his policy. This rule is not easy of application, cases of -clearly proved negligence are numerous, also cases free from -negligence, a third class of a doubtful nature. The field of the law -is open in every direction to these. - -For a total loss the insurer is liable for the entire value of the -property to the limit covered by the insurance. Thus the loss of a -building is total though some of the walls remain standing, but not -when the remnant can be restored. In some states the statutes provide -that in case of total loss the insurer shall be liable for the full -amount of insurance, and shall not be allowed to show that the -property was of less value than the amount insured. - -When the loss is partial the insurer is liable only for the amount of -the loss, not exceeding the insurance. The policy may limit the amount -of recovery to the cost of restoring or replacing the property, and in -such cases this is often done instead of paying the loss in money. If -each of several classes or items is separately valued, thereby -separating the liability for them, the recovery for any one class or -item is limited to the damage to the same. - -Lastly, in fixing the loss the distinction between open and valued -policies must be explained. A fire policy is generally written in such -a way that the liability of the insurer depends on the amount of the -loss to be determined after the loss has occurred. When this is done, -the valuation of the property in the application for a policy or in -the policy, does not fix the liability of the insurer, even though the -loss be total. This is called an open policy. On the other hand the -loss may be fixed by a stipulation in the policy, and which binds the -insurer to pay the whole sum insured in case of total loss. This is -called a valued policy. A policy is regarded as an open one, unless it -appears to have been the intention of the parties on a fair and -reasonable construction of its terms, to value the loss and so fix by -contract the amount that may be recovered. - - -=Fixtures.=--A fixture is something annexed to land either temporarily -or permanently. Different rules apply to persons in different -relations. The law favors removal by a tenant presuming that he does -not put in things for the landlord's benefit, unless there is an -agreement to that effect between them. On the other hand a different -rule applies between the seller and purchaser of real estate. As -between them the law presumes that the seller intended to keep the -things affixed to the house, especially ranges and the like. On the -other hand a somewhat different rule applies between mortgagor and -mortgagee. The former is favored, but not so much as the tenant. -Suppose the mortgagor was a nurseryman, and the land was taken for the -debt by the mortgagee, would it include the trees and shrubs that had -been planted for sale? The courts have given an affirmative answer. - -The facts that are of special value in finding out whether a thing is -a fixture or not are: (1) the actual annexation of the article to the -realty; (2) the immediate object or purpose of the annexation; (3) the -adaptability for permanent or mere temporary use; (4) and whether the -article can be removed without material injury to the property to -which it is annexed. See _Lease_. - - -=Garage Keeper.=--The garage has been said to be the modern substitute -for the ancient livery stable. A garage man who receives the -automobile of another to keep or repair--a service for which the owner -is to pay a compensation--is a bailee for hire. While this relation of -bailor and bailee exists, the owner is not ordinarily responsible for -the negligence of the garageman or his servants in the care or -operation of the automobile. - -A public garage is not a nuisance. Even the storage of gasoline in -suitable tanks set down in the earth is not a nuisance. Yet the -business may become a nuisance when conducted in some localities, or -in an improper manner. The operation of a public garage may therefore -be enjoined in a purely residential section within a short distance of -large churches, a parochial school and houses. Likewise the odors, the -noise, and the fire hazard, which are occasioned by the construction -and management of a garage, create a situation which justifies public -regulation. - -A garage keeper is generally allowed a lien on an automobile for -storage and repairs. If no price has been fixed in advance, the garage -keeper is entitled to recover of the owner the reasonable value of the -services and materials furnished. When the automobile is brought to -the garage by a chauffeur, the garage keeper should assure himself of -the chauffeur's authority to order repairs, especially those of a -permanent nature. - -The garage keeper when storing a car for another for compensation must -exercise reasonable care and prudence. If negligent he is liable for -the damage. It is said that the liability of a garage keeper for hire -is not affected by reason of the knowledge of the owner as to the -place where the property is kept. Its acceptance by the garageman -imposes on him the duty of exercising due care for its safety and -protection. But he is not an insurer of the property; and therefore is -not liable for loss by fire unless he has been negligent. Generally, -in such a case the burden of proof is on the owner of the machine to -show that the fire was caused by the negligence of the garageman. -Sometimes one keeps a car for another for accommodation, receiving no -compensation therefor. One who thus serves another is liable only for -gross negligence. - -The garage keeper must protect the property from theft. If he permits -a machine to remain in an alley when it ought to have been inside his -garage, he is liable. In one case a motorcyclist left his machine with -a garage keeper to be kept over night, and also gave permission for -its inspection by any one whom he might send around. A person -appeared with a permit to inspect it who, under the permission, stole -it and rode away. The garage keeper was rightfully held not liable. - -If a garage keeper or his servant negligently runs a machine left in -his custody for storage or repairs, the garageman is liable for the -damage resulting to the owner. At the expiration of the bailment he -must deliver the machine to the owner or person authorized by him to -receive it, and is liable if neglecting or refusing. He is also liable -if delaying unreasonably to make repairs, or for making them -unskillfully. Lastly, if the car is driven by the garageman's servant -while the bailment continues, the bailee, and not the owner, is -responsible for any injury done to a third person by the servant's -negligence. Of course, if the driver was acting outside the scope of -his authority, and was using the car for personal purposes, neither -the garageman nor the owner would be responsible for whatever -happened. See _Automobile: Chauffeur_. - - -=Homestead.=--A legal homestead is the home or residence of a family -land owner, and includes a specific area varying in the several -states. By the more general rule the land must be connected in a -single piece, though in some states the pieces may be distinct. Though -divided by a highway this does not effect a separation, as the land -therein belongs to the owner subject to the public rights to pass and -repass and also use to keep the highway in repair. The peculiarity -about a homestead is, it is protected by law from seizure by the -owner's creditors. - -One of the most important questions relating to a homestead is, the -meaning of the head of a family. The term is not limited to a man -having a wife and children. It includes an unmarried man with whom -his widowed sister and children reside; or a man who supports his -mother; likewise an unmarried woman with whom the children of a -deceased sister are living. Nor need they live under the same roof, -the essential thing is the relation and dependence existing between -them. On the death of a husband owning a homestead the right survives -to the widow, and usually to the minor children. Some statutes give -her the absolute estate, others a life interest; in some states she -loses the homestead by a subsequent marriage. In most states the -rights of surviving children end on attaining their majority. In many -states the surviving husband is entitled to the homestead right, even -though there be no children. A husband does not lose his homestead -when his wife withdraws from the family under a decree of divorce. -Non-residents as a rule are not within the privilege of the homestead -laws. - -On the dissolution of a marriage by divorce, as the wife ceases to be -a member of the husband's family, she loses her rights to the -homestead. The decree of divorce may, in the dissolution of the -marriage, reserve to her the right, and if she is the owner of the -homestead she may continue to occupy it as one. The mere desertion of -husband or wife by the other spouse will not, in itself, destroy the -character of the homestead although an entire dissolution of the -family will have that effect. - -By the federal law every head of a family, or a person twenty-one -years old and a citizen, or intended citizen, of the United States, if -not the owner elsewhere in the United States of one hundred and sixty -acres of land and has not previously obtained a federal homestead, is -entitled to a quarter section or less of the public land. Three things -are necessary: (1) An affidavit showing that the applicant comes -under the law; (2) a formal application; (3) payment of the land -office charges. When these things are done, the certificate of entry -is delivered to the applicant and the entry is made. Then the entryman -must actually reside on and cultivate the land for three years, and at -the end of that period, he is entitled to a patent. The lands thus -acquired are not liable for any debts contracted prior to the issuing -of the patent. - -The head of a family can sell or mortgage his homestead, whether he is -solvent or not, nor can his creditors prevent its sale since they have -no rights therein. And if he sells his homestead and with the proceeds -buys another, the second is as fully protected from creditors as the -other. - -From liability for most debts a homesteader is exempt, but not for -all. Generally the homestead is not exempt from taxes, but not -everywhere from fines for public offenses or liability on official -bonds. Debts contracted prior to the acquisition of the homestead and -pre-existing liens in most states are enforceable against the -homestead. So are debts contracted in improving or preserving the -homestead. These include materials furnished, also the wages of -clerks, servants, laborers and mechanics. - - -=Husband and Wife.=--The law, while regarding marriage as a contract, -adds something more, for it cannot be terminated by the will or -consent of the parties; a contract on the other hand in most cases can -be. To constitute a marriage there must be an agreement or mutual -assent by the parties. This agreement must be made freely, seriously -and not as a joke. False representations of health, wealth, etc., do -not invalidate the agreement, yet these may be grave enough to have -that effect. Consent may be obtained by deceit or compulsion so gross -as to justify a court in declaring that the parties were never legally -married. A person may be too defective mentally to give an intelligent -assent. A subsequent mental weakening would be no ground for annulling -a marriage. An Illinois court recently remarked, it is a harsh rule -that would permit a married man whose wife later in life became insane -to put her away on account of her misfortune. If one were so -intoxicated that he did not act intelligently, he could avoid his -marriage. - -A male at common law can marry at fourteen, a female at twelve. By -statute a later date, twenty-one for males and eighteen for females -has been fixed in many states. The right to disaffirm a marriage on -the ground of non-age, unlike the parties to a contract, applies to -both parties. - -In this country marriage is regulated largely by the states, though a -movement has been started to make marriage and divorce a matter of -national regulation. - -As marriages are of higher character than other contracts relating to -the ordinary dealings of men, even those that are prohibited by law -are for reasons of public policy not always void. They are therefore -not void, simply because the formalities prescribed by statute in -obtaining the license and solemnizing the marriage have not been -observed, when the parties afterward live together like other married -people. - -A marriage ceremony is not void though performed by one outside his -jurisdiction, or not having a license obtained at the proper place. -Persons who improperly grant licenses and solemnize marriages may -themselves suffer legally, but their wrongful action cannot be -visited on others. The principle still prevails in most states that a -marriage which is good by the common law, though contrary to statutory -forms unless there is an express prohibition, is a valid marriage. In -a few states a common law marriage is invalid. - -A marriage that is valid by the law of the state where it was made, is -valid everywhere. Nevertheless, the courts have great difficulty in -applying the principle. Suppose that the resident of a state, for the -purpose of evading its marriage laws, should go into another state and -have the marriage solemnized, and then return, is the marriage valid -in that state? No, but to lessen the rigor of the rule, the courts -hold that both parties must have intended to evade the law, if, -therefore, one of them was innocent the marriage was valid. - -After marriage the husband's domicile becomes that of his wife, and -her refusal to follow him without good cause, would be in law a -desertion. It is said that a promise before marriage not to take her -away from her mother and friends will not justify her in refusing to -go with him. If, however, she had immediately after marriage, -determined to separate from him and to take legal steps to that end, -she could legally remain. - -A married woman by the common law is answerable personally for her -crimes as though she were unmarried, unless they were committed in her -husband's presence. When together the law presumes she acted from his -coercion, he therefore must be the sufferer, while she escapes. This -rule though does not apply to the gravest crimes; for these both are -liable. Like so many other legal rules the difficulty is in applying -it. How near to the husband must she be when committing a wrong to -render him liable and escape herself. In one of the cases a married -woman was properly indicted for unlawfully selling intoxicating -liquors. At the time of selling them she was alone in the room, though -she had sold them by her husband's order. - -As the law regards husband and wife as one person, many peculiar -things flow from this relation. Thus one cannot steal from the other; -but either is criminally liable for an assault committed on the other. -By statute in some states the right of either party to sue the other -for wrongs has been greatly extended; nor is the husband liable for -wrongs committed by his wife unless he participated in them. For -example, in some states he is not liable for slanderous words spoken -by her in his absence; in other states his liability continues. On the -other hand, a wife who can manage and control her separate estate may -in turn be liable for the wrongs of her husband while he is acting -with authority as her agent. - -A husband has a right of action for damages against any person who -alienates his wife's affections. Nor can he be defeated by showing -that he and his wife did not live happily together. Such facts though -may be used to prove that her society was worth less than it would -have been had they lived happily, in fact, by money valuation was not -worth three cents. A husband forfeits his right to sue others for -entertainment when his own misconduct justified and actually caused -the separation, otherwise his remedy is complete against all persons -whatsoever who have lent their countenance to any agreement for -breaking up his household. On the other hand, this is a one-sided rule -in some states; in others a wife has the same right to sue for the -alienation of her husband's affections as he has for the alienation of -hers. - -By statute great changes have been made in the way of permitting -married women to retain their property and manage it, and to do -business. Formerly, all the personal property of a married woman went -immediately by law to her husband, and he became responsible for her -debts. She still retained her real estate and the management of it. -Now, very generally, she also retains her personal property, also the -income, very much as if she were unmarried. She often appoints him as -her agent to manage her property, and when thus acting he is -responsible to others and to her like any other agent. He may contract -for erecting any building or improvement on her land, but should he -contract in his own name for such improvement she cannot be held -therefor, nor can any one who has done work or furnished materials put -a lien thereon for them. It may be added that his right to act as her -agent is never implied solely from the marital relation. - -A wife may act in a representative capacity as agent for her husband, -or for other persons, and may execute a power conferred on her by deed -or will. She may also be appointed to act as executor, administrator -or guardian, though under the common law theory her husband's consent -was needful to her acceptance of any of these undertakings. - -The common law relations of husband and wife have been greatly changed -by statute since about 1844. "It is now," says Peck, "the usual rule -of law throughout the United States, established in each state by its -own statutes that the wife retains title to the property owned by her -before marriage or acquired by her during the marriage, and the right -to manage, use or sell it, without the concurrence of her husband. -The right to contract, and to sue and be sued, naturally follows from -her ownership and control of her property; in most of the states these -rights are expressly conferred by statute; and in some they have been -held to result by necessary implication." - -The husband is generally relieved from liability for her debts or for -her torts, except for such debts as are for her support or that of the -family, or are within her express or implied agency to act for him. -The common law estate of dower and curtesy are retained in some of the -states, in the larger number they are materially modified by statute, -or wholly abolished and replaced by a right of succession to each -other's property as defined by statute. - -The distinctive duties resting on a husband are to provide a home, to -support his wife and children, to protect her and them from injury or -insult. Thus a husband has the same right to protect his wife, to -assert and maintain her rights, even to kill a person, if necessary in -her defense, that he would have in his own behalf. - -The duty of a husband to provide a home implies his right to select -and fix the marital abode. The wife must live with him, and a refusal -on her part to live in the home provided by him would constitute her a -deserter. But he must select a home in good faith and in reasonable -accordance with his means and their accustomed mode of life. - -It is his duty to maintain order and law in his household. He is -therefore liable to prosecution should his wife carry on the illegal -sale of liquor, or in other ways defy the law. - -A husband cannot chastise his wife, but he may use force to restrain -her from committing a violent criminal wrong. Says a competent author: -"That depends rather on the right of every one to use reasonable -efforts to prevent violence and crime than on any peculiar power of -the husband over the wife, and it would also justify like restraint of -the husband by the wife." - -It is the duty of the wife to assist in the maintenance of the family -by such reasonable labor as the necessities of the family and their -circumstances in life and financial position require; while the -husband has no right to require her to do more than to care for the -house and the family in the customary and proper manner. He cannot -compel her to engage in business, to work for wages, nor to work for -him in his business. The services of any kind which either may render -to the other, or for the family, are rendered in consideration of the -marriage relation, and of the mutual benefit received therefrom and -neither has any right of action against the other for them. - -It should be noted that the legislative revolution for the benefit of -married women has chiefly affected the property relations of husband -and wife, while their personal rights remain quite as before. Probably -no single rule of the common law was so bitterly resented and so -difficult to defend, as the vesting in the husband of the sole -guardianship of their children. By statute in many states both parents -are made guardian of them, and if they separate, the welfare of the -children is regarded as the decisive question in fixing their -guardianship, rather than the superior right of either parent. - -A husband and wife by the modern law may agree to live separately. The -arrangement in some states is effected through a trustee, in others -this may be done by the parties themselves. By this the parties may -agree on the disposition and division of their property when this can -be done freely and intelligently. A separation agreement made through -fear of her husband cannot be sustained. - -A wife who voluntarily enters into an agreement of separation covering -all property rights cannot, after her husband's death, have it set -aside and then claim her rights in his estate, except in some states -where community rights exist. On the other hand, her right to share in -her husband's estate is not lost though she lives apart from him by -agreement, unless this shows a clear intention to relinquish all -claims to his estate. - -The husband must support his wife. This is the law everywhere. While -they live together the law presumes that he has given her authority to -purchase necessaries on his credit, and therefore a tradesman can -recover who shows that they were thus living and that the things -furnished befitted their condition in life. When she is living apart -from her husband the presumption is the other way, and a tradesman -cannot recover without proof of the fact of her husband's authority to -let her have the goods. But when she is living apart from him for good -cause, and would starve if the things needful to sustain life did not -come from some source, she has an absolute right to pledge her -husband's credit for them. - -What are the things for which she may pledge her husband's credit? -Those required to sustain life and preserve decency, besides other -things to maintain her in her social condition. Wearing apparel, -furniture, jewelry, even legal expenses incurred in regaining her -conjugal rights have been included. - -Besides agreements to live separately, the law for several causes -permits absolute separation. These are prescribed by statute, and -vary greatly in the different states. Adultery is a cause recognized -in all of them, for which an absolute divorce can be granted. Cruelty -is another cause, almost as general, though more difficult to define. -Actual violence is not necessary to constitute cruelty, threats of -violence with an intention to do bodily harm will suffice. Again, the -cruelty must be unmerited. If she has justly provoked the indignation -of her husband, then his cruelty presents a different aspect. -Nevertheless, if his cruelty bears no relation to her wrongful -beginnings, she still has good ground for separation. - -Desertion is a general ground of divorce, the law in every state -prescribing a period of time, quite often three years. The period must -be continuous. An offer to return made by the deserted spouse in good -faith at any time before the separation has run for the statutory -period will bar a divorce, but not if the offer is made afterward. -Again, a husband who drives his wife away from him by his misconduct -deserts her as clearly as if he had left her. To cease living together -for the time fixed by statute is not desertion unless this was done -intentionally. For example, separation on account of business, -sickness, etc., is not desertion. Not only must there be an intention -to leave the other party, this must be without consent. - -Another cause for divorce, quite generally recognized, is habitual -drunkenness. This must be of a gross and confirmed nature. While other -causes exist the most general have now been mentioned. In some states -there is a more general ground, any reason rendering married life a -failure. Of course, much depends on the discretion, mental and moral -make-up of a judge in applying the facts to a cause for separation -that is so general. An agreement in advance to make a cause of divorce -is everywhere condemned by the law. - -Divorces are of two kinds: from the bond of marriage, often called -absolute divorces, which put an end to the marriage relation and -render the parties single; and divorces from bed and board, limited -divorces, more accurately called judicial separations, in which the -marriage relation is not dissolved, but the injured party is given the -right to live separate from the other. In more than half of the -American states no distinction is made between kind of divorce, all -divorces are absolute, from the bond of marriage. - -The legal effect of divorces is still a grave matter. When a divorce -has been legally granted by a state, the courts of every other state -for obvious reasons recognize and try to uphold the decree or -judgment, though not all of them, and consequently strange results -follow. Thus a person who was married and living in New York leaves -his wife for good reason and goes to Connecticut. After acquiring a -legal residence there and proper standing in a court, he applies for a -divorce, the proceedings are regular in every respect and a divorce is -granted. He marries again and takes his wife to New York for a visit. -There he is sued by the first wife for support, moreover, by the laws -of New York he is an adulterer. In New York he is still married to the -first wife, in Connecticut to the second. If children are born of the -second marriage they are legitimate as long as they live in -Connecticut, illegitimate should they go to New York. One of the -latest legal writers on this difficult subject says: "Foreign divorce -judgments granted in states where the plaintiff had obtained an -actual, bona fide residence, will doubtless continue to be recognized -by the great majority of our states, but the states of New York, -California, Maryland, Massachusetts, Vermont, South Carolina, -Pennsylvania, and possibly some other states, which have adopted the -extreme New York doctrine, are permitted by the rule established in -the Haddock case--a decision by the Supreme Court of the United -States--to continue to refuse recognition of divorce judgments in -other states." - - -=Innkeeper.=--An innkeeper's house is a public place to which -travelers may resort. He cannot therefore prohibit persons who come -under that character in a proper manner and at suitable times from -entering, so long as he can accommodate them. He is not obliged to -receive one who cannot pay for his entertainment. Indeed, he must -exclude some persons who apply, notably thieves. He can refuse to -admit all whom he has reason to believe will disturb the peace and -safety of his guests; and can afterward exclude all who, though -admitted, prove to be noisy and disturbers of the comfort and safety -of others. And if having a stable he is under the same obligation to -receive and care for horses as he is to receive the person to whom -they belong. Again, he is not required to provide a guest with the -precise room he may select, but only reasonable and proper -accommodations. If he refuses to do so he is liable in law to the -applicant. - -In caring for the baggage of a guest, the law is not as well settled -as it might be. A competent writer has said: "They are insurers of the -property of their guests committed to their care, and are liable for -its loss, unless caused by the act of God, a public enemy, or the -neglect or fault of the owner or his servants." This strictness of -liability, it is said is necessary to protect travelers against any -collusion between the innkeeper and his servants, and to compel him to -take care that no improper persons are admitted into his house. His -charge for the entertainment of his guests is sufficient to cover this -risk; he also has a lien on their property entrusted to his care to -indemnify him against loss. - -By statute in many states innkeepers are exempt from loss by fires -which are in no way caused by their own negligence or that of their -servants. If a horse dies while in the innkeeper's charge, he is -liable unless he can show facts that excuse him. - -If the goods of a guest are stolen by the innkeeper's servants or -domestics, by another guest, or by someone outside the inn, the -innkeeper must make restitution, for it is his duty to provide honest -servants, and to exercise an exact vigilance over all persons coming -into his house as guests or otherwise. His responsibility extends to -all his servants and domestics, and he is bound in every event to pay -for them if stolen, unless they were stolen by a servant or companion -of the guest. Illness or absence of the innkeeper does not excuse him. -An innkeeper is not liable for the loss of a guest's property when -this loss is due to the fault or negligence of the guest himself. Thus -an unnecessary display of money or valuables, or leaving them where -they would tempt thieves, may be negligence. But failure to lock or -bolt his door is not necessarily negligence on the part of a guest. It -is only evidence of negligence. Nor is an innkeeper exonerated when a -theft is committed by a fellow guest with whom the owner of the -property stolen had consented to occupy the same room. - -An innkeeper may make needful and reasonable regulations that are to -be observed by his guests to secure the safety of his property. When -they are made and brought to the knowledge of a guest he is bound by -them. By contract, custom and statute the responsibility of an -innkeeper may be changed. In many states by statute an innkeeper -avoids liability for the valuables of his guest unless they are -deposited with him. These statutes are construed strictly in favor of -the guest. Nor can an innkeeper even by these exempt himself from -everything, for if a guest were required to deposit all he had to -secure such protection, he would be in a strange fix. Said a Georgia -court: "Is the guest to deposit his valise there, and go and send for -it to get out a clean shirt?" - -If a guest goes away, leaving his valise or other things with an -innkeeper, he is not required after a reasonable time to observe such -diligence in keeping them as he receives nothing in the way of -compensation for so doing. - -Keepers of lodging and boarding houses are not innkeepers, nor subject -to their liabilities. The proprietor of such a house does not hold -himself out to the world as prepared to supply accommodations for all -who may apply, nor is he required to receive any persons unless he -chooses to do so; an innkeeper's freedom is restricted in this -respect. A house may have a double character of boarding house and -inn. With transient persons who, without a definite contract, remain -from day to day it is an inn; with those under definite contract it is -a boarding house. - - -=Land License.=--A license is an authority to do something on -another's land without acquiring ownership therein, and may be given -orally, or it may be simply a permission to use or occupy. A license -may be executory, relating to a future act, or it may relate to an act -already done or executed. An executory license may be revoked at any -time. Thus A laid a water pipe by permission across B's land who -afterward rendered the pipe useless by cutting it. A had no redress, -for B was acting within his rights. A ought to have obtained written -authority for such action. He could, however, remove the pipe or any -other improvement he had made on the strength of the license granted -to him. - -A license may be to do many things on another's land. Thus one may -have a license to flood land, erect buildings, pass overland, maintain -a ditch, cut timber, use land for railroad purposes. A common form of -license is a ticket of admission to enter another's land to witness a -spectacle or similar purpose. - -No formality is needed to create a license. It may be in writing or be -oral, or implied from the relations or conduct of the parties, as -where a land owner assents to the doing of certain acts on his land. A -person by opening a place of business licenses the public to enter -therein for the purpose of transacting business. And a license to do a -particular act necessarily involves any act essential thereto. - -A license is usually revocable at the pleasure of the licensor, even -though it be in writing and under seal, or a consideration has been -given. If the licensee has expended money and made improvements on the -faith of the license, can it be revoked? On this question the courts -divide. The more general opinion seems to be that a license coupled -with a grant or interest cannot be revoked. Or, if a license has in -effect been so used as to become an easement it remains a burden on -the land though sold to a purchaser, unless he had no knowledge of -it. A license cannot be assigned by the licensee to another. - -Again it is said that the revocation only affects the future exercise -of the privilege, and does not prevent the licensee from removing -structures or other movable articles placed by him thereon relying on -the license, provided he does this within a reasonable time after the -revocation. Even should the owner of land sell, the sale would not -operate as a revocation to one to remove trees that he had already cut -under a contract of sale and removal. - -If a person grants a license to another to come on his land, he owes -no duty to him except the negative one of not wantonly injuring or -exposing him to danger. Merchants invite the public into their stores -to buy wares, but those who accompany them without any intention of -purchasing are not invitees, they are mere licensees. The duty of the -storekeeper to one who enters his premises by mere license is not to -keep the premises in a non-hazardous state, but only to abstain from -acts willfully injurious to him. - - -=Lease.=--A lease is for the use of land, usually for a few years or -shorter period. The lessor is more generally known as the landlord, -and the lessee as the tenant. The lease may be oral, though the better -way is to put the agreement in writing. If it be for a house or other -building the lessee should insist on this, otherwise he would fare -much worse should the building be destroyed by fire. Doubtless many do -not know that, unless the lessee makes a specific agreement relieving -himself, he is liable for the rent of a building, just the same if it -is burned down as if he were still the occupier. This is the common -law, which has been changed in some states by statute. - -If the lease is for more than a year, or other short period, the -Statute of Frauds, so called, requires that it must be in writing. If -the time be less, a verbal lease may be made, even though the lessee -does not take immediate possession of the premises. If on the other -hand, it exceeds the statutory period, it is not absolutely void, but -continues during the joint wills of both parties, and may therefore -cease at the will of either party. If the landlord wishes to terminate -it, he must give the tenant notice to quit; should he disregard the -law and take immediate possession he would be a trespasser. - -When the terms of a lease are in doubt, they are construed in favor of -the tenant. A lease to a specified day continues during the whole of -it, though custom or statute may prescribe a different rule. A term -may also continue during the option of either of the parties to be -ended on notice by the party exercising the option. - -The most usual agreements or covenants in a lease are on the part of -the lessor for quiet enjoyment, which secures the tenant against any -hindrance or disturbance of his possession and enjoyment of the -premises from persons deriving their title from the landlord, or from -any one else who claims to be the owner. Also against all -encumbrances, in other words, that no one has any easements or other -rights in the premises. The landlord also usually agrees to repair, -and often to renew the lease, and the lessee to pay rent, to insure -and not to assign or underlet, without the landlord's consent. The -parties may of course agree to do any other lawful thing, for example, -sometimes the tenant agrees to make repairs, to reside in the -premises, not to engage in some kinds of business, to cultivate the -land, if the lease be of a farm, in a specified way. Again though an -oral lease for a term of years at a stated annual rent may not fulfill -the requirement of the Statute of Frauds, the parties may conform to -it and thus create a tenancy in fact from which the law will imply a -leasing from year to year. If therefore the tenant with the -acquiescence of the landlord continues in possession for several -months after the expiration of the original term, a tenancy for -another year will be created with a corresponding liability on the -part of the tenant for a full year's rent. And the measure and extent -of the tenant's liability would be the same, whether his continued -occupancy related to the original lease, or to a subsequent one just -like it, made as the first was soon to expire. - -The definite period for which a lease is given is called a term. If a -lease is from the first day of January, it begins on the second day -and lasts through the last day mentioned; in carefully drawn leases -the number of days is fixed to avoid all dispute. A lease for a year -with the privilege of remaining three years or longer does not mean a -single period of three years, but three yearly periods as the tenant -may elect. - -A lease may be made to take effect in the future, provided the time -for taking possession is not so far away as to violate some statute to -the contrary. A lease for an hundred years in some states is deemed a -parting with the absolute title to lands though railroads make long -leases running for ninety-nine years. If the length of the term is not -definitely expressed in the lease, the time may be ascertained by -other evidence. When a lease is to run for one or more years "from" a -specified day, the corresponding day of the year is excluded from the -term, unless a contrary custom exists. A lease to a specified day ends -with its expiration. If there be a doubt on which of two days a lease -terminates, the lessee may decide. More generally, leases of doubtful -duration are construed in favor of the tenants. By statute in New York -leases which do not specify the length of occupation, extend to the -first of the following May after taking possession. - -A lease must describe clearly the premises, nor can a defective -description be cured by outside evidence. Any language will suffice -that shows the intention of the parties. The words "grant," "demise," -and "to farm let," have a technical meaning, and are generally used, -but other words may be and often are used. A memorandum expressing the -consent of the owner that another shall have immediate possession of -the premises, and shall continue to occupy them at a specified rent -and for a definite term, is a sufficient lease; in general, any -agreement under which one person obtains the right of enjoyment to -property of another, with his consent and in subordination. - -A distinction exists between a lease and an agreement for a lease, -which should be understood, though it sometimes is not by the parties -themselves. If the agreement is a lease, it cannot be changed by other -evidence, for it is a completed contract; but if it is an agreement -for a lease, then it is not complete and other evidence may be -produced to show what the parties intended. How can the nature of the -agreement be tested? By ascertaining whether it is complete or not. -Thus A wrote to B that he would take his home at a stipulated rent for -two years if he would put in a furnace, with which offer B at once -complied. - -This was a lease, for by putting in the furnace nothing more remained -to be done. If he had not put in the furnace, or not before the time A -was to take possession, there would have been no lease, unless A had -waived his offer and taken possession. - -Of course to make a valid lease there must be competent parties. A -lease made by a minor is not void, but he may avoid or cancel it by -some positive act. Can he do this before attaining his majority? On -this the authorities differ. Again appears the risk of making -contracts with minors, though the situation many times seems clearly -to justify such action. A guardian may lease his minor's land for the -period of his minority; if leased beyond, the ward may have the lease -canceled for the excess. A lease terminates on the death of the ward, -whatever may be the length of the term. A parent cannot lease the land -of his minor child like a guardian. - -By common law a lease made by a married woman was avoided after her -husband's death. The modern statutes excluding her husband's power of -control over her property and authorizing her to take and hold -property as if she were an unmarried woman, have abolished both his -power to invalidate the lease and also her power to repudiate it after -his death. - -A private corporation may make a lease of its property provided that -in doing so it acts within its charter. A municipal corporation, while -it may lease property belonging thereto of a private nature, cannot -lease property which has been devoted to public use. A corporation -whether public or private may take a lease of property so far as this -may be a proper means of carrying out the purposes for which the -corporation was created. - -Executors and administrators may dispose of a lease belonging to the -deceased, or make new leases for terms within the period covered by -it. Trustees have a still larger authority to lease the lands -entrusted to them, unless restricted by the terms of their -trusteeship, or by statute. Though a member of a partnership, as we -have seen, is an agent, he cannot make valid lease of partnership -land. - -What may be leased? Besides land, the right to a wharf, to flow with -water the land of another, to go over another's land. An ordinary -boarder, who has a room and boards in the house of another and who -retains the possession and care of his room, is not a tenant. On the -other hand the letting of an entire floor for lodgings may create a -tenancy, and so may even a single room. A lease for an unlawful -purpose is void, for example, for the sale of spirituous liquors -contrary to law. - -If the premises are occupied by the lessee and his rent is paid as -specified in the lease, this is regarded as a ratification by him of -an invalid or void lease. To this rule are some exceptions. - -A rule of construction may here be added; if a blank form is used in -making a lease and the printed and written parts or agreements are -inconsistent, the matters written are regarded as expressing the -intention of the parties. - -Much might be said concerning the use of the premises. If a farm is -rented and the lease is silent on the matter, the law presumes that -the tenant will use it in a proper and husbandlike manner, like other -exemplary farmers in that vicinity. He must cultivate the soil -properly, preserve the timber, consume the hay as fodder to the -cattle, if such be the custom, and keep the buildings and fences in -repair. Manure in the ordinary course of farming belongs to the farm. -To manure made in livery stables a different rule applies and the -tenant can remove it. If the lease be of a mill it usually provides -how it shall be run, if it be a house in the city and nothing is said -about its use the law implies that there shall be no waste or -destruction beyond the ordinary wear and tear. To use the doors for -firewood is not uncommon with tenants, unless they are not burnable, -though surely it is not a proper use of a leased house. - -A farm tenant has the right to take and use material found on the land -suitable and needful to repair the buildings, fences, also dead and -fallen timber for fuel. He cannot use shrubbery and ornamental trees -for this purpose, nor cut standing timber for this purpose. He is -entitled also to the way going crop, but must remove it during his -lease. He cannot go on the land afterward and remove crops, unless he -was prevented by some good reason from removing them while he was in -possession. - -Can a lessee assign or sublet his lease? Of course this may be -forbidden, and often is by the lessor, without his consent. If the -lease is silent this can be done. If the lessee die, his executor or -administrator can assign the remainder of his term. A lease may also -be assigned if the lessee become insolvent, also by a new partnership -created by the addition or retirement of a member. A transfer by the -lessee of the whole or a part of his interest for a part of the time -is a sublease and not an assignment. And whenever a sublease is made, -the rights of the original lessor are not changed, nor does he -recognize in any way the sub-tenant unless by agreement, nor has he -any right of action against him. Of course there is nothing to prevent -the parties from making any arrangement that may be agreeable to -them. - -As the lessee may assign or sublet unless forbidden, so may the lessor -part with his interest in the leased premises. When an assignment of -it is made, the assignee may sue in his own name for rent accruing -after the assignment. - -The lease of a private residence is not a warranty that it is -reasonably fit for occupancy. Thus saith the law. Nor can a lessee, -unless the lessor has misrepresented the healthfulness of the place, -leave after the unwelcome discovery that it is not healthful. This -seems to be rather harsh, but the rule is founded on the presumption -that the lessee will examine the house before leasing and make proper -inquiries about its healthfulness. - -By the common law the lessor was not required to make repairs. This -has been changed in some states by statute. He is not required to make -repairs needed and known to the tenant at the time of making his -lease. Hallways, staircases, elevators, and the like that are used in -common by the tenants of a building and are