Professional Documents
Culture Documents
HANDBOOK
of
Elementary Treatises on all the Principal Subject s of the Law
OF
SMITH EL.LAw 2d
PREFACE TO THE SECOND EDITION
The fir:st edition has been popular with laymen as well as with
the first-year law students for whom it was intended and the re-
quests of both of these classes of readers have determined the
additions made to the material included. However, the reader
is warned that this book is intended primarily as an introduction
to the study of law and does not pretend to ·be conclusive or ex-
haustive. Its object is merely to declare the more important
fundamental principles of law and the basic subdivisions there-
vii
viii PREFACE
of, and it is analytical and historical only to the extent .requi.red
by this object, for purposes of explanation. and classl.ficatlOn.
It is a book of general principles the exceptions of whIch may
or may not be set forth.
Gratitude is extended to the American Law Institute for its
consent to the use of material from its Restatement; to ~oscoe
Pound and The Harvard Law Review Associa,t ion for theIr con-
sent to the use of a quotation from ail article by Mr. Pound pub-
PREFACE TO THE FIRST EDITION
lished in the Harvard Law Review; and gratitude is extended to
the authors of the other volumes in the publisher's Hornbook
Series for the use made of their materials.
ARCHIE HART MCGRAY. The following pages are intended as an introduction to the
study of the law. Their aim is simply to take the student across
ST. PAuL, MINNESOTA,
the threshold, and give him a general view of the treasures of
June, 1939.
learning which lie beyond. The Anglo-American legal system
may be compared with one of tliose old Feudal castles still to be
seen in parts of Britain. Essentially an ancient structure, yet
having been constantly added to and repaired as the years rolled
by, it presen,ts an appearance much different from the Feudal
original. Here and there a new wing has been built; and, side
by 'side with the modern elements, standing rugged and strong,
some parts of the old building are crumbling into dust.
In the ,first part of the present work the writer has attempted
to present an outside view of this legal edifice. In parts 2 and 3
he has tried to classify its contents, and explain briefly their gen-
eral character.
It is hoped that the book may be found not wholly unsuited
for the purpose it is intended to accomplish.
W.D.S.
Al\"'N ARBOR, MICH.,
May 1, 1896.
,TABLE OF CONTENTS
PART 1
ELEMENTARY JURISPRUDENCE
CHAPTER 1
THE NATURE OF LAW
Section Page
1. Law in General •••••••••............. .. ........••.•••••.•.•• 1-2
2. Scientific Law . . •....•••••..................•.......••..... • 2
3. Rules of Human Action ......... • ...........•..............• 2-3
4. Divine Law ..• '•••••••.................... . .... . ... . ......•• 3
5. Moral Law .. . .•.••••....................... . ..............• 4
6. Customary Law ...•••.....................................• 4-5
7. Jural or Positive Law .•.................. '.•........ , ......•• 6
8. International Law •••....•. ~ ....•...................... ,.... , 6-9
9. Municipal Law •••.•••.•.••..•.••.. ~ ...........•...........• 9--10
10. Natural Law . ~ ................................................................... :; .......... .. 10--11
CHAPTER 2
LAW, THE STATE, AND GOVERNMENT
11. The State ••••••.......•••.•.•..••••................•.•••••• 12
12. The Members of a State ........ .. ........ ,................... 12-13
13. Sovereignty ..• • ••••.•••.......•......•..................... 13-14
14. The Constitution ••••.....••.......................•.....••• 15-16
15. The Government............................................ 16-18
16. Unitary and Federal Governments ... • ..••....•.••••..••.•.•• 18
CHAPTER 3
'GOVERNMENT IN THE UNITED STATES
17. General Nature of the Union ........... . ................... . 19-23
18. Constitutions in the Union ••••................... ; .........• 24-26
19. Governments in the Union •••••.•..•••. . .............•••..•• 26-33
20. Sovereignty in the Union .......•..•...... . ..............•.• 33
21. Citizenship and Naturalization ............................. . 34-35
CHAPTER 4
FORMS AND LEADING SYSTEMS OF LAW
22. Forms of Law.............................................. 36-37
23. Roman Civil Law ••••••..••• : .............................. 37-40
24. The Common Law............... . .......................... 41-50
25. Common Law in the States.................................. 50--54
SMITH EL.LAW 2D xi
TABLE OF CONTENTS xiii
TABLE OF CONTENTS
xll
CHAPTER 5 PART 2
EQUITY Page
Sectiol!
26. The General Nature of Equity ..... ; ........ ................ .
55-60 THE SUBSTANTIVE LAW
6(}-{l6
27. The Maxims of Equity ..... ·······················•·•······· 66-67
28. Equity in the Colonies and the United States .............••..
29. The Fusion of Law and Equity ••.•...•. ~ .•.•.•••......••..•. 67-68
CHAPTER 11
CHAPTER 6 CONSTITUTIONAL LAW
Section Page
ENACTED LA,W
................................................. 6&-74 56. In General .................................................. .
135-144
30. In General 74-77 57. Taxation ............................... . ................. . 145-146
Police Power
31. Classification of Statutes .•••••••••••••.••.••.••..••••••••••• 58. .......................... .................... . 146-147
CHAPTER 7 CHAPTER 12
THE- RANK AND INTERPRETATION OF LAWS CRIMINAL LAW
CHAPTER 13
CHAPTER 8
PERSONS AND DOMESTIC RELATIONS
PERSONS AND RIGHTS
95 63. Marriage in General
Common-Law Inciden~~""'" . . ............. '. . .. ....•..•••••
169-173
36. The Function of Municipal Law ............................ . 96-97 64. 173-175
TerminatiQn of the Relat'i~~"""""""""" ............••
37. Interests . . ...• ··· • ·····•···················· ..•........••.. 97-102 65. Parent and Child .•.............................•• 175- 17-6
38. Legal Rights •••.••.••...................................... 18Z-103 66. Infants ............. . ............................ . 177-'179
39. Persons .....•••... ····································•··· . 103- 104 67. • • • • '1 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 179-181
Guardian and Ward ............... ..
40. Acts ...... ····•··•···············•························ . 104 68. M.aster and Servant ............. 181-185
41. ObjeCts or Things ••••.......................' ..... , ........••
Facts •••••••••••••. '.' .................•.....•.•••...••.•.••
104 69. .
....................................... .
11> . . . . . . . . . . . ............... .
185- 186
42.
CHAPTER 14
CHAPTER 9 REAL PROPERTY
PROPERTY 70.
71. Estates ••••••••••••..••..•....••.....•.••••..•.•••...•••••• 187- 208
Titles
43. In General .................................................
105 ..................................................... . 208-220
The Feudal System ......••................................. 105-111
44.
Ownership ......•••..•.••...............•.................. 111- 112 CHAPTER 15
45.
Possession ......................•..........•.........•..•.. 112-113
46. PERSONAL PROPERTY
47. Corporeal and Incorporeal Property ..•..... ·.······· .•...... 113-114
In General ••••••.........•.•••••.•..............••...•••••• 221-229
72. Sales
73.
48. Real and Personal Property .............. ·· .. •·• .. •·•· .. •• .. 114-123 229-238
74. Bailme;;t~""""""""""""""""""""""""'"
.................................................. 238-243
CHAPTER 10 75. Pledges .................................... : .............. . 243- 244
DIVISIONS OF LAW
PART 3
CHAPTER 21
REMEDIES
89. Scope 01' the Adjective Law .....•••...••...•.••.••••••••••••• 841
90. Remedies in General ..••••.•..•.•................•....••.... 34i- 348
91. Legal Remedies ......••.•.......... . . : .......••..• .- .•..•••• 349
92. Common·Law Remedies •••.............................••..• 35()-353
93. Equitable Remedies ••••••••••••.•••..•••••••••••..•.••..•••• 354-362
CHAPTER 22
COURTS AND THEIR JURISDICTION
CHAPTER 1
LAW IN GENERAL
The orders of nature which, to the extent that they have been
discovered and expressed in general formulas, constitute the laws
of science, or scientific law, differ inherently from the rules ap-
Consent of the Senate, to make Treaties, provided two-thirds against the law of nations' (article 1, section 8, clause 10)."
of the Senators present concur; and he shall nominate, and
by and with the Advice and Consent of the Senate, shall appoint MUNICIPAL LAW
Ambassadors, ·other public Ministers and Consuls, • «0 «0
and all other Officers of the United States;" and, it also provides: 9. Municipal law or the law of a state consists of those precepts
"This Constitution, and the Laws of the United States which for the control of human action which are applied by the
shall be made in Pursuance thereof; and all Treaties made, or judicial and quasi-judicial tribunals and enforced by the
which shall be made, under the Authority of the United States, executive authority of the state. 16
shall be the supreme Law of the Land; and the Judges in every Except for that portion of it which may be international in
State shall be bound thereby, any Thing in the Constitution or character, this is the law that regulates the internal affairs of a
Laws of any State to the Contrary notwithstanding." 13 As nation. It is often defined as "the sum of rules administered
treaties are thus made a part of the law of the land in the by courts of justice." 17 However, municipal law includes not
United States, the international law to the extent that it is de- only the rules administered by the courts of a state but also
clared within treaties entered into by the United States is in- such valid regulations as may be made by administrati;e officials
corporated into the municipal law of the United States, and of- an~ commissions acting under the authority of legislation and
fenses by persons against it and the rights of persons arising WhiCh ~ontrol operations of government and rights of citizens
under international law are adjudged in the municipal courts in but which may not necessarily be applied by judicial courts.
accordance with the precepts of that law.14 Further, municipal law contains the decisions of administrative
In the case of United States v. Arjona,15 Waite, C. J., said, tribunals exercising authority judicial in nature. As such tribu-
"Congress has power to make all laws which shall be necessary nals are agencies of the executive or legislative departments of
and proper to carry into execution the powers vested by the ~overnment but exercise authority usually considered as judicial-
Constitution in the government of the United States (article 1, ill nature, . they are designated "quasi-judicial tribunals" to dis-
section 8, clause 18); and the government of the United States tinguish them from courts which are agencies of the judicial
has been vested exclusively with the power of representing the department.
nation in all its intercourse with foreign countries. It alone can
'regulate commerce with foreign Nations' (article 1, section 8, Municipal Law in the United States
clause 3); make treaties and appoint ambassadors and other T~e. municipal law of the United States is derived from the
public ministers and consuls (article 2, section 2, clause 2). A muruclpallaw of England, which accounts for the continual ref-
state is expressly prohibited from entering into any 'treaty, alli-
16 The term "municipal," when us- purpose, save that of strictly phil-
12 Article 2, § 2, cl. 2, U.S.C.A. 14See Wilson, pp. 12, 13; and, ed in this sense, refers to an inde- osophical inquiry, to be the sum of
Bowman, pp. 47, 48. pendent state or nation. rules administered by courts of jus-
Const.
tice." 1 Pollock and Maitland, Hist.
13 Article 6, U.S.O.A.Const. 15120 U.S. 479, 7 S.Ct. 628, 30 L.
17 "Law may be taken for ever; Eng. Law. 2d. Ed., xxv.
Ed. 728, 1887.
!
10 THE NATURE OF LAW Ch.l § 10 NATURAL LAW 11
erences made to the latter by students of American law. How- The Metaphysical Sense
ever, the courts and legislatures of the States and of the United In the metaphysical sense, natural law is purely a philosoph-
States have molded the English law to the degree that altera- ical concept. First discussed by Socrates and Plato, it was later
tion and expansion have been deemed essential to meet the par- distinguished by Aristotle. "Right and wrong have been defined
ticular requirements of the institutions and conditions in the by reference to two kinds of law. • • • Special law is that
States. The term "Anglo-American law" is used to designate the which is established by each people for itself. • • • The
law of both countries. universal law Is that which is conformable merely to nature." 19
Because of the dual form of government in the United States, "Natural law" has been a subject of philos~phic deliberation and
two systems of municipal law are made necessary. The munici- discourse since Socrates, and the term has been used by jurists,
pal law of the United States is designated by the term "federal but with different meanings at different times. Whether or not
law" whereas the municipal law of the various states is desig- a systematic philosophy of natural law has ever prevailed in the
nated "state law." The municipal law in the United States is United States is debatable, and belief in the existenc~, or, at
what constitutes the principal topic of this book, and its nature ieast, in the discoverability of a metaphysical natural law, has
and various divisions will be treated of in the subsequent chap- now been generally discarded by scholars. 20
ters. 19 Aristotle, Rhetoric, I is. 20 Bowman, § 8, p. 15.
NATURAL LAW
A member of a state may be either a citizen, occupying the 3 "As some states follow the jus 5 The term "sovereignty" is used in
status entitled "citizenship," or he may be a resident alien, oc- soli, and some the jus 8'anguinis, and contradictory senses for discussions
!'ome, like the United States, follow of which the commentators on politic-
1For a discussion of the various corded different units see Wilson, I§ both, there has grown up the practice al science must be consulted.
degrees of international status ac- 6-22, pp. 15-47. of allowing the child born abroad to 6 The various forms of government
elect his allegiance, either follow- include aristocracies, democraCies,
12 ing jus soli or jus sanguinis, upon monarchies, oligarchies.
§ 13
SOVEREIGNTY 13
CHAPTER 2 ~upying the status designated by the title "re;idence" A ·t·
IS a perm t . CI Izen
. a~en ~ember of the state, owes it allegiance at all
LAW, THE STATE, AND GOVERNMENT
:~s, and IS entitled to its permanent protection whether he is
11. The State. Ship'?)~~ ~i:t~ro~~2d ~~ status of his membership ("citizen-
12. The Members of a State. ~IS e y ItS permanent and personal nature and
13.
14.
Sovereignty.
The Constitution. £=~Zd~~~;!!;;tsth~:::u%::;~:~~~:",t~: '::';
15. The Government. . rm 0 natur~l~atlOn.4
A resident alien, on the other
16. Unitary and Federal Governments. ~~~h ~ a. pers~~ reSIding within a state other than the state of
. e IS a CI Izen. He owes the state of his sojourn aIle .
and I~ enti~led,~o i~ protection during his stay. The status~~~
THE STATE mem ershIp ( reSIdence") is distinguished by its tem
11. A state is a political society of human beings organized for !~~~ :sa~~re.. ~tittiZenship usually includes privileges :~~w:~
purposes of social cOlltrol and which has coercive authority e rIg 0 vote or hold governmental offi d .
.over its members. duties such as required military . hi ce, an speCIal
' . servIce, W ch are not included
111 mere reSIdence. But these may vary in diff t
It is only through states that jural law exists, as it is the gov- from time to time m' th - eren states and
e same state.
ernments of states that declare and enforce such law. As an
organization 9f society, it is the state which gives jural law its
authority. From the realistic view, and as to its internal affairs SOVEREIGNTY
and relations, a state is an association of human beings controlling
themselves, or in the control of an individual or group, through 13. SO~~:ignhtyis the p~wer to define and exercise social control
oug governmental agencies. 5
the agency of a political organization. From the legalistic view,
a state may be regarded as an ideal person with a will of its
own. An abstract person, functioning by means of the tools of
sta:e:'t~O~eignt[ fis regarded as lying varies in different
eren orlllS of government,6 but regardless of
political control. A juristic person, speaking by and through le-
gal precepts, legislators, judges and executives. As to its exter- 2 In monarchies, the term "sub-
attaining his majority." Wilson
jec,t " is ordinarily used to designate 122. ' p,
nal affairs and relations, a state may be considered as a sov-
a permanent member thereof, the
ereign political unit, such as the United States, Great Britain, term "citizen" being regarded as the 4 "Naturalization is the act con-
and France, usually characterized by: (a) dominion over a defi- more appropriate word for a per- ferring on a foreigner the status of
nite territory; (b) independence of external control; and, (c) ' manent member of a republic. How- a, ~ational [and] may be (1) by in-
sovereign power to assume and perform international obliga- ever, as the term "subject" has also dIVIdual choice under a general law'
tions.1 been used to designate an alien resi- (2) by marriage; (3) through act o~
~ent of a monarchy, the word "na- parents; (4) through general trans-
THE MEMBERS OF A STATE tional" has been introduced in in- fer of al~egiance to a state acquiring
ternational law to denote a perma- new terrItory; (5) in consequence of
nent member of a state, his status cert~in special service, etc,; (6) by
12. The members of a state are the persons who owe it allegiance being called "nationality." See Bow- speCIal act of legislation." Wils
and who are entitled to its protection. man, pp. 25, 26, p, 123. on,
A member of a state may be either a citizen, occupying the 3, "As some states follow the jus 5 The term "sovereignty" is used in
status entitled "citizenship," or he may be a resident alien, oc- wlt, and some the jus sanguini8 and contradictory senses for diSCUSsions
E'ome, like the United States, f~llOW of which the commentators on politic-
IFor a discussion of the various corded different units see Wilson, f§ both, there has grown up the practice al science must be consulted,
degrees of international status ac- 6-22, pp. 15--47. of allowing the child born abroad to
• 6 The various forms of government
elect his allegiance, either follow-
12 ing jus soli or jus sanguinis, upon
Include aristocracies, democraCies
monarChies, Oligarchies. '
LAW, THE STATE, AND GOVERNMENT Ch.2 § 14 THE CONSTITUTION 15
14
where it is deemed to lie, sovereignty resides potentially, if not
THE CONSTITUTION
actually within the people as a whole by reason of their power
to revolt. The power of a government to command is no greater 14. The constitution of a state consists of precepts in accordance
than its ~bility to obtain obedience to its precepts. Its ultimate with wlVch governmental powers are to be exercised.
guarantee is public opinion, not force. "The final authority fr?m
which there can be no appeal does not reside in the state, WhICh . "Two fundamental ideas are commonly implied in the term
the people have created or permitted to be crea~ed, and ,,:~ich 'constitution.' The one is the regulation of the form of govern-
they can destroy, but in the people themselves. ., A pohtI~al ment; the other is the securing of the liberties of the people.
society which possesses sovereign power within itself and ~hIC? But the former only is essential to the existence of a constitu-
is not dependent upon or responsible to any external s~perIor IS tion, "" "" "" If, in any given country, it is settled law that
termed a "sovereign state;" and, generally, only sovereIgn states the form of government shall be a monarchy, an oligarchy, or
are recognized in international affairs. Such a society is. said to a d~mocracy, as the case may be, and that the succession to the
have a "representative government" when those possessIng the exercise of supreme executive power shall be determined in a
sovereign power have delegated its exercise, within, designated regular manner, that is enough to make up the constitution of
or understood limits, to public officers. that country." 9
A constitution may derive its authority from the people,
Secondary Meanings of the Word ((Sovereignty" emanate from a monarch or a legislature,be a mere plan in fact
The word "sovereignty" is commonly used in different senses according to which governmental affairs are conducted, or it
to denote operations of government. The two most important may be an historical accumulation of traditions, precedents, stat-
of these, as distinguished from political soverei~~y, may be .de~: utes and conventional understandings regarded as morally bind-
ignated as "legal sovereignty" and "government~l a~thorIty. ing and usually complied with but which may be departed from
Legal sovereignty, as a matter of the. leg~l OrganI~atlOn of !he by the governmental agencies. It mayor may not be the funda-
state is the authority in the state WhICh IS recognIZed as beIng mental, organic, and paramount law to which the actions of the
legaliy paramount in the Jormulation of law. In its highest various governmental departments must conform in order to be
manifestation (though this does not necessarily or always ex- valid.
ist) , it is th~ power which can alte~ th~ constitution w~thout
revolution; that is, in accordance With ItS terms and WIthout «Written" and ((Unwritten" Oonstitutions·
overthrowing it. Governmental authority, on the o!her han?, A constitution may be "written" or it may be "unwritten;"
is the lesser power of making, applying, and enforCIng law In and, "among the various constitutional governments of . the
conformity with the constitution as it exists, and subject to the world, it is customary to make a distinGtion between those which
restraints, legal or merely moral, found therein. 8 possess a 'written' constitution and those which are governed by
an 'unwritten' constitution. The distinction, however, is not
Bowman, p. 40. within it, whereas its external sov-
7
ereignty is its legal authority to en- very exact. It is difficult to conceive of a constitution wl1ich
Bowman, p. 41.
S ter and perform international obliga- should be wholly · unwritten. Practically, this term means no
The legal sovereignty of a nation tions. As a concept of international more than that a portion of what is considered to belong to the
may be considered as manifested ei- law, sovereignty is freedom from for- constitution of the country has never been cast in the form of a
ther internally or externally. ·Thus, eign .control recognized by other na- statute or charter, but rests in precedent or tradition. "" "" ""
the internal sovereignty of a nation tions. Between written and unwritten constitutions, as these terms are
is its legal authority . over actions generally employed, the chief differences are: First. A written
constitution sums up in one instrument the whole of what is con-
sidered to belong to the constitution of the state; whereas, in
9 Black on Constitutional Law, 4th.
Ed., p. 2,
16 LAW, THE STATE, AND GOVERNMENT Ch. 2 § 15 THE GOVERNMENT 17
the case of an unwritten constitution, its various parts are to be ernment may affirmatively undertake for the welfare of its
sought in diverse connections, and are partly statutory and partly members such as the establishment and operation of postal and
customary. Second. A written constitution is either gra?-ted educational systems, the coinage of money, the care of highways,
by the ruler or ordained by the people at one and the same tIm:; and the encouragement of inventions are classified as secondary.
while an unwritten constitution is gradually developed, and IS
contributed to not only by the executive and legislative branches The Functional Division of Government
of government, but also by the courts, and by the recogni.ti?n, The law of a state is made, applied, and enforced by and
by rulers and people, of usages and theories ~ra~ually acq~urmg through its government, and as this process necessarily involves
the force of law. Third, a written constitutIOn IS a creatIOn or three distinct operations, the governmental process is function-
product, while an unwritten constitution is a growth. .The one ally divisible in accordance therewith, one function being legisla-
may be influenced, in its essentials, by history, but IS .newly tive, another judicial, and the third, executive. However, the de-
made and set forth. The other is not only defined by hIStOry, gree to which these functions are separated and distributed
but, in a measure, is history. Fourth. Alteration or amendment among independent but co-ordinate departments or officials
of a written constitution is accomplished only by observance of varies in the different states with different forms of govern-
the most exacting formalities. An unwritten constitution, on the ment.
other hand will expand and develop, of itself, to meet new ex- The reasons given for separating the legislative, judicial, and
igencies or 'changing conditions of public opinion or political the- executive functions and the granting of them to independent de-
ory. Fifth. A written constitution, at least in a free country, partments in those states where the divisions are relatively dis-
is a supreme and paramount law, which all must obey, and. t? tinct are the promotion of efficiency and the avoidance of possi-
which all statutes, all institutions, and all governmental actIVi- ble tyranny by reason of the restraint each department may ex-
ties must bend, and which cannot be abrogated except by the ercise on \ the others. In such states, the legislative department
peOple who created it. An unwritten constitution may be altered (usually termed the Legislature, Congress, General Assembly,
or abolished, at any time or in any of its details, by the lawmak- or Parliament) has the power to enact laws to meet the require-
ing power." 10 . ments of new developments. It also has the power to modify,
THE GOVERNMENT
amend, and repeal existing laws. The judicial department has
the power to select and apply the pertinent rules to conflicts be-
15. The government 'of a state consists of the agencifes bYd or tween the government and private persons, or between private
through which its laws are made, applied, and en orce . persons, as the facts of such conflicts arise. The executive de-
partr;nent (the chiefs of which are variously called the President,
As the term "state" is abstract, so the term "government" is Governor, or Prime Minister) has the power to enforce the laws
concrete, and the government of a sta~e exercises such powers enacted by the legislature and the decisions rendered by the ju-
as have been permitted or delegated to It by the state. diciary.
The Objects of Government
Incompleteness of Functional Division
The objects of government are· divided into. those histo~cally
considered as being "primary," and those WhICh are consIdered Generally, and of necessity, the separation of the legislative,
as "secondary." The primary objects of government ~re: (a) judicial, and executive powers of a government is not complete.
to represent and protect th: state in .n:te~a~ion.al affaIrs; . ~d And, generally, in states where the three functions are delegated
(b) to regulate and adjust disputes arIsmg m Its mte:~al affaIrs. to separate departments, each department does not possess or
"The two primary and minimum forms ~f state ~CtIVIty, there- exercise exclusively the power granted to it. For example, the
fore are war against foreign and domestic enemIes and the ad- legislature may have authority to expel its members for cause
mmlstration of justice."Il All other objects which a modern gov- and have authority to enforce its judgments in such cases, thus
11 Bowman, p. SO.
exercising judicial and executive functions; the judiciary may
10 Black on Constitutional Law, exercise legislative authority where there is no rule to govern
4th. Ed., pp. 5, 6.
SMITH EL.LAW 2d-2
18 LAW, THE STATE, AND GOVERNMENT Ch.2
Naturalization
The Constitution of the United States65 specifies that the .Con-
gress shall have power to establish "an uniform rule of naturali-
58 U.S.C.A.Const., Am. 14, § 1. ed June 10, 1933, Ex. Or. 6166, § 14,
59 See Black, pp. ' 634, 635. May 24, 1934, c. 344, § 1, 48 Stat. 797,
8 U.S.C.A. § 6, and conditions there-
60 United States v. Cruikshank, 92 in.
n.s. 542, 23 L.Ed. 588, 1875.
64 See Act of Mar. 2, 1007, Co 2534,
61 Black, p. 635. ~ 5, 34 Stat. 1229, as amended ~ay
62 R.S. § 1992, 8 U.S.C.A. § 1. 24, 1934, c. 344, § 2, 48 Stat. 797, 8
U.S.O.A. § 8, and conditions therein.
63 See R.S. § 1993, Mar. 2, 1007, c.
2534, §§ 6, 7, 34 Stat. 1229, as amend- 65 Art. 1, § 8, cl. 4, U.S.C.A.Const.
SMITH EL.LAW 2d
§ 28 ROMAN CIVIL LAW 37
tion. If the latter course is pursued the process is judicial legis-
CHAPTER 4 lcr.ting and the result is a decisional rule of law. A great deal of
FORMS AND LEADING SYSTEMS OF LAW Anglo-American law consists of rules produced by the judiciary,
particularly during that stage of history when the fundamental
22. Forms of Law. principles of such law were being evolved and before the system
23. Roman Civil Law. thereof was developed to the point where the functional divisions
24. The Common Law. of government acquired recognized signification and the legisla-
25. Common Law in the States. tive, judicial, and executive powers became vested in distinct and
comparatively exclusive departments. These decisional rules
FORMS OF LAW
have been molded, largely, from the cUstoms and beliefs of the
22. The laws of a state may be authoritatively formulated in two people and have been formulated by the courts to meet needs
ways: crystallized in cases brought before them.4
(a) By judicial decisions, and
(b) By legislative enactments.! ROMAN CIVIL LAW
Decisional Law 23. The Roman Civil Law, formulated by judicial decisions and
legislative enactments, and the English Common Law, con-
The decisional law of a state is that part of its positive law stitute the two most influential systems of municipal law.
which has been formulated, or, more particularly, originated by The former is that system which was developed into the
courts in their decisions of cases.2 The judicial power "is the law of the Roman Empire.5
power of a court to decide and pronounce a judgment and carry
it into effect between persons and parties who bring a case be- "Between them these two systems cover nearly the whole of
fore it for decision."3 And, ordinarily, a court reaches its judg- the civilized, and most of the uncivilized world. Only two consid-
ment by the application of existing law, but when a case is pre- erable masses' of population stand outside-the Muselman East,
sented for which there is no existing rule the court mus,t either that is, Turkey, North Africa, Persia, Western Turkistan, and
refuse to decide it or else formulate a new rule for its determina- Afghanistan, which obey the sacred law of Islam, and China,
which has customs all her own. ,.. ,.. ,.. [These] two systems,
written law," if used in reference to
1 Enacted law, ' or that law of a the law of a state having an "unwrit- which had their origin in small communities, the one an Italian
Rtate which is formulated by legisla- ten" constitution, may include more city, the other a group of Teutonic tribes, have been extended
tion, is the subject of Chapter 6, in- than just decisional law as an un-
fra. written constitution may consist in 4 "Courts at the present time, how- al technique of judicial action. Their
part of enacted law. On the other ever, do not make law freely and at chief means of developing new law is
2 The term "decisional law" has
hand, the terms "case law" and large, as does a legislature. Their that of extending the existing law by
been borrowed from Bowman and is
"judge-made law" may be used to in- primary ·function is to dE;!cide cases analogy to new situations. * * *
used here because of its descriptive clude interpretations by the courts of and any new rules which they may Although formerly much controvert-
force. This form of law, as it exists enacted law, and, "the case law that adopt or originate in dOing so are in ed, the fact is becoming generally rec-
in the United States, is more common- is produced by way of judicial inter- the nature of a by-product of the de- ognized that courts do, in this man-
ly designated as common law, unwrit- pretation of the enacted law, though cision. In changing old or making ner and to this extent, make law."
ten law, case law, courthouse law, or decisional in its form, is merely the new law, they are not free to follow Bowman, p. 56.
judge-made law. However, the term enacted law as authoritatively de- their own ideas of what would make
"unwritten law" is misleading be- termined by the courts." Bowman, for popular welfare. They are con- 5 "Oivil Law," "Roman Law," and
rause decisional law is written to the p.211. fined to the consideration of the case "Roman Civil Law" are convertible
extent that it is contained in printed in hand, and in deciding it they are terms meaning the same system of
reports of adjudications and com- 3 Miller, Const. U.S., p. 314; restrained and circumscribed by any jurisprudence, but the term "civil
ments upon it; . and the term "un- Black's Law Dictionary, p. 1033; applicable statute, established com- law" is also used to denote "that di-
36 mon-law principles and the tradition- vision of municipal law which is OC-
-
FORMS AND LEADING SYSTEMS OF LAW Ch.4o § 28 ROMAN CIVIL LAW 39
38
over nine-tenths of the globe."6 The Roman civil law (jus civile time of the republic, promulgated by the praetor, the supreme
Romanorum) origiriated in the primitive customs of the prehis- judicial magistrate of the republic elected annually; (4) the acts
toric city of Rome, and after centuries of development culminat- of the senate (senatus consUlta) , enacted near the end of the re-
ed in a code compiled and given legislative enactment during the public and during the first two centuries of the empire; (5) the
reign of Justinian (527 to 565 A.D.).7 judicial decisions and statutes of the early emperors (decreta,
It has been said that the Roman system of law "begins, as ~t rescriptCf, mandata, and edicta, usually referred to by the gen-
ends, with a code,"s a "code" being "a systematic restatement in eral term "constitutions"); and, (6) the opinions of the jurists
(responsa prudentium) , dating from the latter period of the re-
statutory form, with or without revision, of a body of law which
has previously existed wholly or partly in non-statutory form."~ pl,lblic and from the early empire and ending early in the third
In about 450 B.C., the la* of Rome was given the contour of a century A.D. The jus novum included the decisions rendered
code by the enactment of the Twelve Tables and these were re- and statutes enacted under the emperors froql the third century
garded as the base of Roman law down to the Code of Justinian. to the time of Justinian. 10 .
'lbe reign of Justinian began in 527 A.D., and at that time the The Code of Justinian was a consolidation of the law from the
law was composed of two accumulated masses: the jus vetus, or time of the Twelve Tables and consisted of three parts: ' the Code,
old law, the development of which had been completed in the the Digest, and the Institutes. The Code (in twelve books) is-
third century A.b., and the jus novum, or new law, which had . sued first in 528, and revised in 534, was a collection of the de-
been developed by subsequent judicial decisions and legislative crees of the various Roman emperors from Hadrian (117-'-138
enactments. The jus vetus included: (1) the primitive jus A.D.) to Justinian. "When issued, they were in most cases not
civile, based on custom and the Twelve Tables; (2) the statutes inte:q.ded as legislation, but as published in the Code, they were
(leges and plebiscita), enacted by the popular assembly during given full legislative force."ll The Digest (in fifty books) con-
the republic; (3) the annual decrees (edicta) , dating from the sisted of excerpts from Roman legal writers, the earliest writer
included being Quintus Mucius Scaevola, the teacher of Cicero
cupied with the exposition and en- the World's Legal Systems, Librari
who wrote about 100 B.C., and the latest one being Charisius,
forcement of civil rights as distin-' Ed., pp. 1106-1108.
guished from criminal law." Black's
who wrote about 300 A.D. The greatest part of the Digest was
'I "Roman history is usually divid- from the works of Papinian, Ulpian, and Julius Paulus, all of
Law Dictionary, 3d. Ed., p. 332.
ed into the following periods: (1)
whom wrote in the half century ending in 230 A.D. The writers
6 Bryce, Studies in History and Ju- The kingdom (753- 509 B.O.); (2) the
risprudence, p. 74. But see, Amos, republic (50~27 B.O.); the 'reI!ub- incluped "were in nearly all instances practising lawyers who,
Roman Civil Law, p. 415, "Moham- lican' empire, or principate, from Au- however, performed a- function much like that of the judges in.
medan law is nothing but the Roman gustus to Diocletian (27 B.C.-284 A. Common Law courts. Their opinions were cited as authoritative
law of the Eastern Empire adapted D.); (4) the 'monarchical' empire, or in specific cases. A very large part of the Digest is therefore,
to the political conditions of the Arab dominate, from Diocletian to the re- strictly speaking, case law, in which the decision has ' been gen-
dominions." moval of the capital to Byzantium
(Constantinople) under Constantine eralized, but in which the factual basis is significant and deter-
"The total population of the earth
(284-364); (5) the 'dual' monarchical mining. • • '* Although the Digest is sometimes 'case law'
is some 1800 millions; the Anglican
system now shapes the legal relations empire, in the East and in the West, and sometimes purely doctrinal and historical exppsition, its pub-
of some 300 millions of persons; the from the removal of the capital to lication was intended to give the whole huge mass the force of a
Romanesque, of some 300 millions; the fall of Rome (364-476); (6) the
~nd the Mohammedan, of some 250
Eastern Roman Empire, from the
millions; or between the three, about fall of Rome to the fall of Constan- 10 From the time the Twelve Tables ('odes were imitated in the legislation
one-half of the world's populat!on in tinople (476-1453); (7) the medieval were enacted to the reign of Justin- of the barbarian kingdoms in the
all. All three systems have shown Western Roman Empire, from ian the imperial part of Roman law West and prepared the way for larg-
themselves strikingly adaptable, each Charlemagne to Napoleon (800-1800).~ bad been compiled unofficially by the er reception of Roman law later.
in its own way, to its opportunities. Bowman, p. 126, note. jurists Gregorius and Hermogenianus
in the third and fourth centuries, and
Doubtless the most meritorious and 11 Radin on Anglo-American Legal
S Maine, Ancient - Law, p. 1.
adaptable will expand and survive officially by the emperor Theodosius History, p. 111.
the longest." Wigmore, Panorama of 9 Bowman, § 70, p. 125. II in the fifth century. These three
40 FORMS AND LEADING SYSTEMS OF LAW Ch.4 §24 THE COMMON LAW 41
county to county, almost from village to village. The ancient of these were the king's peace, the peace of the church, and the
customs of the tribes were breaking up into the customs of locali- truces of different communal courts. Acts done in violation of
ties and ;neighborhoods. The English state was hardly more the king's peace were claimed to be within the jurisdiction of the
than in embryo, and the executive or sanctioning power was but king's court, and consequently the conception of the king's peace
weakly developed. There were no distinct judicial tribunals."16 was gradually broadened so as to bring th.e violations of other
However, a gradual unification of the law and its administration truces thereunder, thus increasing the power of the king's court
began after the Conquest, as the Normans innovated centralized and reducing the authority of other tribunals.
government. They confirmed the existing laws and customs to
The King's Writ.
the extent consistent with Norman rule, and the communal
courts were' permitted to continue, but a national control of Originally, writs were the executive orders of the king com-
. public affairs was initiated and the decisions of the existing tri- manding acts to be done by the royal officers or lords, but their
bunals were gradually subjected to the reviewing authority of uses were expanded until, under Henry n (1154-1189), writs
newly commissioned royal courts. This systematization was also were employed to direct the work of the king's judges and to ,
furthered with the development of such institutions as the 'King's authorize private persons to bring .actions before them. Finally,
council, the king's inquest, the doctrine of the king's peace, and writs became the process by which all actions were commenced
the king's writ. in the king's court. These writs specified with some particularity
the nature and subject-matter of the action to be brought, gave
The K ing's Council the court jurisdiction thereof, and ordered the sheriff t6 compel
The king's council, or councils, consisted of two bodies; the the defendant to appear. Writs so used to originate actions ac-
great council (Curia Regis), composed of the king and his chief quired the title of "original" writs. They were prepared by and
t enants, the great feudal landholders; and the smaller, select obtained from the king's chancery or secretarial department at
council or curia composed of the king's intimates who managed the head of which was the chancellor. Most of the writing done
his estates and household. During Norman times the former in the name of the king, including the drawing and issuance of
group exercised the entire powers of government, and, as Par- writs, came under the supervision of the chancellor as it was he
liament developed out of its activities, it became the House of who was charged with the duty of keeping the great seal with
Lords. Out of the select council, during the twelfth , and thir- which official documents had to be impressed. The chancellor
teenth centuries, arose the courts of Common Pleas, King's (or was also the permanent representative of the king in his Curia.
Queen's) Bench, and Exchequer.17 It was these courts that "The authority to make writs gave the early chancellors, and
formulated most of the common law. hence the king, a large ' control over the rights which might be
recognized by the judges; the power to make new writs, and
The King's Inquest
hence new remedies, was a power to make new rights, and hence
The king's inquest was an official method of finding facts by new law."18 Awarded at first according to the apparent jus-
the summoning of persons to give upon oath true answers to tice and needs of the case, writs were later granted only accord-
questions asked them. Used at first for -administrative purposes, ing to · precedent, but those writs which were established by
it was later made a regular method for determining disputed precedent came to be issued as a matter of ,course and hence
questions in judicial proceedings and from it developed the mod- known as "writs de cursu" (or of course). The power of the
ern jury trial. king over the issuance of new original writs had met opposition
The King's Peace and an attempt had been made in the Provisions of Oxford of,
1258, forced upon Henry III as a result of the Baron's War, to
A principle of the Anglo-Saxon law was the recognition of
prevent the creation of writs not de cursu except by vote of the
various truces pertaining to certain places, times, or persons, and
Great Curia (Parliament) . But, "when Edward I in 1285 issued
,1 6 Bowman, p. 141. 17 See Bowman, pp. 153- 157; and his second group of miscellaneous ordinances in the form of the
Radin on Anglo-American Legal His·
tory, pp. 44-66. 18 Bowman, p. 161.
•
§ 24 . THE COMMON LAW
44 FORMS AND LEADING SYSTEMS OF LAW Ch.4 45
Statute of Westminster II, [13 Edw. I, c. 24] it was specially plicable rules became a judicial habit and finally a custom or rule
provided that the Chancellor might issue writs in consimili casu in itself "based upon the importance of certainty and stability in
sub eadem iure cadente, 'in situations that are similar to those the law and the necessity of preserving rights and titles vested,
already actionable by writ, and that fall under the same legal and contracts made, on the faith of judicial decisions which were,
. rule.' "19 Cases not "similar to those already actionable by writ" at the .time, accepted as correct expositions of the law."22 This
were directed to be referred to Parliament. habit which became a rule is now stated in the maxim, "stare de-
cisis et non quieta movere;" and, more fully expressed, means that
01fStom "when a point or principle of law has been once officially decided
The pre-existing customs were a very fruitful source of the or settled; by the ruling of a competent court in a case in which
early common law. Many of these were adopted with or without it wa~ directly and necessarily involved, and more especially
modification by the king's judges, as rules of decision. Prior to , when It has been repeatedly decided in the same way, it will no
the Norman Conquest the local courts had applied customs as longer be considered as open to examination, or to a new ruling,
rules, but the customs varied in different localities, and although by the same tribunal or by those which are bound to follow its ad-
the king's judges after the Norman invasion professed to admin- judications, unless it be for urgent reasons and in exceptional
ister "Custom of the Realm," there was, actually, no body of cases; ordinarily the rule so established will be adopted in all
custom common to all of England. "The truth, therefore, seems subsequent cases to which it is applicable, without any reconsid-
to be that the royal judges, purporting to administer a common eration of its correctness in point of law. *' *' *' Adherence
law which had only a fragmentary existence, in reality made such to judicial' precedents is a cardinal principle in jurisprudence' and
a law in the exercise of authority derived from the king."20 But, it is upon this basis that the whole elaborate structure of our
out of the many divergent pre-existing customs, the king's judg- case-law has been built Up."23
es built up a uniform system of law enforced throughout the The combined effect of the restrictions imposed by Parliament
kingdom, and because its administration·was general rather than upon the writ making power of the chancellor and the limita-
local it became known as the "Common Law" during the reign tions which naturally resulted from the application of the stare
of Edward I (1272- 1307). decisis or precedents doctrine, was an inflexibility in the common
law system. Its rules became fixed and rigid and its methods in-
Stare Decisis adequate. It could not be adjusted to resolve conflicts betwe~n
Early in their history the king's judges, consciously or un- new interests' which arose as society progressed, and injustices
consciously, tended toward a routine which contributed greatly resulted. To alleviate these injustices, legal fictions were evolv-
to the establishment of uniformity in the law. This routine was ed, the equity system was developed, and legislation wa~ resorted
that of referring to prior decisions of cases similar to a case to to,24
be decided for the purpose of learning what custom or rule may
22 Black's Law of Judicial Prece- to alter or vary from according to
already have been determined as applicable to such a' situation.21 dents, p. 184. his private sentiments, he being
Reliance upon previous decisions for the ascertainment of ap- According to Blackstone, "it is an Bworn to determine, not according to
established rule to abide by former his own private judgment, but accord-
Radin on Anglo-American Legal
19 included : the Pipe Rolls (from 1130)
precedents where the same points ing to the known laws and customs of
History, p. 186. of the Exchequer, but which were
come again in litigation, as well to the land; not delegated to pronounce
The feudal system, an institution little more than evidence of debts due
keep the scale of justice even an:d a new law, but to maintain and ex-
that also aided considerably in the the king; the Plea Rolls (from 1194)
steady, and not liable to waver with pound the old one." 1 Bl. Comm. 69.
a chievement of uniformity in the law which were memoranda of the Court
every new judge's opinion, as also
of England and in the centralization ot Common Pleas made by the court
because the law in that case being 23 Black's Law of Judicial Prece-
of its administration is . discussed in clerks; and, the Year Books (from
solemnly declared and determined, dents, pp. 182, 183.
a following chapter. See § 44, infra. the reign of Edward I) which appar-
what before was uncertain, and per-
ently began as notes about procedural
20 Bowman, p. 172.
points occurring in the royal courts.
haps indifferent, is now become a 24 The equity system and legisla-
permanent rule, which it is not in tion are the subjects of subsequent
21 Early judicial records of which See, Radin on Anglo-American Legal
the breast of any subsequent judge . chapters; see, :respectiveiy, cc. 5, 6.
diverse resea rch use could be made History, pp. 309, 310, 312, 313.
FORMS AND LEADING SYSTEMS OF LAW Ch. 4 § 24 THE COMMON LAW 47
46
Legal Fictions law of England, except for some statutory alteration and mod-
A legal fiction "is an assumption or pretense that a state of ' ification that has been made from time to time, has been de-
facts is true, without regard to its actual truth or falsity, em- veloped by the courts principally since the fifteenth century from
ployed by a court as a means of evading, restricting, or extending maritime and commercial rules of trade which were in general
a rule of law while preserving the appearance that it remains use among mariners ,and traders in the early Middle Ages.
unchanged;"25 it is "an assumption, for purposes of justice, of a When commerce began to revive along the northern coast of
fact that does not or may not exist."26 The history of the action the Mediterranean after the fall of Rome, a need arose for tri-
of trover demonstrates how a legal fiction may arise. Originally bunals to decide disputes growing out of maritime and commer-
this action could be brought only by a .loser of goods to recover cial interests, and as the rulers and people at large were indiffer-
their value from a finder who refused to su:r:render them upon ent to this need, the traders themselves established in each of
demand. Later, however, when necessity required it, the action the principal maritime cities "Courts of Consuls" with authority
of trover was permitted to be brought against defendants who to adjudge their controversies. During the twelfth and thir-
had obtained the goods by force, theft, fraud, or by any other teenth centuries such courts were set up in ports and trading
manner. The allegation of a loss and finding would still be made cities throughout Europe and eventually became known as "ad-
but the defendant would not be permitted to deny the allegation, miralty courts" when, with the maturity of the political organi-
whether or not it was true. Thus, the "loss and finding" became zations of the different states, the courts of consuls were placed
a fiction and the action of trover a means of relief which, but for under maritime officers called "admirals." Local maritime
the fiction, could not otherwise be obtained. Other examples of courts were instituted in England at about the same time as in
fictions are found in the doctrines holding a husband and wife other trading countries, but they lost authority in the fourteenth
to be one person, and the act of a servant to be the act of his century when the admiral of the fleet and his deputies were
master. "In making use of fictions, the courts took what was granted jurisdiction in'maritime cases. This departure was given
for them the line of .least resistance, and made important and greater distinction in the fifteenth century during which the sep-
wholesome .and often long overdue reforms in law without ob- arate admiralty courts that had arisen were consolidated into the
viously disclosing the fact that they were doing so. '*' '*' '*' It High Court of Admiralty.29 The maritime law of England is less
seems clear, however, that fictions are wholly out of place in international in character than that of other countries as that
modern law."27 part of it taken' over by the common-law courts was modified by ,
them and given a similarity to the remainder of .the common
Legal Systems Merged with the Common Law law. However, that part of it which was left to the admiralty
In the course of its development large portions of the maritime court resembles more the general maritime law of the world.
law, the law merchant, and the canon law became merged with
the common law. Until their consolidation with the common The Law Merchant
law, these were separate legal systems, of independent construc-
The law merchant or mercantile law, has been defined as that
tion.
system of rules, customs, and usages generally recognized and
Maritime Law adopted by merchants and traders, and which, either in its sim-
Maritime law is "that system of law which particularly re- plicity or as modified by common law or statutes, constitutes the
lates to the affairs and business of the sea, to ships, their crews law for the regulation of their transactions and the solution of
and navigation, and to marine conveyance of persons and prop-
erty."28 It is international in character. The modern maritime ly to traffic and business on the sea commerce in general." Bowman, §
and other navigable waters, to ships, 67, p. 121.
Bowman, § 94, p. 184. 27 Bowman, pp. 188, 187. their crews and navigation, to marine
25 29 In the latter part of the nine-
':6 Black's Law Dictionary, pp. 772,
28 38 C.J. § 10, p. 900. contracts, torts, crimes, and property, teenth centur~, the High Court of
773, citing, Dodo v. Stocker, 74 Colo. "Maritime law is that part of mu- to marine transportation of persons Admiralty was made a division of
95, 219 P. 222, 223, 1923. nicipal 'law which relates particular- r. nd property, and to water-borne the High Court of Justice.
§ 24 THE COMMON LAW 49
48 FORMS AND LEADING SYSTEMS OF LAW Ch.4
Europe, including England. It consisted of papal decrees and
their controversies.30 Originating in trade customs, the law mer-
synodical canons.33 In England, after the Conquest and as a re-
I
chant came to be observed internationally by merchants and
sult of an ordinance of the Conqueror, the canon law was applied
mariners, and during the Middle Ages was administered by spe-
by an hierarchy of church courts which looked to the spiritual
cial maritime and commercial courts. It comprised both mari~
sovereignty of the pope rather than to the secular sovereignty
time and commercial regulations and applied peculiarly to mer-
of the king. These church courts antedated the king's courts
chants.
in development, and during the height of 'their power, when they
In England, the law merchant was first applied as in other had jurisdiction over all matters of a spiritual nature and such
countries by local maritime and commercial courts, but the other matters as they considered to concern the economy of the
courts of admiralty after their creation took over the maritime church and the morals of the people, they controlled wills of per-
part of it leaving that portion which was commercial in character sonal property, the settlement of the estates of decedents, mar-
as a separate legal system for merchants only. This system was riage, divorce, charges of felony against clerics, and such offenses
administered by special courts down to the seventeenth century of the laity as perjury, usury, adultery, fraud, and defamation.
when the common-law courts began a gradual adoption and modi- However, in the sixteenth century, during the Reformation and
fication of it which continued until, in the middle of the nine- the reign of Henry VIII, the king was declared to be ," the only
teenth century, the law merchant and the common law became supreme head in earth of the Church of England,"34 and there-
completely fUSed. after church law in England was applied by the courts of the
The law merchant or commercial law in the United States has English church. But after the Reformation they were gradually
been developed within the frame of the common law, as it has denied secular authority. "Statutes in the reigns of Henry VIII
in England since the two systems were merged, and much of it and Elizabeth deprived them of their jurisdiction in cases of
has been codified into statutes in both countries. For example, crime committed by the clergy. In the following century their
the modern English Law of Bills and Notes, 'a nd the Sales of jurisdiction over perjury, fraud, and defamation was taken away.
Goods Act represent codifications of portions of the law mer- In 1857 their jurisdiction in matrimonial, testamentary, and pro-
chant; and the same is true of the Uniform Negotiable Instru- bate matters was transferred to newly created civil courts. All
ments Act, and the Uniform Sales Act which have been adopted that remains to the church courts at the present time is a cor-
by many States in the Union. 31 rective jurisdiction over the clergy and the regulation of the in-
The histories of modern commercial law and modern maritime ternal discipline of the Church of England; and even this is sub-
law are quite analogous because of their original sources and ject to the supervision of Parliament."35
their mutual purposes of trade regulation; but they differ gen- As the jurisdiction of the church courts was diminished, the
erally in that the former is more primarily concerned with busi- secular portion of the law they had administered was taken over
ness transactions on land and within a nation, whereas the latter by the common-law courts with the consequence that much of the
is concerned with transoceanic business and with affairs and re- modern law regulatory of probate matters, the administration of
lations more often international.32 estates, marriage and 'divorce is based on principles settled by
The Canon Law the ecclesiastical courts during the period they controlled such
subjects.
The canon law was primarily the law of the Church of Rome
administered by the courts df that church throughout western 33 During the thirteenth and four- tory, pp. 103, 104; and Bowman, p.
teenth centuries the canon law was 201.
30 Black's Law Dictionary, 3d. Ed., have been adopted, see the appendix.
compiled and from the sixteenth cen-
p. 1179. 32 For a succinct historical treat·
rnent of "The Sea Law and the Law
tury thiS compilation has been known 34 Statute, 26 Hen. VIII, c. L
31 See Radin on Anglo-American as the Oorpus Juris Oanonici. See
Merchant," see Radin on Anglo-
Legal History, p. 500. American Legal History, pp. 486-501.
Radin on Anglo-American Legal His- 35 Bowman, p. 202.
SMITH EL.L.Aw 2d-4
J
For lists of the jurisdictions in See also, Wigmore, Panorama of the
which the Uniform Negotiable Instru- World's Legal Systems, Library Ed.,
ments Act and the Uniform Sales Act pp. 876-925.
50 FORMS AND LEADING SYSTEMS OF LAW Ch.4 § 25 COMMON LAW IN THE STATES 51
Common-law Countries case in Virginia, Illinois, Indiana, Colorado and other jurisdic-
The common law has spread to many parts of the wc;>rld. It tions. Usually, the statement is qualified. The Common Law
prevails in England~ Ireland, and Wales, the United States (except is adopted only 'so far as it is not repugnant to or inconsistent
Louisiana, Puerto Rico, the Panama Canal Zone, and Hawaii), with the Constitution of the United States or the Constitution or
Canada (except Quebec), Australia, New Zealand, India (except laws' of the particular states/'38 In some states English statutes
Ceylon), Gibralter, 'a nd in many islands. In the excepted places enacted after J.u ly 4, 1776, are rejected; in other states, statutes
listed the existing Roman civil law is gradually undergoing modi- enacted in England after 1607, are rejected; in others, no such
fication by modern legislation and by the administration of com- date is giv~n. Those states which have not adopted the common
mon-law judges. law with their constitutions have done so either by statute or
judicial decision. "These variations, however, seem to have pro-
COMMON LAW IN THE STATES
duced no substantial difference in the actual course of judicial
decisions. In all states, the acceptance or rejection of specific '
25. The basis of the law in every State of the Union, except Lou- provisions as' applicable-or not applicable to local conditions has
isiana, consists of the English common law, equity, and , been the work of the courts; in all states, English decisions, from
statutes in effect at the time of the colonization of America the most ancient to the most recent, are treated with respect as
and their interpretation by the English courts, with such enunciations of the law which has been adopted, though not re-
modification as has been deemed wise and necessary to garded as absolutely binding; in all states, most of the English
meet local needs and conditions. 36 ' statutes in effect at the beginning of colonization, and few or
none passed subsequently, are in force without reenactment by
In General the state legislature; and in all states, the original inheritance
The laws of the States and of the United States have been of English law has been profoundly modified by legislation or ju-
erected by legislation and decisions upon the foundation furnish- dicial decisions. There are thus as many state systems of com-
ed by English law, as the colonies that formed the United States mon law as there are states, all manifesting a general likeness
were subject, generally, to such law, but "the common law of because of their common origin and extensive borrowing from
England is not to be taken in. all respects to be that of America. ea~h other, yet diverging from English law and from one an-
Our ancestors brought with them its general principles, and other in many particulars."39
claimed them as their birthright; but they brought with them
and adopted only that portion which was applicable to their situ- Admiralty
ation."37 Vice-admiralty courts commissioned 'by the ' king exercised
The constitutions of many of the states contain provisions spe- jurisdiction over maritime cases in the colonies prior to the Dec-
cifically adopting the common law "and in doing so frequently laration of Independence, but this jurisdiction was delegated to
refer to the 'Common Law of England' as it existed at a certain the federal courts when the Union was established, the Consti-
date. This date is usually the date of the Declaration of Inde- tution of the United States40 providing that, "The judicial Power
pendence. But in many instances the date set is the 'fourth year shall extend «< • * * to all Case~ of admiralty and maritime
of reign of James I,' i. e., 1607, the date of the founding of the Jurisdiction." Therefore the admiralty law of the United States
first permanent English colony in North America. This is the is administered by the federal ' courts uniformly throughout the
nation as a distinct, independent legal system. 41 ~ ,
36 The common law is the basis of same reasons which led to the adop-
the criminal law in Louisiana, but tion of the common law in the other 38 Radin on Anglo-American Legal 40 Art. 3, § 2, U.S.C:-A:Const.
the civil law of such state is based states induced the adoption of the History, pp. 341, 342.
upon Roman law as modified by civil law of France as the basis of its 41 "Article 3, § 2, of the Constitution
France. "As that state was a French legal system." Bowman, p. 208. 39 Bowman, pp. 207, 208. See, also, extends the judicial power of the Unit-
province at the time of its acquisi- Pope, English Common Law in the ed States 'To all cases of admiralty
tion, and therefore subject to the Ro- 37 Van Ness v. Pacard, 2 Pet. 137, 'Cnited States, 24 Harv. Law Rev. 6, and maritime jurisdiction'; and Arti-
man civil law in its French form, the 144, 7 L.Ed. 374, 1829. 1910. cle 1, § 8, confers upon the Congress
S~nTH EL.LAw 2d
52 FORMS AND LEADING SYSTEMS OF LAW Ch.4
§ 25 COMMON LAW IN THE STATES 53
Ecclesiastical matters governed by the Federal Constitution or by acts of Con"'
The canon law has never been in force in any State because gress, the law to be applied in any case is the law of the state.
of the total separation of church and state in the United States And whether the law of the state shall be declared by its Legis-
and the lack of ecclesiastical tribunals to administer such law. lature in a statute or by its highest court in a decision is not a
However, various subjects which were originally adjudicated in matter of federal concern. There is no federal general common
ecclesiastical courts, particularly matters such as probate, mar- law. Congress has no power to declare substantive rules of com-
riage, and divorce, have been placed by statutes within the ju- mon law applicable in a state whether they be local in their
risdiction of courts of the States and the courts have construed nature or 'general,' be they commercial law or a part of the law
these statutes as authorizing them to adopt such of the prin- of torts. And no clause in the Constitution purports to confer
ciples and practices of the English ecclesiastical courts as are not such a power upon the federal courts."44 Therefore, the initial
inconsistent with American law and institutions.4~ phrase of the statute, "The laws of the several States," refers to
both the statutory and dec isional laws of the States, and "there
Federal is no federal general common law."
. A federal statute provides, "The laws of the several States, ex- .
cept where the Constitution, treaties, or statutes of the United Summary
States otherwise require or provide, shall be regarded as rules The highest court of a state in cases presented to it has the
of decision in trials at common law, in the courts of the United responsibility and power of making the final determination of
States, in cases where they apply;"43 and, in construing this stat- what the controlling rule of the state is, whether the process in-
ute, the Supreme Court of the United States has said, "Except in volves the interpretation and administration of a statute or the
selection and application of common-law principles, and in re-
power 'To make all laws which may be as interpreted by the Puritan divines. solving controversies not within the ambit of federal regulation,
necessary and proper for ca.rrying into * * * Echoes of Canon Law the federal courts apply the governing rule of the state in which
execution the foregoing powers and all phrases, such as the famous distinc-
tion of Peter the Lombard between
the case originates, whether it be a constitutional, statutory, or
other 'powers vested by this Constitu-
tion in the government of the United marriages 'per v erba de praesenti' decisional rule; and, subject to final review and correction by the
States or in any department or officer [by words of the present tense] and Supreme Court of the United States, the courts of the States ap-
thereof.' Considering our former 'per verba de futuro,' [by words of ply the Constitution, laws, and treaties of the United States in all '
opinions, it must now be accepted as the future tense] as well as such ex-
settled doctrine that in consequence pressions as 'treating a spouse with 44 Erie R. Co. v. Tompkins, 304 U. other matters immovable and intra-
of these provisions Congress has par- conjugal kindness,' survive in our S. 64, 58 S.Ot. 817, 82 L.Ed. 1188, 114 territorial in their nature and char-
amount power to fix and determine family law. 'Benefit of clergy' sur- A.L.R. 1487, 1938. This case disap- acter. It never has been supposed
the maritime law which shall prevail vived briefly in a few states, and re- proved and overruled the construc- by us, that the section did apply, or
throughout the country." Southern mained in the formulas of statutes tion given the statute in the case of was designed to apply, to questions of
Pacific Co. v. Jensen, 244 U.S. 205, 37 after It had been abrogated in fact. Rwift v. Tyson, 16 Pet. 1, 10 L.Ed. a more general nature, not at all de-
S.Ot. 524, 61 L.Ed. 1086, L.R.A.1918C, But, outside of these matters, the 865, 1842, in the opinion of which pendent upon local statutes or local
451, Ann.Cas.1917E, 900, 1917. Canon . Law can be discovered in the Mr. Justice Story wrote: "In all the usages of a fixed and permanent op-
United States only in those institu- various cases, which have hitherto eration, as, for example, the construc·
42 "In the American colonies, the tions which had been almost wholly come before us for deciSion, this tion of ordinary contracts or other
English Canon Law as regulated by absorbed by the Common Law." Ra- court have (sic) uniformly supposed, written instruments, and especially to
the statutes of Henry VIII and subse- din on Anglo-American Legal His- that the true interpretation of the questions of general commercial law,
quent amending acts had a certain
tory, pp. 109, 110. ·34th section limited its application to where the state tribunals are called
limited validity in these colonies in
state laws, strictly local, that is to upon to perform the like functions
which, like Virginia, the Anglican 431 Stat. 92, R.S. § 721, 28 U.S.C.A.
say, to the positive sta tutes of the as ourselves, that is, to ascertain, up-
communion was officially recognized. § 725. This statute was enacted in
state, and the construction thereof on general reasoning and legal anal-
It had, of course, no validity in the 1789, as § 34 of the original Judiciary
adopted by the local tribunals, and ogies, what is the true exposition of
Puritan colonies of New England Act by which the system of federal
to rights and titles to things having the contract or instrument, or what
. where an attempt had been made to courts was organized.
a permanent locality, such as the is the just rule furnished by the prin-
create a new law based on the Bible
rights and titles to real estate, and ciples of commercial law to govern
54 - FORMS AND LEADING SYSTEMS OF LAW
Origin
In England, power to alleviate the strict rules of law where
their application would result in injustice, origUlally vested in the
king, became dele~ated to his chancellor and for this reason the
precepts of equity in Anglo-American law were qeveloped as a
system distinct from the common law proper administered by a
separate tribunal under the chancellor. As far back as English
legal history can be traced the king exercised the prerogative of
interfering with the ordinary legal procedure in special cases pre-
senting needs requiring such interference, and consequently, after
the common-law system had become quite settled, its original
writs limited, and its remedies inadequate to meet the necessities
of new circumstances, the council, as representative of the king,
would often intervene in extraordinary cases upon being petition-
ed by the subjects affected. However, in the latter part of the
fourteenth century, these petitions became too numerous for con-
sideration by the entire council and the custom developed of re-
ferring them to the chancellor, the king's personal representative
in the council, with the result that this function of the chancellor
gradually developed into and became a separate institution recog-
nized as the Court of Chancery. Thus, although separate, the
1 "In the general juristic sense, the circumstances of the particular
equity means the power to mitigate case." McClintock on Equity, (here-
the rigidity of the application of inafter cited "McClintock"), § 1 (a),
strict rules of law by a tribunal hav- p.1.
ing discretion to adapt the relief to
55
EQUITY Ch.1'> § 26 THE GENERAL NATURE OF EQUITY 57
56
common-law and equity systems had a common origin and the especially when the chancellors began to enjoin the prosecution
authority of the common-law judges and the powers later exer- of actions at common law or the enforcement of common-law
cised by the chancellor were derived from the same source, the judgments. This opposition came to a head in the controversy
king.2 between Coke and Ellesmere, the chancellor, in the reign of
James I, when the common-law courts released. on habeas corpus
Development of Equity into a System men imprisoned for contempt in violating an injunction against
enforcement of ' a judgment, and even threatened the chancellor,
The early chancellors were usually ecclesiastics educated in the
as well as the parties who sought his help, with indictment under
canon law who professed to base their decisions on the law of
a statute forbidding anyone to call in question a judgment of
God or conscience, but after the fall of Cardinal Wolsey in the
the king's court. The king appointed a commission, headed by
reign of Henry VIII, most of the chancellors were lawyers. 3
Francis Bacon, to determine the question, and the report of Hie
Trained in the relatively rigid traditions of the common law and
commission to the effect that the chancellor could enjoin a party
its stare decisis doctrine, the inclinations of these later chancel-
from enforcing .a judgment, but could not affect the judgment
lors caused the molding of equity into a structure with precepts
itself, nor the court which rendered it, furnished the formula un-
almost as definite as those of the older system. Reports of the
der which the two systems were able to exist side by side in Eng-
decisions in chancery began to be published, and although equity
land until the powers of both the common-law courts and the
precedents never obtained the binding force of those in the com-
chancellors were vested in the high court of justice by the Judica-
mon-law system, chancellors tended to follow the courses de-
ture Acts.'"
scribed and ascertainable in the records of their predecessors.
Quite naturally the common-law judges became jealous of and Characteristics of Equitable Jurisdiction and Relief
opposed to the extraordinary powers of the chancery, and "as "Jurisdiction" ordinarily means the power conferred on a court
equity came to be more clearly recognized as a separate system by sovereign authority to consider and determine causes accord-
of law, and not merely an exercise of the king's prerogative of ing to law and to enforce its decisions, but "equity jurisdiction"
grace, the opposition of the common-law judges to it increased, ordinarily means, not the power of a court of equity to adjudi-
cate a particular controversy, but the aggregate of the contro-
2 "The king is the fountain of jus- Hence all jurisdictions of courts are
derived from the crown; their pro- versies in which the court may properly exercise its power to
tice, and general conservator of the
peace of the kingdom. He is not the ceedings were generally in the king's grant equitable relief. "If the controversy is one within the ju-
author or original, but only the dis- name; they pass under his seal, and risdiction of the sovereign, the existence of ' jurisdiction over a
tributor of justice. He is the stew- fire executed by his officers." particular controversy depends on the presence of two elements:
ard of the public, to dispense justice Browne's Blackstone's Commentaries, Jurisdictio:r;t over the subject-matter; and jurisdiction over the
to whom it is due. The original pp. 86, 87.
object of the controversy, if the court is to act in rem, or over the
pr;wer of judicature, by the funda-
mental principles of society, is lodg- 3 Concerning the early chancellors, persons of the parties, if it is to act in personam. Courts of eq-
ed in the society at large, but as it Bowman has written ,that they "bas- uity, like all other courts, must possess jurisdiction in this sense
would be impracticable for the peo- ed their equity upon the idea that the or their decrees are nullities and may be disregarded with impun-
ple in their collective capacity to court should compel each individual ity or collaterally questioned in any subsequent proceeding."5
render justice to individuals, there- litigant to do that which 'reason' and
fore every nation has committed that 'conscience' would dictat~ to a per- The jurisdiction of equity may attach in almost any branch of
power to magistrates, who with more son in his situation. In accordance the law where the circumstances call for the exercise of its sup-
expedition can hear and determine with this idea, the chancellor, as the plementary powers, but because of its relationship to the .com-
complaints, and in England this pow- purveyor of the king's royal preroga- mon law the jurisdiction of equity is ordinarily divided into three
er is with the king and his substi- tive of justice, was· the 'keeper of the
classes: concurrent jurisdiction; auxiliary jurisdiction; and, ex-
tutes. He, therefore, has alone the king's conscience,'!' and, hence, dur-
ing its early stages, the chancery was clusive jurisdiction. Its concurrent jurisdiction includes all those
right of erecting courts of judicature,
as he possesses the sole executive a "court of conscience." Elementary cases in which the court of equity grants relief for the protection
power, in which he is assisted by Law, Part I, p. 278.
courts acting under his authority. 'McClintock, p. 6. 5 McClintock, p. 57.
