Sec.11. It is a general and established doctrine, that an exclusive and uninterrupted enjoyment of water, or of light, or of any other easement, in any particular way, for twenty years, or for any other period which in any particular state is the established period of limitation, is a sufficient enjoyment to raise a presumption of title as against the right of any other person. The enjoyment is deemed to have been uninterrupted, whether it has been continued from ancestor to heir, and from seller to buyer; or whether the use has been enjoyed during the entire period by one person.

Sec.12. As a right may be acquired by use, so it may be lost by disuse; and as an enjoyment for twenty years, or such other period as is prescribed by statute, is necessary to establish a right; an absolute discontinuance of the use for such period will raise the presumption that the right has been released or extinguished. Thus a title to land may pass from its actual owner by non-occupancy for the period above stated; and a title to it may be acquired by an undisturbed occupant who shall hold it in peaceable and uninterrupted possession for the same period.



Chapter LIII.

Leases:—Estates for Life; Estates for Years; Estates at Will; Estates by Sufferance; Rent, &c.



Sec.1. Real estate, the title to which is conveyed by deed, as distinguished from other estates in land, is called an estate of inheritance. An estate of inheritance, that is, an estate in lands that may be transmitted by the owner to his heirs, is a fee. No estate is deemed a fee unless it may continue forever. When it is a pure and absolute inheritance, clear of any qualification or condition, it is called a fee-simple.

Sec.2. An interest in lands which is to continue for a limited period, is usually conveyed by a written instrument called lease. To lease, means to let; but generally to grant the temporary possession of real estate to another for rent or reward. Sometimes the word demise is used for ease. The landlord, or person letting the estate, is called lessor; and the tenant, or person to whom the land is leased, is called lessee. Leases for a term longer than one year, are usually required to be sealed, and in some states, proved and recorded also, as deeds and mortgages.

Sec.3. These limited interests in land are divided into estates for life, estates for years, estates at will, and estates by sufferance. An estate for life is an estate conveyed to a person for the term of his natural life. Life estates held by lease, however, are not common in this country. Another kind of life estate is that which is acquired, not by the acts of the parties, as by lease, but by the operation of law. Such is the right of a husband to the real estate of his wife acquired by her before or after marriage. Such also is the right of dower. (Chap. XLVIII, Sec.6, 7. Chap. LI, Sec.7.)

Sec.4. An estate for years is a right to the possession and profits of land for a determinate period, for compensation, called rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limit of human life. And if a lease should be for a less time than a year, the lessee would be ranked among tenants for years. Letting land upon shares for a single crop is not considered a lease; and possession remains in the owner.

Sec.5. A lessee for years may assign over his whole interest to another, unless restrained by agreement not to assign without leave of the lessor. And he may underlet for any less number of years than he himself holds; but he is himself liable to the landlord.

Sec.6. A tenant for years, whose lease expires after the land is sown or planted, and before harvest, is not entitled to the crop, if the lease is for a certain period; for, knowing that his lease would expire before harvest time, he might have avoided the loss of his labor. But if the lease for years depends upon an uncertain event, the occurring of which would terminate the lease before the expiration of the term, the tenant would be entitled to the crop, if there were time to reap what has been sown, in case he should live. It is believed that, in a few states, the tenant has a right to the crop from grain sown in the autumn before the expiration of the lease, and cut the next summer after its expiration.

Sec.7. Where there is an express agreement to pay rent, the tenant can not avoid payment even if the premises are destroyed by fire or flood, or if he is in any other manner deprived of their enjoyment and use, even without any default on his part. Hence, if land should be leased with a flock of sheep, and the sheep should die, the full rent must be paid. But if the land should be recovered from the tenant by a person having a better title than that derived from his landlord, he is not liable for rent after his use of the land has ceased.

Sec.8. A tenant can not make repairs at the expense of the landlord, or deduct the cost of them out of the rent, unless by special agreement. But if the premises, from want of repair, have become unsafe or useless, the tenant from year to year may quit without notice; and he would not be liable for rent after the use had ceased to be beneficial.