under the landlord's -control, must be kept in repair by him. If he shall let a many storied -building to several tenants, to each tenant a story, who have -exclusive possession thereof, the lessor will not be liable to any -lessee for the damage caused by another. - -If the landlord agrees to make repairs and keep the tenement in good -condition, he is required to keep it in essentially the same condition -as it was when the tenant took possession. Should the house or other -building be destroyed by fire what then? An agreement to keep it in -good repair imposes an obligation on the landlord's part to rebuild. -But an agreement by the lessee to keep and leave it in good repair, -does not require him to rebuild should it be destroyed by fire, or -other cause without any fault of his own. If the lease provides that -the insurance money, when the landlord has insured the premises, shall -be applied to rebuild in the event of fire, he must regard his -agreement, but if there be no such agreement, the tenant cannot compel -his landlord to thus apply it. Should the lessor fail to fulfill his -agreement to repair, the tenant is not excused from paying his rent, -nor justified in leaving the premises. His remedy is to sue his -landlord for the damages or injury to himself. And even if the -premises be destroyed by fire the tenant must continue to pay his rent -unless he has been wise enough to relieve himself by a proper clause, -or unless some kindly statute has been passed relieving him on the -happening of such an event. No oral stipulation, that the parties -should make covering the effect of loss by fire or other contingency, -would be binding if contrary to the terms of the written lease. As -this is the highest form of the agreement, all verbal stipulations to -the contrary must give way. - -A tenant can make no permanent alteration without his landlord's -consent; and should he do so and injure the premises the landlord may -recover damages, or, if such an alteration is feared or threatened, he -may prevent it by obtaining an injunction from a court ordering the -tenant not to make it and penalizing him should the order be -disobeyed. - -When a lease is renewed, the new lease may be regarded in two -different ways. It may be considered as the continuation of the lease, -and thereby protecting all the interests created under it. And this -will be the case whenever the old lease clearly shows that if a -renewal should be made this was the intention of the parties. When -nothing is said, a renewed lease is a surrender of the old one and -different conditions may arise. It is important therefore when -providing for the renewal of a lease to specify what the parties -intend, whether a renewal or continuation on the old terms, or a -renewal on other terms to be fixed at another time. - -Usually a lease specifies not only the amount of rent to be paid, but -the time of payment. If silent, yearly rent is not due until the end -of the year, quarterly rent at the end of the quarter, monthly rent at -the end of the month. When a lessee is evicted or turned out of -possession by his landlord, he is excused from paying rent. What, -therefore, is an eviction? Any act by the landlord, or by his agent, -impairing the worth of the premises to the tenant, for example, the -destruction of a summer house, turning rooting pigs into the premises, -the erection of a new building rendering the leased premises unfit for -occupation. One of the curious cases is the lease of a distillery -which could not be run because the landlord prevented the lessee from -getting a license. In like manner if the landlord is to furnish heat -and fails to do so, the tenant is justified in leaving. More -generally, any act by the landlord whereby the leased premises are -rendered unfit or impossible for the purpose intended, and affecting -the health and comfort of the tenant, is an eviction. - -The eviction must be done by the lessor. An act done by a wrongdoer, -not under the lessor's order, will not justify the lessee in quitting. -Thus the darkening by an adjacent owner of the lessee's premises by -erecting a structure, however injurious it might be, would not justify -the lessee in quitting and refusing to pay his agreed rent. This is -one of the risks taken when making the lease. - -Suppose a person occupying state land is evicted by the state, must -he continue to pay rent? In Missouri the rent ceases, or if evicted of -a part, he must pay rent on the remainder. In some states he must -still continue to pay his rent and then demand compensation for his -loss. - -Sometimes land is rented on shares, a very common way in the olden -time. When this is done, the relation of landlord and tenant may be -created, or perhaps a partnership relation. If the farmer is to do the -work of a servant of the owner of the farm, receiving in return -therefor, a specified part of the crops, the agreement is one of -hiring and not a lease. If the farmer has rightful possession of the -use of the land, then the payment of his rent in produce does not -affect his relation as a tenant. The natural increase of stock leased -with a farm belongs to the tenant, and a landlord cannot recover for -the death of cattle in the tenant's possession, unless he can prove -his tenant's negligence. And if a lessee should sell part of the stock -contrary to the lease, the purchaser would be liable therefor. - -A landlord often leases separate parts of a building to different -tenants, while the stairways and passages to them, though intended for -their use, are still under his control. He thus invites the tenants -and other persons having relations with them to use the approaches to -obtain access to their rooms or apartments, and is accordingly liable -when they are not kept in proper repair; the same as any owner of -structures either expressly or impliedly invites persons to enter -them. If therefore he should leave elevator shafts, or hatchways -unguarded, he would be clearly liable for the consequences. So, too, -should a mill owner have a defective bridge to his mill, forming part -of a common way thereto, he would be liable for the consequences. - -The lessor is liable if he leaves his premises with a way or cellar -entrance, or coal hole inadequately guarded at the time the lessee -takes possession, but not if the guard or covering gets out of repair -during the tenancy, or is temporarily left unguarded by the tenant or -some third person. If the hole or other dangerous place is made -without proper authority, it is considered a nuisance and the owner is -liable for all injuries whether he has rented the premises or not. Who -is liable for injuries caused to travelers by ice and snow on the -pavement? This is a hard question to answer in a short space. If the -ice or snow has accumulated by reason of a defective roof, then the -landlord is liable because of its faulty construction. In some parts -of the country it is most difficult to keep the walks safe in winter. -Experience has led the parties to make stipulations defining and -fixing their liability. Many states also have statutes and cities -ordinances regulating the duties and liabilities of landlords and -tenants. - -When a lease is about to expire a difficult question sometimes arises, -what can the tenant take away with him? Of course he can remove all -his furniture and the things that can be separated without injury to -the premises, but during his tenancy, he may have added things -possessing a more permanent nature, called fixtures, these he cannot -remove. The courts have had great difficulty in deciding in some cases -what these are. In a general way it may be said that whatever a tenant -adds to the premises can be removed, while he is still in possession, -without material injury to it, but he cannot remove anything -afterwards. Suppose the tenant erects a building, can he remove it? -One would not think of his building this for the benefit of his -landlord. Suppose he had built it on a foundation from which it could -be easily removed, a court would have no difficulty in deciding that -it belonged to the tenant. Many cases have arisen about ranges and -stoves. An ordinary stove of course can be removed; suppose it is -affixed to the house in such a way that some portion of the wall will -be detached by the removal, can this be done? Not if the wall will be -badly injured. How badly? This is a question of fact to be answered by -inquiry in every case. Among the fixtures that can be removed are -hangings and tapestries, ornamental chimney pieces, wooden cornices, -wainscoting affixed to the wall by screws and spikes, bells and bell -wires, chandeliers, cisterns and sinks though fastened by nails and -set into the floor, fire frame fixed in the fireplace, pipes for gas -or water, grates removable without injury to the building, pumps, -stoves, ranges and furnaces, gas ranges and water closet appliances, -washtubs fastened to the house, gas fixtures and shelves. A greenhouse -is not removable, nor gutters placed in the roof of a dwelling, nor a -stairway, nor flowers, shrubs, or bushes planted for ornamental -purposes. - -Chattels placed by a tenant on leased premises for the purpose of -carrying on his business or trade are generally regarded as personal -property. Annexations of this kind are called trade fixtures and the -law is liberal in permitting their removal. Show cases, counters and -shelves, engines, boilers, machinery, tanks in a distillery, a bowling -alley, bar fixtures, even buildings are removable. The same liberal -rule applies to agricultural implements. A tenant, therefore, if -wishing to remove whatever he may have added, should be careful about -their nature, or protect himself by an effective agreement. - - -=Legal Remedies.=--Elsewhere we have shown how civil and criminal law -differ. In criminal proceedings the state is a party and prosecutes -offenders through agents or attorneys who are chosen or appointed for -that purpose. In all civil offenses the person injured prosecutes the -offender, through the courts established by the state for that -purpose. Suppose A owed B one hundred dollars for which he gave his -promissory note payable in ninety days from date, and which on its -maturity A declined to pay. B could then have recourse to a court of -law to collect the money. If knowing nothing about the mode of -proceeding he would employ a lawyer; if he was familiar with legal -proceedings he could do this himself. - -What is the first step taken by a lawyer? He makes out a writ or -complaint stating B's course of action against A--that he has loaned -him a sum of money which he has not paid as he promised to do, and he -is summoned to appear in court at a certain time and place and answer -why he does not pay and the court is asked to render judgment against -him, if there is no defense, for the money due with the addition of -the costs incurred in seeking the aid of the court to collect the -money. This writ, declaration, or complaint is given to the sheriff of -the court where either A or B lives, who "serves" it on A. This -service consists in reading a copy of it by the sheriff, or by one of -his deputies or a constable, or other authorized person, to A, or in -leaving a true and attested copy thereof with him, which has become -the universal practice. This is the ordinary mode of beginning a legal -action against a person or corporation. - -An action thus begun is followed by a trial of the case unless it is -settled. Usually the trial comes off within a few months, but not -infrequently long delays occur. If, after the introduction of -testimony, judgment is rendered in favor of B, an "execution" or order -is issued by the court directing the sheriff to levy on A's property, -whatever he may have, save a small sum, household furniture and the -like, and sell it and turn over the proceeds to B in payment of his -debt. If there was a balance left from the sale of A's property after -satisfying the judgment of the court and the costs of the legal -proceedings, it would be paid to A. This, in fewest words, is the mode -of proceeding in a court of law to obtain redress in a civil suit or -action. - -There are several kinds of actions or remedies used in different cases -and these will now be explained. First, is the action of assumpsit. -This is the form of action used whenever one sues to recover on all -kinds of promises, those implied by the law as well as express -promises, not under seal. They include all ordinary promises to do -things either orally or in writing. Next, is the action of covenant. -This is used whenever one sues to recover for some failure on the part -of a person who has given a deed or other sealed writing. Suppose the -purchaser of land discovered there was an unpaid mortgage thereon, -though the deed covenants or declares that it is free from all -encumbrances. The vendee or purchaser would sue to recover for a -broken covenant. Another action is replevin which is used to recover -specific goods. Suppose someone had taken my horse and refused to -deliver the animal to me. The proper remedy would be replevin. Suppose -I did not wish to have the horse back, but only its value or worth. -Then the proper remedy would be an action of trover. Another form of -action in much use is called trespass. This is used to recover -damages for injuries to persons and property. If a person knocked me -down and I sued him to recover for the injury, trespass would be the -proper form of action. In many states an action in tort instead of -trespass is the proper remedy. If one should come upon my land and -take away wood, grass, stone, or in any way injure it, trespass also -would be the form of action. Ejectment is the action employed to eject -or turn out a wrongful possessor and recover possession of land. In -this action the title or ownership of the land lies at the foundation; -and the title to many a piece has been settled in an action of -ejectment. One of the most familiar actions is habeas corpus, which is -employed to recover a person's liberty from illegal restraint. As the -actions of slander and libel have been described, only two others -require notice, mandamus and quo warranto. The first of these is used -to compel one to do something. A familiar example is that of a city -which refuses to pay a judgment that has been rendered against it. The -court in this action commands the city to pay, and it must obey unless -there exists a legal defense. A quo warranto is the form of legal -action to which a person resorts to get possession of an office to -which he is entitled, but is denied him. Suppose one is elected mayor -of a city, but for some reason or other, the one in possession is -determined to keep him out. He would bring this action and a court -would then decide whether he was entitled to it or not, and if he -were, the court would proceed to put him in possession. - -In many of the states, especially the newer ones, not all of these -different forms of action are used. Only one form, called a complaint, -includes most of them. While the substitution of this has simplified -the modes of redress, the substance of the complaint really embodies, -as before, the different kinds of injuries above explained. - - -=Life Insurance.=--The contract of life insurance is a mutual -agreement whereby the insurer agrees on the payment of a fixed sum or -premium to pay to a person designated in the policy on the happening -of a contingency, usually death, a sum of money. By another form of -insurance the insurance may be made payable at a fixed time, or -before, should the insured die before that period. - -The contract to be valid must be for the benefit of one having an -insurable interest, otherwise the contract is a wager, which the law -condemns. This is sufficient if the person taking the insurance has -such an interest arising from his relation to the insured as creditor -and surety, or from the ties of blood or marriage that will justify a -reasonable expectation of advantage or benefit from the continuation -of his life. It is not needful that this expectation or benefit should -possess a pecuniary valuation. The mutual legal rights and liabilities -of father and minor child are sufficient to create an insurable -interest on the part of each in the life of the other; also the -relationship of brother and sister, and that of husband and wife. -Likewise a man and a woman who are engaged to be married; and a -creditor has an insurable interest in the life of his debtor. And this -interest covers not only the amount of the indebtedness, but also -future advances, and the cost of taking out and keeping up the -insurance. A partner who has advanced the capital of the business has -an insurable interest in the life of his partner. More generally any -person who invests money relying on the efforts of another to produce -a return has an insurable interest in such person's life. A surety -therefore has an insurable interest in the life of his principal; an -executor in the life of a person who has granted an annuity to the -testator; a common carrier even may insure against loss from injuries -to passengers. But the relationship between uncle or aunt, nephew and -niece and that of cousin is not sufficient to support a policy taken -by one in the life of the other. - -A policy may be assigned to one who has no insurable interest if made -in good faith, and not as a cloak for the procuring of insurance by -one having no insurable interest. This rule does not prevail -everywhere, but the courts which do not accept this rule usually -protect the assignee who has paid the premiums to the amount of his -payments, while the estate of the insured takes the balance that may -come from the insurer, whenever the assignment of the policy is not -invalid. An assignment to one who has an insurable interest as -relative, creditor and the like, is always valid. - -A general agent, says Justice McClain, "may bind the company by an -agreement as to rate of premiums, or other terms of the contract, even -as against the express provisions of a policy subsequently issued, -there being no negligence on the part of the insured in failing to -advise himself as to the terms of the policy; but if the want of -authority of the agent to vary the terms of the application is brought -home to the applicant, oral communications of the insured to the agent -are not to be considered in determining the validity of the insurance. -If the agent has exceeded his authority as to the terms of the -proposed contract, the company cannot reject that part which the -agent was without authority to make and enforce the rest, but must -accept or reject in toto." - -Until a proposition for insurance has been accepted by the company -there is no contract. Delay in accepting an application which is -subject to approval does not effect an acceptance. There may be a -binding contract of insurance as soon as the company has accepted the -application, or on the delivery and acceptance of it by the company's -agent, when he has authority to do so. In order to complete the -contract before issuing the policy there must be an agreement to this -effect, and before the death of the applicant. The receipt by an agent -for the first premium, or of a note therefor, subject to the approval -of the application by the company, does not effect a contract between -insurer and insured. - -Some states have enacted statutes prescribing requirements for life -insurance policies, or standard forms. Delivery to a third person for -the insured may be sufficient. The contract becomes complete when the -policy is put in the mail, postage prepaid, for delivery in due course -to the insured. Delivery to the insured for examination of course does -not effect any engagement on the part of the insurer, nor does a -delivery on condition. - -It is often stated that the delivery shall not be effectual to create -a contract unless the insured is alive and in good health when the -policy is delivered and the first premium is paid. Indeed, how could -it be valid if the insurer is dead? And if the contract is with a -person other than the insured as beneficiary, it would be void on the -ground of mistake. Likewise, under such a condition, a policy does not -become effective, without a waiver, if the insured is in ill health at -the time of its delivery or payment of the premium. - -Unless waived by the company, there is usually a stipulation to the -effect that the company shall not become bound until the first premium -has been actually paid and accepted by the company or its authorized -agent. But if the premium is actually paid by the agent of the company -for the insured by virtue of an agreement between them, this will bind -the company. The payment of the premium by a third person without the -knowledge of the insured does not have the same effect. - -A general agent has authority to waive the stipulation, that the -policy shall not take effect until the first premium is paid, though -of course he may be restricted in this regard, but a special agent -cannot waive this stipulation; though if he acts otherwise and the -company ratifies his act, it is bound. A provision also that a policy -shall not be valid unless the premium is paid when the insured is in -good health may be waived by an agent who has authority to take -applications, collect premiums and deliver policies. - -Passing to the nature of the contract, if made in violation of a -statute, or if contrary to public policy and this is known by both -parties, it is void. Thus a stipulation that a policy shall be payable -though the insured may be executed for a crime is contrary to public -policy and is therefore void. The same is true of a stipulation -insuring against death by suicide while sane. It is against public -policy to allow one person to have insurance on the life of another -without his knowledge. A policy issued on a person beyond a specified -age is prohibited by statute. - -What is the effect of fraud in negotiating and issuing policies? If -the company or its agent perpetrates a fraud whereby one is induced to -take out a policy, he can at his option declare it void, unless so -negligent in acting as to work an acquiescence of it. But if acting in -a proper way and time he can set up fraud as a defense in an action to -get the premium for which the contract has stipulated; or he may sue -to have the policy declared void and his premiums returned to him; or -he may bring an action against the company or its agent, or both, to -recover the damages he may have sustained by the fraud that has been -practiced on him. - -On the other hand, if the insured has been wronged, the courts furnish -relief, and perhaps may set the policy aside. Mistake is a common -ground of relief; it must in all cases be clearly proved. And if a -policy is susceptible of two constructions, the ambiguity is to be -resolved in favor of the insured. As the company framed the policy all -of its provisions in its favor are strictly construed. It may be added -that the construction which the parties themselves have put upon a -contract of life insurance will be generally followed in determining -their intention. Again, the entire contract is to be construed -together for the purpose of giving effect to each clause and as -between general and specific provisions relating to the same matter -the specific provisions control. - -In determining who is the beneficiary under the terms of a policy of -life insurance the courts are governed by the intentions of the -parties. They need not be named if they can be otherwise identified, -and may be designated in a separate paper prepared for that purpose. -The amount named in the policy generally fixes the liability of the -company. To obviate the wager feature, the amount of insurance -effected for a creditor on the life of his debtor ought to be limited -to the amount of the debt with interest and premiums during the -expectancy of the life insured. - -The risk is presumed to begin from the date of the policy and to -continue until the happening of the contingency or time when payment -is to be made by the insured. It may be added that words or figures -written or printed on the margin of a policy of life insurance, on its -back, or on a slip, with reference to the terms and conditions of the -contract, constitute a part of it and must be considered in deciding -its meaning. But representations made in a prospectus or circular -issued by a life insurance company are no part of a contract. - -The payment of premiums to a general agent without notice of any -limitation of his authority to receive payments will bind the company, -but a different rule applies to a special agent. The premiums may be -paid by the insured, or the beneficiary, or by the agent of the -company whenever he has agreed to pay them for the insuring party. A -discount allowed by the company for the punctual payment of premiums -belongs not to the agent, but to the insured. Cash is usually paid, -though other arrangements also exist for taking notes, that are -ultimately paid in cash or from the earnings of the company, and -belong to the insured and would be paid to him. In mutual life -insurance companies a portion of the premium is often paid in this -manner. - -A policy of life insurance payable to the insured, or in the event of -his death to his personal representatives, may be assigned unless -forbidden by statute, therefore a policy payable to the wife of the -insured, or another may be assigned by the united act of the insured -and the beneficiary. Thus a policy taken out for a wife's benefit is -often assigned by her and her husband to his creditors to secure -their debts. In some states statutes forbid the assignment of such -policies for the benefit of creditors. The written assignment must be -delivered to the assignee to be effective. On some occasions -assignments have been declared valid where the intention was clearly -proved though both the written assignment and the policy remained in -the possession of the assignor. An assignee who holds a policy as -security is entitled on its payment only to the amount of his claim -and advances with interest, including premiums paid to keep the policy -alive and thus preserve his security. More generally premiums paid for -this purpose are chargeable on the proceeds of the insurance, but a -mere volunteer who pays the premiums acquires no lien on the proceeds -of the policy when it is paid. Nor can one who ought to pay the -premiums give a lien on the policy to another for money advanced by -him to pay them; and an assignee who has promised to pay the premiums -may be liable should he fail to keep the policy alive. - -Contracts of reinsurance are often made by all insurance companies. In -some states the reinsuring company becomes liable to an action by the -beneficiary named in the original policy. Where the reinsuring -company, by agreement, undertakes to reinsure the members of the other -company should they execute applications for that purpose, any member -who does this is not required to be reexamined or comply with other -conditions respecting his age or health. - -A policy may be canceled or surrendered by mutual agreement. After the -death of the insured the rights of the parties become fixed, and there -can be no cancellation. During his lifetime the insured may abandon -his contract by refusing to pay the premiums, but an intention to -abandon will not be presumed, nor will the taking out of a second -policy before his failure to pay the premiums on the other establish -an abandonment. If both parties treat the contract as void, neither -can revive it without the consent of the other. As the beneficiary has -a vested or definite interest in the contract, the insured cannot, by -surrendering the policy, cut off the rights of the beneficiary without -his or her consent unless permitted to do so by the contract itself. - -A surrender or cancellation of a policy may be avoided on the ground -of mutual mistake. But the insured cannot seek cancellation on the -ground that he thought it was something else when his mistake was -simply his own in not reading the release. - -A policy may be rescinded whenever fraud has been practiced by either -party. Thus, should a greater premium be demanded than that stated in -the contract this would be a good reason for rescinding on the part of -the part of the insured. Likewise, if he was induced to take out the -insurance by the fraud of the company or its agent, unless he has lost -his right to rescind through inaction or negligence. Likewise, the -company may rescind for fraud practiced by the insured by -misrepresentation or other fraudulent acts concerning his age, health, -etc. Concealment of facts may and often does operate as a fraud on the -company. Says Justice McClain: "If the applicant has answered the -questions asked in the application he is justified in assuming that no -other information is desired. On the other hand if he wholly fails to -answer questions the company waives information as to matters thus -asked for by accepting the application without objection. If, -however, the applicant purports to answer a question by giving only an -incomplete answer, concealing facts which should properly be stated in -response to the question, and these concealed facts are material, the -policy is voidable." If a material change for the worse in the health -of the applicant takes place after the application and medical -examination, it is the duty of the applicant to disclose it. The -failure to disclose facts of which the applicant is ignorant, or which -are immaterial to the risk, is not ground for avoiding the policy. - -When a policy is surrendered or canceled by the contract or by -statute, the insured may be entitled to the surrender value of his -policy. The amount is to be determined by the period for which the -policy has to run, the amount of the annual premium, the age of the -insured, and the probability of the continuance of his life stated in -the usual life tables. The value of an immatured paid-up policy is the -unearned premium called the reserve and is to be computed in the same -manner as that of a policy on which annual premiums are paid. The -beneficiary is entitled to the surrender value as against the insured, -as well as the creditors, unless the beneficiary has consented to -giving them the preference. - -By a clause in the contract of insurance or by statute, the insured -can convert his policy into a paid-up policy for such an amount as the -premiums would have secured. These conversions often happen where the -insured is unable or unwilling to continue to pay the premiums -required to maintain the policy. Formerly on the failure of the -insured to pay, policies lapsed or were forfeited, and the insurance -companies gained large sums from this source. This led to legislation -and to the creation of paid-up policies. These are issued on somewhat -different terms, but the principle in all of them is the same. - - -=Minor.=--The contracts of a minor are of two kinds, those for -necessaries and other things. Contracts for necessaries made by him -the law will uphold. They are really implied contracts which the law -will sustain for his benefit and protection. What are necessaries is a -question of fact, not always easily answered. Much depends on a -minor's place in society and condition. The question is for a jury to -decide, also whether the prices for them are reasonable or not. One of -the well-known cases occurred many years ago. The bill against the -minor was for more than a thousand dollars for twelve coats, seventeen -vests, twenty-three pairs of trousers, five canes, fur caps, chip hats -and other things, in less than six months. The jury rendered a verdict -for almost the entire amount, but the reviewing court remarked that -the bill made the members shudder, that the seller must have known -that all these things were not needed for the minor's comfort within -that short period, and the verdict was therefore set aside. - -The question is constantly arising, what are necessaries? A thing -might be to one and not to another. Thus a bicycle merely for pleasure -would not be a necessity; one that is used to go to and from an -individual's daily work would be. A dentist's bill for repairing one's -teeth has been disputed, the law, though, generally favors the -preservation of human teeth. Education furnished to a minor may be a -necessary thing, yet only when it is suitable to his wants and -condition. Should a minor repudiate a contract, the law is observed -if he restores all that he has received, or that is capable of -restoration. - -With respect to contracts for other things, they are not always void, -but may be avoided. If they have not been executed, he can disavow -them at any time. If nothing is done during infancy inaction operates -generally as an affirmation. If he disaffirms a contract, he must -return the thing purchased or received, or make the best restitution -he can, for it would not be just to retain possession and refuse -payment. - -A different rule applies to a minor who makes a fraudulent contract. -Suppose he buys goods assuring the seller that he is twenty-one years -of age when in fact he is not, though nearly so. Can the seller -recover on his contract? No, but the law has another way of reaching -him. He is liable in an action of deceit, and the amount or damage -that may be recovered is that of the goods sold to him. - -A minor who has a parent or guardian cannot make a contract even for -necessaries, nor is he under any obligation to pay his bills for them. -Should he be in need of such things and his guardian or parent be -unwilling to furnish them, they can be compelled by law if having the -means to provide him with whatever he requires. - - -=Mortgage.=--Two kinds of mortgages are given, one kind is secured by -real estate, the other kind by personal property. In both the borrower -of money pledges his property as security while the money remains -unpaid. During this period he usually remains in possession and -control of the property, though not always. The borrower is called the -mortgagor, the lender the mortgagee. The contract is in writing -sealed, is in fact a deed. Sometimes the contract is in two writings, -the conveyance of the land and security in one, and the conditions or -defeasance on which the conveyance is made in another. It is more -usual, however, to set forth the transaction in a single writing or -conveyance. - -A mortgage may be so made as to cover future advances, but it will not -cover them in preference to advances or loans made by another without -any knowledge of them. Nor need another person who makes such a loan -inquire whether a mortgagor has made any other loan, or for a larger -amount than that stated on the public record, where the mortgage deed -is recorded. For, it should be added, a mortgage deed is recorded like -any other for the benefit of all parties, not only to secure the -mortgagee from a later purchaser who might buy if knowing nothing of -the prior mortgage, but from another who might be willing to lend on -such security like himself; or from a creditor of the mortgagor who -might attach the property as belonging to him, if he did not know of -the existence of the mortgage. As the record is public, and may be -examined by everyone, all who are interested in the property are -supposed to examine it and thus find out whether it has been -mortgaged, and if it has been, the conditions of the mortgage, and if -they do not, their neglect is their own. - -Improvements, additions of every kind to property after it has been -mortgaged, become a part of it, and if the mortgagee takes future -possession, they pass to him. But a difficult question arises -sometimes, what additions or improvements are included? We have -learned what they are whenever a tenancy relation exists. The law does -not favor a mortgagor to the same extent. The test to apply is that -of intention. If a mill has been mortgaged, the rule is very broad and -the mortgage covers machinery attached by bolts and screws though -removable without injury to the premises. If a mortgage has been -given, by no evidence can it be shown that the deed was intended as an -absolute or entire conveyance of the property. On the other hand by -proper evidence it can be shown that an absolute conveyance was -intended to be only a mortgage. This has been often done. One may ask, -why does the rule not work both ways? There is a much stronger -probability of making a mistake in the second case than in the other. -One of the facts of great importance in such a dispute is the amount -of the consideration or money paid. Suppose a piece of land was worth -$1000 and the deed mentioned only $100, unless there was some other -explanation, there would be a strong probability that the parties -intended only a mortgage which for some reason or other was not -completed. - -Again, it is a rule of law that an agreement which is in fact a -mortgage cannot be changed in character by any other agreement made at -the time between the parties relating to the repayment of the money -and the return of the property. The law presumes that the entire -transaction was embodied in the agreement. "Once a mortgage always a -mortgage." Of course this rule does not prevent the parties from -making any later arrangement they please about the property. - -A mortgage may be made with a power of sale whereby, should the debt -be not paid at the time fixed, a valid title may be acquired by a -purchase from the mortgagee. The mortgagee thus becomes a kind of -trustee or agent for the debtor. This is a great responsibility to -repose in the mortgagee, and he must perform the trust in good faith -in every respect. He must proceed in a way that will best serve the -interest of the mortgagor, and strictly observe the terms stated in -the mortgage, otherwise the sale will not be valid and the mortgagor -can recover his property. If there is a surplus after satisfying the -mortgage debt it must be paid to the mortgagor, or, if he is dead, to -his heir. Such deeds of trust are made by large corporations to secure -loans, and may be made to secure future advances as well as present -ones. - -If the property is sold to satisfy the mortgage debt, the mortgagee -cannot purchase it, unless authorized by statute, or by the terms of -the mortgage; but if it is sold by an officer of the law, the -mortgagee is as free to purchase it as any other individual. This -rule, though, is denied by some courts, which hold he cannot because -the officer is acting as the mortgagee's agent. - -A vendor or seller of property, may have for the money he is to -receive a lien, which is nearly the same thing as a mortgage. A -subsequent purchaser would be affected by this lien, however innocent -he might be of its existence. But if the purchaser should mortgage the -property to a third person, who should put his deed on record, he -would gain a valid lien over the vendor. This lien is founded on the -idea that the vendor holds the land in trust for the purchaser until -he has paid for it, but is not recognized in every state. It is -reasonable to suppose that the owner will not sell his land until he -has been paid, or the purchase money has been secured. The lien will -also prevail against any assignment that the vendor may make for the -benefit of creditors, provided he enforces his lien before the -assignee begins to execute his trust. - -Much has been said about the notice of the vendor's lien. Any -reasonable notice will suffice, but what is such a notice to charge, -for example, a second purchaser with knowledge? Payment of a part of -the money is held to be knowledge of the lien. Again, a vendee who has -paid any part of the purchase money before the delivery of the deed to -him has a lien for the amount advanced. A third party who pays the -purchase money to the vendor for the purchaser and takes a note for -the amount does not have such a lien. - -The mortgagor in most states is regarded as the real owner and remains -in possession; and the mortgagee has a lien, or security for his -advance of money or whatever it may be. The mortgagor may sell his -land at any time subject to the mortgage, in other words he cannot by -any sale impair the mortgagee's security. On the other hand, the -mortgagee can transfer, sell or assign his mortgage to another, and -this is often done. - -Both parties may insure the premises though the mortgagee cannot -exceed his debt. If they are destroyed by fire, the mortgagor cannot -claim to have the insurance applied in liquidation of the mortgage -debt. The mortgagee, therefore, can first collect the insurance money -and then proceed to collect the debt that is due to him from the -mortgagor. If the sums collected from the two sources exceed the -amount advanced to the mortgagor that is only the mortgagee's affair. -But if he insures the property at the mortgagor's request or at his -expense, then the mortgagor would have the benefit of the insurance. - -Frequently several mortgages are made of the same property. The one -that is the first recorded has the first lien, the one recorded next -the second lien, and so on. And if the property is subsequently sold -to pay the mortgage, the first mortgagee has the first claim to the -money received, the second mortgagee next and so on. If there is not -enough to pay all, the last mortgagee is the first to be cut off, or -to receive less than the full amount due to him. - -If a testator devises mortgaged land, is the devisee or person who -receives the land also entitled to the money due from the mortgagor? -Generally, but not everywhere. A bequest of money securities includes -a note secured by mortgage. The mortgagor's interest in the land on -his death, if leaving no will directing who shall take it, goes to his -heirs, and not to his executor or administrator like other personal -property. Of course, if there were no other property that could be -used to pay his debts, if he had any, it could be claimed and taken by -his creditors for that purpose. - -The mortgage usually states a time for paying the debt, and if the -terms are not observed, the mortgagee may proceed to take the -property. This he cannot do in an arbitrary way, except in the case of -mortgages in which the mortgagee is entrusted with power to sell the -property and apply the money in payment of the debt. In other cases -the mortgagee must apply to the court to fix a time for the sale of -the property, if the mortgagor fails to make payment. The courts -usually give the mortgagor a period of several weeks or months to pay, -and if payment is not made at the end of this period, the land is sold -by an officer of the court, who conveys the title to the new -purchaser, and if there is any surplus left after satisfying the -mortgage, this is returned to the mortgagor. If there is a deficit, he -is still liable therefor. Any person who is interested in a mortgaged -estate has the right to redeem it; heirs, devisees, creditors. On the -death of a mortgagor his heirs may call his executor or administrator -to pay the mortgage out of the personal estate if there is any, and -not from the sale of real estate, because it was given, so the law -presumes, for the benefit of the personal estate belonging to the -mortgagor. Or, if the land has been given to a devisee, he can require -the executor or administrator to pay the mortgage. Again, if two -persons are jointly liable for the debt, and one of them pays it, he -may call on the other to contribute his portion. See _Chattel -Mortgage_. - - -=Negotiable Paper.