EQUITY Ch.5 § 26 THE GENERAL NATURE OF EQUITY 59
of common-law rights where the common-law remedies for the That equitable relief was granted only "in the discretion of the
protection of those rights are not adequate. Examples of such chancellor" and could not be demanded as a matter of right,
cases are suits for specific performance of contracts and for the meant a "judicial discretion" to be exercised by the application
prevention of torts to common-law property rights. Its auxiliary of established principles of equity, and the adaptation of the rem-
jurisdiction is available where equitable relief is needed to ob-- edy so as to accomplish the most equitable relief possible under
viate some common-law rule of procedure which prevents the the circumstances. Thus, the chancellor could not withhold or
proof of a right infringed; although such right is recognized at administer relief merely according to the dictates of his own con-
common law and the common-law remedy for its violation is ade- science. The historical origin of 'the equitable powers of the
quate. Examples are bills for discovery and to perpetuate testi- chancellor in the king's prerogative of grace constitutes the
mony. The exclusive jurisdiction of equity includes those cases background of the characteristic that the granting of equitable
in which it recognizes and protects rights which are not recogniz- relief was "discretionary" with the chancellor.
ed at common law; in other words, those cases involving so-called By the principle that equity acted "in personam" and not "in
"equitable" as distinguished from "common-law" rights, such as rem," was meant that a decree of the chancellor would direct the
trusts, equitable liens, and various other equit~ble estates and in- various parties in a suit to perform such acts as were necessary
terests. for the accomplishment of justice under the circumstances, and
As it was administered by the chancellors, equitable relief may if the parties disobeyed the decree they would be punished per-
be distinguished from common-law relief in that the former was sonally for contempt; whereas a court of law would have entered
extraordinary, was granted only in the discretion of the chan- a judgment which would have been available against a defend-
cellor, and was effectuated in personam and not in rem. These ant's property rather than against the defendant personally. "In
distinguishing features were the chief characteristics of equity modern times, the maxim that equity acts in personam has been
relief. The historical principle that equitable relief could be ob- used particularly in determining the territorial jurisdiction of
tained only in special cases where the common-law remedy was courts acting as courts of equity, but there is a manifest tendency
inadequate furnished the base for the charact~ristic that such today to acknowledge the power of a court of equity to act in rem,
relief was "extraordinary." Common-law remedies were char- even where it has not been expressly authorized by statute to do
acterized by their lack of variety, their fixedness and unchange- so. The doctrine, now apparently well established in this coun-
ability, their IC!-ck of adaptability to new circumstances, and pre- try, that a decree in equity on the merits is res judicata in a court
cise and technical rules which governed their use. Ordinarily of law, gives a wide effect to such decrees upon the purely legal
they were confined to the recovery of a sum of money or the re- rights of the parties. Other courts have directly held that the
covery of the possession of land or chattels. Thus, the common- power to mold decrees to meet the needs of the parties justifies
law remedy could be inadequate either because the relief which an in rem decree where that alone can give ad,equate relief."6
the court was empowered to grant was not of the kind demanded
by the situation; the amount of damages could not be determined 6 McClintock, pp. 48, 49. these situations to demand legislative
relief was where the legal title of a
with reasonable accuracy so that it could not be known if the "In many cases, courts of ~quity
have been empowered by statute to trustee became vested in one incom-
recovery would be just; or, the procedure at law could not be petent to · act as trustee or to convey
adapted to meet the needs of the circumstances. In contrast, render decrees which shall operate in
the legal title to a successor. The
rem, especially with reference to ti-
the equitable remedies were characterized by their almost unlim- tles to land; in other cases this pow-
court of equity could appOint a suc-
ited variety and adaptability to different situations. Where the cessor to act as trustee, but it could
er has been assumed without author-
common-law court could allow only damages in money to a plain- not vest the legal title in him, nor
ity from a statute.
could it order the title to be convey-
tiff for the refusal of the defendant to perform a contract, the "While ordinarily the powers of ed, since the holder had no power to
chancellor could compel the defendant to perform or carry out . the equity courts to give effect to convey. To meet this situation, stat-
his promise; where the law court could only order a defendant to their decrees by action in personam utes were enacted in England and
surrender his possession of a tract of land or a chattel, the chan- were more effective than action in this country empowering the court
cellor could compel him to do various other acts or restrain him rem would be, situations developed to make the conveyance, either by an
where it was .ineffective. The first of officer appointed for that purpose, or
from certain conduct. I
§ 27 THE MAXIMS OF EQUITY 61
60 EQUITY Ch.5
ble relief, and "restrictive" maxims or those that cause the court
Equitable Doctrines to deny equitable relief or to deal with a matter in the same
In granting equitable remedies, whether for equitable or legal manner as a common-law court would deal with it.
rights, and in enforcing equitable rights, courts exercising equity
jurisdiction base their actions upon distjnctively equitable prin
ciples, rules and standards collectively called "doctrines," which THE ENABLING MAXIMS:9
are peculiar to equity and are not employed by courts exercising
common-law jurisdiction except by imitation or unless they have (1) Equity will not Suffer a Wrong to be Without a RemedylO
been extended to such courts by statute. Among these "doc- This maxim is a key to the early equity system as the chancery
trines" are the equity maxims. court arose because of the inability of the common-law system to
give full justice. _It has operated to protect interests similar to
interests previously recognized and protected by the judiciary but
THE MAXIMS OF EQUITY for which there was no exact precedent. In such cases chancery
27. The maxims of equity are fundamental principles which have has given the relief required by the situation, where possible.
been formulated and declared by the courts of chancery
and used by them as guides in the exercise of their discre- (13) Equity Regards that as Done which Ought to be Done
tion. This precept is most often used "in connection with the princi-
ple of equitable conversion, by which equity adjusts the rights and
In General obligations of persons with reference to a particular thing to con-
The maxims are "historical expressions of the spirit and meth- form to what they would have been had the direction of a will or
od by which, when the chancery was literally a 'court of con- contract for its sale been performed."11 Generally, it applies
science,' equity was extended to new species of wrong and in- "when the holder of the legal estate [in land] owes a duty, ~egal
jury.'" However, "the main branches of equity jurisdiction were or equitable, to convey it to another or to hold it for his use and
well established before the first attempt was made to state max- benefit. By treating what ought to be done by him as if it were
ims of equity, and the list as then given differed greatly from already done, chancery gives the person to whom the duty is
the list as commonly given today."8 The authorities are not in owed all the substantial advantages, and incidentally the burdens,
accord as to just what equitable prec~pts should be considered of ownership, with the exception, of course, that he does not have
as maxims, but there is substantial agreement upon the follow- the legal title. Thus, in the case of a ' contract for the sale of
ing statements which, by reason of their nature, are divided into land, of such nature that each party is entitled to specific per-
"enabling" maxims or those that impel the court to grant equita- formance as against the other, the purchaser is regarded, from
the moment the contract is made, as the equitable (though not
directly by its decree. Similar dif- power was conferred by, a statute or the legal) owner of the land, and the velJdor is regarded as the
ficulties arose in other cases, particu- the common-law courts had voluntar-
larly with reference to contracts for ily extended recognition. But, when
9 The proverbs that "Equity acts in maxim "must be greatly qualified if
the sale of land by nonresident ven- the two systems are administered by
personam and not in rem," and it is to be accepted as a statement of
dors, so that general statutes were the same courts, and especially when
"Equity acts specifically, and not by principle on which courts of equity
passed empowering the court to they are administered in the same
way of compensation," are listed by act. Equity does not undertake to
transfer land titles generally by ac- proceeding under the codes, the rea-
slJme commentators as enabling max- redress wrongs which are violations
tion in rem, and also to terminate son for denying to courts of equity
ims, but according to others they are of moral, as distinguished from legal,
adverse claims thereto by decrees in the power to act in rem no longer
mere descriptions of the usual proc- obligations, but the final test to dis-
rem. exists, and we find them undertaking
esses of equity rather than principles tinguish a legal from a moral obliga-
so to act in a variety of situations."
"So long as courts of equity and of to qe applied in the decision of con- tion is whether it will be enforced,
law rema,ined separate, the former McClintock, § 37, PP. 55, 56. troversies. See McOlintock, p. 29, or at least recognized as binding, by
could not act in rem, in the sense of Dote. courts." McClintock, p. 42.
affecting by their decrees the rights , Bowman, p. 285.
()f .parties which would be given effect 10 The ordinary meaning of this 11 McClintock, p. 30.
in common-law courts, unless that 8 McClintock, p. 29.
62 EQUITY Ch. 5 § 27 THE MAXIMS OF EQUITY 63
equitable owner of the money; the latter holding title to the land (4) Equity Imputes an Intention to FUlfill an Obligation
merely as a security for the payment of the money, and the form- -Hence, when a person promises to do some act, equity will as-
er holding the money as security for the delivery of a deed to the sume that he intends to do it until the contrary is shown and if
land. This is one of the two forms of what is known as the he does something which may be regarded as a partial perform-
'equitable conversion' of land into money and of money into ance of his promise equity will so treat it. "It is a polite way of
land. The interest of each party is regarded as subject to the saying that, whenever a person is under obligation to appropriate
rules governing the kind of property which he is entitled .to re- property to a particular use, and has property which may be so
ceive from the other. In the absence of an agreement to the con- appropriated, ef],uity will compel him to make the appropria-
trary, the purchaser is ~ntitled to the possession of the land or tion."14
to the rents and profits derived from it, and the vendor is enti-
tled to interest on the unpaid money. If the purchaser should (5) Equality is Equity
die before receiving the deed, his right to obtain title to the land That is to say, where either assessments or benefits must be
passes as real property to his heir or devisee; and if the vendor distributed among several, equity will apportion them equally so
should die before he receives the money, his right to demand far as possible. For example, in the settlement of the affairs of
payment passes as personal property to his executor or adminis- an insolvent partnership or corporation, surplus assets remaining
trator. The second kind of equitable conversion occurs when a after payment of secured or preferred creditors will be divided by
.deed or will directs that land be sold for money, or that money be equity among the unsecured creditors in proportion to the
expended for land. Here, as in the previous case, the land in the amounts due them; and if the estate left by a decedent is not suf-
hands of the trustee or executor is governed by rules applicable ficient to pay the debts and legacies in full, legacies of the same
to personal property, and the money to be expended for land is class will be reduced proportionately to provide for the payment
governed by the rules pertaining to real property."12 of the debts. The principle has been incorporated in modern in-
SOlvency and bankruptcy acts.
(3) Equity Looks to the Substance Rather Than to the Form
In other words, an equity court in determining the rights of the
parties to a transaction does not take the form thereof as con- THE RESTRICTIVE MAXIMS:
clusive but goes to the substance of it and administers relief on
the basis of what the parties actually intended their relation to (6) Equity Aids the Vigilant~ not Those Who Slumber on Their
be. "Thus, a mortgage, at common law, is in form a convey- Rights (' \
ance, but courts of equity, looking to the substance, hold that it This principle applies where a person has delayed asserting a
is merely a security, and that in consequence the mortgagor has claim against another person until the circumstances have chang-
an equity of redemption. , An agreement under seal is binding at ed or the latter has acted so as to be prejudicially affected by the
common law wit hout consideration, but equity refuses to give delay. In such a case equity will hold the claimant guilty of
specific performance of a sealed agreement unless there is a con- laches and deny him relief. Where there is no applicable "stat-
sideration. A deed defective at common law from lack of a seal ute of limitations," that is a statute limiting the period within
or otherwise may be t reated in equity as a contract to convey; which a claim may be asserted or sued upon after it has arisen,
and similarly a defective mortgage may be treated as an equita- the effect of a delay by a plaintiff in commencing suit is deter-
ble lien. Agreements for money penalties and forfeitures of mined in equity, not by a definite rule specifying the time within
property for failure to pay money are enforced according to their which such suit must be brought, but by the principle that a pro-
letter at common law, but equity gives relief against them upon ceeding must be instituted within a time which is reasonable un-
payment, with interest, of the amount actually due."13 der all of the circumstances, the most determinative factor be-
ing the prejudice that may result to the defendant because of
12 Bowman, pp. 290, 291. _13 Bowman, p. 292.
the delay. Consequently the period expiring from the time a
14 McClintock, p. 31.
64 EQUITY Ch.5 § 27 THE MAXIMS OF EQUITY 65
right to sue originates until the time when suit is brought and the (9) Wh~re There are Equal Equities~ the Law will Prevail
effect of such period upon the right of the plaintiff to sue, will
Therefore, if two or more persons to a controversy in chancery
vary with the facts of different cases. However, where an equita-
have equitable rights in the subject-matter of equal merit and
ble claim has not been asserted within a period equal to that
one of them has the legal right thereto, the chancellor will re-
limited by a statute applicable to common-law actions, the delay
fuse to grant relief against the holder of such legal right in fa-
will generally be held to constitute laches, whether or not the
vor of the others. The result, then, is the same as if the pro-
adverse party has been prejudiced thereby.I 5
ceeding had been brought at law in which event the legal right
would prevail.
(7) He Who Comes into Equity Must Come with Clean Hands
This maxim means that a plaintiff who has been guilty of in- (10) Where There are Equal Equities~ the First in Time Will
equitable conduct in the same matter concerning \Y~ich he a~ks Prevail
relief against inequitable conduct of the defendant will be demed
Thus, if two or more persons to a controversy in chancery have
remedy. No person can obtain affirmative, equitable relief in re-
equitable rIghts in the subject-matter which are of equal merit,
gard to a transaction in which he has himself been guilty of in-
except as to time of origin, and none of the parties has the legal
equitable conduct. Thus, a plaintiff seeking relief from a fraud
right thereto, equity will not give relief against the holder of the
committed by defendant must not have committed any inequity in
oldest claim in favor of the others. The result is that the oldest
the same affair, or equity will not aid him. right prevails.
(8) He Who Seeks Equity Must do Equity
(11) Equity Follows the Law
Consequently, a person seeking the affirmative aid of an equity
court may be required as a condition of his obtaining equitable This maxim results from the historical fact that equity de-
relief to do such acts as chancery deems just and therefore re- veloped because of inadequacies of the common-law structure
quired with respect' to the matter although otherwise he could and as a supplement thereto; it was ,not intended to supersede
not be compelled to perform such acts. Plaintiff coming into eq- the older system. Therefore, as chancery would give complete
uity must not only have "clean hands," or be free from inequita- relief upon taking jurisdiction pf a controversy, it necessarily
ble conduct, but he must also do all that equity may consider on applied common-law rules where it could consistently do so,
his part as right and fair in the transaction.l6 hence the maxim. However, "the maxim that equity follows the
law is disregarded much more frequently than it is applied; nec-
15 "The original statute of limita- reasonable., Later statutes of limi· essarily so, since equity is a system for the correction of the de-
tions did not apply to suits in equity. tations apply to suits in equity as fects in the law. When equity is giving specific relief for the pro-
But in cases where the chancellors well as to actions at law. While
were asked to give equitable protec- equity courts cannot disregard these
tection of legal rights, it generally will follow the law in deter-
tion to a legal right, they adopted the statutes by entertaining a suit after mining what those rights are. In determining the rights of par-
practice of holding that a delay in the term fixed by the statute has ex- ties claiming equitable interests in property, equity will often
the assertion of the right which pired, they still may find a delay less
would bar an action at law thereon than the time fixed by the statute to result in his unjust enrichment if he of permanent improvements placed
under the statute of , limitations be unreasonable and prejudicial, and is permitted to obtain the t elief while upon the premises or taxes paid
would ordinarily amount to laches therefore to preclude recovery." Mc- retaining the benefit. Thus one who thereon; one who seeks to ca,ncel
\.hich precluded relief in equity. Clintock, pp. 40, 41. seeks to cancel an outstanding tax an instrument for fraud or illegality
The effect of the practice was that, deed will be compelled to repay the may be compelled to repay the con-
in cases where the delay was less 16 "The most common class of cases amount of the tax lien which was sideration he has received, with legal
than that which would bar an action where the maxim is applied is where discharged by the tax sale; in a suit interest. But plaintiff cannot be com-
, at law, tlie defendant must show that the plaintiff seeks to recover prop- to quiet title against one who has pelled to reimburse the defendant
it was unreasonable under the. cir- erty, quiet title thereto, or cancel an been in posseSSion in good faith un- for expenditures he has made unless
cumstances; delay of a longer Ileriod instrument, and it appears that he der color of title, or because of mis- they have resulted in a benefit to
would bar relief, unless plaintiff has received in connection with the take, plaintiff may be compelled to plaintiff." McClintock, pp. 31, 32.
'Xluld affirmatively show that it was transaction some benefit which will reimburse the latter for the value
SMITH EL.LAW 2d- 5
66 EQUITY Ch. G § 29 THE FUSION OF LAW AND EQUITY 67
follow the analogy of common-law estates, but, if it considers it federal courts was made to include suits in equity as well as ac-
to be equitable to depart from that analogy, it will do SO."17 tions at law, but the two systems have always been administered
by the same courts and judges, rather than by separate tribunals
Summary as was the case in England. However, "the provision of the first
As the maxims are contradictory and not absolute or peremp- judiciary act [1 Stat. 73] and of its successors, that procedure in
tory, they may be confusing unless it is remembered that they the federal courts should conform, as nearly as might be, to that
are the products of the equity system in operation, used by its of the courts of the state in which they sat, never applied to pro-
judges largely as guides, and that they are not the causes of cedure in equity;"2l and until September 16, 1938, when the
that system. The maxims are the proverbs of equity, generaliza- Federal Rules of Civil Procedure went into effect, equity was ad-
tions formulated by chancery decisions, and because they are ministered by the federal courts in the various states as a uni-
such, like ~ost if not all generalities, they are not completely form system governed only by the· precedents of the English
true. However, they may be useful if properly understood, and chancery court, except as modified by equity rules promulgated
"it may be true that he who has fully comprehended tlie mean- from time to time by the United States Supr-eme Court, whereas
ing attached to these maxims by courts of equity has an in- the procedure for actions at law in the-federal courts varied ac-
sight into the essentials of equity jurisprudence."18 cording to the prpcedure for such actions obtaining in the courts
of the various states. .
EQUITY IN THE COLONIES AND THE UNITED STATES
THE FUSION OF LAW AND EQUITY
28. The equity system of England was generally adopted in the /
original English colonies in America and in th~ later States 29. Legislation adopted in England, the United States, and a ma-
as a part of their law, but the administration thereof by jority of the States, has combined the formerly separate
a court separate from the common-law courts was not so common-law and equity procedural rules and methods into
generally adopted. single systems administered by the same systems of courts.
suits in equity and actions at law in the federal courts; and pur-
suant to this statute "the Court has united the general rules pre-
scribed by it for cases in equity with those in actions at law so as CHAPTER 6
to secure one form of civil action and procedure for both."23
These regulations, entitled the "Federal Rules of Civil Proced- ENACTED LAW
ure,"24 became effective September 16, 1938, and superseded all 30. In General.
prior laws in conflict with them. "These rules govern the pro- 31. Classification of Statutes.
cedure in the district courts of the United States in all suits of a
civil nature whether cognizable as cases at law or in equity."25
Rule 2 provides that, "There shall be one form of action to be IN GENERAL
known as 'civil action.''' However, "these rules do not apply to
proceedings in admiralty,"26 so the forms and modes of proceed- 30. The enacted law of a state is that part of its positive law
ing in suits of admiralty and maritime jurisdiction are still gov- which has been formulated by legislation, as distinguished
from adjudication, except that it includes such judicial de-
erned by a separate system of rules promulgated under another cisions as constitute authoritative interpretations of legis-
statute.27 lation.l
Procedural regulations differ in the several states, ,b ut most of
them have adopted legislation abolishing the formal distinctions Nature
between suits in equity and actions .at law, and "the tendency of Legislative power is "lawmaking" power and therefore a part of .
the present age is strongly toward the obliteration of the separa- the ultimate, sovereign power in a state. As such, it is manifest-
tion between common-law and equity jurisdiction."28 ed in one of the United States whenever the people thereof amend
23 From a lettef by Mr. Charles E. zona, 1864; California, 1850; Col- their constitution or ordain a new one. However, the most num-
Hughes, Chief Justice of the United orado, 1877; Connecticut, 1879; II· erous illustrations of enacted law in the States and the United
States, with which the Federal Rules linois, 1933; Indiana, 1852; Idaho, States are the statutes enacted by the legislative departments of
of Civil Procedure adopted by the 1864 ; Kansas, 1859 ; Minnesota, the governments. Because the legislative power in the States
Supreme Court were transmitted to 1851 ; Missouri, 1849 ; Montana, and the United States may be authoritatively exercised in more
the Attorney General, who, under the 1865; Nebraska, 1855; Nevada,
18eO; New MexiCO, 1897; New York, ways than one, the enacted laws thereof subdivide into the fol-
Act of June 19, 1934, had the duty of
reporting the rules to the Congress. 1848; North Carolina, 1888; North lowing classes: (1) federal and state constitutions; (2) federal
Dakota, 1862; Ohio, 1853; Okla- and state statutes, or acts; (3) federal treaties; (4) executive
24 Rule 85, 28 U.S.C.A. following homa, 1890; South Carolina, 1870; orders and proclamations of the President and of the State Gov-
section 723c. South Dakota, 1862; Utah, 1870 ; ernors, as authorized by statutes; (5) administrative regulations
Washington, 1854; Wisconsin, 1856;
25 Rule 1, 28 U.S.C.A. following . and Wyoming, 1869; and in the Ter- of heads of departments, boards, and commissions, when author-
' section 723c. ritories of Alaska, 1900, and Puerto ized by statutes; (6) ordinances of the subdivisions of the States,
Rico, 1904. In Alabama, Arkansas, such as cities and villages; and, (7) rules of courts regulating the
26 Rule 81(a) (1), 28 U.S.C.A. fol- Delaware, Mississippi, New Jersey,
lowing section, 723c.' manner o~ conducting proceedings before them.
Tennessee, and Vermont separate
27 See R.S. § 913, 28 U.S.C.A. § 723. courts of equity are still maintained. 1 The term "statutory law" is some- tions or treaties. The term "writ-
In the other states the formal dis- times used in referring to the enact- ten law" has also been used as syn-
Bowman, p. 281.
28 tinction between law and equity suits ed law of a state, but in the strict onymous of enacted law, but is rarely
"Codes or practice acts purporting .is maintained to a greater or less ex- sense a statute is "a particular law used so in modern practice, the term
to abolish the formal distinctions be- tent, but tne two systems are admin- enacted and established by the will "legislation" being preferred, or the
tween actions at law and suits in istered by the same courts, as is the of the legislative department of gov- specific term "constitution," "stat-
equity were adopted in the following case in the federal judiciary system." ernment," [Black's Law Dictionary, ute," or "ordinance," as the case may
states in the years indicatea.: Ari- McClintock, pp. 7. 8, note. 3d. Ed., p. 1655], and does not include Le.
such enactments as written constitu-
69
ENACTED LAW Ch.6 § 30 IN GENERAL 71
70
History and Development model of parliamentary government throughout the world.
The formulation of laws by enactment through the agency of a When the American state and federal constitutions were estab-
representative, distinct, and relatively independent legislative de- lished, the English model was controlling to a considerable ex-
partment of government such as the legislatures of the severa.:. tent. The theory of separation of powers as set forth by the
States and the Congress of the United States, has been brought famous Esprit des Lois of Montesquieu was accepted, but it de-
about as the result of gradual developments in England which parted so far from ,the English model that the executive--cor-
evolved the English Parliament. 2 "The English Parliament is the responding roughly to the Ministry- had no seats in Congress
or the Legislature and took no part in the debates of these bodies.
Otherwise, the general example of the English system was fol-
2 Concerning this development, Ra- "All this would be quite unintelli-
gible to the men who laid the founda-
lowed. Whether a power is legislative or administrative or ju-
din has said: "We are, most of us, at
the present day, so accustomed to the tions of our legal system ' and who dicial is determined, not by logical categories, but by the historic
theory that governmental power is of developed it into modern times. Our fact of whether it was a power possessed by the English Parlia-
three types, executive, legislative and theory of statute l~w did not begin ment. If it was so possessed, it is also possessed by American
judicial, that we find it hard to think to take shape until the overthrow of legislatures, unless it has been specifically taken away by the
ourselves into a situation when this the Stuarts and the establishment of
Parliamentary supremacy. The Eng-
Constitution. In this way, the rights to summon persons to give
division was not commonly used be-
cause' it was unknown. Further, of lish Constitution of the eighteenth infOrrilation, to punish for contempt, to grant divorces, have been
the three powers, the legislative, al- ' century, idealized and wrongly ana- declared to be powers of the legislatures, even though not ex-
though it is officially called merely lyzed in Montesquieu's Spirit of pressly granted. And some of these implied powers have been
co-ordinate, is in popular contempla- Laws, became the symbol of, enlight- claimed even for the federal Congress, despite the constitutional
tion, so definitely the most important ened freedom and gathered within it-
self a great deal of the impulsive
declaration that Congress has only specifically granted powers.
that its activity is thought of as pre-
eminently creating our law. In an- force of the doctrine of Natural Law. While the upper house of the federal Congress, the Senate, has a
cient societies 'legislation is not The breach with medieval ideas was basis of representation quite different from that of the lower the
. '
thought of as a functio~ of govern- really made then and not till then. dIfference between the upper and the lower houses of most states
ment. An Act of Parliament was then for is usually a difference of rank. The Senate is smaller, and mem-
"Our notion of the legislative func- the first time fully and unquestion-
bership in it confers a slightly greater prestige, although, in fact,
tions, again, cannot readily detach it- ably what its name implies, a de-
self from the kind of iegislative ma- termination made by a body 'organiz- the Senate has very little legislative power that is not P9ssessed
chinery which we possess ourselves ed specifically to make such deter- by the lower house, generally called the Assembly. The ghost of
and which most countries in the minations, and ending all controversy
on whatever subject-matter cO)1ld by the king speaks for himself and his for a fee. It was by no means a
world, except a few recently created
reasonable intendment be covered by , uccessors are usually charters of matter of course that every statute
dictatorships, have adopted. It is of
the words of the act. * * * liberties which were assumed to have would justify a writ [on a right
Engli~h origin. Its characteristic ,is
"The effect of statutes on the de- existed before the king's reign and claimed under a statute]. * * *
tliat it consists of two separately or-
velopment of Engiish law is one that might therefore well survive it. But it soon became the case that
ganized bodies, usually equal in pow-
is highly characteristic. The first Kings would repeat the 'good stat- statutes had this force. In the four -
H, but not in dignity. In addition,
statutes being specifically r2yal com- ures' of their predecessors, and that teenth century, it was taken for
there is a single executive who has
mands, often as limited in time as in fact may have rendered it easy to granted that, if there was a statute,
usually only a suspensive veto, but
persons affected, did not seem to ~&sume that a 'royal enactment lasted one needed neither a precedent in
who frequently has the right of sub-
create law, as we understand it. indefinitely and would be enfor:ced, the Chancery nor a closely resembl-
mitting proposals or advising the car-
That is to say, the accepted notion or, better, that it was tacitly reaf- ing writ. If the statute was present-
rying out of certain specifiC or gen-
was not that there was a great body firmed by subsequent kings. ed, a writ citing its words and basing
eral policies. What the two legisla-
of established law to which each "But the Common Law was the itself on that alone was quite enough.
tive bodies, meeting separately and
statute pro tam,to brought some mod- creation of the king's courts. They The clerks must issue it, as they
acting successively, agree upon, is a
ification, whether by addition or sub- had men brought before them by must issue any writ de cursu. Other-
statute, a 'law,' binding on the entire wise they denied justice, and an ac- '
citizenry. And the 'laws' so 'passed,' traction. It was in the first place writs, and the King's Chancery,
doubtful whether a statute by itself which served, supplemented and later count would be demanded of them.
numbering many hundreds or even
thousands, are peremptory commands did not expire with the king who had corrected the king's courts, would is- "Statutes thus become a source of
to the courts. issued it. The documents in which sue writs to all the king's liegemen law in the English system, because
72 ENACTED LAW Ch.6 § 80 IN GENERAL 73
I
the Feudal Magna Ouria seems to be chiefly responsible for the legislative ,process. These steps usually include: (1) introduc-
distinction." 3 tion; (2) reference to a committee; (3) readings; (4) vote; (5)
signing by the presiding officer; (6) presentation to the other
United States house wherein the foregoing procedure is repeated; (7) submis-
The enacted law of the United States embraces: (1) the Con- sion to, and approval or disapproval by, the executive; and, (8)
stitution of the United States; (2) acts of Congress; (3) treaties reconsideration by the legislature in case of veto by the executive.
of the United States; (4) executive orders and proclamations of Ordinarily any member has a right to introduce a bill to his
the President; (5) administrative regulations of heads of depart- house, and the usual practice is to refer the bill to a committee
ments, boards, and commissions; (6) acts of territorial legisla- after its introduction. The committee then considers it and re-
tures, local to each particular territory; (7) judicial interpreta- fers it back, with reports favorable or otherwise,. for considera-
tions of the foregoing by federal and State courts subject to final tion by the house. In several of the states this course is made
determination by the Supreme Court of the United States; and, obligatory by the constitution. "As a general rule, bills of any
(8) the rules of practice in the federal courts. kind may originate in either house of a state legislature, and
may be amended, accepted, or rejected by the other. The prin-
States
cipal exception to this rule is in the case of measures for raising
The enacted law of a state embraces: (1) its constitution; (2) revenue, which, by the constitutions of most of the states, are
. the acts of its legislature; (3) executive orders and proclama- required to be first introduced in the lower or more numerous
tions promulgated by its governor; (4) administrative regula- branch of the legislature. 1i But such a constitutional provision
tions of state boards and commissions; (Q) ordinances of its sub- applies only to bills to levy taxes, in the strict sense of the word,
divisions such as cities and villages, local to each particular sub- and not to bills for other purposes which may incidentally raise
division; (6) judicial interpretations of the foregoing by state revenue. The constitutions of many of the states require that
and federal courts; and, (7) the rules of practice of the state a bill, before it shall become a law, shall be read a certain num-
courts. ber of times (usually two or three) in each house. In respect
Legislative Procedure to the manner of such reading, the provision is considered mere-
ly directory; but not so with regard to the fact of its being read.
A federal or state statute, to be valid, must be enacted in con- If the constitution is not obeyed in this particular, the statute is
formity with pertinent constitutional provisions; but it is not nec- void."6 The sovereign intendment behind such provisions is the
essary that parliamentary rules of procedure nor the analogous procurement of due deliberation at this stage of the enactment
rules of the enacting house be strictly followed. 4 During its for- proceeding.
mative stages in the legislative process a proposed enactment
is called a "bill," and it does not become a "statute" or law until To become a law a bill must .be approved by a vote of the nec-
it has successfully progressed through the various steps of the essary majority of both hauses of the legislature. "In some spe-
cial cases a majority of two-thirds or even three-fourths is pre-
they are admitted by the courts as of procedure in general use are or- scribed. But ordinarily a simple majority is enough. If the con-
a means of initiating court action." dinarily followed, except as to mat-
Radin on Anglo-American Legal His- ters regarded by a particular legis- IS (The Constitution of the United thirds or three-fourths of the mem-
tory, pp. 327, 328, 333, 334. lature as requiring special rules. As States, art. 1, § 7, cl. 1, U.S.C.A. also bers of the ,house where' the measure
a legislature has the authority to requires that, "All Bills for raising is pending. When such an occasion
3 Radin on Anglo-American Legal
History, pp. 63, 64. change its rules of procedure when- Revenue shall originate in the House arises, it is for the house alone to de-
ever it may so desire, a statute en- of Representatives.") termine whether there is such 'ur-
4 In respect to procedural matters acted by it in conformity with per- gency' as to justify the passage of
not regulated by constitutional pro- tinent constitutional provisions will 6 Black, p. 357. "In a considerable the bill without reading or with less
visions, legislatures are subject only be sustained by the courts although number of the states, the constitu- than the usual number of readings.
to such rules as ' they may prescribe the procedural rules of the legisla- tion provides that the three readings This is a question which will not be
for themselves or choose to recog- tive body may not have been observ- of a bill may be ' dispended with in inquired into by the courts." Black,
nize. However, parliamentary rules ed in the passage of the ad;. case of 'urgency' by a vote of two- p.358. .
ENACTED LAW Ch.6 § 31 CLASSIFICATION OF STATUTES 75
74
stitution provides for a vote by a majority 'of the members' or Time
'of the whole representation,' this is imperative. But if the re- As to the time of the acts on which they operate, statutes are
quirement is simply that there shall be a majority, it is under- either prospective or retrospective. A prospective statute is one
stood that a majority of those present and voting (provided they which applies only to acts which are performed after its enact-
constitute a quorum) will .be sufficient. But whatever the con- ment. A retrospective statute is one which applies to acts per-
stitutional requirement may be, it is absolutely necessary, that -formed' prior to its enactment. "If a retrospective statute is in
the bill should receive the concurrent votes of a sufficient num- the nature of an ex post facto law or a bill of attainder, or if it
ber of the members of each house to enact it into a law. If this is impairs the obligation of contrC;lcts or divests vested rights, or if
not the case, it never becomes a statute of the state, and the all retrospective laws are specifically forbidden by the constitu-
courts are not bound t9 regard or obey it. Moreover, the same tion of the particular state, such an act will be unconstitutional
act must be passed by both houses in the same identical form, and void, but not otherwise."»
and in that form it must be submitted to the governor in order
Persons Affected
to become a law."7 Having been duly passed by the requisite As to the persons whom they affect, statutes are either public
majorities of the legislature, engrossed, and attested by the pre- or private. A public statute is one which applies to persons in
siding officers of the legislative houses, a bill is submitted to the general. ' A private statute is one which applies only to partieu-
executive for his approval or veto. If approved by the executive, lar persons. For example, a law providing pensions for all per-
the bill becomes a law; if vetoed, a bill does not become a law un- sons conforming to .certain conditions is public; whereas an act
less it is enaGted over the disapproval of the executive by the granting a pension to a particular person is private. Generally,
legislative majority required in such cases, but "such passage public statutes are included in codifications but private statutes
makes it ipso facto a law."8 " are not, and the former may be judicially noticed, or noticed
without proof of them by courts; whereas private enactments
~LASSIFICATION OF STATUTES must be proved in court unless judicial notice of them is requir-
31. Statutes divide into different classes, according to their form, ed by statute.10
the time of the acts on which they operate, the persons
whom they affect, the territory within their force, their ob- Territory
ject, their effect as to acts in compliance or not in compli- As to the territory within their force, statutes are either gen-
ance with them, their relation to prior statutes, and their eral or local. A general statute is one that applies to the entire
re,l ation to the decisional or common law. . territory over which the legislature which enacts it has authority.
A local statute is one applicable only to a limited portion of the
Form territory over which the legislature that enacts it has authority.
As to their form, statutes are either affirmative or negative. The classification of general and local statutes is sometimes con-
, A statute is affirmative in form when expressed in affirmative fused with the classification of public and private statutes, but
terms; negative, when expressed in negative terms. their bases are different, the former involving a distinction of
parts or cla uses of a statute descrip-
persons; the latter, a distinction of place.
07 Black, pp. 358, 359.
tive terms are also commonly attach- Object
8 Black, p. 314. ed by lawyers. Thus, the clause be-
A sta tute of complete form usually ginning with "Be it enacted," and
As to their object, statutes are either remedial or penal.
contains the following parts: (1) A ending with "that," is termed the en- "Remedial statutes are those which are enacted to afford a rem-
title, briefly indicating its nat ure; (2) acting clause; a passage explaining § 10, c1. 1), "No State shall .. ,. ,.
9 Black on Interpretation of Laws,
A prea mble, beginning with "Where- the meaning of words or terms used pass any Bill of Attainder , ex post
2d. Ed" § 115, p . 382.
as," and indicating the reasons for i::; called an interpretation clause; facto Law, or Law impairing the Ob-
the statute,' and possibly its general and, passages beginning "Except," or The Constitution of t):le United ligation of Contracts."
effect; (3) The ' pu rview, or body of "Provided," Or "Nothing in this act States provides, (Art. 1, § 9, c1. 3),
"No Bill of Attainder or ex post facto 10 See McKelvey ' on Evidence, 4th.
t he statute, generally beginning with shall," are termed, respectively, ex-
"Be it enacted." To various other ceptions, provisos, and saving clauses. Law shall be passed;" and, (.~rt. 1, Ed., p. 30.
76 ENACTED LAW § 31 CLASSIFICATION OF STATUTES 77
C4·6
edy, or facilitate an existing remedy, or to correct defects, mis- it alters, amends, or supplements an existing ac~. . A statute is
takes, and omissions. Penal statutes are those by which pun- declaratory or expository in its relation t? an eXlstmg act when
ishments are imposed for transgressions of the law, civil as well its purpose is to interpret or construe, clarify or define, the mean-
as criminal."11 ing of an existing act. A statut~ which. i~ neith_e r amendatory
nor declaratory of an existing act IS an orIgmal stawte.
Effect
As to their effect on acts of persons which are in compliance Relation to Common Law
or not in compliance with them, and as to their effect when per- Common law may be affirmed or declared, s,:p~lement:d, or
sons omit to do such acts as are within their scope, statutes are superseded by statutes. A statute is declar~to:y m Its relatlO~ to
either preceptive, prohibitive, permissive, or directory. A stat- the common law when it merely affirms prmclples already eXist-
ute is preceptive or mandatory "when it commands and re- ing therein. On the other hand an act which is supplementary
quires that certain action shall be taken by those to whom the to the common law "does not displace that law any fur~her than
statute is addressed, without leaving them any choice or discre- is clearly necessary. The statute is in gen.eral c?ns~dered as
tion in the matter, or when, in respect to action taken under the mereI y cumulative
, unless the rights or remedies " hWhICh It creates
I w
statute, there must be exact and literal compliance with its terms, are expressly made exclusive."15 However". t ~ common a
or else the act done will be 'a bsolutely void."l2 Failure to do an gives way to a statute which is inconsi~ten~ WIth It; a.nd w~en a
act required by a preceptive or mandatory statute, which act statute is designed as a revision, consohdatlo~, or cOdi.ficatI.on of
is one of a series, may render ineffectual a result sought to be the whole body of the law applicable to a given subJe~t, It su-
obtained. For example, failure of persons organizing a corpora- persedes the c'o mmon law so far as it applies to t~at. subJect, and
tion to do an act required by a mandatory provision of the ap- 1 art of it in force."16 Court-made ~rmclples develop
eaves no P . I t' ld I
plicable law may prevent their association 'from becoming a de d are altered gradually and slowly, but by legiS a IOn 0 aw
jure, as distinguished from a de facto, corporation, although they :ay be changed or new law cre~ted .~~os~
instantaneously;
may have complied with various other mandatory requirements. thus "legislation tends, with advancmg CIvilIZation, to become the
A prohibitive statute is one which forbids certain acts, rendering nearly . source 0 f new I aw. "17
, exclUSIve
such acts unlawful when committed and subjecting the persons
guilty thereof ·to the prescribed penalties. A statute "which 15 Black on Interpretation of Laws, 16 Black on Interpretation of Laws,
2d. Ed., § 111, p. 363. 2d. Ed., § 112, p. 365.
authorizes or' peJ;'1l1its certain action to be taken by those to 17 Holland, Jurisprudence, p. 65.
whom it is addressed or whom it concerns, at their option or in
their discretion, but does not imperatively require it, is said to be
enabling or permissive."13 A statute "which directs the manner
in which certain action shall. be taken or certain official duties
performed is said to be directory when its nature and terms are
such. that disregard of it, or want of literal compliance with h,
though constituting an irregularity, will not absolutely vitiate
the proceedings taken under it."14
restrictions, ,includes authority to establish the procedure by affidavits of merits or defense; no- tion for a new trial; entry of judg-
tice of counterclaims; the manner of ment; stays of ~xecution; the exam-
which courts shall exercise their jurisdiction and where a posi- making issues; defaults; the effect ination of debtors in supplementary
tive rule of practice is declared by statute the courts have no dis- ot failure to deny averments in plead- proceedings; records to be kept by
cretion in the matter. Generally, however, courts are authorized ings; motions to require security for the clerk; practice with respect to
by statute to make such regulations as are necessary. costs; notice of motions; time for appeals; the time within which cases
application for ch!mge of venue; rec- Rhall be noted for settlement; the
The inherent power of the judiciary to regulate its adminis- ognizances for appearance by persons form and time of filing transcripts on
trative and procedural affairs is not absolute but is subject to accused of crime and seeking a appeal; fees and costs; and gener-
constitutional and statutory limitations. In other words, court change of venue; continuances; the ally, all matters of practice and pro-
rules are inferior in ,rank to statutes and constitutional provi- granting or refusing of leave to dis- cedure." 15 C.J. § '278, pp. 904-907.
sions, thus, where a court rule conflicts with a statute or consti- continue; making objections in writ- 10 "Some authors have attempted
tutional provision the court rule must yield and the superior con- ing; admissibility and reception of to introduce a distinction between 'in-
evidence; submission of civil causes terpretation' and 'construction.' Ety-
stitutional or statutory provision prevails.9
on abstracts of record; time of trial ; mologically there is, perhaps, such
visions, are proper for regulation by trial by jury; time for presenting a distinction; but it has not been
8 Black, p. 354.
r-ule of court may be mentioned proc- . pecial instructions and interroga- accepted by the profession. For prac-
9 "Only such matters as are not ess; the issuance of attachments; tories to the jury; requests for writ- tical purposes any such distinction
regulated by general or special laws notices of appearance; calendars; ten findings of fact separate from may be ignored, in view of the real
in reference to practice and proce- calling of the dockets; the publica- conclusions of law; arguments of object of both interpretation and con-
dure may be regulated by a rule of tion of legal notices; the necessity counsel; exceptions to auditors' re- struction, which is merely to ascer-
court. Among matters which, sub- of pleadings; the form of pleading , ports; the time for filing exceptions; . tain the meaning and will of the law-
ject to this principle and to the rules or briefs, or of stipulations or agree- affidavits to accompany excep,tions to making body, in order that it may be
28 to reasonableness and conformity ments; presenting or filing com- an account; applications for reheax:- enforced." How to Find the Law, 2d
to constitutional and statutory pro- plaints, pleadings and other papers; ing; errors to be considered on mo- Ed., § 5, p. 182.
SMITH EL.LA W 2d
84: THE RANK AND INTERPRETATION OF LAWS Ch.7 § 34 RULES FOR CONSTRUCTION OF STATUTES
, 85
the legislature does not design any attempt to transcend the tention of the legislature, and the court is not at liberty,-merely
rightful limits of its authority; (b) that every act of the legis- because it has a choice between two constructions, to substitute
lature is valid and constitutional, unless the contrary is shown; for the will of the legislature its own ideas as to the justice, ex-
(c) that the lawmaking body intended to be consistent and just, pediency, or policy of the law."13
and not to require an impossibility, or to work public inconven- Among the principal rules used in the construction of written
ience or private hardship; (d) that the legislature intended its documents generally, which are also observed by the judiciary
enactments to accord with the principles of sound public policy for the purpose of ascertaining legislative intention where such
and the interests of public morality; and, (e) that the legislature intention is not clear, and as expressed for the latter purpose,
intended to impart to its enactments such meaning as would ren- are the following: (1) The words of a statute are to be con-
der them operative and effective. l l However, such presumptions strued with reference to its subject-matter. If they are suscepti-
cannot prevail against clear, explicit terms in a statute and if the ble of several meanings, that one is to be adopted which best ac-
intention of the legislature is not doubtful the courts must take cords with the subject to which the statute relates. (2) The
the act as it reads regardless of the consequences. words of a statute are to be taken in their ordinary and popular
meap.ing, unless they are technical terms or words of art, in
Rules of Construction 'which case they are to be understood in their technical sense.
The rules of construction are not rules of positive law except (3) Words that have changed in meaning since the framing of
where they have been enacted into statutes.. "They rest on the the instrument are to be construed as they were understood at
authority of the courts, which have gradually evolved them, and the time the document was drawn. (4) Words are to be con-
they are not imperatively binding in the same sense as are the strued in connection with the context, and the entire statute is to
enactments of the legislature. The true object of all interpre- be read as one complete instrument. (5) Primarily, a statute is
tation is to ascertain the meaning and will of the law-making to be interpreted according to the ordinary meaning of its words
body, to the end that it may be enforced. It is not permissible, and the proper grammatical effect of their arrangement in the
under the pretence of interpretation, to make a law, different act. But if there is any ambiguity, or if there is room for more
from that which the law-making body intended to enact."12 Con- than one interpretation, the rules of grammar will be disregard-
sequently, when a court is confronted with a problem of statutory ed, where 'a too-strict adherence to them would raise a repug-
construction, the meaning that the legjslature intended to con- nance or absurdity or would defeat the purpose of the legislation.
vey by the act must be sought first in the language of the (6) As an aid to the sense of an enactment, its, punctuation may
statute itself. And, "if the language of the statute is plain and be referred to. (7) Clerical errors or misprints, which, if un-
free from ambiguity, and expresses a single, definite, and sensi- corrected, woUld leave the statute without meaning, render it
ble meaning, that meaning is conclusively presumed to be the nonsensical, or defeat or impair its intended operation, should not
meaning which the legislature intended to convey. In other vitiate the act. (8) The words of a statute are to be so con-
words, the statute must be interpreted literally. Even though the strued as to carry out the general purposes of the statute. To
court should be convinced ,that some other meaning was really this end, the title and the preamble may be used. But the title
intended by the law-making power, an~ even though the literal of a statute cannot control -or vary the meaning of the enacting
interpretation should defeat the very purposes of the enactment, part of the statute if the latter is plain and unambiguous. (9)
still the explicit declaration of the legislature is the law, and the If a doubt or uncertainty as to the meanrng of the legislature
courts must not depart from it. If the language of the statute is cannot be removeQ by a consideration of the act itself and its
ambiguous, or lacks precision, or is fairly susceptible of two or various parts, recourse may be had to extraneous facts, circum-
more interpretations, the intended meaning of it must be sought stances, and means of explanation; but those only are admissible
by the aid of all pertinent and admissible considerations. But which are logically connected with the act in question, or authen-
here, as before, the object of the search is the meaning and in- tic, or inherently entitled to respectful consideration.
11 How to Find the Law, 2d Ed., p. 12 Black on Interpretation of Laws, 13 Black on Interpretation of Laws,
183. 2d Ed., §§ 3, 4, pp. 9, 11. 2d Ed., pp. 45, 46.
86 THE RANK AND INTERPRETATION OF LAWS Ch. 7 §S5 INTERPRETATION OF JUDICIAL DECISIONS 87
Among the principal rules of construction particularly ap- Amendments
plicable to statutes are the following: (1) The words of a stat- An original act and a subsequent enactment amendatory of it
ute are to be construed, if possible, so as to prevent it from being are to be read and construed as one statute. The theory behind
declared invalid for unconstitutionality or repugnancy. (2) the rule is that the original act and its amendment constitute
Statutes in pari materia (or on the same subject), are to be con- but one law. Hence, the rule is that an amended statute should
strued together. Each legislative act is to be interpreted with be interpreted as if it had read originally as it does amended; but
reference to other acts relating to the same matter or subject. "an amendatory statute, like other legislative acts, takes effect
(3) Generally, the words of a statute are to be construed, in the only from its passage, and will not be construed as retroactive or
light of the pre-existing law. (4) Penal statutes are to he con- as applying to prior facts or transactions, or to pending proceed-
strued strictly;14 remedial statutes are to be construed liberaJIy.15 ings, unless a contrary intention is expressly stated or necessari-
(5) "When the interpretation of a statute according to the ex- ly implied."~'l
act and literal import of its words would lead to absurd or mis-
chievous consequences, or would thwart or contravene the mani- THE AUTHORITY AND INTERPRETATION OF
fest purpose of the legislature in its enactment, it should be con- JUDICIAL DECISIONS
strued according to its spirit and reason, disregarding or modify-
ing, so far as may be necessary, the strict letter of the law. In 35. The judgment of a court affects the persons and their legal
accordance with this principle the courts have power to declare interests involved in the particular litigation to which it
that a case which falls within the letter of a statute is not gov- 'a pplies under the doctrine of res judicata; it affects other
erned by the statute, because it is not within the spirit and rea- persons generally and their legal interests under the doc-
son of the law and the plain intention of the legislature. Con- ' trine of stare decisis.
versely, statutes may be extended to cases not within the literal
import of their terms, if pla.inly meant to be included; for that In General
which is within the intention of the legislature, in the framing of "A judgment, as to all matters decided thereby, and as to all
a statute, is as much within the statute as if it were within its let- matters necessarily involved in the litigation leading thereto,
ter. But where the statute is free from ambiguity and plainly binds and estops all parties thereto and their privies in all cases
shows what the legislature meant, the letter of it is not to be dis- where the same matters are again brought in question. Such
regarded under the pretext of pursuing its spirit, and exceptions is the doctrine of res judicata. There is also the doctrine of
not made by the legislature cannot be read into it."16 stare decisis, which is of a different nature. When a court has
once laid down a principle of law as applicable to a certain state
14 "Strict construction of a statute 15 Liberal construction "expands of facts, it will adhere to that principle and apply it to all future
is that which refuses to expand the the meaning of the statute to em- cases where the facts are substantially the same, and this it does
law by implications or equitable con- brace cases which are clearly within
siderations, but confines its opera- the spirit or reason of the law, or
for the stability and certainty of the law."18
tions to cases which are clearly with- within the evil which it was design- The doctrines of res judicata and stare decisis differ in three
in the letter of the statute, as well ed to remedy, provided such an in- main particulars. First, they differ as to the parties affected,
as within its spirit or reason, not terpretation is not inconsistent with as under the former a judgment (unless it be in rem) is deemed
so as to defeat the manifest purpose the language used. It resolves all
of the legislature, but so as to resolve
conclusive only upon the parties to the particular case it deter-
reasonable doubts in favor of the ap-
all reasonable doubts against the ap- plicability of the statute to the par- mines and those who are in privity with them, but under the
plicability of the statute to the par- ticular case." How to Find the Law, doctrine of stare decisis a judgment as a precedent will be applied
ticular case." How to Find the Law, 2d Ed., p. 188. by courts to cases involving different parties, it being only neces-
2d Ed., p. 188. sary that their legal rights and relations be substantially similar
16 Black on Interpretation of Laws,
2d Ed., pp. 66, 67. to those resolved in the precedent case. Second, the two doc-
17 Black on Interpretation of Laws, . 18 Moore v. City of Albany, 98 N.
2d Ed., p. 584. Y. 396, 1885.
88 THE RANK AND INTERPRETATION OF LAWS Ch.7 §85 INTERPRETATION OF JUDICIAL DECISIONS 89
trines are different in the nature of the questions settled under Precedents
them. The doctrine of res judicata "applies to controverted A judicial precedent "is an adjudged case or decision of a <;!ourt .
questions of fact, and prevents the re-examination of issues of of justice, considered as furnishing an example or rule for the
fact once judicially settled in a court of competent jurisdiction. determination of an identical or similar case afterwards arising,
The rule of stare decisis has no relation to matters of fact, but between the same or other parties, in the same or another court,
is applicable when disputed questions of law have been officially on a similar question of law."21 Judicial precedents are available
settled and determined."19 Third, although both of these doc- through various printed reports, and the decisions of the highest
trines are directed to the same general objective, that of putting courts of the States and the decisions of the Supreme Court of
an end to litigation, they differ in the methods by which they the United States are published officially. A complete report of
operate to accomplish this purpose. Under the doctrine of res a case usually contains: (a) the title, or names of the parties
judicata a judgment is deemed to be conclusive as to the case it to the suit; (b) the syllabus or headnote, in which the reporter
determines in order that the parties may not continue or renew indicates the points decided; (c) a statement of the facts out of
their conflict indefinitely. "The object is to put a definite end which the controversy arose; (d) a synopsis of the arguments
to each individual controversy when a final judgment has been or briefs of the counsel; (e) the opinion, or reasons given by the
reached, so that it may not be indefinitely protracted in the court for the decision; (f) the decision, or determination of the
courts. The doctrine of stare decisis, on the other hand, seeks rights of the parties; and, (g) the judgment, or formal order
to prevent litigation in general by rendering it unnecessary. Its entered as a result of the decision.
object is to impart such certainty and stability to the law that
every man may be certified of the nature and extent of his vari- It is the decision of the case, not the reasons or arguments of
ous rights and legal relatiOns, and may be enabled to govern his the court for its decision, which makes the precedent. The opin-
conduct in such a manner as to make it unnecessary for him to ion may explain ' and justify the decision but the opinion has no
come before the courts either as a plaintiff or a defendant."20 authority beyond the point or points actually determined. How-
ever, "it is not alone the concrete decision in the particular case
19 Black's Law of Judicial Prece- judgment has been rendered in a which measures its scope as a precedent, but the legal reason for
dents, pp. 192, 193. cause, it is to be regarded as the final the decision, the 'ratio decidendi,' that is, the underlying rule or
declaration of the law applicable to principle of law which, applied to the facts, caused the particular
20 Black's Law of Judicial Prece- the issues involved, subject, of course,
dents, p. 194. to appeal or review, and in the ab- judgment to be given. A decision is authority for rules or prin-
To be distinguished from 'the doc- sence of a succeSSful appeal there- ciples of law tacitly assumed by the court as a basis for its consid-
trines of stare decisis and res judi- from, if the cause goes to a further eration and determination of the specific questions involved, pro-
cata is the doctrine of the law of the stage, all subsequent rulings will be vided they are so essentially involved in the decision that the par-
case. "When ' a point or question made with reference to the judgment ticular judgment could not logically have been given without
arising in the course of a litigation rendered and nothing inconsistent
is once solemnly and finally decided, ,with it can be alleged by the parties
their recognition and application; but not as to propositions un-
the rule or principle of law announc- or held by the court. For example, derlying the decision which were assumed by the court withom
ed as applicable to the facts pre- where a judgment of a trial court examination simply because they were conceded or assumed by
sented becomes the law of that case has been appealed to an appellate the parties or counsel. Where several questions are presented by
in all its subsequent stages or devel- court, and the latter has reversed the the record and are considered- and deliberately decided by the
opments, and is binding both upon judgment and ordered a new trial in
the parties and their privies and also the lower court, upon a second ap-
court, all of which lead up to the final conclusion and have influ-
upon the court, so that the former peal from the new trial the appellate ence in determining the judgment to be given, all are embraced
will not ' be permitted, nor will the court will not reconsider a question within the authority of the case as a precedent. A decision is
latter consent, to reopen the same which it adjudicated on the former
issues for further consideration what- appeal, such adjudication having be- cannot be departed from; and, the case has regard to subsequent
ever grounds there may be for re- come a law of the case. Thus, re- stages of the same suit.
garding that decision as erroneous." whereas the doctrine of res judicata
garded as a precedent, a decision may
(Black's Law of Judicial Precedents, be overruled or modified, but when tas regard to subsequent, independ- 21 Black's Law of Judicial Prece-
p. 262.) In other words, when a regarded as the law of the case it ent suits, the doctrine of the law of dents, p. 2.
90 THE RANK AND INTERPRETATION OF LAWS Ch.7 §35 INTERPRETATION OF JUDICIAL DECISIONS VI
not authority as to any questions of law which were not raised judicial determinations of the court, they are never entitled to
or presented to the court, and were not considered and decided the force and effect of precedents, in the same or other courts,
by it, even though they were logically present in the case and and do not preclude the rendering of a subsequent contrary de-
might have been argued, and even though such questions if con- cision."24
. '
sldered by the court, would have caused a different judgment to
be given."22 Authority of Precedents
Interpretation of Precedents The separate judicial systems of the federal and state govern-
ments include courts of different jurisdiction or rank, and the
II" The report of a case, that i~ the language of a judicial opinion,
relative authority and force of their decisions as precedents vary
IS always to be construed WIth reference to the circumstances
accordingly. Thus, (excluding various special courts), at the bot-
of the particular case and the question actually under considera-
tom of the federal -judicial system qre the district courts; next
tion; and the authority of the decision, as a precedent, is limited
above them are the circuit courts of appeals; and at the top is the
to those points of law which' are raised by the record, considered
Supreme Court of the United States.
by the court, and necessary to the determination of the case."23
The decision of a prior case is a precedent for the decision of a The decisions of the United States Supreme Court are binding
subsequent ca.se if the facts of the two are substantially the same upon all the circuit courts of appeals and all the district courts;
and are without material difference. It is not necessary that the and the decisions of a circuit court of appeals are binding upon
facts of the two cases be absolutely identical. However, if there the district courts within the .same circuit. But a district court
is a material difference in their facts the earlier case is not de- in one circuit is not bound to follow a precedent established by
terminative of the later one, and there is a "material difference" the circuit court of appeals in another circuit although such a
if the first case contained facts or circumstances essentially a precedent is considered as very persuasive by the district courts
part of the issue and directly influencing the judgment which in other circuits, and a court of one rank is not bound to follow
are not present in the second case, or if the second case contains a decision of another court of ·the same rank. Conversely, the
facts or circumstances likewise essential to be_considered in its decisions of the district courts are not binding upon the circuit
determination which were not present in the first case but which courts of appeals or the Supreme Court, nor are the decisions of
if present would have modified or changed the judgment therein. the circuit courts of appeals binding upon the Supreme Court.
. In the construction of a decision for the purpose of ascertaining As the inferior federal courts are bound to follow the preced-
ItS force as a precedent the principles used by the court as deter- ents of the United States Supreme Court, so the courts of the
minative of the case must be distinguished from any superfluous states are bound to follow its decisions in cases involving federal
language or dicta, in its opinion a dictum being "an expression questions, such questions being those which arise under the Con-
?f opinion in regard to some point or rule of law, made by a judge stitution, statutes, and treaties of the United States. And, where
m the course of a judicial opinion, but not necessary to the de- the decisions of the highest court of a state and those of the Unit-
termination of the case before the court. It may either be put ed States Supreme Court are in conflict on a federal question, it
forth as the personal opinion of the judge who delivers the judg- is the duty of an inferior court of the state to follow the pre-
ment of the court, or introduced by way of illustration, argument, cedents of the federal tribunal in a case involving such question.
or analogy, but not bearing directly upon the question at issue or The precedents in the decisions of state courts of different rank .
it may be a statement of legal principles over and above what is also vary in force according to the authority of the tribunals es-
necessary to the decision of the controverted questions in the tablishing them. Thus, the <!ecisions of the highest court of a
case. '* '* * Dicta pronounced in a judicial opinion may be state are binding upon the intermediate appellate courts and the
entitled to respect, on account of the learning or general accura- trial courts of the state, and the decisions of the intermediate ap-
cy of the judge from whom they proceed; but as they are not the pellate courts are binding upon the trial courts below them with-
22 Black's Law of Judicial Prece- 23 Black's Law of Judicial Prece- 24 Black's Law of Judicial Prece-
dE'nts, p. 37. dents, p. 49. dents, §§ 54, 57, pp. 166, 176.
THE RANK AND INTERPRETATION OF LAWS Ch.7 § 35 INTERPRETATION OF JUDICIAL DECISIONS 93
92
in their r espective districts; but the decision of any inferior court ciples or construing local statutes may be persuasive authority
is not binding upon another court of the same rank although it to the courts of other states in cases involving analogous prob-
may be followed for the sake of uniformity,' nor is the decision lems and enactments, but they are not binding precedents.
of an inferior state court binding upon any state court of higher Hence, it is only the highest court in the judicial system, na-
rank with appellate jurisdiction over it. . tional or state, that has ultimate authority to establish precedents
M there is no federal, general common law, and as the deci- binding within the legal province of its government; therefore
sions of the highest court of a state are conclusive in regard to only such court possesses power to overrule the precedents it es-
the meaning of state statutes and their validity under the state tablishes, and as the purpose of the stare decisis doctrine is to
constitution, the precedents established by the highest court of a give certainty to common law so that persons may act upon it
state are binding upon the federal courts in all cases originating with cpnfidence a court will not overrule its prior decisions ex-
in the state, except as to questions arising under the Constitu- cept for very cogent reasons.29
tion, statutes, or treaties of the United States. Precedents in Construction of Statutes
The Constitution of the United States25 provides that, "Full A settled interpretation of a statute by the judiciary has prac- '
Faith and Credit shall be given in each State to the public Acts, tically the same authority as the statute itself, therefore the rea-
Records, and judicial Proceedings of every other State," and al-
though the construction of this clause involves a federal question 29 "The follo.w ing are reasons injured by overruling it, yet less
so that its interpretation by the Supreme Court of the United which are properly influential in in- harm will result from that course
ducing a court to overrule one of its than from allowing the decision to
States is controlling, "it is now finally and firmly settled that a former decisions: (a) That it was an stand. But the fact that the appli-
judgment rendered by a court of competent authority, having ju- isolated decision, which has not been cation of a well-settled rule of law
risdiction of the parties and the subject-matter, in one state, is followed or acquiesced in, and is now will work hardship in the particular
conclusive on the merits in the courts of every other state, when deemed erroneous. (b) That the de- ('ase before the court is not reason
made the basis of an action, and in such action the merits cannot cision was rendered by a divided for overruling the prior decisions or
court, concerned a matter of great ceparting from them.
be inquired intO."26 However, this provision does not require importance, and is now seriously "The following are reasons which
"that judgments in one state shall be followed by the courts of doubted. (c) That it has been re- s?-ould influence a court against over-
other states as matter of authority in other similar cases. The ceived with general dissatisfaction ruling a former decision, notwith·
constitution does not deal with the question of the effect of such and submitted to under protest and standing the fact that it is now deem-
judgments 'as precedents, nor with the opinions of the courts ren- severely criticised and that its au- ed erroneous or open to grave ques-
thority is questionable. (d) That it tion: (a) That it has stood unchal-
dering them. It does not require the courts of one state to fol- is contrary to plain and obvious prin- lenged for a long period of years.
low those of another upon any question, whether upon the con- ciples of law, provided it has not be- (b) That it has been approved and
struction of local statutes or otherwise. ,., * ;0 The duty of come a rule of property or been fol- followed in many subsequent deci-
the courts of one state to follow those of another, upon questions lowed in numerous subsequent cases. sions of the same or other courts.
arising upon the construction of statutes of the latter, is a duty (e) That it was an innovation and is (c) That it has been universally ac-
contrary to the rule of law on the cepted and acted upon and acquiesc·
resting alone upon comity, and not one imposed by the federal
same subject which is of practically ed in by courts, the legal profeSSion,
constitution."27 Consequently, the judgment of a court of one universal acceptance in all other ju- and the public generally. (d) That
state is effective under the doctrine of res judicata in the courts risdictions. (f) That the rights or it has become a rule of property. (e)
of other states as to the points decided in a case of which it had interests of the state or its munici- That contracts have been made, bus-
jurisdiction; but it is not binding under the stare decisis doctrine palities, or of the general public, are iness transacted, and rights adjusted
upon the courts of other states in their decisions of other cases. 28 injuriously affected by the decision in reliance upon it, for such a length
The decisions of a court of one state applying common-law prin- ;11 question, but no private rights de- cf time, or to such an extent, that
pend upon its maintenance, and it is more harm would result from over-
%5 Art. 4, § 1, U.S.C.A.Const. ' 28 See 34 C.J. § 1602(1), pp. 1125-
erroneous. (g) That the decision was ruling it than from allowing the orig-
26 Black, p. 284. 1127. ",rong and produces general incon- inal error to stand uncorrected."
27 Wiggins Ferry Co. v. Chicago & venience or injustice, and that, al- Black's Law of Judicial Precedents,
A. R. Co., C.C., 11 F. 381, 1882. though some private rights may be pp. 203, 204.
THE RANK AND INTERPRETATION OF LAWS Ch.7
by a primary right is threatened or infringed and entitles the sub- personality of a natural person begins with his birth; and except
ject or owner of the primary right to the appropriate legal relief. for those causes of action which are allowed by the law to sur-
The former protects, the latter remedies. vive, it may be said that the legal personality of a natural person
ends with his death.
PERSONS ACTS
39. Persons, in law, are entities having capacity to own or be 40. ' Acts, which compose the contents or'legal rights, are external
bound by legal rights. manifestations of the wills of persons.
~~~~~ee be:om~
shadowy subservience to sovereignty evidenced by the socage
would thus tenant to the original lord: in Plac! tenure became distasteful, and many of the colonies, upon attain-
of his f::S~0~~ !~~~:~~n:hehal°~ever'h~ part (not the whole)
Ienee IS own tenant; that is, 7 Burdick on Real Property, (here-
inafter cited "Burdick"), pp. 52, 53.
15 Bowman, p. 151.
110 PROPERTY Ch.9 § 4 ;) OWNERSHIP 111
ing their independence, at once passed acts, either abolishing all intermingled strips. (3) The manor was managed and operated
tenure in terms or declaring their lands for the future to be held as an entirety by the lord's steward or bailiff. (4) The lord held
upon an allodial (in contradistinction to feudal) tenure."8 a 'court' for the tenants, which was partly a council exerciSing
general governmental power and partly a judicial tribunal with
The Feud or Tenement civil and criminal jurisdiction in applying the customs of the
The foundation of tenure was the feud or tenement, usually manor." 10
consisting of possessory rights in land held in demesne (domin-
ion, possession), or nonpossessory' rights of lordship over land in Abolition of the Feudal System
the demesne-of a tenant, "but it might be a right to nominate the The feudal system was strong in England during the .reigns of
parson of the parish church, to take a rent, to collect a toll, to William the Conqueror and his immediate successor, but from
operate a mill, to hold an office in the manor, to receive a revenue the accession of Henry I it began to lose its military character
in money or provisions, or any other valuable right capable of until, during the reign of Charles II in 1660, a statutel l was en-
being held of a superior. These rights of lord~hip and other acted which provided that lands held in tenure by knight service
nonpossessory rights were the mysterious 'incorporeal- heredita- should thereafter be held by free and common socage and that
ments' of later days. The greed of the lords and the ingenuity of all future grants of hereditaments should be held in socage
the NOrIl!an lawyers permitted few such rights to escape the sys- tenure. This statute may be said to have terminated feudalism
tem of feuds."· . as a system in England.
The Manor
The manor was a unit in the feudal system of landholding.