Sec.9. When rent is due, payment may be made or tendered upon the premises; and if no place of payment has been agreed on, a personal tender off the land is also good. As to the time of payment, where there is no special agreement to the contrary, rent is due yearly, half-yearly, or quarterly, according to the usage of the country. Where there is no particular usage, the rent is due at the end of the year.

Sec.10. An estate at will is where land is let to another, to hold at the will of the lessor. Tenancies at will, strictly such, are not common. Such estates, when no certain term is agreed on, are construed to be tenancies from year to year, and each party is bound to give reasonable notice of an intention to terminate the lease. If the tenant holds over after the expiration of a lease for years, either by express consent, or under circumstances implying consent, it is held to be evidence of a new contract without any definite period, and is construed to be a tenancy from year to year: and in those states where the old English rule prevails, six months' notice must be given the tenant to quit.

Sec.11. What turns leases for uncertain terms into leases from year to year, is the landlord's reserving annual rent. A tenant placed on land without any terms prescribed or rent reserved, is strictly a tenant at will; and it has been held that such tenant is not entitled to notice to quit; but the general rule now seems to be, that even in such case the six months' notice is necessary; or, as in some states, a reasonable notice.

Sec.12. An estate at sufferance is that which is acquired by a tenant who has come into lawful possession of land, but who holds over by wrong after his interest has ceased. He is not entitled to notice to quit; and where there is no special statute, he is not liable for rent; and the landlord may enter, and remove the tenant and his goods with such gentle force as may be necessary. If undue force is used, the landlord would be liable to an action for forcible entry and detainer.



Chapter LIV.

Contracts in General.



Sec.1. A contract is an agreement between two or more persons, by which the parties agree to do, or not to do, a particular thing. Contracts are executory, when the stipulations remain to be executed, or when one party agrees to sell and deliver, at a future time, for a stipulated price, and the other agrees to accept and pay. Contracts are express, when the parties contract in express words, or by writing; implied, when an act has been done which shows that the parties must have intended to contract; as, when a person employs another to do some service, it is presumed that the party employing intended to pay for the labor performed.

Sec.2. Contracts are also distinguished as specialties and simple contracts. A specialty is a contract under seal; as a deed, or a bond. But we shall here consider chiefly that common class of contracts called simple contracts, or contracts by parol. Parol signifies by word of mouth. Applied to contracts, however, it not only means verbal contracts, but includes written contracts not under seal. Both are simple contracts; the distinction between them is in the mode of proof. The mutual understanding of the parties to a verbal contract may be proved by parol evidence. But as the real intention of parties is more likely to be expressed in a written contract, the rule of law is, that parol evidence may not be admitted to contradict or vary the terms of a written instrument. It may however be admitted to explain what is doubtful, or to supply some deficiency.

Sec.3. To make a valid contract, the parties must be capable of contracting. They must be of sound mind. Hence idiots and lunatics are generally incompetent to make contracts. Contracts by lunatics and idiots are not necessarily void, but only voidable; the validity or invalidity depending upon facts to be proved. To avoid a contract on the ground of mental imbecility, it must be proved that the party contracting was at the time incompetent. But if a general derangement is once established or conceded, the person is presumed to be incompetent; and the party seeking to enforce the contract must prove the other to have been sane. The general rule in the case of idiots is, that if the party is incapable of acting in the ordinary affairs of life, or in the particular contract, his idiocy will annul the contract.

Sec.4. Drunkards also are incompetent to contract while in a state of intoxication, provided the drunkenness is such as to deprive them of reason for a time, and create impotence of mind. But for absolute necessaries, if the drunkard consumes them during his drunkenness, or keeps them after becoming sober, he is liable. Intoxication only renders a contract voidable, not void, as the party intoxicated may adopt it on recovering his understanding.