=--By negotiable paper is meant paper that can be -sold and transferred. The law on this subject is now regulated by a -statute that is nearly uniform in almost all the states of the Union. -The courts are constantly applying it, and in doing so are putting -their meaning or interpretation on the words of the statute. Thus far -they have looked with quite similar eyes, and no serious differences -have arisen. - -The statute declares that a promissory note must be in writing and -signed by the maker or drawer; that it must contain an unconditional -promise or order to pay a certain sum of money on demand, or at a -fixed future time to order or to bearer. And if the note is addressed -to a drawee he must be named or indicated with reasonable certainty. A -note may be written payable with interest or by stated installments, -or with exchange, or with costs of collection, or an attorney's fee in -case payment shall not be made at maturity. - -An unqualified order or promise to pay is unconditional within the -meaning of the law even though it indicates a particular fund from -which it is to be paid, or a statement of the transaction on which the -note is based. Thus the indorsement of the words "per contract" on the -back of a note written at the time of its execution does not affect -its negotiability. - -A note payable at a fixed future time may be at a fixed period after -date or sight, or on or before a fixed future time specified therein, -or on or at a fixed period after the occurrence of a specified event -which is certain to happen, though the time of happening be uncertain. -A note that is payable on a contingency is not negotiable, and the -happening of the event does not cure the defect. Likewise a note which -contains an order or promise to do any act in addition to the payment -of money is not negotiable. To this rule, though, are some exceptions. -Thus a note may be negotiable that authorizes the sale of collateral -securities that have been delivered to the holder if the note is not -paid at maturity. But a note stating that the title to property for -which it is given shall remain in the payee, and that he shall have -the right to declare the money due and take possession of the property -whenever he may deem himself insecure "even before the maturity of the -note," is not negotiable. - -Again, the validity and negotiable character of a note is not affected -by the fact that it is not dated, or does not specify the value given -or the place where it is drawn, or the place where it is payable, or -bears a seal, or designates a particular kind of current money in -which payment is to be made. Furthermore, a note is payable on demand -when it is thus stated, or is payable at sight or on presentation. -Also an overdue note accepted or indorsed is regarded as payable on -demand, so far as the maker is concerned. - -A note may be drawn payable to the order of a specified person, or to -him or his order, or it may be drawn payable to the order of a payee -who is not the maker, drawer or drawee, or it may be drawn payable to -the order of the drawer or maker, or to the drawee, or to two or more -payees jointly, or to one or some of several payees, or to the holder -of an office for the time being. - -Again, a note is payable to the bearer when it is thus expressed, or -to a person named therein or bearer, or when it is payable to the -order of a fictitious or non-existing person, and the fact is known to -the person making it so payable, or when the name of the payee does -not purport to be the name of any person, or when the only or last -indorsement is an indorsement in blank. On one occasion funds were -deposited in a bank in the name of a federal disbursing agent under -treasury regulations that "any check drawn by a disbursing office upon -moneys thus deposited must be in favor of the party by name to whom -payment is to be made and payable to order." The disbursing officer -fraudulently drew checks payable to fictitious payees and cashed them -under forged indorsements of the fictitious payees' name. The court -held that the checks were not payable to bearer and that the bank was -not protected in paying them. - -A note is not invalid for the reason only that it is ante dated or -post dated, provided this is not done for an illegal or fraudulent -purpose. The person to whom it is delivered acquires the title from -the date of delivery. If a note expressed to be payable at a fixed -period after the date is issued undated, or the acceptance of such a -note is ante dated, the holder may insert the true date of issue or -acceptance. Nor does the insertion of the wrong date avoid the note in -the hands of a regular subsequent holder. More generally, when a note -is wanting in any particular material, the holder or possessor has the -authority to complete it by filling up the blanks. This authority -extends to every incomplete feature of the note and may be used for -inserting the date, amount, name of the payee, and time and place of -payment. When authority is conferred on another to fill blanks it must -be strictly followed. If a note is drawn payable with interest at the -rate of __ per cent, it draws interest at the legal rate, although the -blank is not filled. The presumption that a note was completed before -it was signed and not afterwards does not arise in a note written in -several inks and by different hands. And the purchaser of a note with -an unfilled blank is put on inquiry respecting the authority of a -person entrusted with an incomplete note. Thus A signed blank forms of -notes and left them with his attorney, but with no authority to -complete and issue them until instructed. The attorney filled them up -without further instructions and issued them to a person who knew they -had been signed, that the attorney had a power of attorney to act for -A, but did not attempt to read or otherwise ascertain its terms. A was -not prevented from denying the validity of the notes. In another case -a person who signed a number of notes in blank as to date, payee and -amount, and left them in his desk in his office, whence they were -stolen, filled in and indorsed to B for value before maturity and -without notice of any defects, was nevertheless not liable on them. -When therefore an incomplete instrument has not been delivered it -cannot be completed and negotiated without authority, and if it is, it -is not a valid contract in the hands of any holder as against the -person whose signature was placed thereon before delivery. - -Every contract on a negotiable note is incomplete and revocable until -its delivery. As between the immediate parties, and also a remote -party other than a holder in due course, the delivery, in order to be -effectual, must be made either by the authority of the party making, -drawing, accepting or indorsing as the case may be. The delivery may -be shown to have been conditional, or for a special purpose only, and -not for the purpose of transferring the property of the note. But -where the note is in the hands of a holder in due course, a valid -delivery thereof by all parties prior to him is conclusively presumed. - -When the language of a note is ambiguous the following rules of -construction are applied: (a) if there is a discrepancy between the -words and figures in expressing the amount, the words control, if the -words are ambiguous or uncertain, reference may be had to the figures -to fix the amount; (b) if the note provides for paying interest -without specifying the date from which it is to run, the interest runs -from the date of the note, if this is undated, from the issue of it; -(c) if not dated a note will be considered as dated from the time of -issue; (d) if there is a conflict between the written and printed -provisions, the former will prevail; (e) if it is doubtful whether the -instrument is a bill or note, the holder may elect which it shall be; -(f) it is not clear in what capacity the person making the note -intended to sign he is to be deemed an indorser; (g) when a note -containing the words "I promise to pay" is signed by two or more -persons, they are deemed to be jointly and severally liable thereon. - -The signature of any party may be made by a duly authorized agent. No -particular form of appointment is necessary for this purpose, and the -authority of the agent may be established as in other cases of agency. -If, however, one signs as agent without disclosing his principal, he -is personally liable. Thus, a husband signed a note in his own name -without adding more. As he had disclosed no principal, he was -personally bound, and his wife, for whom he claimed to have signed the -note, was not liable. The maker of a note added to his signature, -"Pastor of St. Frances' church." This was regarded as his personal -note, all besides his name were words merely of description. A person -signed a note thus: "Estate of William R. Clark by William R. Clark, -Jr., Trustee." As he was not authorized to borrow on behalf of the -trust and give a note as trustee, he was individually liable -notwithstanding the form of the note. - -Where the signature is forged or made without the authority of the -person whose signature it purports to be it is wholly inoperative. -Thus A cashed a number of drafts and checks payable to B's order on a -forged indorsement of B's name by B's bookkeeper, who appropriated the -money to his own use. Nevertheless, B recovered the amount of the -drafts and checks from A, nor was his negligence in not examining the -bookkeeper's books or accounts a good defense. In another case before -a note was delivered to and accepted by the payee, A, whose name -appeared on the back, was shown the note who said, "Everything is all -right." Afterward he resisted payment on the ground of forgery. As the -payee was induced to take the note on A's statement of its -genuineness, he could not escape payment. - -Every negotiable note is deemed to have been issued for a valuable -consideration, and every person, whose signature appears thereon, to -have become a party for the value. An accommodation party is one who -has signed the note as maker, drawee, acceptor or indorser without -receiving value therefor, and for the purpose of lending his name to -some other person. Such a person is liable on the note to a holder for -value, though the latter knew he was only an accommodation party. - -What is meant by negotiating a note? By transferring it in a way -whereby the transferee becomes the holder or owner. If payable to -bearer it is negotiated by delivery; if payable to order it is -negotiated by indorsement and delivery. An indorsement may be either -special or in blank; and it may also be either restrictive, or -qualified, or conditional. A special indorsement specifies the person -to whom, or to whose order the note is payable. An indorsement in -blank specifies no indorsee, and a note thus indorsed is payable to -bearer and may be negotiated by delivery. The holder may convert a -blank indorsement into a special one by writing over the signature of -the indorser in blank any contract consistent with the character of -the indorsement. By a qualified indorsement the indorser becomes a -mere assignor of the note, and is made so by adding to his signature -the words "without recourse," or others of similar import. Such an -indorsement does not impair the negotiable character of the note. When -a note is payable to the order of two or more payees or indorsers who -are not partners, all must indorse unless the one indorsing has -authority to indorse for the others. Again, where a note is drawn or -indorsed to a person as cashier or other fiscal officer of a bank or -corporation of which he is the officer, it may be negotiated by either -the indorsement of the bank or corporation or by the indorsement of -the officer. And where the name of a payee or indorser is wrongly -designated or misspelled he may indorse the note as therein described, -adding, if he thinks fit, his proper signature. The holder may at any -time strike out any indorsement which is not necessary to the title. -When this is done, he and all subsequent indorsers are thereby -relieved from liability on the note. - -The holder of a negotiable note may sue thereon in his own name; and -payment to him in due course discharges it. Who is a holder in due -course? One who holds a note on the following conditions: (a) that it -is complete and regular on its face; (b) that he became the holder -before it was overdue and without notice that it had been dishonored; -(c) that he took it in good faith and for value; (d) that at the time -of its negotiation to him he had no notice of any infirmity in the -note or defect in the title of the person negotiating it. A note -therefore, providing that any delinquency in the payment of interest -"shall cause the whole note to immediately become due and collectable" -is made overdue by the maker's failure to pay the interest when due, -and a subsequent taker cannot be a holder in due course. - -To constitute notice of an infirmity in a note or defect in the title -of the person negotiating it, the person to whom it is negotiated must -have had such actual knowledge of the infirmity or defect that his -action in taking the note amounted to bad faith, but merely suspicious -circumstances are not enough to put a prudent man on inquiry. - -On the other hand if the purchaser does suspect and fails to -investigate, lest a defense be disclosed to the maker of the note, he -is not a purchaser in good faith. The maker of a note engages that he -will pay it according to its terms and admits the signature of the -payee and his capacity to indorse, and engages that on due -presentation the draft will be accepted or paid or both, according to -its terms, and that if it is dishonored, and the needful proceedings -in consequence are taken, he will pay the amount. A person placing his -signature on a note otherwise than as maker, drawer or acceptor is -deemed to be an indorser unless he clearly indicates his intention to -be bound in some other way. The Negotiable Instruments Act fixes the -liability of a person who is not a party to a note, and who indorses -it before delivery. The law was in great confusion before this act -established a definite rule. Such a person is now liable as indorser -in accordance with the following rules: (a) if the note is payable to -the order of a third person, he is liable to the payee and to all -subsequent parties; (b) if payable to the order of the maker or -drawer, or if payable to bearer he is liable to all parties subsequent -to the maker or drawer; (c) if he signs for the accommodation of the -payee he is liable to all parties subsequent to the payee. - -Presentment for payment is not necessary in order to charge the person -primarily liable on a note, but if it is payable at a mentioned place -and he is able and willing to pay it there at maturity, such action is -equivalent to a tender of payment on his part. Presentment for -payment, of course, is needful to charge the drawee and indorsers. -When the note is not payable on demand, presentment must be made on -the day it falls due. When it is payable on demand, presentment must -be made within a reasonable time after its issue. This rule does not -apply to all bills of exchange. Thus unreasonable delay in presenting -a check will discharge the indorser whether such delay is a cause of -loss to him or not. Likewise a certificate of deposit payable on -demand must be presented for payment within a reasonable time after -its issue in order to hold the indorser. "The usage of trade or -business includes the usage of banks relating to presentment of checks -for payment. It is sufficient diligence to charge an indorser if a -check on the bank in another place is forwarded through various banks -for collection in accordance with the regular usage of the business, -although presentment might have been more promptly made if a more -direct course had been taken." Presentment for payment must be made by -the holder or by some person authorized by him to receive payment, at -a reasonable hour on a business day and at a defined place, and to the -person primarily liable thereon. And if he is absent or inaccessible -then to any person who is at the place where presentment is made. If a -note is payable at a bank the payor has until the close of banking -hours to pay it, and if, before the close of the bank day, he deposits -money enough to pay it a demand earlier in the day is premature. Delay -for presenting a note for payment is excused where the delay is caused -by circumstances beyond the holder's control, and he is in no way -negligent. Nor need presentment for payment be made when after using -reasonable diligence it cannot be made, or where the drawee of a bill -is a fictitious person, and lastly where presentment, express or -implied, has been waived. - -Every negotiable note is payable at the time fixed therein. When the -day of maturity falls on Sunday or a holiday, the note is payable on -the next succeeding business day. Notes falling due on Saturday are to -be presented for payment on the next succeeding business day, except -that notes payable on demand may, at the option of the holder, be -presented for payment before twelve o'clock noon on Saturday when that -entire day is not a holiday. - -When the note is payable at a fixed period after the date, after -sight, or after the happening of a specified event, the time of -payment is determined by excluding the day from which the time is to -begin to run, and includes the date of payment. And where a note is -made payable at a bank it is equivalent to an order to the bank to pay -it for the account of the principal debtor thereon. In accordance with -the notation on the margin of a note the holder sent it for collection -to a bank which held, as a special deposit, the maker's money. The -cashier at maturity notified the maker who directed the cashier to pay -the note. The cashier said "All right, your note is paid." The note -was regarded as paid. - -When a negotiable note has been dishonored by non-acceptance or -non-payment, notice of dishonor must be given to the drawer and to -each indorser, and any drawer or indorser to whom such notice is not -given is discharged. A written notice need not be signed and an -insufficient notice may be supplemented by verbal communication. Nor -does misdescription of the note vitiate the notice unless the party to -whom the notice is given is in fact misled thereby. The notice may be -in writing or merely oral, and may be given in any terms which -sufficiently identify the note and indicate that it has been -dishonored by non-acceptance or non-payment. It may be delivered -personally or through the mails. Where the parties to be notified are -partners, notice to any one of them is notice to all even though there -has been a dissolution. But notice to joint parties who are not -partners must be given to each of them, unless one of them has -authority to receive the notice for the others. - -When the person giving, and the person who is to receive notice reside -in the same place, it must be given within the following times: (a) if -given at the place of business of the person who is to receive notice -this must be done before the close of the business hours on the day; -(b) if given at his residence it must be given before the usual hours -of rest on the day following; (c) if sent by mail it must be deposited -in the post office in time to reach him in usual course on the day -following. If the parties reside in different places the notice must -be sent within the following times: (a) if sent by mail it must be -deposited in the post office in time to go by mail the day following -the day of dishonor, or if there be no mail at a convenient hour on -that day by the next mail thereafter; (b) if given otherwise than -through the post office then within the time notice would have been -received in due course of mail if it had been deposited in the post -office had it been deposited in the post office as above described. - -If a party had added an address to his signature the notice must be -sent to that address, if he has not, then the notice must be sent as -follows: (a) either to the post office nearest to his place of -residence or to the post office where he is accustomed to receive his -letters, or if he lives in one place and has his place of business in -another, notice may be sent to either place, or if sojourning in -another place, the notice may be sent there. In any event if he -receives the notice within the time specified, it will satisfy the -law. - -Of course notice may be waived; sometimes, also, it is quite -impossible to give notice; whenever this happens the law does not -require notice to be given. - -Something should be added concerning alterations that are made -occasionally in negotiable instruments. Any alteration which changes -the date, the sum payable either of principal or interest, the time or -place of payment, the number or the relations of the parties, the -medium or currency in which payment is to be made, or which adds a -place of payment where no place of payment is specified, or any other -change or addition which alters the effect of the instrument in any -respect is a material one and ought not to be made. To add the words -"with interest," with or without a fixed rate, is a material -alteration. But the insertion by the payee of the words "interest" -after the making of a note by authority of maker will not vitiate it. -And if a note had the clause, "interest at __ per cent," the insertion -of the legal rate would not be a material alteration since the legal -import would not be changed. - -The position of a writing on a note is not important, for the effect -of the contract is to be gathered from the four corners of the paper. -The general rule is, if a memorandum written on an instrument in the -margin or at the foot is made before or at the time of its execution, -it is considered a part thereof, and if it affects the operation of -the terms of the body of the instrument it is a material part. It -follows that words written by a party on the margin of an instrument -after its execution and delivery, constitute an alteration if -intended to affect the terms of the instrument and would have such -effect if they were there when the instrument was executed. - -A bill of exchange is an unconditional order in writing addressed by -one person to another, signed by the person giving it, requiring the -person to whom it is addressed to pay on demand or at a fixed -determinable future time a certain sum of money to order or bearer. A -bill of itself does not operate as an assignment of the funds in the -hands of the drawee available for its payment, nor is the drawee -liable on a bill until he accepts or agrees to pay it. An inland bill -is one drawn and payable within a state. Any other is a foreign bill. - -An indorsed promissory note and an accepted bill are very much the -same thing, and that is why the law always treats of both together. -The maker of a note incurs the same obligations as the acceptor of a -bill, both are the parties primarily liable thereon, and the indorser -of a note and the drawer of a note are both secondarily liable on -proper notification of the failure of the primary parties to pay, as -we have learned. The payees in both cases are the same. The acceptance -of a bill is the signifying by the drawee that he has assented to the -drawer's order, and must be in writing. An unconditional promise in -writing to accept a bill before it is drawn is deemed an actual -acceptance in favor of every person who on the faith thereof receives -the bill for value. The drawee is allowed twenty-four hours after -presentment to decide whether or not he will accept the bill; but the -acceptance, if given, dates from the day of presentation. Furthermore, -an acceptance may be qualified as to time, acceptance of payment in -part only and in other ways. When a foreign bill is not accepted it -must be protested, which must specify the time and place of -presentment, and other particulars, and is usually made by a notary -public, though this can be done by other persons. - - -=Parent and Child.=--A parent is legally as well as morally bound to -support his children who are incapable to care for themselves. Should -a wife be divorced from her husband his duty to maintain the children -would not fall on her, unless she also had the custody of them. A -father's obligation to maintain his child continues until he is able -to provide for himself. The legal obligation ceases by common law as -soon as a child attains majority, however helpless he may be or great -may be his father's wealth. - -A child that has property of his own, while his father's means are not -enough, may be supported from his own means. Even the principal may be -used in this manner. Generally if the father has ample means, he must -use them to educate his child. When the father can use the child's -fortune and how much, is sometimes a difficult question to answer. The -education of a child is now largely regulated by statute. - -A parent may protect his child, even a homicide is justifiable. A -parent can also correct his child. Says an excellent authority: "The -rights of parents result from their duties. As they are bound to -maintain and educate their children, the law has given them such -authority, and, in support of that authority, a right to the exercise -of such discipline as may be requisite to the discharge of the sacred -trust." See _Adopted Child_; _Husband and Wife_. - - -=Partnership.=--There may be a partnership in a single transaction, -for example, to buy and sell a load of potatoes. Persons may be liable -as partners to others who had no intention of creating that relation. -If A acts in such a way by speech or deeds as to create the belief in -B that he is a partner, and thus believing B sells goods to the -partnership, A is liable as a partner for them. On the other hand if B -knew that A was not a partner, he could not hold him as one. In many -cases it is difficult to determine whether one is a partner or not. -Many tests have been applied. The most general is that of intention. -Simply sharing in the profits and losses will not always suffice. This -was long considered a proper test but it broke down after many -applications. Thus, suppose a clerk is paid by giving him a fixed -percentage of the profits as a compensation, is he a partner? He was -so regarded on one occasion, and the firm having failed he was made -liable for all its debts. That is one of the consequences attending -the relation, every partner is liable for the entire indebtedness of -the amount he may have contributed. The clerk contributed nothing, -nevertheless he was liable like the others. Today the courts would -decide such a case differently. It would inquire whether the partners -intended to make him a partner, or only gave him a share of the -profits as a mode of paying him for his service. The recent -Partnership Act contains this test. - -A partnership may usually hold any kind of property, real and -personal, and not infrequently is formed to cultivate or deal in land. - -A partner is a general agent. Hence the risk of creating the relation. -Being a general agent he can bind his partnership for any acts within -the scope of his authority. Yet there are limitations. If a -partnership was engaged in selling dry goods, a partner could hardly -bind his partners by making a contract with a person for a quantity of -iron, unless it was needed in rebuilding the store, or in some other -connection with the business. He can make and indorse negotiable paper -that is used in connection with the business. Suppose he borrows money -on his own note and he gives the money to his firm, is it responsible -for the amount? This has proved a hard question for the courts. If the -money though loaned on his note was for the benefit of the -partnership, and it was known at the time that it was to be used in -that way, the partnership would be liable; but if the money was to be -used by the borrower and this was known and believed by the lender he -could look only to the borrower for payment. - -The receiving of a new member constitutes a new partnership. It may -reorganize the old partnership and become responsible for its debts, -or it may not. Unless recognized in some way by paying interest on -them and the like, the new member does not become responsible for -them. - -A partnership is formed usually by a definite agreement that is put in -writing. Yet it may be simply an oral agreement with very general -terms about the contribution of capital or skill of the respective -partners and their division of profits. They may and usually do have -distinct fields of employment, each doing the thing for which he is, -or supposed to be, best prepared. By reason of their general -liability, in the olden days persons who wished to thus engage and yet -not be responsible, were kept in the background, and were known as -secret and dormant partners. If found out they were liable because -they were to share in the profits. The fact that they were unknown -when credit was given to the partnership at the time of selling goods -to the concern did not shield them from liability after the discovery -of their relation. - -The difficulty has since been removed in two ways, by incorporating -the partners into a corporation whose powers and liabilities are fixed -by law and therefore known to all, and by forming limited liability -partnerships. These consist of two or more general partners, also -special partners who contribute an amount of capital, of which the -public is publicly informed. If such an association is unsuccessful, -the special partners may indeed lose all, or a part of the capital -they have contributed, but are liable for no more. This is a great -improvement over the secret and dormant methods of getting the capital -needed for partnership purposes. One of the matters that should be -carefully guarded in forming a limited liability partnership is to -contribute the full amount of capital advertised. If any deception is -practiced, or mistake made, whereby a smaller amount is contributed, -should the partnership not succeed, the special partners become liable -as general partners for the full amount. Once such a partnership was -formed with three special partners who contributed each $100,000, and -at the end of two years were told that their profits individually were -$60,000. Each was asked to contribute $100,000 more, and feeling happy -over his venture, he put in $40,000 more, which, added to his profits, -made up the required amount. When the concern failed a few years -afterwards the books showed that neither special partner was ever -entitled to $60,000 as profits. Though innocent, for they had never -examined the books, they were held as general partners for the entire -indebtedness of the concern. - -An illegal contract made by a partner will not bind his partnership, -for all parties are supposed to know the law, and an illegal bargain -cannot be enforced, for example, an agreement to pay usurious -interest. - -How may a partnership be dissolved? Unless the time is fixed by -agreement, it may be dissolved by any member whenever he pleases to do -so, though he cannot act wantonly to the manifest injury of the others -without making himself responsible for their loss. And if a partner -should attempt to transfer his interest before the time fixed for -ending the relation without good reason, to the manifest injury of the -other partners, he can be legally restrained from taking such action. - -The death of a partner causes a dissolution. Nor can executors or -administrators succeed to his place, though they often do so for a -short period to prevent the interruption of the business and to enable -all parties to fare better than they would by its sudden ending. Yet -it is awkward for these officials to thus act, and in so doing they -incur an unpleasant personal responsibility. To relieve them from this -some states have passed statutes permitting them to thus act with the -other partners under the direction and orders of the court having -charge of the estate. - -A partner who retires should give notice of his retirement to relieve -himself from future liability. For, should he neglect, and persons -continued to sell on credit to the firm, supposing he was a member, he -would be liable as before. The statutes in some states regulate his -duty in this regard; it is one that he cannot safely omit. - -Should a partnership fail, the general rule with respect to the assets -is the partnership property must be used to pay partnership debts, and -the individual property of partners to pay their individual debts. If -a partner has anything left after paying his individual debts, it must -be devoted to paying the partnership debts. If the partnership has -anything left after paying its debts, this belongs to the partners in -accordance with their agreement in contributing it and the earnings, -and must be devoted to the payment of their individual debts. - -Lastly concerning the authority of a liquidating partner. He can do -many things, give renewal notes, make indorsements, collect debts due -the partnership, and even revive an outlawed debt. Of course the -affairs of a partnership may be settled by some other person than a -partner; not infrequently a receiver is appointed who acts under the -order of the court that appointed him. - -An agreement between a liquidating partner and the other partners, to -take all the property and pay all the debts, is limited in its effect -to themselves and does not affect others. After the partnership assets -have been transferred to a liquidating partner, or to any other person -for liquidation, a debtor who has notice of the transfer is not -justified in making a settlement with any one else. And if he should -do so, the liquidator could require him to pay again to himself. - - -=Patent.=--In the United States the thing patentable is a new and -useful art, machine, manufacture or composition of matter, or new and -useful improvement thereof, or new, original and ornamental design for -an article of manufacture. An idea, principle or law of nature is not -patentable, but only the means for utilizing the idea or principle. -Many a great discovery has slipped away from the inventor or -discoverer, because he sought to hold the discovery or invention of -the principle as his own, instead of limiting his claim to the means -or methods of putting his principle into use. Morse's invention of -telegraphy is one of them. An art or process is patentable as well as -machinery, though the inventor may not know the abstract principles -involved in his art. But he must know and describe the steps by which -the result is accomplished. A composition of matter is a mechanical -mixture or chemical combination of two or more substances; and an -improvement is an addition to, or change in, a known art, machine, -manufacture or composition of matter, which produces a useful result -and is patentable if it amounts to invention. Lastly "a patentable -design may consist of a new and ornamental shape given to an article -of manufacture, or of an ornamentation to be placed upon an article of -old shape." It is said that the law relating to this subject intends -that the patentability of a design shall be determined by its appeal -to the eyes of the ordinary man, and not to the eyes of a jury of -artists. Design patents are granted for different periods, three years -and a half, seven years and fourteen years, as the applicant may -elect. - -The subject matter of a patent must be new and useful. It must be new -not only to the patentee, but to all the people in this country, and -at the time he filed his invention. The federal law, however, secures -a patentee who had no knowledge that his invention had been discovered -abroad and which had not been patented there, nor described in a -printed publication. Before the enactment of this law a patent was not -granted without showing that the applicant was the original inventor -with relation to every part of the world. - -Much has been said concerning the novelty of an invention. This may be -in the use of an old means in a new way; or a change of shape or form -to produce new functions and results, but the changes must amount to -invention, which is more than mere novelty. - -A foreign patent in order to invalidate an American patent must -antedate the invention patented. A foreign patent exists as a patent -only as of the date when the invention was published. In England an -invention is not patented within the meaning of the act of Congress -until the enrollment of the complete specification. - -What is meant by a prior publication? It is a printed book, newspaper -or document of a public nature disclosing the invention intended and -actually employed for the purpose of informing the public. Publication -in a book of general circulation is sufficient; business catalogues or -circulars are not such publications as are meant in the law. - -To defeat a patent on the ground of want of novelty the proof of prior -use or knowledge must be convincing, sufficient to establish the fact -beyond a reasonable doubt. The recollection of one witness concerning -the peculiar construction of a piece of machinery, especially if the -structure is one of complex character, is not enough evidence to -defeat a patent. Much less evidence, however, might be sufficient to -prove that a very simple invention had been anticipated. - -To justify the granting of a patent it must be useful. If the -invention be frivolous or pernicious, the inventor cannot secure for -it legal protection. The use of the invention must not be contrary to -public health or morals. It is not needful that the invention should -be the best of its kind, or that it should accomplish all that the -inventor claims for it. Furthermore, its utility depends on the state -of the art at the time of making the claim or issuing the patent; its -subsequent inutility does not invalidate the patent. Extensive use is -evidence of utility. The presumption of law favors a patent, and the -burden of proof is on the one attacking it to show that it is not -useful. The infringement of an invention is in effect an admission of -utility, because use implies utility. - -A patent also calls for the exercise of inventive power. Though -invention must be seen in every patent, it is difficult to define. -Says a former commissioner of patents, Justice Duell: "It is a matter -resting in judgment and therefore no fixed rule for its determination -is possible." Some principles, however, assist in defining the term. -"Thus, it is declared that an act of invention is primarily mental and -involves the conception or mental construction of a means not -previously known for accomplishing a useful result. It is not the mere -adaptation of old means by common reasoning, but is the construction -of new means through an exercise of the creative faculties of the -mind." Between invention and discovery the patent laws draw no -distinction. Again, it has been often said that the design of the -patent laws is to reward those who make a substantial invention or -discovery, which is an additional step in the useful arts. The law -never intended to grant a monopoly for every trifling device which -would naturally occur to a skilled mechanic in the ordinary progress -of manufacture. - -An article of manufacture is not patentable because means have been -devised to make it more perfectly than before; it must be new in -itself and not merely in its workmanship. A machine-made article -therefore is not patentable simply because it is thus made, and no -longer by hand. - -The substitution of an art, manufacture, or composition of matter of -one element or device for another which does the same thing in the -same way and accomplishes a similar result is not invention. Even if -the substituted part performs the function better, there is no -patentable invention unless some new function or result is secured. -Changes therefore of the relative location of parts without changing -the functions performed by them are not an invention, nor is the -omission of a part with a corresponding omission of function. - -A patent can issue only to the inventor, or if he is dead to his -executor or administrator. If there be two original inventors the one -who first made it or brought it to this country is entitled to a -patent. A patent granted on the application of a non-inventor is void. -By first inventor is meant the one who first had a mental conception -of the invention provided he exercised diligence in perfecting it. If -there be a rival claimant the party who first reduced to practice the -invention was, until the contrary fact is shown, the first inventor. -One who merely utilizes the ideas of others is not an original -inventor and is not entitled to a patent. In the United States any -person, regardless of residence, citizenship or age may obtain a -patent. - -An invention is reduced to practice when it is so far perfected that -it may be put into practical and successful use. The machine may not -be perfectly constructed, but it embodies all the essential elements -of the invention. Demonstration of its success by actual use is -usually necessary, but not always. The reduction to practice must be -by the applicant for a patent, or by his agent; to do this by a third -party will not suffice. The person who first conceived the invention, -but was later than his rival in reducing it to practice, is not -regarded as the first inventor unless he exercised due diligence to -perfect his invention after the time that his rival entered the field -against him. - -Two or more parties may contribute in developing an idea and producing -an invention, which is truly the result of their joint mental efforts, -and not the separate invention of either. In such case both must apply -for the patent, which is granted to them jointly. But if a patent is -thus issued to two and only one of them is the inventor, the patent is -invalid. Nor can one of two joint inventors make application and -secure the patent on assignment from the other; both must join. - -The patent must issue on the application of and in the name of the -real inventor even though he was employed to make it for the benefit -of another. Notwithstanding, the employer is the owner of the patent -and may compel the patentee to transfer it to him. Of course their -respective rights may be changed by agreement. If no agreement exists, -a company that employs a skilled workman to make improvements on its -machinery is not entitled to the patents granted to the workman. Says -Justice Duell: "An employee, performing all the duties assigned to him -in his department of service, may exercise his inventive faculties in -any direction he chooses with the assurance that whatever invention he -may thus conceive and perfect is his individual property. The -company, however, has an implied license to make, use and sell the -invention." - -Where a party employs another to assist him in perfecting an invention -the presumption is that the employer is the real inventor of the thing -produced by their joint effort. On the other hand, where a person is -employed to exercise his inventive skill, because he is known to be -the possessor of it, Edison for example, the presumption is in favor -of the employee. Government employees may secure patents on inventions -made by them during their employment, after their relationship has -ceased. The government may have an implied license to use the -invention without any title thereto. - -Patents may be issued and reissued to assignees on the application of -inventors. On the death of an inventor before a patent has been issued -to him, his executor or administrator may apply therefor, who takes -the patent in trust for the heirs. A foreign executor or administrator -may make a similar application. He must, however, present a proper -certificate of his authority to act. Likewise, a legally appointed -guardian or conservator of an insane inventor may apply for and obtain -a patent in trust for him. - -The inventor must apply to the commissioner of patents for letters -patent which secure to him his invention. The application comprises a -petition, specification, claims, oath, drawings if the nature of the -invention may be thus shown, and a model, when this is required by the -patent office. A fee of fifteen dollars also must be sent with the -papers. The application must be signed by the inventor and two -witnesses. - -The specification is the written description of the invention and of -the manner and process of making, constructing, compounding, and -using the invention; whatever it may be. He must describe not merely -the principle of the invention, but the mode of applying it in such a -clear, intelligible manner that those who are "skilled in the art" -can, without other aid, use the invention. Nothing should be left to -experiment. The phrase "skilled in the art" means persons of ordinary -skill. Whether a description is clear, exact and sufficient is a -question for the jury whenever it is a matter of legal contention. - -In describing an improvement the same rule is applied. The description -should show clearly the nature of it. The description should -distinguish between the old and the new. "A description in a patent -for an improvement is sufficient if a practical mechanic acquainted -with the construction of the old machine in which the improvement is -made, can, with the aid of the patent and diagram, adopt the -improvement." If an inventor intentionally conceals facts or misleads -the public by an erroneous description, his patent is void. - -Concerning the claim or claims with which the inventor concludes his -specification many questions have arisen. First, the claim must be -clearly stated so that the public may know what it is. The claim -should not be too broad. Several claims may be made, but they should -not be varying phraseology for the same thing. They should state the -physical structure or elements of mechanism by which the end or result -is produced. - -The inventor must make oath that he believes himself to be the -original and first inventor, that he does not believe that the thing -was ever before known or used, and as to his citizenship. If dead or -insane, the oath must be made by his executor, administrator, or other -representative. After the application is granted another fee of twenty -dollars must be paid. - -The commissioner of patents must make an examination for the purpose -of deciding whether a patent may be granted or allowed. This -examination is made by an examiner, whose decision, however, is not -conclusive and may be set aside by the commissioner. The patent office -is not confined to technical evidence in rejecting applications, but -may base its action on anything disclosing the facts relating to the -matter. - -When objection is made to the form of the application, an amendment -may be made by the applicant or his attorney to correct the error; and -this may be done at any time prior to the entry by the first examiner -of a final order of rejection, and within one year from the date of -the preceding action by the patent office. - -When two parties apply for a patent for substantially the same thing -an interference is declared and the respective parties must present -proofs in support of their claims. The question between them is -priority of invention. The proceeding then is much like an equity -trial with perhaps a wider latitude in admitting evidence bearing on -the inquiry. - -The applicant, if dissatisfied with the rejection of his claim by the -first examiner, or with the decision in an interference case, can -appeal to the board of the examiners-in-chief, and if dissatisfied -with their decision he may appeal to the commissioner in person, and -if still dissatisfied he can appeal to the Court of Appeals of the -District of Columbia. All appeals must be taken from the patent office -within a year, or a shorter period, if one has been fixed in a -decision. - -The decision of the commissioner of patents in granting a patent is -not conclusive that the inventor is the first and original inventor, -but only prima facie, that is, in the absence of other evidence to the -contrary. Consequently, the question of patentability in every case -may be reexamined in the courts. In the early days of administering -the patent law an inventor often applied to a court for an injunction -to prevent an infringer from continuing his work. The court, assuming -that the patent had been properly granted, did not hesitate, on -adequate proof of the infringement to grant the injunction. The courts -were not slow in finding out that patents were sometimes granted that -ought not to have been, and so the practice was changed and patentees -were required to establish their right to a patent in a court of law -before a court would enjoin an infringer, except in very clear cases. -These hearings in the courts to decide the claims of patentees, are -often prolonged, running through years to collect testimony, and are -appealed from one court to another finally reaching the supreme -federal tribunal. After a patent is thus judicially established -injunctions are readily granted against all infringers. - - -=Payment.