All the tenants of a manor held their lands dependently of the OWNERSHIP
lord of the manor, a manor being "a district or large tract of land
granted to a lord with power to parcel the land among subordin- 45. "Ownership," in the law of property, means the totality of
ate tenants on condition of the rendition of services by them, and rights, powers, privileges and immunities which constitute
complete property in a thing. u
with power to hold a 'court'; that is, a general governing coun-
cil, for administering the customs of the manor, settling disputes
In this sense ownership is not a simple concept, but consists
of property between tenants, and determining their feudal rights
and duties. «< «< «< The characteristics of a typical manor, rather of a complex collection of interests or rights in or to a
any of which, however, might be lacking in individual manors, thing of economic value. Thus, a person having complete own-
were the following: (1) The manor coincided geographically ership of a thing not only has the right and power to convey it
to another but he also has the rights 'o f possession and use and
with the vill or township: It was, in fact, a feudal organization
superimposed upon an Anglo-Saxon village community. The to direct how it shall be disposed of upon his death. However, '
same group of men who, in private law, were lord and tenants the property in a thing may be divided and the right and power
to convey it may be vested in one person while the rights of pos-
of the manor, owing duties to one another, were, in public law,
inhabitants of the vill, owing duties to the crown or state. (2) session and use are in others. For example, the owner of land
Within the manor, the lord and each tenant,' free and unfree, had may lease it to another. The result is a division of the rights of
his house and arable lands, and all had rights in common in the complete ownership. Both the lessor and lessee have interests in
the land secured by legal rights. , The rights of possession and
wood and pasture land or 'waste.' The arable lands of the entire
manor usually lay in two or three great fields, and in these fields use are in the lessee by reason of the interest he acquired with
the lands of the lord of the freeholders, and of the villeins lay in the lease, but the lessor, by not having conveyed complete owner-
8 Minor & Wurts on Real Property, ed without obligation of vassalage or 10 Bowman, pp. 148, 149. "owner" and "ownership" see Re-
p. 12. "Allodial," meaning free; not fealty; the opposite of feudal. 1112 Car. II, c. 24, §§ 1, 2, 4. statement of the Law of Property,
l!!olden of any lord or superior; own- 9 Bowman, pp. 147, 148. 12 For a discussion of the terms Vol. 1, § 10, and comments, pp. 25-30.
112 PROPERTY
Ch. 9 § 47 CORPOREAL AND INCORPOREAL PROPERTY 11~
'shi?, has retain:d an intere~t which is protected by the law and stances of different cases. Actual possession is a factual con-
which he can alIenate, subject to the lease.13
cept and its elements are relative. Thus, the requirement that a
Restrictions on Ownership person must have physical control of a thing to be held as in pos-
session of it does not necessitate an absolute control but only
The Constitution of the United States14 provides in substance such as the nature of the thing permits. Actual possession of a
that no person shall be deprived of his property interests or rights thing may be rightful, that is legally consistent with the rights
by the federal or state governments without due process of law, of the owner, or it may be wrongful, in violation of the legal
but thes: guar~tees do not prevent property interests and rights rights of the owner.
from bemg subJect to various general restrictions and conditions
so long as such limitations are imposed and effected by "due proc- The requirements that must be met to establish actual posses-
ess.of law"; and, ~sing the term "property" to denote the things sion need not be satisfied to invoke the protection provided by
WhICh are. the o~Jects of property rights as well as such rights, the legal doctrine of constructive possession, a device of the law
property IS subJect to the following general conditions: (1) used for the purpose of achieving various desired ends. Under
this doctrine a person who is entitled to actual possession of a
Property must be used so as not to interfere with the rights of
?thez:;; (2) 'f!1e property of a person may be taken for the sat- thing which is in the actual possession of no one, is regarded as
~sfactIOn of ~IS debts; (3) The property of a person is held sub- being in possession of it. Consequently anyone stealing the thing
Ject to the right of the government to tax it; (4) The property may be held guilty of larceny.
of a perso"? may be taken for public use, upon payment of just
compensatIOn, through the eminent domain power of the gov- CORPOREAL AND INCORPOREAL PROPERTY
ern.ment; ~d, (5) The property of a person is held subject to
valId exerCIses of the police power of the state, which is the pow- 47. Property rights, according to the tangibility or intangibility
er of government to make reasonable regulations for the general of their objects and the authority of their owners to possess
welfare. their objects, are either corporeal or incorporeal.
time required by the statute of limitations. And they may be Profits a Prendre
terminated by: (a) release; (b) license to the servient owner' A profit a prendre, analogous to the old common-law right of
(c) abandonment; (d) obstructions amounting to abandonment; common, is a right of one person in the lands of another which
(e) merger; (f) operation of law; (g) adverse possession; (h) entitles the owner of the right to participate in the profits of the
cessation of their necessity; (i) appropriation to public use. land. That is to say, a profit a prendre is a right to take profits
The principle rights and incidents arising from easements are: from the land; its soil or produce. Such a right is distinguish-
(a) the dominant owner must use his easement, and the servient able from an easement in that the latter does not entitle its own-
owner his estate, in a reasonable manner; (b) the dominant own- er to take profits from the land. Profits a prendre may be cre-
er must repair the easement; and, (c) the servient owner must ated by grant or by prescription and may be as various as the
not obstruct the easement. nature of the soil and the things which grow thereon or which
are imbedded in it will permit.
The most important easements are the following: (1) Rights
of way, or the right of one person to have a passage on an estab-
lished line over land of another. (2) Highways, or a right of way Rents
enjoyed by the public. (3) Light and air, or an easement to the Rent, as usually understood, "may be defined as a compenslf-
uninterrupted flow of light and air to the windows or apertures tion, either in money, provisions, chattels, or labor, received by
of a building from over adjoining land. (Such rights may be the owner of the soil from the tenant thereof. The term 'rent'
ac~ui~ed by grant, in this country, but not, as a rule, by pre- is used, however, in different senses, and in its largest sense it
SCriptIOn.) (4) Lateral and subjacent support, the former be- means all the profits issuing out of lands in return for their use.
ing the right to have one's land supported in its natural state In the sense that rents issue out of the thing granted, and are
so that it will not sink when an adjoining owner makes an exca- no part of the thing or of the land itself, they are incorporeal
vati?n. (The right of subjacent support is similar, but applies to hereditaments."26
vertIcal rather than to horizontal situations and arises when the
surface of land and the strata beneath are owned by different Franchises
persons.) (5) Party walls, or a right in a wall between two es- A franchise has been d€'fined as "a special privilege or immuni-
tates which is used for the common benefit of both. (6) Ease- ty of a public nature, conferred upon individuals by legislative
ments in water, and, more particularly, in water of artificial grant, and which cannot be legally exercised without such grant.
channels. "The owner of land fronting on a natural stream or • • • All franchises are supposed to be for the public good,
water course has, at common law, a right to have it maintained and a franchise is in the nature of a contract, being, on the one
in its natural c1;J.annel, without diminution of its quantity, or im- hand, a grant by the state or a municipality of certain rights and
pairment of its quality, excepting the reasonable use of the same privileges which could not be otherwise exercised, in considera-
by other riparian owner.s. Such a right, however, is a natural tion for certain benefits to the public to be supplied by the gran-
right, and is not an easement. Easements in water courses are tee. A failure of the grantee to . carry out the purposes for
usually found in connection with water flowing in artificial chan- which the franchise was granted gives cause for forfeiture of the
nels. There may be however, easements in connection with natu- franchise. Forfeiture, however, can be obtained only at the suit
ral streams."25 of the government. * * * Among the familiar illustrations
of franchises may be mentioned rights to collect tolls and charges
easements proper; that is, there is tate. They are illustrations of what in connection with public ferries, turnpike roads, public markets,
both a servient and a dominant es- are termed easements in gross." public wharves, and public bridges; rights to construct and op-
tate. Public easements are not strict Burdick, pp. 405--408. erate railroads; and rights to construct and maintain water
easements. They are enjoyed by the
25 Burdick, § 179, p. 433.
plants, gas plants, and electric light plants."27
public, and there is no dominant es-
53. Martial law consists of a system of precepts imposed and en. MARITIME LAW
forced by military power in time of war or great public dan.
ger. 54. Maritime law is that part of municipal law which relates ~
ticularly to traffic and business on the sea and other naVIga-
Martial law is comprised of such rules and methods of public ble waters, and adiniralty jurisdiction is the power .o~ a
control as are put into effect by the military establishment over tribunal to hear and decide certain classes of cases arlSmg
territory in which, by reason of war Qr public disturbance, the under maritime law.
civil governmen~ is displaced or is inadequate to preserve order
and enforce the ordinary municipal law. It is distinguishable Maritime law is that part of municipal law which deals ~th
from military law in that it is applicable to all persons within the ships, their crews and navigation, and which .relates to m~e
diStrict subject to it, whether soldier or civilian, and in that it is contracts, torts, crimes, and property, to marme transp~rtatlOn
not permanent but ceases with the emergency that brings it into of persons and property, and to water-borne commerce m gen-
effect. eral. Admiralty jurisdiction, on the other hand, is the power t?
There are three kinds or grades of martial law: "(a) Mili. hear and decide certain classes of cases which arise under mari-
tary government, or the law of military occupation, by which time law exercised by special tribunals or courts the procedure
in time of war a military commander governs the invaded terri. of which'differs from that of ordinary courts in. many partic~
tory of an enemy in derogation of the ordinary law. (b) Mili. lars, but principally in their authority to proceed.m ~em; that IS,
tary law proper, by which in time of war a military commander against the offending vessel or cargo, instead of m personam, as
governs disloyal or disaffected domestic districts, so far as is in the ordinary courts, against the owner or owners summon~
r~quired by military necessity and the public safety, in deroga. to appear and defend. "The extraordinary power to pro~eed .m
tIon of the ordinary law. (c) Qualified martial law, or military rem, like most of the other peculiarities of procedure w~lCh ct,rr-
authority, by which in time of great public tumult or disaster ferentiate courts of admiralty from the ordinary courts, .IS deriV-
the military arm of government aids the civil authorities in sup- ed from the Civil law of Rome. It is based on the practical con-
pressing violence and enforcing the ordiriary law."16 venience of obtaining a monetary satisfaction for a maritime
tort or breach of contract by arresting the offending vessel or
The authority to proclaim military government as an act of other maritime property and subjecting it to judicial sale, al-
war in the invaded territory of an
enemy is recognized by in. though the owner or owners may be citizens of and resident in
ternational law as vested in the commander of the invading foreign states, and thus be beyond the power of the co~ to make
army. However, "the authority to proclaim martial law proper, them defendants by means of a summons or other ordinary proc-
as an act of government within the United States, according to ess. When the court in such a case has observe~ t~e pro~r
the prevailing view- there has been some difference of opinion- jurisdictional steps of seizing the property and publIShing ?O~lCe
is vested by the Constitution in Congress, but in cases of immi. of the proceeding, its decree and the subsequent sale are ?mdmg
nent peril, when action by Congress is not promptly available it upon persons in every part of the world and are recogruzed as
may be put into effect, temporarily, by the PreSident, subject'to valid by every court of admiralty in the world"18
approval by Congress."17 Authority to impose qualified martial
law in aid of civil authorities for the suppression of violence and 18 Bowman, pp. 121. 122.
~he enforcement of the ordinary municipal law during periods of
16 Bowman, pp. 119, 120. thorities collected in 45 L.RA.,N.S.,
17 Bowman, p. ' 120. .And see au- p. 996 et seq.
SMITH EL.LA W2d
132 DIVISIONS OF LAW Ch. 10 §55 CONFLICT OF LAWS 133
erative there as a matter of interstate courtesy. The only law
CONFLICT OF LAWS operative in Wisconsin is Wisconsin law. But the law of Wis-
consin is not limited to those rules governing transactions taking
55. The Conflict of Laws is that part of the law which deals with place there between its citizens. It contains also rules for deter-
the extent to which the law of a state operates, and deter· mination of the effect of the foreign elements in a given case. It
mines whether the rules of one or another state should
is the Wisconsin law of Conflict of Laws which declares that
govern a legal situation. A Conflict of Laws problem is
presented whenever a legal controversy arises in which personal property of an intestate is to be distributed according
there is a foreign element.19 to the law of the intestate's domicile at the time of death. That
rule is law in Wisconsin, and declared through its · courts, as a
The laws of different states or jurisdictions vary in many par· matter of general policy and convenience. '*' '*' 41< The same
ticulars, and a case which contains one or more foreign elements line of reasoning applies in other situations presenting a foreign ·
derived from one or more foreign jurisdictions requires resort law element. A plaintiff seeks to recover in a Minnesota court
to the precepts of conflict of laws. "No state can make a law for a tort which he says was committed upon his person in Wise'
which by its own force is operative in another state; the only law consin. The Minnesota court, in passing upon the question of
I in force in the 'Sov,ereign state is its own law, but by the law of the defendant's liability, will settle it according to the rules pre-
each state rights or other int~rests in that state may, in certain vailing in Wisconsin, where the alleged wrong took place. This
cases, depend upon the law in force in some other state or states. is not because the Wisconsin law of torts has, for the time be-
That part of the law of each state which determines whether in ing, an extraterritorial operation through the courtesy of Minne-
dealing with a legal situation the law of some other state will be sota, extended by means of its courts. It is because the rules of
recognized, be given effect or be applied is called the Conflict of Conflict of Laws form part of the common law of Minnesota,
Laws."2O and the Conflict of Laws principle applicable is that the liability
For example: "A man domiciled in Minnesota dies, leaving a for an alleged tort is determined by the law of the place where it
large personal estate, some of which is situated in Wisconsin. occurred. Minnesota law governs, but Minnesota Conflict of
When the dead man's estate is administered, it will be distribut- Laws principles, not the local tort rules of Minnesota, govern in
ed according to the Statute of Distributions in Minnesota, the this case."21'
state of his domicile. But that does not mean that this law of The States of the Union are separate sovereignties except to
Minnesota reaches over into Wisconsin, and is allowed to be op- the extent that the Constitution of the United States provides
19 Goodrich on Conflict of Laws, 2d ing. The principles of this subject to the contrary, and consequently the recognition to be given in
Ed., § 1, p. 1. are the commands of the sovereign one state to the law of another is determined by the precepts of
The name "Conflict- of Laws" and in a given state and are not interna' conflict of laws prevailing in the former, as would be the case
the most common ' alternative, "Pri- tional; they determine private rights if the law of a foreign nation were involved. However, by reason
vate International Law," are not en- of individuals who may belong to the of the federal constitutional requirement that "Full Faith and
tirely accurate or appropriate. The same nation. "Despite inaccuracies,
however, the best scholars incline to
Credit shall be given ill each State to the public Acts, Records,
term "Conflict of Laws" suggests two
laws struggling to master a given reject the more or less fanciful term . and judicial Proceedings of every other State,"22 the refusal of
situation, and this is inaccurate as which have been offered as a sub tI· a State court to give a lawful judgment rendered by a court of
the rules of the subject are used to tute for the two mentioned. No en· another State the same force and effect that it has in the State
select the precepts which govern a tirely satisfactory name has been sug· where it was rendered, may be a denial of a constitutional right
g;ven legal situation. On the other gested; the established ones do no and subject as such to reversal for error by the Supreme Court of
hand, the term "Private International harm if treated as mere names and
Law" is inaccurate as the rules of not as supposedly accurate de crip-
the United States. Such cases are governed by the United States
the subject are not a "private species tive terms." Goodrich on Conflict of Constitution and the acts of Congress passed thereunder, rather
of the body of rules which prevails Laws, 2d Ed., p. 7. than by the rules of conflict of laws.
between one nation and another," as
tt.ey should be if the word "interna- 20 Restatement of the Law of COD- !l Goodrich on Conflict of Laws, 2d 2.~ Art. 4, § 1, U.S.C.A.Const.
tional" is taken in its accepted mean- flict of Laws, § 1, pp. 1, 2. Ed., p. 10.
..
PART 2
THE SUBSTANTIVE LAW.
CHAPTER 11
CONSTITUTIONAL LAW
56. In General.
57. Taxation.
58. Police Power.
IN GENERAL
by the state. (d) Contracts between 'private persons. The con- as the courts have the power to enforce their judgments, their
~racts thus protected from impairment by the constitution do not determination of such questions is final; and as their decisions are
mclude--(a) Statutory grants of mere licenses or exemptions. entitled to respect and obedience as precedents, their expositions
(b), The tenure of public offices. (c) illegal or immoral con- of the Constitution are authoritative and binding."33
tracts. (d) Judgments of the courts. (e) The status created It is the business of the courts to interpret and apply the law
by marriage."~"
to cases brought before them. "In so doing, they must deter-
A law is contrary to this provision and is void if it: "(a) Pre- mine what is the law applicable to a particular case. A statute
cludes a recovery for breach of the contract. (b) Excuses one which, if valid, will govern the case, is presumptively the law for
of ~he parties from performing it. (c) Renders the contract in- its decision. But a statute is the expressed will of the legislature,
vah.d. (d) ~ts new terms into the contract. (e) Enlarges or while the Constitution is the expressed will of the people. The
abrIdges the Intention of the parties. (f) Postpones or accel- latter is paramoUilt. If the statute conflicts with it, [the stat-
erates the time fo~ performance of the contract. (g) Interposes ute] is invalid. • • • When this question of unconstitution-
such obstacles to Its enforcement as practically to annul it."30 al legislative action is raised, in such a manner as to become
The obligation of a contract "is that duty of performing the necessary to the determination of the pending cause, the court
c~ntract, according to its terms and intent, which the law recog- must decide it; and if it shall find that the statute is in violation
nIzes and enforces,"31 and is distinct from the remedy for its en- of the Constitution, and therefore not law, it must so declare,
forcement. "~atever pert~ins merely to the remedy may be and decide the case accordingly. This is the whole rationale of
?han?~d or modI~ed, .at the dIScretion of the)egislature, without the power of the courts to adjudge statutes invalid."3!
ImpaIrlng the obhgatIon of the contract, provided the remedy be A question of the constitutionality of legislation will not be de-
not wholly taken away nor so hampered or reduced in effective- cided unless it is imperatively necessary to the right disposition
ness as to render the contract practically incapable of enforce- of the case and, "unconstitutionality will be avoided, if possible,
ment."3~
by putting such a construction on the statute as will make it con-
Interpretation of Oonstitutions form to the Constitution."35 Every presumption is in favor ' of
the constitutionality of a legislative act, and a statute cannot
The .jud.icia~ department of the government is the final and be declared void on considerations going merely to its policy,
authOrItatIve In~erp:ete~ of the constitution. "Even though a propriety, wisdom, or expediency. Where part of a statute is
~tatute m:=ty be In VIolatIOn of a provision of the Constitution, it unconstitutional, and the remainder is valid, the good and bad
IS not .VOId, but. o~l~ voidable at the instance of some person parts will be separated, if possible, and that which is ,con-
whom It affects mJurIously. And it does not belong to any offi- stitutional will be sustained. A decision against the constitution-
<;er ~f. the ~xecutive department of the government, nor to any ality of a statute, rendered by a competent court in a proper case,
admInIstratIve. bo~rd or commission, to declare an act of the legis- leaves the statute entirely void and inoperative.
l~ture unconstItutIonal. On the contrary, it is the duty of all pub-
hc officers t? o?ey a d~y enacted statute, however repugnant Rules of Oonstruction
~o th~ ConstItutIOn, until some one whose rights it invades calls The principal rules of construction employed in the interpre-
In the. aid. of !he judicial power to pronounce it Void. But as the tation and application of constitutions are as follows: (1) A
GonstItu~IOn IS a law, and questions concerning its Scope and in- constitution is not to be interpreted on narrow or-technical prin-
te~retation, and of the conformity of public and private acts ciples, but liberally and on broad, general lines, in order that it
to ItS behest~, are questions of law, the ultimate determination
may accomplish the objects of its establishment and carry out
of su;h questIons must belong to the department which is charg-
the principles of government. (2) A constitution must be so
ed WIth the function of ascertaining and applying the law. And
construed as to give effect to the intention of the people who
29 Black, §§ 275--277, p. 714.
31 Black, § 273, p. 711.
30 Black, § 274, p. 711. 33 Black, p. 54. 35 Black, § 41, p. 68.
32 Black, § 283, p. 736. Sf Black, p. 55.
'TAXATION 145
CONSTITUTIONAL LAW Ch.11 § 57
POLICE POWER
Moral Turpitude well as civil. disqualification make the definition still impor-
tant." 10
A distinction is also made between crimes which involve "mor-
al turpitude," and those which do not. Such a crime has been de- Sources
fined as, "an act of baseness, vileness, or depravity in the private
The most important source of criminai law in the United States
and social duties whIch a man owes to his fellow man or to so-
is the common law of England, but there are no common-law .
ciety in general, contrary to the accepted and customary rule of
crimes against the United States. "In the earlier decisions it was
right and duty between man and man." 6 The presence or ab-
sence of moral turpitude becomes important "in certain special held that the federal courts had jurisdiction of common:law of-
proceedings such as disbarment of attorneys, deportation of fenses against the United States on the theory that the exercise
of such a power was necessary for the preservation of establish-
aliens, revocation of 'physicians' licenses, in cases involving the
ed government. Later cases, however, definitely .established .the
credibility of witnesses, in cases of defamation involving the im-
putation of crime, and in cases in which conviction of a crime rule that there are no common-law offenses agamst the Umted
involving moral turpitude, is made ground for ' divorce." 7 States and that a statutory authority must exist for declaring
any act or omission a criminal offense. It is equally true that
the statute must provide punishment, and a failure to do so re-
Infamous Crimes sults in the discharge of a person accused thereunder. However,
/
Still another classification is that of "infamous crimes." At it has been decided that when Congress has by statute referred
common law, an infamous crime was one "the commission of to or adopted a common-law offense, without further definition,
which was inconsistent with the common principles of honesty the common-law definition must be followed." 11
and humanity. Infamous crimes were treason, felony, all of- The criminal law of the several states is either prescribed by
fenses founded in fraud and which came within the general no- their constitutions and statutes or is founded on the common law
tion of the crimen falsi 8 of the civil law, piJ;acy, swindling, cheat- of England. In the states which have expressly adopted English
ing, barratry, and the bribing of a witness to absent himself common law by constitutional or statutory provision the common
from a trial, in order to get rid of his evidence. Within the law has been widely altered by statute. Nevertheless it is fre-
meaning of the phrase as used in the United States Constitution,· quently stated in such states that except as it has been alte:-ed
a crime is infamous if ,it be punishable by imprisonment accom- by statute the English common law is their law so fa:- ~ applrca-
paiiied by hard labor. In some states the rule is that infamy may ble to local, present conditions. "On the other hand, It IS express-
be determined either by the nature of the crime, as at common ly provided by statute in a number of states th.at no act or 0I?is-
law, or by the nature of the punishment which may be inflicted, sion is criminal or punishable, except as preSCrIbed or authOrIzed
as in the federal cases. At J:!ommon law the question was of im- by code or statute. In a few states it is required that the cr~e
portance largely in determining th~ competency of a witness. At to be punishable must be defined by the'statute. Generally It IS
the present time this is a matter of less importance; but both held to be sufficient that the crime be declared by statute and
under the Federal Constitution and the Constitutions and stat- that the common law may be looked to for the definition thereof
utes of the various states other considerations of procedure as as well as for construing the statute." H
ELEMENTS Act
The act which an offense requires varies with each crime. "In
60. A common-law crime consists of two elements: some cases it is a physical or muscular movement or perform-
ance; in others it is an omission to act. Sometimes it involves
(a) The criminal act or omission, and
passive participation in the muscular act of another, and again it
(b) The criminal.i?ten,t or state of mind of the actor required involves such conduct as 'possessing' or 'belonging.' . Sometimes
by the ~efimtlOn of the particular crime to exist in concur- the defendant's act is criminal or not, depending on the existence
rence wIth the act. of some status or relationship such as marriage." 15 To constitute
a crime "act and intent must concur, except in the case of crimes
Intent which do not require intent." 16
It ~ a ge~~ral pr~ciple of the common law that a crime is not
~ommItted if the mmd of the person doing the act in question is Capacity'
mnocent. .. ,., ,., Hence it is said that every crime at least To be liable for a crime the actor must have had the capacity to
at ~o~on law, consists of two elements, the crimin;l act or possess the required intent at the time of his act, consequently
omISSIon and the mental element commonly called 'criminal in- persons with insufficient mental capacity to entertain criminal in-
tent' .o~ 'men~ ~ea.' "13 Generally, when a person capable of en- tent are not responsible or liable for their criminal acts. Thus,
tertammg ~rImmal intent and acting without justification or ex- at common law, "the rule was that a child under 7 was incapable
cuse commIts an act prohibited as a crime his intention to commit of committing crime; as to a child between 7 and 14 there was a
the act CO~!itut:s criminal intent and in such a case the exist- rebuttable presumption of incapacity; after 14 there was a re-
ence of crImmal mtent is presumed from the commission of the buttable presumption of capacity. Under the statutes the com-
act on the theory that a person is presumed to intend his volun- mon-law rule has been followed generally, except that the age
tary acts and their natural and probable consequences. How- classifications have been slightly altered in some of them. In
~ver,. wh:n ~ crime consists not merely in doing an act but als~ practically all states juvenile courts have been established and a
m do~g It WIth a specific intent, the existence of such intent is an theory of juvenile delinquency substituted for criminal responsi-
essent~al. element of the offense and is not presumed from the bility. To a large extent, but not entirely, this has displaced the
COmn:ISSlO~ o~ t~e act. Such intent must be proved. Another common law ideas of criminal responsibility of children." 17
techm.cal .distm~tlOn of mental state is that designated as "con- In criminal law "insanity is any permanent defect or disease of
structIve mtent which applies where a person engaged in an un- the mind which renders a person incapable of entertaining a
lawfu~ act commits another unlawful act he did not intend to criminal intent, [and] incapacity to entertain a criminal intent
comm~t. Under the .dQctrine of constructive intent, the intent to renders one criminally irresponsible for his acts committed
commIt the fi:st act I~ ca~ried over to the act actually committed. while so incapacitated." 18 However, insanity is a form of mental
Generall~, thIS do.ctrme IS applied only in situations where the incapacity which may be urged as existing at the time of ar-
first act IS ~alum m se. It is sufficient in cases which require on- raignment or trial, to prevent going to trial, and which may be
ly g~ne~al mtent but has no application in cases that require a
speCIfic mtent.
15 Miller, § 22, p. ,77. be proximate, defendant's act need
The various classes of intent known to the ~ommon law h be only a contributing cause, as in
been reenact-ed'm s t atutes, and "the statutes have also made wide
ave 16 Miller, § 21, p. 73. the case of concurrent acts of tw~
"Some causal relationship must ex- persons acting with a common design,
use of such words as 'malice,' 'willfully,' 'wantonly' 'knowingl ' or in some instances if they be con-
and. 'negr.Igentl' ' a 1so created large numbers
d h ave ,y , i t between defendant's act or the
~,an of offens- act of another in his behalf, and the current, but independent of each oth-
es m WhICh no mtent at all is required." 14 . prohibited result which constitutes er." Miller, § 23, p. 82.
tbe crime. This causal relationship 17 Miller, § 34, p. 119.
13 Miller, pp. 52, 53. i said to exist when his act was the
14 Miller, § 20, p. 68. proximate cause of the injury. To 18 Miller, § 36, p. 125.
SPECIFIC CRIMES 155
154 CRIMINAL LAW Ch.1::: § 61 .
f of law cre-
urged as existing at the time of sentencing, to prevent the im- mental disability, but solely by way of an e~m:.Io~volved and
position of sentence, as well as an incapacity which may be ated because of the international problem w c IS. d b; the
the immunity is regarded not so much as one en~oy\
urged as existing at the time the alleged crime was committed
diplomatic agent himself as by the governmen~ Whi~h e repre-
to prevent a finding of criminal liability therefor. 19
sents."24
In regard to intoxication and capacity for crime: "voluntary
drunkenness furnishes no ground of exemption from criminal re- SPECIFIC CRIMES
sponsibility or limitation thereof, except (a) where drunkenness
has produced insanity, in which case the exemption is based on 61. Crimes are divided into:
insanity, not on drunkenness; (b) where a specific intent is es-
sential to constitute the crime, in which case the fact of intoxica- (a) Treason, .
tion may negative its existence; (c) where the fact of intoxica- (b) Felonies, and
tion may show provocation, in which case the degree of the of- (c) Misdemeanors.
fense may be rendered less thereby." 20
And for definitive purposes are classified as being against:
Concerning married women and their capacity for crime: "the
common-law rule is that if a married woman, in the presence of (a) The person,
her husband, commits an act which would be a crime under other (b) The habitation,
circumstances, she is presumed to have acted under her hus-
band's coercion and such coercion excuses her act; but this pre- (c) Property,
sumption may be rebutted if the circumstances show that in fact (d) The public health, safety, comfort, and morals,
she was not coerced. The present tendency in the United States
(e) Public justice and authority, '
is to abrogate this rule." 21 This rule of the common law is also
subject to exceptions "in case of treason, murder, probably rob- ({) Public peace,
bery, and ·of those crimes which are from their nature generally (g) The existence of government, and
committed by women." 22
(h) The law of nations.
Corporations have been regarded as incapable of crime. How-
ever, the incapacity of corporations to commit crimes is not men-
tal in character, but is rather the result of their peculiar legal Treason . d
C. t common law are divided into treason, felomes, an
status which makes difficult the application to them of the con-
cept of moral, personal responsibility which still pervades large
mis~:e:a:ors and the statutes have generally followed the ~~
. . n "Under the old English common law, treason was VI.
sections of the criminal law. "Originally corporations were com- diVISIO . . ting in certam
d . to high and petit treason, the former ~onsIS
pletely exempt from criminal responsibility. Gradually the law em. . and the latter in the murder of a su-
recognized their liability in cases of nonfeasance and later in acts agamst the SOVereIgn,. . b d b hIS· wife a master
. inf . r· that IS of a hus an Y ,
many cases of misfeasance. Most jurisdictions stop at this point, penor by an eno '1 d ~rdinary by an inferior ecclesiastic.
but a few have gone so far as to hold corporations criminally lia- by his .servalnotn'go:r ~u~~ ~o;rime as petit treason, the offense be-
ble in cases involving personal violence and particular types of There IS no .. " 25
~riminal intent." 23
ing regarded simply as homICIde. .
\
In the United States, ambassadors and other diplomatic agents In the United States the crime of treason is defi~e~ ~~ t~~~!
of foreign governments are exempt from' criminal responsibility. 1 constitution 26 which declares: "Treason agams e. d
era '. . I . War against them, or m a -
"In this case, of course, the incapacity is caused in no way by States, shall COnsISt o~IY m. ~vymg .d d C rnfort." This
hering to their EneIDles, gIvmg them Ai an 0
19 See Miller, § 35, p. 122. 22 Miller, § 44, p. 142. 28 Art. 3, § 3, U.S.C.A.Const.
20 Miller, § 42, p. 137. 24 Miller, pp. 150, 15t.
23 Miller,' § 45, p. 144.
21 Miller, § 44, p. 142.
25 Miller, p. 41.
156 CRIMINAL LAW Ch. 12 § 61 SPECIFIC CRIMES 157
section also provides: "No Person shall be convicted' of Treason plied malice is sufficient for second degree J:.Ilurder. Second de-
unless on the Testimony of two Witnesses to the same overt Act, gree murder is also defined as a killing committed without delib-
or on Confession in open Court," and that, "The Congress shall eration or premeditation, or while committing a non-capital fel-
have Power to declare the Punishment of Treason." ony, or in killing another with a deadly weapon or with intent to
do mere bodily harm."30 .
Felony Manslaughter is the unlawful killing of one human being by
A felony is an offense which by the statutes or by the common another without malice aforethought. For example, killing on a
law is punishable with death, or to which the old English law sudden quarrel or in a transport of passion may be manslaught-
attached the total forfeiture of lands or goods, or both, or which er, as may also an inadvertent killing occurring in the ,commis-
a statute expressly declares to be such. "In some states the stat- sion of an unlawful act. Manslaughter is either "voluntary," .or
utes expressly declare all crimes to be felonies which are punish- "involuntary." Voluntary manslaughter is "an intentional kill-
able by death or by imprisonment in the state prison." 27 ing without malice. It occurs when the homicide is committed in
sudden mutual combat and when committed in passion and hot
Misdemeanor blood induced by great provocation. Such provocation must re-
Misdemeanors, generally, include all crimes which are less than sult from acts and conduct of the deceased and is ineffective to
felonies. "Crimes of lesser importance than felonies were orig- reduce the homicide from murder to manslaughter if induced or
inally called trespasses, but later came to be known as misde- sought for by the defendant. Both great provocation and great
meanors." 28 Such offenses are frequently defined as including passion must be present and must concur at the time of the hom-
all crimes not punishable either by death or imprisonment in the icide. If reasonable time for cooling and for the return of rea-
state prison. soned judgment elapses before the killing then it is murder." 31
Involuntary manslaughter, on the other hand, "is homicide unin- _
Crimes Against the Person tentionally caused and without malice, resulting from the com-
Crimes against the person include felonious homicide which is mission of an unlawful act not amounting to a felony, or from
t he killing of a human being by a human being without justifica- negligence or lack of caution, or absence of skill in the commis-
tion or excuse. It may be either murder or manslaughter. Mur- sion of a l~wful act, or from failure to perform a legal duty." 32
der is the unlawful killing of one human being by another with Mayhem consists of the violent infliction of injury upon a per-
malice aforethought. 29 At common law there are no degrees of son, rendering him less able to fight, annoy his enemy, or defend
murder, but most of the states have by statute divided the crime himself. "In the early development of the law of mayhem, mere
into two degrees and some into three. "First degree murder is disfigurement did not constitute the crime, but this was added by
usually defined in terms of premeditation and deliberation, in ad- statute and has been generally adopted in the United States also.
dition to malice. However, it is also defined as a felonious kill- At common law, mayhem was a misdemeanor except in case of
ing while committing or attempting to commit another felony, castration. It is a felony in most of the United States." 33 .
or by lying in wait, or by poisoning, or by the use of torture or Rape is the act of having unlawful carnal knowledge of a wo-
great cruelty. In some states first degree murder requires the man by forcf and against her will.. "Force may be ac~a~ o.r
existence of express malice in the mind of the accused while im- constructive, as where acqutescence IS secured by fear or mtlIDl-
27 Miller, p. 41. trasted with accident and mischance. dation or in some cases by fraud. Absence of consent may be
It is present when there is an in ten- actual' or it may be constructive, as where the woman is legally
28 Miller, p. 45. tion to cause death or grievous bod- incapable of consent, by reason of insanity, imbecility, or infancy.
ily harm, or knowledge th at one'
29 "Malice aforethought does not acts will probably so result, when The crime of manslaughter is divid-'
30 Miller, § 90, p. 273.
necessarily mean an actual intention committed in the commiSSion of a ed into differ ent degrees in d iffe rent
to kill the deceased, nor does it nec- felony or in obstructing an officer 31 Miller, § 92, p. 279. states.
essarily imply: deliberation, but de- who is making an arrest or prevent-
r,otes purpose and design as con- ing a riot." Miller, § 88, p. 263. 32 Miller, § 93, p. 285. 33 Miller, § 95, p . 290.
CRIMINAL LAW § 61 SPECIFIC CEDIES 159
158 Ch.12
The act of having carnal knowledge is now held to have occurred utes of the various states follow the language of this old statute
where the slightest penetration takes place, though it was for- generally, but differ widely as to details. It is a felony in most
merly held that an emission must occur." 34 jurisdictions."40
-A common or simple assault is an attempt or offer, with force
Crimes Against the Habitation
or violence, to do a corporal hurt to another. "The attempt or
offer must consist of an actual overt act, mere words or prepa- Crimes against the habitation include arson, which is a felony
rations being insufficient. The cases are not in accord as to the at common law and which consists in the willful and malicious
intent necessary for assault, but the better rule is that a general burning of the dwelling house of another. To constitute the
criminal intent is sufficient." 35 Distinct from "simple" assaults crime at common law: "(a) There must be some burning,
are "aggravated" assaults, the latter being "those which are ac- though it may be slight. (b) It must be a dwelling house, or
companied by' circumstances of aggravation, such as assault with outhouse used in connection therewith. (c) The house must
intent to kill, to rape, or to commit other serious crimes against belong to another or be occupied by another. (d) The burning
t he person. Statutes in the various states define aggravated as- must be done or caused maliciously."41
saults according to particular requirements therein set forth." 36 Burglary, at common law, is the breaking and entering of the
A battery, on the other hand, "is an assault, whereby any force, dwelling house of another in the nighttime with intent to commit
however slight, is actually applied to the person of another, di- a felony therein. To constitute the crime: "(a) There must be
rectly or indirectly. A general criminal intent is sufficient in bat- an actual or constructive breaking, and (b) An entry. (c) The
tery and may be found from circumstances of negligence and house broken and entered must be a dwelling house. An out-
constructive intent." 37 house within the curtilage is regarded as part of the dwelling
False imprisonment is any unlawful restraint of a person's lib- house. (d) The dwelling house must be that of one other than
erty and is committed "whenever a person detains the body of the accused. (e) Both the breaking and entry must be in the
another, by force actual or constructive, without his consent and nighttime. (f) And both must be with the intent to commit a
without legal cause. False imprisonment is a misdemeanor at felony in the ·house."~
common law and generally under tile statutes." 38
The crime of kidnapping "is a false imprisonment aggravated Crimes Against Property
by conveying the person imprisoned to another place. In some Crimes against property include larceny, which, at common
states a false imprisonment accompanied· by a mere intent so law "is the obtaining of possession of personal property, by tres-
, l
to convey is sufficient to constitute the crime."39 It is a misde- pass in the taking and carrying away of the same, from the pos-
meanor at common law, but has been made a felony, generally, session of another, and with the felonious intent to deprive him of
by statutes. . his ownership therein";43 and, at common law, larceny was divid-
The crime of abduction is generally defined as the taking of a ed into simple larceny and compound larceny. "Simple larceny
female without her consent, or without the consent of her par- was subdivided into grand and petit larceny. Compound larceny
ents or guardian, for the purpose of marriage or prostitution. consisted of simple larceny accompanied by circumstances of ag-
"It was probably not a crime at early common law, but was de- gravation. The distinction between grand and petit larceny was
fined by a statute enacted in 1488. [3 Hen. VII, c. 2.] The stat- abolished in England but persists generally in the United States.
Some compound larcenies are treated as such; others are defined
34 Miller, § 96, p. 293. 35 Miller, § 98, p. 302.
"Rape was originally a felon~ un- 40 Miller, § 104, p. 319. 42Miller, § 108, p. 330.
der the old common law. It was 36 Miller, § 100, p. 309. The common-law definition of and
made a misdemeanor by an early Miller, § 106, p. 323. requirements for burglary have been
37 Miller, § 101, p. 312. 41
statute and then again changed to a modified by statutes in various states
The statutory definitions of arson of the Union. .
felony. It is a felony in practically 38 Miller, § 102, p. 315. vary in the different states of the
all of the United States." Miller, § 43 Miller, § 109, p. 340.
97, p. 301. 39 Miller, § 103, p. 316. Union.
160 CRIMINAL LAW Ch. 12 § 61 SPECIFIC CRIMES 161
as distinct crimes. Other statutory changes have been made in Robbery, a felony at common law, is both a crime against
some jurisdictions."44 property and a crime against the person. It consists of the tak-
Embezzlement was not a crime at common law "but is made so ing of the personal property of another, from his person or in his
by statute, to punish the fraudulent appropriation of property presence, by violence or intimidation, against his will, and with
by one lawfully in possession before it has been in the possession intent to steal. To constitute the crime of robbery: "(a) The
of the owner, or by one who has lawfully obtained possession property must be such as may be the subject of larceny. (b) It
from the owner, and who in neither case is guilty of larceny, must be taken and carried away, as' in case of larceny. (c) It
because there is no taking from the owner's possession by an must be taken from another's person, or in his presence, and
act of trespass."45 against his will. (d) It must be so taken by violence or by put-
ting in fear. (e) It must be taken with intent to steal."48
A cheat, at common law, is the fraudulent obtaining of anoth-
er's property by means of some false symbol or token, such as, The receiving of stolen goods is perhaps a substantive misde-
when not false, is commonly accepted by the public for what it meanor at common law, but this is doubtful. However, it is very
purports to represent. The symbol, token, device, or practice generally made a crime by statute. To constitute the crime:
must be such that common prudence cannot guard against it. "(a) The property must have been stolen, and must retain such
"Among the various false symbols and tokens are false meas- character when received. (b) It must be taken into the posses-'
ures, false weights, false marks of weight, false stamps, coun- sion, though not necessarily manual possession, of the receiver,
terfeit orders, seals, dies, marked cards, etc. The statutory de- with the consent of the person from whom it is received. (c)
velopment of this crime has proceeded in two directions. The The receiver must know that it was stolen. (d) The receiver
first may be seen in the elaborate development of laws regulat- must have felonious intent."49
ing weights, measures, and containers used in trade and com- The crime of malicious mischief requires that property belong-
merce. In some states, departments of weights and measures ing to some one other than the accused be destroyed or injured
have been set up and given wide powers of administration, to an- by him with malice. "In some jurisdictions the malice must be
ticipate and to prevent, so far as possible, the misuse of such against the owner of the property. The accused may escape
articles, as cannot be easily guarded against by the use of com- liability by proving lack of malice or that he acted in good faith,
mon prudence."46 under an honest claim of right."50
The second division of statutory development of this crime has Forgery, a misdemeanor at common law, is the fraudulent
produced the offense of cheating, or obtaining property by false making or altering of a writing to the prejudice of the rights of
pretenses. Although not amounting to a common-law cheat, antI another. To constitute the crime: "(a) There must be a false
although not a crime at common law, obtaining property by making or alteration; (b) Of a writing or document, which, as
false pretenses is generally made a crime by statute and is defined made or altered, must be of apparent legal efficacy to impose a
as "knowingly and designedly obtaining the property of another liability or to change a liability; (c) The alteration,' if it be an
by false pretenses, with intent to defraud."47 alteration, must be material; (d) It must be made or altered with
intent to defraud."51
44 Miller, § 115, p. 370. false heirs; fraudulent issue of doc·
uments, and sale of stock; and many !\ufficient to secure the payment of "Although it is generally asserted
45 Miller, § 116, p. 374. others. One of the most important the check in full. Therefore, if the to be true, it is doubtful whether
46 Miller, pp. 381, 382. of these statutory offenses is that of check is postdated, it is usually held malicious mischief was a crime at
making and uttering a check with in· to be a mere promise to pay in the
47 Miller, § 118, p. 382. common law in England. However,
tent to defraud, and without uffi· future and hence not within the
cJent funds in the drawee bank, or it was adopted as a common-law
"Most of the states have, by stat- term of the statute." Miller, pp.
with no account there at aU. Thi crime in several of the states, and
ute, created a number of offenses, 390, 391.
is, of course, a form of obtaining has also been widely extended by
having the common element of cheat-
48 Miller, § 124, p. 391. statute in both England and the
ing or using fraudulent devices, as, money or goods under false pre-
tenses; i. e., in this case, that the 49 Miller, p. 396. United States." Miller, § 127, p. 400.
for example, false personation of
others or of officers; production of accused has on deposit an amount 50 Miller, § 128, p. 401. 51 Miller, § 120, p. 405.
SMITH EL.IJAW 2d- l1
162 CRIMINAL LAW Ch. 1:: § 61 SPECIFIC CRIMES 163
Crimes Against the Public Health, Safety, Comfort, and Morals
such acts openly and notoriously. "For a man and woman illicit-
This class of crimes includes public or common nuisances; big- ly to cohabit together, openly and notoriously, or for a person
amy; adultery; fornication; incest; miscegenation; sodomy; and to be guilty of any open and notorious lewdriess and indecency,
seduction. . "A common or public nuisance, which is a misdemea- is a crime at common law, as it constitutes a public scandal and
nor at common law, is a condition of things which is prejudicial nuisance."57
to the health, comfort, safety, property, sense of decency, or mor-
als, of the citizens at large, resulting either (a) From an act not Incest, although not a crime at common law, is generally de-
warranted by law, or (b) From neglect of a duty imposed by clared so by statute. It is defined as, "illicit sexual intercourse
law."52 between persons who are related within the degrees of consan-
Bigamy, or polygamy, "became a crime in England, by statute guinity or a~ty wherein marriage is prohibited by law."58
in 1604, (1 Jac. 1, C. 11], and has been declared by statute in all Miscegenation, or intermarriage between persons of the white
of the United States. It is committed where one, being legally and negro races, or the living together of such persons in adul-
married, marries another person during the life of his or her wife tery or fornication, is a statutory crime in some of the states.5~
or husband";53 but the statutes in this country "generally ex-
Sodomy, or buggery, "is carnal copulation against the order
cept from their operation a person whose husband or wife has
of nature by man with man; or in the same unnatural manner
been absent for a certain number of years without being known
with woman; or by man or woman in any manner with a beast.
by such person to be living within that time."54
Bestiality is carnal copulation by a man or woman with a
Adultery has been recognized by some courts as a common-law beast."60
misdemeanor, but others have held that it is not a crime unless
made so by statute. The definitions of the crime vary. Thus, Seduction is defined as, "the act of a man in enticing an unmar-'
"(a) In some states it is voluntary sexual intercourse between ried woman of previous chaste character, by means of persuasion
persons one of whom is lawfully married to another, both par- and promises, to have sexual intercourse with him."61
ties being guilty. (b) In other states it is such intercourse by a To procure an abortion is to cause the miscarriage or prema-
married person with one who is not 'his or her wife or husband, ture delivery of a pregnant woman; and to commit such an act
the married person only being guilty. (c) In other states it is after the child has quickened, although with the mother's con-
such intercourse with a married woman by one not her husband, sent, is a misdemeanor at common law. However,. "there are,
both parties bemg guilty."55 statutes in most of the states making it a felony to procure an
Fornication is "voluntary unlawful sexual intercourse, under abortion, whether the child has quickened or not."62
circumstances not constituting adultery; a single act of fornica- In addition to the common-law crimes and statutory offenses
tion is not a crime at common law but is made so in some states that have been enumerated, "the Congress of the United States
by statute."56
has defined a number of crimes which, come within this classifi-
The common law does not punish acts of adultery or fornica- cation; examples of which may be found in laws to prevent inter-
tion committed privately but it does punish those who commit state traffic in obscene literature, diseased persons, animals or
"To utter a forged instrument is tering is declared to be forgery." plants, lotteries, white slaves, stolen motor vehicles, intoxicat":
to offer it, directly or indirectly, by Miller, pp. 413, 414. ing liquor, and to prevent smuggling into the .United States from
words or actions, as good. This, if
foreign countries."63
Gone with intent to defraud, and with 52 Miller, § 132, p. 415.
kno.wledge of the falsity of the in-
~trument, being an attempt to cheat, 53 Miller, § 133, p. 423. 57 Miller, § 138, p. 433. crime at common law, but it is made
is a misdemeanor at common law. flO by statute in m9st of the states."
54 Miller, § 134, p. 427. 58 Miller, § 139, p. 434.
0;< • • Uttering and forgery are Miller, § 142, p. 438.
lJOt different degrees of the same of- 59 See Miller, § 140, p. 436.
55 Miller, § 136, p. 428.
62 Miller, § 144, p. 444.
fense, but are distinct offenses, al- 60 Miller, § 141, p. 437.
though in SOme states by statute ut- 56 Miller, § 137, p. 432.
61 "Seduction is probably not a 63 Miller, § 145, p. 445.
SMITH EL.LA W 2d
SPECIFIC CRIMES 165
164 CRIMINAL LAW Ch. 12 § 61
Crimes Against Public Justice and Authority Perjury, at common law, "is the willful and corrupt givin~, up-
on a lawful oath, or in any form allowed by law to be substituted
This classification includes common barratry, maintenance, for an oath, in a judicial proceeding or course of justice, of false
~d champen:Y, and the crimes defined in the paragraphs irnme- testimony material to the issue or matter of inquiry. 'perjury is
dia~e~y ~ollow~g.. Common barratry is the offense of frequently
a misdemeanor. Subornation of perjury is the procurmg by one
excItmg and strrrmg up suits and quarrels either at law or other-
person of another person to commit perjury."6&
wise; maintenance is the officious intermeddling in a suit that in
no way belongs to one, by maintaining or assisting either party The authorities do not agree in their definitions of bribery at
to prosecute or defend it; and, champerty is a bargain with a common law. "Some define it as the receiving, by a judge or oth-
plaintiff or defendant to 'divide the land or other matter sued er officer connected with the administration of justice, of any un-
for between them if they prevail at law, the champertor to carry due reward to influence his behavior in office. Others define it as
on the party's suit at his own expense. "These three offenses are the giving or receiving of a reward to influence any official act.
all old common-law crimes, designed to prevent the stirring up of The crime has been considerably extended under the statutes
s~rife and litigation. Many of the courts have refused to recog- and later cases."70
nIze them or have materially restricted the old common-law The offense of misconduct in office consists of malfeasance,
doctrines. In modern practice these crimes are almost complete- eei. e., the doing of illegal acts under color of ~ffice, or abus~g dis-
ly disregarded."64 . cretionary powers; and nonfeasance, i. e., willfully neglectmg to
Obstruc~ing justice, which consists of resisting or obstructing
perform the duties ' of office provided by law. Malfeasance may
an officer m the exercise of his duty, is a misdemeanor at com- take the form of extortion, oppression, or fraud and breach of
mon law and by statute in many states. trust." 71 However, "refusal to accept an office to which one
has been appointed, and the exercise of power and p~ivi1eges of
Embr~cery, which ~s "an attempt to influence a jury corruptly
an office to which one has not been elected or appomted, may
to. one SIde by promIses, persuasions, entreaties, money, enter-
tamments, and the like,"65 is a misdemeanor at common law. In also constitute crime."72
some jurisdictions it is defined by statute as one form 'of bribery. Criminal contempts are crimes against public justice and au·
thority punishable both by indictment, trial and sentence as in
The crime of escape is committed: "(a) By an officer or other the case of other crimes., and also by summary procedure. "Con-
person, having lawful custody of a prisoner, where he voluntar- tempts may occur against other bodies than courts, which exer-
il~ or negli~ently allows him to depart from such custody other-
cise judicial powers, but primarily are impo~a~t as ~hey o~er~te
Wise tha? m due course of law. (b) By a prisoner, where he to interfere with or obstruct the orderly admmistratlOn of Justice
voluntarily departs from lawful custody without breach of pris-
on : "66 P rI'son b reac,
h on the oth er h and, "is the breaking and in COurts."73
gomg out of his place of confinement by one who is lawfully im-
prisoned" ;67 whereas the crime of rescue "is the forcible delivery Crimes Against the Public Peace
of a prisoner from lawful custody by one who knows that he is Any willful and unjustifiable disturbance of the public peace
in custody."68 is a crime both at common law and under the statutes. "The of-
fense may consist of disturbing a neighborhood or a number of
Misprision of felony is a criminal neglect either to prevent a people assembled in a public meeting, or of disturbing an individ-
felonl from being committed or to bring to justice the offender ual in such a manner or to such an extent as to provoke a breach
af~er i~s commission; whereas the offense of compounding a of the peace."74 This class includes dueling which is an 8:ggra-
cr~e IS the agreeing, for a consideration, not to prosecute a vated assault. However, "one who kills or injures another in a
CrIme which one knows has been committed. .
72 Miller, § 163, p. 477.
69 Miller, § 160, p. 468.
64 Miller, § 152, p. 458. 67 Miller, § 156, p. 465. 73 Miller, § 164, p. 478.
70 Miller, § 161, p. 473.
65 Miller, § 154, p. 463. 68 Miller, § 157, p. 466.
71 Miller, § 162, p. 475.
74 Miller, § 165, p. 483.
66 Miller, § 155, p. 463.
166 CRIMINAL LAW Ch. 1:! § 61 SPECIFIC CRIMES 167
duel may be guilty of murder, mayhem, or other crime. Chal- low. Historically considered, "treason was divided into high and
lenging another to fight a duel, or bearing or provoking such a petit treason. The latter is now regarded as felonious homicide.
challenge, is a misdemeanor."75 Other crimes of this class are Treason in the English law was wide in scope and arbitrarily ap-
defined -in the paragraphs which immediately: follow. plied. It was early limited in scope by statute. ~n the United
The crimes of unlawfu). assembly, rout, and riot, represent States it is even more limited by the Constitution, consisting only
in levying war against the United States, or in adhering to their
progressive steps in violent mob action. "(a) An unlawful as-
enemies, giving them aid and comfort. Treason is also prohibited
sembly occurs when three or more persons assemble with intent
by the constitutions and statutes of some of the states. Mispri-
to commit a crime by open force, or with intent to carry out any
purpose in such manner as to cause reaspnable apprehension of a sion of treason consists in concealing the commission of trea-
breach of the peace. (b) A rout is an unlawful assembly which son."81 .
has made a motion toward the execution of the common purpose In the United States the crimes of espionage and sedition are
of the persons assembled. (c) A riot is either an actual begin- prohibited by federal statutes against the unlawful obtaining
ning of the execution of such an unlawful common purpose, or or permitting to be obtained of information affecting national
the execution of an unlawful purpose by an assembly which was defense; the unlawful disclosing of information affecting nation-
lawful when its members first assembled; in each case, force and al defense; and, seditious or disloyal acts or, words in time of
violence being used, to the terror of the people."76 war.82
An affray is defined as ~'the fighting of two or more persons The crime of seditious conspiracy is "a conspiracy to over-
in a public place, to the terror of the people,"77 and is a misde- throw the government by force or otherwise to oppose force to
meanor. its lawful exercise of authority. An overt act is necessary to con-
This class also includes the crime o{ forcible entry and detain- stitute the crime."83,
er. "Forcible entry occurs where a person violently enters upon Counterfeiting is another offense against the government.
real property occupied by another, with menaces, force, and arms, "The Constitution makes the coinage of money a function of the
and without the authority of law. Forcible detainer is detention federal government and gives Congress power to punish persons
of the possession of 'the property by the use of force and violence, who counterfeit the money of the United States or attempt, Qr
and may occur where the original entry was forcible or where it conspire to do so, or who possess tools, plates, or instruments in-
was peaceable."78 tended to be used for such purpose. Some of the states also have
Criminal libels are also of this class. "The crime of libelling a declared counterfeiting to be a crime. It is also made a crime
private person consists in the malicious publication of any writ- in some jurisdictions to counterfeit trade-marks or labels."84
ing, sign, picture, effigy, or other representation, tendrng to ex- Abuse of the elective franchise is also a crime against the gov-
pose any person to hatred, contempt, or ridicule~ The gist of the ernment. "megal voting is a crime at common law, and is also
offense is its tendency to provoke a breach of the peace."79 But regulated by acts of Congress and by the statutes of the different
not all criminal libels are against private persons. "The common
states. It is also a crime at common law for a person to usurp
law also recognized other libels which are punished as crimes,
an office to which he has no claim, or to offer violence to voters.
i. e., blasphemous libels, obscene libels, and seditious libels."80
By statutes, betting at elections is made a crime, as are many
Crimes Against the Existence of Government other acts which violate the purity of elections."85
. The crime of treason falls within this classification, as do such
81 Miller, § 172, p. 499. 83 Miller, § 174, p. 507; and see R.
crimes as are defined in the paragraphs which immediately fol- S. § 5336; Mar. 4, 1~, c. 321, § 6,
82 See act of June 15, 1917, c. 30, 35 Stat. 1089, 18 U.S.C.A. § 6.
75 Miller, § 166, p. 485. 78 Miller, § 169, p. 49L Title I, §§ 1~, 40 Stat. 217- 219, 50
U.S.C.A. §§ 31~3; and act Mar. 3, 84 Miller, § 175, p. 508.
76 Miller, § 167, p. 486. 79 Miller, § 170, p. 492.
1921, c. 136, 41 Stat. 1359, 50 U.S.O.A.
77 Miller, § 168, p. 489. 80 Miller, § 171, p. 498. § 33.
85 Miller, § 176, p. 508.
168 CRIMINAL LAW Ch. 12
MARRIAGE ~N GENERAL
PURPOSE
63. The term "marriage~' is used in two senses to denote:
62. <;:rimes are prohibited on the ground of public policy, for the
(a) The relation of a man and woman legally united as husband
purpose of preventing injury to the public.
and wife, and
"Injury to the public," may include, "destruction or interfer- (b) The act as distinguished from the executory agreement to
ence with government, human life, private property or other marry: by which the parties enter into the marriage rela-
valued institutions or interests. Such considerations as desire for tion.
vengeance or uncompensability of injury may also be involved."8'
The criminal law is sanctioned by capital punishment, impris- Marriage, in the sense of the relation of husban.d and M!e, is a
onment, and fines, the extent or severity of the punishment be- status, not a contract; and, in the sense of the act by wh~ch the
ing dependent upon the seriousness of the offense.88 Capital parties become husband and wife, it is the ~vent by WhICh the
punishment is punishment by death; imprisonment is punishment status of husband and wife is created, not a contract.1 However,
by confinement in a jail or prison; and a fine is a pecuniary pun- "the relations, duties, obligations, and consequences"flowing from
ishment. "Many purposes have been assigned to punishment, the marriage contract are so important to the peace and welfare
such as reformation of the criminal and deterrence of others of society that the Legislature may prescribe who may marry,
from the commission of crime. Of course punishment has no the age at which they may marry, the pro<;edure and form essen-
purpose except as it works out a larger purpose of the criminal tial to constitute marriage, the duties and obligations created by
law itself. Perhaps it may be said that whatever purpose is serv- states, is a civil, and not a religiOUS
1 " It has frequently been said by
ed by punishment is a purpose of criminal law, for example, the institution, or that * * * in
courts and even by Legislatures, that
compelling of persons to cease or refrain from committing crime marriage is a 'civil contract.' But to some states mutual consent alone
by forcing or persuading them to conform to established rule~ conclude from these statements that
without formal celebration is suf-
ficient to constitute a valid marriage
of conduct designed for the protection of government, of life, marriage * * * has all, or even
known as a common law marriage, or
of property or of other rights, privileges and immunities guar- many, of the incidents of an ordinary
private contract, would be a grave that, as is true in all states, the mu-
anteed by law."89 tual consent of the parties is essen-
error. In fact, these statements to
tbe effect that marriage is a 'civil tial, even in the case of a ceremonial
A., provide"s : "Excessive bail shall contract' will be found, upon examin- marriage. * * * The fact that
86 Miller, § 177, p. 5()9.
not be required, nor excessi,e fines marriage is not a contract in the or-
ation, to have been used only for
87 Miller, § 3, p. 17. imposed, nor cruel and unusual pun- dinary sense is shown for example
the purpose of expressing the idea
ishments inflicted." tbat marriage, in the American by the fact that it is not voidable by
88 However, the Constitution of the
United States, Amendment 8, U.S.C. 89 Miller, p. 19. 169
170 PERSONS AND DOMESTIC RELATIONS Ch. 13 § 63 MARRIAGE IN GENERAL 171
marriage, .the effect on the property rights of the parties and the authority, a judicial decree of annulment is necessary, and the
causes WhIch shall be regarded as sufficient for its dissolution."! mere election of the party to annul is not effective."5
In order to effectuate a valid marriage the parties must be cap-
Essentials. of Marriage able of intelligently consenting. They may be incapable of intelli-
To constitute a valid . marriage there must be agreement or gently consenting by reason of insanity, intoxication, or nonage.
mutual consent to enter into the marriage relation and such "A marriage is \oid, in the absence of a statute, if either party,
agreement m~t be real. There Play be no real consent either by reason of defect or disease of the mind, was incapable of in-
because of mIstake, duress, or fraud. Mistake as to the nature telligently consenting. The parties must have been mentally
and legal consequences of the ceremony, or as to the identity of capable of understanding the nature and consequences of mar-
~he ot~er p.arty, renders the marriage voidable; but a marriage riage. The same rule applies where a party is drunk at the time
IS not mvalldated by mistake as to the rank, fortune, character, of the ·marriage. In most states, by statute, such marriages are
or health of one of the parties. 3 If either party acted under du- declared voidable, and not void; and in some states they are held
ress, t~eir marriage -is voidable. Fraud, to affect the validity of voidable only, independently of statute."6 As for their age, "the
a ~arrIage, must relate to some fact essential to the marital re- parties must be of an age at which the law deems them capable
latIOn. Co~sequently, "a marriage is not invalidated by false of intelligently consenting to enter into the marriage relation.
representatIOns or concealment as to rank, or fortune, or as to At common law the age of consent is 14 for males, and,12 for
character, ?r health, except in extreme situations; nor by false females, but in most states the age of consent has been raised by
representations or concealment as to chastity, except where the statute."7 The effect of marriage by infants varies as follows:
~oman was pregnant by another man at the time of the mar- (a) marriages after the age of consent are binding; (b) mar-
rI.age, and t~e husband was ignorant of the fact, and had not riages between the age of consent and the age of seven years are
hImself had mtercourse with her."4 However, the present tend- voidable on or before the age of consent is reached, and by either
ency of the courts is toward greater liberality in annulling mar- party, or, after such age is reached, if they have not thereafter
rIages fo~ frau? Where there has been mistake, duress, or fraud cohabited as man and wife or otherwise ratified the marriage;
the marrIage I~ voidable, not void; and it can be avoided only (c) marriages below the age of seven are absolutely void.
by the party mIstaken, coerced, or deceived. "By the weight of The parties to a marriage are also required to be capable in
other respects; thus, there must be no impediment of relation-
un infant, if he be of marriageable ship, physical incapacity, civil conditions, or prior marriage.
rJan will become husband and wife,
age, that it cannot be rescinded Or is entirely for them to decide. Even "The parties must not be within the prohibited degrees of kin-
substantially modified by the mutual though there is a perfectly valid en- dred, either by consanguinity or affinity. By an early English
consent of the parties, that an in- gagement, or agreement to marry in statute, [32 Hen. VIII, c. 38], there can be no valid marriage
capacity to perform th'e marital du- the future, the law will not specifical-
ties, if such incapacity develops .aft-
within the Levitical degrees; that is, within the third degree of
ly enforce the agreement by decreein'" civil reckoning, ~clusive, or, in other words, nearer than first
er the parties are married, does not that the unwilling party marry the
destroy or permit the rescission of other, hence in every case it is with-
cousins. In the absence of statutory provision to the contrary,
the relation; that the same fraud in the power of either party to refu e such marriages are voidable, and not void. The whole subject
which would make a contract void- to give his consent to the actual mar- is now very generally regulated by statutes, defining the limits
able will not necessarily make a mar- riage. Consequently, unless they within which relations may not marry, and frequently declaring
riage voidable." Madden on Persons both consent, or one' of them, not con-
and Domestic Relations, (hereinafter marriages within the prohibited degrees absolutely void."8 Con-
senting, is estopped from asserting
cited "Madden") pp. 3, 4. his want of consent, there is no mar-
cerning physical requirements, "the parties must be physically
riage, even though a formal marriage capable; but capacity to copulate, not fruitfulness, is the test.
2 Wiley v. Wiley, 75 Ind.A.pp. 456,
123 N.E. 252, 1919. ceremony has be~n performed." The incapacity must exist at the time of the marriage. Neither
Madden, p. 7.
3 "Whether or not a man and wo- 1\ Madden, § 10, p. 9. 'I Madden, § 13, p. 28.
4 Madden, § 9, p. 9.
e Madden, § 12, p. 23. • Madden, § 15, p. 33.
172 PERSONS AND DOMESTIC RELATIONS Ch. 13 § 64 COMMON- LAW INCIDENTS 173
party can set up his or her own impotence to defeat the marriage. Once a marriage is shown to have taken place it is presumed
In the absence of statutory provision to the contrary, impotence to be valid until the contrary is proved; and, as a rule, the valid-
renders a marriage voidable, and not void."& The parties must ity of a marriage is determined by the law of the place where
also meet whatever civil conditions may be imposed by the juris- it was entered into. However, the latter rule is departed from
diction; for example, many of the states prohibit marriages be- when such marriage offends a serious public policy of the state
tween negroes, Indians, Mongolians, or some one or more of these where its validity is asserted.
races, and white persons. As for the effect of prior marriages
of the parties, "in the absence of statutory provision to the con- COMMON-LAW INCIDENTS
trary, a valid and undissolved prior marriage of either party ren-
ders a marriage absolutely void ab initio, even though the par- 64. At common law marriage was regarded as making the husband
ties may have acted in good faith, and in a reasonable belief that and wife one person.
the former spouse was dead or divorced."10 At common law, the wife's personal property in possession
vested exclusively in her husband without any act on his part
Power of Legislature to Validate Marriages and on his death passed to his personal representative; and this
Marriage, because of its great social importance, "has always was true as to personalty owned by her at the time of the mar-
been subject to regulation and control by the state; and it is well riage, personalty acquired during coverture, personalty in her
settled that the Legislature has power to validate or confirm by actual possession, and personalty in the actual possession of some
statute a marriage theretofore voidable because of some statu- third person not holding adversely.14 However, "this rule did
tory disability or neglect of some statutory requirement."ll not apply to the wife's paraphernalia; that is, such articles of
wearing apparel, personal ornament, or convenience as were
Formalities in Celebration suitable to her rank and condition. These belonged to the hus-
Under the common law persons may marry by the mere ex- band, like other personalty in possession, but, if undisposed of
pressi<;>n of mutual consent to become husband and wife, but stat- by him, they belonged to the wife on his death."15 The husband
utes in all of the states set forth formal methods by which mar- was also entitled to his wife's choses in action if he reduced them
riage may be accomplished. 12 However, if a statute prescribes to possession during coverture, but not otherwise.16
formalities for the celebration of marriage it is not to be con- Under very early statutes, "and perhaps even at common law,
strued as rendering an informal marriage invalid unless it ex- the husband was entitled to administer on his wife's estate, for
pressly so declares. 13 his own benefit. He could, as administrator, recover her choses
in action for his own benefit; but he took subject to her obliga-
9 Madden, § 16, p. 36. futuro cum copula only when the cir- tions contracted dum sola"17 (while single).
cumstances are such that a present
10 Ma dden, § 18, p. 39. agreement at the time of the copula 14 "The common law imposed l!.O most completely remade since the be-
can be implied." Madden, § 22, p. disabilities whatever upon a woman ginning of the development of law in
11 Madden, § 19, p. 47. 48. with reference to her property and the United States, the statements of
contracts merely by reason of her what the common law was, do not or-
12 "Common law marriages may be 13 "Even though a marriage stat- sex. A single woman had exactly the dinarily represent the law of any
. per verba de praesenti- that is, by ute is construed to be mandatory, it same capacity to her own property ~tate at the present time.
consent to live together presently as is not necessary, in order to validly and to contract which a man had. It
husband and wife-no copula being marry, to comply with all its details. 15 Madden, § 28, p. 83.
was only by reason of her status as
necessary. It is sometimes said that In the absence of strict language to a married woman, which status the 16 "To reduce them to possession
there may be a marriage per verba the contrary, the ceremony in the he had to exert some act of owner-
law called 'coverture,' that her disa-
de futuro cum copula- that is, by an presence of the minister or offici al ship over them, with the intention of
bilities arose." Madden, p. 82. And,
agreement to marry in the futUre, fol- authorized to celebrate marriages or converting them to his own use."
as the law relating to the capacity of
lowed by cOpula in pursuance thereof. serving de facto in that capacity is. Madden, § 29, p. 85.
a married woman to own and control
But by the better authority a mar- the only absolute requisite." Mad- 17 Madden, § 30, p. 89.
property and to contract has been al-
riage can be effected per verba de den, § 23, p. 64.