Sec.5. Another requisition to a valid contract, is the mutual assent of the parties. A mere offer by one party not assented to or accepted by the other, constitutes no contract. Assent must also be given freely. A contract entered into under duress, or compulsion, is not binding; as where assent is extorted by threats of personal injury. Assent must also be given with a knowledge of facts. A contract made under an injurious mistake, or ignorance of a material fact, may be avoided, even though the fact is not fraudulently concealed. But a mistake made through ignorance of the law, will not render a contract void.

Sec.6. A valuable consideration also is necessary to a valid contract. A consideration is what is given or done, or to be given or done, as the cause or reason for which a person enters into an agreement. Thus, the money given or offered, for which a man agrees to perform certain labor, is the consideration of the agreement. So the money or other thing for which a promissory note is given, is the consideration. A valuable consideration is any thing that is either a benefit to the party promising, or some trouble or injury to the party to whom the promise is made.

Sec.7. Mutual promises are sufficient considerations to make a contract binding; but they must be made at the same time. Such promises support each other. The promise of one party constitutes a sufficient consideration for a promise by the other party. In case the parties are distant from each other, if the proposition is made in writing and sent by mail, and a letter of acceptance is written and put in the mail, the contract is complete, unless, before mailing the letter of acceptance, a second letter has been received containing a retraction of the proposal.

Sec.8. Promises which are wholly gratuitous are void; because, being neither a benefit to the promiser, nor an injury to the promisee, they are not regarded in law as a valuable consideration. Hence, subscriptions to public works and charitable, literary, and religious institutions, if they are merely gratuitous, can not be collected, unless they have operated to induce others to advance money, make engagements, or do other acts to their own injury.

Sec.9. As gratuitous promises are void for want of consideration, so merely gratuitous services, as voluntarily assisting to save property from fire, or securing beasts found straying, or paying another's debts without request, afford no consideration upon which payment for their value can be lawfully claimed; there being no promise of compensation. But if a person knowingly permits another to do certain work, as plowing his field, or hoeing his corn, although the work may have been commenced without his order or request, his consent will be regarded in law as an implied promise to pay for the value of the labor, unless the circumstances of the case are such as to forbid the presumption.

Sec.10. A consideration must also be possible, and in accordance with law, sound policy, and good morals. A contract founded upon an impossible consideration is void. No man can be lawfully bound to do what is not in the power of man to do. But it is otherwise, if the thing to be done is only at the time impossible in fact, but not impossible in its nature. Hence, inability from sickness to fulfill an agreement, or the impossibility of procuring an article of a certain kind or quality which a person has agreed to deliver, would not exempt him from liability in damages for the non-performance of his contract.

Sec.11. A contract, the consideration of which is illegal or immoral, may be avoided by either party. A man can not be held to an agreement to do acts forbidden by the law of God or by the laws of the state. But if an illegal contract has been executed; in other words, if the wrong has been done, the party in the wrong can not renounce the contract; for the general rule is, that no man can take advantage of his own wrong; and the innocent party alone has the privilege of avoiding the contract. If both parties are guilty, neither can, in ordinary cases, obtain relief on a contract that has been executed.

Sec.12. The rule that a consideration is necessary to a valid contract applies to all contracts and engagements not under seal, except bills of exchange and negotiable notes after they have passed into the hands of an innocent indorsee. (See Promissory Notes.) In contracts under seal, a consideration is necessarily implied in the solemnity of the instrument.

Sec.13. It is declared by the English statute of frauds, which prevails generally in the United States, that an agreement which is not to be performed within one year from the time of making it, shall not be valid, unless such agreement, or some memorandum or note thereof, is in writing, and signed by the party to be charged. The statutes of some of the states have adopted this provision of the English statute, and require further, that a special promise to answer for the debt, default, or misdoing of another person, and an agreement or promise upon consideration of marriage, (except mutual promises to marry,) shall likewise be void without such writing, in which the consideration shall be expressed.



Chapter LV.

Contracts of Sale.