=--In making payment the parties to an agreement always have -in mind cash, unless they otherwise agree. Not every kind of money can -be used, nor only in limited amounts. Thus, if one owed another a -thousand dollars he could not deliver to him, unless he were willing -to accept them, one thousand silver dollar pieces, but only ten of -them. Nor can a debtor compel his creditor to receive one cent and -five cent pieces to a greater amount than twenty-five cents. National -bank notes may be paid or tendered to the government, and by one bank -to another, yet they may be refused by an individual in payment of his -debt. It is important, when one owes another and there is a dispute -over the amount, that the debtor should tender or offer to pay his -creditor the proper kind of money, because should he offer him some -other kind, national bank notes for example instead of United States -notes, or those issued by the federal reserve bank, and he declined to -take them and should afterwards sue his debtor for the amount, the -latter's offer to pay in national bank notes would be regarded as no -payment, or even offer of payment. - -A note or check given for a bill of goods is not payment. In everyday -affairs a check is thus given and received, in fact it is only a -payment conditioned on payment of the check. Consequently if it is not -paid, the creditor can sue to recover on the check, or for the -original goods as he might elect. In most cases he would ignore the -check and sue for the original bill. Suppose some one had endorsed the -maker's check, then the creditor would probably sue on that in order -to hold both parties. - -Does a debtor who turns over a note to his creditor in payment, -thereby cancel the debt? If he does not, of course the creditor can -still sue the debtor; but if he turned the note over in actual -payment, then his right to sue his debtor is gone. What was the -intention of the two parties? This is a question of fact to be -ascertained like any other. - -How shall the money be applied of one who owes several debts to the -same person and makes a general payment? The debtor can make the -application, if he does not, the creditor can do so; if neither does -this, then the law applies it, first to the payment of interest that -may be due on any of the debts, and the balance left, should there be -any, to the payment of the principal. Of several debts the law applies -it to the oldest debt. Again, if there is a surety for any of the -debts, he may insist on the application of the money in order to be -relieved. - -If a depositor in a bank has made a note payable there this is -regarded very much like a check, it is a direction to the bank to pay -it, especially by the Negotiable Instruments law. Unless the maker of -a note is insolvent, a bank can never pay the unmatured note of a -depositor. Nor can a bank apply a deposit, which is known to be trust -money, or belonging to another person than the depositor to the -payment of his note. Generally a bank declines to pay a note that is -overdue though there is no law, except in a few states, against paying -it should the bank decide to do so. In all cases a depositor may make -any application of his deposit he desires, for it is his own and the -bank cannot divert it in any way against his direction. - -A receipt taken in payment of a debt is not conclusive evidence of -payment and may be contradicted by other evidence, though it is -regarded on its face as payment. When received, a receipt should be -kept for at least six years, because it is such strong evidence of -payment. After that period the statutes of limitation in most states -have the effect of canceling a debt, on the theory or presumption that -it has been paid. If the debtor afterward promises to pay, his new -promise is valid though there is no consideration therefor, and he is -legally required to pay the debt. - -Should a receipt also contain any other statement or contract beside -the payment of money, this would have the same effect as any other -contract between the parties, and would be equally binding on them. - -The effect of a seal after the receiptor's name may be explained in -this connection. A sued B and C for a debt. Before trial he gave C a -receipt stating that if he did not recover from B he would -nevertheless not hold C liable. Having failed in his suit against B, -he sought to hold C notwithstanding his receipt releasing him. And he -succeeded for the reason that his release was given without -consideration and therefore was worthless. Had A added after his name -a seal this would have imported or implied a consideration and the -receipt would have been an effective release. - - -=Prescriptive rights.=--A person may gain rights in the land of -another by acting in such a way as to indicate that he clearly makes a -claim to them. Thus, if a man goes over the land of another in the -same direction to his own land for a period of fifteen years or -longer, the period differing in the several states, he acquires the -right to continue, in other words he acquires a permanent right of way -by such action. As such a right is contrary to the interest of -another, it cannot be gained against a person who is incapable of -preventing the acquisition of such a right if he pleases. Such a -right, therefore, cannot be gained against a minor, nor an insane -person, nor any one who is incapable of defending his possessions. - -Whether the right has been fully acquired is not always easily -determined. Suppose one claims a right of way over another's land, and -the right is disputed. How often has he traveled that way? Has the -other person known of his going and said nothing? Again, suppose a man -sells another a piece of his farm away from a road, the law presumes -that he intended to grant or permit the buyer to have ingress and -egress to his land, otherwise he would not have purchased. This is -called a way of necessity. Can the purchaser choose any outlet he -pleases? The law says he must exercise reasonable discretion in making -his selection. - -When a way has been acquired by such use, the law is strict in -confining the gainer in the use of it. Thus A buys a piece of land of -another for the purpose of erecting a house thereon. The use of the -way thereto must be confined to A and his family, friends and those -who come to see him on business. Suppose A should decide to divide it -into building lots, which would require a greatly increased use of the -way. This could not be done without a new agreement with the seller. -Again, a tenant cannot by any use of the land acquire a right therein -that will continue beyond his lease. If he had a long lease, say -thirty years, and could gain a prescriptive right by an adverse use of -fifteen or twenty years, he would, if gaining any prescriptive rights, -be obliged to give them up at the end of his tenancy. In claiming a -right of way the use need not be exclusive. Other persons may also use -the way with the same claim of right. - -The owner of land has no natural right to light or air and cannot -complain that either has been cut off by the erection of buildings on -adjoining land. He may, however, acquire, by grant or some other way, -a right to have light and air enter a particular window, or other -place, without interruption by the owner of adjacent land. Nor can he -acquire a right to light and air across another's land for his own -house by simply erecting it on the edge of his own land while the -adjoining land is unoccupied. To erect windows on that side is not an -adverse use of the land adjoining. But a person may gain a right to -light and air by presumption, and if one has acquired the right to -maintain a window in a specified place he loses his right by closing -it up and opening another of a different size in another place. And -the same thing happens to one who tears down his house and builds a -new one with windows of the same size and in the same places as in the -old one. A person cannot maintain an action against another for -cutting off his view unless the right has been expressly acquired. - -The general rule with respect to the use of water is, any person -through whose land flows a stream may use it in a reasonable manner. -What is such a use has occasioned many a legal dispute, especially -among mill owners. Each one of them located on a stream may use the -water, but can they hold it back for any length of time? As a general -rule this can be done for a short time in order to get the use of the -power, if they could not, the water could run to waste and no one -would derive any benefit. Again, can any diversion be made of it? Any -use, almost, is a diversion. If one used water even to supply his -cattle, it would be a diversion, yet such a use ordinarily is lawful. -Suppose one had a very large herd, then the use might be excessive -especially in view of the needs of other users on the stream. A still -more important question has arisen of late concerning the fouling of -water. Has a factory the right of putting its dyestuffs into the -water, impairing its quality and rendering it unfit for use by all -below? This cannot be legally done. Can a stream be used as a sewer? -Naturally all the water in a valley flows downward and at last -reaches a stream running through it. As population increases the use -of streams becomes greater, and questions concerning their use more -difficult. - -Suppose a land owner on the hillside wishes to use all the surplus -water, can he gather it and thus prevent its flowing to the land -below? He can. Can he build ditches or other obstructions whereby he -can collect the water and pass it to the land below in other than the -natural way? He cannot. On the other hand, the lower proprietor can, -if he pleases, make an embankment that will prevent the water from -coming upon his land. This, though, is not the law everywhere. - -The owners of a well may prevent its overflow and thereby cut off -water that formerly ran into a stream. But the owner of a spring that -flows into the land of another cannot change its course, nor exhaust -the water, nor pollute it to the injury of another. Nor can surface -water be changed into a water course by impounding it. On the other -hand this rule does not apply to water or springs beneath the surface. -If in digging a well the source of supply to another is cut off, it is -a loss for which there is no redress, unless the well has been dug -maliciously. But where percolating water abounds and is obtained by -artesian wells a land owner has no right to sink wells on his land and -draw off the water supply of his neighbor. The right to cut ice is a -natural one, and the owner of a lake or stream may cut a reasonable -quantity, but not enough to diminish the water appreciably to the -lower proprietor. - -While a person has the natural right also to the lateral support of -his land, yet he cannot use it to the injury of another. This is a -legal maxim. If, therefore, he should excavate to the edge of his -land and his neighbor's building should in consequence fall down, -would he be without redress? The rule is, the excavation must be made -in a reasonable manner. This is a question of fact in every -controversy of the kind. The owner of land adjoining a highway has no -right to the lateral support of the soil of the street. Therefore, if -the grade of a street were lowered by proper authority and one's house -located by the side of it should fall, he would have no redress -against the city or other public body. - - -=Quasi Contracts.=--A quasi contract is a legal obligation arising -without the assent of one from the receipt of a benefit which, if -retained, would be unjust. The law therefore compels him to make -restitution. He is required to do this, not because he has promised to -make restitution, but because he has received a benefit which he -cannot justly retain. - -If one at the time of conferring a benefit on another confers it as a -gift, it cannot afterward be claimed that the gift was conferred -relying on a supposed contract. Consequently, though the donor's -intention may be subsequently altered, no obligation to make -restitution will arise. Nor does the failure of the donee to -reciprocate the donor's generosity or indirectly reward him, create -any right or claim on the donor's part to a return from the donee. - -Where one, in the preservation of his own property or the promotion of -his own interests, bestows some incidental advantage to another, there -is no legal obligation to pay for the value of it. Thus the owner of -the lower part of a house is not liable for the advantage resulting to -him from the repair of the roof by the owner of the upper part and -roof. Nor is one who has thickened and strengthened that part of an -ancient party wall which is on his own land, in order to sustain the -building he is erecting, entitled to recover from the adjoining owner -who used the wall. Nor can anything be recovered from the owner of a -vessel by the underwriters who had her docked for repairs though by -such docking the owner gained an important benefit. Nor can one who in -pumping out his quarry frees another quarry from water recover -anything for the service. Nor can one who is benefited by experiments -made by another to test the value of patented inventions, in which -both are interested, be legally required to pay for the benefit he has -received. - -As no expectation of payment does presumptively arise when services -are rendered by one member of a family to another member, one who -claims payment for them must prove that they were not rendered as a -gratuity, but on the legal supposition that he had a right to -compensation. - -One who knows or who has reason to believe that compensation is -expected for goods or services tendered to him ought not to accept -them unless he intends to pay for them. If he does his act of -acceptance will be regarded as a promise of payment, and can be -enforced. But if one accepts goods or services without knowledge or -reason to believe that compensation will be expected, what then? -Suppose A sends a barrel of apples to B supposing, from their previous -course of dealing, that B will return them if he does not want them? B -should either return them or pay. Suppose B is misinformed and learns -that A is giving a barrel of apples to each of his customers? Then he -would be justified in keeping them until he learned the truth. - -If, in making a contract it is taken for granted by both parties that -a certain fact exists, which, if not existing, would make the contract -impossible of execution, the contract is void. Thus, in contracts for -the sale of specific personal property, its existence at the time of -the sale is generally assumed. If the property has perished or been -destroyed, the contract is void. The same rule has been applied to the -sale of non-existent reality, of the transfer of void or spurious -securities, of the assignment of a void lease. In all these cases the -money paid in misreliance on the void contract is recoverable. - -Premiums paid on a policy of marine insurance by one who in reality -had no goods on board, or for a voyage that was never begun, may be -recovered. The existence of a risk is assumed by both parties, in fact -there is no risk, consequently there was nothing to which the contract -of insurance related. - -"A promise," says Woodward, "which is so general or indefinite that it -does not enable the courts to determine the nature and extent of the -obligation assumed must be regarded as no promise at all. Such has -been the fate of a promise to pay good wages; a promise to convey a -hundred acres of land, the land not being described; a promise to -divide profits, no rate of division being indicated. Instances might -be multiplied. A benefit conferred, in the honest, though mistaken, -belief that such a promise is binding ought in justice to be restored. -Restitution is accordingly enforced." - -The law requires some kinds of contracts to be executed in a -particular manner. Thus, by statute, many municipalities can make -contracts, or those of a particular kind, only on sealed bids or -proposals and after proper advertising for bids, etc. If these things -are not done, the contract made in disregard of them is invalid. The -courts of this country have got into deep confusion in applying this -rule to private corporations. Suppose a corporation makes a loan -without proper authority and receives the money, can the lender -recover it? The corporation had no right to borrow, of this the lender -knew as well as the borrower. Both parties are in the wrong. The -highest court in this country has been more consistent than many of -the state courts, and holds that a contract it cannot make for lack of -legal power is not made and cannot be ratified. "No performance on -either side can give the unlawful contract any validity, or be the -foundation of any right of action upon it." Nevertheless though a -contract is unlawful and void because the corporation was unable to -make it, a court strives to do justice between the parties by -permitting property or money, parted with on faith of the unlawful -contract, to be recovered back, or compensation to be made therefor. - -The lack of another legal requirement in making contracts gives rise -to serious consequences. We have learned that the Statute of Frauds -requires for the validity of many contracts that a memorandum of them -be made in writing and signed by one or both contracting parties. By -English law the statute provides a rule of evidence, that a writing -must be shown as proof of a contract before the courts will consider -it as having been made; by some of the American courts a contract that -does not meet the requirements of the statute is held to be void; by -other courts they declare that though the contract is not void it -cannot be enforced. - -While the Statute of Frauds in some states is regarded as completely -nullifying contracts not conforming to its requirements, they are not -anywhere held to be illegal, that is, are not made in violation of -law. "There appears," says Woodward, "to be no reason of policy, -therefore, for denying to a party thereto in a proper case, the aid of -the court in obtaining quasi contractual relief, or the right to -establish the justice of his quasi contractual demand by proving the -terms of the unenforceable agreement. True, the evidence of the -agreement in such a case, must be oral; but since the evidence is for -the purpose of proving, not a contract as such, but a transaction -resulting in an unjust benefit to the defendant, its introduction -would seem not to contravene the statute." - -A purchaser of land under an oral contract, who is given possession -and subsequently fails to pay, is liable for the use of the land to -him while he has occupied it. Though the act of the seller in giving -the purchaser possession without conveying the title may not be -regarded as a part performance of the contract of sale, yet the -benefit resulting to the purchaser creates an obligation to make -restitution which the courts will enforce. The improvement of land by -the purchaser under an oral contract is an act which enables him to -enforce the contract in equity. Improvements made by a lessee under an -oral lease within the statute are governed by the same rules as those -of improvements made by a purchaser. - -If no benefit has been derived from the contract, nothing can be -recovered. Thus, a son worked for his father on his father's farm -under an unenforceable contract with his uncle. The latter was under -no quasi contractual obligation to pay the value of such service, -since he had derived no benefit from them. Likewise one who, relying -on an unenforceable contract, constructed a wood-chopping machine that -was not accepted could not recover for the value of his labor and -materials. - -Again, where one party by his own act or default has prevented the -other party from fully performing his contract, the party thus -preventing performance cannot take advantage of his own act or -default, and screen himself from payment for what has been done under -the contract. Thus, if one party agrees with another to work on a -house the law implies that the employee owns the building in which the -work is to be done. This is a part of the contract whether the house -is clearly specified or not. Therefore, an employer who does not own -the house, or parts with it before the work is completed, is liable to -the other party. - -The destruction of a thing in the course of alteration or repair -without the fault of the bailee is a case like that above mentioned. -The labor and materials are expended in response to the desire of the -owner of the property, and therefore it is just that he should pay for -the property he destroyed. In one of the old cases a horse was sent to -a farrier to be cured and was burnt before a cure was completely -effected. Nevertheless, the farrier was entitled to payment for what -he had done. Likewise, the owner of a ship that is destroyed by fire a -few hours before the completion of repairs, cannot escape payment on -the ground that he has reaped no advantage. - -As the illness or death of a contractor does not, like fire or -shipwreck, deprive the other party of the fruits of what has been -already done, the benefit resulting to him is more obvious, and the -element of hardship is wanting that appears in many of the cases. The -value of his services or the materials he may have used may therefore -be recovered. In one of the cases A agreed that he and his wife should -live in B's house and maintain him for life. As A's wife died the -contract could not be performed. Nevertheless, A recovered the value -of the service he had rendered to B during the lifetime of his wife. - -Wagering contracts either by statute or judicial decision are illegal -and void in most or all the states. In many of them the statute -permits the recovery of the money from the stakeholder or the winner. -Payment over to the winner after notice or demand by the loser is not -a good defense in an action against the stakeholder. Again, the winner -is liable who, when receiving the money, knows that the stakeholder -has been notified not to pay it over, or has received notice not to -take it. - -The legality of contracts made or to be performed on Sunday is -determined generally by statute. Generally, when a contract is made on -Sunday, or is fully performed on both sides, the money paid or other -thing done in execution of it cannot be recovered. Again, one who is -induced by fraudulent representations to enter into a contract which -is in violation of a Sunday law is not so much in the wrong as the -other, and consequently may recover a benefit he has conferred on the -other party in performing the contract. - -If a member of a firm gives a promissory note signed by the -partnership name, for a debt of his own, which his partner is -compelled to pay, he may recover the money from the other. So, if a -carrier by mistake delivered goods to the wrong person who keeps them, -and the carrier is obliged to pay for their value, he can recover the -amount of the other person who thus wrongfully keeps them. - -Whenever a person makes a payment to another under such a mistake of -the material facts as to create a belief in the existence of a -liability which does not really exist, the money may be recovered -back. Such an obligation arises where money is paid as due on the -basis of erroneous accounts, and on a true statement of account is -found not to have been due. A voluntary payment with knowledge of all -the facts cannot be recovered, even though there may have been no -obligation to pay. - -A person cannot recover money paid under a mistake of fact who has -received the equivalent for which he bargained, because there is no -failure of consideration. Nor is the fact immaterial that he need not, -and would not have made the payment had he known the true state of -things. A bank, for example, that pays the check of a depositor under -the erroneous belief that it has sufficient funds, may not recover -from the payee the excess to the depositor's credit. But if the -purchaser of goods has paid the price, and the seller fails to deliver -them, the purchaser may recover his money. And in any case, a person -who has paid money under an agreement which he may rescind and does -so, because there was a failure of consideration, may recover what he -has paid. An action will lie against a person who sells goods as his -own, but which do not belong to him, whenever the real owner claims -them from the purchaser. In like manner an action will lie against a -person who sells bills, notes, bonds, stock or other securities which -prove to be worthless, or against a person who agrees to transfer the -title to land which, for lack of title or other reason, cannot pass. - -As a rule, the consideration of a contract must totally fail to -entitle a person to recover back the money he has paid. If the -consideration has only partly failed, the remedy, if there is any, is -for a breach of the contract, and not to recover back the money he has -paid. Thus, if an article is sold with a warranty of its quality, and -it is not worthless, his remedy is an action to recover damages for a -breach of the warranty, and not an action to recover back the money -paid for the thing purchased. - -A liability cannot be imposed on a person without his act or consent. -One man cannot force a benefit on another without his knowledge or -consent, and then compel him to pay for it. "If a person," says Clark, -"intentionally and knowingly performs services for another or -otherwise confers a benefit on him without his knowledge, so that he -has no opportunity to refuse the benefit, the law will not create a -liability to pay for it. So, where a person supplies another with -goods, the latter supposing that he is being supplied by another -person with whom he had contracted for the goods, the law will not -even imply a promise to pay for the goods." Where benefits are -conferred by one person on another under such circumstances as to -raise no promise in fact or in law to pay for them, he may, -nevertheless, become liable by retaining them. Thus, if a person were -to receive goods from another reasonably but mistakenly believing them -to be intended as a gift, and, after learning of his mistake, should -retain them, when he might return them, or if he should receive part -of the goods purchased from another, and retain them after failure of -the latter to supply the rest of the goods, the law would compel him -to pay for them. And the same rule applies where benefits are in any -other way received under such circumstances as to create no -contractual obligation, and are retained when they should in justice -be returned. If, however, the benefits thus received are incapable of -being returned, as where they consist of services, or of materials -which have been used in repairing a house, no liability is created. - - -=Sale.=--By a contract to sell goods the seller agrees to transfer the -property in them to the buyer for a consideration called the price. -There is an important distinction between a contract to sell in the -future and a present sale. The first is called an executory, the other -an executed, sale. If the goods are to be transferred, there is an -executed sale even though the price is not to be paid at the same -time. But if the price is paid, and the goods are not then to pass, -the transaction is a contract to sell, or an executory sale. Both -kinds of sales may be by deed or sealed contract as well as by parol -or orally. - -Sales and contracts to sell are based on mutual assent, the intent, -therefore, of the parties fixes the nature and terms of the bargain. -If the offerer understood the transaction to differ from that which -his words plainly expressed, it is immaterial, "as his obligation must -be measured by his overt acts." Thus, if an offer to buy or sell is -sent by telegraph, and is improperly transmitted by the telegraph -company, an acceptance by the offeree creates a binding bargain. By -using the telegraph as an agency of communication, the offerer makes -himself responsible for the offer actually delivered. Of course the -telegraph company would be responsible to the offerer for any damage -he may have suffered unless relieved by some neglect or fault of the -sender of the message. - -A contract of sale may be conditional, for example, that the property -shall not be transferred until the price is paid. Though the property -is transferred by the sale, promises or obligations may still be -unperformed by the seller. Or the transfer of the title may be -conditional on payment of the price. In such sales the goods are -delivered to the buyer, but the title is retained by the seller until -payment. - -The capacity to buy and sell is regulated by the general law -concerning the capacity to contract, transfer and acquire property. -When necessaries are sold and delivered to a minor, or to an insane or -drunken person, or to a married woman, who is lacking in mental -capacity to make a contract, he must, by the general Sales Act, pay a -reasonable price therefor. Necessary goods by this act mean those -suitable to the condition of the life of the minor or other persons -above mentioned at the time of their purchase and delivery. - -As we have seen (See _Minor_) a minor may avoid his contracts. The -right to do this is given for his protection, and should not be -stretched beyond his needs. Therefore the right is confined to himself -or his legal representatives. Neither creditors, nor trustees, nor -assignees in bankruptcy can do this, but his heirs can do this, and -probably his guardian. By the common law a purchaser for value who did -not know that the seller bought them of a minor could not retain them -if the minor wished to reclaim them as his own. This rule has been -changed by the Sales Act, and a bona fide purchaser is therefore safe -in purchasing such goods even though the seller did buy them from a -minor. - -As a minor may disaffirm his contract, any act clearly showing this -intent is sufficient. "It was early settled," says Williston, "that an -infant's conveyance of realty could be avoided only after he attained -his majority. In the case of personal property a sale may be avoided -during his minority by an infant seller or buyer. Though an infant may -thus avoid his sales, purchases or contracts during infancy, he can -make no effective ratification until he becomes of age, for an -infant's ratification clearly can be no more effective than his -original bargain." - -In the Sales Act the Statute of Frauds (See _Statute of Frauds_) has -been reenacted, and provides that in a sale or contract to sell goods -amounting to five hundred dollars or more, it cannot be enforced -unless the buyer shall accept a part of the goods, or give something -in earnest to bind the contract, or in part payment, or makes some -note or memorandum in writing of the sale which is signed by the party -or his agent against whom the other party seeks enforcement. - -This statute applies to a contract for goods that may be intended for -future delivery, but not to goods that are to be manufactured by the -seller especially for the buyer and are not suitable for sale to -others in the ordinary course of the seller's business. - -The Sales Act contains an important section relating to the sale of an -undivided share of goods. If the parties intend to effect a present -sale, the buyer becomes an owner in common with the owner of the -remaining shares. How important is this section may be easily learned. -The grain of many owners is often mingled in an elevator. It is -delivered to those who call for it, the kinds and quantities mentioned -in the receipts given to them at the times of storing it. The grain in -the elevator may be delivered many times before a particular depositor -makes his demand. The elevator company must keep on hand enough grain -to meet all outstanding receipts. Each depositor thus retains title -to some portion of the grain in the elevator. The company is the -bailee with the power to change the bailor's separate ownership into -an ownership in common with others of a larger mass, and back again. -At any given moment all the holders of receipts for the grain are -tenants in common of the amount in store, each owning a share and all -owning the entire amount, each having the right to sell his share and -demand its separation and delivery in accordance with custom and the -terms of the receipt. - -When a party has specific goods which, without his knowledge, have -perished partly or wholly, the buyer may treat the sale as avoided, or -as transferring the property in all of the existing goods and as -binding him to pay the full agreed price if the sale was indivisible, -or if divisible the agreed price for the goods in which the property -passes. One can readily imagine trouble when none of the goods have -been destroyed but all are in a condition inferior to that supposed at -the time of the bargain. In such a case the "only question is whether -the article has been so far destroyed as no longer to answer the -description of it given by the contract." - -The price may be fixed by the contract or in such a manner as the -parties may agree, and may be made payable in personal or real -property. When the price is not determined in the way mentioned in the -Sales Act, the buyer must pay a reasonable price. This is a question -of fact in each case. Usually, the price, either in an executed sale -or in a contract to sell, is fixed by the parties at the time of -making the bargain. In the agreement to sell there must be a -consideration on both sides to sustain it. Sometimes the parties agree -that the amount of the price shall vary according to the happening, or -failure to happen, of a future event. Such a contract may be a wager, -which is forbidden by law, or it may be legal, as we shall soon learn. -Whenever no price has been fixed the law has established a rule, a -reasonable price. It is the intention and understanding of the parties -that a buyer who orders a barrel of flour from his grocer will pay a -reasonable price. Likewise a buyer who orders a carriage to be made -for him and says nothing about the price. - -What is a reasonable price? Generally the market price at the time and -place fixed by the contract or by law for delivering the goods, but -not always. Under unusual conditions the market price does not furnish -the only test. Said the court in one of these cases: a reasonable -price may or may not agree with the current price of the commodity at -the place of shipment at the precise time of making it. The current -price of the day may be highly unreasonable from accidental -circumstances, by the action of the seller himself in purposely -keeping back the supply. - -With respect to warranties the Sales Act provides that when the sale -is made on a condition which is not performed, the party for whose -benefit the condition was made may refuse to proceed with the contract -or sale, or may waive performance of the condition. The nonperformance -may be treated as a breach of warranty. Thus time may be an important -element in a contract, and an agreement to deliver goods by a -specified time is a condition or warranty. And if there is a delay in -delivering, unless it may be a trifling one, the buyer may refuse to -accept the goods. - -A common condition in more recent times qualifying the obligation of -the buyer is that the goods shall be satisfactory to him. By this is -meant the satisfaction of the buyer after the exercise of an honest -judgment. In New York and some other states a somewhat different rule -prevails. Unless the things covered by the contract involve personal -taste, the contract imposes on the seller the requirement only that a -reasonable man would be satisfied with performing it, thus not leaving -the question of its satisfactory performance entirely to the buyer. -This, Williston says, is an arbitrary refusal of the court to enforce -the contract that the parties made and seems unwarranted. - -Warranties may be express or implied. By the Sales Act any affirmation -of fact or any promise by the seller relating to the goods is an -express warranty if the natural tendency of such affirmation or -promise is to induce the buyer to purchase the goods, and if the buyer -purchases the goods relying thereon. - -In a contract to sell or a sale, unless a contrary intention appears, -there is an implied warranty on the part of the seller that in the -case of a sale he has the right to sell the goods, also, in the case -of a contract to sell them, he will have the right to do this at the -time of passing the property. More briefly the seller warrants the -title to the property which is the subject of sale. Whether the seller -is in or out of possession of the property, he can by appropriate -words sell such interest as he may have therein. But persons also sell -property not owned by themselves by authority of others or of the law. -Unless they expressly warrant the title they are not liable for lack -of it. Sales of this nature are made by a sheriff, or other judicial -officer, auctioneer or mortgagee, assignee in bankruptcy, executor or -administrator, guardian, or simply an agent. - -When there is a contract to sell, or a sale of goods by description, -there is an implied warranty that they shall correspond with the -description; and if the contract or sale is by sample, as well as by -description, it is not sufficient that the bulk of the goods -corresponds with the sample if these do not also correspond with the -description. The Sales Act contains elaborate provisions relating to -implied warranties of the quality of things sold. There is no implied -warranty of the quality or fitness of goods for any particular purpose -unless the buyer makes known to the seller the purpose for which they -are required, and he also relies on the seller's judgment of their -fitness for the use he intends to make of them. Again, if the buyer -has examined the goods there is no implied warranty of the defects -which such an examination ought to have revealed. An implied warranty -as to quality or fitness for a particular purpose may also be annexed -by the usage of trade. There is an implied warranty that the bulk -shall correspond with the sample in quality, and that the buyer shall -have a reasonable opportunity of comparing the bulk with the sample. - -When does the transfer of ownership occur? When there is an -unconditional contract to sell them the property therein passes to the -buyer on the making of the contract, regardless of the time of payment -or delivery or both. When goods are delivered to the buyer "on sale or -return," giving the buyer an option to return them instead of paying -the price, the property passes to the buyer on delivery, but the -property may go back to the seller by returning or tendering the goods -within the time specified in the contract. When the goods are -delivered to the buyer on approval or on trial or other similar terms, -the property passes to the buyer, (1) when he signifies his approval -or acceptance of them, (2) or if he retains them beyond the time fixed -for their return, or if none has been fixed, beyond a reasonable time. - -It is the duty of the seller to deliver the goods, and of the buyer to -accept and pay for them, in accordance with the terms of the contract -of sale. Unless otherwise agreed, delivery of the goods and payment of -the price are concurrent conditions, the seller, therefore, must be -ready and willing to give possession of the goods to the buyer in -exchange for the price, and the buyer must be willing and ready to pay -the price in exchange for the possession of the goods. - -Whether it is for the buyer to take possession of the goods or for the -seller to send them to the buyer, is a question depending in each case -on the contract, express or implied, between the parties. Apart from -contract, or usage of trade to the contrary, the place of delivery is -the seller's place of business, if he have one, and if not, his -residence. Again, when by the contract of sale of goods no time for -sending them has been fixed, the seller must send them within a -reasonable time. - -Vast quantities of goods are bought and sent forward to buyers, which -are not to be delivered until payment. The Sales Act provides that -where goods are shipped and by the bill of lading that is given for -them they are to be delivered to the order of the buyer or of his -agents, but possession of the bill of lading is to be retained by the -seller or his agent, he thereby reserves his right to the possession -of the goods as against the buyer. Very often a buyer of wheat, for -example, will draw a bill of exchange on his principal or company -living in the place where the goods are to be delivered and will have -it discounted by a bank using the money to pay the seller. The wheat -may be in an elevator, or it may be in transit. In either case the -bank receives a document, elevator receipt, or bill of lading, and -thus becomes the real owner of the wheat, and can control it afterward -until it is actually delivered to the consignee, whoever he may be. -This is the bank's security for making the loan. The bank sends -forward the bill of exchange to its correspondent bank in the place -where the consignee lives and the wheat is to be delivered with -instructions to deliver it when the bill is paid. - -With respect to speculative sales of stock, so well known by every -one, a contract, says Williston, giving one party or the other an -option to carry out the transaction or not at pleasure, is not a -wager, unless forbidden, as in some states is done by statute. A -contract to sell goods in the future, which the seller does not own at -the time is, aside from the statute, not only legal but common. "The -test," says Williston, "adopted in the absence of statute, -distinguishes between contracts to buy and sell in which the actual -delivery of the property is contemplated, and similar contracts in -which it is contemplated merely that a settlement shall be made -between the parties based on fluctuations in the market price. A -contract of the former kind is legal; one of the latter kind is a -wagering contract, and illegal." - - -=Shipping.=--The federal statutes require that every ship or vessel of -the United States shall be registered or enrolled in the office of the -collector of customs of the district that includes the home port of -the vessel. None but citizens of the United States can have their -vessels registered. Consequently the sale of a vessel to a foreigner -denationalizes her. If sold to an American, she must be registered -anew. On arriving at a foreign port masters of vessels must deposit -their registers with the consul or commercial agent at that port. - -Enrollment is the term used to describe the registry of a vessel -engaged in coastwise or inland navigation or commerce. Registration is -applied to vessels engaged in foreign commerce. License means the same -as enrollment, but is applied to small vessels of twenty tons burden -or less. The federal laws on this subject do not apply to vessels that -are used on nonnavigable waters of the country. - -The title to a vessel may be acquired by purchase or building. If a -vessel is built for a party no title thereto passes until she is ready -for delivery and has been approved and accepted by him. This, however, -is no arbitrary rule, and is often modified especially when payment is -made in installments and during the construction of the vessel. - -Nowadays many vessels are owned by corporations, and the rules that -apply to corporations of course determine the ownership of their -property. In other cases the several owners of a vessel are tenants in -common, and not co-partners, unless by agreement they have established -other relations among themselves. They may, of course, become partners -and be governed by the rules that apply to persons thus related. When -they are related as tenants in common one part owner has no power to -bind the others in any way beyond the necessary and regular use of the -vessel. He cannot sell or mortgage the interests of the others, draw -drafts or notes in their name, apply the freight money earned to pay -his individual debt, or procure insurance for the other owners. - -The majority rule governs in employing the vessel. The majority -therefore have the right to control the use of the vessel on giving -security to the minority, if required, to bring back and to restore to -them the vessel, or if lost to pay them for the value of their shares. -The minority owners in like manner may use the vessel if the majority -are unwilling to employ her. A court of admiralty will in such a case -act for the parties. - -Each part owner is entitled to his share of the profits, and is also -liable for the expenses of the vessel unless he has dissented from the -voyage. But part owners who dissent from the voyage and take security -for the safe return of the vessel are not entitled to share in the -profits, nor are they liable for the expenses. - -A part owner may bind the others for necessary supplies and repairs -required that are procured on credit, unless his general authority to -do this has been restricted. The ship's husband or managing owner has -authority to do whatever is necessary for the prosecution of the -voyage and earning the freight money. For such purposes he is the -agent of the owners and can bind them by his contracts, unless his -authority is revoked or modified. - -Any owner can sell his interest whenever he pleases, and all of them -may authorize the sale of the entire vessel. A writing is required to -pass the title, but as between the parties an oral sale and delivery -will suffice, at common law. In many cases a bill of sale is required -by statute. The writing should describe what things are transferred, -but general terms such as appurtenances and necessaries have a fixed -meaning which are understood. Intention is the guide to determine what -passes in such a sale, as in cases of fixtures already considered. - -When the bill of sale is executed the purchaser becomes entitled to -all the benefits of ownership, and incurs all the liabilities. If the -sale is unconditional, the purchaser is liable for supplies though he -may never have taken possession of the vessel, and neither the master -nor the merchant furnishing the supplies knew of the sale. The -purchaser is not liable for repairs made and supplies furnished before -the sale, unless he has agreed to pay for them, or the vessel was at -sea at the time. If she was, the purchaser takes her subject to all -encumbrances on her, and to all lawful contracts made by the master -before learning of the purchase. - -A vessel may be mortgaged, and the federal statutes state how this -shall be done. A shipbuilder may make a contract whereby he mortgages -the vessel to be built in advance of its construction, and a lien -attaches as it comes into existence. Such a mortgage is postponed or -comes after a maritime lien, that will soon be explained, but comes -before the debts of general creditors. - -The mortgagor, so long as he retains possession, has all the rights of -ownership, and all contracts made by him are valid which do not impair -the security of the mortgage. When the mortgagee takes possession of -the vessel he is entitled to all the earnings that accrue, but not to -those which the mortgagor has reserved, even though they are for the -current voyage. Furthermore, his interest may be attached by his -creditors. The discharge and foreclosure of mortgages on vessels are -governed for the most part by the rules that apply to chattel -mortgages. A mortgage on a vessel should be recorded, and many of the -rules and usages that apply to the recording of deeds apply also to -such mortgages. - -A contract may be made for a loan of money on the bottom of a vessel -at a rate much greater than the usual rate of interest. Such a loan is -sanctioned to enable the master to obtain money for supplies or -repairs at some foreign port where they could not be otherwise -obtained. The loan is on the security of the vessel and if she never -arrives, the lender loses his money. If she does arrive at the port of -her destination, the borrower personally, as well as the vessel, is -liable for the repayment of the loan with the agreed interest thereon. -This maritime loan is highly regarded in legal tribunals, and is -liberally construed by them to carry into effect the intention of the -parties. - -Such a loan or bond can be given by the master of the vessel only in -case of necessity and great distress in a foreign port, where the -owner is not present and has no representative with funds, and where -the master has no other means of getting money. The master has a large -discretion. "The necessity must be such as would induce a prudent -owner to provide funds for the cost of them on the security of the -ship, and that if the master did not take the money the voyage would -be defeated or at least retarded." The general purpose of the loan is -to effectuate the objects of the voyage and the safety of the ship. - -The appointment and employment of a master is wholly within the -discretion of the owners. On his death or removal in a foreign port a -successor may be appointed by the consul resident there of the country -to which the vessel belongs, or by an agent of the owners, or by the -consignees of the cargo who have advanced money for repairing the -vessel. The registry acts of the United States require the putting of -the master's name in the register, but if this is not done his -authority is not impaired; and the one to whom the navigation and -control of a vessel is entrusted is considered her master, although -the name of another appears on the register. His contract may contain -any stipulation to which the parties may agree. The right of a master -to command his vessel is personal to him; and a sale by a master who -is part owner of the vessel of his interest therein transfers no right -to the command of the vessel which the other owners are bound to -respect. Whenever he becomes incapable of commanding by reason of -sickness, insanity, or other reason, the command with the duties -pertaining thereto devolves on the first mate until the appointment of -another master; should he be absent or incapable of acting, then the -second mate and so on down the rank of officers. - -The master must do all things for the protection and preservation of -the several interests entrusted to him, the owners, charterers, cargo -owners, underwriters. He must render a full and satisfactory account -to the owners of the vessel of moneys secured and his disbursements -before demanding any wages. At sea he is the supreme officer, has sole -authority over both officers and crew to do justice to all persons -under his command, and to protect passengers and seamen from bad -treatment while they are on board. It is said that in respect to -passengers he owes a higher and more delicate duty than he owes to the -crew, but at the same time he has the necessary control over his -passengers and may make proper regulations for their government to -ensure their safety, promote their comfort and preserve decent order. - -He has authority to bind the owners when they are not present for -expenditures needful in the way of repairs, supplies and other -necessaries reasonably fit and proper for the safety of the vessel and -the completion of the voyage. - -As the seamen who serve on a vessel are generally ignorant and -improvident, the execution of shipping articles are required by -federal statute where the vessel is bound on a foreign voyage, or from -a port in one state to a port in another. If these articles are not -made seamen have the right to leave the vessel at any time, and may -recover the highest rate of wages paid at their shipping port. The -articles must be signed by the seaman and by the master, and the -contract must be executed before the vessel proceeds on its voyage. -The seaman is not bound by any new or unusual stipulation put into the -articles affecting his rights without full knowledge of it, and -especially when he cannot read and the stipulation is not read and -explained to him. Once executed, the articles cannot be varied by a -verbal agreement between master and seaman. - -The articles must specify clearly and definitely the nature of the -intended voyage, the port at which it is to end and its duration. -Indefinite articles, leaving to the option of the master whether the -voyage shall be long or to one or more foreign ports, or short to -nearby domestic ports, are void. The articles must also state the -amount of wages each seaman is to receive. Articles are void that fix -a forfeiture of wages in excess of the amount named in the statute, or -restrict the time in which seamen must sue for their wages. The -contract may be dissolved by cruel treatment by the master and by an -abandonment of the vessel without the master's consent, but not by the -death, disability, removal or resignation of the master and the -substitution of another. Besides the wages a seaman may recover, -should the master break the contract, are his expenses in returning to -the port of shipment including also general damages. - -Claims for wages are "highly favored in admiralty courts," and -discharges are not justified for trivial causes, nor for a single -offense unless it is an aggravated one. Such causes are continued -disobedience or insubordination, rebellious conduct, gross dishonesty, -embezzlement or theft, habitual drunkenness, habitually stirring up -quarrels, or by his own fault rendering himself incapable of -performing duty. The master must receive back a seaman when he has -thus been discharged who repents and offers to return to his duty and -make satisfaction, unless the offense was of an aggravated character. -This is the general rule, though from its nature there is much room -for its application. - - -=Statute of Frauds.