174 PERSONS AND DOMESTIC RELATIONS Ch.18 § 65 TERMINATION OF THE RELATION 175
As for the interests in land of the wife, "the husband had, at property real or personal, but in a number of states the statutes
common law, the enjoyment of his wife's chattels real- leases and require that the husband join in a wife's conveyance of her land .
terms for years~uring his life, with the power to dispose of in order to make it valid. In some states a husband has an in-
and incumber them, and they were liable for his debts. If undis- choate interest in his wife's land such as curtesy, statutory do)V-
posed of on his death, they belonged to the wife. On the wife's er, or homestead, which is not divested by her' conveyance of her
death before his they passed to him as administrator in the same lands, unless he releases such interest by joining in the convey-
wa~ as her choses in action."Is The husband also acquired, by ance or otherwise."21
their marriage, the usufruct of his wife's estates of inheritance In regard to the capacity of a married woman to contract, "in
during coverture and, when there was issue of the marriage born many states the statutes expressly and plainly say that a married
alive, then for his life as tenant by the curtesy. And he became woman may contract as if sole. Under such statutes a wife may
seised in right of his wife, of her life estates, whether for her make any contract which any other competent person could
own life or for the life of another.
make, and it may be enforced against her by an action in per-
A married woman, at common law, had no c:;a'pacity to con- sonam, and the judgment may be collected out of her property by
tract and her attempts to do so were absolutely void except in the the ordinary methods."22 In other states the statutes permit a
following cases: (a) she could contract and sue and be sued married woman to contract with reference to her separate prop-
as a feme sole when her husband had been banished, had abjured erty. In a third group of states, the statutes at an intermediate
the realm, was a nonresident alien, or had been transported' and stage in the development of this subject did not expressly confer
(b) in equity she could contract with reference to her equitabl~ any contractual capacity upon married women but merely said
separate estate, so as to bind it, but not so as to bind herself per- that they might acquire and hold property as if sole, and might
sonally.I9
enjoy their separate property as if sole, and such statutes have
Legislative Reforms; Married Women's Acts been construed as giving a limited capacity to a married woman
to charge her separate estate by contract.23
In practically all of the United States "statutes have been en-
acted providing that all property real or personal, owned by a
married woman at the time of her marriage, or acquired by her TERMINATION OF THE RELATION
,
thereafter; should be and remain her separate property, free 65. A marriage relation is terminated by the death of either of the
from the control of her ,husband."20 And, in most of the states, parties, or by divorce.
the statutes, either expressly or by construction of the courts
"give married women the power to conveyor dispose of the~ ' A divorce is the legal separation of a husband and wife by the
IS Madden, § 31" p. 91. judgment of a court. There are two kinds, and a divorce may
power must be expressly conferred or
Rhe would have no power to alienate either: (a) dissolve the marriage, in which case it is called a
19 In equity, even before the mar-
t ied women's reform legislation, a or charge the property. Further- divorce "a vinculo matrimonii"; or, (b) it may suspend the ef-
married woman could hold as a feme more, in England, and in, most of the fect of tlie marriage only in so far as cohabitation is concerned,
sole free from the control of her hus- states, a married woman had the in which case it is called a divorce "a mensa et thoro," or judicial
band real or personal property set- power, as an incident to her equitable separation. 24
tled to her sole and separate use, estate, to charge it by contract un-
and in most jurisdictions a married less the power was excluded in tbe n Madden, § 43, p. 110. ship which she is forbidden to make
woman ha d tlIe power to dispose of creation of the estate, but in some are those in which she becomes sure-
her equitable separate estate, real or states the power had to be expre sly n Madden, § 47, p. 137. ty for her husband." Madden, § 48,
personal, though no power to do so conferred or it did not exist. In botb 23 "In a number of states the stat- p. 142.
was expressly conferred by the in- England and the states the contract ute enlargIng a married woman's
strument creating it, provided the had to be made upon the faith of the capaCity to contract expressly deny 24 In England there was no method
power was not expressly excluded by estate. to her the capacity to enter into a by which an absolute divorce could
the instrument. However, in some ('ontract of suretyship_ In some be secured except by a special act of
jurisdictions it was held that tbe 20 Madden, § 42, p. 110. !:tates the only contracts of surety- Parliament until 1857, when the stat-
176 PERSONS AND DOMESTIC RELATIONS § 66 PARENT AND CHILD
Ch.13 177
Grounds
The grounds on which a divorce can be obtained vary with the PARENT AND CHILD
statutes of the different states, but among the grounds most com-
monly allowed are: (1) Adultery, which is the voluntary inter- 66. The legal status of a child in relation to its parents may he
either legitimate, illegitimate, or adopted.
course of a married person with another than his or her wife or
husband. (2) Cruelty, which generally must consist in the in-
A child is legitimate, at common law, when it was begotten or
fliction, or threatened infliction, of bodily harm. (3) Desertion, born during the lawful wedlock of its parents; and, very general-
which is the withdrawal from cohabitation by one of the parties
ly by statute in the United States, when its parents marry subse-
with intent to abandon the other without the latter's consent and
quent to its birth. A child is illegitimate, at common . l~w.' ~hen
without justification.25 Various other grounds not so commonly
begotten and born out of lawful wedlock. 27 In most jUrISdlCtlO?S,
prescribed include: (a) habitual drunkenness; (b) conviction of "by statute but not at common law, a person may adopt a child,
crime and imprisonment, under certain circumstances; (c) in-
and in such a case, unless there are statutory provisions to th.e
curable insanity; (d) -separation not amounting to desertion;
contrary, the rights, duties and obligations arising fro~ .the arti-
(e) nonsupport, under certain circumstances; (f) divorce ob-
ficial relation will be substantially the same as those arIsmg from
tained by the other party in another state; and, (g) causes ren-
the natural relation of parent and child." 28
dering marriage void or voidable such as impotence, relationship,
prior marriage, mental incapacity, nonage, fraud, and duress.26
Duties of Parents
Defenses
Concerning parental duties, "whether there i~ a l:gal. dut~ on
The defenses wJ:lich may be asserted to an action for divorce in- the part of the father, at common law, to m~mtam ~IS mmor
clude: (1) Connivance, which is the corrupt consenting by one child, so as to render him liable for neces~~rIes furmsh~d .the
spouse to an offense by the other. (2) Collusion, which is any child is a question upon which the authOrIties are con~Ictmg.
agreement between the parties whereby they seek to obtain a di- (a) in England, and in some states, it is held that there IS onl.y
vorce by an imposition on the court. (3) Condon~tion, which is a moral obligation, in the absence of a statute, and. th~t there IS
the forgiveness of a marital offense constituting a ground for no liability for necessaries unless there is ~ promIs~ I? ~ac~ to
divorce. (4) Recrimination, which is a countercharge in a di- pay for them, express or implied. But even m t~~se JUrISdIct~~ns
vorce action that the complainant has been guilty of an offense it is usually provided by statute that the munICIpal aut~orIt~es
constituting a ground for divorce. . may compel the father if he is able to do so, to support hIS chIld.
In most states it is a penal offense if the father neglect to s.uPP?rt
ute which created the Court of Di-
vorce and Matrimonial Oauses was
25 "The cause for divorce is deter- his minor child. (b) In other states it is held that the. obl~gatlOn
mined by the law of the place which is a legal one, and that there is a liability for necessarIes, m case
enacted. "Judicial divorce a vinculo
is the domicile at the time the divorce
matrimonii was established in this
is sued for." Madden, § 96, p. 312-
country much earlier than in Eng-
27 "The natural relation between a The child's domicile is determined by
land. For example, in Pennsylvania 26 "In some states Courts of equity,
even without a statute, decree epa. parent and his illegitimate children that of its mother. (c) The putative
~l S early as 1785, a complete code of
late maintenance (to be distinguished does not, at common law, give rise father is under no legal obligation to
grounds of divorce both froll} bed to those rights and duties which per- support his illegitimate child, but
and board and from the bonds of from absolute divorce) to a wife
whose husband does not support her. tain to the legal status of parent and now, by statute, he may very gener-
matr~mony was enacted, which was child. But to some extent the law
In most other states statutes have ally be compelled to do so. (d) At
copied from the statutes of Scotland." recognizes bastards as children. cc'mmon law, a bastard cannot inher-
Madden, p. 261. conferred a similar jurisdiction upOn
a court of domestic relations or orne Thu : (a) The mother is entitled to it, and can have no heir except of
(ther court." Madden, § 99, p. 330. the custody and services of her il- his own body; but this rule has been
legitimate child, as against the fath- to a great extent modified by stat-
er or strangers; but the welfare of ute." Madden, § 105, p. 348.
the child may require the court to
award its custody to another. (b) 28 Madden, § 106, p. 354.
~nTrr EL.LAW !3d-12
178 PERSONS AND DOMESTIC RELATIONS Ch.13 § 67 INFANTS 179
of nonsupport by the father, in the absence of any promise in a person who has wrongfully injured the child, for the resulting
fc;tct, or else that, if the obligation is merely a moral one, it is loss of service and incidental expenditures; (b) against the
nevertheless sufficient to create such a liability." 29 On the other wrongdoer for the seduction or debauching of a daughter, and re-
hand, "if the mother, by the death or abandonment of the father, cover for tfie loss of service, incidental expenses, and for the
or by a decree of court, has succeeded to the father's right to the shame and disgrace to the family, the corrupting example to the
custody of a child, she succeeds also to his duty to support the other children, and punitive damages; (c) for loss of service'S
child, but may, if the father be living, recover from him the and incidental expenses against one who abducts or wrongfully
amount expended for such support, the ult~ate liability remain- entices or harbors the child. (3) A parent, or one standing in
ing upon the father." 30 loco parentis, may punish or discipline his minor child without
In regard to education, "there is a legal duty on the part of a subjecting himself to either criminal or civil liability, providing
father to educate his child. If the child is in the custody of the he does so in a reasomible manner.
father, a common school education, or the minimum of educa- A parent, by reason of their relation, has no rights in the prop-
tion prescribed by compulsory school laws, may be -all that is erty of his child. "Whatever property a child may acquire in any
required. But if the father has lost the custody of his child but manner, except as compensation for services rendered by him,
is still liable for its support he may be compelled to furnish such belongs to him absolutely, and the parent, as such, has no claim
education as his station in life and financial ability, and the ca- to it." 33 Furthermore, "a child is under no legal obligation to
pacities of the child may justify." 31 support his parents, unless the duty is imposed by statute." 34
A parent also has the duty of protecting his child, a duty fully
recognized by the common law. Consequently, "a parent may Emancipation
justify an assault and battery, or even a homicide, in the neces- A child is said to be "emancipated" when he has been released
sary defense of the person of his child." 32 from parental control and has become entitled to rus own earn-
ings. Emancipation may be effected: (1) By the consent of the
Rights of Parents parent, express or implied. (2) By operation of law, (a) where
Generally, the rights of parents in respect to their children are the parent fails to support or abandons the child; (b) where the
as follows: (1) The father, and, by the weight of authority, the child enters into a: valid marriage, whether with or without the
mother on his death, is entitled to the services and earnings of consent of the parent; and, (c) where the child attains his ma-
a minor child while the child lives and is supported by them and jority, which is at 21 years, or, in some jurisdictions in the case
has not been emancipated. (2) The father, or the mother who of females, 18 years. 35
has succeed~d to the rights of the father, or aily other person INFANTS
standing in loco parentis, may maintain an action: (a) against
67. All persons under twenty-one years of age are infants at com-
29 Madden, § 110, p. 383. nqt related, succeed to the right of mon law, but by ~tatute in some states females attain ma-
30 Madden" § 111, p. 383. custody according to the circum-
jority at eighteen years of age, and in some states all mi-
In awa rding the, custody of a child, stances. The mother of an iliegiti-
mate child has ,the same right to its
nors attain majority on marriage.
the courts give first consideration to
t he welfare of the child. Subject to . custody as the father of a legitimate
child.
Privileges and Disabilities
this' primary consideration, the fath-
er is considered as having the best
Infants are favorites of the law and for their protection the
31 Madden, § 113, p. 394.
right, and the mother -as having the law has conferred certain privileges and has imposed certain dis-
next best right, to the custody of a 32 Madden, pp. 397, 398.
legitimate child; but statutes in 33 Madden, § 132, p. 439. ties of infancy, does not enlarge the
A parent is not liable, merely be-
some states make the rights of the 34 Madden, § 141, p. 452. capacity to contract. In some states,
cause of their relation, for the torts
parents equal. If there is no father however, the disabilities of infancy
of his child, nor does the relation of 35 "The emancipation of an infant
or mother, or if both are deemed un- may be removed by judicial proceed-
parent and child render the former by act of the parent or by marriage,
fit, other near relatives, or persons ings." ltladden, § 229, p. 612.
liable for the crimes of the child. while removing some of the disabili-
SMITH EL.LA W 2 d
PERSONS AND DOMESTIC RELATIONS § 68 GUARDIAN AND WARD 181
180 Ch. 13
abilities upon them. Thus an infant can hold an office whieh is An infant is liable for necessaries furnished to him, his wife,
purely ministerial, but not one calling for the exercise of discre- or, in some jurjsdietions, to his children if he refuses or neglects
tion, or involving financial responsibility. At common law, the to provide for them. However, generally, the infant is liable on-
will of a male at 14, and of a female at 12 years of age, was valid ly for the reasonable value of the necessaries. furnished. 38
as to personal property, but an infant could not make a valid In regard to torts committed against or by him: "an infant
will of real property. (But by statute ' in England, 1 Viet. c. 26, § has the same right as an adult to sue for tortious injuries" ;3~
7, and in many of the states, only persons who have reached the and "must answer for his torts as fully as an adult, and the fact
age of 21 years may make wills.) that the tort is committed under authority or command of his
parent is no defense." 40
An infant cannot sue in person or by an attorney, but only by
guardian or next friend, and when sued he cannot appear in per-
GUARDIAN AND WARD
son, by attorney, or next friend, but only by a general guardian
or by a guardian ad litem. In most of the states the appointment 68. A "guardian" is one to whom the law intrusts the person or
of a next friend or guardian ad litem is regulated by statute and estate, or both, of another who, by reason of infancy or
where an infant is sued, and has appeared by guardian ad litem, , mental infirmity, is not sui juris, and the latter is called a
he is bound by the judgment or decree as fully as an adult. An "ward."
infant is competent to testify as a witness only if he understands
the nature of an oath. Guardianship is defined as "a trust which is dual in its nature,
involving two distinct and separate fUnctions- the control of the
An infant can enforce a contract against another pacty who person of the ward, and the management of his estate. Guardi-
contracted with him whenever an adult in the place of the in- ans are therefore divided into two classes-guardians of the per-
fant could have enforced the contract; but in many instances, an son, • • • and guardians of the estate. • • «< • A
infant is not legally liable for the nonperformance of his execu- guardian of the person is one who is lawfully invested with the
tory contracts even though the other pacty to the contract has care of the person 'of the ward. A guardian of the estate is one
performed his pact of the agreement. 36 The latter rule, however, who has been lawfully invested with the power of taking care
is subject to various exceptions. As for executed contracts, that of and managing the estate of an infant." 41 Some guardians
is, where an infant has conveyed land, sold chattels, or released have charge of only the person of the ward, some only of his es-
rights, he may, as a general rule, disaffirm the transaction and tate, and some have charge of both the person and estate of the
restore to himself the land, chattels, or rights; but not if, after ward.
attaining his majority, he has affirmed such executed acts. 37 The various kinds of guardians are as follows: (1) Natural
guardians. "The father, or, if he is dead, the mother, or, if both
36 "The former infant after he 37 "If an infant, before or after ma-
r eaches majority loses his immunity !ority, disaffirm a sale or conveyance though he no longer has it, or all of (c) What he is already fully suppli-
from liability upon executory con- or payment or release made by him it, either in its original form or in ed with. (d) Articles which might
tracts made while an infant, by rati- during minority, for which he receiv- IIny converted form." Madden, §§ otherwise be necessaries, when he is
fying or affirming such contracts aft- ed a consideration, he is under a du- 215, 216, p. 583. living under the care of his pax:ent
er he reaches majority;" but, "it is ty to return or surrender so much of or guardian, and is supplied by him
38 What are "necessaries" depends
held in some jurisdictions that some the consideration received by him for with such things as he considers nec-
upon the circumstances of the par-
contracts of an infant such as a con- such transfer, as he still has, either essary. (e) What concerns his estate
tract made by an agent or attorney ticular case. "The term includes
in its original form or in any other or business, and not his person."
appointed by him during infancy, a whatever is reasonably needed for
form into which he may have, by ex- Madden, § 200, p. 542.
(~ontract of suretyship, or a bond !'ub i tence, health, comfort, or edu-
change or other means, converted it;
with a penalty cannot be ratified cation, taking into consideration [the Madden" § 223, p. 601.
[however] in some jurisdictions, un- 39
and thus made enforceable against infant's] state, station, and degree in
der the circumstances mentioned,
life. The term does not include (a) Madden, § 225, p. 604.
the former infant after he reaches * * * the infant is under a duty What is purely ornamental. (b)
40
ma jority." Madden, §§ 204, 207, pp. to account for and replace all the
What contributes solely to pleasure. 41 Madden, pp. 455, 456.
554, 564. consideration which he received, even
182 PERSONS AND DOMESTIC RELATIONS Ch.13 § 68 GUARDIAN AND WARD 183
are dead, the next of kin is the natural guardian of a child. A support, and rendering the ordinary services of a child, the
natural guardian is a guardian of the ward's person only." 42 guardian is not entitled to an allowance for such support, in the
(2) Guardians in' socage. This kind occurred where an infant absence of an agreement, the relation in such case being quasi
acquired by descent land held in socage. "The next of kin who parental." 48 (3) Unless he has obtained leave of court to use
could not possibly inherit became guardian and had authority principal, a guardian is restricted to the use of the income of the
over the person of the infant as well as the land, and over person- estate in the maintenance and education of the ward. (4) A
al property connected with it, but not over other personalty. On natural guardian can change the domicile of his ward, and other
reaching the age of 14, the infant could elect his own guardian guardians can change the municipal domicile of their wards, but,
and terminate the guardianship. This kind of guardianship is ob- by the weight of authority, they cannot change the state or na-
solete at common law, but there is a similar guardianship by stat- tional domicile of th,eir wards. (5) By statute, guardians on
ute in some jurisdictions." 43 (3) Testamentary guardians. "By leave of court may sell realty of their wards to pay debts, futuFe
statute, a' surviving parent, on his death, may, generally by will, maintenance and 'expenses if the personal property is insufficient,
and in some states by deed, appoint a guardian for a minor child. and in some states this is allowed for the purpose of making more
Such a guardianship extends to the person, and to the real and advantageous investments; but sales without license from a
personal property, of the ward, and continues until the ward's court, or from a court without jurisdiction, are void. (6) A
majority." 44 (4) Chancery guardians. "Courts of chancery, in guardian may sell the personalty of his ward without court leave.
the absence of statutory limitations, have jurisdiction to appoint (7) A guardian can execute all instruments necessary and with-
guardians of the persons and estates of infants." 45 (5) Statute in the scope of his trust, but he cannot bind the ward or the estate
guardians. Guardians of the persons and estates of infants are of his ward by covenants. (8) The authority of a guardian is
generally appointed in the United States by courts of special stat- strictly territorial, but foreign guardians are recognized in most
utory jurisdiction and consequently are known as "statute guard- states; as a matter of comity, following compliance with relevant
ians." (6) Quasi guardians or guardians by estoppel. This kind statutory regulations. ' (9) In the settlement of his accounts a
includes those who have no right, but who assume to act as guardian will be a1l0wed compensation for his services, but only
guardians and therefore can be made to account as such. (7) if he has faithfully executed his trust.
Guardians of persons non compotes mentis. "Generally, by stat- Concerning the duties of guardians, the following precepts are
ute, the probate or some similar .court is given the power to ap- fundamental: (1) A guardian is bound to maintain his ward
point a guardian of the person and estate of persons who are non from the income of the estate; but he is not bound to furnish
compotes mentis. In some states the power is extended to in- support personally, or even to pay for necessaries furnished the
clude spendthrifts." 46 (8) Guardians ad litem. "A guardian ad ward, and no promise on the part of the guardian to do so will
litem is a guardian appointed by a court of justice to prosecute be implied without his consent. (2) A guardian is bound to ex-
or defend for an infant in a suit to which he is a party." 47 ercise ordinary care and prudence in the rpanagement of the es-
tate of the ward. A guardian is bound to collect and protect the
Rights, Duties, and Liabilities of Guardians
property of his ward of every description and therefore the
Fundamental principles relative to the rights of guardians are guardian may: (a) bring suit in the name of his ward, or in his
as follows: (1) Except in this country, the guardian is ordinarily own name, on contracts made by him as guardian; (b) accept
entitled to the custody of his ward as against the parents, but a property in settlement of claims; (c) compromise claims; and,
guardian as such is not entitled like a parent to the services and (d) submit claims to arbitration. (3) A guardian is bound to
earnings of his ward. (2) "By the weight of authority, when the invest the funds of his ward within a reasonable time and if he
ward lives with the guardian as a member of his family, receiving fails to do so he will be charged interest, and in the case of gross
42 Madden, § 145, p. 456. delinquency, compound interest. (4) A guardian must lease the
45 Madden, § 148, p. 461.
realty of his ward, keep the buildings in repair, and collect the
43 Madden, § 146, p. 457. 46 Madden, § 151, p. 463.
44 Madden, § 147, p. 459. 47 Madden, § 152, p. 464. 48 Madden, § 161, p. 473.
184 PERSONS AND DOMESTIC RELATIONS Ch.13 § 69 MASTER AND SERVANT 185
rents. (5) A guardian must file an in.ventory of the estate, ac- when he fails to perform his duty, or when he is unfit for the
count from time to time, and render a final account at the expir- position." 52
ation of the guardianship.
The following principles are fundamental in regard to the lia- MASTER AND SERVANT.
bilities of guardians: (1) A guardian cannot bind either the es- 69. A "master" is a person who has the right to direct, withi~ ctehr-
tate or the ward by contract but rather, "is primarily personally tain limits, the action of another called a "servant,' e
liable on contracts, though made' by him as guardian, and on be- latter being bound to obey the proper orders of the former_
half of the ward, but in proper cases he is entitled to reimburse-
ment." 49 (2) A guardian is a trustee and consequently cannot The term "servant" is used to denote both apprentices and
reap any benefit from the use of his ward's property, purchase at hired employees, but the two are Pistinct. An .apprent.ice is ~ne
a sale of his ward's property, or sell his own property to his bound in law to serve his master for an agreed tnne durrng which
ward.
50
(3) A guardian who exceeds his authority is liable for he is to be taught some art or trade by his master. Infants m~y
any resulting loss although he acted in good faith; and if there be bound to apprenticeships either voluntarily by contract, or rn-
is a benefit instead of a loss in such a case, the ward may claim voluntarily under statutes. Such statutes are strictly constru:<i'
it. (4) When the same person is at once executor or administra- however, and may be invoked only when the circumstances ~hICh
tor and guardian, he is primarily liable as executor or administra- they require are present. Generally, they, embrace only c~Ildren
tor for funds due the ward as legatee or distributee of the estate who are in unfortunate circumstances such as the offsprrng of
and becomes liable as guardian on charging himself in that ca- unfit parents, bastards, destitutes, and abandoned chil?ren. But
pacity. (5) If the final settlement of the account of a guardian in proper cases, parents, guardians, courts and. various. other
is m1.lde with the ward out of court, and the guardian gains any agencies' having lawful authority therefor, may brnd out inf~nts
advantage, the settlement will be set aside unless it appears that as apprentices. Adults may also bind themselves to apprentice-
the ward gave his deliberate, intelligent and voluntary acquies- ships, but, as a rule, one who has attained his majority cannot be
cence, or is guilty of laches in asserting his rights. 51 bound as an apprentice against his as~ent.
The rights and liabilities of a master and h~ appre~tice a~e d:-
Termination of Guardianship fined by the covenants in the indenture by w~ICh theIr relatIOn IS
The legal relation that exists between a guardian and ward is created. However, the master is usually entItled to the custody
terminated in the following ways: "(a) By the ward's reaching and services of the apprentice, although the indenture may re-
his majority. (b) By the death of the ward. (c) By the death quire him to compensate the apprentice f~r such services. ~d
of the guardian. (d) By the marriage of a female ward. (e) he is also usually entitled: (a) to the earmngs of t~e app~entIce,
Under the statutes of some states, by the marriage of a female unless the earnings are acquired for outside serVIces WIth :the
guardian. (f) By the resignation of the guardian, if he is per- consent of the master; (b) to retake his runaway app~entIce;.
mitted to resign. (g) 'By removal of the guardian-by the court, and (c) to recover for injuries which disable his apprentIce and
which are caused by third persons. On the other hand, unless
49 Madden, § 160, p. 473. ing trust. (c) He mp.y trace and reo their indenture provides otherwise, the master must take care of
50 Correlatively, "the ward has all claim personal prope'r ty converted by and maintain an infant apprentice, educate him generally and
the rights, as against the guardian, his guardian, when it can be identi.
fied." Madden, § 166, p. 481. professionally, and govern his conduct. Correlatively" the ~p
that a cestui que trust has aga inst
prentice must obey the lawful orders ~f his master. The relatI?n
the trustee. And therefore--(a) He ' 51 "Gifts from a ward to his gua rd.
may ratify the wrongful use of his ian, made during the guardian hip, of master and apprentice may be termrnate~ by the dea!h or ~ll~
property by the guardian, and claim Or shortly after its termination, a re conduct of either party, by the infant's attarnment of hIS maJorI-
all profits arising therefrom, Gr reo presumed to have been made un der ty, or by cancellation. ' . .
pudiate the transaction and hold the undue influence; .and, to ullhold The more common relation of employer and employee IS dIS-
gua rdian to account. (b) He 'm ay re- them, it must be shown that they
pudiate purchases of his real estate were made voluntarily and under.
tinguishable from that of master and apprentice in that under
by his guardian, and claim ' a resilli • standingly." Madden, § 183, p. 511. 52 Madden, § 184, p. 515.
186 PERSONS AND DOMESTIC RELATIONS Ch. 13
Classification of Estates
Estates are classified: (a) as to their quantity; (b) as to
their quality; (c) as to their legal or equitable .nature; .(d) as
to the time of their enjoyment; and (e) as to theIr exclUSIveness
or number of owners. 3
1 Cf., "The word 'estate,' • • • ever, the term "estate" is used to in-
means an interest in land which (a) dicate interests in limd which are
is or may become possessory; and less than freehold estates and which,
(b) is ownership measured in terms consequently, constitute personalty
cf duration." Restatement of the rather than realty.
Law of Property, (hereinafter cited
"Restatement") § 9, p. 23. 3 For definitions of terms relating
to estates contained in the Restate-
2 Burdick on Real Property, (here- ment, see §§ 14-26, pp; 39-70, of that
inafter cited "Burdick"), p. 59. How· work.
187
188 REAL PROPERTY Ch. 14 § 70 ESTATES 189
Quantity of Estates; Freeholds a~d Nonfreeholds land held of a superior as distinguished from allodial land, I) but
The quantity of an estate is determined by the period of its denotes, rather, an estate of inheritance; an estate that descends
duration; its extent. As to their quantity, estates are either to a man's heirs. And the word "simple" means that the estate
freeholds 01' less than freeholds ("nonfre~holds," also called descends to the holder'S heirs generally, an!i is not conditioned
"leaseholds"). Estates of freehold are either: (1) estates of or restricted to any particular class of heirs. "A fee simple is,
inheritance, which subdivide into (a) estates in fee simple, and in theory, equal to absolute ownership, at least so far as there
(b) estates in fee tail; or, (2) estates not of inheritance, or life can be absolute ownership. * * * It represents the whole
estates. Estates less than freehold include: (1) estates for ownership of the land. Out of the fee simple all other estates
years; (2) estates at will; (3) estates from year to year; and, (4) are carved. The powers incident to estates less than fee simple
estates at sufferance. are in all cases less than those of this estate."6 In modern es-
The duration o~ a freehold estate is uncertain. In early Eng- tates and conveyancing, the terms "fee," "fee simple," and "fee
lish law the term "freehold" was used to indicate an estate which simple absolute," are substantially synonymous.'
wa~ deemed as of such dignity that its ownership was becoming An estate tail is an estate of inheritance which descends only
to a freeman. An estate for a certain time was not regarded as to the heirs of the body of the donee or to some special class of
of such dignity, being necessarily limited in its duration. As an such heirs. "Estates tail are divided into the following six
estate for life might be held by its owner for as long as he was classes: (1) Estates in tail general, the donee being the only
able to enjoy any estate personally it was regarded as a freehold; parent named, and descending to heirs of either sex. (2) Es-
and, of course, if an estate was to continue for a person's life and tates in tail general male, only one parent named, but descending
then descend to his heirs it was a freehold. However, an estate only to male heirs. (3) Estates in tail general female, only one
for a certain, definite period, even if for a thousand years, was re- parent named, but descending only to female heirs. (4) Estates
garded as of less dignity than an estate for life and was not a in tail special, both parents named, and descending to heirs of
freehold. Only such interests in land as are freehold estates either sex. (5) Estates in tail special male, both parents named,
constltute real property; estates less than freehold are personal but descending only to male heirs. (6) Estates in tail special .
property. female, both parents named, but descending only to female
\
The "possession" of one who claims a freehold interest in land 5 There were, at the time when the to which various personal services
is termed "seisin," and it may be either seisin in deed (or fact ), feudal system was in force, certain were attached, whereas the latter
or seisin in law. Seisin in deed is the actual possession of the land which did not come under its was free from all f eudal conditions.
immediate freehold, but this does not mean actual possession of operation. These were called "allo- In the United States, although inter-
dial lands." The owner of such lands ests in lands are defined and classi-
the land. The land may be in the actual possession of a tenant fLed as "estates," and the distinctions
had free control over them, as he did
for a /term of y;ears. Seisin in law, on the other hand, "applies not hold them of any superior lord, between different kinds are recogniz·
to an heir at law of an ancestor who dies seised, and refers to the and the interest which the owner of ed and enforced, lands, for all prac-
time intervening before the heir's entry in case the possession an allodium had was not called an es- tical purposes, are allodial.
is vacant at that time. When the heir enters, he is seised in fact, tate, the term "estate" being then us- 6 Burdick, p. 62.
or in deed."4 ed in referenCe only to the interests
in land of those who held under a su- 'Unless otherwise provided by
perior. Lands which came under the statute, in order to create a fee sim-
Freeholds of Inheritance; Fee Simple) Fee Tail operation of the feudal system could ple estate by deed, 'the rule of the
The freehold estates of inheritance are either: (1) estates in not be thus independently owned. common law requires that the convey-
fee simple; or, (2) estates in fee tail: A fee simple estate is a All that a feudal tenant could own ance read to the grantee "and his
was an "estate" in land, and the fee heirs," otherwise the grantee would
freehold in perpetuity. It is an estate limited to a man and his take only a life estate'. The technical
simple was the greatest of the es-
heirs forever and is the largest possible estate in land. The word tates. The practical difference be- words are not required, however, in
"fee" is not used here in its original meaning of a "feud", that is tween an estate in fee simple and the Il strict quitclaim deed. Since the
ir.terest of an allodial proprietor was Statute of Quia Emptores, 18 Edw. I,
4 Burdil,"!l;:'," p. 56. that the former was held by tenure, cc. 1, 3, 1290, the right of an owner
190 REAL PROPERTY Ch. 14 § 70 ESTATES 191
heirs."8 In most of the states of the Union, estates tail have been lives measure them. As to the mode of their creation "life es-
abolished or modified by statute. "Some states have turned tates are either- (a) Conventional, that is, created by act of the
them into either- (a) Estates in fee simple; or (b) Life estates, parties; or (b) Legal, that is, created by construction and opera-
with remainders in fee to the donee's heirs who would take un- tion of law. Conventional life estates may be measured by one
der the entail; or (c) Estates tail in the donee, with estates in or more lives."ll
fee to the issue. In a few states, estates tail still exist."9 In the United States, all "legal" life estates of practical 'im-
portance.arise out of the marital r~lation. They include, at com-
Freeholds Not of Inheritance,- Life Estates mon law: (1) estate during coverture, or: by marital right; (2)
Freehold interests in land which are not of inheritance are curtesy; and, (3) dower. By force of statute they also include
termed "life estates." They include: (1) estates for the life of homesteads. An estate during coverture or by marital right, is
the tenant; (2) estates for the life of another (pur autre vie); the right which the husband acquires at common law to the use
and, ( 3) estates for an uncertain period which may continue dur- and profits of his wife's realty and to her chattels real. How-
ing a life. 10 They are terminated by death of the persons whose "-
ever, this right of the husband is qualified or abrogated by the
of an estate in fee simple to alienate his life"; (2) "to A for the joint lives equitable doctrine of the wife's separate ' property, and by stat-
it has been an inherent incident of of Band C"; (3) "to A for the Jives utory changes in nearly all of the states.
such an estate, and such estates have of A, B, and C, and the longest li ver An estate by curtesy, at common law, is an estate for the life
been devisable by will since the Stat- of them." See Restatement, p. 46. of the husband in all of his wife's estates of inheritance, the req-
ute of Wills, 32 Hen. VIII, c. 1, 1540. An estate pur autre vie is the lowest
estate of freehold, and usually a ri e ,
uisites being: (a) valid marriage; (b) issue born alive and c<:lpa-
8 Burdick, § 33, p. 72. ble of inheriting; (c) sufficient seisin of the wife during cover-
"when one who is tenant for life as·
9 Burdick,_§ 38, p. 81. signs his interest to another, who ture ; and, (d) death of the wife before the husband. Curtesy
"Estates tail may be created either
thereby becomes entitled to the land is said to be "initiate" when issue capable of inheriting is born
during the life of the grantor. It alive, and "consummate" at the wife's death, if the other requis-
by deed or by will. At common law,
may, however, be expressly limited
if the estate, is created by deed, the
for the life of a third person. The
ites have existed. The husband is entitled to curtesy in the fol-
phrase 'to [the donee] and the heirs lowing: (1) estates of inberitance, generally; (2) equitable
one whose life limits the duration of
of his body' is the appropriate form
the estate is 'called the 'cestui que estates; (3) estates in expectancy, when they vest in possession
of limitation. * * * There must
a lways be * * * some words
vie.' At common law, if the tenant during the life of his wife; (4) joint estates, except joint tenan-
of an estate pur autre vie died before cies; and, (5) determinate estates, when they are determined by
which show that th e heirs of the
the cestui que vie, whoever fi r st en·
donee's body, or some class of them,
tered and took poss~ssion of the land
a shifting use or an executory devise, and in all cases until they
are to inherit the estate. If wordS are defeated. In the United States "there has been legislation
could hold it for the remainder of
of inheritance are- absent, the donee
the term. Such a person was called which has made radical changes in the estate of curtesy. In
takes only a life estate, while the
omission of the words of procreation,
a 'general occupant.' If, however, some states curtesy has been expressly abolished by statute; in
the tenant had leased or assigned hi some, the estate is made the same as dower; and in others, a dis-
pr ovided the word 'heirs' is used,
estate, or words of limitation, as
gives the donee a fee simple." Bur- tributive share is given. Moreover, the changes effected by the
'heirs' or 'executor,' had been added
dick, p. 74. However, in England, un-
iIi the creation of the estate, then married women's acts, * * *' have nearly abolished curtesy
der the Conveyancing Act ,of 1881, 44 initiate by giving wives extensive powers to control and dispose
these were entitled to the residue,
& 45 Vict. c. 41, an estate tail may be
created by the use of the words "in
and they were called 'special occu- of their realty."12
tail," as, for example, "to A in tail"; pants.' By the statute, however, of Dower is "the provision which the law makes for a widow out
29 Car. II, [c. 3] general occupancy
the words "heips of the body" no of the lands or tenements of the husband for her support. At
longer being necessary. And, in the was abolished, and thereafter, when
a tenant pur autre vie died without common law, it is a life estate in one-third of the husband's es-
same way, an estate in tail special
baving dIsposed of his estate, then,
may be created by the words "in tail er power to dispose of it by will. In
if the term was not limited to the 11 Burdick, § 41, p. 84.
male" or "in tail female." tbl country, also, the question of
heirs, the executor took the reSidue,
10 The following limitations would holding it as assets for the payment occupancy is now usually regulated 12 Burdick, p. 117.
create estates for life: (1) "to A for of debts. This act also gave the own- by statute" Burdick. p. 87.
192 REAL PROPERTY Ch. 14 § 70 ESTATES
193
tates of inheritance."13 The requisites of dower are: (a) mar- sufferance. "Under the feudal system, the only interest in land
riage; (b) seisin of the husband during coverture; and, (c) death that could be created was a freehold; that is, an estate at least
of the husband before the wife. Generally, at common law, for life. In time, however, there grew up a custom of granting
"the widow has a dower in the husband's estates of inheritance, the use of land to tenants for stipulated p~riods or terms. These
providing the estate is one which issue of the wife could inherit. terms were originally of but short duration, only a few years in
This right of dower extends to land, and to all incorporeal real length, and anci~ntly a lease for a longer term than forty years
hereditaments; that is, those which savor of the realty. (a) In w~ h~ld to be VOl~. They gradually increased in length, however,
some states the land must be capable of beneficial enjoyment as until m modern tnnes leases for ninety-nine years are not un-
a life estate. (b) The estate must not be terminated by the hap- common. In fact, leases for nine hundred and ninety-nine years,
pening of a contingency. (c) At common law, the husband's es- and even for ten thousand years, are not unknown. At common
tate must be a legal one. At the present time, however, there law, estates for years, no matter how long, are but chattel in-
may be dower in equities of redemption, and in many' states, by terests, not real property. By force of statute, however, in some
statute, in all equitable estates. (d) The husband must be seis- states, terms exceeding a certain number of years, usually three,
ed in possession, not in expectancy. (e) The estate must be one are treated as real property for some purposes, as, for example,
not in joint tenancy."14 . under the laws regulating the attachment and descent and dis-
In most states statutes provide that the family residence or tribution of property. Regardless, however, of the length of the
home owned and occupied as prescribed by' statute shall be ex- t:rm, estates for years are of less dignity, by common law, than
empt from liability for certain debts. 15 This right is an exemp- life estates, although a life tenant would not live as long as the
tion (a) to the owner for life; (b) to the surviving spouse for life, designated period."16
in most states; and, (c) to the children during their minority, in An estate (or a tenancy) for years is an estate created for a
some states. Generally the exemption can be claimed only by definite period, measured by one or more years or fractions' of a
the ~'head of a family," and is usually acquired by actual occu- year. The grantor of such an estate is called the "lessor" or
pancy, in good faith, of the premises as a home. As a rule, any "landlord," and the grantee is called the "lessee" or "tenant." A
estate in possession, legal or equitable, will support a homestead, contract by which an estate for years is created is called a
but in some states a homestead cannot be claimed in joint es- "lease." Estates for years include all leases for a definite as-
tates. The amount, extent and value of the homestead are limit- certained period, whether for a number of years, one ye~r, a
ed by the statutes, and these statutes differ in the different states. month, or. a we~k, th~ word "years," as used here, meaning mere-
Unless forbidden by statute, a homestead may be sold or mort- ~y a de~mte UnIt of tnne. The only requirement as to the term
gaged, but in most states the husband and wife must join in the IS tha~ I~ be for a fixed period. Statutes in some states, how-
conveyance. ever, lImIt the number of years for which such an estate may be
created.
Estates Less than Freehold An estat: (or tenancy) at will is the estate which is created
Estates less than freehold are: (1) estates for years; (2) es- wher: land I~ let during the joint will of the parties. Such an es-
tates at will; (3) estates from year to year; and (4) estates at tate IS termmable at the will of the lessor and also at the will of
. t?e lesse~ and has no other specified period of duration. Tenan-
13 Burdick, § 53, p. 118. some states. (c) Debts contracted be- c~es at will, at common law, may be terminated at any time by
fore the passage of the home tead
14 Burdick, § 54, p. 123. laws. (d) Debts contracted and lien
:Ither p~rty, but they may agree to give not~ce before terminat-
attaching before the acquisition of ~ng an~ m many of the states notice to terminate an estate at will
15 A homestead is exempt from lia- the homestead, in many states. (e) IS reqUIred by statute.
bility for most debts, but "there are Debts contracted in r emoving incum- An estat~ from .year to year1'7 is an estate which will continue
certain debts that are enforceable brances, in a few states. (f ) Lien
against it. They are, generally, as for the improvement, or preservation
for succeSSIVe perIods of a year, or successive periods of a frac-
follows: (a) Public debts, in most of the. property, in many states." 16 Burdick, pp. 184, 185. riod to period." See Restatement, §
cases. (b) Liabilitie" for torts, in Burdick, § 71, p. 179. 1'7 Also termed an "estate from pe- 20.
SMITH EL.LAw 2d-13
194 REAL PROPERTY Ch.14 § 70 ESTATES 195
tion of a year, unless terminated. These estates partake of the Such estates are classified as: (1) estates upon condition prece-
nature of both estates for. years and of estates at will. Originally dent; and, (2) estates upon condition subsequent. Conditions
they were estates at will with rents payable periodically, that is, precedent are conditions which must be fulfilled before the es-
by the week, month, or year. "A tenancy from year to year may tates to which they are attached can vest or be enlarged; where-
be terminated, at common law, by either party by a notice given as conditions subsequent are conditions upon the fulfillment or
six months before the end of any year. It is also the rule that nonfulfillment of which estates previously vested are defeated.1&
such a tenancy may be terminated by a notice equal to the length Generally a freehold estate on condition subsequent is not termi-
of the periods when the tenancy is for periods of six months or nated merely by a breach of the condition until there has been
less. These rules, however, do not apply when a different notice a re-entry or claim.
has been provided for; (a) By agreement of the parties; or (b)
By statute, as is the case in most states."18 Same; Estates upon Limitation20
An estate (or a tenancy) at sufferance is a wrongful holding An estate upon limitation is one which is collaterally limited
over of lands after the expiration of a prior lawful tenancy or by the words of its creation to endure"until the happening of a
possession. To create such an estate the tenant must have come certain contingency. The estate ends as soon as the contingency
in by agreement, not as a trespasser, and he must hold without happens although otherwise it would continue for its natural
agreement. A tenancy at sufferance, at common law, may be duration. u "Estates upon limitation are distinguished from es-
terminated at any time by either party, without notice. How- tates upon condition, in that in the former the estate ends ab-
ever, in some states notice is required by statute. solutely as soon as the contingency happens, no entry being nec-
Licenses essary as in case of an estate upon condition, but the next vested
To be distinguished from nonfreehold estates are licenses. A "to A and his heirs" or to "A and the
19 For example, if A should grant
license is not an estate. A license is an authority to do some an estate to B, upon condition that B heirs of his body," or when it is said
act or a series of acts on the land of the licensor. They may be marry within a certain period, B's that at common law a grant of land
created either by express agreement or by implication, but be- marriage within the stipulated time "without words of limitation" will
ing mere personal privileges are generally revocable at the will would be essential to the vesting of convey only a life estate. The word
of the licensor except: (a) when coupled with an interest; (b) the estate in him; a condition prece- "limitation" is also used in the sense
dent. On the other hand, if A should of "estate," as; for example, u a limi-
when affecting only an easement of the licensor; or, (c) in some convey Blackacre to B and his heirs tation to A for life, remainder to B,"
states, when the licensee relying on the authority given has erect- subject to the condition that if B or or, in case of the' determination of a
ed improvements on the licensor's land. his heirs during the life of A should preceding estate, u a limitation over
erect a saloon upon the land A would to B.'" As used, however, in the
Quality of Estates; Absolute or Qualified be entitled to re-enter and terminate phrase "estate upon limitation" the
As to their quality, estates are either absolute or qualified. the estate, B would have an estate in word means a termination upon the
An absolute estate is one without modifications or conditions. fee simple subject to a condition sub- happening of a contingency. "It de-
sequent. fines the time when an estate will end,
Qualified estates, on the other hand, are estates that are subject namely, ipso facto upon the event of
to certain modifications or conditions. Under qualified estates Conditions which are illegal or im-
po sible of performance are VOid, the expressed contingency, regardless
may be classed: (1) estates upon condition; (2) estates upon and, when precedent, prevent estates of whether it would otherwise con-
limitation; (3) estates upon conditional limitation; and, (4) (lependent on them from vesting. tinue as a fee, an estate for life, or an
modified fees, the latter including (a) qualified, base, or deter- When subsequent, void conditions are estate for years." Burdick, p. 288.
minable fees; and, (b) conditional fees. inoperative and of no, effect. 21 For example, if A, who owns
20The word "limitation" in the law Blackacre in fee Simple, transfers
Same; Estates upon Condition Blackacre "to B for life or ,so long
of real property is used in several
An estate upon condition is an estate which is created, defeated, poses. Primarily it means marking as B shall remain unmarried," B's in-
enlarged or diminished on the happening of some uncertain event. out or defining the quantity of an es- terest would terminate u!3on marri-
tate as illustrated in the phrase age, otherwise it would endure for
18 Burdick, § 90, p. 236. ",yords of limitation," for example, B's life.
SMITH EL.LA w 2d
196 REAL PROPERTY Ch. 14
§ 70 ESTATES 197
remainder, or reversion, takes effect in immediate possession. A base fee was the estate received by the remainderman upon
The limitation specifies the utmost time of continuance, and the the barring of an estate tail by fine. 30 The effect of a fine was to
co~dition marks some event upon which the estate may be de- bar only the issue in tail, not the remainderman, and the grantee
feated."22 in such a case took what was called a base fee determinable by
failure of the issue in tail; the land passing in such event to the
Same; Estates upon Oonditional Limitation remainderman. A determinable fee, on the other hand, was an
An estate upon conditional limitation is an estate "limited to estate in fee simple which could be terminated by the happening
take effect after the determination of an estate which, in the ab- of some contingency expressed in the instrument creating the
sence of a limitation over, would have been an estate upon condi- estate.
tion."23 Such estates were unknown prior to the Statute of Nature of Estates; Legal or Equitable
Uses,24 but they arise since that statute under the forms of shift-
Estates in land may be either legal or equitable in nature both
ing uses; and also since the Statute of Wills25 under the forms of
as to their quantity and quality, legal estates being such as were
executory devises. As defined, "estates on conditional limitation
recognized at common law, equitable estates being such as were
are limitations over to a third person upon the termination of an
originally recognized only in courts of equity.31
estate upon condition caused by the breach of the condition.
They combine, therefore, the qualities of a condition and a limi- Same; Uses
tation. When the condition is broken, the next particular estate An equitable right to the beneficial enjoyment of an estate, the
passes to the person in whose favor the limitation is made."26 legal title of which is held by another person, is termed a "use."
"Owing to tl).e strict rules of feudal tenure, including among oth-
Same; Modified Fees er things, military service, forfeitures, escheats, and restraints
At common law, estates in fee could be subject to certain, spe- on alienation, there arose in early times, in England, a desire to
cial modifications and when so modified or qualified they were create a beneficial ownership in land which should not be sub-
variously known as qualified, conditional, base, or determinable ject to these incidents. One of the chief causes that promoted
fees. A qualified fee simple estate was one which, instead of be- this desire was the statute against mortmain, [7 Edw. I, stat. 2,
ing limited to a man and his heirs, was limited to a man and the c. 3, 1279]. This statute prohibited gifts of land in mortmain;
heirs of an ancestor whose heir he was, for the purpose of trac- that is, to religious corporations. It owed its origin to the frlCt
ing the descent, when required, from such ancestor. Such es ·
30 "Fines were actions for the re- These estates may be of the same
tates are practically obsolete.27 covery of lands on a claim of title, quantity and quality as legal estates.
A conditional fee was an estate limited to particular heirs, but which were compromised by the par- For exampl~, an equitable estate may
such estates were turned into estates tail by the Statute De ties with leave of the court, and the be created in fee simple, in fee tall,
judgment record entered in the case for life, or for years. They descend,
DoniS.28 "The ' statute affected, however, only freehold lands, became the record of title." Bur- in case of intestacy, the same as legal
and conditional fees may still exist, particularly in England, with dick, pp. 79, SO. estates. They are subject to the
reference to other hereditaments."2& rights of dower and curtesy. • * •
31 "Estates known to the common Equitable future estates in remainder
law and subject to the principles of and executory interests may also be
22 Burdick, pp. 288, 289. tional limitation" are not used in the
feudal tenure are known as 'legal es- ('reated, and under such limitations,
Restatement of the Law of Property.
23 Burdick, § 116, p. 290.
See Special Note, p. 120, and §§ 16, tates.' • • • In addition to these moreover, as would not be possible
e tates, however, there are estates or in common-law estates. Under the
2427 H en. VIII, c. 10, 1535. 23, 24, and 25, pp. 43, 55, 59, and 63,
interests in land which, although not doctrine of equitable estates or inter-
and c. 4, pp. 117- 120, thereof.
25 32 Hen. VIII, c. 1, 1540. recognized by the common-law courts, ests in land, a very important part
have been from very f'arly times ree- of the modern law of real property
26 Burdick, p. !?90. 28 13 Edw. I, c. 1, 1285. has been developed, namely, the law
o!!Ilized and protected in courts of
27 The terms "base fee," "condition- equity. To such estates or interests relating to trusts." Burdick, pp. 294,
al fee," "qualified fee" and "condi- 29 Burdick, p. 291. the term 'equitable estates' is applied. 295.
l!)S REAL PROPERTY Ch. 14 § 70 ESTATES 1!)9
that grants of land to such bodies were not favored by the great (4) A use upon a- use, that is, where an estate was conveyed to
lords, since under such alienations the lord got a tenant who A, "for the use of B, for the use of C." (5) Uses to grantees of
never died, who was never under age, who could never marry, legal estates. For example, a grant "to A and his heirs, to the
and who could never commit felony. The lords, therefore, were use of A and his heirs." As the statute in its terms was restrict-
deprived of their escheats, wardships, and forfeitures, the inci- ed to cases of a person or of persons being seized to t~e use "of
dents that were to them most profitable under the feudal sys- another person," a use to the grantee seised of the legal estate
tem."32 To avoid these various burdens and restrictions, the was not within it. In addition to such expressly declared uses,
practice of conveying lands to "uses" was introduced. That is, "there was another class of uses, known as resulting uses, or uses
the owner of land would convey the legal estate to another, upon by implication. For example, if a feoffment were made without
trust and confidence that the person to whom he conveyed would declaring any use, and without any consideration, a use arose by
permit either the grantor or some other person to have the bene- implication in the feoffor's or grantor's favor. On the other
ficial enjoyment or "use" of the land, and that the grantee of hand, if the feoffee, or grantee, did give some consideration, no
the legal title would execute estates according to the direction express use being declared, the law raised an implied use in the
of the person who had the use, the latter being known as the "ces- feoffee's favor."34
tui que use.'; Such a transfer, originally called a "feoffment to
Same; Trusts
uses," was introduced in England before the end of the thirteenth
century and the pe~on to whom the land was thus conveyed, "in Out of uses not within the Statute of Uses arose the modern
trust and confidence," was termed the "feoffee to uses." The trusts, as courts of equity continued to enforce such uses under
latter was the legal and only owner in the eyes of the common- the name of "trusts." A trust has been variously defined "and
law courts; but the chancery, (at that time usually under the many writers have defined a trust in the same terms employed
control of clergymen), was not in sympatThy with the purposes for the definition of a use. It would seem, however, that a 'use'
of the Statute of Mortmain, and consequently equity would en- is the beneficial interest enjoyed by a beneficiary, or the cestui
force such conveyances. Thus, a dual system of land ownership que trust, while a 'trust' is the equitable obligation imposed upon
arose and the legal title to a tract could be in one person while the trustee; in other words, the terms are not identical, but cor-
all the beneficial rights therein belonged to another. relative. Accordingly, others have more accurately defined a
trust as an obligation under which a person who has the legal
Uses, although in the favor of some, were unpopular with the estate to property, is bound, in equity, to deal with the benefic,al
great landowners of England and this opposition attained culmi- interest or use therein for the benefit of another, called the 'bene-
nation in the Statute of Uses. 33 This statute was intended to ficiary,' or the 'cestui que trust.' "35 According to the manner of
produce the effect that, whenever a person was entitled to the
beneficial interest in land, the legal title should be vested in him. 34 Burdick, p. 302. efit of another person, which arises
However, by reason of the terms of the statute and judicial con- as a result of a manifestation of an
35 Burdick, p, 303. Compare: "A intention to create it." Restatement
structions thereof, it was held not to apply to: (1) Chattel in- of the Law of Trusts, § 2, p. 6.
tru t is a relationship in which one
terests, or estates for years. (2) 'Active uses, or those under per on iil the holder of the title to "The settlor of a trust is the person
which the feoffee to use had active duties to perform in regard property, subject to an equitable ob- who intentionally causes the trust to
to the estate, such as collecting rents and profits, or selling the ligation to keep or use the property come into existence. The trustee is
property. (3) Estates for the separate use of married women. for the benefit 0:1' another," (Bogert the person who holds the title for the
on Trusts, § 1, p. 1); and, "A trust, benefit of another. The trust prop-
as the term is used . in the Restate- erty is the thing, real or personal, the
32 Burdick, p. 295. however, by virtue of statutory pro- ment of this Subject, when not quali- title to which the trustee holds, sub-
33 27 Hen. VIII, c. 10, 1535. "The visions or judicial decisions, the stat· fied by the word 'charitable,' 'result- ject to the rights of another. The
statute of uses has been re-enacted ute is not recognized. Some states, ing' or 'constructive,' is a fiduciary cestui que trust is the person for
in a number of our states, either in moreover, following the lead of New relationship with respect to property, whose benefit the -trust property is
terms or in substance, and in some ,York, have abolished by statute all fmbjecting the person by whom the held or used by the trustee." Bogert
others it is held to exist as part of uses and .t rusts except in certain spe- property is held to equitable duties on Trusts, § 1, p. 1. The cestui que
the common law. In other states, cified cases." Burdick, p. 298. to deal with the property for the ben- trust is also called the "beneficiary."
200 REAL PROPERTY Ch.14 § 70 ESTATES 201
their creation trusts are either: (1) express trusts, those creat- future interests, "estates in expectancy." Present interests, or es-
ed by the direct and positive acts of the parties; or, (2) implied tates in possession, are those which entitle their owners to the
trusts or those which, without being expressed, are created by immediate possession of the land; whereas a future interest oJ'
implication. estate is an estate limited to commence in possession in the fu-
The language relied upon for the creation of an express trust ture, either upon the termination cif a precedent estate created
must (a) manifest an intent that an express trust arise, and (b) at the same time, or without any precedent estate. 39
describe with certainty and completeness the trust essentials. In
England, prior to the Statute of Frauds,36 trusts of real and per- Same; Future Interests
sonal property required no writing for their creation, but the sev- Future interests may be classified as follows: (1) reversions;
enth section of that statute required express trusts of real prop- (2) remainders; (3) those arising under the State of Uses; and,
erty to be "manifested and proved" by a writing signed by the (4) those arising under the Statute of Wills.
party enabled to declare the trust, and most of the states have en-
A reversion is the residue of his estate which remains in a
acted similar statutes although with many minor variations.
grantor (the "reversioner") after he has granted a lesser estate
However, in a few jurisdictions, parol trusts in land are allowed.37
to another, the estate granted being termed the "particular es-
Implied trusts are divided into (a) resulting trusts, and (b) tate." The grantor's reversion commences in possession when
constructive trusts. The former are trusts which arise by im- the particular estate terminates. For example, if A, having a
plication of law for the purpose of carrying out the presumed in- fee simple estate in Blackacre, conveys Blackacre "to B for life,"
tention of the parties, and are subdivided into: (1) those where the interest in Blackacre remaining in A, that is the residue of his
the grantor conveys only the legal estate; (2) those where the fee simple, is a reversion, and upon the termination of B's estate
object of the trust fails in whole or ~ part, or is not declared; A will again be entitled to the possession or enjoyment of Black-
and, (3) those where a conveyance is taken in the name of an- acre. For the duration of B's estate, A has a "future" interest.
other than the one paying the consideration. Constructive trusts, Thus, there may be a reversion after the conveyance of any es-
(the second class of implied trusts), differ from resulting trusts in tate except a fee simple. 40
that they arise entirely by construction of equity for the purpose
of promoting justice or frustrating fraud, independently of any A remainder is "a remnant of an estate in land, depending upon
actual or presumed intention of the parties and often contrary to a preceding particular estate created by the same instrument,
their intention. and limited to arise immediately on the termination of the pJ."e-
ceding estate, but not in abridgment of it." 41 Remainders are
Trusts are classified according to their purposes as, "(a) Pri-
either: (1) vested; or, (2) contingent.42 A vested remainder
vate or public; and, (b) Active or passive. A private trust is a
trust for the benefit of a known, defined individual or individuals. 39 For definitions and the classifica- C and his heirs, the interest of C
A charitable or public trust is a trust in which unascertained, in- tion of future interests contained in would be a remainder, and as C is a
definite persons, to be selected by the trustee from the whole the Restatement, see §§ 153-158, pp. definite person, and as no conditions
world or from a certain class, are the ben,e ficiaries. An active 520-567, of that work. are attached to his interest, such re-
mainder would be a vested one. How-
trust is a trust in which the trustee has affirmative duties of man- 40 However, after the conveyance
of a fee on condition subsequent, or ever, if A. had granted Blackacre
agement and administration to perform. A passive trust is one to B for life, remainder to C, provid-
in which the trustee is a mere receptacle of the legal title and the creation of. a qualified fee, there
is obviously a contingent, future in-
ed C marry D, C's remainder being
has no affirmative duties toward the cestui que trust."38 terest remaining in the grantor. This dependent upon his marrying D,
interest is called a "possibility of re- would be a contingent one.
Time of Enjoyment; Present and Future Interests verter." Remainders are also classified as
As to the time of their enjoyment, interests or estates in land "successive," "cross," or "alternate."
41 Burdick, § 141, p. 348.
are either: (1) present interests, "estates in possession"; or, (2) Thus, a remainder limited to take ef-
42 For example, if A., owning Black- fect after another, is termed a "suc-
36 29 Oar. II, c. 3, 1676. 38 Bogert on Trusts, § 44, p. 152. acre in fee simple, should grant cessive remainder." For example,
37 See Bogert on Trusts: pp. 44-64. Blackacre to B for life, remainder to there may be an estate granted to A
202 REAL PROPERTY Ch. 14 70 ESTATES 203
is one where neitlier the right to the possession of the estate upon Thus, under the rule of Shelley's case, the word "heirs" defines
the determination of the preceding estate, nor the person entitled the quantity of the estate given to the grantee or devisee, and
to it, is uncertain; the only uncertainty being the time of enjoy- the heirs of the grantee or devisee do not take any estate at all
ment. A contingent remainder, on the other hand, is one where by the grant or will. The "rule" has been abolished by statute
there is an uncertainty, either as to the right to the estate or as in some States, is in force in otherS.
to the person entitled to it, or both. Such a remainder depends Statute of Uses; Future Interests
upon an event or condition which may never happen or be per-
formed, or which may not happen or be performed until after Future interests or estates arising under the Statute of Uses
the termination of the preceding estate.43 are: (1) uses taking effect as remainders; (2) springing uses;
and, (3) shifting uses. Remainders, at common law, required a
Sherley's Case preceding estate and had to arise without an abridgment of such
The "rule in Shelley's Case," was set forth in the action of preceding estate. "Equity, however, never recognized such re-
Wolfe v. Shelley,44 in which it was held, "It is a rule of law when quirements, and future uses could be created which would spring
the ancestor by any gift of conveyance takes an estate of free- into existence without any preceding estate, or which would de-
hold, and in the same gift or conveyance an estate is limited feat or cut short a preceding estate." 45 And, as the Statute of
mediately or immediately to his heirs in fee or in tail, that always Uses did not terminate the creation.of uses but merely converted
in such case 'the heirs' are words of limitation of the estate, and them into legal estates, future uses having preceding particular
not words of purchase." In other words the ancestor takes an estates to support them may take effect as either vested or con-
estate in fee simple or in tail, according to the case; a word of tingent common-law remainders, according to the circum-
"limitation" being a word that limits or defines an estate, that stances. 4S
measures its duration; words of "purchase" being words denot- Springing uses are future uses which take effect without the
ing the manner in which an estate is acquired as distinguished support of preceding estates. Such a use receives its name from
from descent. The word "purchase" in its legal sense includes the fact that "it springs up as a separate and independent interest
every method of coming into an es;tate other than by descent. in lands, cutting short no preceding use. A-limitation to the use
tor life, with remainder to B for life,
of B and his heirs after the death of A, or a limitation to A iu fee
ever, but, if he die without issue
with remainder to 0 for life. "Cross male, then to B and his heirs forever,
for the use of B in fee after ten years, are examples of springing
remainders," are remainders after the remainders created would be al- uses." 47 Shifting uses, on the other hand, are future uses which
two or more particular estates in dif- ternate. Only one could take effect, take effect in derogation of a preceding estate. "When a future
ferent persons, and which, upon the the other would be void. Necessari· use, not limited by way of remainder, defeats a previous estate
termination of anyone of the preced- ly, alternate remainders are both con·
ing estates, go over to the survivor of
expressly limited by the same instrument, it is called a 'shifting
tingent.
the particular tenants. Thus, if use.' The use is said to shift from the first taker to the ' second.
Blackacre is given to A and B in 43 "At common law, contingent re· For this reason, shifting uses are also called 'secondary uses.' A
common for life, remainder. in fee to mainders may be destroyed: (a) By limitation, for example, to the use of A for life, and if B shan
the survivor; or a devise of Blackac- the expiration of the particular es-
tate before the remainder vests. (b)
marry before a specified date, then to the use of B for life, is an
re is made to A, and of Whiteacre to
B, in tail, and if either dies without By the ·destl1lction of the particul a r illustration of a shifting use. The estate which B takes upon
issue the survivor to take; in either estate. (c) By merger of the particu- his marriage shifts from A to B, and cuts off the preceding es-
case A and B have cross-remainders. lar estate and the next vested re- tate in A." 48
"Alternate remainders," on the other mainder. (d) By forfeiture of the
hand, are those so limited after a particular estate." BurdiCk, § 148, 45 Burdick, p. ,372. ites fail, the limitation will take ef-
particular estate that only one of p. 364. However, in many of the fect as a springing or shifting use."
states the liability of contingent re- 46 A future use taking effect as · a
them can ever take effect. For exam- Burdick, p. 373.
mainders to destruction has been re- co=on-law remainder "must have a
ple, if Blackacre were given to A for
life, and if he have issue male, then moved by statutes. . preceding particular estate to support 47 Burdick, § 152, p. 374.
it, and must not take effect in deroga-
to such issue male and his heirs for- 44 1 Co. Rep. 93b, 1581.
tion of that estate. If these requis- 48 Burdick, § 153, pp. 374, 375.
204 REAL PROPERTY Ch.14 § 70 ESTATES 205
Statute of Wills; Future Interests which must not necessarily vest within twenty-one years, exclu-
Executory devises are future estates created by devise under sive of periods of gestation, after lives in being." 52 As estab-
the Statute of Wills 49 and which cannot take effect as common- lished by the English courts, the rule against perpetuities has
law remainders. "Prior to the establishment of tenure in Eng- been adopted in many of the states as part of the common law,
land, under the feudal system, lands were devisable, but after but other states have either adopted or changed the rule by stat-
that time until the time of Heriry VIII they were not. However, ute.
during this interval, owing to the distinction made in equity be-
Number of Owners of Estates; Estates in Severalty and Joint Es-
tween the legal estate in land and the use in land, • • • a tates
man might by will dispose of the use or profits of the land, al-
though he could not dispose of the land itself. The statute of According to their exclusiveness, that is the number of their
uses, however, which was enacted in 1535, prohibited this method owners, estates are either: (1) estates in severalty; or, (2)
of practically alienating by will the land itself under the guise joint estates. An estate in severalty is an estate which is owned
of devisLl1g the uses and profits of the land. This put a stop to by one person only; whereas a joint estate is an estate which
'wills of uses,' but the inconvenience produced was so great that is owned by two or more persons. Joint estates, at common law,
it led, five years later (1540), to the enactment of the statute of subdivide into: (a) joint tenancies; (b) estates in coparcenary;
wills. By the very liberal provision.s of this statute, it was possi- (d) estates in entirety; and, (d) tenancies in common.
ble to create any future interest in realty which could be creat- A joint tenancy "is an ownership of land in equal undivided
ed by means of uses before the statute of uses." 50 shares by virtue of a grant or a devise which imports an intention
Although executory devises are created by will only, "they do that the tenants shall hold one and the same estate. The inter-
not take effect at the testator's death, ,as in case of an ordinary ests of all the tenants go to the last survivor. For the existence
devise, but arise and vest upon some future event or contingency. of a joint tenancy the following unities are necessary: (a) Unity
They consist of such interests created by will as would be called of interest. (b) Unity of title. (c) Unity of time. (d) Unity
springing and shifting uses if created inter vivos by way of use. of possession." 53 The chief characteristic of a joint tenancy is
They are not future uses, however, since a future use limited in the right of survivorship. Thus, where such a tenancy exists,
a will is not construed as an executory devise, but will amount to either at common law or by force of statute, and one of the joint
a legal estate under the operation of the statute of uses."51 tenants dies, his interest does not pass to his heirs, but the sur-
vivors take the whole estate, and this doctrine of survivorship
Rule Against Perpetuities applies, where there are several joint tenants, until only one joint
tenant remains, and on his death his heirs get the whole estate.