=--Some contracts must be in writing to comply with -a statute called the Statute of Frauds, which has been enacted with -variations in all the states. One of the most important sections -relates to the conveyance of real estate. This requires that the -agreement for its sale must be in writing. (See _Agreement for Sale of -Land_.) - -Another section relates to the sale of goods, wares and merchandise. -This has not been enacted in every state. If the amount is above that -mentioned in the statute, thirty to one hundred dollars, there must be -a written contract or delivery and acceptance of the goods to -constitute a contract. If A sells a bill of goods to B, who declines -to receive them, and the contract is wholly verbal, he can shield -himself behind this statute wherever it prevails. Many questions -therefore arise, what is a delivery and acceptance? A delivery of a -key of a building containing the property is sufficient. The delivery -of a bill of lading of goods properly indorsed, making entries of the -goods sold, pointing them out or identifying them is enough to comply -with the statute. Whenever there has been a transfer of possession and -control by the seller to the purchaser to which the latter has -assented there has been a sale. Or, more broadly, whenever there has -been such action as to show clearly an intention to sell and accept -the property the sale is complete. Part payment of the purchase money -for personal property is generally regarded as showing such intention. - -To a contract for the manufacture of a thing the statute does not -apply. Simple as this answer may be, the law soon gets into -difficulties in deciding whether a contract is for the making of a -thing, or for the thing itself; whether the important element is the -skill or labor that is to be expended, or the thing without regard to -the process of making. Thus, if a contract is with one to paint a -portrait, the statute would not apply, for the skill of the artist is -the important thing purchased, and not the canvas, paint, etc., he -must use. To a contract for a locomotive the statute would apply. "If -the contract states or implies that the thing is to be made by the -seller, and also blends together the price of the thing and -compensation for work, labor, skill and material, so that they cannot -be discriminated, it is not a contract of purchase and sale, but a -contract of hiring and service, or a bargain by which one party -undertakes to labor in a certain way for the other party," and the -statute does not apply to it. - - -=Statutes of Limitation.=--In all the states statutes have been -enacted which provide that if the rights of parties to legal redress -are not enforced within a specified period, the courts are closed to -them. Thus, in most states a statute provides that a holder or owner -of a promissory note who neglects to sue the debtor within six years -from its maturity cannot do so afterwards. The note is not absolutely -void, though the law presumes it has been paid. As the note is not -void, payment may be effected as we shall soon learn. - -Suppose one is indebted to a merchant, if the debt is not paid within -six years in most states and nothing has happened, the debt in popular -language is outlawed, in other words cannot be collected by resort to -law. The time begins to run as soon as the debt has accrued; if it be -a debt to a merchant, as soon as one has stopped trading with him. To -the operation of this rule are some important exceptions. It does not -run in favor of a minor, married woman or insane or imprisoned person; -or not whenever or wherever they are not capable of contracting. But a -disability arising after the statute has begun to run in his favor -will not prevent it from running. - -The Statute of Limitations generally bars the remedy or right to -pursue the debtor in a court of law, it does not extinguish the right -or debt, and therefore the right to pursue a debtor may be revived by -a new promise to pay. One may ask, is not a debtor a foolish man to -acknowledge that he is a debtor after the law has released him from -his debt? Yes, from a purely selfish point of view. Nevertheless, the -moral obligation remains, and happily all morality has not yet fled -from the world. One may ask, is not such a promise void because there -is no consideration received for it? No, for the reason that there was -a consideration for the original obligation, and this is sufficient -to sustain the renewed promise to pay it. In some states the statutes -provide that such an acknowledgment to pay a debt after the statute -has barred it, must be in writing, and signed by the debtor or his -agent. The most general rule is, to remove the bar of the statute, -there must be either an express promise to pay, or an acknowledgment -of the debt accompanied by an expression of willingness to pay it. To -simply acknowledge the existence of a debt is not enough, there must -be indicated or expressed a willingness to pay. - -A debt may also be revived by part payment. Payment on account of the -principal, or payment of interest on the debt will prevent the statute -from running against it. Payment to have that effect must be made with -reference to the original debt and in such a way as to effect an -acknowledgment of it. - -While a debtor may always apply a payment to any one or more of -different debts he owes his creditor, if he fails to do so the -creditor can make the application even to a debt which is already -barred by the statute, but his application will not remove the bar to -the remainder of the debt. To have that effect the appropriation must -be made by the debtor himself. - -Statutes of limitation apply to many obligations, and the times or -dates at which they become outlawed or outside the scope of legal -redress, vary in the different states. In many of them an ordinary -book account or negotiable note is outlawed after six years, and -cannot be enforced after that time unless the debtor has revived it by -a new promise or part payment. A judgment against one usually runs -twenty years. - - -=Telegraph and Telephone.=--Though the business of a telegraph company -is public in its nature, it is not a common carrier, and it may -therefore set up reasonable regulations for the reception, -transmission and delivery of messages. As it is a quasi public -corporation, it must extend its services to all that apply therefor -and offer to pay the charges. And if refusing it may be compelled to -do these things. The company may charge more to one person than to -another when the service is unlike, though not enough to amount to an -unjust discrimination. The difference in charges must bear some -relation to the different services rendered. - -A telephone company cannot legally discriminate between two competing -telegraph companies by giving one the telephone call word "Telegram" -and thereby depriving the other telegraph company of business. Nor can -a telephone company legally charge a higher rental for a telephone to -a telegraph company than to any other patron. Nor can a telegraph -company discriminate against another in refusing credit which is given -to other responsible parties. - -A strike may be a sufficient excuse for failure to have sent messages -promptly, though not excusing a railroad company for failure to -deliver freight as if no strike had happened. A state may impose a -penalty on a telegraph company for failure to deliver promptly in the -state messages coming from other states. And a state may impose a -penalty on a telegraph company for failure to perform its clear common -law duty to transmit messages without unreasonable delay, and this -statute applies to messages to points outside the state if it relates -to delay within the state. A state statute prohibiting telegraph -companies from limiting their liability for the transmission of -telegrams within the state is constitutional. The state may prohibit a -telegraph company from transmitting racetrack news. A telegraph -company must transmit a message unless it contains indecent language. -Nor is it liable for libel in transmitting a telegram stating that a -person had been bought up. - -It is reasonable for a telegraph company to close its office on -holidays, except two hours in the morning and two hours in the -afternoon, and therefore is not liable for delay in transmitting a -message because of this delay. The unauthorized writing out and -sending of a telegram in another person's name is a forgery. - -When a telegram must pass over two connecting lines the receiving -company may require the sender to designate what route the message is -to take, and to pay an extra charge for the words indicating such -route. A telegraph company is not privileged in transmitting messages, -but they should not be made public, except to produce them when -legally required in court. Under the New York statutes it is a -criminal offense for a telegraph employee to divulge the contents of a -telegram to any other person than the addressee, except when it -relates to unlawful business. In that case the employee may give -information to the public officer who is prosecuting the unlawful -sender. It is a criminal offense to open or read a sealed telegram, or -to tap a telegraph wire in order to read messages in course of -transmission. - -In regulating the receipt, transmission and delivery of telegraph -messages, the rules differ from those that are to be transmitted -within the state from the rules for interstate messages. The rules -with respect to the latter are governed by the Interstate Commerce -Act of 1910, state messages are governed by the laws of their -respective states. By the federal law, therefore, a telegraph company -providing one rate for unrepeated messages, and another and higher -rate for those repeated, may stipulate for a reasonable limitation of -its responsibility when the lower rate is paid. And if the contract -provides that for any damage resulting from sending the telegram, the -sender must give notice within sixty days, he is bound by this -stipulation, and is without redress if he delays to act beyond the -time. - - -=Torts or Wrongs.=--"A tort is an act or omission which unlawfully -violates a person's right created by the law, and for which the -appropriate remedy is a common law action for damages by the injured -person." The right that is violated is private and not public, which -marks off a tort from a crime. Again, the wrongful act may be a -violation of both a private and public right, in which case both the -individual and the state have a remedy against the wrongdoer. Thus A -without excuse attacks B and bruises his nose. B has an action to -recover damages against him for despoiling his countenance; the state -also may proceed against him in a criminal action for his breach of -the public peace. Another illustration may be given. A clerk embezzles -money from his bank. It sues him and perhaps his bondsmen and recovers -the money. Embezzlement, however, is a criminal offense, and the -recovery of the money taken does not affect in any way the right of -the state to proceed against the embezzler. Indeed, an individual who -has been wronged cannot by any restitution or settlement that he may -make with the wrongdoer impair the right of the state to punish him. - -Torts or wrongs are very numerous for which the wrongdoer may be held -liable. The first to be mentioned is false imprisonment. The law -punishes false imprisonment as a crime; the person unlawfully -imprisoned also has a civil action for damages. A person is said to be -imprisoned "in any case where he is arrested by force and against his -will, although it be on the high street or elsewhere and not in a -house." Mere words are not an arrest. If an officer says, "I arrest -you," and you run away, there is no arrest. But if an officer touches -you and takes you into custody there is an arrest even though you run -away afterward. - -A malicious prosecution is another wrong. A person who brings his -action for this wrong must prove four things: first, that the -prosecution has terminated in the complainant's favor; second, that it -was instituted maliciously; third, that it was brought without -probable cause; fourth, that it damaged or injured the complainant. -The term malice means something more than "the intentional doing of a -wrongful act to the injury of another without legal excuse." It means -that the original prosecutor was actuated by some "improper or -sinister motive." The term "probable cause" requires explanation. -Nothing is better settled, says one of the courts, than this, that -when the person who brings such an action against another "submits his -facts to his attorney, who advises they are sufficient, and he acts -thereon in good faith, such advice is a defense to an action for -malicious prosecution." That such advice may be a good defense a full -and honest disclosure of all the facts must be made to him. Such -advice will not serve as a screen if based on a fragmentary, -incomplete statement of facts. - -A very common tort is an assault and battery. A person who threatens -another with immediate personal violence, having the means and -opportunity for executing the threat, commits an assault for which -damages may be recovered in a proper action. To raise a club over the -head of another and threaten to strike if he speaks, would be an -assault. "Absence of intent," says Burdick, "on the part of the -defendant to put the plaintiff in fear of bodily harm, is pertinent to -the defense that the injury was accidental, or due to a practical -joke." - -A battery, as distinguished from an assault, is the inflicting of -actual violence on a person, though the degree of violence is -immaterial. The least touching of another in anger, or as a -trespasser, is a battery. Forcibly cutting the hair of a person -without legal authority, or injuring the clothing on a person, or -snatching an article from his hand, or cutting a rope or belt attached -to him, or striking a horse on which one is riding, or that is -attached to his carriage, or overturning a chair in which he is -seated, is a battery; likewise, if the assailant throws a stone or -missile which hits the other, or spits in his face. - -There may be a justifiable assault, the law has long recognized this. -A public officer is justified in using force in performing his duty, -so is a private individual in defending himself, his family or his -property, or in enforcing lawful discipline at home, in school, on -board a ship, or other public conveyance, or in restraining one -mentally or physically incapacitated. - -Another injury for which the law furnishes redress is that affecting -reputation and character. It is true that the damages one may recover, -however great, may be an inadequate redress, yet it is the best the -law can do. The party injured by a libel or slander brings his action -and wins his victory over his enemy, yet the battlefield remains and -the scar of the wound inflicted. The issue in an action for defamation -is not the character of the plaintiff, but the wrongfulness of the -particular statement. Therefore "it is not a defense to a libel or -slander that the plaintiff has been guilty of offenses other than -those imputed to him, or of offenses of a similar character; and such -facts are not competent in mitigation of damages." - -As the gist of the tort consists of the injury done to one's -reputation, the defamatory statement must have been published. A -person has no cause of action against another for defamatory words -spoken to him; they must have been heard by a third person. The -plaintiff may make out a case by showing that the libel was contained -on the back of a postal card, or by other evidence that makes it a -matter of reasonable inference that the libelous matter was brought to -the actual knowledge of a third person. - -A person who voluntarily engages in the interchange of opprobrious -epithets and mutual vituperation and abuse has been held to license -his antagonist to reply in like manner. "The right to answer a libel -by libel is analogous to the right to defend one's self against an -assault upon his person. The resistance may be carried to a successful -termination, but the means used must be reasonable." Common carriers, -news-vendors, proprietors of circulating libraries and others who are -merely unconscious vehicles for carrying defamation generally escape -liability for its publication. - -If the publication of a libel is the result of the joint efforts of -several persons, each is responsible for the wrong done to the -plaintiff. If A writes a libel, and B prints it and C publishes it, -the person wronged may sue all jointly, or either one of them -separately. The publication of the same slander by different persons -is not a joint tort, it is a distinct wrong done by each slanderer. - -There are distinctions between libel and slander that must be now -stated. Slander is applied to oral speech or its equivalent, libel to -matters expressed in writing or print, pictures, effigies or other -visible and permanent forms. Libel is a criminal offense as well as a -tort, while the slander of private persons is not a common law crime; -but some forms of slander are crimes by statute. Falsely and -maliciously to charge one with committing a felony or other indictable -offense involving moral turpitude is in some states a crime. -Scandalous matter is not necessary to make a libel. "It is enough if -the defendant induces an ill opinion to be held of the plaintiff, or -to make him contemptible or ridiculous." Says Burdick: "Any censorious -or ridiculing writing, picture or sign made intentionally and without -just cause and excuse is a libel upon its victim. The degree of -censure or ridicule is not material. If the language is such that -others, knowing the circumstances, would reasonably think it -defamatory of the person complaining of and injured by it, then it is -actionable." - -In many cases of libels which affect the victim chiefly or solely in -his office or vocation their tendency to cause injury is so clear that -proof may be unnecessary. Thus, to import insanity or incompetency to -a professional man, or that a public official is dishonest and corrupt -is actionable. And when a libelous publication is directed against a -class or body of persons, for example, the medical staff of a public -hospital, any member of the body may maintain an action for the wrong. - -A corporation has no character like a natural person to defend, but a -defamatory charge which directly affects its credit and injures its -business reputation is an actionable one. On the other hand as a -corporation must transact its business and perform its duties through -natural persons it is now well settled that a corporation is liable in -damages for slander, as it is for other torts. - -Slanderous words that are actionable have been thus classified by the -United States Supreme Court: "(1) words falsely spoken of a person -which impute to the party the commission of some criminal offense -involving moral turpitude, for which the party, if the charge be true, -may be indicted and punished; (2) words falsely spoken of a person -which impute that the party is infected with some infectious disease, -where, if the charge is true, it would exclude him from society; (3) -defamatory words falsely spoken of a person which impute to the party -unfitness to perform the duties of an office or employment of profit -or the want of integrity in the discharge of his duties of such office -or employment; (4) defamatory words falsely spoken of a party which -prejudice such party in his or her profession or trade." - -The damages may be either nominal, one dollar is often given in such -cases, or compensatory, larger damages, as a punishment. The amount -rendered is within the province of the jury, but courts do not -hesitate to modify or set aside verdicts which are deemed excessive or -too meager. - -The defenses in such actions may be briefly described. The truth of -the charge is a complete defense to a civil action for slander or -libel, because "the law will not permit a man to recover damages in -respect to an injury to a character which he either does not or ought -not to possess." A privileged communication is another defense. The -heads of the executive departments of government are absolutely -privileged for defamatory statements made by them while acting within -the limits of their authority. Their motives do not become the subject -of inquiry in a civil suit for damages. Judicial officers are shielded -by this rule while discharging their duties. The publication of -judicial proceedings is conditionally privileged. The condition is -that the proceedings are public, are decent and fit for publication, -that the reports are full and fair, and that their publication is not -inspired by malice. Says Burdick: "The reports of such proceedings are -usually made without reference to the individuals concerned, and for -the information and benefit of the public. The law, therefore, -presumes that they are made in good faith." The full and fair reports -of parliamentary and legislative proceedings are also conditionally -privileged as well as the reports of judicial proceedings, and for the -same reasons. The publication of the proceedings of quasi public -bodies, like state, medical, and ecclesiastical societies has been -deemed conditionally privileged. But "professional publishers of news -are not exempt, or a privileged class, from the consequences of damage -done by false news. Their communications are not privileged merely -because made in public journals." Statements rendered by mercantile or -collection agencies to inquirers for business purposes are clearly -privileged. But whether the circulation among all their subscribers of -a sheet containing such statements is privileged is a disputed -question among the courts. Again, every statement made with the -object of protecting some interest of the writer or speaker and which -is reasonably necessary for such purpose is conditionally privileged. -Fair comment is another defense. The most frequent subjects of fair -comment from which spring actions for defamations are the character -and conduct of public men or candidates for office; and literary, -artistic, or commercial productions offered to the public. Whether a -particular statement is an unfair aspersion of one's personal -character, or a fair comment on his public conduct, is a question -usually for the jury. - -At common law a defamer could not insist on an opportunity to retract -or apologize, but he could give in evidence any apology or retraction -to lessen the damages. This rule has formed the basis of a statute in -some of the states. Though attacked on constitutional grounds, it has -been sustained in Minnesota, North Carolina and perhaps in other -commonwealths. Where it can be made, the apology and retraction must -be full, fair, prompt. - -Passing to private nuisances, a wrong or tort consists in wrongfully -disturbing one in the reasonably comfortable use and enjoyment of his -property. Ordinarily the motive of the wrongdoer is not material in -determining his maintenance of a nuisance. Some things and trades are -considered as nuisances of themselves, for example, a slaughter house -in a large town, a pigsty near a dwelling house, a house of ill fame, -the fouling of a spring, well or stream; keeping a large quantity of -explosives near a public dwelling, or animals or other property -dangerous to human life. Likewise, a hospital that operates to destroy -the peace, quiet and comfort of those in adjoining residences, affects -their health and value of their property is a private nuisance, -against which action may be taken for its removal or abatement. Public -cemeteries come under the same ban. They will not be adjudged a -nuisance simply because they offend the fancy, delicacy, or -fastidiousness of neighbors, or even depreciate the value of adjoining -property. - -When a business is carried on, structures are erected, or excavations -are made which are nuisances, the actor is liable in damages for them -whether he exercised due care in constructing and maintaining them or -not. The same rule applies to the owner or keeper of a savage and -dangerous animal. - -Acts of discomfort that amount to a nuisance are such as produce this -effect to persons of ordinary sensibility who live in the locality -where the nuisance exists. Noises, odors, smoke, or dust may -constitute an actionable nuisance in one locality and not in another. -If the nuisances are from ordinary musical instruments in the dwelling -of a neighbor, or from his children, yet are only of a kind that may -be expected in such a neighborhood, they must be borne, unless -prohibited by law. On the other hand, the same amount of noise caused -by horses in the basement of an adjoining house is an actionable -nuisance. - -A temporary annoyance is quite another thing. The erection of an iron -building near a dwelling might, during the period of construction, -cause great noise and discomfort, yet the occupier of the dwelling -would have no remedy. But there is a limit to the conduct of the -annoyer. He must act reasonably. He cannot blast rock, or hammer -metal, or operate noisy steam drills at all hours of the day and -night. He must conform to the habits of the community, and not -unreasonably disturb his neighbors, during ordinary working hours. -There is a distinction also between acts that annoy and those that -injure adjoining property. Generally acts of the latter kind are -actionable. If one fixes his residence near a nuisance, formerly he -had no remedy. This is no longer the law. When, however, a court is -asked to enjoin or stop a useful and lawful business in a place, the -court will inquire whether the business has long existed and the place -has grown up by reason of its existence. If this prove to be the case -a court will reluctantly interfere. Yet, if the business is actually -harmful to health or injurious to property, it will be enjoined -however great the loss may be to the owner. - -While a land owner is not liable for a nuisance created on his land by -a stranger, whose acts cannot in any way be attributed to him, he is -liable for a nuisance resulting from a licensee's use of his property. -Thus, if a licensee by attaching a wire to a chimney converts it into -a nuisance to passers-by, the land owner who knowingly permits the -nuisance to continue will be liable for the damages that result. Nor -can one who has fouled a stream or the air, or who indulges in -disturbing noises, defend himself for doing these things by showing -that others did them before he began. - -As a person acts at his peril in maintaining a nuisance, so is the -owner of trespassing cattle liable for all the harm done by them, -whether he knows of their disposition to do harm or not. But he is not -liable for harm done by them while they are driven along the highway -without negligence on the driver's part; nor is he liable for mischief -done by them to the person or personal property of one at other times -without knowledge of their viciousness or other proof of negligence. -Nor is he liable by the common law as an insurer against all damage -done by them when they escape from his land. - -When vicious animals are kept for any purpose and are a menace to -human beings they are a nuisance. Hence, they may be killed without -incurring liability, and should they do damage their owner or -responsible keeper must answer for it. If the animal be a vicious dog, -the owner must exercise a degree of care commensurate with the danger -to others following his escape from custody, and must secure it from -injuring anyone who does not unlawfully provoke or intermeddle with -the animal. - -By the early common law a person who started a fire, even for a -needful and lawful purpose, was responsible for the consequences. This -rule has been modified with time. "A person," says Burdick, "does not -start a fire on his land at his peril. If it spreads beyond his -premises and harms others his liability for the harm must be grounded -on his negligence. The same is true of his liability for electricity -escaping from his control. In both cases the care he must exercise in -guarding the dangerous element varies with the hazard to which it -exposes others." - -The liability of a person who keeps explosives is not absolute, unless -he is maintaining a nuisance. Otherwise he is liable only when -negligent. If he is ignorant of the character of the explosive, and -without fault in not knowing, his duty of care is fixed by the -apparent character of the article. Suppose a carrier was carrying a -trunk containing an explosive of which he had no knowledge or reason -for supposing was there, surely he would not be held liable if it -exploded and caused injury. - -The liability of a manufacturer, seller, lender, or user of things is -not that of an insurer in making, selling, lending or using them. But -he does incur liability whenever he fails to exercise such care as is -fairly needful to protect others against the hazard in buying and -using them. A druggist, therefore, who affixes a wrong label to a -bottle of medicine and thereby injures a person who uses it is -responsible. And the rule would apply whether the taker was the -purchaser or some other person. - -When persons are invited on one's premises for mutual advantage, the -inviter owes the duty of ordinary care. He is not an insurer of their -safety, nor need he exercise extraordinary care in guarding them from -harm, unless there was unusual danger. Suppose a man had a way which -persons used in going to and from his business, and he began to dig a -well near the way and left the place unprotected during its -construction, undoubtedly the owner would be liable. Suppose the well -was a considerable distance from the way where persons did not usually -go and had no occasion for going. Then he would not be liable. How far -away from the road could he dig without thought of the public? The -answer would depend on the facts in the case. - -A somewhat different rule has been applied to children. Although a -child of tender years who meets with an injury on the premises of a -private owner may be a technical trespasser, yet the owner may be -liable, if the things causing the injury have been left exposed and -unguarded, and are of such a nature as to be attractive to children, -appealing to their childish curiosity and instincts. Unguarded -premises, which are thus supplied with dangerous attractions, are -regarded as holding out implied invitations to children. There has -been a great deal of controversy over this important rule. Those -opposed say, if everywhere applied, it would render the owner of a -fruit tree, for example, liable for damages to a trespassing boy who, -in attempting to get the fruit, should fall from the tree and be -injured. Professor Burdick, after a full review of the cases, says -that the tide of judicial opinion is setting the other way. Children, -therefore, who invade the premises of a person without any right are -trespassers like older people. The duty of caring for children remains -with their parents and guardians; and if they are injured while -unlawfully going on the land of others their parents cannot visit the -consequences of their neglect on the owners of the land where the -injuries happened. - - -=Warranty.=--The law, assuming that the purchaser knows or can find -out the quality and worth of things, does not make an implied warranty -of them generally. The legal maxim is, "Let the purchaser beware." He -must take care of himself. In many cases, though, he does obtain a -warranty. He must, however, distinguish between this and a mere -representation. It may be difficult to draw the line always, but it -exists. A statement that is not intended as a warranty, made simply to -awaken the buyer's interest in the thing for sale, is not a warranty. -Nor does the law imply a warranty from the payment of a full price. -Formerly, when a commodity was adulterated, it could be returned, and -the courts became sorely troubled to defend an adulteration. More -recently, statutes have cleared away the difficulty, and are a great -protection to buyers. In many cases, doubtless, they know more about -the quality and condition of the things they buy than the -inexperienced salesmen who are behind the counters, so they need no -protection from the law; when they do need it a warranty may serve a -good purpose. In articles concerning which the seller does possess a -superior knowledge, precious stones, drugs, medicines, and the like, -the modern law has raised an implied warranty for the buyer's -protection. In this class of cases the buyer and seller do not deal on -equal terms. The vendor is professedly an expert. - -In a sale of food there is no longer an implied warranty of fitness, -unless the buyer expressly or by inspection acquaints the seller with -the purpose of the purchase and unless it appears that the buyer -relies on the seller's skill and judgment. Even then, if the buyer has -examined the goods and has discovered a defect, there is no warranty. -The burden of showing that he has made known his purpose and that he -has relied on the seller is on the purchaser who claims the existence -of an implied warranty. - -There is another implied warranty, that of the seller's title, when he -is in possession of the goods. This is limited to persons who are -acting for themselves, and not agents, trustees, officers of the law, -who are acting for others. An innocent purchaser of goods, therefore, -for a good consideration obtains a good title, even from a vendee who -has obtained them by fraud, as against the original vendor. This rule, -though very broad, does not prevent a lawful owner from recovering his -property. Thus, if a farmer's oxen were stolen and the thief should -sell them as his own, and the purchaser should pay for them, -nevertheless the farmer could recover them. The only exception to this -rule is negotiable paper. This is made in order to surround it with -greater protection. - -Where goods are sold by sample there is a warranty that the goods will -be like the sample, but there is no warranty of the sample itself. In -one of the well-known cases hops were sold by sample, and after the -hops had been delivered the discovery was made that they had been -injured by heating. The buyer sued though failed to recover anything, -for it was proved that they were like the sample, which had been shown -several months before, and at that time the heating had not begun. As -they were sold at the earlier period, their condition at the time of -the delivery did not affect the sale. See _Deceit_; _Sale_. - - -=Will.=--A will is a disposition of one's property to take effect -after his death. He is called a testator, and must possess a sound -mind to make an effective will. He must be able to comprehend what he -is doing. Wills are often contested on the ground that the testator's -mind was feeble and that undue influence was exercised over him in -disposing of his property. Married women can make wills like their -husbands and so can a minor in many states. - -All of the states have enacted statutes on the subject which require -various things; one of the most important is the witnessing of wills. -Generally, three witnesses are required. An eminent judge, not long -since, made a will to please his wife leaving a large sum to found an -institution. He was opposed to the thing. The astute judge had no -witnesses, so he both fooled his wife and pleased himself, for his -will was worthless. The statutes require the witnesses to sign in the -testator's presence, who often give important testimony of his -competency whenever his will is contested. As they may be called for -this purpose, intelligence should be used in selecting persons to -become witnesses. A witness who is competent at the time of signing -does not become incompetent by reason of anything that may happen to -him afterward. A witness should not be given anything in the will, -for, if this is done, his act of witnessing in perhaps all the states -violates the gift. Though this may be the consequence the rest of the -will is not thereby impaired. The property given is either real or -personal. Real property consists of land extending indefinitely upward -and downward, every building thereon, every growing thing, likewise -all minerals and in some cases even ice. Personal property includes -everything of a movable nature. A transformation is often effected. A -tree while standing on the land is a part thereof; cut down it becomes -personal property. - -A will should be in writing; and this in most states is a statutory -requirement, to guard against the wrongs and frauds that might -otherwise arise. A testator may write his own will, indeed to do so -would be a good test of will-making capacity. If he is unable to write -his name, he may make his mark. When this is done, there should be -ample proof that he did so, for a mark can be so easily made by any -one. - -A person to whom real estate is given is called a devisee; the -receiver of personal property a legatee. When the testator gives real -estate he must have regard to the laws of the state where it is -situated; in giving personal property he is governed by the law of the -state where he resides, his domicil. Many a devise has been declared -invalid, because the testator in devising it did not comply with the -law of the state where the land was located. - -The principal ground on which wills are attacked is feebleness of -mind, lack of mental capacity. The question assumes this form: did the -testator at the time he executed his will have sufficient mental -capacity to do it. An eminent jurist, Chief Justice Redfield, has said -that he must have undoubtedly sufficient active memory to perceive the -more obvious relations of things to each other. Even if unable to -manage his business, he can nevertheless make a will if he knows what -he is doing. - -Again an insane person may make a will provided this is done during a -lucid interval. Many a person is insane only at times or on particular -subjects and therefore may be competent to make a rational disposition -of his property. Some persons have curious religious beliefs, -prejudices against persons, governments and institutions, and yet -these vagaries may not impair their capacity to dispose of their -property in a legal and rational manner. - -Another requirement of a testator is that he must declare in the -presence of the witnesses that it is his last will and testament. This -is called a publication of the will. Of course, his will must be -completed when this is done. Suppose a person makes several wills, -which one of them is effective? The last one. A will should be dated, -suppose this has been forgotten, what then? The last will must be -established, if possible, by other evidence. Suppose it is believed -that the last will has been destroyed, and a prior will is found, can -this be set up as establishing the testator's disposition of his -property? It is not his last will, for he has made another. - -Any person may be a devisee or legatee including married women, minors -and corporations. If a bequest is made to a corporation not in -existence, is it valid? By some courts this can be done, by others -this power is denied to a testator. Many a well-meant bequest to a -noble charity has been smitten down because there was no legal donee -then existing to receive the gift. A testator may bequeath property -to a trustee who shall select the objects of the testator's bounty. - -The thing bequeathed must be described with sufficient clearness to -identify it, nothing more is required. In some cases proper evidence -may be used to identify things where the description in the will is -ambiguous. - -A devise of lands may consist of the entire estate or interest of the -testator, or he may give the devisee a lesser interest in them. It is -a common thing for a testator to devise the use of land to a person -during his lifetime, and after his death the entire interest or fee to -another. He usually adds a final or residuary clause to his will to -the effect, that all he may have which has not been bequeathed to any -one specifically shall be given to one or more persons or objects -named in his will. Or, if a legacy shall lapse, that is, the person to -whom it has been given shall die, or for any other reason cannot, or -will not take it, it falls into the residuary portion and goes to the -residuary legatee. - -If a will does not contain such a clause, and there is no statute in -the way, then a lapsed legacy or other property, not covered by the -will, goes to such persons as the law has prescribed whenever persons -die leaving no will, or, in legal language, die intestate. - -A will takes effect from the testator's death and so does the validity -of all the bequests. Thus, should a person mentioned as legatee die -before the testator, the legacy would be invalid. But many or all of -the states have provided by statute for the continuation of these in -many cases. Thus, should a son, to whom his father has devised some -land, die leaving children, they take it in place of their father. -These statutes vary much, some limiting the substitution to the -lineal heirs of the deceased, son, grandson, etc., others extending -the substitutes to the collateral heirs of any devisee or legatee. - -Again, by statute and common law a wife is entitled on the death of -her husband to a specific portion of his property. Should he not give -her as much by his will, unless he had made an agreement with her -before marriage with respect to what she was to receive, she may -renounce her rights under her husband's will and claim what the law -would give her as if he had made no will. - -A will can be revoked any time. The common way is to destroy it. -Another way is to dispose during his lifetime of his property. In one -of the cases a testator had indorsed on his will in his own -handwriting "canceled." Though this was not signed, it was held to be -a revocation. In another case a blind testator called for his will -which was handed to him. He gave it back with the direction to put it -in the fire. Instead of doing so another piece of paper was -substituted and burned. This was a downright fraud, and the court -justly held that the will had been revoked. - - -=Workmen's Compensation Acts.=--Who is entitled to compensation by -these acts? The proper test to apply is, whether the employer -possessed the power to control the other while at work at the machine -or other thing from which the injury arose. Says Honnold: "In the -ordinary acceptance of the term, one who is engaged to render services -in a particular transaction is not an employee; the term employee -embracing continuity of service and excluding those employed for a -single and special transaction. It does not usually include -physicians, pastors or professional nurses. It may, however, include -those not engaged in manual labor, such as a school-teacher. The fact -that a workman furnishes tools and materials, or undertakes to do a -specified job will not prevent his being an employee. A deaconess, -living and working in a hospital and receiving an annuity to cover -clothing and expenses, is not an employee of the hospital," nor is an -employee of a religious home for the aged who works around the house -for which he is not paid any fixed amount. A director of a bank is not -an employee within the meaning of the acts under consideration. - -To be an employee there must be a contract of service. This is not the -same thing as a contract for services. By the latter relationship one -is an independent contractor and excluded from the acts. The contract -of service need not be actually made, it may be implied, for example, -the case of a substitute who is engaged by an employee in accordance -with custom. A contract of service is not created by the relation of -landlord and tenant, carrier and passenger, bailor and bailee, nor by -professional service, nor by forming a partnership, nor by performing -manual labor beyond the employer's control. Whether a contract of -service arises from charitable work depends on the circumstances of -the particular case. State employees are within these acts in some -states, and excluded in others, likewise municipal employees. By the -federal act the term "laborer" is used to designate men who do work -that requires but little skill as distinguished from an artisan who -practices an industrial art. The act includes a storekeeper, an -inspector who performs no manual labor, a messenger in the government -printing office, the master of a dredge, the matron of an Indian -school, a transit man, a surveyor, a clerk engaged in office work, an -assistant veterinarian, a laboratory assistant, a dock master. - -Compensation legislation is not limited to healthy employees. One's -previous physical condition is of no consequence in determining the -amount of relief to be afforded. Nevertheless, it is a circumstance to -be considered in ascertaining, when one has been injured, whether the -injury resulted from the work or from his health. - -In some of the compensation acts minors are excluded, in other acts he -is protected by them. An apprentice who is qualifying himself to -operate an elevator is an employee within the Minnesota Act. Many of -the acts provide that the term employee shall include every person in -the service of another under any contract of hire, except one whose -employment is casual, or is not in the usual course of the trade, -business profession or occupation of his employer. - -Farm laborers are outside these acts in some states. Thus, in -Massachusetts "the workmen's compensation act was not intended to -confer its advantages upon farm laborers, or to impose its burdens -upon farmers." But a farmer may adopt it if he desires. And any -contract of insurance made by him under its terms is valid and -enforceable. Such an exemption, however, does not except employees -working for one who is engaged in a commercial or other -non-agricultural enterprise though he be a farmer. Likewise, a farmer -carrying on a market garden may procure insurance covering his drivers -and helpers employed in distributing the produce of his farm without -insuring other employees who are merely farm laborers. The right to -compensation is determined by the character of the labor one is -actually doing when the accident occurs, rather than by the fact that -the employee occasionally does farm labor. Thus, plowing is usually -farm labor, but if it is done to make land ready for building a house -it is not. If a farmer does not avail himself of the act for all of -his employees, he may procure insurance for a limited portion of them. -"If there are those," says Chief Justice Rugg, "separable from others -by classification and definition, whose labor is more exposed and -dangerous, or whom he may desire to protect for any other reason, -there is nothing in the act to prevent him from doing so." - -Likewise, domestic servants are excluded by some of these acts, who -are they? "A household servant is one who dwells under the same roof -with the family under circumstances making him a member thereof." And -his status is determined rather by his relation to the family than by -his relation to the service. Thus, a workman who is hired to tend the -furnace, mow the lawn, and do odd jobs about the house, who has a room -therein and eats at the family table, is a household servant. On the -other hand, a chauffeur who is hired by the month to run the -employer's private automobile, but is not living as a member of the -family, is not a household servant. In many cases, however, he is one. -While it is doubtful whether the test of living in the employer's -house is the sole test of household service, it is essential that he -is engaged in rendering service in the house, such as cleaning, -cooking or washing. On one occasion, a porter in a saloon was sent -upstairs by the proprietor to wash the windows in the apartment where -the proprietor lived with his family. While thus engaged he fell to -the sidewalk and was injured. The court regarded him as a household -servant. - -Many of the acts exclude from their protection casual employees. This -term is a difficult one to define, and has been omitted in many of the -acts. Where this is done all employees engaged in the usual course of -the trade, business, occupation, or profession of their employer, with -some exceptions, receive compensation. Ordinarily, an employment is -casual when it is for a single day, or by the hour, but does not apply -to one who is employed to render a service that recurs with some -regularity. Thus, one who is employed as a workman in a sawmill on -such days as it was in operation for four months was not a casual -employee. Casual employment in the Connecticut act means occasional or -incidental employment. In California, if the length of employment is -less than a week it is casual, even though contrary to agreement the -employee took more than a week to do the work for which he was hired, -and which a skillful employee could have finished within a week. - -"The question whether an employment is casual must be determined with -reference to the scope and purpose of the hiring rather than with sole -regard to the duration and regularity of the service. One who enters -into a contract of employment for an entire season is not a casual -employee merely because he may be required to work for only short and -irregular periods." Thus, a longshoreman who is employed at a certain -sum per hour to help load a ship, having frequently rendered a similar -service on other occasions, is not a casual employee; nor is one who -keeps machinery and boats in order at an amusement park; nor is a boy -who is called at irregular intervals for service in a butcher's shop -when extra help is needed, or in the absence of a regular employee; -nor is one who is employed during a packing season to drive for a -packer whenever he is needed. - -The compensation law does not apply to independent contractors. It is -difficult, however, to draw the line in many cases. Generally, an -independent contractor is one who exercises an independent employment -and contracts to do a piece of work according to his own method, -without being subject to the control of the employer. A test that is -sometimes applied is, who has the right to direct what shall be done -and when and how, and who has the right of general control. When, -therefore, one exercises an independent employment, selects his own -help and has the control of them, and the method of conducting the -work, he is an independent contractor. Again, he may change his -relation for a time, and become an employee, or he may be a contractor -for a part of his service and an employee for a part. Thus, one who -was injured while operating a launch to bring supplies to a dredge for -his employer was an employee and not an independent contractor, though -he was one in conducting the work of dredging. Likewise, a physician -who is employed on a salary by another physician, who in turn is -serving a manufactory, is an employee of the latter and not an -independent contractor, though he is still engaged to some extent in -his own private practice. - -By the Federal act an employee must be "employed by the United States -to be entitled to its benefits." Thus, a plate printer in the bureau -of engraving and printing who is paid by the piece, and who bonds -himself and hires and pays his own help, also the owner of a power -boat chartered to the government and operated by the owner in its -service, are contractors, and not federal employees. A workman, -therefore, who is employed by a government contractor is not an -employee of the government. On the other hand, one who is employed and -carried on the pay rolls of the reclamation service, though working -for the contractor, is employed by the government, likewise, a workman -employed in the forest service who is working with others for county -supervisors who, in turn, are executing a contract with the -government. - -As public officers are not employees within the meaning of the -compensation acts, they may be distinguished from others who are -employees. Unless the statute says so, a policeman is not an employee -of the city which he serves, but an officer holding a public trust. On -the other hand, a night policeman or marshal is an employee by the -Wisconsin law. Firemen and deputy sheriffs on a fee basis are officers -rather than employees. - -The compensation acts secure compensation not only for injured -workmen, but should they die, to their dependents. Who then is a -dependent? "Dependency," says Honnold, "does not depend on an answer -to the question whether the alleged dependents could support -themselves without the earnings of the person who is no longer living, -but whether they were in fact supported in whole or in part by such -earnings intentionally by him. Occasional gifts do not prove -dependency, yet purely voluntary contributions may establish -dependency. Voluntary contributions of money, support or service by a -brother to a sister or by a sister to a brother are not complete -evidence of the dependency of either. Compensation cannot be awarded -to dependents who do not belong to the classes of relatives mentioned -in the statutes." - -The phrase, actual dependents, means dependents in fact whether they -are wholly or partially dependent. Partial dependency, giving a right -to compensation may exist though the contributions are at irregular -intervals and of irregular amounts, and the dependent has other means -of supporting himself. An employee contributed all of his earnings to -his mother who was partially dependent on him for support. Five other -children contributed to the family fund. It was held that the mother -was entitled to a weekly compensation equal to one half of the weekly -compensation of her deceased son. A dependent who is an alien living -in a foreign country is not debarred from receiving compensation. By -some of the acts such compensation to nonresidents is limited to a -father or mother. - -Children who are entitled to compensation as dependents include -stepchildren, illegitimate children, children adopted by the workman, -also posthumous, legitimate and illegitimate. - -The federal act provides that if the injured artisan or laborer die -within the year after his injury "leaving a widow, or a child or -children under sixteen years of age, or a dependent parent, they shall -be entitled to compensation." The word parent, while including both -parents, does not include a stepfather or a stepmother, or a foster -parent who has not been legally adopted. The question of dependence is -one of fact; contributions by the deceased tend to establish this, but -are not conclusive. The word child or children used in the act is not -limited to a child or children born in wedlock, but includes -illegitimate offspring, and children legally adopted. If an injured -workman dies before he has made application for or received -compensation, it may be paid from the date of the injury to the date -of his death, as well as for the remainder of the year to his widow or -family. - -The earnings of a workman are the basis for computing the amount of -compensation he is to receive for an injury. These include anything -that he receives for his labor that possesses a money value. In the -way of illustrating more clearly what he may receive the outline of a -section of the Massachusetts Act may be given. It provides what the -workman may receive when his injury is partial from the insurance -association which has become liable therefor. A weekly compensation -equal to one half the difference between his average weekly wages -before the injury and the average weekly wages which he is able to -earn thereafter; but not more than ten dollars a week, nor for a -longer period than three hundred weeks from the date of the injury. -Formerly, when injured, he received as compensation a sum fixed by -agreement between himself and his employer; and if they could not -agree, as often happened, then he sued his employer and the court -decided the amount the employer must pay. These suits were often -costly, long contested, and if the employee won his counsel often took -such a large share as to leave a disappointing amount to the employee. -On the other hand, many an employee magnified his injury, juries were -usually sympathetic, especially if the employer was a corporation, and -from the general dissatisfaction has been created the new system. - -Having stated in the most general way what the law provides for a -workman who has been injured, there remains the statement of what is -done when the workman dies from his accident. The Arizona law -illustrates this as well as any other. When he dies within six months -thereafter and leaves a widow, and a minor child or children -dependent on his earnings for support and education, then the employer -must pay to the personal representative of the deceased workman for -the benefit of the widow and children a sum equal to twenty-four -hundred times one half of the daily wages or earnings of the deceased, -not exceeding in any case more than four thousand dollars. If the -employer has insured the lives of his employees in an insurance -company, for which the acts quite generally provide, then of course -payment of the benefits are paid by the company to those who are -entitled to them. - -Some of the compensation acts provide compensation for both total and -partial incapacity resulting from injuries which do not prove fatal. -Thus the Connecticut act provides that loss of sight, the loss or -paralysis of certain physical members, and incurable imbecility or -insanity, resulting from the accident shall be "considered as causing -total incapacity." For these and all other injuries resulting in total -incapacity to work, there must be paid to the injured employee weekly, -while incapacitated, compensation equal to half of his earnings at the -time of the injury, for a maximum and minimum period. Another section -provides that in cases resulting in partial incapacity there must be -paid to the injured employee a weekly compensation during his -incapacity, equal to half the difference between his average weekly -earnings before the injury and the amount he is able to earn -thereafter with a maximum and minimum limitation of the amount within -a limited period. - - - - -Legal Forms for Everyday Use - - -1 - -Agreement for Sale of Land - -This agreement, entered into this ____ day of ________, 19__, by and -between A.B. and C.D., witnesseth: That said A.B. has this day sold to -C.D. the following described tract of land, to-wit: (describe) for the -sum of $________, to be paid as hereinafter set forth, and upon the -payment of which said A.B. agrees to convey to said C.D. the premises -above described, free and clear from all incumbrances, by a deed of -general warranty. - -And the said C.D. agrees to pay said A.B. for said premises the sum of -$________, as follows: $________ with interest at ____ per cent on the -____ day of ________, 19__; - -The said A.B. agrees that said C.D. shall have immediate possession of -said premises for the purpose of residence, cultivation, and -improvement. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - -2 - -Agreement Concerning Party Wall - -This agreement, made this ____ day of ________, 19__, by and between -A.B. and C.D., of the city of ________ ________, witnesseth: That, -whereas, the said C.D. is the owner of the house and lot on the south -side of ________ Street, second lot east of ________ Street, and the -said A.B. is the owner of the lot adjoining the same next easterly -thereof, on which said lot there now stands a party wall on a line -parallel with ________ Street; and forty-four feet easterly from said -________ Street; and, whereas, the said A.B. has erected his -dwelling-house several feet (one story) higher than the said C.D., -whereby greater advantage may accrue to the said A.B. from said party -wall. Now, therefore, the said C.D., in consideration of the sum of -$1, to him in hand paid, the receipt whereof is hereby acknowledged, -doth grant, covenant, promise, and agree with the said A.B., that he -may peacefully and lawfully enjoy such party wall, to himself, his -heirs, and assigns, the said C.D. reserving to himself the right to -use the said portion of the party wall built by the said A.B., -whenever he may wish to build higher than his house now is. - -It is further mutually understood and agreed, between the respective -parties, that this agreement shall remain so long as the houses last, -and shall pass to the heirs and assigns of the respective parties to -these presents. - -Witness our hands and seals, the day and year first above written. - - A.B. (L.S.) - C.D. (L.S.) - - -3 - -Agreement for Building - -This agreement, entered into this ____ day of ________, 19__, between -A.B. and C.D. witnesseth: That the said A.B. hereby agrees with the -said C.D. to erect for him on (describe land) a (dwelling-house) in -conformity with the drawing and detailed specifications of one E.F., -architect, the work to be performed in a substantial and workmanlike -manner, and with the best materials of their respective kinds, the -same to be furnished, together with all things necessary to erect and -complete said building, at the cost and expense of the said A.B., -payments to be made as follows: (specify terms) upon the certificate -of the architect, provided that said estimates shall not at any time -before the completion of said building exceed the basis of 85 per cent -of the value of the work so executed. - -And the said C.D. hereby agrees with said A.B. to pay to him the sum -of $________ for the erection and completion of said building in the -manner aforesaid, (monthly) estimates to be made by said E.F., -architect, of the amount then due to said A.B. thereon, upon the -presentation of which estimate said C.D. agrees to pay 85 per cent of -the same, the remaining 15 per cent to be retained until the -completion of said building. And on the completion of said work in the -manner aforesaid to the satisfaction of said architect, and upon the -presentation of his certificate to that effect, said C.D. agrees to -pay said A.B. the balance remaining unpaid on said contract, including -the fifteen per cent retained until the completion of the work. The -said A.B. further agrees to complete said building as aforesaid and -deliver the same to said C.D. on or before the ____ day of ________, -19__. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - -4 - -Claim of Lien by Workman of Sub-Contractor - -A.B. to C.D., Dr. - -June 1st, 19__. To twenty-five days' labor at carpenter work, at $5 -per day, upon the dwelling-house situated on lot B in block 350, in -the city ________, ________ county, ________, which services were -rendered on and before the 1st day of June, 19__, and then payable. - - (Signed) C.D. - - -5 - -Agreement for Work and Labor - -This agreement, entered into this ____ day of ________, 19__, by and -between A.B. and C.D., witnesseth: That the said A.B. agrees -faithfully to labor for C.D. for the term of (six) months from the -first day of ________, 19__, at farm labor, on the farm of said C.D., -in ________ county, and to perform such other services as may be -reasonable and just, for which services said C.D. agrees to pay said -A.B. the sum of $________ per month (on the ____ day of ________, -19__.) - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - -6 - -Bond to Perform a Contract - -Know all men by these presents, that, we A.B., as principal, and C.D., -as surety, are held and firmly bound unto E.F., in the sum of -$________, for the payment of which well and truly to be made we bind -ourselves jointly and severally by these presents. - -Dated this ____ day of ________, 19__. - -Whereas, said A.B. had, by an agreement of this date, contracted in -writing with said E.F. to (here describe the contract). - -Now, therefore, the condition of this obligation is such that if the -said A.B. shall do and perform all the stipulations and agreements -contained in said written contract then this obligation to be null and -void. Otherwise to remain in full force and effect. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - -7 - -Bill of Sale - -Know all men by these presents, that ________, of the first part, for -and in consideration of the sum of ________, lawful money of the -United States, to ________ in hand paid, at or before the ensealing -and delivery of these presents by ________, of the second part, the -receipt whereof is hereby acknowledged, ha____ bargained and sold, and -by these presents do grant and convey, unto the said part ________ of -the second part, ________ executors, administrators, and assigns -(description of property; or if detailed description is contained in -schedule annexed, say, the goods and chattels particularly described -in a schedule hereunto annexed and made a part of this instrument), to -have and to hold the same unto the said part ________ of the second -part, ________ executors, administrators, and assigns forever. And -________ do____ for ________ heirs, executors, administrators, -covenant and agree, to and with the said part ________ of the second -part, to warrant and defend the sale of the said property ________ -hereby sold unto the said part ________ of the second part, ________ -________ executors, administrators, and assigns, against all and every -person and persons whomsoever. - -In witness whereof, ________ have hereunto set ________ hand ________ -and seal ________ the ____ day of ________ in the year one thousand -nine hundred and ________. - - Sealed and delivered in the presence of - (Acknowledgment clause.) - - -8 - -Bill of Sale--Shorter Form - -Know all men by these presents, that I ________ of the county of -________, in the state of ________, do hereby bargain, sell, and -convey to said ________, the following described personal property -now belonging to me, to-wit: (describe in detail). And I hereby -covenant with said ________ ________, to warrant the title of said -property to said ________ against the lawful claims of all persons -whomsoever. - -In witness whereof I have hereunto set my hand this ____ day of -________, 19__. - - (Signed) - In the presence of ________ - - -9 - -Warranty Deed - -Know all men by these presents, that we ________, and ________, -husband and wife, in consideration of the sum of $________, in hand -paid, do hereby grant, bargain, sell, and convey to ________, of -________ county, ________, the following described real estate situate -in the county of ________, and state of Iowa, to-wit: (describe -premises), to have and to hold to his heirs and assigns forever. -Together with all the tenements, hereditaments, and appurtenances -thereto belonging. And we hereby covenant with said ________ that we -are lawfully seized of said premises; that they are free from -incumbrances; that we have good right and lawful authority to sell the -same, and we covenant to warrant and defend the same against the -lawful claims of all persons whomsoever. And the said ________, hereby -relinquishes her right of dower in said premises. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - In presence of ________ - ________ ________ - - State of ________} - ________ County. } - -On this ____ day of ________, 19__, before me, a justice of the peace -in and for said county, personally came the above named ________, who -are known to me to be the identical persons whose names are affixed to -the above deed as grantors, and severally acknowledge the instrument -to be their voluntary act, and deed. - -In witness whereof I have hereunto set my hand the day and year above -written. - - A.B. - Justice of the Peace. - - -10 - -Warranty Deed in Common Use in New England - -Know all men by these presents, that I, (the grantor) of (residence, -town or city, county and state), (occupation), in consideration of -(the amount paid) to me paid by (here name the grantee or purchaser, -giving in like manner his residence and occupation), the receipt -whereof is hereby acknowledged, do hereby give, grant, bargain, sell -and convey unto the said (name the grantee, and then describe the -premises granted, minutely and accurately):-- - -To have and to hold the above-granted premises, to the said (name the -grantee), his (hers or their) heirs and assigns, to his (or her or -their) use and behoof forever. And then, the said (name the grantor), -for (myself) and (my) heirs, executors, and administrators, do -covenant with the said (name of the grantee), and with his heirs and -assigns, that I am lawfully seized in fee simple of the aforegranted -premises; that they are free from all incumbrances (if there be any -incumbrances, as a mortgage or lien, or right of way, or drain, or -air, or light, say excepting, and then describe the incumbrance), that -I have good right to sell and convey the same to the said (name of the -grantee), and his (or her) heirs and assigns forever as aforesaid; and -that I will, and my heirs, executors, and administrators shall, -warrant and defend the same to the said (name of the grantee), and his -heirs and assigns forever, against the lawful claims and demands of -all persons. - -In witness whereof, I the said (name of the grantor) and (name of his -wife), wife of said grantor, in token of her release of all right and -title of or to dower in the granted premises, have hereunto set our -hands and seals this ____ day of ________ in the year of our Lord -________ - - (Signature) (Seal) - - Signed, Sealed, and Delivered in the Presence of - - -11 - -Deed of Indenture--Short Form - -This indenture, made the ____ day of ________, 19__, between ________ -(insert occupation and residence), of the first part, and ________ -(insert occupation and residence), of the second part, - -Witnesseth: That the said part____ of the first part, in consideration -of ________ dollars, lawful money of the United States, paid by the -part____ of the second part, do ____ hereby grant and release unto the -said part____ of the second part, ____h____ heirs and assigns forever -(description of land). Together with the appurtenances and all the -estate and rights of the part____ of the first part in and to said -premises. - -To have and to hold the above-granted premises unto the said part____ -of the second part, ____h____ heirs and assigns forever. - -And that said part____ of the first part do____ covenant with said -part____ of the second part, as follows: - -That the part____ of the first part will forever warrant the title to -said premises. - -In witness whereof, the said part____ of the first part ha____ -hereunto set ____h____ hand ____ and seal ____, the day and year first -above written. - - In the presence of - (Acknowledgment clause.) - - -12 - -Quit Claim Deed - -Know all men by these presents, that we, ________ and ________, -husband and wife, in consideration of the sum of $________, in hand -paid, do hereby sell and quit claim to ________ all our right, title -and interest in and to the following described real estate, situate in -the county of ________, and state of ________, to-wit: (describe -premises) to have and to hold the above described premises to the said -________, and his heirs and assigns forever. - -In witness whereof, we have hereunto set our hands this ________ day -of ________, 19__. - - In presence of ________ - ________ ________ - - State of ________} - ________ County. } - -On this ____ day of ________, 19__, before me, a justice of the peace, -in and for said county, personally came the above named ________, who -are known to me to be the identical persons whose names are affixed to -the above deed as grantors, and severally acknowledged the instrument -to be their voluntary act and deed. - -Witness my hand the date above given. - - A.B. - Justice of the Peace. - - -13 - -Quit Claim Deed--Another Form - -This indenture, made this ____ day of ________, in the year of our -Lord, 19__, between ________, of the first part, and ________, of the -second part, witnesseth: That the said part____ of the first part, in -consideration of the sum of ________ dollars, to ________, in hand -paid by the said part____ of the second part, the receipt whereof is -hereby confessed and acknowledged, ha____ bargained, sold, remised, -and quitclaimed, and by these presents do____ bargain, sell, remise, -and quitclaim unto the said part____ of the second part ________ and -to ________, heirs and assigns forever, all ________ together with all -and singular the hereditaments and appurtenances thereto belonging, or -in anywise appertaining, and the reversion and reversions, remainder -and remainders, rents, issues, and profits thereof, and all the -estate, right, title, interest, claim, and demand whatsoever, of the -said part____ of the first part, either in law or equity, of, in, and -to the above-bargained premises, with the said hereditaments and -appurtenances, to have and to hold the said ________ to the said -part____ of the second part, ________ heirs and assigns, to the sole -and only proper benefit and behoof of the said part____ of the second -part, ________ heirs and assigns forever. - -In witness whereof, the part____ of the first part ha____ hereunto set -________ hand ____ and seal ____, the day and year first above -written. - - Sealed and delivered in the presence of - (Acknowledgment clause.) - - -14 - -Quit Claim Deed--Short Form - -In consideration of $100, to me in hand paid by C.D., I, A.B., hereby -sell, grant, release, and quitclaim to said C.D., that certain lot -(here insert description). To have and to hold the said released -premises unto the said C.D., and his heirs and assigns forever. - - Witness my hand and seal, this ____ day of ________, 19__. - (Acknowledgment clause.) - - A.B. (L.S.) - - -15 - -Mortgage - -Know all men by these presents, that ________ and ________, husband -and wife, in consideration of the sum of $________, to us in hand -paid, do hereby grant, bargain, sell, and convey to ________ of -________, the following described real estate, to-wit: (describe -premises). Together with all the tenements and appurtenances thereunto -belonging. And we do hereby covenant with said ________ that we are -lawfully seized of said premises; and we will warrant and defend, the -same against the lawful claims of all persons whomsoever. - -Provided, however, and these presents are upon this express condition. -That whereas ________ on the ____ day of ________, 19__, executed and -delivered to ________ promissory notes, as follows: The first of said -notes for the sum of $________, with interest from date, is due and -payable ________, 19__, and the second of said notes for the sum of -$________ with interest from date, is due and payable on the ____ day -of ________, 19__. Now if said ________ shall pay said notes and -interest thereon, when they shall become due, then this conveyance -shall be null and void, otherwise to remain in force and effect. - -In witness whereof we have hereunto set our hands this ________ day of -________, 19__. - - In presence of ________ - ________ ________ - -Acknowledgment as to deed. - - -16 - -Mortgage with Power of Sale - -This Indenture, made the ____ day of ________ in the year ________ -between ________ (name, residence, and occupation of mortgagor) party -of the first part, and ________ (name, residence, and occupation of -mortgagee) party of the second part, Witnesseth: That the said party -of the first part, in consideration of the sum of (the amount of the -debt) to him duly paid before the delivery hereof, has bargained and -sold, and by these presents does grant and convey to the said party of -the second part, and his heirs and assigns forever, all (here describe -the premises minutely and accurately) with the appurtenances, and all -the estate, right, and title, and interest of the said party of the -first part therein. - -This grant is intended as a security for the payment of (here describe -the debt) which payments, if duly made, will render this conveyance -void. And if default shall be made in the payment of the principal or -interest above mentioned, then the said party of the second part, or -his executors, administrators, or assigns, are hereby authorized to -sell the premises above granted, or so much thereof as will be -necessary to satisfy the amount then due with the costs and expenses -allowed by law. - -In witness whereof, the said party of the first part has hereunto set -his hand and seal the day and year first above written. - - (Signature) (Seal) - - Sealed and delivered in the presence of - STATE OF } - COUNTY OF } SS. - -On the ____ day of ________ in the year one thousand nine hundred and -________ before me personally came (name of mortgagor) who is known to -me to be the individual described in, and who executed the foregoing -instrument, and acknowledged that he executed the same, as his free -act and deed. - - -17 - -Chattel Mortgage with Power of Sale - -Know all men by these presents, that I, A.B., in consideration of the -sum of $________ paid by C.D., have bargained and sold, and by these -presents do hereby sell and convey to said C.D. the following goods, -and chattels, to-wit: (describe the articles mortgaged, or refer to -them as the goods and chattels mentioned in the schedule hereto -annexed), and which is now in my possession. - -Whereas, the said A.B. is justly indebted to C.D. in the sum of -$________, payable on the ____ day of ________, 19__, with interest at -ten per cent from the ____ day of ________, 19__ (upon a promissory -note of even date herewith, or for goods sold and delivered). - -Now the condition of the above obligation is such that if the said -A.B. shall well and truly pay said C.D. said sum of money and interest -when the same shall become due, then this conveyance shall be void, -otherwise to remain in full force and effect. It is also agreed that -said A.B. may retain possession of the said mortgaged property until -said debt becomes due. But if default be made in the payment of said -sum or any part thereof, the said C.D. and his assigns are hereby -authorized to sell said goods and chattels, or so much thereof as will -be necessary to satisfy the amount then due, together with the costs -and expenses incurred by reason of said default. - - (Signed) A.B. - In the presence of E.F. - - -18 - -Mortgage on Goods and Chattels--Another Form - -Know all men by these presents, that A.B., residing at ________, of -the first part, for securing the payment of the ________, hereinafter -mentioned, and in consideration of the sum of $1, to ________ in hand -paid, at or before the ensealing and delivery of these presents, by -C.D., of the second part, the receipt whereof is hereby acknowledged, -ha____ granted, bargained, sold, and assigned, and by these presents -do ____ grant, bargain, sell, and assign unto the said part____ of -the second part, all ________ now remaining and being ________. - -To have and to hold, all and singular, the goods and chattels above -bargained and sold, or intended so to be, unto the said part____ of -the second part, ________ executors, administrators, and assigns -forever. And the said part____ of the first part, for ________ heirs, -executors, and administrators, all and singular, the said goods and -chattels above bargained and sold unto the said part____ of the second -part, ________ executors, administrators, and assigns, against the -said part____ of the first part, and against all and every person or -persons whomsoever shall and will warrant, and by these presents -forever defend. - -Upon condition, that if the said part____ of the first part shall and -do well and truly pay, or cause to be paid, unto the said part____ of -the second part, ________ executors, administrators, or assigns, the -sum of ________, then these presents and everything herein contained -shall cease and be void. And the said part____ of the first part, for -________ executors, administrators, and assigns, do ________ covenant -and agree to and with the said part____ of the second part, ________ -executors, administrators, and assigns, to make punctual payment of -the money hereby secured ________. And in case default shall be made -in payment of the said sum above mentioned, or in case the said -part____ of the second part shall sooner choose to demand the said -goods and chattels, it shall and may be lawful for, and the said -part____ of the first part do ________ hereby authorize and empower -the said part____ of the second part, ________ executors, -administrators, and assigns, with the aid and assistance of any person -or persons, to enter and come into and upon the dwelling-house and -premises of the said part____ of the first part, and in such other -place or places as the said goods and chattels are or may be held or -placed, and take and carry away the said goods and chattels to sell -and dispose of the same for the best price they can obtain, at either -public or private sale, and out of the money to retain and pay the -said sum above mentioned, with the interest and all expenses and -charges thereon, rendering the overplus (if any) unto the said -part____ of the first part, ________ executors, administrators, and -assigns. And until default be made in the payment of the aforesaid sum -of money, the said part____ of the first part to remain and continue -in quiet and peaceable possession of the said goods and chattels, and -the full and free enjoyment of the same, unless the said part____ of -the second part, ________ executors, administrators, or assigns, shall -sooner choose to demand the same; and until such demand be made, the -possession of the said part____ of the first part shall be deemed the -possession of an agent or servant, for the sole benefit and advantage -of his principal, the said part____ of the second part. - -In witness whereof, the said part____ of the first part, ha____ -hereunto set ________ hand ____ and seal ________ this ____ day of -________, 19__. - - Sealed and delivered in the presence of - ________ County of ________ss.: - -On this ____ day of ________, 19__, before me came ________, to me -known to be the person____ described in and who executed the foregoing -instrument, and ________ acknowledged that ____ he ________ executed -the same. - - -19 - -Notice of Sale under Chattel Mortgage - -Notice is hereby given that by virtue of a chattel mortgage, dated on -the ____ day of ________, 19__, and duly filed in the office of the -county clerk of ________ county, ________ on the ____ day of ________, -19__, and executed by A.B. to C.D. to secure the payment of the sum of -$________, and upon which there is now due the sum of $________. -Default having been made in the payment of said sum, and no suit or -other proceeding at law having been instituted to recover said debt or -any part thereof, therefore, I will sell the property therein -described, viz.: (here describe the articles substantially as in the -mortgage) at public auction at the house of ________, in the (city, -town, or precinct) of ________, in ________ county, on the ____ day of -________, at one o'clock P.M. of said date. - - C.D. - Mortgagee. - -Dated ____, ________, 19__. - - -20 - -Assignment of Mortgage - -This instrument, made this ____ day of ________, 19__, between -________, of the first part, and ________, of the second part, -witnesseth: That the part____ of the first part, for a good and -valuable consideration, to ________ in hand paid by the part____ of -the second part, ha____ sold, assigned, transferred, and conveyed, and -do____ hereby sell, assign, transfer, and convey to the part____ of -the second part, a certain mortgage, bearing date the ____ day of -________, 19__, made by ________, recorded in the clerk's office of -________ county, in liber ________, of mortgages, at page ________, on -the ____ day of ________, 19__, at ____ o'clock ____m., together with -the bond accompanying said mortgage, and therein referred to, and all -sums of money due and to grow due thereon. And the part____ of the -first part hereby covenant that there is ________ due on the said bond -and mortgage the sum of ________. - -In witness whereof, the part____ of the first part ha____ hereunto set -________ hand ____ and seal ____ the day and year first above written. - -(Assignment clause.) - - -21 - -Agreement for Lease - -This is to certify that I have, on this 1st day of ________, 19__, let -and rented to C.D., lot ________, in block ________, in the city to -________, ________, together with the dwelling-house thereon, with all -the appurtenances, and the sole and uninterrupted possession thereof -for one year from this date, at the yearly rent of $________, payable -quarterly in advance; rent to cease in case of the destruction of the -premises by fire. - - (Signed) A.B. - - -22 - -Lease - -This agreement, entered into this first day of ________, 19__, between -A.B. and C.D., witnesseth: That the said A.B., in consideration of the -covenants of the said C.D., hereinafter set forth, does hereby lease -to the said C.D., from the first day of ________, 19__, to the ____ -day of ________, 19__, the following described property, to-wit: (The -southeast quarter of section 15, in township 12 north, range 14 east -of 6th principal meridian). And the said C.D., in consideration of the -leasing of the premises as above set forth, does hereby covenant and -agree to pay said A.B. the rent following, to-wit: (Insert terms and -mode of payment). The said C.D. also covenants with the said A.B. that -he will cultivate said land in a good and husband-like manner; that he -will keep said premises in as good a condition as they now are; the -usual wear and incidents by fire excepted, and that he will yield -peaceable possession of the same to said A.B. at the expiration of -said term. - -In witness whereof we have hereunto set our hands this ________ day of -________, 19__. - - A.B. - C.D. - -In presence of E.F. - - -23 - -Lease--Another Form - -Landlord and Tenant's Agreement - -This instrument, made and executed this ____ day of ________, 19__, -between ________, of the ________, part____ of the first part, and -________, of the ________, part____ of the second part, witnesseth: - -That the part____ of the first part ha____ hereby let and rented to -the part____ of the second part, and the part____ of the second part -ha____ hereby hired and taken from the part____ of the first part, -________ for the term of ________ years ________ ---- to commence the -____ day of ________, 19__, at the yearly rent of ________ dollars, -payable ________. And the part____ of the second part hereby -covenant____ to and with the part____ of the first part to make -punctual payment of the rent ________ in the manner aforesaid, and -quit and surrender the premises at the expiration of said term, in as -good state and condition as they are now in, reasonable use and wear -thereof, and damages by the elements excepted, and further -covenant____ that ____he____, the part____ of the second part, will -not use or occupy said premises for any business or purpose deemed -extra hazardous on account of fire. - -And further covenant____ that ____he____, the part____ of the second -part, will not assign this lease or underlet the said premises, or any -part thereof, to any persons whomsoever, without first obtaining the -written consent of said part____ of the first part, and in case of not -complying with this covenant, the part____ of the second part -agree____ to forfeit and pay to the part____ of the first part the sum -of ________ dollars, as and for liquidated damages which are hereby -liquidated and fixed as damages and not as a penalty. - -This lease is made and accepted on this express condition, that in -case the part____ of the second part should assign this lease or -underlet the said premises, or any part thereof, without the written -consent of the part____ of the first part, that then the part____ of -the first part, his heirs or assigns, in his option, shall have the -power and the right of terminating and ending this lease immediately, -and be entitled to the immediate possession of said premises, and to -take summary proceedings against the part____ of the second part, or -any person or persons in possession as tenant, having had due and -legal notice to quit and surrender the premises, holding over their -term. - -It is further agreed between the parties, that in case said premises -should be destroyed by fire before or during said term, that then this -lease is to cease and determine; the rent ________ to be paid up to -that time. - -In witness whereof, the parties have hereunto set their hands and -seals the day and year