The right to create future interests in land is restrained by the In most states, common-law joint tenancies have been modified
rule against perpetuities. This rule has been stated as follows: or abolished by statute. I
"Unless otherwise provided by statute, no future contingent and
An estate in coparcenary is a joint ownership of land in undi-
indestructible interest in property can, in general, be created
vided shares by coheirs. The requisites of such -an estate are:
4932 Hen: VIII, c. 1, 1540. port it, or where there is an interval (a) unity of interest; (b) unity of title; and,- (c) unity of pos-
betw~en the termination of a preced-
50 Burdick, p. 375. ing estate and the vesting in posses- 52 Burdick, § 161, p. 386. created by the same act. Unity of
sion of the executory interest_ An time means that the interests of jOint
51 Burdick, p. 376. tenants commence or vest at the same
executory devise is a "shifting de- 63 Burdick, § 101, p. 250.
Wills may create future interests vise" when it is so limited that it time. And, unity of possession means
in the nature of springing or shift- Goes not wait for the natural deter- Unity of interest means a similar- a joint right in each tenant to pos-
ing uses, and these are called, re- mination of a preceding estate, as in ity of estate in each joint tenant in session. However, in a joint tEman-
spectively, "springing" and "shifting" the case of a remainder, but takes ef- l eference to the duration of the es- cy "each tenant must have tl;1e entire
devises. An executory devise is a fect upon the happening of some tate. Unity of title means of the possession of every parcel of the
"springing devise" when it has no event which cuts short the preceding same grant or devise, that is, that the property as well as of the whole."
preceding estate of freehold to sup- estate. interest of each joint tenant was Burdick, p. 253.
206 REAL PROPERTY Ch. 14 § 70 ESTATES 207
session. The doctrine of survivorship characteristic of joint ten- Generally the estate which the mortgagee is regarded as hav-
ancies is inapplicable. Estates in coparcenary are practically ing under the common-law or title theory may be defeated upon
abolished in the United States, being replaced by tenancies in performance by the mortgagor. of his ·obligation, within the time
common. stipulated in the deed. Usually this obligation of the mortgagor
An estate in entirety is one conveyed to a man and his wife to is the payment of a debt. However, if the mortgagor fails to
hold jointly. At common law, owing to the doctrine of identity perform within the time agreed the mortgagee's estate becomes
of husband and "wife, a conv~yance or devise of lands to them absolute. In most of the states, either by statute or judicial de-
during coverture creates an estate in entirety and the doctrine of cision, the common-law title theory of mortgages has been abro-
survivorship applies to such an estate. In England, and in some gated and the lien theory adopted.
of the states, statutes have abolished estates in entirety. In oth- Under the equitable or lien theory, followed by the English
er states statutes expressly provide that joint conveyances to court of equity, a mortgage is regarded as merely security for the
husband and wife shall create tenancies in common.54 debt or other condition which is to be paid or performed by the
A tenancy in common is a joint ownership of lands to which mortgagor, title is regarded as in the mortgagor, and the mort-
the principle of survivorship is inapplicable. The only unity nec- gagee is considered as having only a lien on the land. The equity
essary for such a tenancy is that of possession. At the present courts also recognized a right in the mortgagor to redeem the
time, "tenancies in common may arise by will, conveyance, de- land, upon payment of the amount due with interest, although he
scent, mortgage, prescription, or by levy of execution. The in- failed to perform within the stipulated period, such right being
dividual interests may be held by several and distinct titles, and termed the "equity of redemption." Originally, after the right
these titles may be acquired in different ways."5lS of redemption arose, a mortgagor was permitted to redeem at
any time, but later the mortgagee was permitted to file a bill in
Mortgages and Other Liens upon Realty equity for the purpose of cutting off this right. At the present
The definition ot" a Iportgage upon real property depends upon time in many of the states, and in distinction from the equity of
the theory of its nature. "rn this country there are two well- redemption which could be cut off or foreclosed by the mortga-
recognized theories regarding mortgages. One is known as the gee, a right of redemption is "given the mortgagor by statute
common-law, or legal, or title theory; the other, as the equitable which arises when the mortgage is foreclosed. And, generally,
or lien theory. (a) The common-law theory regards a mortgage these statutes limit the period in which such right may be exer-
as an estate in land created by a conveyance, and the mortgagee cised.
as the owner of the land. It is an estate upon condition subse- Mechanics' liens, judgment liens, and various other miscellan-
quent. (b) The equitable or lien theory regards a mortgage as eous liens against land are also recognized. "Mechanics liens are
a mere security for a debt; and the mortgagee as having only a liens created by statute for the purpose of securing to mecl1anics,
lien. The title remains in the mortgagor." 56 materialmen, and contractors a priority of payment of the price
and value of work performed and materials furnished in erecting
54 In some states the doctrine of al. The legal 'community Is fixed by or repairing a building or other structure." 57 The procedure for
"community property" applies to law; the conventional community re- the enforcement of such liens varies with the different statutes,
married persons. "The general prin- suIts from express ' agreement of the
but usually they provide a means whereby property subject to a
ciple underlying the system of com- parties." Burdick, pp. 2:77, 278. The
munity property is that all property creation and incidents of this form of lien may be sold for the satisfaction of the claim for which"the
acquired during marriage, by the in- joint ownership are governed by the lien is allowed. At common law the lands of a debtor were not
dustry and labor of either the hus- local statutes.
band or the wife, or both, together property of another as a security for The person who gives a mortgage is
with the produce and increase there- 55 Burdick, p. 260. orne debt or charge"; "a charge im- called the "mortgagor"; the person
of, belongs beneficially to both during ]losed upon specific property, by to whom a mortgage is given is call-
56 Burdick, § 184, p. 458.
the continuance of the marital rela- wh ich it is made security for the per- ed the "mortgagee."
tion. * '" * Community property A "lien" is defined as, "a hold or form ance of an act." Black's Law
is of two kinds. legal and convention- <;laim which one person has upon the Dictionary, 3d Ed. p. 1114. " 57 Burdick, § 213, p. 567.
208 REAL PROPERTY Ch. 14 § 71 TITLES 209
liable for his debts and a judgment against a debtor was not a include all titles but title by descent, the term "purchase" mean-
lien upon his real property, consequently "a judgment lien is ing more than merely "to buy." Hence, titles by purchase in-
created only by statute. It is not an interest or estate in land, clude, in general, not only titles which result from the buying
but merely a right, superior to all subsequent claims, liens, in- of land or goods, but also titles which result from the wills of
cumbrances, or conveyances, to subject the interest or estate of deceased persons, and various other titles which result from the
the judgment debtor in the land to the satisfaction of the judg- operation of law.
ment debt." 58
In addition to mortgage liens, mechanics' liens, and judgment Classification of Titles by Purchase
liens, real property may be subject to other miscellaneous liens Titles by purchase may be acquired in two ways: (1) by oper-
arising from taxes, assessments for public improvements, crop ation of law ; and, (2) by alienation. A title by purchase from
claims and the like. As to their origin, such miscellaneous liens operation of law is such a title as may be acquired by the action
or charges are either equitable or statutory. of some legal principle, without an. act on the part of any person.
A title by' alienation, on the other hand, is a title which is ac-
TITLES quired as the result of an act on the part of one or -more persons.
71., ' The word "title" is used in two senses which denote: Titles by Operation of Law
(1) Ownership, or when appropriately limited, a claim of owner- A title by operation of law may be obtained in the following
ship, and different ways: (1) by escheat; (2) by accretion; (3) byaban-
donment; (4) by forfeiture ; (5) by prescription; (6) by ad-
(2) The operative facts which result in ownership, or which con-
stitute the base of a claim of ownership.
verse possession; (7) by marriage; or, (8) by bankruptcy. Such
titles result from transfers effectuated by the operation of legal
In General principles alone and do not include transfers executed by govern-
As used in reference to ownership of both real and personal
mental agents; thus, a title obtained at a sale of land for nonpay-
property the word "title" may denote either t~e means by which ment of taxes would not be a title by operation of law, but rather
a title by alienation.
property is acquired, or the means by which it is held. Thus, .in
the law of real property, title may be defined either as the means Same; Escheat
by which an estate in land is held; or the means by which an es- I
tIe System," or the "Torrens System." "The plan did not orig-
inate, however, in Australia. It is based upon the German
Grundbuch System, which has been the law in some part of con- CHAPTER 15
tinental Europe for centuries. *' *' *' While the statutes may
vary more or less in details, the general outlines of the system PERSONAL PROPERTY
are as follows: Any person, claiming to be the owner, who wis):1es 72. In General.
73. Sales.
his alleged title to land registered, files an application or petition
74. Bailments.
in court, setting forth the alleged facts regarding his title, to-
75. Pledges.
gether with a statement as to any liens or incumbrances thereon.
The petition is referred to examiners appointed by tl}e court. •
IN GENERAL
The examiners report, in due time, their findings of fact as to
the title, whereupon, after a hearing, to which all parties in inter- 72. Personal property includes all property rights which do not
est are summoned, the court determines whether the title of the constitute realty.
land shall be registered or recorded as prayed, and, if so recorded,
a certificate of such title is issued to the holder of the record ti- Personalty includes all property rights except freehold inter-
tle. '1:' 'Ii< *' After land has been registered, the usual deed is ests in land. The word "chattel" is commonly used to denote
made, in case of a conveyance; but any.of the ordinary forms of either a personal -prop~rty right or the object of such a right, as
conveyance purporting to transfer the title operate only as con- are the terms "personal property" and "personalty," but the term
tracts to convey, and as authority to the registrar to transfer chattel is used more often to denote the object of a personal prop-
the title. The transfer itself is usually effected by the surrender erty right- the thing- rather than such a right. According to
of the dupliL:ate certificate of title and the issuing of a new certifi- Blackstone the word "chattel" is derived from "the technical
cate to the transferee. If only part of the owner's interest is Latin word, catarta, which primarily signified cattle, but- in its
transferred, another certificate is issued to him for the interest secondary sense, was applied to all movables. The Normans ac-
remaining in him. Transfers by descent, devise, or by judicial counted. all things not feuds, as chattels. And in this exte~ded,
process are made by the registrar in accordance with the orders negatIve sense, our law adopts it; the idea of goods or movables
and decrees of the court." 19 For the protection of the system it only, being not sufficiently comprehensive. Two' requisites were
is genemlly provided by statute that after land has been register- required to constitute a fief or heritage, duration as to time, and
ed no title thereto, adverse or in derogation of the title of the immobility with regard to place; whatever wants either of these
registered owner, shall be acquired merely by any length ~f pos- qualities, according to the Normans, was not a heritage or fief
session. In other words, generally, title to registered land cannot hence it must be a personal estate or chattel."l '
be acquired by adverse possession. Generally it may be said that the objects of real property
rights are immovable (lands), and that the objects of personal
79 Burdick, pp. 616, 617, 619.
property rights are movable (chattels, or goods). However,
this generality ignores the interests in land which are regarded
as personalty, and the various things which may be immovable at
one time but movable at another time. For example, the mate-
rials and equipment for buildings, crops and trees. Consequent-
ly, such things may be regarded differently, according to their
movability at different times. Hence, the fixture doctrine and
the doctrine of emblements. .
by execution is that title which is acquired and held by one who gift or does not die from the danger anticipated. However, in
purchases personalty sold to satisfy the judgment of a court of most states the rule is that title vests in the donee immediately,
law. Title by judicial decree, on the other hand, is that which is subject to defeasance upon revocation or recovery by the donor.
acquired and held by virtue of a sale ordered by a court in the
exercise of equity power. For example, where a chattel is or- SALES
dered by a court to be sold, in a proceeding brought to foreclose 73. A sale of goods is an agreement whereby the seller transfers
a chattel lien or mortgage, the title the purchaser acquires is the property in goods to the buyer for a consideration called
title by judicial decree. Interests in chattels may thus be acquir- .the price.
ed by execution and by judicial decree, as well as interests in
realty. This definition is contained in the Uniform Sales Act, a codifi-
cation of the law governing sales transactions approved by the
Same; By Act of Persons Commissioners on Uniform State Laws in 1906.10 Among oth-
Title by act of persons may result in three general ways: (1) er definitions of fundamental terms also contained in the Actl l
by testament; (2) by gift; (3) by sale. Title by testament is that are the following: (1) "Seller" means a person who sells or
which is acquired and held by a legatee under the will of his de- agrees to sell goods, or any legal successor 'in the interest of such
ceased testator. Title by gift is that which is acquired and held person. (2) "Property" means the general property in goods,
by a transfer of the property in goods from one called the donor and not merely a special property. (3) "Goods" include all chat-
to one called the donee without the payment of any considera- tels personal other than things in action and money. The term
tion or price being required of the donee. Generally, in order to includes emblements, industrial growing crops, and things attach-
effect a valid gift, the following three requisites must be satisfied: ed to or forming part of the land which are agreed to be severed
(a) the donor must intend to transfer his title in the goods to the before sale or under the contract of sale. (4) "Buyer" means
donee; (b) possession of the chattel which is the subject of the a person who buys or agrees to buy goods or any legal successor
gift must be delivered to the donee; and, (c) the donee must ac- in interest of such person. In regard to "price," the Act12 pro-
cept the gift. There are two kinds of gifts, but' both are govern- vides that: "(1) The price may be fixed by the .contract, or
ed by this formula. The two kinds are: (1) gifts inter vivos; may be left to be fixed in such manner as may be agreed, or it
and, (2) gifts causa mortis. The former, gifts inter vivos, are may be determined by the course of dealing between the parties.
present, absolute gifts between living persons. Gifts causa mor- (2) The pri.ce may be made payable in any personal property.
tis, on the other hand, are gifts made by donors in contempla- (3) Where transferring or promising to transfer any interest
tion of death which they believe to be imminent. The principal in real estate constitutes the whole or part of the consideration
distinction between the two kinds of gifts is that a gift inter vivos for transferring or for promising to transfer the property in
vests an absolute title in the donee which cannot thereafter be goods, this act shall not apply. (4) Where the price is not de-
revoked by the donor; whereas the donor of a gift causa mortis termined in accordance with the foregoing provisions the buyer
may revoke the gift at any time before his death, and a gift must pay a reasonable price. What is a reasonable price is a
causa mortis is revoked ipsQ facto if the donor does not die from question of fact dependent on the circumstances of each particu-
the cause he 'had in mind when the gift was made. In other lar case."
words, a gift causa mortis does not become absolute until the
donor dies from the cause contemplated when the gift was made, Contract to Sell
and without revoking it. The courts are not agreed as to wheth- A contract to sell goods is a contract whereby the seller agrees
er the donor's death is a condition precedent or a c-ondition sub~ to transfer the property in goods to the buyer for a consideration
sequent as to the donee's title in the case of a gift causa mortis. called the Sale of Goods Act, adopted
10 Section 1(2). The various juris-
That is to say, there is some conflict as to whether the donor's dictions in which this act has been in 1893.
death is a condition precedent to the vesting of title in the donee, adopted are listed in the appendix.
11 Section 76.
or whether title vests in the donee when the gift is made, but The common law of sales has also
subject to being defeated if the donor subsequently revokes the been codified in England by a statute 12 Section 9.
230 PERSONAL PROPERTY Ch . I ::> 'i3 SALES 231
called the price. "A contract to sell differs from a sale in that Capacity of Buyers and Sellers
the property is not passed by the agreement at the time of the The Uniform Sales Act14 provides that the capacity of persons
bargain but instead the seller assumes a contractual obligation to buy and sell shall be regulated by "the general law concern-
to make the transfer of the property and the buyer assumes a ing capacity to contract, and to transfer and acquire property."
contractual obligation to accept such transfer at a future time. But, "where necessaries are sold and delivered to an infant, or to
"" "" "" The one is a present transfer of the property. The oth- a person who by reason of mental incapacity or drunkenness is
er is a contractual undertaking to make and accept such transfer incompetent to contract, he must pay a reasonable price there-
in the future. The difference in legal consequences between for." The term "necessaries" is defined to mean, "goods suitable
sales on the one hand and contracts to sell on the other is tremen- to the condition in life of such infant or other person, and to his
dous. Thus, if the transaction is a sale, the goods already belong actual requirements at the time of delivery."
. to the buyer, with all the advantages and risks which such owner-
ship involves. If the seller refuses to deliver the goods, the buyer Formalities; Statute of Frauds
may take them through legal process. [Act, § 66.] If the goods In the absence of special statutQry requirements no particular
are accidentally destroyed or deteriorated, the loss falls on the form is necessary for a sale or contract to sell, as the Sales AcP5
buyer as owner. [Act, § 22.] He is liable for the purchase provides that "subject to the provisions of \this act and of any
price, if it has not already been paid, irrespective of what hap- statute in that behalf, a contract to sell or a sale may be made
pens thereafter to the goods. [Act, § 63.] He is entitled to in writing (either with or without sale), or by word of mouth, or
their increase in value, should that happen, irrespective of wheth- partly in writing and partly by word of mouth, or may be in-
er he has yet paid. If it is a contract to sell, on the other hand, ferred from the conduct of the parties." However, the provi-
the legal incidents of ownership still fallon the seller. Thus, the sion of the old English Statute of Frauds16 appli~able to sales of
accidental loss or deterioration of the goods prevents his perform- chattels has been substantially re-enacted by the Uniform Sales
ing the contract to sell and precludes his recovering the purchase Act.17 This section reads, "(1) A contract to sell, or a sale of
price. [Act, § 8.] The contract seller as owner of goods can any goods or choses in action of the value of five hundred dol-
transfer them to another, or keep them for himself, and in ordi- lars or upward,18 shall not be enforceable by action unless the
nary cases the contract buyer's only remedy is an action for dam- buyer shall accept part of the goods or choses in ' action so con-
ages for breach of contract."13 tracted to be sold, or sold, and actually receive the same, or give
something in earnest to bind the contract, or in part payment, or
Distinctive and Requisite Elements of Sales unless some note or memorandum in writing of the contract or
The elements which generally distinguish a 's ale of chattels or sale be signed by the party to be charged or his agent in that
goods from other transactions are: (1) a sale transfers the behalf. (2) The provisions of this section apply to every such
general property interest in the goods; and, (2) the transfer is contract or sale notwithstanding that the goods may be intended
for a price paid or promised. If either of these elements is lack- to be delivered at some future time or may not at the time of
ing the transaction is not a sale. However, since sales transac- such contract 'or sale be actually made, procured, or provided, or
tions are agreements for a consideration, whether they be pres- fit or ready for delivery, or some act may be requisite for the
ent transfers or contracts to transfer in the future, the ordinary making or completing thereof, or rendering the same fit for de-
rules which govern the formation of contractual relations apply livery; but if the goods are to be manufactured by the seller es-
to sales and contracts to sell. Accordingly, in order to have a pecially for the buyer and are ' not suitable for sale to others
sales transaction it must appear that there was an offer which in the ordinary course of the seller's business, the provisions
was made by one of the parties and which was accepted by the '
14 Section 2. 17 Section 4.
other party. Their minds must have, met. They must have
agreed. 18 This provision bas not been
15 Section 3. adopted verbatim in all states, how-
13 VoId on Sales, (hereinafter cit- ' e,er, and the amount fixed in the
ed "VoId") p. 6. 16 29 Car. II, c. 3, § 17, 1676. sta tutes of the different states varies.
232 PERSONAL PROPERTY Ch. 15 § 73 SALES 233
of this section shall not apply. (3) There is an acceptance of er: Rule 1. Where there is an unconditional contract to sell spe-
goods within the meaning of this section when the buyer, either cific goods, in a deliverable state,25 the property in the goods pass-
before or after the delivery of the goods, expresses by word or es to the buyer when the contract is made arid it is immaterial
conduct his assent to becoming the owner of those specific whether the time of payment, or the time of delivery, or both, be
goods." Failure to comply with the provisions of this section, postponed. Rule 2. Where there is a contract to sell specific
is usually held "not to render the transaction void, but merely to goods and the seller is bound to do something to the goods,
prevent its enforcement by action."I!) for the purpose of putting them into a deliverable state, the
property does not pass until such thing be done. Rule 3. (1)
Risk of Loss - When goods are delivered to the buyer 'on sale or return,' or
Concerning risk of loss the Sales Act20 provides: "Unless oth- on other terms indicating an intention to make a present sale,
erwise agreed, the goods remain at the seller's risk until the prop- but to give the buyer an option to return the goods instead 'of
erty therein is transferred to the buyer, but when the property paying the price, the property passes to the buyer on deliv-
therein is transferred to the buyer the goods are at the buyer's ery, but he may revest the property in the seller by returning
risk whether delivery has been made or not, except that: (a) or tendering the goods within the time fixed in the contract,
Where delivery of the goods has been made to the buyer, or to a or, if no time has been fixed, within a reasonable time. (2)
bailee for the buyer, in pursuance of the contract and the prop- When goods are delivered to the buyer on approval or on trial
erty in the goods has been retained by the seller merely' to secure or on satisfaction, or other similar terms, the property there-
performance by the buyer of his obligations under the contract, in passes to the buyer-(a) When he signifies his approval
the goods are at the buyer's risk from the time of such delivery. or acceptance to the seller or does any other act adopting the
(b) Where delivery has been delayed through the fault of either transaction; (b) If he does not signify his approval or accept-
buyer or seller the goods are at the risk of the party in fault as ance to the seller, but retains the goods without giving notice
regards any loss which might not have occurred but for such - of rejection, then if a time has been fixed for the return of the
default." goods, on the expiration of such time, and if no time has been
fixed, on the expiration of a reasonable time. What is a reason-
Transfer of Property as Between Seller and Buyer
able time is a question of fact. Rule 4. (1) Where there is a
contract to sell unascertained or future goods26 by description,
Under the Sales Act,21 where there is a contract to sell unascer- and goods of that description and in a deliverable state are uncon-
tained goods, no property in the goods is transferred to the buy- ditionally appropriated to the contract, either by the seller with
er until the goods are ascertained. Where there is a contract to the assent of the buyer, or by the buyer with the assent of the
sell specific or ascertained goods,22 the property in them is trans- seller, the property in the goods thereupon passes to the buyer.
ferred to the buyer at such time as the parties to the contract Such assent may be expressed or implied, and may be given ei-
intend it to be transferred, and the Act provides that "for the pur- ther before 9r after the appropriation is made. (2) Where, in
pose of ascertaining the intention of the parties, regard shall be pursuance of a contract to sell, the seller delivers the goods to the
had to the terms of the contract, the conduct of the parties, us- buyer, or to a carrier or other bailee (whether named by the
ages of trade and the circumstances of the case."23 Further, the buyer or not) for the purpose of transmission to or holding for
Act24 provides that, "unless a different intention appears, the fol- the buyer, he is presumed to have unconditionally appropriated
lowing are rules for ascertaining the intention of the parties as to the goods to the contract, except in the cases provided for in
the time at which the property in the goods is tn pass to the buy- the next rule and in section 20. This presumption is applicable,
19 VoId, § 22, p. 48. "goods identified and agreed upon at 25 (Goods are in a "deliverable 26 (The term "future goods," means
the time a contract to sell or a sale state" within the meaning of the "goods to be manufactured or acquir-
20 Section 22. is made." U.S.A. § 76(1). ed by the seller after the making of
Sales Act, "when they are in such a
21 Section 17. · 23 U.S.A. § 18. state that the buyer would, under the contract of sale." U.S.A. § 76(1).)
the contract, be bound to take deliv-
22 The term "specific goods," means 24 Section 19. ery of them." U.S.A. § 76(4).)
SALES ' 235
234 PERSONAL PROPERTY Ch. 15 73
although by the terms of the contract, the buyer is to pay the A uction sales
price before receiving delivery of the goods, and the goods are In regard to sales by auction the Act 28 provides: "~1) Where
marked with the words 'collect on delivery' or their equivalents. 26 & goods are put up for sale by auction in lots, each lot ~s t~e sub-
Rule 5. If the contract to sell requires the seller to deliver the ject of a separate contract of sale. (2) A sale by ~uctIOn IS com-
goods to the buyer, or at a particular place, or to pay the freight plete when the auctioneer announces its completIon ?y the fall
or cost of transportation to the buyer, or to a particular place, of the hammer, or in other customary mann~r. . Until such an-
the property'" does not pass until the goods have been delivered nouncement is made, any bidder may retract hIS bId; and t~e auc-
to the buyer or reached the place agreed upon."27 tioneer may withdraw the goods from sale unless.the auct~on has
been announced to be without reserve. (3) A right to bId may
26.. (Section 20 of the Act reads:
be reserved expressly by or on behalf of the ~elle:. (4~ Where
the bill of lading if he does not honor
"(1) Where there is a contract to sell the bill of exchange, and if he wrong- notice has not been given that a sale by auctIOn IS subJect to a
!-lpecific goods, or where goods are fully retains the bill of lading he ac- right to bid on behalf of the seller, it shall not be lawful fo~ the
subsequently appropriated to the con- quires no added right thereby. If, seller to bid himself or to employ or induce any person to bId .at
tract, the seller may, by the terms of however, the bill of lading provides such sale on his behalf, or for the auctioneer to employ or m-
the contract or appropriation, reserve that the goods are deliverable to the duce any person to bid at such sale on behalf of the seller or
the right of possession or property in buyer or to the order of the buyer, or
the goods until certain conditions is indorsed in blank, or to the buyer by knowinO'ly to take any bid from the seller or any person employ-
have been fulfilled. The right of pos- the consignee named therein, one who ed by him.Any sale contravening this rule may b,~ treated as
session or property may be thus re- purchases in good faith, for value, the fraudulent by the buyer." On the other hand, agreements
served notwithstanding the delivery bill of lading, or goods from -the buy- among purchasers at auction sales' not to bid against each .other
of the goods to the buyer or to a car- er will obtain the property in the
Her or other bailee for the purpose of goods, although the bill of exchange
are fraudulent as regards the seller."2~
transmission to the buyer. (2) has not been honored, provided that
Where goods a·r e shipped, and by the &uch purchaser has received delivery Oonditional sales ' ,
llill of lading the goods are deliver- of the bill of lading indorsed by the Aconditional sale is defined in the Uniform Conditional S~es
able to the seller or his agent, or to consignee named therein, or of the Act30 as: "(1) any contract for the sale of goods ~der WhICh
the order of the seller or his agent, goods, without notice of the facts possession is delivered to the buyer and the property m the goods
the seller thereby reserves the proper- making the transfer wrongful.")
ty in the goods. But if, except for is to vest in the buyer at a subsequent time upon the payment of
the form of the bill of lading, the _ 27 In regard to delivery, § 43(1) of part or all of the price, or upon the p~rforma~ce of any othe~
property would have passed to the the Act provides: "(1) Whether it is condition or the happening of any contmgency, .or (2) an~ con
buyer on shipment of the goods, the 1'or the buyer to take possession of tract for the bailment or leasing of goods by WhICh the baIle: or
seller's property in the goods shall the goods or for the seller to send
lessee contracts to pay as compensation a s~ s~b~tantIallY
be deemed to be only for the purpose them to the buyer is a question de-
of securing performance by the buyer pending in each case on the contract, equivalent to the value of the goods, and by whIch It IS a.greed
of his obligations under the contract. . express or implied, between the par- that the bailee or lessee is bound to become, or ha~ the op~IOn of
(3) Where goods are shipped, and by ties. Apart from any such contract, becoming the owner of such goods upon full complIance WIth the
ehe bill of lading the goods are de- express or implied, or usage of trade terms of the contract."
liverable to the order of the buyer or to the contrary, the place of delivery
of his agent, the seller thereby re- is the seller's place of business if he The Uniform Act31 provides that a conditional sal~ contract or
serves a right to the possession of the have one, and if not his residence; copy shall be filed in the office of a designated OffiCIal of the po-
goods as against the buyer. (4) but in case of a contract to sell or a litical unit in which the goods are first k~pt for us: ?y the buyer
Where the seller of goods draws on sale of specific goods, which to tlie after the sale; and that "every provision m a conditIonal sale re-
the buyer for the price and transmits knowledge of the parties when the
the bill of exchange and bill of lading contract or the sale was made were ed in the appendix. In other juris-
together to the buyer to secure ac- in some other place, then that place lIS Section 21.
dictions, the theories and laws relat- .
ceptance or payment of the bill of ex- is the place of delivery." 29 VoId, § 69(b) , p. 177. lng to conditional sales vary.
change, the buyer is bound to return
30 Section 1. The jurisdictions 31 Section 6.
which have adopted this act are list-
236 PERSONAL PROPERTY Ch. 15 § 78 SALES 237
,
serving property in the seller shall be void as to any purchaser
the deficiency from the buyer, or from anyone who has succeeded
f~o:n or creditor of the buyer, who, without notice of such pro-
to the obligations of the buyer.37
~IslOn, purchases the goods or acquires by attachment or levy a
lIen upon them, before the contract or a copy thereof shall be If the seller fails to comply with the provisions relating to re-
filed."32 demption by the buyer and resales, after he has retaken the
After the ~elivery of the goods to the buyer, and prior to any goods, the buyer may recover from the seller his actual damages,
default on hIS part, the risk of injury and loss rests upon the if any, and in no event less than one-fourth of the sum of all
buyer. However, any increase of the goods is subject to the same payments which have been made under the contract, with in-
conditions as the original goods and consequently an increase will terest; 38 but otherwise, if no resale is required or made, the sell-
accrue to the buyer upon performance of the conditions by him. er may retain the goods as his own property, after a proper re-
taking, without obligation to account to the buyer, and the buyer
Generally it m~y be said that under a conditional sales contract
is discharged of all obligation.39
the buyer, until his default or performance, is regarded as the
owner of the goods for all practical purposes. However, it may Concerning the rights of the seller, the Uniform ConditIonal
also gener~ly .be said that both the buyer arid seller are regard- Sales Act 40 further provides that 'neither the bringing of an ac-
ed ~s haVIng Insurable and transferable interests in the goods tion by the seller for the recovery of the whole or any part of
untIl. t~e buyer defaults or performs. Upon performanc~ of the the price, nor the recovery of judgment in such action, nor the
~on~ItlOns by the buyer, the complete property in the goods vests collection of a portion of the price, shall be deemed inconsistent
In hIm and the interest of the seller is terminated. with a later retaking of the goods; but such right of retaking
Upon default of the buyer, the Uniform Conditional Sales Act shall not be exercised by the seller after he has collected the en-
allows th: seller to retake possession of the goods, but if the seller tire price, or after he has claimed a lien upon the goods, or attach-
~as not gIVen the buyer at least a twenty-day notice of his inten- ed them, or levied upon them as the goods of the buyer.
tIon to retake the buyer is permitted ten days in which he may
redeem the goods by payment of the amount due and the ex- Chattel mortgages
penses of the retaking, unless the goods are of a perishable na- ' Chattel mortgages and conditional sales are, of course, dis-
ture and would be substantially injured or destroyed if kept for tinct. "In the first place, a chattel mortgage ' is a conveyance
ten days.33 However, in case the buyer has paid at least fifty from the mortgagor to the mortgagee of a property interest as
percent of the price, or if the buyer makes a proper demand in security for a debt owing. The conditional sale is not a convey-
case he has not paid fifty percent of the price, the seller must reo ance from the buyer to the seller at all, but is a conveyance from
sell the goods at public auction. 34 The seller may also voluntarily the seller to the buyer of a limited property interest less than
resell the goods for the account of the buyer in cases where a ' complete unincumbered ownership. In a chattel mortgage the
re~ale is not compulsory.35 The proceeds of the resale are ap- mortgagee's security interest is conveyed to him by the mortga-
plIed: (1) to the payment of the expenses thereof; (2) to the gor; in a conditional sale the conditional seller's security interest
payment of the expenses of retaking, keeping and storing the is reserved in himself, while he conveys to the buyer .the bene-
goods; and, (3) to the satisfaction of the balance due under ficial ownership in the goods. In the second place, the mortga-
the contract. 36 Any sum remaining after the satisfaction of gor is a borrower while the mortgagee is a lender." 41
such claims must be paid to the buyer; but, if the proceeds of the As in the case of mortgages of land, there are two theories of
resale are not sufficient to defray the expenses thereof, and al- chattel mortgages which prevail in the United States. Under the
so the expenses of retaking, keeping and storing the goods, and common-law or title theory, a mortgage is regarded as a present
the balance due upon the purchase price, the seller may recover transfer of the property in goods from the mortgagor-borrower
32 Section 5. 35 U.C.S.A. § 20. U.C.S.A. § 22.
37 40 Section 24.
33 See U.C.S.A. §§ 16-18.
36 See U.C.S.A. § 21. 38 U.C.S.A. § 25. n VoId, p. 310.
M See U.C.S.A. § 19.
*9 U.C.S.A. § 23.
238 PERSONAL PROPERTY Ch.15 § 74 BAILMENTS 239
to the mortgagee-lender, subject to defeasance upon the mortga- come into possession of the goods of another. Thus, the ·finder
gor's performance of the conditions. Under the equitable or lien of lost goods, who takes them into his possession, becomes a
theory, a chattel mortgage is regarded as giving the mortgagee a bailee of the goods. A sheriff, levying on the goods of the debtor
lien on th~ goods which may ripen, 'into ownership upon default and taking possession of them, is also a bailee." 43
by the mortgagor. Also, as in the case of realty mortgages, the A bailment may be terminated by "1. Act of the parties: (a)
mortgagor of a chattel is generally allowed, by equity or statute, By full perfo.,rmance of the bailment purpose or expiration of the
opportunity to redeem the chattel within a certain period after time for which the bailment was created. (b) By mutual con-
his default, upon payment of the amount due and the mortgagee's sent of the parties in all cases, and in some bailments at the op-
expenses. However, the period in whic a mortgagor may re- tion of one of the parties. (c) By the bailee's wrong, at the op-
deem a chattel is usually much shorter than the period allowed tion of the bailor. 2. By operation of law: (a) By death of
for the redemption of land. bailor or bailee, in some instances. (b) By change of legal status
Statutes similar to those applicable to conditional sales, gener- of the parties, in some cases. (c) By destruction of the bailed
ally require that a chattel mortgage be filed in some public of- goods." 44
fice in order for it to be valid against subsequent purchasers and A bailment is distinct from a sale in that under a sale owner-
incumbrancers of the goods, and creditors of the mortgagor who ship or title must be conveyed while possession either mayor
subsequently attach the goods; unless such persons have actual may not pass, whereas under it bailment ownership must not be
notice of the mortgage, or unless the mortgagee is in possession. conveyed but possession must pass.
As classified in Roman law, bailments' were of six kinds: (a)
BAILMENTS Depositum, a bailment of goods for mere custody, without recom-
pense. (b) Mandatum, a bailment of goods for the purpose of
74. A bailment is the relation created through the transfer of the having some more or less active services performed about them
possession of goods or chattels, by a person called the bailor by the bailee without recompense. (c) Commodatum, a gratui-
to a person called the bailee, without a transfer of owner-
tous bailment of goods for use by the .bailee. (d) Mutuum, a de-
ship, for the accomplishment of a certain purpose, where-
upon the goods or chattels are to be dealt with according
livery of goods involving not the return of the iaentical goods
to the instructions of the bailor. 42 bailed, but their replacement by other goods of the same kind. 45
(e) Pignus, pledge, or pawn, a bailment of goods as security for
The chief characteristics of a bailment are: (1) the subject- some debt or engagement, accompanied by a power of sale in
matter must be personalty; (2) there must be a delivery, actual case of default. (f) A locatio, or hiring, a bailment for reward.
or constructive, of the goods; and, (3) there must be an express And locatios were subdivided as follows: (1) Locatio rei, or the
or implied acceptance by the bailee of the goods constituting the hired use of a thing. (2) Locatio operis, or hiped services about
subject-matter of the bailment. "While in the overwhelming ma- a thing. The latter included: (i) , Locatio operis faciendi, or hir-
jority of instances the bailment relation is founded on the mu- ed work and labor about a thing. (ii) Locatio custodiae, or hir-
tual agreement of both tlie bailor and .b ailee, in exceptional cases ed custody of a thing. (iii) Locatio operis mercium vehendar-
bailments may exist without such an agreement. One may be- urn, or hired transportation of a thing.46
come a constructive bailee in the absence of any contract between The rights and liabilities of the parties to a bailment depend
the parties. It is not essential that the bailee should ha~e ob- primarily upon which party the bailment is intended to. benefit,
tained possession by the consent of the owner, or even with the hence the greater the benefit to the bailee, the greater his respon-
intention of holding the goods as a bailee. But, in many cases, sibility and liability. "Bailments may therefore be divided into
the law, from considerations of public policy, imposes the liabil-
ity of a bailee upon one who has, without private ag~eement. 43 Dobie, p. 23. tion is regarded as a sale or ex-
change, not a bailment.
44 Dobie, § 20, p. 44.
42 Dobie on Bailments and Carriers
(hereinafter cited "Dobie") § 1, p. 1. 45 At common law such a transac- 46 See Dobie, § 4, pp. 10, 11.
PERSONAL PROPERTY , Ch.15 § 74 BAILMENTS 241
240 .
er for the guest's misconduct or default in payment of reasonable
three classes: (a) Bailinents for the bailor's sole benefit, includ-
ing (1) depositum, and (2) mandatum. (b) Bailments for the charges for his entertainment; and, (b) by the guest at any
time, by signifying an intention to do so.
bailee's sole benefit; including (1) commodatum. (c) Bailments
for the mutual benefit of both bailor and bailee, including (1) The duties of an innkeeper primarily consist of: (1) the duty
pignus, and (2) locatio." 47 to receive guests; (2) the duty to care for the safety and com-
fort of his guests; (3) the duty to care for the goods of his
Lien of the Bailee guests. And, at common law, by the weight of authority, an inn-
keeper is liable as an insurer of the guest's goods brought within
Generally a bailee who performs services about a chattel has
the inn, unless the loss or damage is caused by an act of God
the public enemy, or a fault of the guest. This liability exten~
a lien thereon to secure payment of his compensation, but "the
bailee's lien for services about chattels is ordinarily a special
to all the goods of the guest brought within the inn except (a)
lien, and not a general one. By a special lien is meant that it
goods for show or for sale; and, (b) goods retained in the exclu-
secures only the debt created by services about the specific goods
sive custody of the guest. However, "the liability of the innkeep-
upon which the lien is claimed. Such a lien does not cover debts
er as to the goods of the guest may be limited: (a) By contract.
for services on other goods besides those held under the lien." 48
(b) By statutes, which usually limit his liability: (1) In some
Furthermore, at common law, the lien of a bailee merely entitles
states, for losses above a certain amount. (2) In a great many
him t9 retain possession of the goods until the;-bailor performs his
states, on his giving notice, for goods not delivered to the inn-
part of the agreement. "On default in payment by the bailor, the
keeper to be put in his safe." 51
title to the goods did not vest in the bailee and become absolute at
law, as in the case of the mortgage; nor did the bailee have (as To secure his proper compensation the innkeeper has a lien
has the pledgee) a power of sale as to the goods held under his on all the property within the inn belonging to the guest. And
lien." 49 However, the power of sale could be given by special con- "since the innkeeper is compelled to receive even persons incom~
tract, and the bailee now has a statutory power of sale in practic- petent to contract, such as married women and infants his lien is
ally all of the states. ' valid in such cases. The lien is similar in its various'legal inci-
dents to other common-law liens; but the lien arises on goods
Locatio operis bailments, or hired services about a thing, are 'brought to the inn by the guest, even though they are never
sometimes classified as: (1) ordinary bailments; or, (2) extra- actually delivered to the innkeeper, but are retained by the guest
ordinary or exceptional bailments, the latter being those which in- in his own possession. Even property which is exempt from exe-
volve (a) innkeepers; (b) common carriers; and, (c) the post cution and attachment, if brought to the inn, is subject to the inn-
office department. keeper's lien. As a general rule, then, if the goods are brought
to the inn and are owned by the guest, the innkeeper can detain
Innkeepers
them as security for his unpaid charges. In most of the states
An innkeeper is one who "holds himself out to the public to provision is made by statute for the lien of the innkeeper." 5~
furnish 'either lodging alone, or lodging and some other form of The innkeeper may waive his lien by voluntarily parting with the
entertainment, to transients for hire. This definition excludes: possession of the goods, or by any other conduct inconsistent
(a) Persons furnishing only occasional entertainment. (b) with the continuance of the lien; and modern statutes gen~rally
Keepers of mere restaurants and eating houses. (c) Keepers 6f permit the innkeeper to sell goods subject to his lien in satisfac-
boarding houses or lodging houses. (d) Sleeping car companies tion of his cl~im against th~ guest although at common law the
and steamship companies." 50 A guest, on the other hand, is a innkeeper had no right to sell goods by virtue of his lien.
transient who patronizes an inn with the consent of the innkeep-
er. The relation of innkeeper and guest begins when the guest Oarriers
is accepted as such, and may be terminated: (a) by the innkeep- A carrier is one who undertakes to transport goods or persons
from one place to another. Carriers are either private or public.
47 Dobie, § 5, p. 12. 49 Dobie, p. 153.
51 Dobie, § 98; p . 279. 52 Dobie, pp. 285, 286.
48 Dobie, p. 149. 50 Dobie, § 90, p . 241.
SMITH EL.LAW 2d-16
PERSONAL PROPERTY Cn. 15 - § 75 PLEDGES 243
A private carrier is one who, without engaging in such business the mail, occurring in its transmission." 5'7 However, "to send-
as a public employment, "undertakes by special contract to trans- ers of mail, postmasters and other officials of the post office de-
port goods in particular \ instances from one place to another. partment are individually liable for losses sustained * '*' *
'*' '*' * The private carrier of goods, making no public profes- when such losses are due to: (1) Their own immediate negli-
sion, is an ordinary bailee, and subject to the same rules govern- - gence or misconduct. (2) Their negligence in either selecting
ing other ordinary bailees. He is vested with no exceptional subordinates or supervising their conduct. (3) The acts of their
rights and incurs no extraordinary responsibilities." 53 A com- private servants, who are not agents of the governmept." 58
mon carrier of goods, on the other hand, "is one who holds him-
self out, in the exercise of a public calling, to carry goods for
hire, for whomsoever may employ him." 54 The most important PLEDGES
liabilities imposed by la,,,;, upon the common carrier of goods are:
75. A pledge or pawn is a bailment -t o secure the payment of a debt
"(a) His duty to carry for all. (b) His duty to furnish equal
or the performance of an engagement, accompanied by a
facilities to all. (c) His liability for loss of, or damage to, the power of sale in case of default. 59
goods. (d) His liability for deviation and delay." 55 Thus, the
cominon carrier is an insurer of goods carried in that capacity A pledge is a special' form of bailment, but in addition to those
against all loss or damage except that caused by: "(1) The act circumstances that are essential to any bailment, for the estab-
of God. (2) The public enemy. (3) The act of the shipper. (4) lishment of a pledge there must be: (1) Mutual assent of the
Public authority. (5) The inherent nature of the goods. Even parties, as a pledge cannot be created by operation of law. (2)
when the loss is caused by one of the excepted perils against A debt or engagement secured. The pledgor need not be the ab-
which the common carrier is not an insurer, he is nevertheless solute owner of the goods, and ordinarily a person can pledge,
liable if he fails to use reasonable care either to avoid such peril just as he can sell, any assignable interest that .he has in goods.
or to minimize the loss after the goods are actually exposed to Hence, "unless 'public policy or some statute forbids, any assign-
the peril." 56 This extraordinary liability of the common 'carri- able interest in personal property, corporeal or incorporeal, may
er attaches when the goods are delivered to and accepted by the be pledged." 60
carrier, and terminat~s, generally, when the transportation is The principal rights and duties of a pledgor, unless varied by
completed and the goods are delivered to either the consignee or special contract, are as follows: "(a) He impliedly warrants his
a connecting carrier in accordance with the terms of the contract. title or interest. (b) His interest is assignable. (c) At common
As for his rights, the common carrier of goods is entitled to a law, the pledgor's interest seems not to have been subject to ju-
reasonable compensation for his services which he may demand dicial sale, but this is now changed in most states by statute. (d)
in advance, and he has a lien for his proper charges on goods re- He can sue t~ird persons for injuries to the pledged goods. (e)
ceived from one who had authority to deliver them for transport- He has a right to redeem the pledged goods, which continues until
ation. At common law, a common carrier has no right to sell it is lost: (1) By ~ valid sale of the goods by the pledgee after
goods of shippers for the payment of his charges and to satisfy the default of the pledgor. (2) By a subsequent release by the
his lien but such a right is now conferred by statute in practical- pledgor of his right of redemption. (3) By the running of the
ly all of the states. statute of limitations." 61
The rights and duties of the pledgee depend largely upon
Post Office Department whether or not there has been a default by the pledgor; but,
generally, his interest is assignable and he is deemed to have a
The post office department "is a carrier of themail.but.being _speCial property in the goods which entitles him to the possession
a branch of the government, is not liable for loss of, or injury to,
5'7 Dobie, § 150, p. 484. 60 Dobie, § -73, p. 185.
53 Dobie, pp. 297, 298. 55 Dobie, § 108, p. 312. 58 Dobie, § 151, p. 485. 61 Dobie, § 75, p. 197.
54 D obie, § 107, p. 300. 56 Dobie, § 116, p. 324. 59 D obie, § 70, p. 173.
S~fITH EL.LAW 2d
244 PERSONAL PROPERTY Ch. 15
17 Atkinson, § 77, p. 186, 18 Atkinson, § 76, p. 183. 19 29 Car. II, c. 3. 20 Atkinson, § 153, p. 367.
256 SUCCESSION Ch.16 § 79 PROPERTY PASSING BY SUCCESSION 257
The effect of probate is to preclude collateral attack of ·a will Exceptions
on the ground of forgery, improper execution, lack of testa- This genera) rule, however, is subject to certain exceptions
mentary capacity, or revocation. But, when a will has been and restrictions. Thus, at common law, future interests in real-
discovered after probate of a prior will or adjudication of intes- ty could pass only by will, not by descent. But by the prevail-
tacy it may be probated and carried out. However, parties who ing modern view such interests may pass by descent. And in
relied upon the earlier decree will be protected. In the absence regard to joint estates, the surviving joint tenant takes by the
of statutory limitation "a will lost, or mutilated without intent terms of the grant, not by succession from the deceased tenant.
thereby to revoke, may be admitted to probate upon satisfactory The 'same is also true of a remainderman after the termination
proof of its contents and due execution."21 of an ordinary life estate; but an estate for the life of another
("to A, for the life of B") passes to the personal representative
Rules of Construction of the life tenant (A) upon his death before the death of the oth-
The most important rules of construction applied to wills are: er (B). Further, where estates tail exist, the heirs of the body
"(a) A will is generally presumed to speak as of the time of the take by grant and not by descent.
testator's death. (b) Each part of the will and its codicils is
construed in connection with the other parts, and effect is given Dower and curtesy
to all if possible. (c) The general intention controls the specific At common law a widow was entitled to a life interest in one-
intention. (d) As between two irreconcilable parts, the latter third of the land which her husband owned during coverture, and
prevails. (e) Nontechnical words are understood in their ordi- as she took this interest under the law, the husband's will could
nary sense if there is nothing to indicate a contrary intent. (f) not deprive her of it. However, she took rio forced share in the
Technical words are understood in their leg;li meaning unless the personalty of her husband but most 'jurisdictions now provide
circumstances indicate a different usage. (g) To effectuate that regardless of the husband's will his widow takes a certain
a manifest intent, a will may be read as if words were rejected, fractional share of his lands and chattels upon his death, Com-
supplied, changed or transposed. (h) The just and reasonable mon-law dower was not subject to the husband's ordinary debts
construction will be adopted when two meanings are equally per- and the same is true of statutory dower in some jurisdictions;
missible from the language used. (i) Where there is room for but the modern tendency is to free only the homestead and the
construction, that meaning will be adopted which favors those widow's allowances from the claims of th.,e husband's creditors.
who would inherit under the intestate laws. (j) There is a In some jurisdictions the widow may take her forced share in
presumption against intestacy, total or partial. (k) ' As between addition to interests left her by the husband's will unless a con-
two possible constructions, that which discloses a legal purpose trary intention appears therein; but in other jurisdictions she
will be preferred to one which is invalid. (l) If the language of must elect which she will take, unless the will shows an intention
the will gives rise to a necessary implication that a gift was in- that she is entitled to both. When a widow does elect against
tended, such intention will be effectuated, though no gift is be- her husband's will the result is not total intestacy but only such
stowed' in express terms."22 diminution of the shares of the legatees and devisees as is nec-
essary to provide her statutory share; and the interest which she
renounces under the will is applied among the disappointed lega-
PROPERTY PASSING BY SUCCESSION
tees and devisees so as to permit as equitable a distribution as is
possible under the circumstances.
79. Generally, the property of a person, whether legal or equitable,
may pass to the beneficiaries named in his will, or to the At common law in case of birth of issue to the marriage, the
persons designated by the intestate laws if there is no valid surviving husband obtained an estate by the curtesy which en-
testamentary disposition, but such property is subject to titled him to a life interest in all the wife's realty but this right
the claims of the creditors of a decedent. is now greatly modified by statute. The modern tendency of leg-
islatures is to treat both husband and wife equally as to their
21 Atkinson, § 186, p. 452. 22 Atkinson, § 266, p. 759. respective forced shares, election, and the like.
SMITH EL.LAW 2d- 17
. 258 SUCCESSION Ch. 16 § 79 PROPERTY PASSING BY SUCCESSION 259
Protection of Children Effect of Misconduct
In practically all of the states a parent has the power to dis- In the absence of statute there is no limitation upon testamen-
inherit his children by willing his property to other persons, but tary gifts to a person's mistress or illeg~timate children. And,
the rigor of this rule is abated to some extent by certain prac- in general, misconduct of an heir toward the decedent does not
tical considerations and legal doctrines. Thus," (1) Juries may prevent the heir from taking under the will of the decedent or the
tend to set aside wills disinheriting children for that reason rath- intestate laws. Further, "mere adultery- or abandonment, with-
er than the ostensible grounds employed as basis of the contest. out divorce, does not prevent the guilty spouse from inheriting
(2) Failure to mention a child may be an indication of lack of from the one who has been wronged, though it would seem that
mental capacity of the testator. (3) Statutes in many states de- abandonment should work a loss of homestead and family al-
clare that children born at the time of making a will and not men- lowances. By an ancient English Statute [Westminster II, 13
tioned or provided for therein may take their intestate shares. Edw. I, c. 34, 1285] a wife eloping in adultery from her husbanu
(4) In some jurisdictions, a will is revoked by the subsequent was barred of her dower. This principle is sometimes applied to
birth of a child and in almost ap. others the afterborn child may dower and its statutory substitutes and legislation often extends
take his intestate share against the parent's will. (5) A child it to bar general rights of inheritance from the deceased spouse.
may not be disinherited simply by declaring that pe shall receive Where the guilty spouse has, in addition, contracted a bigamous
nothing; the property must be devised or bequeathed to others in marriage some courts have denied him the right to inherit from
order to make the disherison effective. (6) A decree requir- the other spouse upon the basis of estoppel."211
ing a father to support his minor child will be -e nforced against As to the effect of homicide, "in the absence of statute, most
the father's estate; though the general obligation to support courts have held that a person wrongfully killing another may
probably cannot be asserted as a claim upon the deceased par- take the latter's property if otherwise entitled thereto by will or
ent's property."23 under the intestate laws. A minority of jurisdictions have held
Homesteads; Family Allowances that the murderer is barred from inheriting from his victim.
D~cisions permitting the inheritance generally have resulted in
Most of the states have statutes which provide that the home-
stead, and often specified chattels, pass to the family of a deceas- legislation designed to alter the rule in such cases. These stat-
ed "head of a family," and in addition the family is often given utes have been construed narrowly so as to prohibit the inherit-
an .allowance of money -from the estate for support during the ance only in the situations clearly covered by the statute."26
period of administration. Such provisions generally are not sub- 25 Atkinson, § 53, p. 111. 26 Atkinson, § 54, p. 111.
ject to being defeated by will, nor by the non-lien creditors of
the decedent.
I
260 pressed, either that something shall made to an ascertained person, but
262 , CONTRACTS Ch. 17 § 80 IN GENERAL 263
press or implied. The acceptance may consist of- Cal Simple prevent an acceptance of an offer from being effective, notice
assent; but this applies to contracts under seal only. (b) Giving of revocation must have been communicated to the offeree as an
of a promise. (c) Doing of an act."9 acceptance may take effect at the moment it is dispatched. l3
As an offer or its acceptance may be made by conduct as well
as by words, where the terms of a contract can be inferred Same~· Classification of Contracts
from the acts of the parties, the contract is said to be "implied." Contracts are classified as: (1) formal contracts; or, (2)
Such a contract is implied in fact.lo That is to say, there is an simple or parol contracts. Formal contracts are those which are
actual agreement evidenced by the conduct of the parties, and dependent for their validity upon their form alone and are ei-
hence an "implied" contract is distinct from a "quasi" contract, ther: (a) contracts of record; or, (b) contracts under seal.
"which is an obligation imposed by law without regard to the in- Simple or parol contracts are divided into: . (a) contracts which
tention of the parties."ll are dependent for their validity on both their form and the pres- .
As a general rule the requisite offer must be intended to create ence of consideration, that is contracts not under seal nor of rec-
and capable of creating legal relations, and, as such, an offer is ord but which are required by law to be in writing, either with or
made when it is communicated to the offeree, but before it be- without a particular form; and, (b) contracts which are depend-
comes a binding promise an offer must be: (a) accepted and the ent for their validity upon the presence of consideration alone,
acceptance must be absolute and unconditional; (b) identical no form at all being required.
with the terms of the offer; and, (c) in the mode, at the place, The formal contracts which are termed "contracts of record"
and within the time expressly or impliedly required by the offer. are: (a) Judgments of courts of record, whether entered by
Until its acceptance, an offer may be revoked, except where the consent or rendered in invitum (against an unwilling party).
offeror has contracted under seal or for a consideration to hold In the latter case, however, the obligation is quasi contractual,
t,h e offer open for a certain time in which case the offer may not not contractual. 14 (b) Recognizances, which are obligations en-
be revoked until the expiratio,n of such certain time. 12 But, to tered into before a court of record to do or forbear from doing a
certain thing under a penalty.l5
no contract can arise until it has eration of the promise of the offeror,
been accepted by ' an ascertained pei- such performance or forbearance con- Contracts under seal, called "deeds" and "specialties," derive
son. For example, an offer can be stitutes an acceptance, unless the of- their validity at common law from their form alone and not from
made to anyone of the public gener- feror .expressly or impliedly pre- the fact of agreement or consideration. The term "deed" is usu-
ally, or to anyone of a class of per- scribes that the acceptance must be
sons, who may accept it. "Take, for communicated. On the other hand,
ally used to denote a conveyance of land but it applies as well to
instance, the case of a proposal by "where the offer contemplates a other contracts under seal. "Particular contracts under seal,
way of advertisement of a reward for promise as the consideration of the
the rendering of certain services, ad- promise of the offeror, communication cified; (b) On its rejection; (c) On ication to himself." Clark, § 21, p.
dressed to the public at large, such of the acceptance is essential, unless failure of the acceptance to comply 28.
as an advertisement for the return of the offer contemplates that the per- with the terms of the offer, which is 14 For example, a judgment of a
lost property, or for the apprehension formance of some overt act manifest- equivalent to rejection; (d) On the court of record awarding a sum of
of persons who have committed a ing an intention to accept shall be an death or insanity of either party be- money to one of two litigants, either
crime, or for certain information. acceptance, in which case perform- fore acceptance." Clark, § 25, p. 47. by way of damages or for costs, lays
This is an offer, to anyone who sh:all . ance of the act is an acceptance." an obligation upon the other . to pay
accept it, of a promise for an act, and Clark, § 20, p. 28. ;13 For example, "where the offer the sum awarded. If entered with
becomes a binding promise to pay the- contemplates the dispatch of an ac- the consent of the parties, the judg-
reward as soon as any individual 11 Clark, t 16, p. 19. ceptance by means beyond the ac- ment has the features of a contract;
renders the services." Clark, p. 50. 12 However, an offer will lapse and ceptor's control, as by post, telegraph, but if entered without the consent of
terminate without express revocation, or the offeror's messenger, an accept- the person bound, the judgment is
9 Clark, §§ 12-14, p. 16. quasi contractual.
so that a subsequent acceptance will ance so dispatched is effective from
10 For example, where an offer con- have no effect: U(a) On the efflux of a the time of dispatch, unless the of- 15 For example, to appear at court
templates the performance of or for- time specified for acceptance, or of a feror makes the formation of the con- as a witness, or for trial, or to pay a
bearance from an act as the consid- reasonable time where no time is spe- tract dependent upon actual commun- debt.
264 CONTRACTS Ch.17 § 80 IN GENERAL 265
deeds, or specialties are: (1) Grants or conveyances of land, knowledgment of a debt barred by the statute of limitations;
in which the parties are called respectively 'grantor' and 'gran- and, (3) a new promise by an infant after he has attained his
tee;' (~ bonds, which are obligations conditioned upon payment majority. In addition, by the Statute of Frauds, writing is neces-
of money, cir the doing or forbearance from doing some act, the sary in certain other specified contracts.
parties to a bond being called respectively 'obligor' and 'obligee;' The fourth section of the English Statute of Frauds,20 substan-
and (3) covenants, which are agreements between two or more tially followed in most of the states enacts that, "No action shall
persons, entered into by deed----':that is, under seal- whereby one be brought, (a) whereby to charge any executor or adminis-
or more of them promises the other or others the performance trator upon any special promise, to answer damages out of his
or nonperformance of certain acts, or that a given state of things own estate; (b) or whereby to charge the defendant upon any
does or shall or does not or shall not exist, the parties being call- special promise to answer for the debt, default, or miscarriages
ed respectively 'covenantor' and 'covenantee:' "16 of another person; . (c) or to charge any, person upon any agree-
.A deed or specialty must be in writing, sealed, delivered, and ment made upon consideration of marriage; (d) or upon any
possibly signed. It takes effect from tbe date of its delivery. contract or sale of lands, tenements, or hereditaments, or any in-
The chief characteristics of such a contract are: "(a) The re- terest concerning them; (e) or upon any agreement that is not
citals are conclusive against the parties. They are said to be es- to be performed within the space of one year from the making
topped, thereby. (b) It merges a prior simple contract. (c) A thereof; unless the agreement upon which such action shall be
right of action is not barred until the lapse of a longer time than brought, or some memorandum or note thereof, shall be in writ-
in case of simple contracts. (d) No consideration is neces- ing, and signed by the party to be charged therewith, or some
sary."17 However these gen~ralities are subject, to the following other person thereunto by him lawfully authorized." The writ-
exceptions: "(1) Contracts in partial restraint of trade, though ing must show: (1) the names or descriptions of the parties;
under seal, requir~ consideration. (2) Where' there was a co~ (2) the terms and subject-matter of the agreement; and (3) the
sideration, it may be shown to have been illegal or immoral. (3) consideration, in most of the states. Failure to comply with the
Courts of equity will not specifically enforce a deed without con- statute does not render the contract void but merely precludes
sideration. (4) By statute in some states the distinction between enforcement by suit.
sealed and unsealed instruments is abolished, while in others a seal
is merely declared presumptive, but rebuttable, evidence of a con-
sideration."18 Same; Consideration
The term "consideration," is defined as, "that which moves
At common law a contract under seal is necessary: "(a) from the promisee or a third person, at the request of the prom-
Where the promise is without consideration. (b) Formerly, isee, to the promisor or a third person designated by the promis-
corporations could only contract under seal, with some few ex-
or, at the express or inlplied request of the latter, in return for
ceptions; but with us they can make contracts which they have the his promise."21 As used in the law of contracts the term con-
power to enter into in the same manner as a natural person, un- sideration means a "valuable" consideration, something having
less restricted by charter. (c) Conveyances of land are in most value in the eyes of the law, and every simple contract is required
jurisdictions required to be under seal."I~
to be based on what the law deems to be a valuable considera-
Same; Requirement of Writing; Statute of Frauds
tion. 22 Hence, the consideration necessary for a contract is the
price bargained and paid for a promise, but it may consist of a
At common law bills of exchange and promissory notes must return promise, an act, a forbearance, or a change of legal rela-
be in writing; and,. by statute in some states, writing is declared tions.
necessary for the following contracts: (1) acceptance of a bill
of exchange or other order for the payment of money; (2) ac- 22 Exception. Want of considera-
2029 Car. II, c. 3, 1676. See Clark,
16 Clark, § 39, p. 87. tion will not avoid a negotiable in-
p. 67. 18 Clark, § 34, p. 75.
strument in the hands of a bona fide
17 Clark, § 34, p. 75. 19 Clark, § 35, p. 80. 21 Clark, § 62, p. 147. purchaser for value.
266 CONTRACTS Ch. 17 § 80 IN GENERAL 267
The validity of a contract is not dependent upon the adequacy scind his contract because of an innocent misrepresentation of
of the consideration to the promise, provided the consideration a material fact by the oth~r party to the contract." 2~
is something of value in the eyes of the law; but it must not be il- Fraud is 11 false representation of a material fact, or nondisclo-
lusory or unreal, some benefit must be conferred oil the promisor sure of a material fact under such circumstances that it amounts
or a person designated by the promisor, or some detriment suf- to a false representation, made with knowledge of its falsity, or
fered by the promisee or by a third person at the request of the
in reckless disregard of whether it is true or false, or as of per-
promisee. However, in equity inadequacy of consideration if it sonal knowledge, with the intention that it shall be acted upon by
is such as to be evidence of fraud is ground for the refusal of the other party, and which is acted upon by him to his injury.
specific performance, ~d inadequacy of consideration is regard-
"As a general rule fraud renders a contract, not void, but merely
ed as corroborative evidence in suits for relief from contracts voidable at the option of the party injured. Therefore, (a) He
on the ground of fraud and undue influence. may affirm the contract, and sue for damages for the deceit, or,
. A consideration may be ~xecutory or executed but generally . if sued on the contract, set up the fraud in reduction of the de-
It cannot be past except: "(a) Where the past consideration mand. (b) He may rescind the contract, and (1) Waive his
. ~as. given at the request of the promisor. (b) Where the prom- damages for the deceit; (2) Sue to recover what he has parted
Ise IS to pay for something voluntarily done by the promisee with; (3) Resist an action at law on the contract; (4) Resist
which the promisor was legally bound to do. (c) Where ~ a suit in equity for specific performance, or (5) Sue in equity to
person, by a new promise, revives an agreement by which he have the contract avoided judicially." 26
has benefited, but which is not void, but voidable or unenforce-
Undue influence, a species of fraud, may be said generally to
able against him, by reason of a rule of law, meant for his ad-'
consist" (a) In the use by one in whom confidence is reposed by
vantage, which he may waive."23 Of course the consideration, to
another, or who holds a real or apparent authority over him, of
support a promise, must be legal.
such confidence or authority for the purpose of obtaining an un-
Same; Reality of Consent fair advantage over him.27 (b) In taking an unfair advantage
\ of another's w~akness of mind. (c) In taking a grossly oppres-
It is essential to every agreement that there be mutual assent
sive and unfair advantage of another's necessities and distress." 28
in legal contemplation. Hence, an agreement may be rendered
The effect of undue influence is to render the contract voidable
void or voidable because the apparent assent was the result of
at the option of the injured party.
mistake, misrepresentation, fraud, undue influence, or duress.
Duress is actual ' or threatened violence or imprisonment by
Mistake occurs where the parties did not mean the same thing,
virtue of which a person is forced to enter into a contract. To
or where one or both, while meaning the same thing, formed un-
affect a contract, however, "(a) It must have been against or
true conclusions as to the subject-matter of the agreement. It
of the contracting party, or his or her wife, or husband, parent,
avoids the contract in the following cases: "(a) Where the mis-
child, or against a third person under such circumstances as to
take i? as to the nature of a written contract, the execution of
deprive the contracting party of his freedom to co'ntract. (b)
which is induced or procured by misrepresentation; (b) Where
It must have been inflicted or threatened by the other party to
the mistake is ,as to the identity of the person with whom the
the contract, or by one acting with his knowledge or on his be-
contract is made; (c) Where the subject-matter of the contract,
half. (c) It must have induced the party to enter into the con-
unknown to the parties, does not exist; (d) Where two things
tract." 29 Further, by the weight of modern authority, the un-
have the same name, and the parties, owing to the identity of
lawful detention of the goods or chattels of another under op-
names, do not mean the same subject-matter." 24 '
Misrepresentation is an innocent misstatement or nondisclo- 25 Clark, § 138, p. 281. , ward; tx:ustee over his cestui que
sure of material facts and, "according to the weight of modern trust.
authority, both at law and in equity, the injured party may re- 26 Clark, § 142, I}. 315.
28 Clark, § 147, p. 333.
,23 Clark, § 81, p. 186. 24 Clark, § 133, p. 265. 27 For example, guardIan over 29 Clark, § 144, p. 325.