first above written. - - In the presence of - ________ ________ - ________ - - -24 - -Farm Lease - -This indenture, made the ____ day of ________ in the year of our Lord, -19__, between A.B., of the city of ________, party of the first part, -and C.D., of the same place, party of the second part, witnesseth: - -That the said party of the first part, in consideration of the rents, -covenants, and agreements hereinafter mentioned, reserved, and -contained on the part of the said party of the second part, his -executors, administrators, and assigns, to be paid, kept, and -performed, has demised and to farm let, unto the said party of the -second part, his executors, administrators, and assigns, all (insert -description), with the appurtenances, unto the said party of the -second part, his executors, administrators, and assigns, from the ____ -day of ________, 19__, for the term of ten years then next ensuing, -yielding and paying therefor, unto the said party of the first part, -his heirs or assigns, yearly and every year during the said term -hereby granted, the yearly rent or sum of $________, in equal -half-yearly payments, to-wit: on the 1st days of October and April in -each and every year; provided, that if the yearly rent above reserved, -or any part thereof, shall be unpaid on any day of payment whereon the -same ought to be paid as aforesaid; or if default shall be made in any -of the covenants or agreements herein contained, on the part of the -said party of the second part, his heirs or assigns, to re-enter upon -the said premises, and the same to have again, as in their first and -former estate. - -And the said party of the second part does covenant and agree, with -the said party of the first part, his heirs and assigns, that he, the -said party of the second part, his executors, administrators, or -assigns, will yearly and every year during the said term, pay unto the -said party of the first part, his heirs or assigns, the yearly rent -above reserved, on the days and in manner limited and prescribed as -aforesaid, for the payment thereof, without any deduction or delay. -And that the said party of the second part, his executors, -administrators, or assigns, will, at his own proper costs and charges, -bear, pay, and discharge all taxes, duties, and assessments, as may, -during the said term hereby granted, be charged, assessed, or imposed -upon the said demised premises. And that on the determination of the -estate hereby granted, the said party of the second part, his -executors, administrators, or assigns, shall and will leave and -surrender unto the said party of the first part, his heirs or assigns, -the said demised premises in as good stage and condition as they are -now in, ordinary wear and damages by the elements excepted. - -And the said party of the first part does covenant and agree, with the -said party of the second part, his executors, administrators, and -assigns, that the said party of the second part, his executors, -administrators, and assigns, paying the said yearly rent above -reserved, and performing the covenants and agreements aforesaid on his -part, the said party of the second part, his executors, -administrators, and assigns, shall and may at all times during the -said term hereby granted, peaceably have, hold, and enjoy the said -demised premises, without any manner of trouble or hindrance of or -from the said party of the first part, his heirs or assigns, or any -other person or persons whomsoever. - -In witness whereof, the parties to these presents have hereunto set -their hands and seals. - -Sealed and delivered in the presence of - - ________ - A.B. (L.S.) - - -25 - -Lease of Furnished Rooms - -Memorandum. It is agreed by and between A.B. and C.D., as follows, -viz.: The said A.B., in consideration of the rent hereinafter -mentioned and agreed to be paid to him, hath letten to the said C.D. -one room, up two flights of stairs forward, part of the now -dwelling-house of the said A.B. situate on ________ Street, in the -city of ________, together with the furniture at present standing -therein--that is to say: (insert furniture). To hold to the said C.D. -for the term of two years, to commence from ________, 19__, at the -yearly rent of $100, to be paid quarterly to the said A.B. - -The said C.D., in consideration hereof, agrees to pay the aforesaid -yearly rent of $100, at the times above limited for payment thereof; -and at the end of the term, or in case of any default in the payment, -shall and will, on the request of the said A.B., or his assigns, -immediately yield and deliver up to him or them, the peaceable and -quiet possession of the said room, together with the whole furniture -he, from the first entrance thereon, there found and possessed, in -good, and sufficient plight and condition, reasonable wear and tear -only excepted. - -In witness whereof the parties have signed this agreement, this ____ -day of ________, 19__. - - A.B. - C.D. - - -26 - -Assignment of Lease - -For and in consideration of the sum of $________, to me in hand paid -by E.F., I hereby assign and transfer to said E.F. a certain lease, -bearing date ________, 19__, and made by A.B. to me, C.D., for -(describe the premises), together with all and singular the buildings -and appurtenances thereunto belonging, or in any wise appertaining, -subject, however, to the rents hereafter to accrue and the covenants -and conditions contained in said lease. - - C.D. - - -27 - -Assignment of Lease--Another Form - -Know all men by these presents, that I, A.B., the within-named lessee, -for and in consideration of $50, to me in hand paid by C.D., of the -town of Franklin, County of Albany, at and before the sealing and -delivery hereof, the receipt whereof I do hereby acknowledge, have -granted, assigned and set over, and by these presents do grant, assign -and set over, unto the said C.D., his executors, administrators, and -assigns, the within indenture of lease, and all that house and farm -therein described, with the appurtenances, and also my estate, right, -title, term of years yet to come, claim and demand whatsoever, of, in, -to, or out of the same. To have and to hold the said house and farm, -and the appurtenances thereof unto the said C.D., his executors, -administrators, and assigns, for the residue of the term within -mentioned, under the yearly rent and covenants within reserved and -contained, on my part and behalf to be done, kept and performed. - -Witness my hand and seal, this June 20, 19__. - - A.B. (L.S.) - - (Acknowledgment.) - - -28 - -Notice to Quit - -To C.D.: - -I hereby notify you to leave the premises now occupied by you, to-wit: -(Lot 8 in Block 144, in the city of ________, ________ county, -________.) If you fail to comply with this notice within three days -after its service, I shall instigate legal proceedings to obtain -possession of said premises. - - (Signed) A.B. - - -29 - -Subscription to Build a Church - -Whereas, the trustees of the church corporation, known as the "Church -of the Puritans," are about erecting a church edifice for such -corporation; now, we, the undersigned, for the purpose of such -erection, hereby agree to and with such trustees and to and with each -other, to pay to B.B., the treasurer of said corporation, the several -sums by us set opposite our several names, for the purpose of such -erection, and we hereby authorize and direct the said trustees to -expend such sums in the erection of the same. The said sums are to be -paid to the said treasurer on or before the 1st day of March, 1900. - - NAMES AMOUNT - A.B. $600 - C.C. 400 - - -30 - -Power of Attorney - -Know all men by these presents, that we ________ and ________, husband -and wife of the county of ________, and state of ________, have made, -constituted and appointed, and do hereby make, constitute and appoint -________ of the county of ________, and state of ________, our true -and lawful attorney for us and in our names, place and stead, to sell -and convey by a good and sufficient deed, with full covenants of -warranty the following described real estate, to-wit: (describe), -hereby giving and granting to our said attorney full power to do and -perform every act and thing necessary to be done in the premises as -fully as we could do if personally present, hereby ratifying and -confirming all that our said attorney shall do by virtue hereof. - -In witness whereof we have hereunto set our hands this ____ day of -________, 19__. - - In the presence of ________ - ________ ________ - - State of ________} - ________ County. } - -On this ____ day of ________, 19__, before me, a justice of the peace -in and for said county, personally came the above named ________ and -________, who are known to me to be the identical persons whose names -are affixed to the above power of attorney as makers thereof, and -severally acknowledged the instrument to be their voluntary act and -deed. - -In witness whereof I have hereunto set my hand the day and year above -written. - - A.B. - Justice of the Peace. - - -31 - -Power of Attorney to Transfer Stock - -Know all men by these presents, that ________, for value received, -ha____ bargained, sold, and assigned, and by these presents do -bargain, sell, and assign unto ________, the following described -stock, to-wit: ________ unto ________, belonging and held by -certificate No. ________, in ________ name, and hereunto annexed, and -do hereby constitute and appoint ________, true and lawful attorney, -irrevocably, for ________, and in ________ name and stead, to ________ -use, to assign and transfer the said stock unto ________ and for that -purpose to make and execute the necessary acts of assignment and -transfer, and an attorney, or attorneys under ________, for that -purpose, to make and substitute, and to do all other lawful acts -requisite for effecting the premises, hereby ratifying and confirming -the same. - -In witness whereof ________ have hereunto set ________ hand ____ and -seal ____ in the city of ________, the ____ day of ________, in the -year of our Lord, 19__. - - State of Ohio, - City and County of ________ss.: - -On the ____ day of ________, 19__, personally appeared before me -________, to me known to be the person ________ described in, and who -executed the within instrument, and acknowledged the execution of the -same for the uses and purposes therein mentioned. - - -32 - -Certificate of Stock - -No. ________ No. of shares ________ - Par value of each, $________ - -The ________ Company: - -This is to certify that ________ is the owner of ________ ________ -shares of the capital stock of the ________ Company, transferable only -on the books of the company by the holder thereof, in person or by -attorney, on the surrender of this certificate. - -In witness whereof, the said company has caused its corporate seal to -be affixed, hereto, and this certificate to be signed by its president -and treasurer. - - ________, N.Y. ________, 19__. - ________ President. - ________ Treasurer. - -On back of the certificate a blank transfer, in following form, should -be printed. - - For value received, ________ hereby sell, assign, and transfer - unto ________ shares of the within-mentioned stock, and do - hereby constitute and appoint ________, attorney to transfer - the same on the books of the company. - - Witness my hand and seal, this ____ day of ________ ________, - 19__. - - Witness: ________ - ________ (SEAL) - - -33 - -Agreement to Sell Shares of Stock - -Memorandum of agreement, made this ____ day of ________, 19__, between -A.A., of the city of New York, of the first part, and B.B., of the -same place, of the second part, witnesseth: That the said A.A. agrees -to sell and convey to the said B.B., on or before the 1st day of May -next, 1,000 shares of the capital stock of the New Haven Bank, for the -price or sum of $110 per share, and to make, execute, and deliver to -the said B.B. all assignments, transfers, and conveyances necessary to -assure the same to him, his heirs and assigns. - -In consideration whereof, the said B.B. agrees to pay unto the said -A.A. the price or sum or $110 for each and every share of the said -stock so assigned, whenever, and as soon as the said assignment and -the scrip of stock so assigned shall be properly executed and -delivered to the said B.B. - -In witness whereof, the said parties have hereunto set their hands and -seals, the day and year first above written. - - A.A. (L.S.) - B.B. (L.S.) - - -34 - -Transfer of Shares of Stock - -Know all men by these presents, that I, A.B., ________ for value -received, have bargained, sold, assigned, and transferred, and by -these presents do bargain, sell, assign, and transfer unto C.D., -sixteen shares of the capital stock, standing in my name on the books -of the ________ First National Bank, and ________ do hereby constitute -and appoint the said C.D., ________ my true and lawful attorney, -irrevocable, for me and in my name and stead, but to his use, to sell, -assign, transfer, and set over all or any part of the said stock, and -for that purpose, to make and execute all necessary acts of assignment -and transfer, and one or more persons to substitute with like full -power, hereby ratifying and confirming all that my said attorney, or -his substitute, or substitutes, shall lawfully do by virtue hereof. - -In witness whereof, I have hereunto set my hand and seal the ____ day -of ________, 19__. - - A.B. (SEAL) - - -35 - -Assignment of Policy of Insurance - -Know all men by these presents, that I, A.B., of the village of -Coxsackie, for and in consideration of $25, to me in hand paid by C.D. -of the same place, the receipt whereof is hereby acknowledged, have -sold, assigned, transferred, and set over, and by these presents do -sell, assign, transfer, and set over, unto the said C.D. the policy of -insurance, known as policy No. 23,685 of the Indemnity Insurance -Company, and all sum and sums of money, interest benefit and advantage -whatsoever, now due, or hereafter to arise, or to be had or made by -virtue thereof, to have and to hold the same unto the said C.D., and -his assigns forever. - -In witness whereof, I have hereto affixed my hand, this June 20, 19__ -(A.B.) - -(Acknowledgment.) - - -36 - -Assignment of Patent Right - -"Whereas, letters-patent, bearing the date the 10th of January, 1921, -were granted and issued by the Government of the United States, under -the seal thereof, to A.B., of the town of Bristol, of the State of -Pennsylvania, for (here state the nature of the invention) a more -particular and full description thereof is annexed to the said -letters-patents in a schedule; by which letters-patents the full and -exclusive right and liberty of making and using the said invention, -and of vending the same to others to be used, was granted to the said -A.B., his heirs, executors, and administrators, or assigns, for the -term of seventeen years, from the same date. - -Now, know all men by these presents, that I, the said A.B., for and in -consideration of the sum of $100, to me in hand paid, the receipt -whereof is hereby acknowledged, have granted, assigned and set over, -and by these presents do grant, assign, and set over unto C.D., of the -said town of Bristol, his executors, administrators, and assigns, -forever, the said letters-patent, and all my right, title and interest -in and to the said invention, so granted unto me: to have and to hold -the said letters-patent and invention, with all benefit, profit and -advantage thereof, unto the said C.D., his executors, administrators, -and assigns, in as full, ample, and beneficial manner, to all intents -and purposes, as I, the said A.B., by virtue of the said -letters-patent, may or might have or hold the same, for and during all -the rest and residue of the term for which said letters-patent are -granted. - -In witness whereof, I have hereto affixed my hand and seal, this 10th -day of June, 19__. - - A.B. (L.S.) - In the presence of - E.F. - G.H. - (Acknowledgment.) - - -37 - -Bond for Payment of Money - -(As in Form No. 6, and then as follows): - -The condition of this obligation is such, that if the above-bounden -A.B., his heirs, executors, and administrators, or any of them, shall -well and truly pay, or cause to be paid, unto the above-named C.D., -his executors, administrators, or assigns, the just and full sum of -$1,000, lawful money, as aforesaid, in manner following, to-wit: $300 -part thereof, on the ________ ____ day of ________ next ensuing the -date hereof; $300 more thereof on the ____ day of ________, the next -following; and $400, the residue, and in full payment thereof, on the -____ day of ________, which will be in the year of ________; then this -obligation to be void; but if default shall be made in payment of any -or either of the said sums on the days and times hereinbefore -mentioned and appointed for payment thereof, respectively, then this -bond shall remain in full force and virtue. - - A.B. (L.S.) - - -38 - -Articles of Co-Partnership - -This agreement entered into this ____ day of ________, 19__, by and -between A.B. and C.D., witnesseth, that said parties have formed a -co-partnership for the purpose of carrying on the business of & -________ at ________, upon the following terms and conditions: - -First: The name and style of said co-partnership shall be A.B. & C.D., -and shall continue ________ years from this date, unless sooner -terminated by the death of either of said partners. - -Second: The said A.B. shall contribute to the capital stock of said -firm the sum of $________, and the said C.D. the sum of $________, and -said partners shall be the owners of the stock in that proportion, and -any further increase of the capital stock shall be contributed by said -partners in the same ratio. - -Third: All the profits which shall accrue to said partnership shall be -equally divided between said partners; and all losses from whatever -cause shall be borne by them in proportion to their interests in the -stock of said firm. - -Fourth: Neither of said partners shall sign or in any manner become -liable upon any promissory note or other obligation, for the -accommodation of any person whatsoever, nor lend any of the -co-partnership funds without the consent in writing of the other -partner. - -Fifth: Neither party shall withdraw from the funds of the firm to -exceed the sum of $________, per annum, in ________ in installments of -not to exceed the sum of $________, but neither shall at any time be -entitled to draw in excess of his share of the profits then earned. - -Sixth: All transactions and accounts of the firm shall be kept in -regular books, which shall be open at all times to the inspection of -either party or their representatives. - -Seventh: An invoice of stock shall be taken on the first day of -January of each year, and the account between the parties settled at -that time. And an invoice be taken and an account had at any other -time when either partner shall demand the same in writing. - -Eighth: No transaction outside of the ________ business shall be -entered into by either of said partners without the consent in writing -of his co-partner. And any violation of the terms of this agreement -shall be sufficient cause for a dissolution of this co-partnership. - -In testimony whereof we have hereunto set our hands this ____ day of -________, 19__. - - A.B. - C.D. - - In the presence of G.H. - - -39 - -Articles of Co-Partnership--Another Form - -Articles of co-partnership, made this ____ day of ________, 19__, by -and between A.B. and C.D. both of the city of ________, witnesseth -that: - -The said parties hereby agree to form, and do form a co-partnership, -for the purpose of carrying on the general produce and commission -business on the following terms and articles of agreement, to the -faithful performance of which they mutually engage and bind -themselves, each to the other. - -The style and name of the co-partnership shall be B. and D., and shall -commence on the ____ day of ________, 19__, and continue for the -period of five years. - -Each of the said parties agrees to contribute to the funds of the -partnership the sum of $3,000 in cash, which shall be paid in, on or -before the ____ day of ________, 19__, and each of said parties shall -devote and give all his time and attention to the business, and to the -care and superintendence of the same. - -All profits which may accrue to the said partnership shall be divided -equally, and all losses happening to the said firm, whether from bad -debts, depreciation of goods, or any other cause or accident, and all -expenses of the business shall be borne by the said parties equally. - -All the purchases, sales transactions, and accounts of the said firm -shall be kept in regular books, which shall be always open to the -inspection of both parties and their regular representatives -respectively. - -An account of stock shall be taken, and an account between the parties -shall be settled as often as once a year, and as much oftener as -either partner may desire, and in writing request. - -Neither of the said parties shall subscribe any bond, sign or indorse -any note of hand, accept, sign, or indorse any draft or bill of -exchange, or assume any other liability, verbal or written, either in -his own name or in the name of the firm, for the accommodation of any -other person or persons whatsoever, without the consent in writing of -the other party; nor shall either party lend any of the funds of the -co-partnership without such consent of the other partner. - -No large purchase shall be made, nor any transaction out of the usual -course of the business shall be undertaken by either of the partners, -without previous consultation with, and the approbation of, the other -partner. - -Neither shall withdraw from the joint stock, at any time, more than -his share of the profits of the business then earned nor shall either -party be entitled to interest on his share of the capital; but if, at -the expiration of the year, a balance of profits be found due to -either partner, he shall be at liberty to withdraw the said balance, -or to leave it in the business, provided the other partner consent -thereto, and in that case be allowed interest on the said balance. - -At the expiration of the aforesaid term, or earlier dissolution of -this co-partnership, if the said parties, or their legal -representatives, cannot agree in the division of the stock then on -hand, the whole co-partnership effects, except the debts due to the -firm, shall be sold at public auction, at which both parties shall be -at liberty to bid and purchase like other individuals, and the -proceeds shall be divided, after payment of the debts of the firm, in -the proportions aforesaid. - -For the purpose of securing the performance of the foregoing -agreements, it is agreed, that either party, in case of any violation -of them, or either of them, by the other, shall have the right to -dissolve this co-partnership forthwith, on his becoming informed of -such violation. - -In witness whereof, we, the said A.B. and C.D., have hereto set our -hands, the day and year first above written. - -Executed and delivered in the presence of - -(Acknowledgment.) - - A.B. - C.D. - - -40 - -Letter of Credit - -A.B. & Co ________: - -_Gentlemen._--We will be responsible to you for goods sold to C.D., of -________, to an amount not exceeding ________ dollars (or, for cash -advanced to C.D., of ________ not exceeding ________ dollars), (or, -for credit secured by you to C.D., of ________, in the purchase of -(describe the kind of goods), not exceeding the sum of ________ -dollars) at any time before ________, 19__, unless this letter is -revoked prior to said date; and providing you send notice to us by -mail within ten days of the granting of such credit or making such -payment, and also in case said C.D. should default in making payment -of any part of any debt created by reason of this agreement when such -payment shall become regularly due, then notice of such default shall -be sent by mail to us within five days of such default. - - Dated, ________ 19__. (Signature) - - -41 - -Agreement for Sale of Physician's Practice - -Agreement made this ____ day of ________, 19__, between ________, -hereinafter called the vendor, and ________, hereinafter called the -purchaser. - -1. Whereas the said vendor has for many years past exercised his -profession of physician and surgeon at ________, in the county of -________, and is now desirous of retiring from his practice at -________ aforesaid, and the said purchaser is desirous of establishing -himself as a physician and surgeon at said ________, now therefore, -the said vendor agrees to sell to the said purchaser, who agrees to -purchase, the said practice and the good will and benefits thereof -from the ____ day of ________ next, together with all the fixtures, -furniture, medical books, surgical and other instruments and -apparatus, and all the drugs, medicines, bottles, and other things now -used therein, for the sum of ________ dollars; in confirmation of -which purchase the purchaser, upon the execution of these presents, -has paid the sum of ________ dollars by way of deposit and in part of -the purchase money. - -2. The said vendor further agrees that, on the payment of the residue -of the said purchase money as hereinafter mentioned, he will fully and -absolutely deliver over and assign to the said purchaser, his -executors, administrators, or assigns, the said practice or business, -and the good will thereof, for his and their own absolute use and -benefit; and likewise the full and uninterrupted possession of the -office in which the said practice is now carried on by him, together -with the fixtures, furniture, books, instruments, apparatus, and -things now used in and relating to the said practice. - -3. The said vendor will introduce and recommend the said purchaser to -his patients, friends, and others, as his successor; and will use his -best endeavors to promote and increase the prosperity of the said -practice or business. - -4. The said vendor will not reside or practise either as physician or -surgeon, or act directly or indirectly as partner or assistant to or -with any other physician or surgeon practising ________ either at -________ aforesaid, or elsewhere, within ________ miles thereof. - -5. The said purchaser, in consideration of the agreements on the part -of the vendor hereinbefore contained, hereby further agrees to pay -him, his executors, or administrators, ________ dollars, by -installments as follows: one-half part thereof on the ____ day of -________ next, upon receiving the full and peaceable possession of the -said practice, office, good will, fixtures, furniture, books, and -things hereinbefore mentioned, and the remaining half part thereon on -the ____ day of ________ next. - -In witness, etc. - - -42 - -Agreement Between Merchant and Traveling Salesman - -Agreement made this ________ of ________, between ________ of -________, and ________ of ________, merchants and co-partners, doing -business under the firm name and style of ________ & Co., of the one -part, and ________ of ________, traveling salesman of the other part. - -1. The said salesman shall enter into the service of said firm as a -traveler for them in their business of ________ merchants, for the -period of ________ years from the ____ day of ________ 19__, subject -to the general control of said firm. - -2. The said salesman shall devote the whole of his time, attention, -and energies to the performance of his duties as such salesman, and -shall not, either directly or indirectly, alone or in partnership, be -connected with or concerned in any other business or pursuit during -the said term of ________ years. - -3. The said salesman shall, subject to the control of the said firm, -keep proper books of account, and make due and correct entries of the -price of all goods sold, and of all transactions and dealings of and -in relation to the said business, and shall serve the said firm -diligently and according to his best abilities in all respects. - -4. The fixed salary of the said salesman shall be the sum of ________ -dollars per week for the first year, payable by the said firm weekly -from the commencement of the said service, on the ____ day of -________, and ________ dollars per week for the third year, payable -weekly in like manner, from the commencement of such respective years. - -5. The reasonable traveling expenses and hotel bills of the said -salesman, incurred in connection with the business of said firm, shall -be paid by the said firm, and the said firm shall from week to week -pay to the said salesman the said traveling expenses and hotel bills -in addition to the said fixed salary. - -In witness, etc. - - ________ - ________ - - -43 - -Agreement for the Adoption of Children - -This indenture made the ____ day of ________, 19__, between ________ -of ________, party of the first part, and ________, of ________, and -________ his wife, parties of the second part. - -Whereas the said party of the first part has two daughters, ________ -and ________, now aged ________ and ________ years, respectively; and -whereas the said parties of the second part are willing to adopt the -said children subject to the conditions hereinafter contained, and on -the part of the party of the first part to be observed: Now this -indenture witnesseth that the said parties covenant and agree as -follows, that is to say: - -1. The said parties of the second part shall adopt the said children, -and shall, until the said children shall respectively attain the age -of twenty-one years, or marry under that age, maintain, board, lodge, -clothe, and educate them in a manner suitable to their station, and as -if they were the lawful children of the parties of the second part and -shall at the cost of the parties of the second part, and of the -survivor of them, provide the said children with all necessaries, and -discharge all the debts and liabilities which the said children or -either of them may incur for necessaries, and indemnify the said party -of the first part against all actions, claims, and demands in respect -thereof. - -2. The said party of the first part hereby nominates and appoints the -said parties of the second part, during their lives, and after their -respective deaths the person or persons to be nominated in that -behalf, as is hereinafter mentioned, to be the guardians of the -persons and estates of the said children until they shall attain the -age of twenty-one years, or until they shall marry under that age -respectively. - -3. The said party of the first part shall not revoke the appointment -hereby expressed to be made, and will not, by deed, will, or -otherwise, appoint or apply for the appointment of any other person or -persons to be guardian or guardians of the said children or either of -them, or of their respective estates. - -4. In case of the death of either of the parties of the second part -before the said children shall attain the age of twenty-one years, or -marry under that age respectively, it shall be lawful for the survivor -of them, the said parties of the second part, by deed or will, to -nominate and appoint any person or persons, from and after the decease -of such survivor, to be guardian or guardians of the said children or -either of them. - -5. The said party of the first part shall not himself, nor shall any -person or persons claiming under him, or acting under his authority, -at any time or in any manner interfere with the training or management -of the said children or either of them, or with their or her moral, -intellectual, or religious education or instruction. - -6. If the said party of the first part shall not perform and observe -all and every of the stipulations herein contained and on his part to -be performed and observed, then and in every such case it shall be -lawful for the said parties of the second part, and the survivor of -them, by notice in writing under their, his or her hands or hand, and -addressed either to the party of the first part or to the person -setting up such claim or demand, or so interfering as aforesaid, to -put an end to the agreement hereby expressed to be made, and thereupon -the same shall absolutely cease and determine; provided that in such -event the said party of the first part, or his estate, shall be liable -to pay and satisfy all debts and liabilities incurred by or in any -wise for the benefit of the said children, or either of them, which at -the time of such determination of this agreement shall not have been -paid and satisfied. In witness, etc. - - -44 - -Release by Ward of His Guardian - -Know all men by these presents, that I, A.B., of ________, son and -heir of ________, deceased, in consideration of ________, by these -presents remise, release, and forever discharge C.D., of ________, my -guardian, of and from all manner of actions, suits, accounts, debts, -dues, and demands whatsoever, which I ever had, now have, or which I -or my executors or administrators, at any time hereafter, can or may -have, claim or demand against the said C.D., his executors or -administrators, for, touching, or concerning the management and -disposition of any of the lands, tenements, or hereditaments of the -said A.B., situate, etc., or any part thereof, or for or by reason of -any money, rents, or other profits by him received out of the same, or -any payments made thereof, during the minority of the said A.B., or by -reason of any matter, cause or thing whatsoever, from the beginning of -the world to the day of the date hereof. - -In witness whereof, I have hereunto set my hand and seal, this ____ -day of ________, one thousand nine hundred and ________. - - (Signature and seal) - ________ - -In presence of - - (Signature of witness) - ________ - ________ - - -45 - -Will - -In the name of God, amen: I, A.B., of the city of ________, in the -county of ________, and state of ________, considering the uncertainty -of this mortal life, and being of sound mind and memory, blessed be -God for the same, do make and publish this my last will and testament, -in manner and form following, that is to say: - -First: I direct that my funeral charges, the expenses of administering -my estate, and all my debts be paid out of my personal property. If -that be insufficient I authorize my executors, hereafter named, to -sell so much of my real estate as may be necessary for that purpose. - -Second: I give and bequeath to my beloved wife, C.B., the sum of -$________, in lieu of dower, and of any distributive share in my -estate to which she would otherwise be entitled. I also give and -bequeath to my beloved wife the dwelling-house and lot on which I now -reside. - -Third: I hereby give the custody of my infant children during their -minority, and while they remain unmarried, to my beloved wife, so long -as she remains my widow; but if she shall die or marry again during -the infancy of said children, then in that case, I commit their -custody and tuition to my friend E.F., of said city and state. - -Fourth: I give and bequeath all of the residue of my estate, real and -personal, to my children, share and share alike, as tenants in common, -to be paid to them as they respectively come of age. In case any one -of my children shall die in my lifetime, leaving issue of descendants, -I direct that his share shall not lapse, but shall be paid to such -descendants, in equal proportions. - -Fifth: I appoint my friend G.H. executor of this, my last will and -testament, hereby revoking all former wills by me made. - -In witness whereof I have hereunto subscribed my name this 1st day of -________, in the year of our Lord ________. - - A.B. - -We, whose names are hereunto subscribed, do hereby certify that A.B., -the testator, subscribed his name to this instrument in our presence -and in the presence of each of us, and declared at the same time in -our presence and hearing that this instrument was his last will and -testament, and we at his request, sign our names hereto in his -presence as attesting witnesses. - - L.M., of the city of ________ - N.O., of the city of ________ - - -46 - -Will--Another Form - -I, A.B., of the town of ________, in the county of ________, and state -of________, declare this to be my last will and testament: - -I give and bequeath to my wife, C.B., ________ dollars, to be received -by her in lieu of dower. - -To my son, E.B., ________ dollars (which said several legacies I -direct to be paid within ________ after my decease). - -I give and devise to my son, E.B. aforesaid, his heirs and assigns, -all (here designate the property), together with all the hereditaments -and appurtenances thereunto belonging or in anywise appertaining. - -To have and to hold the premises above described to the said E.B., his -heirs and assigns forever. - -I give and devise all the rest, residue, and remainder of my real -property, of every name and nature whatsoever, to my said daughter, -M.B. (and my daughter, O.B., to be divided equally between them, share -and share alike). - -I give and bequeath all the rest, residue and remainder of my -personal property, of what nature or kind soever, to my said wife, -C.B. - -I hereby appoint E.B. the sole executor of this will, revoking all -former wills by me made. - -In witness (etc., as in Form 45). - - -47 - -Will Bequeathing Legacies and Appointing Residuary Legatee - -I, A.B., of ________, declare this to be my last will and testament. - -I bequeath to my wife, C.B., all the fixtures, prints, books, plate, -linen, china, wines, liquors, provisions, household goods, furniture, -chattels, and effects (other than money or securities for money), -which shall at my death be in or about my dwelling-house and premises -at ________. - -I bequeath to my said wife the sum of ________ dollars, to be paid to -her within one month after my death, without interest. - -I also give and bequeath to my said wife the sum of ________ dollars. - -I also bequeath the following legacies to the several persons -hereafter named: To my nephew, E.F., the sum of ________ dollars; to -my cousin, G.H., the sum of ________ dollars; and to my friend, J.K., -the sum of ________ dollars (and so on with other pecuniary legacies). - -I also bequeath to each of my domestic servants who shall be living -with me at the time of my death in the capacity of (state the -description of servants to whom the legacies are to be given), one -year's wages, in addition to what may be due to them at that time. - -All the rest, residue and remainder of my real and personal estate, I -devise and bequeath to R.S., his heirs, executors, administrators, and -assigns, absolutely forever. - -I appoint T.U. and V.W. executors of this my will. - -In witness, etc. - - -48 - -Articles of Incorporation - -Know all men by these presents. That we, ________, ________, ________, -________, ________, ________, do associate ourselves together for the -purpose of forming and becoming a corporation in the state of -________, for the transaction of the business hereinafter described. - -1. The name of the corporation shall be (give name). The principal -place of transacting its business shall be in the city of ________, -county of ________, and state of ________. - -2. The nature of the business to be transacted by said corporation -shall be the (give name of business) and the erection and maintenance -of such buildings and structures as may be deemed necessary, and to -purchase real estate as a site therefor, and especially to ________. - -3. The authorized capital stock of said corporation shall be (state -amount) thousand dollars in shares of $________ each, to be subscribed -and paid as requested by the board of directors. - -4. The existence of this corporation shall commence on the first day -of ________, A.D., 19__, and continue during the period of ________ -years. - -5. The business of said corporation shall be conducted by a board of -directors not to exceed five in number, to be elected by the -stockholders; such election to take place at such time and be -conducted in such manner as shall be prescribed by the by-laws of said -corporation. - -6. The officers of said corporation shall be a president, secretary -and treasurer, who shall be chosen by the board of directors, and -shall hold their office for the period of one year, and until their -successors shall be elected and qualified. - -7. The highest amount of indebtedness to which said corporation shall -at any time subject itself shall be not more than ________ thousand -dollars. - -8. The manner of holding the meetings of stockholders for the election -of officers, and the method of conducting the business of the -corporation, shall be as provided by the by-laws, adopted by the board -of directors. - -In witness whereof, the undersigned have hereunto set their hand this -____ day of ________ A.D., 19__. - - ________, ________, ________ - ________, ________, ________ - - State of ________} - ________ County. } - -On this ____ day of ________, 19__, before me, A.B., a justice of the -peace, in and for the said county, personally appeared the above named -________, ________, ________, ________, who are personally known to me -to be the identical persons whose names are affixed to the above -articles, as parties thereto, and they severally acknowledged the -instrument to be their voluntary act and deed. - -Witness my hand the date aforesaid. - - A.B. - Justice of the Peace. - - - - -Index - - -Acceptance and delivery, what constitutes, 242 - -Action, defined, 4 - -Actions, different kinds of, 165 166 - -Administrator, may dispose of lease, 155, 156; - can assign remainder of lease, 157 - -Adoption of children, form for or agreement for, 312. - See _Child, Adopted_ - -Adulteration of a commodity, 260 - -Advantage, incidental, 218 - -Agency, 6; - how created, 7; - post-office agency of offerer of contract, 69, 70 - -Agent, when authority must be in writing, 7; - cannot purchase principal's property, 8; - power affected by usage or custom, 8; - invalid act of, cannot be ratified, 9; - ratifying a forgery, 9; - cannot appoint a substitute, 10; - liability of, 10; - secret instructions to, 11; - cannot act for both parties, 12; - cannot receive profit from transaction, 12; - must be faithful, 12; - termination of relation of, 13, 14, 15; - duties of affected by insanity of principal, 13; - marriage of principal, 13; - must keep principal informed, 14; - liability of principal for acts and statements, 9, 10, 11, 12, 13, 14; - auctioneer owners, 16; - auctioneer purchaser's, 16, 1; - length of term of, 17; - for corporation, 26; - bailor as, 28; - broker as, 45; - may make chattel mortgage, 53; - how should sign checks, 58; - authority of to receive stock subscriptions, 77; - deception of releases subscriber, 77, 78; - corporation can do wrong through, 98; - can be appointed to examine books, 101; - has insurable interest in goods, 126; - state prosecutes through, 164 - -Agent, general, 6, 7, 8, 10; - partner is a, 198 - -Agent, special, 6, 7, 18; - insurance broker is a, 46 - -Agisters, 30 - -Alien, may become voluntary or involuntary bankrupt, 31; - woman who marries American, 62; - may be naturalized, 62, 63; - rights of, 63; - owes temporary and limited allegiance, 63; - non-resident, 63, 64 - -Animals, vicious, a nuisance, 258 - -Annoyances, temporary, 256 - -Apologies for slander and libel, 255 - -Appeals, court of, 4 - -Apprentices, and Compensation Acts, 268 - -Arbitration, 45 - -Assault and battery, a wrong, 250 - -Assent, mutual, basis of sales and contracts to sell, 227 - -Assets, disposition of in partnership failure, 202 - -Assignment. See _Bankruptcy_: _Patent_ - -Associations, beneficial, 38; - social and business, 38; - voluntary, 39; - incorporated, 39; - articles and rules, 39; - legal status, 39; - members not partners, 39; - liability to creditors, 39, 40; - rights of members, 40; - recovery of property by members, 41; - exemption from taxation, 41; - admission of members, 41, 42; - initiation, 42; - property rights of religions, 42; - benefits to sick members, 42, 43; - power to expel, 43, 44; - expulsion in subordinate lodges, 44; - restoration of members, 44; - withdrawal of members, 44; - liability of members for promised benefit, 44, 45; - cannot confer judicial power on its officers, 45; - cannot defer future controversies to arbitration, 45 - -Assumpsit, action of, 165 - -Attorney. See _Power of Attorney_ - -Auctioneer, 16; - owner's agent, 16; - purchaser's agent, 16, 17; - must bind purchaser, 16; - completes sale, 17; - authority, how conferred, 17; - a special agent, 18; - authority of, 18, 19; - has properties in goods to be sold, 45 - -Automobile, 19; - rights of owner,19, 20; - no superior rights, 20; - non-resident driver, 20; - license, 20; - liability of bailor, 20, 21; - responsibility of hirer, 21; - sale of, by hirer, 21; - obligation on hirer's part, 21; - owner's redress of car misused, 21; - duty of owner or hirer when carrying passengers, 22; - compensation of owner, 22; - liability for using without owner's consent, 22; - liability of a corporation hirer, 22; - liability for joy riding, 22; - speed of, 22; - exclusion of, 22; - "the law of the road," 22, 23; - rights of pedestrian, 22, 23; - passing each other, 23; - backing, 23, 24; - meeting in street, 23; - at intersecting streets, 24; - obstructions in road, 24; - driver must use care to avoid injury, 24, 25; - competency of driver, 25; - must be under reasonable control, 25; - driving in a fog, 25; - liability of owner, 25 - See _Chauffeur_, _Garage Keeper_ - - -Bacon, quoted, 45 - -Bailee, liability of a minor, 26; - corporation as, 26; - finder of lost property is, 26, 27; - rights of creditor of, 28; - liability of, 28, 29; - must be informed of all faults, 28, 29; - liability of bank as, 29; - liability of a safe deposit company as, 29; - usually a keeper only, 29; - exceptions, 29, 30; - return of property at end of bailment, 30; - lien for services, 30; - has insurable interest in goods, 126; - garage keeper is a, 133 - -Bailment, 20, 26-30 - -Bailor, not responsible for negligence of hirer, 20; - may bring action against innocent purchaser, 21; - corporation as, 26; - and bailee, 26; - rights of, 28; - not always owner of thing bailed, 28; - must explain all faults, 28, 29 - -Bank, custodian of lost property, 27; - liability as bailee, 29; - not legally bound to pay check to holder, 58; - agreement to pay check is with depositor, 58; - responsible for payment of checks, 59; - not responsible for checks carelessly written, 60; - liability for forged checks, 60; - is liable if makes payment on stopped check, 61; - life of a national, 73; - can retain dividend, 78; - liability of national shareholders, 78, 79; - directors of national, 87; - directors of, 88, 91, 94; - who loans money of, 88; - president, 91, 92; - national cannot always certify a check, 99 - -Bankrupt, voluntary and involuntary defined, 31; - filing of petition of voluntary, 33; - withdrawal of petition, 33; - what must accompany petition, 33; - filing of petition against, 33, 34; - must file schedule of property, 34; - first meeting of creditors, 34; - subsequent meetings, 34; - represented by trustee, 34, 36, 37; - proving and allowing claims