Ch.17 § 80 IN GENERAL 269
268 CONTRACTS
pressive circumstances or their threatened destruction may con- object of the penalty is protection of the public, it amounts to a
stitute duress. Ordinarily the effect of duress is to render the prohibition; but if the object is solely for revenue purposes, the
contract voidable at the option of the person coerced.. act or omission is not prohibited." 30 The following are examples
of the most common statutes prohibiting agreements: "(a) Stat-
Same; Legality of Object utes regulating the conduct of a particular trade, business, or pro-
An agreement is not enforceable at law and consequently does fession, or regulating dealings in particular articles of commerce.
not result in a contract if its object is illegal. To result in a con- (b) Statutes regulating tpe traffic in intoxicating liquors. (c)
tract an agreement must create an obligation, and no obligation Statutes prohibiting labor, business; etc., on Sunday. (d) Stat-
is created if the agreement is such that the courts cannot en- utes prohibiting the taking of usury. (e) Statutes prohibiting
force it. As a rule the law does not interfere with the freedom gaming and wagers. This head includes statutes prohibiting the
of persons to enter into contracts, but some limitations are impos- buying and selling of stocks or_commodities for future delivery,
ed and certain objects are forbidden and although all the other where the parties intend, not an actual delivery, but a settlement
elements necessary to the formation of a valid contract may be by paying the difference between the market and the contract
present, yet,1if one forbidden object is contemplated by the par- price. (f) Statutes prohibiting lotteries." 31
ties, the courts will not enforce their agreement. As for agreements contrary to public policy, any agreement
For convenience unlawful agreements may be classified ac- that is such, "because of its mischievous nature or tendency, is
cording to their objects as: (1) agreements in violation ot posi- illegal and void, though the acts contemplated may not be ex-
tive law; and, (2) agreements contrary to public policy. An pressly prohibited either by the common law or by statute. The
agreement in violation of positive law is one which involves the test of public policy must be applied in each case as it arises, and
doing of an act which is positively forbidden by law, or the omis- therefore agreements which have been or may be declared con-
sion to do an act which is positively enjoined by law. Acts may trary to public policy cannot be exactly classified. The most gen-
be so prohibited or enjoined: (a) by the rules of the common eral are: (a) Agreements tending to injure the public service.
law; or, . (b) by statute. (b) Agreements involving or tending to the corruption of private
Agreements which are illegal and void because in breach of citizens with reference to public matters. (c) Agreements tend-
rules of the common law are: (1) agreements involving the com- ing to pervert or obstruct public justice. (d) Agreements tend-
mission of crime; and, (2) agreements involving the commis- ing to encourage litigation. (e) Agreements of immoral tend-
sion of a civil wrong. Examples of the latter kind are agree- ency. (f) Gambling transactions. (g) Agreements tending to
ments to divide the profits of a fraudulent scheme, or to carry induce fraud or breach of trust. (h) Agreements affecting the
out some object in itself unlawful by means of a trespass, breach freedom or security of marriage, or otherwise in derogation of
of contract, or breach of trust. Such objects although not neces- the marriage relation. (i) Agreements in derogation-of the par-
sarily criminal are contrary to positive law. ental relation. (j) Agreements in unreasonable restraint of
trade, including combinations to prevent competition, control
Agreements may be illegal and void because their objects are
prices, and create monopolies. (k) Agreements exempting a per-
prohibited by statute, as a legislature in the exercise of its police
son or corporation from liability for negligence." 32
power may regulate or prohibit the making of contracts. In de-
termining whether a contract or an act or omission involved in Where an agreement is illegal in part only, the part which is
the performance of a contract is prohibited by statute, the inten- legal may be enforced provided it can be separated from the part
tion of the legislature must be ascertained and must govern; and which is illegal, but not otherwise. In detail: "(a) An indivisible
in ascertaining the intention the court will look to the language promise to do several acts, some of which are illegal, or a single
and subject-matter of the statute, and the evil which it seeks to promise to do a legal act, based on several considerations, one of
prevent. "Subject to this fundamental rule, the following rules which is illegal, is wholly void. (b) But where distinct prom-
of construction, which are frequently applied, may be stated:
(a) Where the statute imposes a penalty for an act or omission, 30 Clark, § 154, p. 350. 32 Clark, §§ 156, 157, p. 380.
31 Clark, § 155, p. 354.
this is prima facie evidence of intention to prohibit. (b) If the
270 CONTRACTS Ch.17 § 80 IN GENERAL 271
ises, some of which are good, are based on a good consideration, servant at least, imposes a duty on third persons not to interfere
or where there are distinct promises based on several distinct maliciously with its performance by inducing the servant to
considerations, some of which are good, the good promises, or break it, and for a violation of this duty an action will lie. Many
promises based on good considerations, may be enforced." 33 . courts hold that the doctrine applies to all contracts." 36 On the
If an agreement is wholly unlawful, the general rule is that an other hand, a contract cannot as a rule, confer rights on a person
action cannot be maintained to enforce it. And, where an illegal who is not a party to it but this rule is subject to certain apparent
agreement has been executed in whole or in part by the payment exceptions. Thus," (1) If the contract is such as to constitute
of money or the transfer of other property, the court will not the promisor trustee for the benefit of the third person, the latter
generally lend its aid for the recovery thereof. "The rule is that may sue in equity. (2) Where money or other property has
the court will not lend its aid to a party who, as the ground of come into the promisor's hands by virtue of the contract, for the
his claim, must disclose an illegal transaction. This rule is sub- use of the third person, the law creates a so-called contract be-
ject to exceptions as follows, [however], where the action is tween him and such third person, on which the latter may
brought, not to enforce the agreement, but in disaffirmance of sue." 37 Further, in many of the states, an exception is also made
it: (a) In some cases a locus poenitentiae [opportunity for re- to this rule in the case of a promise made for the benefit of a
pentance] remains, and, while the agreement is unperformed, third person, the latter being .allowed to sue thereon. In some
money or goods delivered in furtherance of it are allowed to be of these states, however, there must be s.uch a relation between
recovered. (b) Where the parties are not in pari delicto [in the promisee and the person for whose benefit the promise is
equal fault], the one who is less guilty may recover what he has made as makes the performance of the promise a satisfaction of
parted with, as (1) Where the partY.asking relief was induced to some legal or equitable duty owing by the former to the latter.
enter into the agreement under the influence of fraud or strong
pressure. (2) Where the law which makes the agreement un- Same; Assignment by Act of Parties
lawful was intended for the protection of 'the party asking re- Under some circumstances a contract may be assigned . . That
lief."34 Generally, a broker or other agent hired to carry out an is, a person not a party to a contract may take the place of one
illegal transaction cannot recover compensation or indemnity in of the parties. And an assignment may be either by the volun-
respect to the transaction, if he was a privy to his employer's un- tary act of the parties or by operation of law. Generally, how-
lawful purpose; and no recovery may be had upon a quantum ever, a person cannot assign his liabilities under a contract, but
meruit or quantum valebant for benefits received under an illegal tliis rule is subject to the following apparent exceptions: "(a)
contract.35 He may so assign with the consent of the other party to the con-
tract . . (b) In contracts to do work involving no personal skill
Operation of Contract; Limits or personal qualifications, the party may hflve the work done by
Generally a contract cannot impose liabiFties on a person who another, but he remains liable if it is not properly done. (c)
is not a party to it. "A contract, however, between master and When an interest in land is transferred, certain liabilities attach-
ing to the enjoyment of the interest pass with it." 38
33 Clark, § 178, p. 456. not lie to recover the money paid on .
it, or the value of the goods sold or At common law rights arising out of a contract cannot be as-
34 Clark, § 186, pp. 473, 474.- services rendered under it. To per- signed except: (1) by an agreement between the original parties
mit a recovery upon a quantum mer- and the intended assignee, and which is subject to all the rules
35 "Where money is paid, goods are uit or quantum valebant for benefits for the formation of a valid contract; and, (2) by the rules of
sold, or services are rendered, under received under an illegal contract
a contract merely void, but not il- would result in the indirect enforce-
the law merchant in the case of negotiable instiuments. How-
legal, an implied assumpsit lies for ment of the contract itself, and, to a , ever, an assignment in equity is so far recognized at common law
the money paid, or for the value of large extent at least, would relieve it as to permit the assignee to sue thereon in the name of the as-
the goods sold or services rendered; of any odium of inconvenience, signor or his representatives, and at the present time in most'
but where the contract is illegal be- whereas it is the policy of the law to
('ause contrary to positive law or discourage the making of illegal 36 Clark, § 193, p. 491. 38 Clark, § 197, p. 507.
against public policy, an action does agreements." Clark, p. 482. 37 Clark, p. 494.
CONTRACTS Ch.17 § 80 IN GENERAL 273
272 .
states there are statutes allowing the assignment of choses in ac- At common law, as the resiIlt of marriage, the woman's right
tion and a suit at law by the assignee in his own name. In equity, to reduce her choses in action into possession was transferred
on the other hand, a contract may be assigned whenever the con- to her husband and he became liable jointly with her, during co-
tract is not for exclusively personal services and does not involve verture, upon her antenuptial contracts. However, these rules
personal credit, trust, and confidence; but notice is necessary to are now changed by statute in all jurisdictions.
bind the debtor or person liable and the assignee takes subject to • Death passes to the executors or administrators of the deceas-
all such defenses as would have prevailed against the assignor. ed aU rights of action in respect of the personal estate, and to
the extent of his estate, allliabilities 'chargeable upon it. How-
Same; Assignment by Operation of Law ever, contracts depending on the personal services or skill of the
Rules of law operate to transfer rights and liabilities arising deceased and contracts the breach of which involve a purely per-
out of contract under certain circumstances and to a certain ex- sonal loss are not included in the rule.
tent upon the transfer of an interest in land; upon a woman's Bankruptcy has the effect of passing to the trustee of the
marriage; by death; and by bankruptcy. Thus, "if a person, by bankrupt the rights and liabilities under the bankrupt's contracts
purchase or lease, acquires an interest in land from another, on to the same extent that they would pass to his personal rep-
terms which bind them by contractual obligations in respect of resentative upon his death.
their several interests, the assignment by either party of his in-
terest will operate as a transfer of these obligations to the as- Same; Joint and Several Contracts
signee as follows: (a) Covenants affecting leasehold interests,
A contract in which there ~re two or more parties on either or
(1) If they touch and eoncern the thing demised, and relate to
both sides may be either joint, several: or joint and several, de-
something which was in existence at the time of the lease pass
pending upon the intention of the parties as manifested by their
to the assignee, though not expressed to have been made with
agreement.42 The common-law rules (now modified to a con-
, the lessee 'and his assigns.'39 (2) If they relate to something not
siderable extent by statute in most jurisdictions) that govern the
in eXistence at the time of the lease, they pass to the assignee,
operation of contracts after such intention has been det~rmined
if expressed as, made with the lessee 'and assigns.' (3) In no
are as follows: (1) Where several parties join in a promise:
case do merely personal or collateral covenants between the land-
"(a) They are .each liable for the whole debt or performance. .
lord and lessee pass to the latter's assignee. (4) The reversion-
(b) They are jointly, and not separately, liable, and must all be
er or landlord does not at common law, by assigning his interest
sued jointly. (c) Where one of them dies, the liability devolves
in the land, convey his rights and liabilities to the assignee, but
upon the survivors, and, on the death of all, upon · the personal
this is very generally changed by statute. (b) Covenants af-
representative of the last survivor. (d) A release of one, by act
fecting freehold interests, (1) If made to the owner of the land,
of the promisee, releases all." 42a (2) Where a promise is made
and for his benefit, pass to his assignees, provided they touch and
to several jointly: "(a) They are entitled jointly, and not sep-
concern the land, and are not merely persona1. 40 (2) If made
arately, and must join in a suit on the promise. (b) Where one
by the owner, restricting his enjoyment of the land, they do not,
of them dies, the legal right devolves upon the survivors, and on
at common law, bind his assignees, except in case of well-known
interests, such as easements, recognized by law. In equity, how-
42 In determining whether or not by a number of persons to promote
ever, it is otherwise in case of certain covenants of which the as- the parties to a contra ct intended it some common enterprise, though joint
signee had notice at the time of his purchase." 41 to be jOint or several, the following in form, are several promises, If the
rules are applied: "(a) A promise by words will admit of it, the contract,
39 For example, a covenant to re- tha~ he has a good right to convey two or more in the plural number is as regards the promisees, will be
pair, or to leave in good repair, or to the land, the benefit of the covenant prima facie joint, while a promise in joint or several, according as their
deal with the land in any specified will pass to any assignee of the pur- the singular is prima facie several; interest is jOint or several." Clark,
manner. 'chaser. but this presumption will yield if, § 228, p. 573.
from the whole agreement, a contrary
40 For example, if the vendor of intention appears. (b) Subscriptions 42a Clark, § 207, p. 532.
land covenants with the purchaser 41 Clark, § 202, pp. 523, 524.
SMITH EL.LAW 2d-18
274 CONTRACTS Ch. 17 § 81 QUASI CONTRACTS 275
them alone." 4~ (3) If two or more parties bind themselve,s sev- Discharge of Contract; Remedies on Breach of Contract
erally to another for the same matter or debt, their liability is
A contract may be discharged by agreement, performance,
separate and distinct and they cannot be sued jointly. (4) If
breach, impossibility of performance, or by operation of law. ,
, one party binds himself to several parties severally, their rights
However, "where a contract is broken in a material respect by
to enforce the promise are separate. (5) Where a contract in
one of the parties, the other party acquires, or may acquire,
J
NEGOTIABLE INSTRUMENTS
In General
The negotiability of bills of exchange and promissory notes
originated in the customs of merchants, was established by the
Statute of 3 & 4 Anne, and is now codified in the several States
by the Uniform Negotiable Instruments Law (N.LL.), approved
by the Commissioners on Uniform States Laws in 1896. Nego-
tiability is to be distinguished from assignability which pertains
to contracts in general and which is the manner that rights evi-
denced by ordinary contracts are transferred. Assignability dif-
fers from negotiability in that an assignment is not complete
without notice to the debtor; the assignee can acquire no better
title than that of the assignor; the assignee takes title subject
to all equities; and suit on the contract must generally be
brought in the name of the assignor, except in jurisdictions where
this rule has been changed by statute. In the case of a negotiable
instrument, on the other hand, a bona fide indorsee's title is good
without notice to the debtor, he may sue on the instrument in his
own name, he may acquire a better title than that of his indorser,
and he ordinarily takes free of all equities.
Form
Under the N.LL.,1l "an instrument to be negotiable must con-
form to the following requirements: 1. It must be in writing and
signed by the maker or drawer; 2. Must contain an uncondition- ise to pay,' is signed by two or more persons, they are deemed to
al promise or order to pay a sum certain in money; 3. Must be be jointly and severally. liable thereon." 4 .
payable on demapd, or at a fixed or determinable future time;
4. Must be payable to order or to bearer; and,5. Where the in- Capacity of Parties
strument is addressed to a drawee, he must be named or other- The rules which regulate the capacity of persons for ordinary
wise indicated therein with reasonable certainty." contracts govern, in general, the capacity of persons as respect
A contract on a negotiable instrument is incomplete and rev- negotiable instruments. However, the latter is of two kinds: , (1)
ocable until delivery of the instrument for the purpose of giving capacity to incur liability; and, (2) capacity to transfer the in-
effect thereto. "As between immediate parties, and as regards strument. The following classes of persons do not have capacity
a remote party other than a holder in due course, the delivery, in to incur liability on a negotiable instrument, but they do have
order to be effectual, must be made either by or under the au- capacity to make a valid transfer thereof: (a) persons non com-
thority of the party making, drawing, accepting, or indorsing, as pos mentis; (b) infants; (c) ma-rried womert, in some jurisdic-
the case may be; and in such case the delivery may be shown to -tions; and, (d) corporations, when the act is ultra vires. How-
have been conditional, or for a special purpose only, and not for ever, "in the United States, private corporations, unless restrain-
the purpose of tratlsferring the property in the instrument. But ed by charter; have capacity to draw, accept, make, and indorse
where the instrument is in the hands of a holder in due course, bills and notes." 5 The following persons may transfer negotia-
a valid delivery thereof by all parties prior to him so as to make ble instruments, but generally they can incur only personal lia-
them liable to him is conclusively presumed. And where the in- bility and cannot bind their estates: (a) executors; (b) admin-
strument is no longer in the possession of a party whose signa- istrators; (c) guardians; and, (d) ~rustees.6
ture appears thereon, a valid and intentional delivery by him is
presumed until the contrary is proved." 3 Consideration
Every negotiable instrument "is deemed prima facie to have
Rules of Construction been issued for a valuable consideration; and every person whose
Where the language of a negotiable instrument is ambiguous, signature appears thereon to have become a party thereto for
or there are omissions therein, the following rules of construction value." 7 The term "value" means, "any consideration sufficient
apply: "1. Where the sum payable is expressed in words and alsO' to support a simple contract."8 And an antecedent or pre-exist-
in figures and there is a discrepancy between the two, the sum ing debt constitutes "value." The absence or failure of consider-
denoted by the words is the sum payable; but if the words are ation "is a matter of defence as against any person not a holder
ambiguous or uncertain, reference may be had to the figures to in due course; and partial failure of consideratiop is a defence
fix the amount; 2. Where the instrument provides for the pay- pro tanto, whether the failure is an ascertained and liquidated
ment of interest, without specifying the date from which interest amount or othelwise."9
is to run, the interest runs from the date of the instrument, 'and
if the instrument is undated, from the issue thereof; 3. Where Definitions of Bills of Exchange, Checks, and Promissory Notes
the instrument is not dated, it will be considered to be dated as A bill of exchange is "an unconditional order in writing ad-
of the time it was issued; 4. Where there is a conflict between dressed by one person to another, signed by the person giving it,
the written and printed provisions of the instrument, the written requiring the person to whom it is addressed to pay on demand
provisions prevail; 5. Where the instrument is so ambiguous or at a fixed or determinable future time a sum certain in money
that there is doubt whether it is a bill or note, the holder may to order or to bearer."10 An "inland" bill of exchange is a bill
treat it as either at his 'e lection; 6. Where a signature is so plac-
4 N.I.L. § 17. 7 N.I:L. § 24.
ed uPQn the instrument that it is not clear in what capacity the
person making the same intended to sign, he is to be deemed an 5 Norton on Bills and Notes, 4th 8 N.I .L. § 25.
Ed., (hereinafter ' cited "Norton"), §
indorser; 7. Where an instrument containing the words, 'I prom-
96, p. 288. 9 N.I.L. § 28.
3 N.I.L. § 16. 6 See Norton, §§ 31- 33, pp. 89, 90. 10 N.I.L. § 126.
280 SPECIAL CONTRACTS Ch. 18 § 82 NEGOTIABLE INSTRUMENTS 281 .
which is, or on its face purports to be, both drawn and payable special indorsement specifies the person to whom, or to whose or-
within the same .state. Any other bill is a "foreign" bill. The der, the instrument is to be payable; and the indorsement of such
original parties to a bill are technically termed the "drawer," or indorsee is necessary to the further negotiation of the instru-
the party who orders the payment; the "drawee," or the party to ment. An indorsement in blank specifies no indorsee, and an
whom the order is addressed; the "acceptor," or the drawee after instrument so indorsed is payable to bearer, and may be nego-
he has assented to the order;ll and the "payee," or the party in tiated by delivery. A restrictive indorsement is one which either:
whose favor the order is made. .
A check is "a bill of exchange drawn on a bank payable on
(1) prohibits the further negotiation of the instrument; or, (2)
constitutes the indorsee the agent of the indorser; or (3) vests
demand,"lz and except as otherwise provided therein, the provi- the title in the indorsee in trust for or to the use of some other
sions of the N.LL. applicable to a bill of exchange payable on person. Such an indorsement confers upon the indorsee the
demand apply to a check. right: (a) to receive payment of the instrument; (b) to bring
A negotiable promissory note, within the meaning of the any action thereon that the indorser could bring; and, (c) to
N.LL.,13 "is an unconditional promise in writing made by one transfer his rights as such indorsee, where the form of the in-
person to another signed by the maker engaging to pay on de- dorsement authorizes him to do so, but all subsequent indorsees
acquire only the title of the first indorsee under the restrictive '
mand, or at a fixed or determinable future time, a sum certain
in money to order or to bearer." If a note is drawn to the mak- indorsement. A qualified indorsement is one which constitutes
er's own order it is not complete until indorsed by him. The par- the indorser a mere assignor of the title to the instrument and
ties to a note are technically termed the "maker," who is .the may be made by adding to the indorser's signature the words
person who signs the note and makes the promise, and the "without recourse," or any words of similar import. Such an
"payee," who is the person to whom the promise is made. indorsement does not impair the negotiable character of the in-
strument. A conditionru indorsement, on the other hand, is de-
Negotiation; Indorsement ' fined as one ·"by which the title to the instrument does not pass
until the condition mentioned in the indorsement is fulfilled."ls
An instrument is negotiated "when it is transferred from one
However, "where an indorsement is conditional, a party required
person to another in such manner as to constitute the transferee
to pay the instrument may disregard the condition, and make
the holder thereof."14 If payable to bearer the instrument may
payment to the indorsee or his transferee, whether the condi-
be negotiated by delivery, whereas if it is payable to the order
tion has been fulfilled or not. But any person to whom an in-
of some person it ,is negotiated by the indorsement of such per-
. strument so indorsed is negotiated, will hold the same, or the
son and delivery. Indorsement is defined as "the writing of the
proceeds thereof, subject to the rights of the person indorsing
name of the indorser on the instrument with the intent either conditionally."19 .
to transfer the title to the same, or to strengthen the security
of the holder by assuming a contingent liability for its future
payment, or both."15 Hence, an indorsement operates to trans- IS Norton, § 63, p. 162. has no knowledge of any fact which
fer title to the instrument and also constitutes a contract be- would impair the validity of the in-
19 N.I.L. § 39. strument or render it valueless. How-
tween the indorser and subsequent holders. As such, "an in-
l!.'very person who ,negotiates a bill ('ver, when the neg6tiation is by de-
dorsement may be either special or in blank; and it may also be or note by delivery or indorsement livery only the warranty extends in '
either restrictive or qualified, or conditional."16 These different warrants: (a) that the instrument Is favor of no holder other than the
kinds of indorsements are defined in the N.LL.17 as follows: A gel:luine and in all respects what it immediate transferee. On the other
purports to be; (b) that he has a hand, a person who indorses without
11 "An acceptance is an undertaking 14 N.LL. § 30. good title to it; and, (c) that all qualification, in addition to the first
by the drawee to pay the bill when prior parties had capacity to con- three warranties listed, warrants
due." Norton, § 41, p. 116. 15 Norton, § 56, p. 148.
tract. And a person who negotiates that the instrument is at the time of
N.LL. § 33. an instrument by delivery or qualified his indorsement valid and subsist-
12 N.I.L., § 185. 16
indorsement further warrants that he ing. See N.LL. §§ 65, 66.
13 Section 184. 17 Sections 34, 36, and 38.
2S2 SPECIAL CONTRACTS Ch.18 § 82 NEGOTIABLE 'I NSTRUMENTS 283 .
Rights of the Holder A person placing his signature upon an instru.1llent other than
A "holder in due course" is defined in the N.I.L.20 as "a holder as maker, drawer, or acceptor, is deemed to be an indorser un-
who has taken the instrument under the following conditions: less he clearly indicates by appropriate words his intention to be
1. That it is complete and regular upon its face; 2. That he be- bound in some other capacity, and where a person not otherwise
came the holder of it before it was overdue, and without notice a party to an instrument places thereon his signature in blank be-
that it had been previously dishonored, if such was the fact; 3. fore delivery he is liable as indorser, in accordance with the fol-
That he took it in good faith and for value; 4. That at the time it lowing rules: "1. If the instrument is payable to the order
was negotiated to him he had no notice of any infirmity in the of a third person, he is liable to the payee and to all subsequent
instrument or defect in the title of the person negotiating it." parties. 2. If the instrument is payable to the order of the mak- '
Such a holder "holds the instrument free from any defect of title er or drawer,' or is payable to bearer, he is liable to all parties
of prior parties, and free from defences available to prior par- subsequent to the maker or drawer. 3. If he signs for the ac-
ties among themselves, and may enforce payment of the instru- commodation of the payee, [an accommodation party being one
ment for the full amount thereof against all parties liable there- who has signed the instrument as maker, drawer, acceptor, or
on."21 In the hands of one other than a holder in due course indorser, without receiving value therefor, and for the purpose of
"a negotiable instrUment is subject to the same defences as if it lending his name to some other person, arid who is liable on the
were non-negotiable. But a holder who derives his title through instrument to a holder for value] he is liable to all parties sub-
a holder in due course, and who is not himself a party to any sequent to the payee."26 Every indorser who indorses a nego-
fraud or illegality affecting the instrument, has all the rights of tiable instrUment without qualification "engages that on due
such former holder in respect to all parties prior to the latter."2~ presentment, it shall be accepted or paid, or both, as the case
may be, according to its tenor, and that if it be dishonored, and
Liabili ties of the Parties the necessary proceedings on dishonor be duly taken, he will pay
The maker of a negotiable instrument, "by making it engages the amount thereof to the holder, or to any subsequent indorser
that he will pay it according to its tenor, and admits the existence who may 'be compelled to pay it."27 As respects one another, in-
of the payee and his then capacity to ifidorse;"23 whereas the dorsers are liable prima facie in the order in which they indorse
drawer of a negotiable instrument "admits the existence of the but evidence is admissible to show that as between or among
payee and his then capacity to indorse; and engages that on due themselves they have agreed otherwise. Joint payees or joint in-
presentment the instrument will be accepted or paid, or both, ac- dorsees who indorse are deemed to have done so jointly and sev-
cording to its tenor, and that if it be dishonored, and the neces- erally.
sary proceedings on 'dishonor be duly taken, he will pay the
Discharge of Negotiable Instr uments
amount thereof to the holder, or to any subsequent indorser who
may be compelled to pay it. But the drawer may insert in the Under the N .I.L.28 "a negotiable instrument is discharged: 1.
instrument an express stipulation negativing or limiting his own By payment in due course by or on behalf of the principal debtor;
liability to the holder."24 2. By payment in due course by the party accommodated, where
the instrument is made or accepted for accommodation; 3. By
An acceptor, on the other hand, by accepting the instrument
the intentional cancellation thereof by the'holder; 4. By any oth-
engages that he will pay it according to "the tenor of his accept-
er act which will discharge a simple contract for the payment
ance and admits: "1. The existence of the drawer, the genuine-
of money; 5. When the principal debtor becomes the holder of
ness of his signature, and his capacity and authority to draw the
the instrument at or after maturity in his own right."
instrument; and ~. The existence of the payee and his then ca-
pacity to indorse."25 The person "primarily" liable on an instrument is the person
who by the terms thereof is absolutely required to pay the same;
20 Section 52. 23 N.LL. § 61. all other parties are "secondarily" liable. 2& And a person secon-
21 N.LL. § 57. !4 N.LL. § 60. 28 Section 119.
26 N.LL. § 64.
22 N.LL. § 58. 25 N.r.L. § 62. 27 N.I.L. § 66. 29 N.LL. § 192.
§88 SURETYSHIP AND GUARANTY 285
284 SPECIAL CONTRACTS Ch.18
indorsement of the person to whose order the goods are by the
darily liable on the instrument is discharged: "1. By any act terms of the document deliverable. Such indorsement may be in
which discharges the instrument; 2. -By the intentional can<;el- blank, or to bearer or to a specified person. If indorsed to a spec-
lation of his signature by the holder; 3. By the discharge of a ified person, it may be again negotiated by the indorsement of
prior party; 4. By a valid tender of payment made by a prior such person in blank, to bearer or: to another specified person.
party; 5. By a release of the principal debtor, unless the · holder's Subsequent negotiation may be made in.like manner."34 A per-
right of recourse against the party secondarily liable is expressly son to whom a negotiable document of title has been duly nego-
reserved; 6. By any agreement binding upon the holder to ex- tiated acquires thereby, "(a) Such title to the goods as the per-
tend the time of payment, or to postpone the holder's right to son negotiating the docUPlent to him had or had ability to con-
enforce the instrument, unless made with the assent of the party vey to a purchaser in good faith for value and also such title to
secondarily liable, or unless the right of recourse against such the goods as the person to whose order the goods were to be de-
party is expressly reserved."30 However, "where the instrument livered by the terms of the document had or had ability to con-
is paid by a party secondarily liable thereon, it is not discharged; vey to a purchaser in good faith for value, and (b) The direct
but the party so paying it is remitted to his former rights as re- obligation of the bailee issuing the document to hold possession
gards all prior parties, and he may strike out his own and all sub- of the goods for him according to the terms of the document as
sequent indorsements, and again negotiate the instrument, ex- fully as if such bailee had contracted directly with him."3lS
cept: 1. Where it is p'\lyable to the order of a third person, and
has been paid by the drawer; and 2. Where it was made or ac-
cepted for accommodation, and has been paid by the party ac- SURETYSHIP AND GUARANTY
commodated."31
83. A contract of suretyship is one which secures a creditor or
employer against loss caused by the failure of his debtor
Negotiable Documents of Title to Goods or Chattels or employee to perform his duties.
For the purpose of facilitating sales transactipns and credit
therefor, the law provides for the use of "negotiable documents In general
of title" to goods or chattels. Such documents are treated of Suretyship has been defined as "the lending of credit to aid a
in the Uniform Warehouse Receipts Act, approved by the Com- principal who has not sufficient credit of his own."36 Thus, a
missioners on Uniform State Laws in 1906; in the Uniform Bills surety, in the broad sense, "is a person who is liable for the pay-
of Lading Act, approved by the Commissioners on Uniform States ment of another's debt or the performance of another's duty.
Laws in 1909; and, also, in the Uniform Sales Act. A negotiable If the obligation of such a person is enforced against him, he is
document of title is defined in the Uniform Sales Act32 as "a docu- generally entitled to reimbursement from the other person, who
ment of title in which it is stated that the goods referred to there- ought himself to have performed so that the surety could not
in will be delivered to the bearer, or to the order of any person have been required to do so. In this sense, the term surety in-
named in such document." Such a document of title may be ne- cludes what is usually rp.eant where the term guarantor is used."3'7
gotiated by delivery: "(a) Where by the terms of the docu- However, in a more restricted sense a surety is a person "who be-
ment the carrier, warehouseman or other bailee issuing the same comes an obligor with another, the terms of his undertaking be-
undertakes to deliver the goods to the bearer, or (b) Where by ing the same as those of the other, and the circumstances under
the terms of the document the carrier, warehouseman or other which he assumes his obligation being such that, if the surety is
bailee issuing the same undertakes to deliver the goods to the or- required to pay anything, he will be entitled to complete reim-
der of a specified person, and such person or a subsequent in- bursement;"38 whereas "a guarantor is one who promises either
dorsee of the document has indorsed it in blank or to bearer."33
On the other hand, such a document "may be negotiated by the 34 Uniform Sales Act, § 29. 37 Arant on Suretyship (hereinaft-
the life insured, is sufficient to validate the contract."56 How- Accident Insurance
ever, the consent of the person whose life is so insured should be Accident insurance is similar in most respects to life insurance,
obtained as, "while the practice of insurers makes the question the same rules of law applying to the making of an accident in-
somewhat uncertain, it seems that Doth by reason and authority surance contract and to its construction when made as are ap-
insurance written upon the life of one who has not consented plicable to life insurance. Policies of accident insurance, in
thereto is contrary to public policy, and void."57 many varying forms, provide indemnity for "accidental injury"
or for "bodily injuries" resulting from "violent, external, and ac-
Marine Insurance cidental means." Within the meaning of these policies: "(1)
Generally a marine ,insurance policy covers any property that Any injury which is unintended, unexpected and unusual is deem-
. comes reasonably within the words of description used and that ed an 'accidental injury,' even though it results from acts or
may be exposed to the perils insured against; and, by express events that were intentionally done. (2) Any injury is 'effecred
agreement, freight or passenger money to be earned by the ves- by accidental means' when any act, event or condition in the line
sel, or profits to be made on the cargo, may be included. The of proximate causation bringing about that injury was, from the
duration of the. risk and the time when it attaches depend upon standpoint of the injured person, unintended, unexpected, un-
the agreement of the parties as expressed in the policy and as in- usual or unknown. The dominant factor in effecting the injury
terpreted in the light of the circumstances and usages with ref- may be (a) The act of the insured or of another person done with
erence to which the contract was made. The underwriter or in- the insured's consent, which may be (1) intended, (2) unintend-
surer is liable for all losses prm~imately caused by the perils in- ed; (b) The act of another person, whether intended or not, done
sured against. However, "there are implied in every insurance without the consent of the insured. (3) Any unintended acts' of
upon any marine venture, whether of vessel, cargo, or freighl, the insured are deemed accidental. These include acts done while .
three conditions upon the underwriter's liability for the risks as- insane. (4) Intended acts of the insured are not considered to
.sumed, usually termed 'implied warranties.' . That is, the insur- be 'accidental means' causing an injury suffered, even though
er will not be liable for any loss under his policy in case the ves- that injury is wholly unintended arid unexpected, unless the in-
'sel (1) is unseaworthy at the inception of the insurance, or (2) tended act, (a) Because of slip or misadventure, was done in a
.deviates from the agreed voyage, or (3) engages in an illegal manner not intended,' or (b) Was done in ignorance of the exist-
venture."S8 ence of unusual conditions which caused unexpected injurious
consequences to ensue."60 In both of the latter cases, the injury
, is held to result from accidental means. Under the rules last
Fire Insurance
stated, "the insurer is liable, in the absence of effective express
.Under a fire insurance policy the direct loss or damage for limitations, or exceptions to the contrary, for- injury or death
which the insurer generally contracts to give indemnity consists inflicted on the insured: (a) By his own hand while insane; (b)
of all such injuries as are proximately due to the action of a hos- By takfng of poison by mistake; (c) By overdoses of drugs ad-
tile fire. "These include not only damage done by actual igni- ministered or taken by mistake or in ignorance of material path-
tion, but also such as results from charring, scorching, smoke, ological conditions; (d) By unexpected bacterial infection con-
water used in quenching the fire, or from the hasty efforts to sequent. upon the doing of certain acts, even though such acts
remove the goods insured to a place of safety."5& Fire is said to were intentionally done."61 An additional category of injuries
be the "proximate cause" of a loss when that loss has been caus- within such policies is that which includes injuries caused to the
ed by a force set in motion by fire, without the intervention of insured by the acts of another person done without the consent
any new and independent force; and a fire is "hostile" when -it of the insured, whether intentionally or unintentionally, unless
.burns in a place or manner not intended. such injurious acts/were provoked and should have been expect-
ed by the insured. Under this principle, in the absence of effec-
56 Vance, § 55"p. 147. 58 Vance, § 240, p. 844. tive express limitations or exceptions to the contrary, the insurer
57 Vance, § 58, p. 171. 59 Vance, § 201, p. 750. 60 Vance, p. 869. 61 Vance, p. 869.
296 SPECIAL CONTRACTS Ch. 18 §84 INSURANCE 297
is liable for the injury or death of the insured in battle or by th~. upon a failure of the trust declared for the beneficiary', whose
unprovoked private violence of another. death defeated the purpose of the declaration."64
It frequently occurs that the death of the person insured un- As respects the effect of divorce, "in the absence of statute
der an accident policy expressly excepting injuries and death changing the common-law rule, the divorce of a beneficiary from
from disease is immediately caused by some disease induced by the insured does not terminate her right in a policy payable to
an accidental injury. In such a case, "if the circumstances are her without condition."65
such as to make the accident, and not the disease, the proximate
In regard to the effect of murder, "when the beneficiary felon-
cause of the death, the insurer is liable as for death due to acci-
dental means. "62 iously takes the life of the insured, he thereby loses all interest
in the insurance money. In case the policy was procured by the
As respects total disability the liability of the insurer is fixed beneficiary as promisee, the insurer's duty to pay is extinguished;
exclusively by the terms of the policy. And total disability upon but if the beneficiary was but a third party payee designated in a
which certain payments are usually conditioned exists as a rule policy procured by the insured, the' insurer's duty to pay is not
when the injury is such that it prevents the insured from engag- extinguished, but shifts by way of resulting trust to the personal
ing in his customary occupation. This rille, however, may be representative of the insured. The felonious beneficiary is also
varied by the terms of the insurance contract. . barred from taking any interest in the insurance money under
the statutes of distribution."66
Beneficiaries under Life Policies; Interests and Rights
The beneficiary under a life insurance policy is the person des- Rights of Oreditors of the Insured
ignated by the terms of the contract as the one who shall receive · As a rule, general creditors of the insured have no rights in the
the proceeds. Such beneficiary may be "(a) The person insured latter's insurance on property prior to the happening of a loss,
or his personal representatives. (b) Some one other than the but after a loss has occurred the claim of the insured becomes a
insured, who may be (1) The assured, or the one procuring and mere chose in action which is subject, like any other chose, to be
maintaining the contract, (2) One whom the insured, for a val- seized for the satisfaction of his creditors. However, by the
uable consideration, has designated as beneficiary, or (3) One weight of authority, the proceeds of insurance upon exempt
whose nomination as beneficiary is due to mere bounty of the in- property are also exempt.
sured. The term as ordinarily used includes only third persons Life insurance policies which are payable to the insured or his
designated as beneficiaries by the party insured."63 estate are subject to the claims of his creditors, when matured,
The legal interests of life insurance beneficiaries vary greatly unless exempted by statute, but "such policies, before maturity,
with the terms of the different contracts. However, generally are to be deemed assets for the payment of debts only when by
they may be: (1) vested, either absolutely, or conditionally, their terms, or by the practice of the insurer, they possess a fixed
subject to being divested by the happening of some condition sub- money value."67 On the other hand, in the absence of contrary
sequent; or they may be, (2) contingent upon the happening of ~tatutes, the insured has no interest in policies payable absolute-
some condition precedent; or, (3) mere expectancies, or possibili- ly to third persons as beneficiaries which his creditors can reach
ties of benefits to be received. except: (a) where the beneficiary became such by voluntary
When the person insured survives a beneficiary who is abso- assignment of a policy payable to insured's estate after the
lutely designated in a policy that makes no provision for such a insured incurred the indebtedness; (b) where premiums have
contingency, "the prevailing view is that the interest of the d~ been paid with money embezzled-from the creditor; or, (c) where
ceased beneficiary remains beyond the control of the insured and premiums have been paid by the insured while insolvent.
becomes assets of such beneficiary's estate. But an increasing Vance, § 154, P. 592.
64 66 Vance, § 156, p. 598.
number of courts now hold that a trust resillts to the insured, as
65 Vance, § 155, p. 596. .7 Vance, § 161, p. 614.
62 Vance, § 259, p. 880. 63 Vance, § 142, p. 537.
298 SPECIAL CONTRACTS Ch. 18
9 Restatement, § 28(a), pp. 77, 78. 10 See Tiffany, §§ 11- 15, pp. 25-36. 11 Restatement, § 82, p. 197.
BUSINESS DEVICES
§ 86 PARTNERSHIPS 305
304 Ch.19
feet of a ratification is to make the unauthorized act that of the is nonterminable except by natural expiration.13 (b) Authority
principal the same as though authority to do the act had been given for a valuable consideration to secure or effect some bene-
previously given, except 'where the rights of third persons have fit to some third person or to the grantee thereof, independent of
intervened between the act and the ratification; and, except in the agent's compensation, is nonterminable except by the death
cases of tort, it releases the agent from liability for loss or dam- of the principal or by natural expiration. (c) When an agent is
age arising from the act. Generally, however, a principal can- employed to engage in a course of action which, if left incom-
not ratify the unauthorized act of an agent so as to acquire rights plete, will result in liability or detriment to the agent, the author-
against the third person without the express or implied consent ity becomes irrevocable unless the principal protects the agent
of the latter. from such liability or detriment. (d) In other cases the power
of a party to terminate an agency relation is subject to an action
Duties of the Parties by the other for breach of contract if the termination constitutes
The general duties of an agent to his principal are as follows: such a breach. In addition to cases mentioned wherein agency
(1) To obey instructions. (2) To exercise skill, care, and dili- contracts may be terminated by operation of law, as distinguish-
gence. (3) To act in good faith. (4) To account. Correlative- ed from acts of the parties, such contracts may be ended by rea-
ly, the general duties of a principal to his agent are as follows: son of the death, insanity, marriage, or bankruptcy of either the
(a) To remunerate the agent for his services. (b) To reim- principal or the agent, or by war between their countties, to the
burse the agent for expenses incurred in the execution of his au- extent that such disability has rendered either party less able to
thority. (c) To indemnify the agent against the consequences of effectually contract.14
acts performed in the execution of the agency.
PARTNERSHIPS
Liability of Principal for Agen'fs Torts and Crimes
As a general rule, the principal is liable for all the torts of the 86. A partnership is an association of two or more persons to car-
agent committed in the regular course of ' his employment and ry on as co-owners a business for profit.ls
within the scope of his authority; and for all such torts, not
within the scope of his authority, which have been authorized by In general
the principal. However, the agent is also liable for his torts and The modern law of partnerships is the result of a fusion of
is not released by reason of the principal's liability. On the' other principles which had their origin in the civil law, the law mer-
hand, the principal is not usually liable for the crimes of the chant, equity, and the common law. "In England and in the
agent unless the principal has previously authorized such acts ex- United States the eighteenth century was the period of considera-
cept: "(1) Where the law has imposed upon the principal the
13 An agency coupled with an inter- tion, writes to A that he appOints A
obligation to see that his subordinates abstain from designated
est, or power given as security, is de- his attorney to transfer to himself
acts; and (2) Where the law has imposed upon the principal the fined in the Restatement, § 138, p. (he shares upon 'the books of the
obligation to assist in enforcing prohibitive legislation." 12 350, as follows: "A power given as company; he also encloses the cer-
security is a power to affect the legal tificates which are received by A. A
Termination relations of another, created in the has a power given as security." rd,
An agency relation may be terminated in one of three general form of an agency authority, but held p.354.
for the benefit of the power holder or
ways: (1) naturally, by the expiration of the time or completion a third person and given to secure 14 See Tiffany, c. 21, pp. 218-250.
of the business for which it was created; (2) by the express the performance of a duty or to pro- 15 Uniform Partnership Act (U.P.
withdrawal of either the principal or the agent; and, (3) by dis- tect a title, either legal or equitable, A.), approved by the National Confer-
ability of the parties. However, ·t he rights of the principal or such power being given when the du- ence of Commissioners on Uniform
agent to terminate their relation by withdrawal are subject to the ty or title is created or given for States Laws, in 1914, § 6(1). The
consideration." For example, "P, various jurisdictions in which tnis
following limitations: (a) An agency coupled with an interest stating that he wishes to make A a act has been adopted are listed in the
gift of 100 shares in the X corpora- appendix.
12 Tiffapy, § 44, p. 124.
SMITH EL.LAw 2d-20
306 BUSINESS DEVICES Ch'. 19 § 86 PARTNERSHIPS 307
ble use of the partnership fonn of business association for all Rules for Deter~ining Whether a Partnership Exists
kinds of enterprises, and of the development of the common law Under the U.P.A.,I~ in detennining whether a partnership ex-
of partnership. The result was an amalgamation of certain well- ists, the following rules apply: (1) Except in the case of a part-
established common law institutions, such as joint property and ner by estoppel, persons who are not partners as to each other
joint obligations, with the more flexible rules of the law mer- are not partners as to third persons. (2) Joint tenancy, tenancy
chant, as recognized and applied in courts of equity. So much in common, tenancy by the entireties, joint property, common '
confusion and uncertainty existed, especially with respect to the property, or part ownership does not of itself establish a partner-
incidents of ownership of partnership property, that demands ship whether such co-owners do or do not share any profits made
for statutory restatement arose." 16 The result of these de- by the use of the property. (3) The sharing of gross returns
mands, in England, was the Partnership Act of 1890; 17 in the does not of itself establish a partnership, whether or not the per-
United States, the result was the Unifonn Partnership Act. 'The sons sharing them have a joint or common right or interest in
latter act is, of course, the authoritative statement of the law in any property from which the returns are derived .. (4) .The. re-
those states which have adopted it, but it also is, for the most ceipt by a person of a share of th~ 'profits of a busmess IS pr~a
part, in a~cord with the common law prevailing ' in those states facie evidence that he is a partner in the business, but no such m-
which have not adopted it. ference shall be drawn if such profits were received in payment:
(a) As a debt by installments or otherwise, (b) As wages of an
Formation; Capacity of Parties
employee or rent to a landlord, (c) As an annuity to a 'widow or
A partnership is a fonn of voluntary association intentionally representative of a deceased partner, (d) As interest on a loan,
entered into by the associates. It is a personal relation in which though the amount of payments vary with the profits o~ the
the elements of delectus personae exist. That is, no one can be- business, (e) ,As the consideration for the sale of a g~od-will of
come a member of a partnership association without the consent a business or other property by installments or otherwIse.
of all the other parties. However, such an association may be rn-
fonnally created and its existence proved by manifestations of Partnership Property .
the parties, but it is customary to embody the tenns of associa-
In regard to the property or a partners?ip the U.P.A.20 pr?-
tion in a written document tenned articles of partI,lership. And,
.vides: "All property originally brought mto, the p~rtnership
of course, some of the incidental terms of a partnership agree-
stock or ,subsequently acquired by purchase or otherwIse, on ac-
ment may in their operation be subject to the provisions of the
count of the partnership, is partnership property;" and, "unless
Statute of Frauds.
the c~ntrary intention appears, property acquired with partner-
Of course, in order that there be a binding partnership relation, ship funds is partnership property." ,
the persons thereof must have legal capacity to enter such an as-
sociation. Thus, an infant's contract' of partnership is voidable Relations of Partners to Third Persons
by him, and the contract of an insane person to be a partner is
Concerning the relations of partners to persons dealing with a
voidable. For reasons of public policy no partnership relation
can be created or continue between residents of countries which partnership the U.P.A.21 provides: "(1) ~very ~artner is an
are at war with each other. At common law, a married woman agent of the partnership for the purpose o~ ~t~ busmess, and t~e
act of every partner, including the executIOn m the partnershIp
is without capacity to become a partner but modern legislation '
mime of any instrument, for apparently carrying on in the usual
has in most jurisdictions conferred on a married woman capaci-
ty to be a partner, although in some jurisdictions she cannot be in way the business of the partnership of which. he is ~ member
binds the partnership, unless the partner so actmg has m fact no
partnership with her husband. And, "in the absence of specific
authority to act for the partnership in the particular matter, and
authority conferred by corporation laws or corporate articles, a
corporation lacks capacity to become a partner." 18 the person with whom he is dealing h?-s knowledge of the fact
attack upon the corporate personality of the associates even A transaction which is beyond the scope of the corporate pur-
though they have failed to perfect incorporation. ~ * * . The poses and activities .as agreed upon by the shareholders is term-
de facto doctrine effects a compromise between conflicting pub- ed "ultra vires," and may subject the corporation to a proceeding
lic interests-the one opposed to an unauthorized assump~ion of by the state for the forfeiture of its charter or to a suit by a
corporateness; the other in favor of doing justice to the parties shareholder for an injunction restraining the ultra vires activity.
and of assuring security in business dealings with corporations. The decisions of cases involving questions arising from ultra
The first interest is guarded by the power of the state to inter- vires contracts are in conflict, and the rights of the parties to
vene in a direct proceeding whenever an assumption of corporate- such a contract may vary according to whether it is entirelyex-
ness is based on defective incorporation. The first interest is ecutory, partially performed by one party only, or executed by
further protected by permitting collateral attack whenever the both of the parties. However, the following general principles
offensive assumption is sufficiently grievous. But the second are deducible: (1) An ultra vires conveyance of property by
interest, which is promoted by a denial of collateral attack, pre- or to a corporation passes title. (2) An ultra 'vires contract
dominates when the unauthorized assumption is coupled with fully performed on both sides will stand as a foundation of rights
certain mitigating circumstances which are known as the ele- acquirec;l under it. (3) When an ultra vires contract is wholly
Itlents of the de facto doctrine."41 These elements of the de facto executory on both sides, either the corporation or the other
doctrine, often referred to as the requisites of a de facto corpora- party may assert ultra vires as a complete defense to any action
tion, are: (a) The existence of a statute under which the par- or suit brought upon such contract. (4) As to ultra vires con-
ticular type of corporation migpt have been validly incorporated. tracts which have been partially performed, the States divide in-
(b) A real, though insufficient, attempt to comply with such to two groups: (a) In a minority of state courts, an ultra vires
statute. (c) A user, or exercise of corporate privileges. agreement is regarded as a nullity which cannot be the foun-
dation of an action on---the contract. But in these jurisdictions
qorporate authority an action can be maintained quasi ex contractu or for an ac-
The charter of a corporation granted by the state is regarded counting to recover the value of benefits received by defendant
as in the nature of a triplex contract; that is as being a contract . as a result of the partial performance of the ultra vires agree-
between the state and the corporation, a contract between the ment. (b) In the majority of state courts, an ultra vires con-
corporation and its shareholders, and, as a contract between the tract is not regarded as void, and the defense of ultra vires
shareholders inter sese. Thus, the authority of a corporation, whether interposed by or against the corporation, is not permit~
(that is the extent to which acts or transactions are within the ted to prevail when the party bringing the action upon .the con-
scope of the corporate purposes and activities as agreed upon by tract has performed it on his side.
the shareholders), is a.s certained by reference to: "(a) The
charter or articles of incorporation; (b) The special or general Liability of Corporations for Torts and Crimes
act under which it is formed; and (c) Any other statutes ap- A corporation is responsible for the torts of its agents commit-
plicable to such corporation."42 The authority of a corporation ted in the course of their employment to the same extent that an
includes: (1 ) The general authority customarily incident to unincorporated individual or association would be, and this is
and characteristic of all corporations; that is the authority to true even as to torts involving a mental element such as malicious
operate as an entity separate from its shareholders; (2) Its ex- prosecution, fraud, slander, and libel. Further, when a corpo-
press authority or that which is dependent upon and limited by ration assumes to. engage in an ultra vires activity responsibility
will attach to the corporation for tortS committed by its agents
41 Stevens, pp. 121, 124, 125, 42 Stevens, § 46, p. 199.
..
while acting within their authority in the course of such activity
BUSINESS DEVICES Ch. 19 § 87 PRIVATE CORPORATIONS 321,.
320
In regard to corporate responsibility for crimes, the early rwe important characteristics of corporateness; the term "limited lia-
was that a corporation, being incapable of forming a criminal bility" meaning that shareholders are liable to creditors or to the
intent cowd not be held liable for the criminal acts of its serv- corporation for the benefit of its creditors only to the extent that
ants, but this attitude is now quite generally relaxed. Thus, the shares held by them have not been fully paid for. "How-
Learned Hand has written,43 "That the criminal liability of a ever, in some instances genercil unlimited liability is possible;
corporation is to be determined by the kinship of the act to the unlimited liability to employees is frequently found established
.powers of the officials who commit it is true enough, but neither by statutes; and double liability of the shareholders of banking
the doctrine of wtra vires, nor the difficwty of imputing intent corporations is very generally the rule."45
or motive, should be regarded any longer to determine the re- The instrument which evidences the interest or shares of a
swt." Since the relaxation of the old rule corporations have been shareholder in the corporation is termed the "stock certificate,"
held liable for such crimes as libel, fraud, conspiracy, contempt, and in the absence of statutory, charter, or by-law restrictions
manslaughter, and maintenance of a nuisance. The penalty im- shares may be transferred by delivery of the certificate with a
posed upon a corporation responsible for crime may be a fine or written assignment which may be in blank, but it is ordinarily
the forfeitUre of its charter; but obviously a corporation cannot provided that shares are transferable only on the books of the
be imprisoned. Consequently, to prevent the wholesale escape corporation.46 However, under the Uniform Stock Transfer Act
of corporations from the effect of criminal statutes which have as approved by the Commissioners on Uniform State Laws in
specified only imprisonment as the penalty some states have 1909, which act was intended to give share certificates a nego-
adopted a general provision that: "In all cases where a corpo- tiable quality, the delivery of ·a certificate with an assignment
ration is convicted of an offense for the commission of which a transfers title to the shares and registry on the corporate books
natural person wowd be punishable with imprisonment, as for a is not necessary to complete the transfer.
felony, such corporation is punishable by a fine of not more than
five thousand dollars."44 Directors and Officers
The actual control and operation of a corporation is vested in
Shareholders a board of directors. However, unless required by statute, arti-
Membership in a corporation is acquired by contract with the cles, or by-laws a person needs no particwar qualifications to be-
incorporated body of shareholders and ordinarily reswts from come a director or officer of a corporation. Nevertheless, it has
subscribing for shares before or after incorporation or from ac- been usual that directors be required to be shareholders, but this
cepting a transfer of the share interest of one who is a share- is not a necessary requirement and under some modern statutes
holder; the "shares" of a corporation being the units into which directors need not be shareholders unless the articles so require.
the shareholders' rights to participate in the control of the cor- "Boards of directors do not exist because corporations are non-
poration, in the surplus or profits, and in the distribution of physical legal entities, incapable of acting except through this
assets on dissolution are divided. Of course the rights of share- human agency prescribed by law, nor because the statutory re-
holders vary according to the terms of their contracts and the quirement [generally found] of boards of directors is dictated
class oi shares which they hold; but, in general, the principal by the interest of the state in the matter. Boards of directors
rights of a shareholder are: (a) To participate and vote in exist because of the statutory recognition that the efficient and
shareholders' meetings; (b) To share in the profits of the cor- economical management of corporate business is promote.d by
porate business through dividends as declared by the board of di- centralization of management in a small group."47 The authority
rectors; and, (c) To share in the assets upon the corporation's of the board over the ordinary business of a corporation is nor-
dissolution, after the creditors have been paid. mally exclusive and free from interference or control by a rna:'
The liability of a shareholder to creditors of the corporation
is ordinarily limited, such limited liability being one -of the most 45 Stevens, § 170, p. 685. essarily preclude an unrecorded trans-
fer from passing title to the shares in-
46 Such provisions, however, are us- volved.
43 United States v. Nearing, D.C., 44 See N. Y. Penal Law, § 1932. ually held to be merely for the protec-
2~2 F. 223, 1918. tion of the corporation and do not nec- 47 Stevens, § 138, p. 544.
SMITH EL.LAW 2d- 21
BUSINESS DEVICES Ch.19 § 81 PRIVATE CORPORATIONS 323
jority of the shareholders because all of the shareholders have gratuitously, dividing their time with the conduct of other busi-
agreed to management by a duly elected board, not by a majority nesses, or are paid for devoting their whole time to this corporate
of the shareholders. business. (e) Whether a particular director is president or
Directors are the representatives of the shareholders and con- managing director or a member of the executive committee."49
sequently the extent to which the board may delegate its func- Corporate Securities; Preferred Shares and Bonds
tions depends upon the extent to which the shareholders have Preferred shares are those which entitle the holders to some
conferred delegable duties upon the board or have assented to or priority as to dividends or principal or both over some other
ratified such delegation. Within these limits functions may be class or classes of shares, depending upon the terms of the con-
delegated by the b08fd to an executive committee, single direc- tracts thereof; and, when preferred stock is "cumulative" divi-
tors, or to officers or persons not directors. dends which for any reason are not paid, are not lost, but accum-
Where the management of corporate affairs is vested in a ulate so that whenever a fund is available for dividends, no divi-
board of directors, normally they must conduct the business as dends may be paid therefrom to the holders of junior shares un-
a board and not otherwise. Action by one, or separate action til the current and all accumulated dividends have been paid to
of all taken independently, is not "board" action which will the holders of the cumulative preferred shares. The holders of
bind the corporation. Thus, the authority of particular officers, "noncumulative" shares, on the other hand, "are not entitled to
when acting individually, and whether or not they are members back dividends for years ih which the corporation had no fund
of the board, to bind the corporation, depends upon the statute, from which dividends could be paid. In some jurisdictions, how-
the corporate articles and by-laws, general custom, and the prac.. ever, it has been held with respect to noncumulative shares that
tice followed in the particular corporation. "Primarily, an offi- dividends do accumulate for those years in which the corporation
cer has not, by virtue of his office alone, authority to transact had a fund available for dividends but none was declared. Other
corporate business, but he may be given, either expressly or by courts, including the Supreme Court, have held that noncumu-
implication, authority as to a particular transaction, or general lative means that the shareholder is entitled to a dividend only
authority to transact the usual corporate business. "" • • if declared, and, if profits available for dividends are justifiably
Persons dealing with one who assumes to act for a corporation applied by the directors to capital improvements and no dividend
are not bound at their peril to ascertain that the latter has actual is declared within the year, the claim for that year is gone and
authority; they may rely upon the apparent authority of the lat- cannot be asserted later."5o However, whether shares are com-
ter, but such persons are obligated to use reasonable precautions mon or preferred, the interest which the ,holder thereof has in
in inquiring as to his authority. When the corporate represen- the corporation is proprietary in nature; he is not a creditor.
tative acts within the 'apparent scope of his authority, he may The obligations which corporations ordinarily issue for the
bind the corporation, whether' the particular transaction be intra purpose of obtaining necessary loans may generally be classified
vires or ultra vires."48 as either income, debenture, or convertible bonds. These have
In regard to the standard of care and skill required of direc- been defined as follows: "An income bond is one the principal
tors, "the nearest approXimation to a general rule is that direc- of which mayor may not be secured by a mortgage, but the m-
tors are required to discharge the duties of their office in good terest is payable only out of net profits, and may be cumulative
faith and with that diligent care and skill which ordinarily pru- or noncumulative or may be of a fixed amount or in proportion
dent men would exercise under similar circumstances in like po- to earnings. A debenture is an unsecured obligation, but may
sitions. The standard is relative, depending upqn: (a) The contain a covenant that no mortgage shall be put upon the cor-
character of the corporation and the nature of its business. (b) porate property unless the debentures are included in the debts
The understanding between the shareholders or the administra- secured by that mortgage. A convertible bond gives the holder
tive practices approved by them. (c) The general usage in that the privilege of becoming a ~hareholder by exchanging his bond
type of corporate business. (d) Whether the directors serve for shares."51
49 Stevens, § 146, p. 588. 61 Stevens, § 92, p. 366.
48 Stevens, §§ 159, 160, p. 640. 50 Stevens, § 106, pp. 407, 408.
SMITH EL.LAW 2d
I
824 BUSINESS DEVICES Ch.19
Definitions
The following definitions from the Restatement of the Law of
Torts 1 (hereinafter cited "Restatement") are requisite for an
understanding of the discussion thereafter: (1) The word "in-
terest" is 'used to denote the object of any human desire. (2)
The word "act" is used to denote an external manifestation of
1 See vol. 1, §§ 1-12, pp. 2- 22. (The are also, for the most part, in the
definitions of the various torts and words of that work, but because of
the rules of law applicable thereto, changes in arrangement and expedi-
which are set forth in the text and ent modifications of context, quotation
for which the Restatement is cited, marks have not always been ·used.)
325
326 TORTS Ch. ~ §88 IN GENERAL 327
the actor's will .and does not include any of its results, even the the fact that the actor believes that a given fact or combination
most direct, immediate and intended. (3) The word "actor" is of facts exist and that the circumstances which he knows, or
used to designate either the person whose conduct is in question should know, are such as to cause a reasonable man so to believe.
as subjecting him to liability toward another, or as precluding (12) The words "reason to know" are used to denote the fact
him from recovering against another whose tortious conduct is that the actor has information from which a person of reasonable
a legal cause of the actor's injury. (4) The word "duty" is used intelligence or of the superior intelligence of the actor' would in-
to denote the fact that the aCtor is required to conduct himself fer that the fact in question exists or that such person would gov-
in a particular manner at the risk that if he does not do so he ern his conduct upon the assumption that such fact exists. (13)
may become liable to another to whom the duty is owed for any The words "should know" are used to denote the fact that a per-
injury sustained by such other, of which that actor's conduct is son of reasonable prudence and intelligence or of the superior in-
a legal cause. (5) The words "subject to liability" are used to telligence of the actor would ascertain the fact in question in the
denote the fact that the actor's conduct is such as to make him performance of his duty to another or would govern his conduct
liable for another's injury, if (a) the' actor's conduct is a legal upon the assumption that such fact exists.
cause thereof, and (b) the other has not, by his own misconduct, In the light of these definitions it may generally be said that
so contributed to his injury as to disable him from bringing an when the "tortious conduct" of an "actor" is the "legal cause" of
action. (6) The w.ord "tortious" is used to denote the fact that an "injury," he has committed a 'tort and is "subject to liability"
conduct whether of act or omission is of such a character as to to the person whose "interest" has been so infringed, in the ab-
subject the actor to liability under the principles of the law of sence of a "privilege," or disabling Ipisconduct on the part. of
torts. [Such conduct is of three types: (a) intentional; (b) the latter. ' The torts which most commonly occur are defined
negligent; (c) ultrahazardous.J2 (7) The word "injury" is us- and discussed in the following paragraphs.
ed to denote -the invasion of any legally protected interest of an-
other. (8) The word "accidental" is used to denote the fact that
the harm which is so described is not caused by any tortious act Battery
of the one whose conduct is in question. (9) The words "legal An act which directly or indirectly is the legal cause of a harm-
cause" are used to denote the fact that the manner in which the · ful contact with another's person constitutes a battery and makes
actor's tortious conduct has resulted in an invasion of some le- the actor liable to the other if (a) the act is done with the inten-
gally protected interest of another is such that the law regards it tion of bringing about a harmful or offensive contact or an ap-
just to hold the actor responsible for such harm. 3 (10) The prehension thereof to the other or a third person, and (b) the
word "privilege" is used to denote the fact that conduct which, contact is not consented to by the other or the other's consen.t
under ordinary circumstances, would subject the actor to liabil- thereto is procured by fraud or duress, and (c) the contact is
ity, under particular circumstances, does not subject him there- not otherwise privileged. Further, an act which directly or indi-
to. 4 (11) The words "reasonably believes" are used to denote rectly is a legal cause of a contact with another's person or with
anything so closely attached thereto that it is customarily re-
jl As used to describe tortious con- tentional" nor "negligent," but which garded ~s a part thereof and which is offensive to a reasonable
. duct, the word "intentional" denotes imposes liability upon the actor for
conduct which is deliberate or voli-
sense of personal dignity, although involving no bodily harm, al-
injuries of others caused by such con-
tional, an act done with knowledge on duct because of its inherently danger-
so constitutes a battery and makes the actor liable to the other
t he part of the actor that an injury ous character. For example, the stor- if (a) the act is done with the intention of inflicting a harmful
to another is substantially certain to ing of dynamite. or offensive contact upon the other or a third person or of put-
result. "Negligent" conduct, on the
other hand, is conduct which is not S Concerning the law on this subject by the actor's conduct, or (b) irre- harm caused or threatened by its ex-
"intended," but which creates liabil- of torts, see Green, "Rationale of spective of the other's consent, (i) the ercise, or (ii) the fact that the actor
ity because it involves a risk, but not Proximate Cause." fact that its exercise is necessary for is performing a function for the prop-
: a certainty, of injury to another. the protection of some interest of the er performance of which freedom of
The third type, "ultrahazardous" con- 4 "A privilege may be based upon action is essential." 1 Restatement, §
actor or of the public which is of
duct, is conduct which is neither "in~ (a) the consent of the other affected such importance as to justify the 10(2), p. 19.
TORTS Ch.20 § 88 IN GENERAL 329
328
ting the other or a third person in aJ:)prehension thereof, and (b) Trespass to Ohattels
the contact is not consented to by the other, and (c) the contact An actionable trespass to a chattel may be either non-dispos-
is not otherwise privileged.5 Fessory or dispossessory. The former, a non-dispossessory tres-
pass, may be committed either by intentionally using or other-
Assault wise intermeddling with a chattel in the possession of another or
An act other than the mere $peaking of words which directly by continuing to use or intermeddle therewith after a privilege
or indirectly is a legal cause of putting another in apprehension to do so has been terminated. 9 A dispossessory ~respass, on the
of an immediate and harmful or offensive contact constitutes an other hand, may be committed by (a) . taking a chattel from the
assault and makes the actor liable to the other for the apprehen- possession of another without the other's consent, or (b) obtain-
sion so caused if (a) the actor intends to inflict a harmful or of- ing possession of a chattel from another by fraud, or (c) inten-
fensive contact upop the other or a third person or to put the tionally barring the possessor's access to a chattel, or (d) inten-
other or a third person in apprehension thereof, and (b) the act tionally destroying a chattel while it is in another's possession. lO
is not consented to by the other, and (c) the act is not otherwise One who intentionally dispossesses another of a chattel without
privileged.6 Thus, an assault is something more than the mere his consent or other privilege so to do, and in the absence of miti-
speaking of words but something less than an actual physical gating circumstances, is liable to the other either as a trespasser
contact or battery, which is why an assault is sometimes describ- for the da.niage done, or as a converter for the value of the chat-
ed as an "inchoate battery." tel.H
sum fregit, (wherefore he broke the close), for trespasses to rule is that, "The actor is liable for an invasion of an ~terest. of
land; and, trespass de bonis asportatis, (for goods carried away), another if: (a) the interest invaded is protected agamst unill-
for trespasses to chattels. tention~l invasion, and (b) the conduct of the actor is negligent
with respect to such interest or any other similar interest of the
Negligence other which is protected against unintentional invasion, and (c)
Negligence is a term used to designate a particular type of tor- the actor's conduct is p. legal cause of the invasion, and (d) the
tious conduct and is not associated with any specific interest and other has not so conducted himself as to disable himself from
harm which is characteristic of the terms used to denote most bringing an action for such invasion." 15
particular torts. It consists "in failing to fulfill a legal duty to As the elements of a cause of action for negligence ind,icate,
exercise a proper degree of car~, whereby damage results to one in order that the actor shall be liable for another's bodily harm
to whom such legal duty is owing." 13 During the more imma- or harm to another's interest in the physical condition of land
ture stages of tort law no distinction was made in regard to and chattels it is necessary not only that the actor's conduct be
whether a !'trespass" was committed intentionally or negligent- negligent to~ard the other but also that the negligence of th~ ac-
ly and such wrongs were actionable in trespass whether the con- tor be a legal cause of the other's harm.16 "The actor's 'n eghgent
duct causing them was intentional or negligent; but during the conduct is a legal cause of harm to another if (a) his conduct
nineteenth century, negligence came to be recognized as a dis- is a substantial factor in bringing about the harm, and (b) there
tinct type of tortious conduct more properly remediable by the is no rule of law relieving the actor from liability because of the
action of "trespass on the case." Thereafter, when a trespass to manner in which his negligence has resulted in the harm." 17
the person, land, or chattels was committed intentionally, the
form of action was either trespass for personal harm, trespass q. Ultrahazardous Conduct or, Activity
c. f., or trespass d. b. a.; whereas if similar harms were commit- The third type of tortious conduct is that which is designated
ted negligently the form of action was case. The distinction is by the term "ultrahazardous." Fo,!", exampI~, the manufacture,
important because contributory negligence on the part of plain- storage, transportation and use of hIgh. explOSIves. Suc~ c?nduct
tiff is ordinarily a good defense in an action based on defendant's or activity is not necessarily unlawful ill the sense that It IS con-
negligence but it is 'no bar .to recovery if the defendant's tortious trary to criminal law or prohibitory statutes, but may be, and
conduct was intentional. Further, in most actions of trespass, usually is, regarded as being for the common good. However, .as
or those based on tortious conduct of the intentional type, actual an activity is not ultrahazardous unless it "(a) necessarily ill-
damages need not be proved; but, generally, in actions based on volves a risk of serious harm to the person, land or chattels of
negligence, only damages proved are recoverable. others which cannot be eliminated by the exercise of the um:ost
Negligence is conduct which falls below the standard establish- care, and (b) is not a matter of common usage," ~8 the 'law ~
ed by law for the protection of othets against unreasonable risk poses the risk of such harm on those who engage ill stich actIVI-
of harm; and, unless the actor is a child or an insane person, the ties, the rule being that, "one who carries on an ultrahazardous
standard of conduct to which he must conform to avoid being activity is liable to another whose person, land or chattels the
negligent is that of a reasonable man under like circumstances.14 actor should recognize as likely to be harmed by the unpreventa-
In regard to the elements of a cause of action for negligence the bie miscarriage of the activity for harm resulting thereto from
that Which makes the activity ultrahazardous, although the ut-
13 Cp.apin on Torts, § 104, p. 499, 9. child of like age, intelligence and
experience, However, in regard to
most care is exercised to prevent the harm." 19 But there are ex-
14 See 2 Restatement, §§ 282, 283, the child's capacity to realize the ex- ceptions to the rule and it does not apply if the activity is car-
pp, 738, 741, 742, The general rule istence of a risk, the individual quali- ried on in pursuance of a public duty imposed upon the actor as
is that an infant is responsible for ties of the child are taken into ac-
his torts, but in determining whether count. In the absence of a contrary 152 Restatement, § 281, p. 734. 172 Restatement; § 431, p. 1159.
or not a child has been negligent his statute, a parent, as such, is not lia- 18 3 Restatement, § 520, pp.' 42, 43.
conduct is to be judged by the stand- ble for a tort of his child. 16 See 2 Restatement, §§ 430, 49-7,
ard of behavior to be expected from pp, 1156, 1157, 1287. 19 3 Restatement, § 519, p. 41.
332 TORTS Ch.20 §88 IN GENERAL 333
a public officer or employee or as a common carrier; nor does it except trespassers on his land, for such harm done by the animal
apply where' the person harmed by the unpreventable miscarri- to their persons, lands or chattels as results from a dangerous
age of an ultrahazardous· activity has reason to know of the risk propensity which is characteristic of wild animals of its class or
which makes the activity ultrahazardous and takes part in it, or of which the possessor has reason to know, although he has exer-
brings himself within the area which will be endangered by its cised the utmost care to confine the animal or otherwise prevent
miscarriage without a privilege, or in the exercise of a privilege it from doing harm, except where the animal has gone out of his
derived from the consent of the person carrying on the activity, possession and returned to its natural state as a wild animal in-
or as a member of the public entitled to the services of a public digenous to th~ locality, or unless the poss€6sion of the wild ani-
utility carrying on the activity. Further, a plaintiff is barred mal was in pursuance of a duty imposed upon the possessor as
from recovery for harm caused by the miscarriage of an ultra- a public officer or employee or as a common carrier. 23 (3) A
hazar~ous activity if he intentionally or negligently causes the possessor of a domestic animal which he has reason to know has
activity to miscarry, or after knowledge that it has miscarried or dangerous propensities abnormal to its class, is subject to liabil-
is about to miscarry, he fails to exercise reasonable care to avoid ity for harm caused thereby to others, except trespassers on his
harm threatened thereby. However, a plaintiff is not barred land, although he has exercised the .utmost care to prevent it
from recovery for harm done by the miscarriage of an ultrahaz- from doing the harm, unless the possession of the animal is in
ardous activity by his failure to exercise reasonable care to ob- pursuance of a duty imposed upon the possessor as a public of-
serve the fact that the activity is being carried on or by intention- ficer or employee or as a common carrier.24
,ally coming into the area which would be endangered by its mis-
carriage.20 Deceit
The fundamental rules regarding deceit and fraudulent con-
Liability of Possessors of Animals cealment in business transactions are as follows: (1) One who
The following general rules apply to the possessors of animals: fraudulently makes a misrepresentation of fact, opinion, inten-
(1) A possessor of livestock which intrude upon the land of an- tion or law for the purpose of inducing another to act or refrain
other is liable for their intrusion and for any harm done while from action in reliance thereon in a business transaction is liable
upon the land to its possessor or a member of his household al- to the other for the harm caused to him by his justifiable reli-
though the possessor of the livestock exercised the utmost care ance upon the misrepresentation. 25 (2) One party to a business
to prevent them from intruding. 2l However, this rule is subject transaction who by concealment or other action intentionally
to the following exceptions: (a) A possessor of land who by the prevents the other from acquiring material information is sub-
common law applicable to that part of the State in which the ject to the same liability to the other as though he had stated the
land is situated or by statute, is required to fence his land to pre- nonexistence of the matter which the other was thus prevented
vent the rntrusion of the livestock is barred from recovery from discovering.26
against the possessors of intruding livestock if he fails tb erect Concerning information negligently 'supplied for the guidance
and maintain the required fence; (b) A possessor of livestock of others, the rule is: One who, in the course of his business or
which are being driven upon a highway is liable for their intru- professjon, supplies information for the guidance of others in
sion upon land abutting thereon only if he has failed to exercise their business transactions is subject to liability for harm caused
reasonable care to prevent them from straying or to remove to them by their reliance upon the information if (a) he fails to
them from the abutting lands upon which they have strayed.22 exercise that care and competence in obtaining and communicat-
(2) A possessor of a wild animal is subject to liability to others, ing the information which its recipient is justified in expecting,
20 See 3 Restatement, §§ 521, 523, it does not include dogs and cats.
524, pp. 47, 49, 52. See 3 Restatement, p. 3. 23 See 3 Restatement, §§ 507, 508, 253 Restatement, § 525, p. 69.
517, pp. 13, 17, 36.
21 3 Restat~ment, § 504(1), p. 2. 22 3 Restatement, §§ 504(2), 505, pp. ,26 3 Restatement, § 550, p. 116.
"Livestock'; includes such animals 2, 10. 24See 3 Restatement, §§ 509, 517,
~s horses, cattle, pigs and sheep, but pp. 19, 36.
334 TORTS Ch.20 §88 IN GENERAL 335
and (b) the harm is suffered by the person or one of the class of out a privilege to do so, publishes matter defamatory to another
persons for whose guidance the information was supplied, and in such a manner as t6 make the publication a libel is liable to
because of his justifiable reliance upon it in a transaction in the other although no special harm or loss of reputation results
which it was intended to influence his conduct or in a transaction therefrom. 33 (2) One who falsely, and without a privilege to do
substantially id,e ntical therewith. 27 so, publishes matter defamatory to another in such a manner as
Misrepresentations or nondisclosures in certain non-business ' to make the publication a slander is liable to the other although
transactions may also be actionable, as, for example, fraudulent no special harm or loss of reputation results if the publication
misrepresentations inducing gifts to the maker of such misrepre- imputes to the other (a) a criminal offense, or (b) a presently
sentations or to third persons; fraudulent nondisclosures of phys- existing venereal or other ,loathsome and communicable disease '
ical conditions by one spouse from the other which make the or (c) conduct, characteristics, pr a condition incompatible with
marital relation dangerous; fraudulent misrepresentations of a the proper exercise of his lawful business, trade, profession, or
third person's fitness for or freedom to marry; fraudulent mis- , office, or (d) the other being a woman, acts'
of unchastity.34
,
representations inducing tortious acts or omissions by others. 2s In regard to slanders not actionable per se the rule is: "One
who falsely and without a privilege to do so publishes a slander
Defamation which, a!though not actionable per se, is the legal cause of special
\ harm to the person defanied, is liable to him." 35
To create liability for defamation there must be an unprivileg-
ed publication 29 of false and defamatory matter of another which Slander of Title
(a) is actionable irrespective of special harm, (actionable per
se), or (b) if not so actionable, is the legal cause of special harm, One who, without a privilege to do so, publishes matter which
that is, harm of a material and generally of a pecuniary nature is untrue and disparaging to another's property in land, chattels
to the other.30 A communication is defamatory, if it tends so to or intangible things under such circumstances as would lead a
harm the reputation of another as to lower him in the estima- reasonable man to foresee that the conduct of a third person as
tion of the community or to deter third persoI)S from associating purchaser or lessee thereof might be determined thereby, com-
or dealing with him.31 mits the tort known as "slander of title" and is liable for pecuni-
ary loss resulting to the other from the impairment of vendibil-
A defamatory communication is either in the form of libel or ity thus caused. 36
in the form of slander. Libel consists of the publication of de-
famatory matter by written or printed words, by its embodiment Wrongful Prosecution of Criminal Proceedings
in physical form, or by any other form of communication which
The primary principles relating to the wrongful prosecution of
has the potentially harmful qualities characteristic of written
criminal proceedings are: (1) A private person who initiates, or
or printed words. Slander, on the other hand, consists of the
who procures the institution of criminal proceedings against an- .
publication of defamatory matter by spoken words, transitory
other who is not guilty of the offense charged, commits the tort
gestures, or by any form of communication other than those
of malicious prosecution and is liable to him for the harm done
which constitute libel. 32 thereby if the proceedings (a) were initiated without probable
As for defamations actionable per se, or irrespective of special cause, and primarily because of a purpose other than that of
harm, the fundamental rules are: (1) One who falsely, and with- bringing an offender to justice, and (b) have terminated in fa-
vor of the accused. 37 (2) A private person who initiates criminal
27 See 3 Restatement, § 552, p. 122. one other than the person defamed~" proceedings against another upon probable cause and for a prop-
2 Restatement, § 577, p. 192.
28 See 3 Restatement, c. 23, pp. 131- er purpose and thereafter takes an active part in pressing the
135. . 30 See 3 Restatement, § 558, p. 139.
33 3 Restatement, § 569, p. 165. 36 See 3 Restatement, § 624, p. 325.
29 "Publication" of 'defamatory 31 3 Restatement, § 559, p. 140.
:natter means "its communication in-
34 See 3 Restatement, § 570, p. 170. 37 See 3 Restatement, § 653, p. 382.
tentionally or by a negligent act to .. _ 32 See 3 Restatement, § 568, p. 159. 353 Restatement, § 575, p. 185.
336 TORTS Ch.20 §88 IN GENERAL 337
proceedings after discovering that there is no probable cause privilege to do so and for the purpose of disrupting the marriage
therefor, is liable for the harm thereby caused to the accused if relation, induces a wife to separate from her husband or not to
the proceedings have terminated in his favor, unless he is guilty return to him after she has separated from him, is liable to the
of the offense charged against him. 38 husband for the harm thereby caused to any of his legally pro-
Wrongful Initiation of Civil Proceedings tected marital interests. 43 (3) One who, without the husband's
consent, has sexual intercourse with a married woman is liable
The general rule applicable to the wrongful initiation of civil to the husband for the harm thereby caused to any of his legally
proceedings is: One who initiates or procures the initiation of protected marital interests. 44
civil proceedings against another is liable to him for the harm
done thereby, if (a) the proceedings are initiated without prob- Under the same conditions as would permit the husband to re-
able cause, and primarily for a purpose other than that of secur- cover for similar wrongs, one who alienates the affections of a
ing the adjudication of the claim on which the proceedings are husband, or induces a husband to separate from his wife or not
based, and (b) except where they are ex parte, the proceedings to return to her, or who has sexual intercourse with him is lia-
have terminated in favor of the person against whom they are ble to the wife for harm thereby caused to any of her legally pro-
tected marital interests. 415
brought.39 Corresponding rules apply where civil proceedings
causing an arrest or a deprivation of property, or proceedings al- The general principle governing "indirect" interferences with
leging insanity or insolvency, or proceedings before an adminis- the marriage relation and which permits an action by the hus-
trati,ve board are wrongfully instituted, or where civil proceed- band for harm caused by a tort against the wife is that "one who
ings are repeatedly initiated wrongfully.40 by reason of his tortious conduct is liable to a married woman
for illness or other bodily harm is subject to liability to her hus-
Abuse of Process band for the resulting loss of her services and society, including
The general principle which governs the tort known as abuse any impairment of her capacity for sexual intercourse, and for
of process is that "one who uses a legal process, whether criminal any reasonable expense incurred by him in providing medical
or civil, against another to accomplish a purpose for which it is treatment." 46 However, no action is permitted to the wife for
not designed is liable to the other for the pecuniary loss caused harm caused by a tort against the husband as she is not entitled
thereby." 41 For example, P obtains a judgment against D for q to his services as he is entitled to hers. A tort committed against
debt owed by D, and after the debt has to P's knowledge been the husband does not deprive the wife of the support to which
paid, P takes out execution on the judgment. P is liable to D for she is entitled, and the husband may recover from the tortfeasor
abuse of process. for any loss of earning power which he may suffer; consequent-
ly if the wife were permitted an action against the tortfeasor for
Interferences in Domestic Relations loss of sUI?port the result would be double recovery.47
The general principles relating to the torts of alienation of a
wife's affection, inducing a wife to separate from or refuse to re- Torts of Marr;ied Women; Liability
turn to her husband, and criminal conversation with a married At common law, a husband during coverture "is liable for the
woman, all of which are characterized as "direct" interferences torts committed by his wife, either before or during coverture.
with the marriage relation, are as follows: (1) One who, without This liability ceases, however, when the coverture is determined
a privilege to do so, purposely alienates a wife's affections from by the death of either party, or by a divorce. The rules govern-
her husband, is liable for the harm thereby caused to any of his
433 Restatement, § 684, p. 475.
legally protected marital interests. 42 (2) One who, without a in addition to the action which the
443 Restatement, § 685, p. 477. wife has for the violation of her sep-
383 Restatement, § 655, p. 390. 41 3 Restatement, § 682, p. 464. erate and distinct interest and which
45 See 3 Restatement, § 690, p. '486. entitles her to recover for the inju-
393 Restatement, § 674, p. 440. ries she has suffered.
42 ~ Restatement, § 683, p. 469. 463 Restatement, § 693, p. 492. As
40 See 3 Restatement, §§ 677-680, the statement of the rule indicates, 47 See 3 Restatement, § 695, pp. 496,
pp. 454-459. the action permitted the husband is 497.
SMITH EL.LAw 2d-22
338 TORTS Ch.20 §88 331)'
ing a wife's liability for her own torts are these: (a) She is lia- Rules relating to "indirect" interferences with the relation of.
ble, jointly with her husband during coverture, and solely after parent and child are as follows: (1) One who by reason of his'
his death or a divorce, (1) for torts committed in his absence, tortious conduct is liable to a minor child for illness or other bod-
whether committed by his direction or command, or not, [and] ily harm is subject to liability to (a) the parent who is entitled
(2) for torts committed in his presence, but not by his direction to the child's services for any resulting loss of services or ability
or command, express or implied. (b) She is not liable at all for to render services, and to (b) the parent who is under a legal
torts committed jn his presence, and by his direction or com- duty to furnish medical treatment for any expenses reasonably
mand, but is excused on the ground of coercion. (c) Torts com- incurred or likely to be incurred for such treatment during the
mitted by a wife in her husband's actual or constructive presence child's minority. 52 (2) One who obtains the services of an un-
are presumed to have been committed by his direction or com- emancipated minor child without the consent or acquiescence of
mand; but this presumption is prima facie only, and may be re- the parent who is entitled to the child's services is liable to sucH
butted." 48 parent for the loss of the services of which the parent has been
However, these rules of the Gommon law have been greatly deprived. 53 (3) One who, without the parent's consent or ac-.
modified in most of the states by statutes removing the disabil- quiescence to the particular risk involved, employs a minor child
ities of married women,and by statutes taking from the husband in an occupation which in consideration of the age and experience
the rights which the common law gave him in respect to his of the minor is dangerous to it, is liable to (a) that parent who
wife's property. Thus," (a) In some states a husband is no is entitled to the child's services for the loss of its services or
longer liable for the torts of his wife, unless he participated in ability to render services resulting from illness or other bodily
their commission. (b) In other states he is liable for her per- harm sustained by the child in the course of such dangerous em- .
sonal torts, like slander or assault, but not for torts committed in ployment, and (b) that parent who is under a legal duty to fur-
the control of her separate property." 49 nish medical treatment for expenses reasonably incurred or like-
ly to be incurred for the treatment of the child during its minor-
Interferences in the Parent and Child Relation ity.54
Rules relating to "direct" interferences with the relation of
Interferences in Business Relations
parent and child are as follows: (1) One who, without a privi-
The primary rules which relate to interferences in business re-
lege to do so, (a) abducts a minor child, or (b) induces it to
lations are as follows: (1) One who engages in a business pri-
leave its home with knowledge that the parent has not consented,
marily for :the purpose of causing loss of business to another and
or (c) with knowledge that it has left its home and that the par-
with the intention of terminating the business when that purpose
ent is unwilling that the child should be absent, induces it not to
is accomplished is liable to the other for the loss so caused.55 (2)
return thereto or prevents it from so doing, is liable to the par-
One who engages in a business or profession in violation of a
ent, who is legally entitled to the child's custody. 50 (2) One
legislative enactment which prohibits persons from engaging
other than her husband who, without her parent's consent, has
therein, either absolutely or without a prescribed permission, is
sexual intercourse with a minor female child is liable to (a) the
subject to liability to another who is engaged in the business or
parent who is entitled to the child's services for any resulting
profession in conformity with the enactment, if (a) one of the
loss of services or ability to render services, and to (b) the par-
purposes of the enactment is to protect the other against unau-
ent who is under a ,legal duty to furnish medical treatment for
expenses 'r easonably incurred or likely to be incurred for such 523 Restatement, § 703, p. 509. As for the injuries the child has suffer-
treatment during the child's minority. 51 the statement of the rule indicates, ed.
the action permitted the parent is in 53 3 Restatement, § 706, p. 516.
48 Madden on Persons and Domes- 50 3 Restatement, § 700, p. 502. addition to the action allowed on be-
M3 Restatement, § 707, pp. 516,
tic Relations, §§ 64, 65, pp. 206, 207. half of the child for the violation of
51 3 Restatement, § 701, p. 505. 517.
the child's separate and distinct in-
49 Madden on Persons and Domes- Restatement, § 709, pp. 523,
terest and which permits recovery 553
tic Relations, § 67, p. 207. 524.
SMITH EL.LA"IV 2d
340 TORTS Ch.20
REMEDIES BY ACT OF INJURED PARTY 1 See 1 Restatement of the Law of * * * although the actor reasona-
Torts, § 63(1), p. 120. bly believes that he can safely a void
(1) Self-defense} Defense of Third Person} and Defense of Prop- the neceSSity of so defending him- _
2 See 1 Restatement of the Law of
self, (a) by retreating if, but only if,
erty Torts, § 65, pp. 134, ·135. For state- he is attacked within his dwelling
Self-defense is the protection of one's person or property from ments of the privilege of self-defense place which is not also the dwelling .
against negligent conduct, see 1 Re-
injury by another, and in respect of the protection of one's person place of the other, or (b) by permit-
statement of the Law of Torts, §§ 64, ting the other to intrude upon or dis-
the general principle is that the intentional infliction upon anoth- 66, pp. 132, 143. possess him of his dwelling place, or
er of a harmful or offensive contact or other bodily harm by a "The intentional infliction upon an- (c) by abandoning an attempt to ef-
means not intended or likely to cause death or serious bodily other of a harmful contact by means fect a lawful arrest." 1 Restatement
_harm is privileged for the purpose of preventing the other from intended or likely to cause death or of the Law of Tort~, § 65(2), p. 135.
inflicting a harmful or offensive contact or other bodily harm serious bodily harm is privileged
344 REMEDms Ch.21 § 90 REMEDms IN GENERAL 345
of the third person; and, (b) provided further, that the third or serious bodily harm. 5 The use of force against another for
person is, or is reasonably believed by the actor to be, a member the purpose of assisting or acting for a third person in recaption
of his immediate family or household, or a person whom he is un- of a chattel to the possession or custody of which the third per-
der a legal or socially recognized duty to protect. 3 son is entitled is also privileged, if the third person is so privileg-
The intentional infliction upon another of a harmful or offen- ed and (a) the third person employs or requests the actor so to
sive contact or other bodily harm by a means not intended to assist or act for him, or (b) the actor and the third person are
cause death or serious bodily harm is also privileged for the pur- members of the same immediate family or household, or (c) the
pose of preventing or terminating another's intrusion upon the third person's chattel is under the protection of the actor.s
actor's possession of land or chattels, if the other's intrusion is
not privileged, the means used by the actor are reasonable, and (3) Entry
the actor has first requested the other to desist from the intru- Entry is the taking of the possession of lands from another;
sion, unless such request would be futile or useless; and, the in- and the use of force by an actor executing this remedy against
tentional infliction upon another of a harmful or offensive con- another is privileged if (a) the force is used for the purpose of
tact or other bodily harm by a means which is intended or likely regaining possession of the land or of effecting an entry thereon;
to cause death or serious bodily harm for the purpose of prevent- (b) the other has tortiously dispossessed the actor or his pred-
ing or terminating the other's intrusion upon the actor's posses- ecessor in title; (c) the actor is entitled as against the other to
sion of land or chattels is also privileged, provided the actor rea- the immediate possession of the land; (d) the actor acts prompt-
sonably believes that the intruder, unless expelled or excluded, is ly after his dispossession or after his timely giscovery thereof;
likely to cause death or: serious bodily harm to the actor or to a (e) the actor first requests the other to give up the possession,
third person whom the actor is privileged to protect.· except where the actor reasonably believes a request to be use-
less, dangerous to himself or a third person, or likely to defeat
(2) Recaption the effective exercise of the privilege; and, (f) the means em-
Recaption is the taking of a chattel from another; and the use ployed are not in excess of those which the actor correctly or
of force by an actor executing this remedy against another is reasonably believes to be necessary to effect the entry, and not
privileged if (a) the force is used for the purpose of regaining intended or likely to cause death or serious bodily harm.7
possession of the chattel; (b) the other has tortiously taken the
chattel from the actor's possession or custody; (c) the actor is (4) Abatement of Nuisance
entitled as against the other to the immediate possession of the The abatement of a nuisance is the removal or termination of
chattel; (d) the actor acts promptly after his dispossession or a nuisance; and an entry on land in the possession of another by
after his timely discovery thereof; (e) the actor first requests a possessor of neighboring land (or by the owner of an easement
the other to give up possession of the chattel, except where the which is injuriously affected) is privileged, if the entry is made:
actor reasonably believes a request to be useless, dangerous to (a) for the purpose of abating a structure or other condition on
himself or a thjrd person, or likely to defeat the effective exer- the land which constitutes a private nuisance to the actor's inter-
cise of the privilege; and, (f) the means employed are not in ex- est in the other land; (b) at reasonable times and in a reason-
cess of those which the actor reasonably believes to be necessary able manner; and, (c) after the possessor upon demand has fail-
to effect the recaption, and not intended or likely to cause death ed to abate the nuisance, or without such demand if the actor
reasonably believes it to be impractical or useless. Under the '
3 See 1 Restatement of the Law of contact or other invasion of another's same conditions, a private person to whom a public nuisance
Torts, § 76, p. 162. interests of personality in defense
against intrusion upon a third per-
5 See 1 Restatement of the Law of 7 See 1 Restatement of the Law of
4 See 1 Restatement of the Law of son's land or chattels, see 1 Restate·
Torts, §§ 100-106, pp. 224-238. Torts, §§ 88-94, pp. 206-218.
Torts, §§ 77, 79, pp. 167, 168, 181, 182. ment of the Law of Torts, § 86, p.
For a statement of the privilege to in- 201. 6 See 1 Restatement of the Law of
flict a harmful or offensive bodily Torts, § 110, p. 242.
346 REMEDIES Ch.21 § 90 REMEDIES IN GENERAL 347
causes or threatens a special harm, is also privileged to abate
the nuisance. 8 In addition, an actor is privileged to intentional- REMEDY BY AGREEMENT BETWEEN THE PARTIES
ly intermeddle with chattels in the possession of another or to
dispossess another of chattels for the purpose of abating a pri- (1) Accord and satisfaction
vate nuisance created or maintained by the possessor, if such in- An "accord" is an agreement between two persons whereby
termeddling or dispossession is a reasonable means of abating orie of them undertakes to give and the other undertakes to ac-'
the nuisance, and if the possessor of the chattels upon demand cept something in satisfaction of a right of action which the lat-
has failed to abate the nuisance, unless the actor reasonably be- ter has against the former; and the execution of such an agree-
lieves that such demand is impractical or. useless.9 ment is a "satisfaction." Together they are called "accord and
satisfaction." "A liability in tort or for breach of contract may
(5) . Distress be discharged by the parties making and performing a new agree-
Distress is the· right of a landlord, at common law, to distrain ment in lieu of the old obligation. The making of the agreement
chattels found upon leased premises when rent is in arrear. is called an accord, which is an ordinary bilateral contract; the
"This is a right growing out of the relation of landlord and ten- performance of the agreement is-called the satisfaction. In order
ant, and is not dependent upon agreement, and this remedy lies to work a discharge, there must be a consideration for the prom-
for all rents reserved which are certain. At common law, the dis- ise of the party entitled to sue. It is further necessary that
traint may be made by the lessor, or the assignee of the rever- the accord shall be executed; otherwise the agreement is ·an ac-
sion, for all the rent due. It is now required, however, in most cord without a satisfaction. The promisor must have obtained
states, that a warrant be executed by a proper officer. At com- what he bargained for in lieu of his right of action, and he must
mon law, any chattels found. upon the premises could be distrain- have obtained something more than a mere fresh arrangement as
ed, whether belonging to the tenant, or to others. An exception, to the payment or discharge of the existing liability. It is not
however, was made in favor of goods brought there in course meant by this that a promise can never be received as a satisfac-
.of trade. The tendency of modern decisions and statutes is to tion. If the promise and not its performance is accepted in sat-
restrict the right of distraining to the property of the lessee. isfaction, it is a good accord and satisfaction without perform-
There can be no distress for rent unless the relationship of land- ance. In other words, a new contract agreed upon, and accepted,
lord and tenant actually exists, and also an express contract to as a satisfaction, operates as an accord and satisfaction. The sat-
pay rent. Under the common law, the landlord had merely the isfaction may consist in the acquisition of a new right against
right to keep the goods until the rent was paid. He could not, the debtor, as the receipt from him of a negotiable instrument in
moreover, use them for his own benefit. Under the statutes, lieu of payment; or of new rights against the debtor and third
however, the goods may be sold, upon due notice, if they are not persons, as in the case of a composition with creditors; or of
redeemed within the time fixed by the statutes. The remedy of something different in kind from that which the debtor was
distress for rent still'exists iIi a number of our states, although . bound by the original contract to perform; but it must have been
the proceedings based thereon have been much modified by stat- taken by the creditor as satisfaction for his claim in order to
ute. In some jurisdictions, the remedy is held by judicial deci- operate as a valid discharge. There can be no satisfaction with-
sions to be obsolete. In other states, it has been expressly abol- out accord or agreement to that effect. The agreement may be
ished by statute." 10 implied; thus,. if A owes B an unliquidated or disputed amount
and sends B a check marked 'Payment in full,' if B cashes the
8 See 1 Restatement of the Law of 10 Burdick on Real Property, pp. check, he will be estopped to claim that the claiin is not dis-
Torts, §§ 201, 203(2), pp. 488, 501. 211, 212. charged." 11
9 See 1 Restatement of the Law of
Torts, §§ 264, 270, pp. 659, 667. 11 Clark on Contracts, 4th Ed., pp.
679-681.
348 REMEDIES Ch.21 § 91 LEGAL REMEDIES 349
been exercised in other states as a part of the ordinary powers ent time the taking of depositions to perpetuate testimony is gen-
of equity vested in the ,courts. The writ, when issued, ordered erally regulated by statutes which do not require a separate
the arrest of the party against whom it was issued and his deten- suit for the purpose.
tion until he gave bond to abide the decree of the court." 37
Oreditors' Bin
Discovery A court of equity will lend its aid to enforce the judgments of
Discovery is defined as "the disclosure by the defendant of the common-law courts in certain cases where its assistance is
facts, titles, documents, or other things which are in his exclusive necessary for such result. Thus, a plaintiff (or "creditor") who
knowledge or possession, and which are necessary to the party has obtained a common-law judgment which he is unable to sat-
seeking the discovery as a part of a cause or action pending or to isfy by common-law process may maintain a bill in equity to dis-
be brought in another court, or as evidence of his rights or title cover coricealed 'assets of the judgment debtor, to subject equita-
in such proceedings." 38 As an equitable remedy the bill for ble assets to the payment of the judgment, or to set aside fraud-
discovery arose because there was no method at common law by ulent conveyances. Bills for any of these forms of relief are
which a party could obtain the evidence of the adverse party, or designated "creditors' bills." 41
the production of books or papers that were in his possession;
I hence equity gave a bill of discovery in aid of the remedy at law. Interpleader
However, "the relief is 'today almost everywhere superseded by Interpleader is the equitable remedy which protects a debtor
statutory provisions for the examination of the adverse party in or holder of property who is willing to payor deliver the fund or
actions at law or under the codes. In many jurisdictions it is property to the person entitled thereto, from conflicting claims
held that these statutes provide the exclusive remedy and that by different claimants. "Though he admits that he owes the debt
separate bills for discovery can no longer be maintained. ' ill or holds the property, and is willing to payor deliver it to the
other jurisdictions, the equitable relief may still be obtained, but person entitled to receive it, he cannot safely do so, because pay-
it is not very often used, since the statutory proceeding is so ment or delivery to one of the claimants would be no bar to lia-
much simpler." 39 bility to the other if the latter succeeds in establishing his right.
The relief -afforded is to permit the debtor or stakeholder to pay
Perpetuation of Testimony the money or deliver the property into court and compel the ad-
A bill to perpetuate testimony was an equitable remedy obtain- verse claimants to interplead between themselves to determine
able where no action was pending in which the rights of the par- their respective rights to the fund or property. The remedy of
ties could be determined and the one seeking the relief was not interpleader was not originated by the chancellors, but they
able to institute an action therefor. In such a case equity would 41 "The necessity for the use of a law, but the only legal remedy avail-
permit hinL to maintain a bill to perpetuate testimony of witness- bill in equity to discover concealed - able was to levy upon and sell the in-
es to sustain his claim if there was danger that their evidence assets has been very generally ob- terest of the debtor in the property
might be lost before the action was begun by the adverse party. viated by statutes providing for sup- and then sue to recover possession of
"The evidence was taken by depositions which were admitted by plementary proceedings in aid of ex- the property from the fraudulent
ecution, though it has been held that grantee. Not only did this require
the common-law courts as secondary evidence if the testimony a statutory remedy to enable a judg- ,a circuity of action, but it necessi-
of the witnesses themselves could not then be obtained, on prin- ment creditor to reach assets fraud- tated the making of the sale before
ciples similar to those applied to determine the admissibility of ulently concealed does not preclude t he invalidity of the conveyance had
testimony 'given by witnesses at a former trial." 40 At the pres- resort to a creditor's bill in equity been judicially determined, so that
unless there is manifested a legisla- the sale was not apt to produce any
37 McClintock on Equity, pp. 357, 39 McClintock on Equity, p. 354. tive intent to make the statutory substantial price. Obviously, such a
358. remedy exclusive." McClintock on remedy was not adequate, and, conse-
40 McClintock on Equity, p. 355. Equity, p. 359. quently, equity gave relief by a bill
38Black's Law Dictionary, 3d Ed., Of course, a conveyance in fraud to set aside the conveyance.
p.587. of creditors was not valid at common
362 REMEDIES , Ch.21
adopted it from the common law, where it was allowed in a lim- CHAPTER 22
ited number of cases, chiefly in actions of detinue against a bailee
where there were joint bailors on condition, or a third person COURTS AND THEIR JURISDICTLON
claimed as buyer from the bailor subsequent to the bailment, or
detinue against a finder where more than one person claimed to 94. Courts in General.
95. Jurisdiction.
be the owner of the goods. Where the common-law action was
96. Cou"rts of Record.
not detinue, this relief could not be obtained, and the chancellors 97. English Courts of Original Jurisdiction before 1873.
began to grant interpleader in such cases." 42 98. English Courts of Intermediate Appeal before 1873.
99. English Courts of Final Appeal before 1873.
Bills of Peace 100. English Cour ts since 1873.
A bill of peace is the equitable remedy which is obtainable for 101. United States Courts.
the purpose of preventing the hardship which would result from 102. State Courts.
the necessity of prosecuting or defending numerous actions at
law in order to protect a legal right. "Bills of peace were first
allowed in cases where one party claimed a right which was con- COURTS IN GENERAL
tested by many, such as a controversy between a lord and his
tenants over rights of common. Next, the remedy was extended 94. The term "court" is used in law to denote:
to cases where a party claimed an exclusive right which was dis- ,( a) A tribunal ordained pursuant to law for the administration
puted by numerous parties who did not claim under a common of justice, and
title. Then it was allowed where there were numerous claims by (b) The place where such a tribunal functions.
different parties against one party, where all of the claims could
be determined by the decision of a smgle issue." 43 Thus, when the "jurisdiction of the court" or the "decision of
the court" is spoken of, the term "court" denotes a tribunal which "
42 McClintock on Equity, pp. 315, 43 McClintock on Equity, pp. 305, exercises judicial functions and administers justice; but when it
316. ' 306.
is said that a person "comes into court" or "appears in court"
the place where such a tribunal functions is the subject.
The word "court" is also often used as a synonym of "judge,N
and the judge of a court, while presiding as such, is commonly
referred to as "the court." Further, the words "court" and
"judge" are frequently used interchangeably in statutes, but
strictly speaking the two are not the same. A judge is an in-
strumentality of the court, the human agency through and by
which most of the power and authority of the court are usually
asserted and exercised, but the exercise of such power and au-
thority may require other human agencies, for example a jury,
and the term "court" may be used to denote a judge and jury.
Hence, a judge is merely a part of the unit or court, and the term
"court" is broader and more inclusive than the term "judge."
Also, "a judge not presiding in court, or a judge in vacation, is
not a court. Proceedings held at a time or place, or in a manner,
other than required by law, though in the personal presence and
under the direction of the judge (and even more clearly if held
363
364 COURTS AND THEm JURISDICTION Ch.22 JURISDICTION ~65
in his absence), are coram non judice [meaning before one not cient in any reasonable view to support the verdict or finding
a judge; before a person not properly exercising the authority upon which the judgment is based. In either case, it is desirable
of a judge] and void. By force of statutes or of rules established that there be a higher tribunal which may correct the error
by courts as essential to the due administration of justice, cer- and state the law authoritatively. A chief purpose in providing
tain ancillary acts, such as extending the time for filing papers, such a review is to make the law uniform throughout the terri-
and certain emergency acts, such as granting a temporary re- tory over which the jurisdiction of , the appellate tribunal ex-
straining order, may lawfully be done by the judge in vacation tends."3
or at chambers (i. e., at his office or wherever he may be found,
when not presiding in court). But such exceptions are compara- Exclusive and Ooncurrent Jurisdiction
tively few, and the strong general principle is that the time and Exclusive jurisdiction is the authority of a court to hear and
place designated by law and the presence of the judge, acting decide a case which cannot be heard and decided by any other
judicially, are the union and combination of time, place, and tribunal or court, whereas concurrent or coordinate jurisdiction
person that constitute a court."l is the authority of a court to hear and decide a case which may
have been heard and decided by another tribunal or court, if
the case had been presented to such other agency. For exam-
JURISDICTION ple, the jurisdiction of the federal courts is in some cases ex-
95. The jurisdiction of a court is its authority to hear 'a nd apply clusive of the state courts; in others the jurisdiction of the
the law to cases properly presented to it for its decision. state courts is exclusive of the federal courts; and in still others
the jurisdiction of the two is concurrent. Further, in populous
Jurisdiction ordinarily includes "the power to entertain ~om centers there are often different state courts with concurrent
plaints and questions of law duly submitted for decision; to com- jurisdiction over various types of cases. "When two courts have
pel a defendant to appear and answer a complaint, or to punish concurrent jurisdiction over a certain subject-matter, a plaintiff
him for not doing so; to take property in dispute into the cU$tody may at his option bring his action in either. When, however, he
of the law; to hear the contentions of adversary parties; to com- has exercised his option, the court which he has chbsen orill-
pel the production of evidence and the attendance of witnesses; to narily secures,sole jurisdiction in that particular case."4
determine questions of right and declare the law in respect to
all matters properly submitted; and to enforce, with the aid of General and Special Jurisdiction
the executive department, the judgment, order, or decree made Courts are either courts of general jurisdiction or courts of
or rendered on such a hearing."2 special jurisdiction, a court of general jurisdiction being one with
authority to hear and decide a wide variety of cases, whereas a
Original and Appellate Jurisdiction court of special or limited jurisdiction is one which has authority
Original jurisdiction is the authority of a court to hear and to hear and decide cases of particular classes only. For example,
decide a case in the first instance, whereas appellate jurisdiction it is common in the United States to assign to a "probate" or
is the authority of a court to review and correct the action of a "surrogate's" court jurisdiction over the administration and dis-
subordinate or inferior tribunal or court. "It is the policy of tribution of the estates of deceased persons, and such courts are
the law to provide courts o( original jurisdiction, or trial courts, courts of "special" or "limited" jurisdiction. However, after all
sufficient in point of numbers and place of location to be acces- such special matters have been assigned to various courts of lim-
sible to the people. It is also the policy of the law to allow a ited jurisdiction, there is always some court which has the resi-
defeated party to appeal his case, to a higher court for the cor- due of original jurisdiction and the jurisdiction of such court is
rection of errors. The lower court may have erred in its dec- "general."
laration or application of the law, or the evidence may be insuffi.-
3 Bowman, p. 109. • Bowman, p. 219.
1 Bowman on Elementary Law" II Bowman, § 108, p. 218.
Part I, pp. 217, 218.
366 . COURTS AND THEIR JURISDICTION Ch.22 §96 COURTS OF RECORD 367
Elements of Jurisdiction subject and must acquire jurisdiction over the particular res in
A -judgment made by a court without jurisdiction is void. To the manner provided by law. The method of acquiring such ju-
render its judgment valid and its jurisdiction complete, in an ac- risdiction varies under the statutes of different states and natu-
tion in personam, the court must have jurisdiction over the sub- rally differs for different kinds of property. But, as a general
ject of the action and the persons to be affected by its judgment; rule, jurisdiction over the res is obtained by seizure under proc-
in a proceeding in rem, the court must have jurisdiction over the ess of the court, or some act of equivalent import subjecting it
subject of the action and the res or property in contest. By ju- to the dominion of the court, followed by such notification to the
risdiction over the subject of the a~tion is meant "the lawful defendant of the pendency of the action as may be prescribed
power to hear and determine the kind of case or controversy by the statute, as, for example, personal service upon him with-
presented for decision. It is given by the law which creates the in the state, publication in a newspaper if he is a nonresident or
court and cannot be conferred by consent of the parties. An as- cannot be found, or other means reasonably calculated to bring
sumption by a court of jurisdiction over a subject not granted the fact to his knowledge. If the proper jurisdictional steps of
it by law renders its judgment, not merely erroneous, but wholly taking the property into the custody of the court and notifying
void. Such a judgment may not only be set aside at any time the defendant are taken, and the case is heard and determined
by the court which rendered it, but it may be declared to be void by the court in the absence of the defendant, the judgment estab-
by any court to which the question of its validity is presented in lishing the plaintiff's claim is valid, and the defendant is bound
any proceeding properly before the court for decision."5 thereby, even though he was outside the territorial jurisdiction,
An action in personam, for example a suit for damages or for and had no knowledge that the action was brought. If, however,
an injunction, is one which seeks to lay a personal duty or lia- the court in such a case should attempt 'to impose any personal
bility upon the defendant and which will require or necessitate duty or liability upon the defendant, its judgment would be to that
some personal act by him in conformity with the judgment or extent void."7
decree of the court. "In an action of this kind, the court must
COURTS OF RECORD
have jurisdiction over the subjeGt of the action and must also ac-
quire jurisdiction over the parties. Jurisdiction over the plaintiff 96. A court is either a court of record or a court not of record.
is acquired by his voluntary appearance before the court, eithel'
in person or by attorney, and his application for relief. Jurisdic- A court of record is defined as "one the judicial proceedings of
tion over the defendant is acquired either by service or process which are required to be recorded for a perpetual memorial and
(e. g., a writ of summons) , within the territorial limits of the ju- testimony, and the formal records of which are entitled to be re-
risdiction, upon the defendant personally, or by his voluntary ceived in other courts as conclusive evidence of the facts there-
appearance, either in pers·on or by attorney. In some states, in set forth."8 A court not of record, on the other hand, is one
'substituted' service upon a person domiciled within the state, by the records of which are not entitled to be so received in other
leaving the summons at his last known place of residence, or by courts. "Whether a court is or is not a court of record does
other means reasonably calculated to bring the pendency of the not depend upon whether a record of its proceedings is kept or
action to his notice, has been provided by statute, and has been not, but rather upon the conclusiveness of its record in other
held sufficient by the courtS."6 courts. · Most courts not of record keep accurate minutes of
A proceeding in rem, for example a modern statutory action their proceedings. In this country courts are created by con-
to foreclose a mortgage, or a proceeding in attachment against stitution or statute and it is customary for the constitution or
chattels, is one which does not seek to lay a personal duty or lia- statute which establishes a tribunal to .state expressly whether
bility upon the defendant but only to subject his interest in the it is or is not to be a court of record. Usually minor courts, such
res or property to the claim of the plaintiff. "In an action or as justice of the peace courts and police courts, are not courts
proceeding of this kind, the court must have jurisdiction over the of record."9
7 Bowman, p. 221. 8 Bowman, p. 222.
II Bowman, p_ 220. 6 Bowman, p. 220. 8 Bowman, § 113, p. 222.
COURTS AND THEm JURISDICTION § 97 ENGLISH COURTS 369.
The Full Oourt for Matrimonial Oauses 100. All the principal English courts of original and intermediate-
appellate jurisdiction, as well as many other courts then
The Full Court for Matrimonial Causes was composed of the existing, were consolidated, by the Judicature Acts of 1873
Lord Chancellor and the chief justices and senior associate jus- and 1875, into the Supreme Court of Judicature, and this
tices of the three common-law courts, and had jurisdiction to was divided into:
review the decisions of the judge ordinary of the Court for Mat- (1) The Court of Appeal, and
rimonial Causes. (2) The High Court of Justice.
The Oourt of Orown Oases Reserved The latter, for the convenient distribution of its business, was
organized in the five following divisions:
"In the 17th century the rule became established that, in cases (a) The Chancery Division,
of acquittal in criminal prosecutions, the state could not obtain a (b) The Queen's Bench Division,
new trial for any cause; and this is still the law both in England (d) The Common Pleas Division,
and the United States. In cases of conviction, it was an old prac- (e) The Exchequer Division, and
tice for the trial judge, if he felt a doubt as to a point of law, to (f) The Probate, Divorce, and Admiralty Division.
. reserve the question for informal discussion with the other judges At .the end of 1880, the Queen's Bench, Common Pleas, and Ex-
of the bench. If in their opinion the law did not warrant a con- chequer Divisions were united into one division, then called
viction, the accused was acquitted, or if sentence had already the Queen's Bench Division and now the King's Bench Di-
been given against him, he was recommended for a pardon. This vision.
practice was given statutory authority by the establishment in In 1907 a Court of Criminal Appeal was established.
1848 of the Court of Crown Cases Reserved. It was ~ntirely at ,!he House of Lords and the Judicial Committee of the Privy
the discretion of the trial judge, however, whether to reserve Council remain as the courts of final appeal.
the question for the consideration of the court; hence the accused
had no right of appeal, even in cases of manifest error, but could The Oourt of Appeal
a
secure relief only by applying for pardon."18 "The Court of Appeal has jurisdiction to review decisions of
judges of the High Court of Justice, Divisional Courts, and in-
ferior courts. It has power to make any order which ought to
ENGLISH COURTS OF FINAL APPEAL BEFORE 1873 have been made by the. court below, or such further orders as the
justice of the case may require. It consists of the Lord Chan-
99. The English courts of final appeal which functioned before cellor, .the heads of the other two divisions of the High Court, the
1873 were:
Master of the Rolls, five judges called 'Lords Justice of Appeal,'
(a) The House of Lords, and ,
(b) The Judicial Committee of the Privy Council. and all persons who have held the office of Lord Chancellor. As
a rule, three judge's constitute a sitting court of appeal. The
The House of Lords was the court of final appeal with juris- court usually sits in two divisions, to hear common-law and eq-
diction over cases from the courts of intermediate appeal and the uity cases, respectively, but there may be as many divisions as
Court of Probate, "instance" cases from the Court of Admiralty, the number of judges permits. Any division may deal with any
and cases from the Scotch and Irish courts. The Judicial Com- appellate business within the jurisdiction of the court."l&
mittee of the Privy Council, on the other hand, was the court of
final appeal with jurisdiction over cases from the ecclesiastical The High Oourt of Justice
courts, prize cases from the Court of Admiralty, and cases from The High Court of Justice has original jurisdiction and also
the courts 9f the dependencies and dominions. appellate jurisdiction over inferior courts. Its judges consist
18 Bowman, pp. 226, 221. 19 Bowman, p. 229.
COURTS AND THEm JURISDICTION Ch.22 § 101 UNITED STATES COURTS 375
374
of the Lord Chancellor, who is president of the Chancery Divi- judges of the King's Bench Division of whom any three or larger
sion; the Lord Chief Justice, who is president of the King's Bench uneven number constitute a quorum. "The court has appellate
Division; the President ' of the Probate, Divorce, and Admiralty jurisdiction of all criminal cases tried in the King's BenGh Divi-
Division; and a number of associate judges who sit in the Chan- sion, the Central 'Criminal Court, and other criminal courts. It
cery Division, the King's Bench 'Division, and the Probate, Di- may re-examine questions of law or fact, or mixed questions of
vorce, and Admiralty Division. ' "A single judge of any division law and fact, and has power to affirm or quash convictions and to
can ordinarily hold court alone and exercise the full authority of modify sentences, making them either less or greater, so as to
the High Court; but certain matters must come before a Division- conform to law. It has no power to grant a new trial. From
al Court, consisting of two or more judges sitting together. A its decision an appeal may be taken to the House of Lords, but
judge of any division is eligible to sit in any other division. Any only upon a certificate of the Attorney General that the ques-
judge or Divisional Court may apply equ~ty, ,a nd in cases where tion involved is, one of great public importance."22
the rules of law and equity conflict it is provided that the rules
Courts of Final Appeal
of equity shall prevail. A liberal code of civil procedure is in ef-
fect, the rules of which may be revised by the Supreme Court of '''It was one of the original purpos'es of the Judicature Act of
Judicature; i. e., by the judges in conference."20 1873 to abolish the appellate jurisdiction of the House of Lords
and the Judicial Committee of the Privy Council, but the provi-
The distribution of the judicial business of the High Court of
sions looking to this end were repealed before they had taken
Justice among the divisions and judges of the court is governed
effect. The respective jurisdictions of these courts as ultimate
by rules of court made under the authority of the Judicature
courts of appeal therefore remain. The House of Lords (as a
Acts, but a judge in any division has power to retain any case
court) consists of any three or more of the following: the Lord
brought before him or to transfer it to the proper division. "The
Chancellor, six Lords of Appeal in Ordinary, an(l peers who are
work of the Chancery Division consists chiefly of the hearing of
holding, or have held, high judicial office. The judges of the
matters in equity; it, however, administers law as well as equity,
Judicial . Committee are nominally members of the Privy Coun-
but it hears no cases with a jury. It deals with the administra-
cil, but the greater part of the work of the committee is in fact
tion of the estates of deceased persons, partnership matters, mort-
done by persons eligible to hear appeals in the House of Lords
s? that the two final courts of appeal, though theoretically dis~
gages, charitable and private trusts, infants, and other heads of
equitable jurisdiction. It also (since 19,21) hears appeals in
tmct, tend to become identical in rriembership."23
bankruptcy from the County Courts. The jurisdiction of the
King's Bench Division in civil matters is almost entirely appellate
over local or inferior courts. On the, crown side, it deals with UNITED STATES COURTS
indictments and criminal informations, and in civil proceedings
with mandamus, habeas corpus, certiorari, prohibitions, informa- 101. The principal courts o'f the United States judiciary are:
tions in the nature of quo warranto, attachments fpr contempt of (a) The Supreme Court of the United States,
court, and petitions of right. The Probate, Divorce, and Ad- (b) The United States District Courts, and
(c) The United States Courts of Appeals.
miralty Division deals with the probate of wills and matters of
divorce, but the interpretation of wills and the administration of Organization of the Federal Judiciary
estates go to the Chancery Division. In admiralty matters it
The Constitution of the United States24 provides: "The judi-
hears appeals from the County Courts."21 ,
cial Power of the United States, shall be vested in one supreme
Court, and in such inferior ~ourts as the Congress may from
The Court of Criminal Appeal
J time to time ordain and establish. The Judges, both of the su-
The Criminal Appeal Act of 1907, established a Court of Crim- preme and inferior Courts, shall hold their .Offices during good
inal Appeal consisting of the Lord Chief Justice and eight of the
22 Bowman, p. 229. 24 Art. 3, § 1, § 2, cl. 1, U.S.C.A.
20 Bowman, pp. 228, 229. 21 Bowman, p. 228. 23 Bowman, pp. 230, 231. Const.
376 COURTS AND THEm JURISDICTION Ch.22 ' § 101 UNITED STATES COURTS 377
Behavior, and shall, at stated Times, receive for their Services, a are special. They have been created, not in virtue of the judicial
Compensation, which shall not be diminished during their Con- power of the United States, but under various Qther powers giv- ,
tinuance in Office: The judicial Power shall extend to all Cases, en by the constitution to Congress. Constitutional requirements
in Law and Equity, arising under this Constitution, the Laws affecting the regular courts, for example, the life tenure of
of the United States, and Treaties made, or which shall be made, judges, do not necessarily apply to these special tribunals."26
under their Authority;~to all Cases affecting Ambassadors, oth-
er public Ministers and Consuls;- to all Cases of admiralty and The Supreme Oourt
maritime Jurisdiction;- to Controversies to which the United The Supreme Court consists of a Chief Justice and eight As-
States shall be a Party;- to Controversies between two or more sociate Justices, any six of whom constitute a quorum. 27 Con-
States;-between a State and Citizens of another State;- be- cerning its jurisdiction .the Constitution28 provides, "In all Cases
tween Citizens of different States;-between Citizens of the same affecting Ambassadors, other public Ministers and Consuls, and
State claiming Lands under Grants of different States, and be- those in which a State shall be Party, the supreme Court shall
tween a State, or the Citizens thereof, and foreign States, Citi- have original jurisdiction. In all the other Cases before mention-
zens or Subjects." ed, the supreme Court shall have appellate Jurisdiction, both as
Congress, pursuant to the power thus conferred, enacted cer- to Law and Fact, with such Exceptions, and under such regula-
tain legislation on September 24, 1789, now commonly referred tions as the Congress shall make." As the Supreme Court is the
to as the "Judiciary Act of 1789" by which the Supreme Court court of last resort in matters of federal law, for cases adjudicat-
was organized and a system of inferior courts established, and ed in either the inferior federal courts or the courts of last resort
this system of inferior courts, with some modifications, still ex- in the several states, and in matters of state law for cases adjudi-
ists. "By this act the eleven States then in the Union were di- cated in the inferior federal courts, its appellate jurisdiction is
vided into thirteen districts, and the districts grouped so as to invoked much more than is its original jurisdiction. !'Each
form three circuits; and in each district was created a United member of the court, in addition to his duties on the bench of the
States District Court, and in each circuit a United States Circuit Supreme Court, is allotted by order of the court to one or two
Court, which sat in each district of the circuit in rotation."25 Of of the ten circuits, and is by law competent to preside in the Cir-
course, with the admission of new states into the Union and with cuit Court of Appeals of the circuit to which he is assigned, but is
the increase in population of the states, new 'districts and cir- not now required, as formerly, to do so. In this capacity he is
cuits have been created, but no district crosses a state line so called the 'Circuit Justice' of the circuit, as distinguished from
as to include the territory of different states or parts of different the 'Circuit Judges' therein. In practice, however, the justices
states. At the present time there are ten circuits none of which do not now serve in this capacity, their duties at Washington oc-
contains less than three states, and the largest, the Ninth Cir- cupying their entire time."29
cuit, embraces seven states. On the other hand, there is a single
district in about one-half of the states, two districts in about one- The District Oourts
third of the states, and in a few of the states there are three A District Court is organized in each of the federal judicial dis-
federal judicial districts. tricts in which the country is divided,and most of these .courts
The Supreme Court, the District Courts, and the Circuit Courts ~ave one or two judges although some have more. Each judge
of Appeals are the courts in which Congress has established the holds trials and exercises the full authority of the District Court.
judicial power of the United States granted by the third article Approximately two-thirds of the districts are separated into "di-
of the Constitution. ~ 'These may therefore be said to be courts
of the regular judicial system. All other courts and tribunals 26 Bowman, p. 23L 29 Bowman, pp. 231, 232. And see"
28 U.S.C.A. §§ 215-217. For statutes
27 R.S. § 673, 28 U.S.C.A. § 321.
25 Bowman, p. 231. ing in general with the Circuit Courts treating in general of the jurisdiction
For statutes dealing in general of AppeaJs, see 28 U.S.C.A.. §§ 211- 28 Art. 3, § 2, cl. 2, U.S.O.A.Const. and business of the Supreme Court,
with the District Courts, see 28 U.S. 231. For the "other Cases before mention- see 28 U.S.C.A. §§ 321- 354.
G.A. §§ 1- 196; and for statutes deal- ed," see Art. 3, § 2, quoted above.
COURTS AND THEm JURISDICTION Ch. 22 . UNITED STATES COURTS 379
378 § 101
visio~s" which are virtually subdistricts. "The District Courts Appeals have no jurisdiction to review the decisions of the ,courts
are the general courts of original jurisdiction, or trial courts, of . of the states and cases from the highest state courts go directly
the feqeral judicial system. They have original jurisdiction of to the federal Supreme Court. "In all cases, civil or criminal,
civil cases at common law, in equity, in admiralty, in the enforce- the judges of a Circuit Court of Appeals may certify questions
ment of acts of Congress, and of all prosecutions for crime cog- of law to the Supreme Court of the United States, whereupon
nizable under the authority of the United States."30 that court: at its discretion, may either answer such questions or
require that the whole case be sent up for its consideration. In
The Circuit Courts of Appeals . cases where a Circuit Court of Appeals has held a state statute
The Circuit Courts of Appeals were established as United invalid on the grounQ that it is repugnant to the Constitution or
States courts of intermediate appeal by the Circuit Courts of Ap- a law or treaty of the United States, the losing party may take
peals Act of 1891,31 for the purpose of relieving the Supreme an appeal to the Supreme Court. In all other cases, the decision
Court the business of which had increased to such proportions of a Circuit Court of Appeals is final,' except as it may be re-
that the court could no longer dispose of it. The' act created nine viewed upon writ of certiorari by the Supreme Court, at the dis-
Circuit Courts of Appeals, one for each circuit as then existing, cretion of that court."35
willi appellate jurisdiction over the District Courts and other fed-
eral courts within the particular district, but by the Act of Feb-
ruary 28, 1929, c. 363,32 the number of circuits was increased to SPECIAL UNITED STATES COURTS, COMMISSIONS, AND
ten. Most of the circuits have three Circuit Judges, but a few BOARDS
have more. "A sitting Circuit Court of Appeals consists of
three judges, of whom two constitute a quorum. These judges United States Customs Court
may be any three (or two) of the following: The member of the
The Board of United States General Appraisers, (which was
Supreme Court assigned to the particular circuit, the Circuit
already virtually a court), was given the title of United States
Judges of the Circuit, and any of the District Judges therein who
Customs Court by the Act of May 28, 1926,36 with jurisdiction of
may be assigned to that duty; but no judge may sit in any case
cases arising, under the Tariff Act, such as the classification of
in which there is to be reviewed any order or decision made by
merchandise for tariff purposes, the rates of duty to be imposed;
him in the court below."33 The jurisdictiCln of the Circuit Courts
and the fees and charges connected therewith. For such cases its
. of Appeals is exclusively appellate; they have no original juris-
rank is similar to that of a District Court.
diction. "Their jurisdiction, which was greatly enlarged by the
. Judiciary Act of 1925 (28 U.S.C.A. § 225 et seq.), to relieve the
35 Bowman, p. 234. transferred to the District Courts.
increasing burdens of the Supreme Court, extends, with certain The Circuit Courts of Appeals are "The decisions of these courts dealt
specified qualifications and exceptions, to the decisions of the distinct from the former Circuit with the 'more important kinds of '
District Courts, both within the United States proper and in the . Coutts which had an existence of cases which came before the federal
territories, the United States Court for China, and the Supreme more than one hundred twenty years. courts during the formative period of
Courts of Hawaii and of Porto [Puerto] Rico. In designated in- From 1789 to 1891, (with one short our law, the opinions in many cases
interruption), the jurisdiction of the being written by the Supreme Court
stances, a Circuit Court of Appeals reviews the decisions of Circuit Courts was partly original, justice on circuit. These decisions
boards and commissions, such as the Federal Trade Commission, and partly appellate,over the District are, of course, still authoritative, ex-
the Federal Reserve Board, [now the Board of Governors of the Courts, but by the Circuit Courts of cept as they 'may have been modified
Federal Reserve System], the Interstate Commerce Commis- Appeals Act of 1891, 26 Stat. 826, on appeal or by later decisiolli; or
sion, and the Board of Tax Appeals."34 The Circuit Courts of their appellate jurisdiction was tak- acts of Congress." Bowman, p. 232.
en away and for twenty year s there-
30 Bowman, p. 232. 33 Bowman, p. 233, and see, 28 U.S. after they were courts of first in- 3644 Stat. 669, 19 U.S.C.A. § 405a.
C.A. § 216. stance only. They were abolished by See, now, Act of June 17, 1930, C. 497,
31 26 Stat. 826. the Judicial Code of 1911, 28 U.S.C.A. Title 4, § 518, 46 Stat. 737, 19 U.S.C.
3245 Stat. 1346, amended, 28 U.S. 34 Bowman, p. 233. § 1 et seq., and their jurisdiction A.. § 1518.
C.A. § 211.
380 COURTS AND THEm JURISDICTION Ch.22 § 101 UNITED STATES COU&TS 381
,
The Court of Customs and Patent Appeals questions of fact or law submitted by heads of departments for
The Court of Customs and Patent Appeals was established by their guidance or to obtain an adjudication."41
the Tariff Act of August 5, i909,37 as the United States Court of
Customs Appeals, but its name was changed to the United States Military Courts
Court of Customs and Patent Appeals by the Act of March 2, The military courts of the United States are created, not under
1929, c. 488. 38 It has jurisdiction of appeals from the United the judicial power conferred upon Congress by article three of
States Customs Court and from the Patent Office in patent and the Constitution, but under the military power of the United
trade-mark cases, and its decisions in most cases are final. How- States; the power of Congress to "declare war," and to "make
ever, in cases involving the construction of the Constitution or rules for the government of the land and naval forces."4~ Such
treaties of the United States its determinations may be reviewed courts are of three main kinds: (a) military commissions; (b)
by the Supreme Court. provost courts; and, (c) courts-martial. "Military 'commissions
and provost courts function only in territory under military gov-
The Former Commerce Court ~rnment or martial law, and to the extent that is found neces-
The United States Commerce Court was created by the Com- sary control the entire administration of justice. Courts-martial
merce Court Act of June 18, 1910,39 with jurisdiction to enforce, have jurisdiction over the members of the land and naval forces,
enjoin, set aside, annul and suspend any order of the Interstate and, in time of war, over civilians. There are also military
Commerce Commission. It was abolished in 1913, and its juris- courts known as courts of inquiry, provisional courts, and deck
diction transferred to the United States District Courts.40 courtS."43
102. The judicial systems and courts of the several States are gen-
erally similar, but differ in detail.
In general
As a rule the courts of a state consist of the following: (a) A
court of final appeal; (b) One or more courts of intermediate
appeal, in some states; (c) Local courts of original jurisdiction
in common-law, equity, criminal, and probate cases, or some
combination of two or more of these; and, (d) Local courts of
original jurisdiction in small cases, either civil or criminal, or'
both. "In every state there is a court of last resort, whose deci-
sions are final in matters of state law not involving the Constitu-
tion, laws, or treaties of th'e United States. This court is in most
states called the 'Supreme Court,' but in some it is known as the
'Court of Appeals.' In about one-third of the states there are
courts of intermediate appeal, the decisions of which are in cer-
tain cases final, and in others reviewable by the court of last re-
sort. Courts of general original jurisdiction sit for the trial of
causes at the county seats of the different counties, and in some
instances at other places in the county designated by law, and
are variously called 'circuit courts,' 'district courts,' 'superior
courts,' or 'courts of common pleas.' Courts of special probate
jurisdiction are usually styled 'probate courts,' but in Pennsyl-
vania such a court is called the 'orphans' court,' and in New York
the 'surrogate's court." In a number of the Western States
COMMON-LAW ACTIONS
CHAPTER 23
104. A proceeding in a common-law court is called an "action."
PROCEDURE
103. In General. At common-law there were and are various "forms" of action,
104. Common-Law Actions. the propriety of the form in a particular case being dependent
105. . Common-Law Procedure. upon the kind of primary right involved and the kind of remedy
106. Equity Procedure.
107. Code Procedure.
applicable. "The question whether a man can bring this or that
108. Criminal Procedure. action,.trespass, trover, assumpsit, etc., is the way the question of
liability and substantive right presents itself. There ought in-
deed to be a remedy for every wrong (ubi jus, ibi remedium), yet
IN GENERAL the right of action at common law depends upon whether the
case fits anywhere in a limited and arbitrary list of writs, within
103. Legal procedures are the methods by which legal remedies the scope and theory of which the facts may be brought. There
are obtained and enforced.
are only so 'many rights of action, as there are forms of action.
When a legally protected interest is so threatened or infringed This system of forms of action persisted in actual use in English
that the subject or owner of the primary legal right which pro- procedure for six centuries, from the time of Henry II and Ed-
tects such interest is entitled to a legal remedy, in order to ob- ward I until the Judicature Acts (in force in 1875). • • •
tain or realize the remedy, he must proceed according to the case The essential differences were in the allegations of fact neces-
as the law requires. Hence, a procedure is the mode by which sary to show the right of action in each form; in other words,
a legal remedy is realized, the method by which a legal remedy in their respective grounds and theories of liability. Some cases
is obtained and applied; and what the proper procedure is in a may fall under two or three of these theories, and the litigant
particular case will depend upon the kind of interest and primary will have a choice or election between them." 1
right that is involved and the kind of remedy that is desired,
needed, or available. THE EARLY CLASSIFICATION OF COMMON-LAW AC-
Courts do not initiate actions or suits, and until properly ap- TIONS
plied to a court will not attempt to decide a controversy. It is (1) Real Actions
only by proceeding as the law requires that a plaintiff may get The forms of action anciently in use were of three classes: ( a)
his case into court and a judgment or decree rendered and en- real; (b) personal; and, (c) mixed. Real actions were actions
forced. The other party and the court must be notified of the for the specific recovery of a freehold or an incorporeal heredita-
cause, jurisdiction showp., and the issues presented. Then a trial .ment brought by a claimant out of possession against a tenant
must be had at which the eiVidence of the parties is heard, their in possession, and most of them fe~l within the following classes:
rights and the facts determined, and the law applied thereto. (1) Proprietary actions, (writs of right, and writs in the nature
This is procedure; the way by which the judicial process is made of writs of right); and, (2) Possessory actions, (writs of assize,
to function in a particular case. and writs of entry).
The most important forms of procedure to a student of the An- The proprietary actions were those brought to determine the
glo-American legal system are: (a) common-law procedure; (b) title or ownership of a freehold as between the contending liti-
equity procedure; (c) code procedure; and, (d) criminal pro- gants, the demandant founding his action upon a claim of "bet-
cedure. These are discussed in the following sections. ter right" of property therein than that of the tenant. "Origin-
· 384
1 Shipman on Common-Law Plead-
ing, 3d Ed., (hereinafter cited "Ship-
m an"), pp. 54, 55.
SMITH EL.LAW 2d- 25
386 PROCEDURE Ch.28 § 104 COMMON-LAW ACTIONS 387
ally such actions were used in the manorial courts for the trial as follows: (1) Actions ex delicto,- (a) trespass, (b) case, (c)
of rights of property in the manor, but by the time of Edward I trover, (d) detinue, (e) replevin; and, (2) Actions ex con-
they had become transferred almost wholly to the king's court. tractu,- (a) debt, (b) account, (c) covenant, (d) special as-
They were triable by battle or, at the option of the tenant, by the sumpsit, (e) general assumpsit. The nature and scope of these
grand assize. Being the oldest of the real actions, their proce- actions is determined largely by the meaning of the three terms
dure was the most archaic, and in course of time they became al- "debt," "damages," and "personal chattel." A "debt" is a defi-
most unbelievably technical, cumbersome, and dilatory. They nite sum of money owed and which arises from any cause of in-
were of two kinds: (1) Writs of right, for the recovery of a fee debtedness, contractual or noncontractual, recognized in law as
simple estate in land; .(2) writs in the nature of writs of right, a source of obligation, its distinctive feature, as distinguished
for the recovery of a fee tail or a life estate in land or an incor- from a claim for uncertain damages, being that it is a fixed and
poreal hereditament." Z certain sum and that no future adjudication is necessary to de-
The possessory actions were those brought to recover the pos- termine the amount. "Damages," on the other hand, constitute
session (seisin) of a freehold interest in land without litigating the monetary recompense or indemnity recoverable by a person
the question of better right or title. "For reasons of public poli- who has sustained an actionable injury to his interests of per-
cy, and particularly for the purpose of discouraging violept self- sonality, property, or relations from the act or default of anoth-
help by owners out of possession, or by those who professed to be er. Damages differ from a debt in that they are recompense for
such owners, these actions protected quiet and peaceable pOl?ses- a harm and are not definite in amount. However, it is possible
sion of a freehold, irrespective of the means by which it had been for the parties of a contract to agree in advance upon a stipulated
acquired." 3 The possessory actions were of two kinds: (1) sum to be paid as damages in case of a breach, and such dam-
writs of assize; "and, (2) writs of entry.1> ages if upheld by the court are called "liquidated damages."