against, 35, 36; - insurance policy of, 37; - discharge of, 38; - punishment of, 38 - -Bankruptcy, 31; - Federal Act 1898, 31, 37, 38; - courts of, 31; - voluntary and involuntary, 31; - acts of, defined, 32, 33; - procedure in, 33-38 - -Beneficial associations. See _Associations, Beneficial_ - -Benefit, conference of a, 218 - -Bid, authority of auctioneer to accept, 18 - -Bill and note broker, 45 - -Bill of exchange, definition, 196; - assignment of drawee's funds, 196; - similarity of, and endorsed note, 196 - -Bill of Lading, 48, 243 - -Bill of sale, form for, 281 - -Boarding house, liability of keeper of, 149 - -Bonds, government, equity does not require delivery of actual bonds - purchased, 120 - -Bottomry loan, 239 - -Broker, 45; - has no property in goods to be sold, 45; - must sell in principal's name, 45; - commission, 45, 47; - acts as agent, 45; - kinds of, 45, 46, 47. - See _Agency_ - -Brokerage, 45 - -Building, form for agreement for, 278. - See _Real Estate_, _Land_ - -Burglary, excused by drunkenness, 117 - -Buy and sell, regulations concerning capacity to, 228 - -By-laws, neglect of, in holding meeting, 81 - - -Capital, 74, 78, 94 - -Carrier, 48; - kinds, 48; - authority of private, 48; - required to use great care, 48; - may modify common law by contract, 48; - can limit liability, 48, 49; - must carry all responsible passengers, 49; - regulations for carrying freight, 49; - have lien to hold freight, 50; - statutes regarding loss of life, 50; - liability for injuries, 50, 51; - sleeping car company not common, 51; - liability for loss of baggage, 51; - distinction between general and local express companies, 51, 52; - United States common, for mails, 52. - See _Mails_ - -Carrier common, duty to an intoxicated person, 118 - -Cattle, trespassing, liability of owner of, 257 - -Car, liability of principal for acts of conductor of, 11 - -Certificate of stock, form for, 301 - -Charities. See _Associations, Beneficial_ - -Charters, of national banks, 73; - perpetual, 73 - -Chattel mortgage with power of sale form for, 288. - See _Mortgage, Chattel_ - -Chauffeur, physical fitness of, 25; - employer's liability for, 25; - minor as, 57; - license, 57; - liability of employer for pay of, 57; - employer's liability for injury to, 57; - injured, when speeding, 57, 58; - liable for injury to employer, 58; - authority of, to make repairs in garage, 134. - See _Automobile_; _Garage_ - -Check, 58; - signing of, 58; - bank not legally bound to pay, to holder, 58; - payment of, when funds insufficient, 58, 59; - banks responsible for payment of, 59; - two rules relating to payment of, 60; - forged, 60; - holder of, should deposit immediately, 60, 61; - drawer may stop payment of, 61; - certified, 61; - when given in payment, 212 - -Child, adopted, 5; - rights of natural and adopted parents, 5; - rights of inheritance, 5 - -Children, must be supported by parent, 197; - who have property, 197; - protection of, by parent, 197; - of workmen, and Compensation Acts, 273; - form for agreement for adoption of, 312. - See _Adopted Child_, _Husband and Wife_ - -Church, form for subscription to build a, 299 - -Citizen, 62; - definition of, 62; - duty of, 62; - double allegiance of, 62; - state protects ordinary rights of, 62; - protection of, defined by constitution and Federal law, 62; - corporation may be included in term, 62; - who is, of United States, 62; - alien woman as, 62; - American woman loses rights by foreign marriage, 62; - alien may be naturalized, 62, 63 - -Coin, legal limit of, in payment, 211 - -Cold storage, 29 - -Compensation Acts, Workmen's, 266; - basis for computation of compensation under, 274 - -Complaint, action of, 166 - -Contract, 64; - kinds of, 64; - parties to, 65, 66; - consideration of, 66, 67, 68; - mutuality of, 68; - acceptance of, at time of offer, 68; - offer made on time, 68; - offer can be withdrawn, 68, 69; - acceptance after reasonable time, 69; - by correspondence, 69, 70; - acceptance of, by telegraph, 69; - withdrawal of, by telegraph, 69; - offers and rewards, 70, 71; - dates of, 71; - interpreted by law of place when made, 71; - execution of, 71; - damages for failure to execute, 71, 72; - effect of drunkenness on, 116, 117; - equity enforces, 118, 119, 120; - insurance policy is, 125, 126; - of insurance can be reformed by court of equity, 128; - responsibility of innkeeper may be changed by, 149; - life insurance, 167; - of a minor, 176; - to sell in the future, 227; - when necessary to be within, 242; - for manufacture not included in Statute of Frauds, 243; - form for bond to perform a, 280. - See _Deceit_, _Drunkenness_, _Quasi-Contracts_ - -Contract of service, 267 - -Contract, Quasi. See _Quasi Contract_ - -Contractors, independent, and Compensation Acts, 271 - -Conveyance of real estate, in Statute of Frauds, 242 - -Co-partnership, form for articles of, 305, 307 - -Corporate owners of vessels, 236 - -Corporation, cannot become a voluntary bankrupt, 31; - an involuntary bankrupt, 31; - definition of manufacturing, 31; - trading, 32; - through its officers can admit inability to pay debts, 32; - when paying benefits not exempt from taxes, 41; - liability for injuries, 41; - as mortgagee, 53; - may be included in term citizen, 62; - kinds of, 72, 73; - formation of, 73, 74; - perpetual charters, 73, 74; - has no heirs, 74; - continues through succession, 74; - purchase of stock by one member, 74; - capital of, 74; - reasons for forming, 75; - who can subscribe to stock of, 75; - fictitious subscriptions to stock of, 75; - stock certificates 76, 86; - capital stock increased 76; - rights of stockholders, 76; - preferred stock, 76; - subscriptions - to shares is a contract, 77; - cannot purchase own shares, 78; - has no lien on its stock, 78; - liability of shareholders, 78, 79; - appointment of receivers, 79; - assessments on stock, 79; - meetings, 80; - power of, 80; - charter of, 80; - majority shall rule may be modified, 80; - who may call meetings, 80, 81; - annual meetings, 81; - regular meetings, 81; - special meetings, 82; - notices waived, 82, 83; - who can vote, 83, 84, 85; - right of transferee, 85; - directors of, 86-93, 94, 96, 100, 101; - affairs handled by few men, 88; failure of, 92; - dividends, 92, 94-98; - wrongs of, 98; - liability for acts of agents, 98, 99; - owner of stock has insurable interest in goods, 126; - when private may make lease, 155; - municipal, and leases, 155; - may take lease, 155; - can sue for slander or libel, 253; - may be a devisee, or legatee, 264 - -Court, federal and state, 1, 4; - district, 4; - of appeal, 4; - of equity, 16, 118-122, 128; - United States district, 31; - civil, 164 - -Covenants, 104, 105, 122, 165. - See _Deeds_ - -Credit, letter of, form for, 309 - -Creditor, of bailee, 28; - assignment for benefit of, 32; - filing of petition against bankrupt, 33, 34; - claims of, 34, 35, 36; - election of trustee by, 34, 36; - right to vote at meetings, 35; - may object to discharge of bankrupt, 38; - liability of beneficial associations to, 39, 40; - several may join in giving mortgage, 53; - attachment has insurable interest in goods, 126 - -Crime, drunkenness as excuse for, 117; - how prosecuted, 2, 3. - See _Husband and Wife_, _Tort_ - -Curtesy, 101, 102 - -Custom, when no defense to chauffeur, 58; - liability of innkeeper changed by, 149. - See _Usage_ - - -Damages, nominal and compensatory, 253 - -Death, of principal or agent, 15; - of stockholder before transfer, 82; - of partner, 85; - of husband, 114; - of homesteader, 136; - separation agreement cannot be set aside by, 144; - of ward terminates lease, 155; - lease made by wife terminated by husband's, 155; - of mortgagor, 182, 183; - of partner, 201; - of inventor, 206; - of a contractor, 223; - of master of vessel, 239; - of workman, 274 - -Debts and Statutes of Limitation, 244; - revival of, 244, 245 - -Deceit, 102; - when seller not liable, 102; - purchaser of land not liable, 103; - a wink not deception, 104 - -Decisions, highest court, 1 - -Deed, 7, 104; - several, used in land deal, 104; - warranty, 104; - what warrantor agrees to do, 104, 105; - encumbrances, 105; - indenture, 105; - release or quit-claim, 106; - poll, 106; - use of seal, 106; - witnesses, 107; - lease, 107; - completed before delivery, 107; - executor of, 107; - when must be read, 107; - delivery essential, 107, 108; - should be recorded, 108, 109; - acknowledgment, 109, 110; - execution of, by married woman, 109, 110; - Commissioner of, 110; - correction of mistake, 110; - land must be bounded, 110, 111; - equity compels delivery of, 119; - of warranty, form for, 282, 283; - of indenture, form for, 284; - of quit-claim, form for, 285, 286; - of mortgage, form for, 287; - of mortgage with power of sale, form for, 287; - of mortgage on goods and chattels, form for, 289 - -Defenses, in actions for slander and libel, 254 - -Delay in telegraph messages, 246 - -Dependents of workmen, and Compensation Acts, 272 - -Deposits, how made by agent, 12. - See _Bank_; _Check_ - -Desertion, its effect on homestead, 136 - -Devise of lands, 265 - -Devisee, of mortgaged land, 182; - who may be a, 263, 264 - -Director, of corporation, 86-93, 94, 96, 100 - -Discomfort acts of, wrongs, 256 - -Dividends, 94-98, 125. - See _Corporation_ - -Divisional tree, law relating to, 113 - -Divorce, effect of on dower right, 116; - effect of on homestead, 136; - for what causes granted, 144, 145; - absolute, 146; - legal effect of, 146, 147. - See _Husband and Wife_ - -Domicile, of bankrupt, 31; - husband's becomes wife's, 139 - -Dower, 113; - defined, 113; - paramount to claims of husband's creditors, 113; - mortgage has preference, 113; - legal marriage necessary, 114; - assignment of, 114; - may be barred, 115; - non-existence of, 115; - in exchanged lands, 115; - rights of partner's widow, 115; - can be released, 116; - effect of divorce, 116 - -Drunkenness, 116; - effect of, on contracts, 116, 117; - as excuse for crime, 117; - liability of sober party, 117, 118; - responsibility of common carrier, 118; - slander, 118 - - -Earnings, the basis for computation of compensation, 274 - -Ejectment, action of, 166 - -Elevator, sale of grain in, 229 - -Employees, casual, and Compensation Acts, 270; - Federal and Compensation Acts, 271 - -Employer and employee, relations as to patents, 207, 208; - Compensation Acts, 266, 267 - -Enrollment, of vessels, 235 - -Equitable remedies, 118-122 - -Equity, court of, 3, 16, 118-122, 128; - law and, 3 - -Eviction, 160, 161 - -Exchange, bill of. See _Bill of Exchange_, _Note_, _Negotiable Paper_ - -Executor, authority to vote at corporate meetings, 84; - a foreign, 85, 208; - may dispose of lease, 155, 156; - can assign remainder of lease, 157; - when, gets mortgagor's interest, 182; - when heirs may require, to pay, 183 - -Explosives, liability of keeper of, 258 - -Express company, distinction between general and local, 51, 52 - - -Factor, 123; - employed to sell goods, 123; - has a lien on goods, 123; - authority of, 123; - limitations on, fixed by principal, 123; - use of credit, 123; - cannot exchange goods, 123; - may insure goods, 123; - cannot compound claim, 124; - has insurable interest in goods, 126. - See _Agency_ - -Farm, tenant of, 157 - -Farm lease, form for, 295 - -Federal courts, 1 - -Federal employees, and Compensation Acts, 271 - -Finder, obligation of, as to lost property, 26, 27; - of property lost in hotel or railroad car, 27; - when has lien for services, 30; - See _Bailor_ - -Fire insurance. See _Insurance, Fire_ - -Fires, starters of, liability of, 258 - -Fixtures, 132; - defined, 132, 133; - law favors tenant, seller, mortgagor, 132, 133; - what tenant can remove, 162, 163 - -Food, warranty in sale of, 261 - -Forgery, ratification of, 9; - of signature to negotiable paper, 188; - in a telegram, 247. - See _Check_; _Negotiable Paper_ - -Forms, legal: - Agreement for sale of land, 277 - Agreement concerning party wall, 277 - Agreement for building, 278 - Agreement for work and labor, 280 - Agreement for lease, 293 - Agreement to sell shares of stock, 302 - Agreement for sale of physician's practice, 309 - Agreement between merchant and traveling salesman, 311 - Agreement for adoption of children, 312 - Articles of co-partnership, 305, 307 - Articles of incorporation, 318 - Assignment of mortgage, 292 - Assignment of lease, 298 - Assignment of policy of insurance, 302 - Assignment of patent right, 304 - Bill of sale, 281 - Bond to perform a contract, 280 - Bond for payment of money, 305 - Certificate of stock, 301 - Chattel mortgage, with power of sale, 288 - Claim of lien by workman, 279 - Deed of indenture, 284 - Deed of quit-claim, 285, 286 - Deed of mortgage, 287 - Deed of mortgage with power of sale, 287 - Deed of mortgage on goods and chattels, 289 - Deed of warranty, 282, 283 - Lease, 293, 294 - Lease, farm, 295 - Lease of furnished rooms, 297 - Letter of credit, 309 - Notice of sale under mortgage, 291 - Notice to quit, 299 - Power of attorney, 299 - Power of attorney, to transfer stock, 300 - Release by ward of his guardian, 314 - Subscription to build a church, 299 - Transfer of shares of stock, 303 - Will, 315, 316, 317 - -Frauds, Statute of. See _Statute of Frauds_ - -Furnished rooms, form for lease of, 297 - - -Garage, keeper of a bailee for hire, 133; - owner's liability for car when in a, 133; - public, not a nuisance, 133; - lien of keeper of, for storage and repairs, 134; - care keeper of must use, 134; - liability of keeper of for negligence, 134; - keeper of not an insurer, 134; - keeper of must protect from theft, 134; - liability of keeper of for leaving car in alley, 134; - and for using car without permission, 135; - delivery of car by keeper of, 135; - liability of keeper of for delay in repairing, 135; - and for acts of servant, 135. - See _Automobile_, _Chauffeur_, _Bailment_ - -Gift, cannot be recovered, 218 - -Grain, sale of, in elevator, 229 - -Guardian, who can act as, 143; - may make lease, 155; - of a minor, 177; - may apply for a patent, 208; - form for release of, by his ward, 314 - - -Habeas corpus, action of, 166 - -Health of employees in relation to Compensation Acts, 268 - -Highway, 112, 135, 218. - See _Automobile_ - -Homestead, agent's authority to sell, affected by owner's marriage, 14; - definition of, 135; - cannot be seized by creditors, 135; - head of family owning definition of, 135, 136; - effect of desertion and divorce on a, 136; - what land is included in, 136; - steps necessary to procure a, 136, 137; - residence required on a, 137; - liability of owner of, for debts, 137; - can be mortgaged, 137; - can be sold and other land bought, 137; - exemption from taxes, 137 - -Huddy, quoted, 22, 23 - -Husband and wife, 137; - marriage a contract, 137; - essentials of marriage, 137; - false representations, 137; - effect of deceit in obtaining consent, 138; - of compulsion, 138; - of insanity, 138; - legal age for marriage, 138; - void marriages, 138; - marriage license, 138; - marriage performed outside jurisdiction, 138; - common law marriage, 138, 139; - husband's domicile becomes that of wife, 139; - when wife can retain her domicile, 139; - husband's liability for wife's crimes, 139, 140; - wife still liable, 139; - cannot steal from each other, 140; - right to sue each other, 140; - wife's liability for husband's wrongs, 140; - alienation of affection, 140; - wife's right to retain and manage her estate, 141; - can appoint husband to act for her, 141; - may act for husband, 141; - and as executor, administrator or guardian, 141; - wife's right to sue and be sued, 142; - husband's liability for wife's debts, 142; - duty of husband to provide home, 142; - his right to defend wife, 142; - his duty to provide home, 142; - wife must live with husband, 142; - duties of husband and wife toward each other, 142, 143; - guardian of children, 143; - husband and wife may live separately, 143; - may divide property, 143, 144; - when separation agreement cannot be sustained, 144; - death and share of estate, 144; - right of wife to use husband's credit, 144. - See _Divorce_ - - -Ice, liability for, on pavement, 162 - -Imprisonment, false, a wrong, 249 - -Imprisoned person, and Statute of Limitation, 244 - -Incapacity of workman, partial or total, compensation for, 275 - -Incorporation, form for articles of, 318 - -Indecent language in a telegram, 247 - -Indenture, 105; - form for deed of, 284 - -Indorsement, see _Negotiable Paper_ - -Infancy, period of, defined by-law, 65 - -Inheritance, adopted child, 5 - -Injunction, temporary and permanent 22; - against directors, 101; - against infringer of patent, 122; - to forbid tenants making alterations, 159 - -Innkeeper, 147; - persons must receive, 147; - persons must exclude, 147; - keeping of horses, 147; - liability for baggage, 147, 148, 149; - exempt from loss by fire, 148; - may make certain regulations, 148, 149; - keeper of boarding house not, 149 - -Insane person and Statute of Limitation, 244 - -Insanity, of principal, 13; - of agent, 13; - how affects bid at auction, 18; - of master of vessel, 240; - and wills, 264 - -Inspector, 83, 101 - -Insurance Broker, 45, 46 - -Insurance, fire, when liable for acts of agent, 6; - kinds of companies, 124, 125; - mutual company preferred, 124; - mutual plan protects against loss only, 125; - stock company pays dividends, 125; - insured must have interest in property, 125; - who has insurable interest, 126; - policy, as collateral security, 126; - policy void, 126; - policy a contract, 126; - standard policy, 126; - when is policy binding, 126, 127; - premium, 127; - policy may be assigned, 127; - when policy can be cancelled, 127, 130; - contract reformed, 128; - written and printed parts of policy, 128; - written application part of contract, 128; - interpretation of meaning, 128; - language of policy, 128, 129; - clerical errors, 129; - what policy covers, 129, 130; - when risk begins, 129; - misrepresentation, 129, 130; - concealment of facts, 130; - questions and answers a warranty, 130; - policy void, 130; - loss, total or partial, 130; - damage by water, 130; - from explosion, 131; - from theft, 131; - from lightning, 131; - from negligence, 131; - total loss, 131; - partial loss, 132; - open and valued policies, 132; - see _Agency_ - -Insurance, life, 167; - definition, 167; - validity of the contract, 167; - assignment of policy, 168, 172; - authority of general agent to vary the agreement, 168; - no contract until policy accepted by company, 169; - state requirements, 169; - delivery of policy, 169; - authority of general and special agents, 170; - payment of first premium, 170; - void under conditions contrary to public welfare, 170; - proceeds on which policy may be set aside, 171; - determination of beneficiary, 171; - date of commencement of risk, 172; - payment of premiums, 172; - reinsurance contracts, 173; - cancellation or surrender, 173, 174; - rescinding of a policy, 174; - surrender or cancellation value, 175; - conversion of policy, 175 - -Insurance money, provision for, in lease, 159 - -Insurance policy, of bankrupt, 37; - form for assignment of, 302 - -Insurer, garage keeper not an, 134; - innkeeper is, 147 - -Interstate Commerce Commission, controls interstate telegraph - business, 248 - -Invention, patentable or not, 202, 203; - requirements necessary to obtain a patent, 203; - element of novelty, 204; - prior publication, 204; - usefulness, 204; - exercise of inventive power necessary for a patent, 205; - reduction of to practice, 206; - employer presumed to be the real inventor, 208; - inventor must apply for a patent, 208; - specification of, 208; - improvement on, 209 - - -Jewelry, keeping of, by bailor, 29; - see _Carrier_, _Innkeeper_ - - -Key, delivery of, constitutes delivery of goods, 242 - - -Laborers, farm, and Compensation Acts, 268 - -Lake, title to land under and around, 112 - -Land, title to, bounded by navigable river, 112; - equity can forbid injuries to, 121; - equity will enforce covenants, 122; - devise of, in wills, 265; - form for agreement for sale of, 277 - -Land, agreement to purchase, 15; - must be in writing, 15; - how signed, 15; - how complete, 15; - oral agreement, 15, 16; - part payment, 16; - period of option to purchase, 16; - see _Contract_, _Statute of Frauds_ - -Land license, see _License_ - -Land owner, liability of, for nuisances on his property, 257; - for safety of persons and children, 259 - -Landlord, see _Lease_ - -Larceny, 27 - -Law, common, 1, 2, 3; - statute, 1, 2; - courts of, 4; - civil and criminal, 2, 164; - and equity, 3, 5; - insolvency, 31 - -Lawsuit, mode of conducting, 164 - -Lease, 151; - defined, 151; - oral or written, 151, 152, 153; - liability of lessee, 151, 159; - agreements in 152, 153; - year to year tenancy, 153; - term, defined, 153; - for a future period, 153, 154; - description of premises, 154; - distinction between, and agreement, 154; - valid, 155; - made by married woman, 155; - private corporation may make, 155; - municipal corporation restricted, 155; - corporation may take, 155; - executor may dispose of, 155, 156; - trustees may make, 156; - partner cannot make, 156; - for what can be made, 156; - ratification, 156; - construction of, 156; - presumes care on part of tenant, 156, 157; - rights of a mill tenant, 157; - rights of a farm tenant, 157; - assignment of, 157; - sublease, 157; - lessor may part with his interests in, 158; - not a warranty of good condition, 158; - lessor not required to make repairs, 158; - agreement to make repairs, 158, 159; - agreement to rebuild, 159; - alterations by tenant, 159; - renewal, 159; - rent, 160; - eviction, 160, 161; - land rented on shares, 161; - of parts of building separately, 161; - liability of lessor, 161, 162; - removals by tenant at expiration of, 162, 163; - form for agreement for, 293; - form for a, 293; 294; - form for a farm, 295; - form for assignment of, 298; - of furnished room, form for, 297 - -Legal remedies, 164-166 - -Legatee, property given to, disposition of, 37; - and cash dividends, 97, 98; - and stock dividends, 97, 98; - definition of, 263; - who may be, 264; - see _Will_ - -Lessee, see _Lease_ - -Lessor, see _Lease_ - -Letter of credit, form for, 309 - -Libel, is a wrong, 250, 251, 252; - and slander, 252 - -License, land, 149; - defined, 149, 150; - for what granted, 150; - granted informally, 150; - revocation, 150, 151; - duty of licensor to invitee, 151; - of vessels, 236 - -License to operate automobile, 20 - -Lien, of agister, 30; - of livery stable man, 30; - of groom, 30; - of freight carrier, 49; - on bank stock, 78; - of factor, 123; - of garage keeper, 134; - of innkeeper, 148; - on real estate, 180, 181; - form for claim of, by workman, 279 - -Life Insurance, see _Insurance, Life_ - -Limitation, Statutes of, 243, 244, 245 - -Livery stable, no lien on animals, 30 - -Lodging house, liability of keeper, 149 - -Lost property, 26-28 - - -McClain, Justice, quoted on life insurance, 168, 174 - -Mail, United States common carrier for, 52; - United States is not liable for loss of, 52; - private express cannot be established for, 52; - liability of postmaster and assistant and clerk, 52; - liability of driver of, 52; - assent in contracts sent by, 69, 70; - delivery of insurance policy, 169; - see _Negotiable Paper_ - -Malice, liability of corporation for, 99 - -Mandamus, issue of, 81; - action of, 166 - -Manufacture, contract for, not included in Statute of Frauds, 243 - -Manufacturer, liability of, 258 - -Margin, sale of stock on, 235 - -Marriage, 13, 14, 115, 137; - see _Husband and Wife_ - -Massachusetts courts, decision in respect to adopted child, 5 - -Masters, of vessels, law governing employment, 239; - duties and successors of, 240; - authority of, 240 - -Meetings, 83-86 - -Merchant, duty of, towards public, 151; - and traveling salesman, form for agreement between, 311 - -Merchandise Broker, 45, 46 - -Messages, telegraph, should not be made public, 247; - may be produced by order of a court, 247; - criminal offense to divulge, 247; - to open or read a sealed, 247; - repeated and unrepeated, 248 - -Minor, limited power of, 7; - bid made by, 18; - as bailee, 20; - cannot become a voluntary bankrupt, 31; - as mortgagee, 53; - as chauffeur, 57; - citizenship of, 62; - ability of to sign contracts limited, 65; - period of infancy of, fixed by law, 65; - cannot subscribe to stock, 75; - cannot be held for note, 91; - cannot make legal deed, 107; - lease made by, void, 155; - contracts of a, 176; - necessaries and luxuries supplied to a, 176; - disaffirmation of contract of a, 177; - fraudulent contract of a, 177; - can avoid sales contracts, 228; - and Statute of Limitations, 244; - may be a devisee or legatee, 264; - as employee in Compensation Acts, 268 - -Morawetz, quoted, 88, 89, 100 - -Mortgage, creditor, can force contract to give, 120; - kinds of, 177; - may cover future advances, 178; - improvements covered, 178, 179; - not an absolute conveyance, 179; - not changed by contemporaneous agreement, 179; - with power of sale, 179, 180; - how the power must be executed, 180; - mortgagor cannot purchase property sold, 180; - lien of vendor for purchase money, 180; - how subsequent purchaser is affected, 180; - notice of vendor's lien, 181; - mortgagor real owner, 181; - both parties may insure premises, 181; - rights of several mortgagees to same property, 181; - right of deviser to money due on, 182; - mode of foreclosure on a, 182; - payment by joint contributors to discharge, 183; - who can redeem a, 183; - payment by executor, 183; - rights of mortgage of vessel, 238; - form for deed of, with power of sale, 287; - form for deed of, 287; - form for notice of sale under, 291; - form for assignment of, 292; - see _Deed_, _Chattel Mortgage_, _Shipping_ - -Mortgage, Chattel, 52; - definition of, 52, 53; - form of, 52; - who may make, 53; - creditors may join in giving, 53; - description of property, 53, 54; - may be given for future advance of money, 54; - to render secure from creditor 54; - Statutes of, 55, 56; - what is included in, 55; - rights of mortgagee, 55, 56; - form for, with power of sale, 288; - form for deed of, 289; - see _Mortgage_ - -Mortgagee, 55, 56; - has insurable interest in goods, 126 - -Mortgagor, 55, 56; - favored by law in regard to fixtures, 133 - -Motorist, non-resident, 20 - - -Naturalization, 62 - -Negotiable Instruments Law, 213 - -Negotiable paper, definition, 183-197; - see _Note_, _Promissory_ - -Newspapers, offers and rewards in, 70, 71 - -Note, promissory, definition, 183; - requirements for a, 183; - unqualified promise in a, 184; - payable on a contingency, 184; - payable at a fixed future time, 184; - dating of a, 184; - seal of a, 184; - payable on demand, 184; - overdue, 185; - payable to order; 185; - payable to bearer, 185; - ante or past-dated, 185; - title to, acquired from date of delivery, 185; - a wrongly dated, 186; - authority of holder to fill blanks, 186; - incomplete until delivery, 187; - mode of delivery, 187; - ambiguity of a, 187, 188; - signature to a, 188; - signature by agent, 188; - a forged, 188; - forged indorsement on a, 188; - consideration for a, 189; - accommodation party to a, 189; - negotiation of a, 189; - negotiation by delivery of a, 189; - by indorsement and delivery, 189; - kinds of indorsement of a, 189; - striking out indorsement of a, 189; - indorsing to bank or cashier, 190; - misspelled or incorrect indorsement, 190; - holder in due course, 190; - bad faith in negotiating, 190, 191; - agreement of maker, 191; - liability of indorser, not a party to, 191; - presentment of a, for payment, 191, 192, 193; - exclusion of days in reckoning due date of, 193; - payable at bank, 193; notice of dishonor of a, 193, 194; - notice of, to joint parties, 194; - notice of, to address as directed, 194; - notice of waived, 195; - alterations in a, 195; - memorandum on a, 195; - similarity of indorsed, and bill of exchange, 196; - given in payment, 212; - and Statute of Limitations, 244 - -Non-resident Alien, 63, 64 - -Notice, of sale under mortgage, form for, 291; - of meetings, see _Corporation_; - to quit, form for, 299 - -Nuisances, private, are wrongs, 255 - - -Obligations, various, included in Statute of Limitations, 245 - -Officer, public, liability of, 52 - -Option, to purchase land, 16 - -Owners, in common, of vessels, 236, 237 - - -Parent, natural and adopted, 5; - cannot lease land of minor child, 155; - of a minor, 177; - obligations of, toward child, 197; - cessation of, 197; - protection of child by, 197; - use of child's property by, 197; - and child, relations between, 197; - see _Adopted Child_, _Husband and Wife_ - -Partner, a member of beneficial association not a, 39; - what surviving may do, 85; - may waive notice of corporate meeting, 85; - dower rights of widow of, 115; - cannot lease partnership land, 156; - non-investing, not liable for debts, 198; - a general agent, 198; - limitations of authority of a, 199; - silent or secret, liability of, 199, 200; - general or special, 200; - illegal contract made by a, 201; - death of a, 201; - succession to by executor, 201; - retiring, 201; - liquidating, authority of, 202 - -Partnership, rules for termination of agency, 14; - liability of members, 75, 78; - stock owned by, represented by partner, 85; - contract to form, cannot be enforced, 120; - member of, cannot make lease, 156; - between tenant and landlord, 161; - in a single transaction, 198; Act, 198; - liability of non-investing partners in, 198; - can hold any kind of property, 198; - partners in, are general agents, 198; - limitations of authority of partners in, 199; - reception of a new member in, 199; - formed by definite agreement in writing, 199; - silent or secret partners in, 199, 200; - limited liability, 200; - dissolution of a, 201; - death of a partner in, 201; - retiring partner in, 201; - failure of, disposition of assets, 202; - liquidating partner in, 202 - -Party wall, form for agreement concerning, 277 - -Passenger, duty of automobile owner or hirer, in carrying, 22; - compensation for carrying, 22; - see _Carrier_ - -Patent, 202; - design, 203; - invalidation of an American by a foreign, 204; - prior publication for a, 204; - defeat of on ground of lack of novelty, 204; - must be useful to get a, 204; - exercise of inventive power necessary for a, 205; - to whom can a be issued? 206; - a joint, 207; - must be issued in name of real inventors, 207; - rights of employee with a, 207; - may be issued to assignees, 208; - inventor must apply for a, 208; - specification of invention to get a, 208, 209; - duties of inventor to get a, 209; - duties of commissioner and examiner before granting a, 210; - right of appeal if not granted, 210; - infringement of, and injunction to prevent, 211; - form for assignment of right, 304 - -Pawn Broker, 45, 47 - -Payment, when can double be required, 9, 211; - legal forms of, 211, 212; - note or check given in, 212; - applications of general on several debts, 212; - receipt not conclusive evidence of, 213; - effect of a seal in a receipt for, 214; - on receipt of documents, 235; - partial, of purchase money completes sale, 243; - partial, revives debt barred by Statute of Limitations, 245; - of money, form for bond for, 305 - -Peck, quoted, 117 - -Pedestrian, rights of, 22 - -Physician, admission of, to beneficial associations, 41; - form for agreement for sale of practise of a, 309 - -Pledgee, authority of, 7; - has insurable interest in goods, 126 - -Pledgor, of stock, 85, 86 - -Policy, insurance, 168-176; - form of assignment of, 302; - see _Insurance, Fire_; _Insurance, Life_ - -Poll deed, 106 - -Possession and control, transfer of constitutes delivery, 243 - -Postmaster, liability of, 52 - -Post office, is agency of offerer of contract, 69, 70 - -Pond, title to land under and around, 112 - -Power of attorney given to an agent, 7; - given by a homesteader, 14; - revoked by woman's marriage, 14; - form for, 299; - to transfer stock, form for, 300 - -Precedent, nature of, 1 - -Preference, defined, 32 - -Preferred stock, see _Corporation_ - -Premium, see _Insurance, Life_; _Insurance, Fire_ - -Prescriptive Rights, 214; - to land, how gained, 214; - how determine whether or not fully acquired, 214; - to light and air, 215; - to use of water, 216; - to lateral support of land, 217; - excavations, 218 - -Price, fixing of, in a sale, 230; - determination of reasonable, 231 - -Promise to pay a debt, renewal of, 244, 245 - -Property, lost, 26, 27; - fraudulent transfer of, 32, 33; - real and personal, in wells, 263 - -Prosecution, liability of corporation for, 99; - malicious, is a wrong, 249 - -Prosecutor, State as, 164; - injured person as, 164 - -Publication, prior, of an invention, 204 - -Public Officers, and Compensation Acts, 272 - -Purchasers of vessels, liability of, 238 - - -Quasi Contract, 218; - definition, 218; - gift cannot be reclaimed, 218; - recovery for incidental advantage to another, 218, 219; - for service rendered as gratuity, 219; - for goods accepted without intended payment, 219; - for perished property, 220; - premium on insurance policy, 220; - recovery in case of indefinite promise, 220; - contract not executed as law requires, 220, 221; - especially Statute of Frauds, 221, 222; - recovery for use of unpaid for land, 222; - recovery impossible in case of no benefit, 222; - recovery impossible by taking advantage of one's own default, 223; - recovery for loss in course of alteration and repair, 223; - in case of illness or death of contractor, 223; - in wagering contract, 224; - in contracts made on Sunday, 224; - on partnership note given for benefit of partner, 224; - of goods delivered by carrier to wrong person, 224; - of payment made by mistake, 225; - when consideration has totally failed, 225; - voluntary payment, 225; - recovery of check not covered by deposit, 225; - goods sold as own which are not, 225; - goods that are worthless, 225; - forced benefit cannot be recovered, 226 - -Quit, form for notice to, 299 - -Quit-claim, 106; - form for deed of, 285, 286 - -Quo warranto, action of, 166 - - -Race track news by telegraph, 217 - -Railroad receivers, 8 - -Ratification, defective notice of meeting may be cured by, 83 - -Real Estate, broker, 45, 46; - deeds, 101-112; - monuments, 111; - boundaries of, in cities, 111; - non-navigable stream, 111; - tidal navigable stream, 112; - natural or artificial pond as boundary, 111, 112; - title to land in public highway, 112; - liability of examiner of title, 112, 113; - equity awards money for failure of contract, 120; - equity will enforce covenants, 122; - seller favored by law in regard to fixtures, 132, 133; - conveyance of, in Statute of Frauds, 242. - See _Lease_ - -Receipt not conclusive evidence of payment, 213 - -Receiver, duties of, 79; - has insurable interest in goods, 126. - See _Corporation_ - -Registration of vessels, 235 - -Release, 106; - by ward of his guardian, form for, 314 - -Rent, 160 - -Replevin, action of, 165 - -Representation, as distinguished from warranty, 260 - -Retraction, of slander and libel, 255 - -Revocation of wills, 266 - -Right of way, 214; - to light and air, 215; - to use of water, 216; - to lateral support of land, 217 - -Riparian owner, rights of, 112 - -Roads, public, 19 - - -Safe Deposit Company, as bailee, 29 - -Sale, 227; - future contract to sell and present sale, 227; - based on mutual assent, 227; - executory, 227; - executed, 227; - based on mutual assent, 227; - may be conditional, 227; - regulation of capacity to buy and sell, 228; - contracts of a minor, 228; - Sales Act and Statute of Frauds, 229; - limit of enforcement of sale, 229; - an undivided share, 229; - specific goods, 230; - fixing of price in a, 230; - determination of reasonable price, 231; - and warranties, 231; - satisfaction of buyer necessary, 231; - implied warranty in a, 232, 233; - transfer of ownership in a, 233; - delivery and acceptance in a, 234; - delivery of goods or documents on payment, 234; - speculative stock, 235; - of goods, wares, and merchandise in Statute of Frauds, 242; - various modes of completing, 243; - of land, form for agreement for, 297; - Bill of, form for, 281; - form for notice of, under mortgage, 291 - -Sales Act, 17, 228; - and undivided share of goods, 229; - and Statute of Frauds, 229; - and specific goods, 230; - fixing of price in, 230; - determination of reasonable price, 231; - satisfaction of buyer necessary, 231; - warranty and implied warranty, 232, 233; - delivery and acceptance, 234; - delivery of goods or documents on payment, 234 - -Seal, use of, 106; - effect of, in a receipt for payment, 214 - -Seamen, of vessels, laws pertaining to, 241 - -Separation, between husband and wife, 143, 144 - -Servants, domestic and Compensation Acts, 269 - -Service, contract of, 267 - -Shareholder, rights of, 101. - See _Corporation_ - -Shares, land rented on, 161; - of stock, form for agreement to sell, 302 - -Shipping, 235. See _Vessels_ - -Shipping Broker, 45 - -Slander, liability of corporation, 11, 12, 99; - in case of drunkenness, 118; - and libel, action of, 166; - and libel, distinctions between, 252; - is a wrong, 250, 251; - definition of, 253 - -Sleeping car, 51 - -Snow, liability for, on pavement, 162 - -Spring of water, restrictions of owner, 217 - -Statute of Frauds, and auctioneer, 17; - and lease, 152; - and recovery on contract, 221, 222; - and sale of goods, 229, 242, 243; - and delivery and acceptance, 242; - and sale of real estate, 242; - and manufacturer, 243 - -Statutes, 1, 2; - pertaining to lost property, 26, 27; - to beneficial associations, 39; - to pawn-brokers, 47; - limiting amount carrier must pay for lost life, 50; - regarding mail carrying by private express, 52; - pertaining to chattel mortgages, 55, 56; - imposing higher inheritance tax for non-resident aliens, 63; - allowing individual to form corporations with legislative aid, 73; - pertaining to married women's subscriptions to stock, 75; - provisions for corporations, 80, 81, 83, 99; - controlling bank directors, 92; - fixing liability of parties, 105; - requiring two witnesses to deed, 107; - modifying dower rights, 116; - giving insurer right to cancel fire insurance policy, 127; - providing for total loss, 131; - exempting innkeepers from loss by fire, 148; - changing responsibility of innkeeper, 149; - in New York relative to termination of leases, 154 - -Statutes of Limitation, claim barred by, and bankruptcy, 35; - application of, to directors, 90; - operation of, to cancel debt, 213; - various provisions, 243, 244, 245 - -Stock, 75; - who can subscribe to, 75; - fictitious subscriptions, 75; - certificates, 76, 86; - capital increased, 76; - preferred, 76; - subscription to, a contract, 77; - corporation cannot purchase own, 78; - corporation has no lien on its, 78; - national banking law, 78; - assessments on, 79; - majority shall rule may be modified, 80; - purchaser of, should give notice to company, 82; - sale of, 83; - trustee legal owner, 84; - executor can vote, of testator, 84, 85; - administer can vote, 85; - owned by partnership represented by partner, 85; - seller and purchaser, 85; - pledgor and pledgee, 85, 86; - transferee, 85; - dividends, 94; - owners of, can examine books, 101; - equity compels delivery of stock, 119, 120; - owner of, in corporation has insurable interest in goods, 126; - speculative sales of, 235; - form for power of attorney to transfer, 300; - certificate, form for, 301; - form for agreement to sell, 302; - form for transfer of, 303. - See _Corporation_ - -Stolen property, resale of, 261 - -Strike, excuses telegraph company for delay, 246 - -Sub-agent, 10, 15 - -Sublease, 157 - -Subscription to build a church, form for, 299 - -Subtenant, 157 - - -Taxes, of beneficial associations, 41; - on homestead, 137 - -Telegraph, 246, 248; - not a common carrier, 246; - must serve all who apply and offer to pay, 246; - cannot discriminate against another telegraph company, 246; - strike sufficient excuse for delay, 246; - can be penalized for delay in interstate business, 246; - prohibited by statute from limiting their own liability, 246; - may be prohibited from transmitting racetrack news, 247; - must transmit all messages except those containing indecent - language, 247; - may close at reasonable hours, 247; - may require sender to designate route of message, 247; - messages should not be made public, 247; - rules for within the state business differ from the rules for - interstate business, 247; - repeated and unrepeated messages, 248 - -Telephone, 246-248; - company cannot favor any telegraph company, 246; - cannot legally charge a telegraph company more than any other - patron, 246; - cannot discriminate against another telephone company, 246 - -Tenant, favored by law in regard to fixtures, 132. - See _Lease_ - -Term of lease, defined, 153 - -Terms, explanation of, 1 - -Testator, must possess sound mind, 262, 263, 264; - requirements of, 264 - -Title to bed of lakes, 112; - to real estate, 112, 113; - warranty of seller's when in possession of the goods, 261 - -Tort, action in, 166 - -Torts (or wrongs), 248-260; - definition, and examples, 248; - false imprisonment, 249; - malicious prosecution, 249; - assault and battery, 250; - defamation of reputation and character, slander, 250, 251; - must be brought to the knowledge of a third person, 251; - libel, vituperation, and abuse, 251; - distinctions between libel and slander, 252; - a corporation may be slandered, 253; - defenses in actions for slander or libel, 253; - apologies or retractions, 255; - private nuisances, 255; - motives not material, 255; - acts of discomfort amounting to nuisances, 256; - temporary annoyances, 256; - distinction between acts that annoy, and acts that injure, 257; - liability of land owner, 257; - trespassing cattle, 257; - vicious animals, 258; - starter of a fire, 258; - keeper of explosives, 258; - liability of a manufacturer, 258; - users of other persons' property, 259; - liability for acts of children, 260 - -Trades-unions, 38 - -Transfer of shares of stock, form for, 303 - -Tree, divisional, law relating to, 113 - -Trenchard, Justice, quoted, 112, 113 - -Trespass, action of, 165 - -Trespasser, 152 - -Trustee, appointment of, in bankruptcy, 36; - must give bond, 37; - removal of, 37; - death of, 37; - represents bankrupt debtor, 37; - duties, 37; - may make lease, 156; - powers of, 265 - - -Undivided share of goods, and Sales Act, 229 - -United States, common carrier for mails, 52; - liability of, for conduct of a private mail driver, 52; - citizen of, defined, 62; - act conferring citizenship on alien women, 62; - naturalization laws, 62, 63 - -Usage, affects agent's power, 8; - sales of auctioneer, 18; - may take into account in insurance policy, 128; - in presenting check for payment, 192; - creates implied warranty, 233; - delivery of goods affected by, 234 - - -Vendor, when can sell goods, 7; - may have lien for purchase money, 180; - notice of lien, 181 - -Vessels, must be registered, 235; - can be registered only by citizens of United States, 235; - sale to a foreigner, 236; - enrollment of, 236; - license of, 236; - title to, how acquired, 236; - when owned by corporations, 236; - owners or tenants in common of, 236: - limitations of authority of owners in common of, 236; - majority and minority of owners in common of, 237; - liability of purchaser of, 238; - mortgaging of, 238; - rights of mortgagor of, 238; - borrowing money on, 239; - appointment of masters of, 239; - duties, and successors of, 240; - authority of, 240; - seamen, laws pertaining to, 241, 242 - -Vituperation and abuse, a wrong, 251 - -Voluntary service, recovery for, 219 - -Voting, cumulating, described, 87, 88 - - -Ward, death of, terminates lease, 155; - form for release from guardian, 314 - -Warranty, deed of, 104, 105; - and Sales Act, 231, 232, 233, 260; - distinction between and representation, 260; - statement made simply to awaken a buyer's interest not a, 260; - implied in all cases where vendor is an expert, 261; - in sale of food, 261; - of the seller's title, when in possession of the goods, 261; - when goods are sold by sample, 261; - form for deed of, 282, 283. - See _Deceit_, _Sale_ - -Water, use of stream of, 216. - See _Prescriptive Rights_ - -Widow, rights of, 136. See _Dower_ - -Wife, rights of in will, 266; - rights in marriage. - See _Husband and Wife_ - -Will, mortgagor dies without leaving, 182; - definition, 262; - requirements for testator, 262; - witnesses of, 262; - real and personal property in, definitions of, 263; - should be in writing, 263; - devisee and legatee in, 263; - must be in accordance with laws of states, 263; - grounds on which are attacked, 263; - made by the insane, 264; - requirements of, 264; - when several are made, 264; - authority of trustee of, 265; - devise of lands in, 265; - date on which take effect, 265; - rights of wife in, 266; - revocation of, 266; - forms for, 315, 316, 317 - -Williston, quoted, on stock sales, 235 - -Witnesses of wills, number required, 262 - -Woman married, limited power of, 7; - as mortgagee, 53; - and contracts, 65; - as subscriber to stock, 75; - husband of, entitled to curtesy, 101, 102; - execution of deed by, 109, 110; - and dower, 113; - lease made by, 155; - and Statute of Limitations, 244; - may be devisee or legatee, 264. - See _Husband and Wife_ - -Work and labor, form for agreement for, 280 - -Workmen's Compensation Acts, injury to chauffeurs, 57, 266; - who is compensated under, 267; - who is not, 267; - contract of service necessary, 267; - condition of health of no consequence, 268; - minors, apprentices, and farm laborers, 268; - domestic servants, 269; - casual employees, 270; - independent contractors, 271; - Federal employees, 271; - public officers, 272; - dependents of workers, 272; - children of workmen, 273; - earnings the basis for computation of compensation, 274; - death of workman, 274; - total and partial incapacity, 275; - form for claim of lien by, 279 - -Wrongs. See _Torts_, 248-260 - - - * * * * * - - +-----------------------------------------------------------+ - | Typographical errors corrected in text: | - | | - | Page 2: adplicable replaced with applicable | - | Page 16: posession replaced with possession | - | Page 32: fradulent replaced with fraudulent | - | Page 95: fnud replaced with fund | - | Page 126: Morever replaced with Moreover | - | Page 133: morgagee replaced with mortgagee | - | Page 139: solemized replaced with solemnized | - | Page 153: acquiesence replaced with acquiescence | - | Page 171: perpared replaced with prepared | - | Page 272: volutary replaced with voluntary | - | Page 324: mortage replaced with mortgage | - | Page 326: Defences replaced with Defenses | - | | - +-----------------------------------------------------------+ - - * * * * * - - - - - -End of the Project Gutenberg EBook of Putnam's Handy Law Book for the Layman, by -Albert Sidney Bolles - -*** END OF THIS PROJECT GUTENBERG EBOOK PUTNAM'S HANDY LAW BOOK *** - -***** This file should be named 33088.txt or 33088.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/3/3/0/8/33088/ - -Produced by Jeannie Howse, Juliet Sutherland and the Online -Distributed Proofreading Team at http://www.pgdp.net - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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