"Personal chattels," include things which are movable.
(2) Personal Actions
The actions of trespass, detinue, replevin, debt, account and
Personal actions were those brought to recover a debt, dam- covenant "were in use before the enactment of the Statute of
ages, or the posses,sion of a personal chattel, and were classified Westnlinster II. Subsequently, case branched off from trespass;
2 Bowman, p. 240. assize,' they litigated only the ques- . trover and special assumpsit branched off from case; while gen-
tion of priority of possession and not eral assumpsit was derived from debt and special assumpsit.
3 Bowman, p. 242. the ultimate right or title. They Covenant was originally an action to recover damages, but in late
" "The writs of assize were a small were triable by jury, and almost com- times could be brought to recover a debt and became substantial-
group of actions, five in number, pletely superseded the proprietary ac-
tions and tHe writs of assize. For
ly two actions. Debt-detinue was originally a single action which
created by the reforms of Henry II.
They were triable by the petty assize more than three centuries the learn- became separated into two. • • • The fundamental rule
or, if the parties so agreed, by jury. ing which centered around them was governing the use of these actions, before modern statutory mod-
Because of this and their more sum- the fullest and most important part ifitations, was that the plaintiff must select the form that fit the
mary procedure, they were so manip- of the common law. During these facts of his case. The choice of the wrong form was fatal to his
ulated by practitioners that they centuries nearly the whole of the ear-
ly law of real property was laid down
action. If, for example, he sued in trespass, and the evidence at
largely displaced most of the pro- the trial showed that he should have sued in trover, his action
prietary actions." Bowman, p, 242. by the judges with these writs as its
basis, and hence in terms of posses- was dismissed and he had to pay the costs of the action mistaken-
5 "The writs of entry were a very sion rather than ownership. ly brought before he was permitted to sue in the proper form. In
large collection of actions, numbering "Writs of entry in a greatly modi- many cases, however, two or more forms were 'concurrent' for
more than a score of varieties 'and fied form are still used in some of the
New England states. Elsewhere they
the same state of facts; that is, a plaintiff could bring either as
hundreds of subvarieties in the regis-
ter of writs, which were developed in have been displaced by the action of he might prefer. . But this choice of remedies was also governed
analogy to the writs of assize mainly ejectment- or by statutory actions for by .exceedingly technical rules, and, having made his choice, the
during the century following the the recovery of realty." Bowman, plaintiff had to abide the result or dismiss his action and start
reign of Henry II. Like the writs ~f pp. 242, 243. again if he discovered during the progress of the proceeding that
SMITH EL.LAw 2d
388 PROCEDURE Ch.23 § 104 COMMON- LAW ACTIONS 389
another allowable form would have been more to his advan- on real property the action is called "trespass quare clausum fre-
tage." CI git"; where the injury is that of taking and carrying away per-
sonal property it is called "trespass de bonis asportatis." All
(3) Mixed Actions
trespasses, whether committed with actual or implied force, are
Mixed actions were those brought to recover possession of a called trespass "vi et armis."
freehold and damages for the wrong done. "These actions were
never numerous or important. All of them seem to have been (2) Case
possessory actions, to which Parliament added a money penalty.
An action on the case lies to recover damages, cc (a) For torts
They have long been obsolete. The action of ejectment, which
not committed by force, actual or implied. (b) For torts com-
arose at a later time, has been called a mixed action, but it has
mitted by force, actual or implied, where--(l) The injury was
little resemblance to the ancient mixed actions.." '2
not immediate, but consequential; (2) The subject-matter af-
fected was not tangible; or (3) The interest in the property af-
THE MODERN CLASSIFICATION OF COMMON-LAW AC- fected did not give the right of possession. Case is a kind of
TIONS residuary action covering non-violent wrongs. Trespass and case
The forms of common-law actions in modern use may be class- are supplementary in the field of tort. In general, case lies
ified in respect to the relief obta!nable as follows: (1) Actions where no other form or theory of action is available, though it
to recover damages,- (a) trespass, (b) case, (c) trover, (d) is 'sometimes concurrent with other forms. Actions on the case
covenant, (e) special assumpsit; (2) Actions to recover a debt, were allowed under the Statute of Westminster II in cases sim-
-(a) debt, (b) account, (c) covenant, (d) general assumpsit; ilar to those covered by the established theories or forms of ac-
(3) Actions to recover the possession of a personal chattel,- tion." 10
(a) detinue,(b) replevin; and, (4) Actions to recover the pos-
session of land,- (a) ejectment. However, "this classification (3) Trover
is not rigidly accurate. Actions designed primarily for the recov- The action of trover or trover and conversion lies to recover
ery of damages may in some cases be used to recover a debt; damages for the conversion by the defendant to his own use of
those for the recovery of possession may result in the recovery of specific personal property of which the plaintiff was entitled to
incidental damages. But the classification does express, so far the immediate possession. "The object of the action is the recov-
as the nature of the actions permits, their prime purpose and gen- ery of the value of the property as damages for its conversion,
eral use." a and not the recovery of the property itself." 11
(4) Covenant
ACTIONS TO RECOVER DAMAGES
The action of covenant lies "for the recovery of damages for
(1) Trespass breach of a covenant, that is, a promise under seal, whether the
The action of trespass lies for the recovery of damages for an damages are liquidated or unliquidated. When the damages are
injury to the person, property, or relative rights of another, "(a) unliquidated it is the only proper form of action." 12
Where the injury was committed with force, actual or implied.
(b) Where the injury was immediate, and not merely consequen- (5) Special Assumpsit
tial. (c) In case of injury to property, where the property was The action of special assumpsit lies, cc (a) To recover damages
in the actual or constructive possession of the plaintiff at the time for the breach of an informal contract, either express 'or implied
of the injury." 9 Where the injury complained of is an entry up- in fact. (b) To enforce a quasi contractual obligation for the
payment of money, as in the case of an implied warranty of the
6 Bowman, pp. 245, 246. 8 Bowman, pp. 248, 249.
10 Shipman, § 38, p. 83. 12 Shipman, § 55, p. 141.
'l Bowman, p. 244. It Shipman, § 35, p. 66. 11 Shipman, § 42, p. 98.
\
390 PROCEDURE dh.23 § 104 COMMON-LAW ACTIONS 391
title of goods sold. (c) To recover damages for the breach of came concurrent with debt in all cases where the deed or special-
a relational duty, as in the case of carrier and shipper, carrier ty contained an express promise to pay, or where a promise could
and passenger, innkeeper and guest, and many others." 13 be implied from the terms used." 17
2S Shipman, pp. 17-19. As to how tion acquired, see supra, § 96, "Ele-
the summons is served and jurisdic- ments of jurisdiction."
-
defendant may, however, make a special appearance simply to "lie by the plaintiff to the pleadings of the defendant, or by the
raise objections to the validity of the service of process or to chal- defendant to pleadings of the plaintiff, subsequent to the declara-
lenge the jurisdiction of the subject-matter." M tion, for insufficiency in substance or in form.
Plaintiff's Declaration
The first pleading in an action at common law is the plaintiff's Pleas in Bar
declaration which consists of a statement in iegal form of the A plea in bar is one which shows some ground for barring or
grounds of the plaintiff's right of action. It is analogous to the defeating the action on its merits and contains a prayer to that
bill of complaint in equity suits and the complaint in code proced- effect. ' Hence it is called a "peremptory" plea because it is a
ure, and must fully show, "the right of action ,in the plaintiff at positive answer to the declaration, and a plea "to the merits" be-
the time of bringing the suit, and will be insufficient to warrant cause it waives all the irregularities and informalities and puts
judgment in his favor if it fails in this, for he can recover only on the contest upon the merits of the case. "It follows from the
the grounds which the declaration sets forth." 26 'nature and object of the plea in bar that it must generally deny
all or some essential part of the averments of fact in the declara-
The Demurrer - tion, or, admitting them to be true, allege new facts which ob-
If, admitting the truth of all the facts therein set forth, the viate or repel their legal effect. In the first" case, the defendant
plaintiff's declaration is on its face insufficient in law to show a is said to traverse the matter of the declaration; in the latter,
right of action or is defective in form, the defendant may so as- to confess 'and avoid it. Pleas in bar are consequently divided
sert by a ple~ding called the "demurrer." A demurrer will also into pleas by way of traverse and pleas by way of confession and
avoidance." 28
- 24 Shipman, p_ 24. 26 Shipman, p. 27.
25 Shipman, pp. 25-27. 27 Shipman, p. 29. Z8 Shipman, p. 30.
396 J;>ROCEDURE Ch.2S § 105 COMMON- LAW PROCEDURE 397
The RepZication~ Subsequent PZeadings~ and Production of Issues granted matter, leaving the essential grounds of contention bare;
The replication is the answer of the plaintiff to the plea of the (3) to apportion the propositions of claim and defense, and there-
defendant, and the pleadings subsequent to the replication are by determine the burden of proot" as to the various issues,- i. e.
the rejoinder and rebutter of the defendant and the surrejoinder what facts are essential to the cause of action, which the plaintiff
and surrebutter of the plaintiff. After the surrebutter the plead- must prove to make out his case, and what the defendant must
ings have no distinctive names because an issue is ordinarily pro- prove to relieve himself from this prima facie cause of action."~
duced prior thereto and consequently pleadings are seldom found
Method of Trial of the Issues
to extend beyond that stage.
Issues of law are generally decided by the judge without a jury
An "issue" in pleading is a specific point of controversy affirm- after argument by counsel for the respective parties; whereas
ed on the one side and denied on the other, and may be either of the decision of an issue of fact in an action at common law is
law or of fact. "The reduction of the controversy to some spe- usually by trial before the judge and a jury which terminates
cific question is the object of all [common-law] pleading, and, upon verdict and judgment.3o
when reached, it is called the 'issue'; and the cause, when at issue,
is ready for trial or for the decision of the issue raised. A de- The Verdict
murrer, either by the defendant to the declaration or other A verdict is the formal decision or finding made by a jury up-
pleading of the plaintiff, or by the plaintiff to a plea or other on the matters or questions in trial and which are duly submitted
pleading of the defendant, being a denial of the legal sufficiency to it, and such verdict is either "general" or "special." "By a
of the pleading, raises at once a question of law which it is al- general verdict the jury report to the court in a general way that
ways the peculiar province of the court to determine without they have found a decision for the plaintiff or the defendant; and,
the aid of a jury. This question must be decided before fur- if for the plaintiff, they assess the amount of damages sustained
ther proceedings are had, and it is therefore said that the demur- by him in consequence of the injury for which the action is
rer always tenders an issue in law. Again, if the declaration or brought. In a special verdict the jury state the naked facts of
other pleading is sufficient on its face, and no demurrer is inter- the case, as they nnd them to be proved, concluding conditiopally
posed, the pleadings, whether of the defendant or the plaintiff, that, if upon the whole matter the court should be of opinion that
stating matters of fact, must at length reach a point where the the plaintiff has cause of action, they then find for the plaintiff; if
opposing party will simply traverse or deny what is alleged, and otherwise, then for the defendant. This leaves it to the court
this traverse must always tender an issue, which· is one of fact, to apply the law to the facts. * * '* In a general verdict the
and which the formal words of the traverse refer to a trial by jury must apply the law under the instructions of the presiding
jury, by concluding 'to the country.' .. .. .. When the plead- judge. '* '* * It was entirely optional with the jury at com-
ings are all in, and issues joined then by comparison of what is mon law to find generally or specially, even in the face of a re-
affirmed on each side and admitted or denied on the other, coun- quest or demand for special findings on particular points by court
sel may ascertain what points are agreed and what are contest- or counsel. Under statutory provisions, however, special ques-
ed which must be established as true by the presentation of evi- tions, stating each point separately, may be framed and submit-
dence. Each side may accordingly map out its case, collect its ted by the court on request of counsel, which the jury must an-
evidence, and prepare for trial. If the pleadings have perform- swer before their discharge, so that the true legal significance of
ed their function, they have narrowed the case to the exact ascertained facts may be declared by the court. It is thus pos-
points of dispute which the parties are to maintain and prove, sible to see how the facts are determined, whether the law is
the decision of which disposes ~f the case, and upon which the properly applied, and how the special findings harmonize with the
final conclusion of law depends. .. ,., '* It is the office of general conclusion."3l
pleading, as preparatory to the trial: (1) To give fair notice
29 Shipman, pp. 32, 33. n Shipman, pp. 45, 46.
to the other side of the facts relied on and intended to be prov-
ed, and place them on record; (2) to separate the law from 30 Trial procedure is outlined in the
the facts, and to lay aside all extraneous, admitted, waived, and next chapter.
398 PROCEDURE Ch.23 §106 EQUITY PROCEDURE 399
The Judgment ess by which the final judgment may be carried out through exec-
A judgment is the official decision of a court upon the respec- utive force. It is, in its nature, an executive remedy supplemen-
tive rights and claims of the parties to an action therein litigated ,t ary of the judicial remedy and may consist: "(1) In putting
and submitted to its determination, and may be either interlocu- the plaintiff in possession of his land or property by force, the
tory or final. "Probably the best instances of interlocutory actual restitution of the thing taken or detained; (2) in taking
judgments are those entered by default in actions of assumpsit, from the defendant what belongs to him and turning it over to
covenant, trespass, case, and replevin, where the sole object of the · the plaintiff, or selling it at public auction, transferring title
action is the recovery of damages, by which at common law only agan;st the owner's will, and applying the proceeds to satisfy
. the right to recover is determined, leaving the amount to be as- the Judgment for money; (3) seizing the goods or land of the
certained by writ of inquiry or other proceedings upon which a defendant, and holding them as security until the defendant con-
final judgment will be entered. There is one species of judg- forms to the judgment; (4) seizing the person of the debtor
ment, however, which establishes only the inadequacy of the de- himself and imprisoning him until he pays the debt or performs
fense interposed. This is the judgment 'for the plaintiff on a plea the commands of the court."35
in abatement, which is a decision on a point independent of the
merits of the case, and in form is always that the defendant an-
swer' over. The same form of judgment is also rendered in over- EQUITY PROCEDURE
ruling a demurrer."32 A final judgment, on the other hand, "is
the award of relief provided by law for the redress of injuries.or 106. Equity procedure is that which. obtains in suits in equity as
th~ enforcement of rights, as that the plaintiff do recover his
c;listinguished from actions at common law, code acti~ns,
and criminal proceedings.
damages, his debt, his possession, and the like, and the whole
suit or acti.on is merely the vehicle or means of pursuing and
making application for this award. "" "" "" The final judg- IN GENERAL
ment is the conclusion of law officially pronounced and declared The principal step$ and pleadings of equity procedure include
by the court upon the facts found, after due deliberation and in- the following: (a) plaintiff's bill of complaint; (b) the process;
quiry, declaring that the plaintiff has either shown himself en- (c) defendant's appearance; (d) the defenses and cross-bill' (e)
titled, or has not, to recover the redress he sues for."33 plaintiff's replication; (f) the decree; and, (g) the enforce~ent
of the decree. These various steps and pleadings are outlined
Enforcement of Judgments; Execution
in the. following paragraphs.
A judgment is enforced by a writ of execution which is de-
fined as "an authorization to an executive officer, issued from a (1) The Bill of Oomplaint
court in which a final judgment has been rendered, for the pur-
pose of carrying such judgment into force and effect. It is found- Plaintiff's bill of complaint, which is analogous in general to
ed upon the judgment, must generally conform to it in every re- plaintiff's declaration in an action at common law, is the initial
spect, and the plaintiff is always entitled to it to obtain a sat- pleading in equity and may consist of the following parts: (a)
isfaction of his claim, unless his right has been suspended by The caption, which is a statement of the court in which the case
proceedings in the nature of an appeal or by his own agreement. is filed, the term of the court, the names of the parties, and the
"" "" '*' Theoretically a judgment is the end of the suit. But character in which they sue and are sued, together with the num-
the mere judicial declaration of the right to redress, the award ber of the case; (b) The address, which is the part in which the
of relief, can produce no practical benefit or result, ·unless the pla1ntiff addresses by name the particular court whose interposi-
defendant voluntarily submits and satisfies the plaintiff's de- tion is desired; (c) The introduction, which is a statement of the
mand."34 A writ of execution is, therefore, the compulsory proc- names of the parties, their residences, the capacity in which they
respectively sue and are sued, and generally whether they are
32 Shipman, p. 49. 34 Shipman, p. 50.
33 Shipman, pp. 47, 48. 35 Shipman, p. 50
- --------------~---
PROCEDURE
Ch.23 § 107 CODE PROCEDURE 405
404
States. "The reform movement in England, headed by Bentham appear before a specified court at a specified time to answer the
and his followers, had its first effect in the Hilary Rules of 1834, plaintiff's complaint, or else suffer judgment by default. "After
[framed by the judges in pursuance of the Statute of 3 & 4 Wm. the defendant is summoned, the plaintiff states his case in his
IV, c. 24], which among other things required the defend~nt to complaint, the first formal pleading of the case. The defendant
go further in setting forth his defenses than formerly. ThIS was may raise an issue of law as to the sufficiency of the complaint
followed by the Common-Law and Equity Procedure Acts of by filing a demurrer, or in some states, a motion. If the com,.
1852 and following years, and ultimately by the Supreme Court plaint is sufficient, he must file his answer, unless he is willing to
of Judicature Act of 1873. Under the latter act, now in, force suffer default. In his answer he admits or denies the plaintiff's
as amended in England, the high courts are united in one, and allegations and adds new matter of defense if he has any. With
equity and law are combined in a single system which has a close the plaintiff's reply the pleadings are closed in most judsdic-
similarity to code pleading. The development of procedural tions."48 Then follows the actual trial with the production of
rules is largely in the hands of the judges under their rule-mak- the parties' evidence, the arguments of counsel, the verdict, and
ing power."46 In the United States, on. the other ~and, "the the judgment.
movement for pleading reform resulted ill the adoptlon of the
The Code Complaint
New York Code of 1848, the model and forerunner of all the pra<:-
tice codes in states which have adopted code pleading. By thIS The first pleading on the part of the plaintiff under the code
act a single combined system of law and equity. administered system is the complaint, and is analogous t'O the declaration at
through the form of the one civil action was substltuted for the common law and the bill of complaint in equity. "It must con-
two separate law and equity systems previously existing, and the tain: (1) a formal introductory part or caption specifying the
forms of action at law and the separate suit in equity were abol- names of the parties and the court, (2) a statement of the facts
ished. It was further provided that the pleadings should state constituting the plaintiff's cause of action, and (3) a demand for
the facts and the forming of the issue was less stressed. In ad- the judgment to which he supposes himself entitled."4~
dition to'the fusion of law and equity and the substitution of fact
pleading for issue pleading, the code adopted for all actions vari- The Code Demurrer
ous equity principles."47 After the plaintiff has stated his case it is incumbent on the de-
fendant to meet the issues raised against him and this he may do
The Code Summons and Ceurse of Proceedings by objecting to the form or legal substance of the plaintiff's cause
An action in ~ court of justice must be initiated by some form as set out in the complaint, or by defending through denial or
of notice to the party or parties against whom relief is sought, a plea of new matter. The latter course involves the filing of an
answer; the former, the employment of some device by which an
requisite met at common law by the original writ and writ of
summons and in equity by the writ of subpcena. Under the objection to the complaint may be made. Demurrers and mo-
tions constitute such devices. Thus, "under the code the dilatory
codes thi~ notice is ordinarily a simple written summons signed
plea as a separate pleading is abolished in all but a few states;
by the plaintiff or his attorney, which directs the defendant to
its place being taken by the demurrer, or, where affirmative al-
four of the states, and such a system legations are necessary, by the answer in abatement. * * *
46 Clark on Code Pleading, § 6, p. 14. The codes specify the grounds of demurrer to the complaint, usu-
now obtains in most of them. "The
47 Clark on Code Pleading, § 7, p. non-code states and common-law ally six, but occasionally more in number. These include ques-
17. The fusion of law and equity in states may be classified as quasi code tions of jurisdiction, capacity, another action pending, defect of
the United States, and particularly the states and common-law states and parties, improper joinder of causes of action, and failure to state
fusion of the federal systems, is also show a varying degree of approxima-
tion to the code practice. All, how- facts sufficient to constitute a cause of action. Grounds of de-
discussed in § 29, supra.
ever, have departed somewhat from murrer to the answer or reply, of like general nature, are also
Within twenty-five years from the
adoption of the New York Code of the common-law system." Olark on
Oode Pleading, § 8, ll' 19. 48 Clark on Code Pleading, § 14, p. 49 Clark on 'Code Pleading, § 35; p.
1848, a system of code procedure and 42. 138.
pleading had been adopted in twenty-
PROCEDURE Ch.2S § 107 CODE PROCEDURE 407
406
specified. • • • Judgment is not rendered directly upon the plaint. Such denials are either general or specific, the most direct
demurrer, but after the decision thereon the party against .whom form of a general denial being a denial of each and every allega-
it is rendered is allowed to replead, and judgment is only render- tion of the complaint; and although general denials are not al-
ed on his failure to do so. The more usual rule does not permit lowed in a few of the code jurisdictions, the more usual rule is to
of an appeal directly from the ruling on the demurrer, and upon permit them. 52 Specific denials, on the other hand, are denials of
repleading issue is taken only upon the new pleadings. There- specific allegations of the complaint.
after the former pleading is substantially eliminated from the
case and is not the subject of appeal. Where final judgment is Same; Answer in Abatement
rendered after demurrer overruled or sustained, such jll:dgment In almost all of the code states pleas in abatement or to the ju-
is res judicata upon the facts alleged and, by the better rule, risdiction are not permitted as separate pleadings and the ob-
upon the whole -m atter which is the subject of the dispute be- jections stated in such pleas under the common-law practice must
tween the parties. [However], the tendency of modern' plead- be stated as a separate defense in the answer. The decision on
ing reform is to abolish the demurrer, as calling for parrow dis- such a defense will be only in abatement, not in bar of the suit.
tinctions from the motion, as requiring an extra and generally "Objections which may be stated in such answers are those ob-
inconclusive proceeding in advance of trial, and as lacking flexi- jections given in the codes as grounds of demurrer, where such
bility, due to the precedents governing it and the limited deci- objections do not appear on the face of the complaint. They in-
sions available upon it."50 volve such matter as jurisdiction, capacity of the parties, joinder
of parties and of causes, and the ~endency of another action."53
Motions Under the Codes
The modern tendency is to substitute motions for demurrers. Same; Equitable Defense
'''Any application for an order of the court is a motion. Motions The term "equitable defense" is applied to matter such as
may thus raise defects of pleading or of parties, or may ask for fraud and mistake leading to r..eformation or cancellation of a
a summary disposition of the case or a pleading, or may concern written instrument. Matter defensive in its nature but which
many incidental matters during and after the trial of a case. The under the former procedure could only be relied on by an affirm-
motion to make a pleading more definite and certain is the usual ative bill in equity. "Under the codes it may be pleaded by the'
remedy where a pleading is indefinite and uncertain. Motions to defendant in his answer, but there is doubt whether it should be
elect and to separate are used where a pleader has failed to sepa- pleaded as a defense or a counterclaim."54
rate causes of action or defenses. Motions to expunge or strike
are used either to strike from the files entire pleadings which Same)· Counterclaim
are improper or to expunge from a pleading parts thereof which The set-off of mutual debts between a plaintiff and a defend-
are immaterial or otherwise improper. Motions for judgment on ant was first allowed in actions at law by a statute enacted in
the pleadings are available where, after the pleadings are closed, 1705,55 which permitted such set-offs in actions brought by in-
only issues of law are presented by them. In practice, as to sev- solvents; and mutual debts generally were allowed to be set off
' eral of these forms of motions it is difficult to determine wheth- by a statute enacted in 1729.56 Recoupment, however, based up- -
er a motion or a demurrer should be used. This difficulty con- on facts arising out of the transaction sued upon and reducing
stitutes one of the arguments for abolition of the demurrer."51 the plaintiff's recovery, was recognized without the aid of stat-
utes but it was essential that the claims of both plaintiff and de-
The Code Answer fendant involve the same "subject-matter," or arise out of the
The defendant's answer under the codes is the pleading by
which he may allege any new matter constituting a defense or 52 See Clark on Code Pleading; §§ 89, 54 Clark on Code Pleading, § 96, p.
counterclaim, or deny the allegations contained in the com- 90, pp. 388-402. 427.
the entire body. Acts are not approved until they have been fective from the year indicated: Alaska, 1919; Arizona, 1920;
considered section by section by at least two annual Conferences'. Delaware, 1919; Indiana, 1935; New Jersey, 1919; New Yorlt,
'*' ... ... 1922; Pennsylvania, 1925; South Dakota, 1919; West Virginia,
"Since the intention of the legislatures in adopting these Uni- 1925; Wisconsin, 191~.6
form Acts is to make uniform the law of those states which en- The Uniform Limited Partnership Act, which was approved
act them, the judicial decisions construing anyone of these laws by the National Conference of Commissioners on Uniform State
are authoritative, not only in the jurisdiction in which they are' Laws in 1916, has been adopted in the following jurisdictions ef-
rendered, but in every other jurisdiction in which the same law fective from the year indicated: Alaska, 1917; California, 1929;
has been adopted."2 Colorado, 1931; Idaho, 1920; Illinois, 1917; Iowa, 1924; Mary-
The following paragraphs constitute a list of the Uniform State land, 1918; Massachusetts, 1924; Michigan, 1931; Minnesota,
Laws cited and quoted in the text, and the jurisdictions in which 1919; Nevada, 1931; New Jersey, 1919; New York, 1922; Penn-
such acts are in force. sylvania, 1917; Rhode Island, 1930; South Dakota, 1925; Ten-
The Uniform Arbitration Act, which was approved by the Na- nessee, 1920; Utah, 1921; Virginia, 1918; Wisconsin, 1919.7
tional Conference of Commissioners on Uniform State Laws in The Uniform Negotiable Instruments Act, which was approved
1925, has been adopted in the following jurisdictions effective by the National Conference of Commissioners on Uniform State
from the year indicated: Nevada, 1925; North Carolina, 1927; Laws in 1896, has been adopted in the following jurisdictions ef-
Utah, 1927; Wyoming, 1927.3 fective from the year indicated: Alabama, 1908; Alaska, 1913;'
Arizona, 1901; Arkansas, 1913; California, 1917; Colorado, 1897;
The Uniform Bills of Lading Act, which was approved by the
Connecticut, 1897; Delaware, 1912; District of Columbia, 1899;
National Conference of Commissioners on Uniform State Laws
Florida, 1897; Georgia, 1924; Hawaii, 1907; Idaho, 1903; Illinois,
in 1909, has been adopted in the following jurisdictions, effective
1907; Indiana, 1913; Iowa, 1902; Kansas, 1905; Kentucky, 1904;
from the year indicated: Alabama, 1931; Alaska, 1914; Arizona,
Louisiana, 1904; Maine, 1917; Maryland, 1898; Massachusetts,
1921; California, 1919; Connecticut, 1911; Delaware, 1927; Ida-
1899; Michigan, 1905; Minnesota, 1913; Mississippi, 1916; Mis-
ho, 1915; Illinois, 1927; Iowa, 1911; Louisiana, 1912; Maine, 1917;
souri, 1905; Montana, 1903; Nebraska, 1905; Nevada, 1907; New
Maryland, 1910; Massachusetts, 1910; Michigan, 1911; Minne-
sota, 1917; Missouri, 1917; Nevada, 1923; New Hampshire, 1917; Hampshire, 1910; New Jersey, 1902; New Mexico, 1907; New
York, 1897; North Carolina, 1899; North Dakota, 1899; Ohio,
New Jerse~, 1913; New York, 1911; North Carolina, 1919; Ohio,
1903; Oklahoma, 1909; Oregon, 1899; Pennsylvania, 1901; Philip:'
1912; Pennsylvania, 1912; Rhode Island, 1914; South Carolina,
pine Islands, 1911; Puerto Rico, 1930; Rhode Island, 1899; South
1930; Vermont, 1915; Washington, 1915; Wisconsin, 1917.4
Carolina, 1914; South Dakota, 1913; Tennessee, 1899; Texas,
The Uniform Business Corporation Act, which was approved 1919; Utah, 1899; Vermont, 1913; Virginia, 1898; Washington,
by the National Conference of Commissioners on Uniform State 1899; West Virginia, 1908; Wisconsin, 1899; Wyoming, 1905.8
Laws in 1928, has been adopted in the following jurisdictions ef-
The Uniform Partnership Act, which was approved by the Na-
fective from the year indicated: Idaho, 1929; Louisiana, 1929;
Washington, 1934.5 ,
tional Conference of Commissioners on Uniform State Laws In
1914, has been adopted in the following jwisdictions effective
The Uniform Conditional Sales Act, which was approved by from the year indicated: Alaska, 1917; California, 1929; Colo-
the National Conference of Commissioners on Uniform State rado, 1931; Idaho, 1920; Illinois, 1917; Maryland, 1916; Massa-
Laws in 1918, has been adopted in the following jurisdictions ef- chusetts, 1923; Michigan, 1917; Minnesota, 1921; Nevada, 1931;
New Jersey, 1919; New York, 1919; Pennsylvania, 1915; South
2 Uniform Laws Annotated, vol. 5, "Uniform Laws Annotated, vol. 4,
,
iii. 1938 Cumulative Annual Pocket Part, 6 Uniform Laws Annotated, vol. 2, 1938 Cumulative Annual Pocket Part,
p.5. 1938, Cumulative Annual Pocket Part, p.5.
3 Uniform Laws Annotated, vol. 9,
1938 Cumulative Annual Pocket Part, 5 Uniform Laws Annotated, vol. 9,
_ p. 5. , 8 Uniform Laws Annotated, vol. 5,
p.27. 1938 Oumulative Pocket Part, p. 29. .. Uniform Laws Annotated, vol. 8, pp. vii, viii .
r
426 APPENDIX , NATIONAL CONFERENCE ON UNIFORM STATE LAWS 427
Dakota, 1923; Tennes$ee, 1917; Utah, 1921; Virginia, 1918; Wis- ~ Mexico, 1909; New York, 1907; North Carolina, 1917; North Da-
consin, 1915; Wyoming, 1917.· kota, 1917; Ohio, 1909; Oklahoma 1915; Oregon, 1914; Pennsyl-
The Uniform Sales Act, which was approved by the National vania, 1910; Philippine Islands, 1912; Puerto Rico, 1918; Rhode
Conference of Commissioners on Uniform State Laws in 1906, Island, 1908; South Dakota, 1913; Tennessee, 1909; Texas, 1919;
has been adopted in the following jurisdictions effective from the Utah, 1911; Vermont, 1913; Virginia, 1908; Washington, 1913; '
year indicated: Alabama, 1931; Alaska, 1914; Arizona, 1907; West ViFginia, 1917; Wisconsin, 1909; Wyoming, 1917.12
California, 1931; Connecticut, 1907; Delaware, 1933; District of ,/
12 Uniform Laws Annotated, vol. 3,
Columbia, 1937; Hawaii, 1929; Idaho, 1920; Illinois, 1915; In-
1938 Cumulative Annual Pocket Part,
diana, 1929; Iowa, 1919; Kentucky, 1928; Maine, 1923; Maryland, p. o.
1910; Massachusetts, 1909; Michigan, 1913; Minnesota, 1917;
Nebraska, 1921; Nevada, 1915; New Hampshire, 1923; New Jer-
•
~ey, 1907; New York, 1911; North Dakota, 1917; Ohio, 1909;
Oregon, 1919; Pennsylvania, 1916; Rhode Island, 1908; South
Dakota, 1921; Tennessee, 1919; Utah, 1917; Vermont, 1921;
Washington, 1926; Wisconsin, 1912; Wyoming, 1917.10
The Uniform Stock Transfer Act, which was approved by the
National Conference of Commissioners on Uniform State Laws
in 1909, has been adopted in the following jurisdictions effective
from the year indicated: Alabama, 1931; Alaska, 1914; Arkan-
sas, 1923; California, 1931; Colorado, 1927; Connecticut, 1917;
Idaho, 1928; Illinois, 1917; Indiana, 1923; Louisiana, 1911; Mary-
land, 1910; Massachusetts, 1910; Michigan, 1913; Minnesota,
1933; New Hampshire, 1937; New Jersey, 1916; New York, 1913;
Ohio, 1911; Oregon, 1935; Pennsylvania, 1912; Rhode Island,
1912; South Dakota, 1921; Tennessee, 1925; Utah, 1927; Virginia,
1924; West Virginia, 1931; Wisconsin; 1913.u .
The Uniform Warehouse Receipts Act, whichwas approved
by the National Conference of Commissioners on Uniform State
Laws in 1906, has been adopted in the following jurisdictions ef-
fective from the year indicated: Alabama, 1915; Alaska, 1914;
Arizona, 1921; Arkansas, 1915; California, 1909; Colorado, 1911;
Connecticut, 1907; Delaware, 1917; District of Columbia, 1910;
Florida, 1917; Idaho, 1915; Illinois, 1907; Indiana, 1921; Iowa,
1907; Kansas, 1909; Kentucky, 1938; Louisiana, 1909; Maine,
1917; Maryland, 1910; Massachusetts, 1907; Michigan, 1909;
Minnesota, 1914; Mississippi, 1920; Missouri, 1911; Montana,
1917; Nebraska, 1909; Nevada, 1913; New Jersey, 1907; New
Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R.
1487- p. 53, n. 44; p. 54, n. 44.
First Nat. Bank v. Yankton County, 101 U.S. 129, 25 L:Ed. 1046-p. 20, n. 3.
Fletcher v. Peck, 6 Cranch 87, 3 L.Ed. 162- p. 215, n. 69.
Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ot. 444, 80 L.Ed. 660-
p.30, n. 49.
Marsch v. Southern New England R. Corporation, 235 Mass. 304, 126 N.E.
519-p. 415, n. I.
Martin v. Waddell, 16 Pet. 367,10 L.Ed. 997- p. 215, n. 69.
Moore v. City of Albany, 98 N.Y. 396-p. fIl, n. 18.
Rollings v. Gunter, 211 Ala. 671, 101 So. 446--p. 285, n. 36.
Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086,
L.R.A.1918C, 451, Ann.Cas.1917E, 900-p. 52, n. 41.
Swift v. Tyson, 16 Pet. 1, 10 L .Ed. 865- p. 53, n. 44; p. 54, n. 44.
United States v. Arjona, 120 U.S. 479, 7 S.Ct. 628, 30 L.Ed. 728-p. 8, n. 15.
United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588-p. 34, n. 60.
SMITH EL.LAw 2d 429
430 CASES CITED
Van Ness v. Packard, 2 Pet. 137,7 L.Ed. 374-p. 50, n. 37. INDEX
West River Bridge Co. v. Dix, 6 How. 507, 12 L.Ed. 535-=-p. 212, n. 64. Figures refer to pages
Wiggins Ferry Co. v. Chicago & A. R. Co., e.c., 11 F. 381- p. 92, n. 27.
Wiley v. Wiley, 75 Ind.App. 456, 123 N.E. 252-p. 170, n. 2.
Wolfe v. Shelley, 1 Co.Rep. 93b-p. 202, n. 44.
I
Abandonment, see Titles to Land
Abateme'nt of Nuisance, see Remedies.
Abduction, see Crimes.
AbortlDn, see Crimes.
Abuse of Process, see Torts.
Acclde'nt, see Torts.
Accord and Satlsfactlo'n, see Remedies.
AccDunt, see Common-Law Actions; Remedies.
Accretion, see Titles to Land.
Actions, see Code Procedure; Common-Law Actions; Equity Procedure;
Trials.
Acts, see, also, Crimes.
Defined, 103.
Elements of, 103.
Kinds of, 103.
Adjective Law, see Courts; Divisions of Law; Procedure; Remedies; Trials.
, Administration of Estates Act of 1925,
Effect of, 249.
Nature and scope of, 250.
Administrators, see Succession.
Admiralty, see English Courts; Maritime Law.
Adultery, see Crimes.
Adverse Po'ssesslon" see Titles to Land.
Advo'wso,n,
Nature of, 115.
Affray, see Crimes.
Agency,
Appointment of agents, 302.
Capacity of parties, 300.
Crimes, principal's liability, 304.
Delegation of authority by agents, 301.
Disclosed and undisclosed principals, 299.
Duties of the parties, 304.
Liability of principal, 302.
Nature of, 299.
SMITH EL~LA w 2d 431
I I
432 L.~EX INDEX 433
Figures refer to page.. Figures refer to pages
Agency-Continued Ballments--Continued
Ratification of agent's acts, 303. Post office department, 242.
Scope of agent's authority, 302. Rights and liabilities of parties, 239.
Subagents, 301. Ba,nkruptcy, see Personal Property; Titles to Land.
Termination of relation, 304.
Ba~ratry, see Crimes.
Torts, principal's liability, 304. \
Alienation, see Titles to Land. Battery, see Crimes; Torts.
Common-Law Remedies, 'see Remedies. Contracts, see, also, Documents of Title; Husband and Wife; Infants; Insur-
ance; Negotiable Instruments; Suretyship and Guaranty; QuaSi
Common Pleas, see Courts; English Courts. Contracts; Sales.
Complaint, see Code Procedure. Agreement and obligation, 260.
AsSignments of,
Compounding Crime, see Crimes.
By operation of law, 272.
Conditional Sales, By the parties, 271.
Nature of, 235. Bilateral, 261.
Rights and duties of parties, 236. Breach and remedy, 275.
Conflict of Laws, Characteristics of, 261.
Special division of municipal law, 132. Classes of, 263.
Consent of parties, 266.
Congress, see, also, Constitution; Constitutional Law; Police Power; Taxa- ConSideration, 265.
tion. Construction, rules of, 274-
Organization, 21. Deeds, 263.
Conquest, Discharge of, 275.
Acquisition of land by, 214. Duress, effect of, 267.
Executed and executory, 260.
Consideration, see Contracts. Fraud, effect of, 267.
Conspiracy, see Crimes. Illegal agreements, 268.
Impairment of obligations prohibited, 141.
ConstituNon, see, also, Constitutional Law;- La",. Implied contracts, 262.
Characteristics of, 135. Joint agreements, 273.
Full faith and credit', 92. Legality of object, 268.
Interpretation of, 142. Misrepresentation, effect of, 266.
Meanings of terms, 136. Mistake, effect of, 266.
Nature of, 15. Nature of, 260.
Rules of construction, 143. Offer and acceptance, 261.
State, \ Operation of, 210.
Amendment and revision of, 26. Public pOlicy, agreements against, 269.
Nature of, 25. Record, contracts of, 263.
United States, Seal, contracts under, 263.
Amendments, 24. Several agreements, 273.
Natu.r e of, 24. Specialties, 263.
Ordination, 23.: Statute of Frauds, 264.
Restrictions on States, 30. Undue influence, effect of, 267.
Written and unwritten, 15. Unenforceable agreements, 261.
Constitutional Law, see, also, Constitution; Division of Law. Unilateral, 261.
Due process of law, 140. Void and voidable, 261.
Equal protection of law, 139. Written contracts, necessity of, 264.
Impairment of contract obligations prohibited, 141. Contrlbutlo,n, see Remedies.
Interpretation of, 142.
Conversion, see Equity; Torts; Trover.
Meanings of terms, 136.
Nature of, 135. Conveyances, see Deeds; Feudal System.
Police power, nature of, 146. Co'rody,
Rights, 136. Nature of, 117.
Rules of construction, 143.
Corporations, see Crimes; Municipal Corporations; Persons; Private Cor-
Taxing power, nature of, 145. porations.
438 INDEX
.Flgu;res refer to pages INDEX
Figure. refer to pa&"ea 439
Corporeal Hereditaments" see Hereditaments. Crimes-Continued
Corporeal Property, see Property. Burglary, 159.
Capacity to commit 153.
Counsel, see Trials. Champerty, 164. '
Counterclaim, see Code Procedure. Cheat, 160.
Classes of, 155.
CounterfelrUnlg, see Crimes.
Compounding felony, 164.
Court for Matrimonial Causes, see English Courts. Con tempts, 165.
COUlrt of Appeal, see English Courts. Corporations, capacity of, 154.
Counterfeiting, 167.
Court of Appeal In Chancery, see English Courts. Definition, 146.
Court of Claims, see Federal Courts. Diplomatic exemption, 154.
Dueling, 165.
Court of Criminal Appeal, see English Courts.
Elections, offenses concerning, 167.
Court off Crown Cases Reserved, see English Courts. Elements of, 152.
Court of Customs and Patent Appeals, see Federal Courts. Embezzlement, 160. '
Embracery, 164.
Court of Probate, see English Courts. Escape, 164.
Courts, see, also, English Courts; Federal Courts; Judicial "Power; Juris- Espionage, 167.
diction "; Precedents; State Courts. False imprisonment, 158.
Common pleas, Felony, 156.
Origin,42. Forcible detainer, 166.
Constitutions, construction by, 142. Forcible entry, 166.
Decisions, Forgery, 161.
Authority of, 91. "Fornication, 162.
Exchequer, 'Homicide, 156.
Origin,42. Incest, 163.
King's (or Queen's) Bench, Infamous, 150.
Origin, 42. Insanity, effect on capacity, 153.
Meanings of term, 363. Intent, element of, 152.
Of record, 367. International law, offenses against 168.
Rules of, 82. rnto~ication, effect on capacity, 15~
JustIce, obstruction of, 164.
Courts-Martial, see Military Courts. Kidnapping, 158.
Covenant, see Common-Law Actions. Larceny, 159.
Creditors, see Insurance. "' Libel, 166.
Maintenance, 164.
Creditors' Bill, see Remedies. Mala in se, 149.
Crl mes, see, also, Agency; Criminal Law; Criminal Procedure; Private Cor- Mala prohibita, 149.
porations. Malicious mischief, 161.
Abduction, 158. Manslaughter, 157.
Abortion, 163. Married women, capacity of, 154.
Act, element of, 153. Mayhem, 157.
Adultery, 162. Miscegenation, 163.
Affray, 166. Misconduct in office, 165.
Arson, 159. Misdemeanor, 156.
Assault, 158. Misprision of felony, 164.
Barratry, 164. Moral turpitude, 149.
Battery, 158. Murder, 156.
Bestiality, 163. Nuisance, 162.
Bigamy, 162. Obtaining property fraudulently, 160.
Bribery, 1q5. Offenses defined by United States statutes. 163.
440 INDEX
Figures· refer to page. INDEX
Figures refer to page. 4:41
erl mes-Continued
Customary Law, see Systems of Law.
Parent not liable for child's offenses, 177 n. 32.
Perjury, 165. Damages, see Remedies.
Piracy, 168. Dane Law,
Polygamy, 162. In England, 41.
Prison breach, 164.
Rape, 157. Debt, see Common-Law Actions.
Receiving stolen goods, 161. Deceit, see Torts.
Rescue, 164.
Declslll'nal Law, see Common Law; Law.
Riot, 166.
' Robbery, 161. Declaration, see Common-Law Procedure.
Rout; 166. Declaratlo'n of Independence,
Sanctions against, 168. Date and contents of, 22.
Sedition, 167.
Seditious conspiracy, 167. Decree, see Equity Procedure.
Seduction, 163. Deeds, see, also, Contracts.
Sodomy, 163. Kinds at common law, 217.
Sources, 151. Modern conveyances, 218.
Subornation of perjury, 165. Primary and secondary, 217.
Torts distinguished, 149. Quitclaim deed, 219.
Treason, Statute of Uses, 218.
Classification of, 166. Statutory deeds, 219.
Nature of offense, 155. Warranty deed, 218.
Unlawful assembly, 166.
Defamation, see Torts.
Criminal Law, see, also, Crimes; Criminal ,Procedure; Divisions of Law.-
Deft n lUons,
Division of municipal law, 126.
Alien, 13.
Nature of, 148.
Anglo-American law, 10.
Purpose of, 168. Citizen, 13.
Sanctions, 168. Code, 38.
Sources, 151.
J '
Confederacy, 18 n. 12-
Criminal Procedure, see, also, Crimes; Criminal Law; Criminal Procedure; Constitutional, 136. '
Division of Law; Trials. Crime, 146.
Arraignment, 412. Crimen falsi, 150.
Arrest, 410. Ethics, 10.
Bail, 411. Federal law, 10.
Commitment, 411. .Fee, 188.
Judgment, 414. Freehold, 188.
Motion to quash, 412. Fructus industriales, 222.
Nature of, 410. Fructus naturales, 222.
Pleas of accused, 412. Incontestable clause, 298.
Preliminary examination, 410. Laches, ' 64.
Sentence, 414. Law, 1 n. 1.
Trial,41K Legal fiction, 46.
Verdict, 413. Legal precepts, 6 n. 5.
Naturalization, 13 n. 4.
Cross-Bill, see Equity Procedure.
Necessaries, 181 n. 38.
CurIa Regis, see King's Council. Obligation of contract, 142.
Curtesy, see Succession. Precedent, 89.
Principle, 6 n. 5.
Custom, Republic, 26.
As law, 4. Rule, 6 n. 5.
Source of Common Law, 44. Sanction, 3.
442 INDEX INDEX
Jri&,ure. refer to pages Figure. refer to page.
Definltlons-Continued Divisions of Law-Continued
Simple, 189. Substantive law,
Sovereignty, 14. Analytical divisions of, 125.
Standard, 6 n. 5. Nature of, 125.
State, 12.
Dlvoree, see Hu'sband and Wife.
State law, 10.
Statute of Limitations, 63- I Documents,
Unconstitutional, 136. Rules for construction of, 85.
Vested right, 138. Docume'n ts of Title,
Demurrer, see Code Procedure; Common-Law Procedure; Criminal Proce- Bills of lading, natur.e of, 284.
dure; Equity Procedure. Warehouse receipts, nature of, 284.
Descent, see Succession; Wills. Domestic Relations, see Husband and Wife; Torts.
Detinue, see Common-Law ActionS: Dower, see Succession.
Dignity, Due Process of Law, see Constitutional Law.
Nature of, 117. Duellnlg, see Crimes.
Dilatory Pleas, see Common-Law Procedure. Duty, see Torts.
Diplomats, see Crimes. Easements,
DisclaImer, see Equity Procedure. Classes of, 118.
Creation of, 119.
Discovery, see, also, Remedies.
Incidents of, 120.
Acquisition of lands by, 215.
Nature of, 118.
Distress, see Remedies. Termination of, 120.
DIstrict Courts of United States, see Federal Courts. Ejectment, see Common-Law Actions.
DivIne Law, see Systems of Law. Elections, see Crimes.
DivIsIons of Law, Embezzlement, see Crimes.
Adjective law,
Civil -procedure, 127. Emblements,
Criminal procedure, 128. Nature of, 222.
Nature of, 125. Emb,racery, see Crimes.
Of persons, 128.
Public adjective law, 127. Eml,nent Domain, see Titles to Land.
Subdivisions of, 127. Employer and Employee, see Master and Servant.
Civil law, 125.
Enacted Law, see, also, Statutes.
Obligations, law of, 126.
Classes of in United States, 69.
Property, law of, 126.
Court decisions as parts of, 94.
Torts, law of, 126.
History of development, 70.
Conflict of Laws, 132.
Nature of, 69.
Criminal law, 124.
States,
General nature of, 126.
Content, 72.
General, 124. United States,
Law of persons,
Content, 72.
Nature of, 125, 126.
Maritime law, 131. ' English Courts,
Martial law, 130. Before 1873,
Military law, 129. Admiralty, 370. .
Private law, 124. Appeal in Chancery, 371.
'Public law, 124. Chancery, 369.
Administrative law, 125. Common pleas, 369.
Constitutional law, 125. Court of Crown Cases Reserved, 372.
444 L~DEX INDEX
.Figure. refer to pages , Figure. refer to page. 4:45
English Courts-Continued EquIty Procedure-Continued
Before 1873-Continued Decrees,
Exchequer, 369. Enforcement of, 403.
Exchequer Chamber, 371. FiI~al, 403.
Final appeals, 372. Interlocutory, 403.
Full Court for Matrimonial Causes, 372. Defenses, 401.
House of Lords, 372. Demurrer, 402.
Intermediate appeals, 371. Dilatory defenses, 401 n. 40.
Judicial Committee of Privy Council, 372. Disclaimer, 402. '
King's (or Queen's) bench, 368. Nature of, 399.
London court of bankruptcy, 370. Order pro confesso, 401 n. 39.
Matrimonial causes, 370. Plea, 402.
Probate, 370. Process, 400.
Trial courts, 368. Replication, 402.
Since 1873, Subpcena, 400.
Court of Appeal, 373.
Escape, see Crimes.
Criminal Appeal, 374.
Final app~llate courts, 375. Escheat, see Succession; Titles to Land.
High Court of Justice, 373.
E splona,ge, see Crimp-so
Entry, see Remedies.
Estates, se,e, also, Personal Property; Statute De Donic; Statute of Uses;
Equal Protection Qf Law, see Constitutional Law. Statute of Wills.
Absolute or qualified, 194.
EquItable RemedIes, see Remedies. Allodial lands, 189 n. 5.
EquIty, see, also, Equity Procedure. Base fees, 197.
Conversion, 61. Classes of, 187.
Development into system, 56. Conditional estates, 194.
Doctrines of, 60. Conditional fees, 196.
Fusion with law, Conditionally limited estates, 196.
In England, 67. Coparceny, estate in, 205.
In United States, 68. Coverture, estate of, 191.
Jurisdiction, 57. Curtesy, estate of, 191.
Auxiliary, 57. Definition of term, 187.
Concurrent, 57. Determinable fees, 197.
Exclusive, 57. Dower, estate of, 191.
Laches, 64. Entirety, estate in, 206.
Maxims of, 60. Executory devises, 204.
Enabling, 61. Fee simple, 188.
Restricti ve, 63. Freeholds and nonfreeholds, 188.
Nature and origin, 55. Freeholds not of inheritance, 190.
, Freeholds of inheritance, 188.
Relief,
Characteristics of, 57. Future interests classified, 20L
Discretion of chancellor, 59. Homestead exemption, 192.
In personam, 59. In possession, 201.
United States, In tail, 189.
How administered, 66. Joint tenancy, 205.
Legal and equitable, 197.
EquIty Procedure, see, also, Code Procedure; Trials. Licenses, nature of, 194.
Answer, 402. Life estates, 190.
Appearance, 401. Limitation, estates on, 195.
Bill of complaint, 399. Modified fees, 196.
Cross·bill, 401. Mortgages and other liens, 208.
446 INDEX
Estates-Continued
Nonfreehold estates, 192.
Figure. refer to paKe.
Felony, see Crimes,
INDEX
Figure. refer to »aKe.
"7
Possession or seisin, 18S. Feud, see Feudal System.
Present or future, 200. Feudal, System, see, also, Property.
Remainder, 20l. Abolition of, 111.
Re~ersion ; 201. Conveyances, subinfeudation, lOS.
Rule against perpetuities, 204. English, 106.
Severalty, estate in, 205. Freehold te~ants, 108.
Shelley's Case, rule in, 202. Legal theory of, 107.
Shifting uses, 203. Manor as unit of, 110.
Springing uses, 203. Nature of, 105.
Tenancy at sufferance, 194. Tenures, 107.
Tenancy at will, 193. Feud or tenement, 110.
Tenancy for years, 193. In United States, 109.
Tenancy from year to year, 193. Kinds of, lOS.
Tenancy in common, 206.
Fixtures, see, also, Land.
Trusts, 199.
U!,?es, nature of, 197. Meanings of term, 123.
Nature of, 122, 222.
Estates In Tall, see Estates.
Forcible Detainer, see Crimes.
Evidence, see Trials.
Forcl'ble Entry, see Crimes.
Exchequer, see Courts; English Courts.
Foreclosure of Mortgages,
EXl'hequer Chamber, see English Courts. Nature of remedy. 356.
Execu<tlon; see Common-Law Procedure; Titles to Land. Forfeiture, see Titles to Land.
Executive Power, Forgery, see Crimes.
DiviSion of government, 17.
Orders, Sl. Forms of Actlo,n, see Code Procedure: Common-~aw Actions.
Regulations, SO. Fornication, see Crimes.
States, Franchise,
Nature of, 31.
In United States, 121
United States,
Nature of, 117.
Where vested, 2S.
Frank AlmOign,
Executors, see Succession.
Feudalistic tenure, 108.
Executory Devises, see ~states; Statute. of Wills.
Fraud, see Contracts.
Facts,
Kinds of, 104. Free and Common Socage,
False Imprisonment, see Crimes; Torts. Feudalistic tenure, lOS.
Federal Courts, see, also, Federal Courts: Military Courts; State Courts. Freehold, see Estates; Feudal System.
Circuit Courts, 379 n. 35.
Circuit Courts of Appeals, 37S. French Civil -Code, 1804, see Code.
Commerce Court, 380. Full Court for Mat,rlmonlal Causes, see Eng-lish Courts.
Court of Claims, 380.
Court of Customs and Patent Appeals, 380. Full Faith a'nd Credit, see Constitution.
District Courts, 377.
Future Interests, s~e Estates.
Miscellaneous tribunals, 382.
Organizlition of, 375. German Code, 1900, see Code.
Supreme Court, 377.
Gifts,
United States Customs Court, S7S».
Causa mortis, 228.
Fee Simple Estate, see Estates. Inter vivos, 22S.
448 INDEX
Figures refer to paarea
INDEX
Figures refer to pages . «:9
Government, Husband and Wlfe-Continued
Marriag~ontinued
Colonial, 21.
Crimes against existence of, 166. Contracts of wife at common law 174.
Federal, 18. Defined, 169. '
Forms of, 13 n. 6. . Effect of duress, fraud, or mistake, 170.
Functional division of, 17. Essentials of relation, 170.
Local, Formalities in celebration, 172.
Nature of, 31. Kinds of at common law, 172 n. 12.
Nature of, 16. Legislative power to Validate, 172.
Objects of, 16. Personalty of wife at common law, 173.
State, Racial restrictions, 172.
Nature of, 29. Realty of wife at common law, 174.
Unitary, 18. Termination of the relation, 175.
United States, 19. Married Women's Acts, 174.
Authority of, 29. Implied Contracts, see Contracts.
Nature of, 26.
I n Person am, see Legal Rights.
Governor, see Executive Power.
I n Rem, see Legal Rights.
Guardian and Ward, see, also, Infants; Parent and Chil<1.
I ncest, see Crimes.
Definitions of, 181.
Duties of guardians, 183. Incorporeal Hereditaments, see, also, Hereditaments.
Insane persons, guardians of, 182. Advowson, 115.
Kinds of guardians, 181. Common, 116.
Liabilities of. guardians, 184. Corody, 117.
Nature of relation, 181. Dignity, 117.
Rights of guardians, 182. Franchise, 117.
Spendthrifts, guardians of, 182. In United States, 118.
Termination of relation, 184. Kinds of, 115.
Office, 117.
Habeas Corpus, see Remedies. Rent, 117.
Habltatlo'n, Tithe, 116.
Crimes against, 159. Way, 116.
Heirs, see Succession; Wills. Infamous Crimes, see Crimes.
Hereditaments, Infants, see, also, Guardian and Ward; Parent and Child.
Corporeal and incorporeal, 115. Apprentices, 185.
HI.gh Court of Justice, see English Courts. Contracts,
Liabilities under, 181.
Homestead, Rights under, 180.
Nature of, 192. Definition of, 179.
Homicide, see Crimes. Disabilities of, 179.
House of Lords, see English Courts. Guardians, suits by, 180.
Marriages of, 171.
Husband and Wife, see, also, Guardian and Ward; Parent and Child; Suc- Privileges of, 179.
cession; Torts. Torts by and against, 181.
Divorce,
Defenses against, 176. Information In Nature of Quo Warranto, see Remedies.
Grounds for, 176. Inheritance, see Succession.
Kinds of, 175.
Marriage, Inheritance Act of 1833,
Age requirement, 171. Effect of, 249.
Common-law incidents, 173.
Consent, necessity of, 171. InJunctions, see Remedies.
SMITH EL.LA w 2d- 29
450 INDEX
INDEX
Figures refer to page.
Flguzoe. refer to page" ~l
Injury, see Torts. Judicial Decree, see Titles to Land.
Inn keepers, J ud Iclal Power, see, also, Courts; Federal Courts; State Courts.
Nature of, 240. Decisions, authority of, 81.
Rights and duties of, 241. Division of government, 11.
Insanity, see Crimes; Guardian and Ward. Interpretation of constitutions, 142.
States,
I nstructlons, see Trials.
Where vested, 31.
Insular Possessions, United States,
Nature of, 21. Where vested, 29.
Insurance, Judiciary Act of 1789,
Accident insurance, 295. Organization of federal judiciary, 318-
Assignability, 292. Jural Law, see Systems of Law.
Beneficiaries' interests and rights, 296.
Capacity of parties, 290. Jural Relations, see, also, Legal Rights,
Construction of policies, 298. Claims and duties, 98.
Creditors of insured, rights of, 291. Immunities and disabilities, 99.
Different kinds of policies, 291. Nature of, 98.
Distinctive elements of, 290. Powers and liabilities, 98.
Fire insurance, 294. Privileges and inabilities, 99.
Incontestable clause, 298. Jurisdiction, see, also, Courts; Equity; Federal Courts.
Insurable interest, 292. Appellate, 364.
Kinds of, 290. Concurrent, 365.
Marine insurance, 294. Elements of, 366-
Nature of, 289. Exclusive, 365.
Requisites of contract, 290. General, 365_
Terminology, 289. In personam, 366-
I ntent, see Crimes. In rem, 366.
Nature of, 364.
I nterests, see, also, Legal Rights; Torts. Of person, 366.
Classes of, 96. Of property, 366.
Individual, Of subject-matter, 366-
Personality, 96. Original, 364.
Property, 96. Special, 365.
Relational, 96.
Jurors, see Trials.
Interl1atlonal Law,
Crimes against, 168. Jury, see, also, Trials.
Nature of, 6. Source of, 42
United States, 8. Justice,
Interpleader, see Remedies. Crimes against, 164.
I ntestacy, see Succession. 1<ldnapplnlg, see Crimes.
I ntoxlcation, see Crimes. King,
Fountain of justice, 56 D. 2.
Joint-Stock Companies,
King's (or Queen's) BenCh, see Courts i English Courts.
Nature of, 313.
King's CounCil,
Judgments, see, also, Common-Law Procedure; Criminal Procedure; Trials. Nature of, 42-
Authority of, 87.
King's Inquest,
Judicature Acts of 1873 and 1875, see, also, Code Procedure. Nature of, 42.
Courts established by, 373.
King's Peace,
Judicial Committee 01 Privy Counsel, see English Courts. Nature of, 42.
SMITH EL.LAW 211.
, 452 INDEX
Figure. refer to pa&-ea I NDEX
F i gures refer to page. 453
King's Writ, see Writs. Legislative Power-Contim:ed
!{on I.g'ht's Service, Procedure, 72.
Feudalistic tenure, 108. States,
Land, see, also, Fixtures. Nature of legislatures, 30.
United States,
Acquisition by nation, 214.
Where vested, 27.
Meaning of term, 122.
Libel; see Crimes; Torts.
Lands, Tenements, and Hereditaments,
Nature of, 115. Liberty,
Constitutional right of, 136.
Larceny, see Crimes.
License in Land, see Estates.
Law, see, also, Common Law; Divisions of Law; Statutes; Systems of Law.
Decisional law, 36. License Taxes,
Forms of, 36. Nature of, 146. ,
Function of municipal law, 95. Liens on Land,
Fusion with equity, 67. Miscellaneous kinds, 207.
Of the case, 88 n. 20.
Orders, 81. Life Estates, see Estates.
Proclamations, 81. Limited Partnerships,
Rank in United States, 79. Nature of, 312.
Sources of,
London Court of Bankruptcy, see English Courts.
Custom, 5.
Formal, 7 n. 9. Maintenance, see Crimes.
Material, 7 n. 10. Mala i,n Se, see Crimes.
Supremacy, principle of, 78.
Mala Prohibita, see Crimes.
Law Merchan't,
Malicious Mischief, see Crimes.
History and nature of, 47.
Merged with Common Law, 48. Malicious Prosecution, see Torts.
Lease, See Deeds. Mandamu·s, see Remedies.
Legal Cause, see Torts. Manor, see Feudal System.
Legal Flctlo'n, see Common Law. Manslaughter, see Crimes.
Legal Remedies, see Remedies. Maritime Law,
Legal Rights, see, also, Acts; Constitutional Law; Facts; Jural Relations; Golonies, administration ot, 51.
Persons; Property. History and nature of, 46.
Classes of, 97. Merged with Common Law, 47.
Elements of, 97. Special division of municipal law, 131.
In personam, United States, jurisdiction of, 51.
Nature of, 99. Marriage, see Husband and Wife.
In rem,
Nature of, 100. Matried Women, see Crimes; Husband and Wife ; Torts.
Objects of, 104. Married Women's Acts, see Husband and Wife.
Primary, 101.
Private and public, 98. Marshalinrg Assets, see Remedies.
Remedial, 101. Martial Law,
Things or objects, 104. In general, 130.
Legislation, see Enacted Law; Statutes. Massachusetts Trust, see Business Trusts.
Legislative Power, see, also, Enacted Law; Husband and Wife; Statutes. Master and Servant,
Delegation of, 80 n. 5. Apprentice defined, 185.
Division of government, 17. Definitions of, 185.
454 INDEX
Figures refer to pages INDEX
Flgnres refer to pages 455
Master and Servant-Continued Negotiable Instruments, see, also, Documents of Title.
Employer and employee relation distinguished, 185. Bill of exchange defined, 279.
Rights and liabilities of, 185. Check, nature of, 280.
Maxims, "see Equity. ConSideration, 279.
Mayhem, see Crimes. Construction, rules of, 278.
Discharge of, 283.
Mercantile Law, see Law Merchant.
Essential elements of, 277.
Mercla:n Law, Foreign bill of exchange defined, 280.
In England, 41. Form of, 277.
Military ~mmlsslons, see Military Courts. Holder in due course defined, 282.
Indorsement, •
Military Courts,
Kinds of, 281.
Commissions, 381.
Nature of, 280.
Courts-martial, 38L
Inland bill of exchange defined, 279.
Provost courts, 381.
Liabilities of parties, 282.
Military Law, Nature of, 277.
In general, 129. NegotiatIon, how effected, 280.
Miscegenation, see Crimes. Parties, capacity of, 279.
Rights of holder, 282.
Misconducrt In Office, see Crimes.
Misprision of Felony, see Crimes. New York Code of 1848, see Code Procedure.
Next Df Kin, see SucceSSion.
Misprision Qf T.reason, see Crimes.
NonfreehDld Estates, see Estates.
Moral Law, see Systems of Law.
Notes, see Negotiable Instruments.
Moral Turpitude, see Crimes.
Nuisance, see Crimes; Torts.
Mortgages, see Chattel Mortgages; Foreclosure.
Oath, see Trials.
Mortgages of Land,
Nature of, 206. Objects, see Legal Rights.
Motions, see Code Procedure. Obligations, see, alsO, Divisions of Law.
Motion to Quash, see Criminal Procedure. Impairment prohibited, 141.
Treason, see Crimes. United States, see, also, Constitutional Law; Crimes, Criminal Law; Crim.
inal Procedure; Federal Courts; Law; Police Power; State; States;
Treaties,' see, also: Law. . Taxation.
Nature of in the Umted States, 8. Acquisition of lands by, 215.
Presidential authority, 28. Citizenship and naturalization, 34.
• Common law adopted, 50.
Trespass, see Common-Law Actions; Torts. Decisions of courts,
Trials, Authority of, 91.
By battIe, 416. District of Columbia,
By oath, 415. Nature of, 20.
By ordeal, 416. Government,
Counsel, arguments of, 420. Authority of, 29.
Evidence, produ?tion 0;, 420. Nature of, 26.
I nsular possessions,
Instructions to Jury, 4~ 1.
Judgment, 421. Nature of, 2] .
Jurors, selection of, 419. I nternational law, 8.
Jury, Judges,
At common law, 418. Appointment of, 28.
Constitutional right of. 418. JudiCial power,
Development of, 416. Where vested, 29.
Selection of, 419. Municipal law, 9.
Under codes, 418. Nature of, 19.
Nature of, 415. Sovereignty,
I n the people, 33.
SMrrHEL.L - W_2_d__________~L________________
=A_
468 INDEX
Figures refer to page.
United states-Continued
State law in federal courts, 52.
Territories,
Nature of, 20.
Treaties,
Authority of President, 28.
United states Customs Court, see Federal Courts.
Unlawful Assembly, see Crimes.
Unwritten Law, see Common Law; Constitution.
Uses,
Nature of, 197.
Verdict, see Common-Law Procedure; Criminal Procedure; Trials.
Vested Rights, see Constitutional Law; Legal Rights.
Wager of Law, see Trials.
Ward, see Guardian and Ward.
Warehouse Receipts,
Nature of, 284.
Way,
Nature of, 116.
Wessex Law,
In England, 41.
Wills, see, also, Succession.
Capacity to make, 254.
Construction, rules of, 256.
Definition of, 253.
Formalities required, 254.
Probate of, 255.
Revocation of, 255.
Writs, see, also, Remedies.
De cursu, 43.
History of, 43.
King's writ, 43.
Provisions of Oxford, efi'ect, 43.
Statute of Westminster II, effect, 44.
END OF VOLUME