Sec.1. A Sale is a transfer of the title to property to another person for a certain price; or the exchange of a commodity for its equivalent value in money. The exchange of one commodity for another, is barter. Unless the absolute title is conveyed, the contract is merely a mortgage. The same general principles of law which apply to contracts in general, are applicable to contracts of sale, viz.: the competency of the parties to contract; the sufficiency of the consideration; its legality and morality; the assent of the parties; and the absence of fraud.

Sec.2. To make a sale valid, the thing to be sold must have an actual or a possible existence, and be capable of delivery. Thus, if A sells a horse or certain goods to B; and if, at the time of the sale, the horse is dead, or the good? are destroyed; the sale is void. If the goods are partially destroyed, the buyer may either take them at a proportionate reduction of the price, or abandon the contract.

Sec.3. But, although the thing to be sold has no actual and present existence; yet if its future existence is possible, and if it is the product or increase of something to which the seller has a present right, it is the subject of sale. Thus, a man may sell the wool that may grow on his sheep, the fruit that may grow on his trees, or the future increase of his cattle. But he cannot sell the products of the sheep or cattle which he may hereafter buy. A man may, however, agree to procure goods which he has not, and to furnish at a future time, for a certain price; and his contract will be good; though this is not strictly a sale, but an agreement to sell.

Sec.4. There can be no sale without a price; and the price must be fixed and definite, or susceptible of being ascertained by reference to some criterion prescribed in the contract, so as to render any further negotiation of the parties unnecessary. Thus, a man may agree to pay what shall be the market price at a particular time, or a price to be fixed by a third person. The price must also be payable in money or its negotiable representative, as notes or bills. One article given for another is merely barter. The same principles of law, however, govern in both cases.

Sec.5. There must be a mutual consent of the parties, and the contract is binding when a proposition made by one party is accepted by the other. The negotiation may be carried on by letter, as before stated. (Chap. LIV, Sec.7.)

Sec.6. In contracts of sale which are not perfected at once by payment and delivery, certain formalities are to be observed. These forms generally are prescribed by what is called the English statute of frauds, which requires, (1.) that the buyer shall accept and receive part of the goods sold; or (2.) give something in earnest to bind the bargain, or in part payment; or (3.) that some note or memorandum in writing of the bargain shall be made and signed by the party to be charged, or by his authorized agent. These provisions, however, apply only to cases in which the price of the goods sold is ten pounds sterling, or more. The same rule prevails generally in this country, with slight variations in some states. The price of the goods sold, in cases to which the provisions of that statute apply, is fixed by law in many of the states, and varies from $30 to $200.

Sec.7. To complete a contract of sale, and pass the title to the property to the buyer, there must be a delivery of the goods sold. When the goods are such as cannot be manually or immediately delivered, or are not in the actual custody of the seller, the law does not require an actual delivery. But they must be placed in the power of the purchaser; or there must be such acts and declarations of the parties as imply a change of ownership. When the right of property has been transferred to the buyer, whether by an actual or only a constructive delivery, he immediately assumes the risk of the goods; so that if they shall be afterward injured or destroyed, he must bear the loss.

Sec.8. When nothing is said at the sale as to the time of delivery, or the time of payment, the buyer is entitled to the goods on payment or tender of the price, and not other wise; for, though he acquires the right of property by the contract of sale, he does not acquire the right of possession, until he pays or tenders the price. But if the seller delivers the goods absolutely, and without fraudulent contrivance on the part of the buyer, the buyer will hold possession of them.

Sec.9. But when goods are sold on credit, and nothing is said as to the time of delivery, the buyer is immediately entitled to the possession. If, however, it is ascertained, before the buyer obtains possession of the goods, that he is insolvent, or so embarrassed as to disable him from meeting the demands of his creditors, the seller may stop the goods as a security for the price. But if they are stopped without good cause, or through misinformation, the buyer is entitled to the goods, and to damages which he may have sustained in consequence of their stoppage.

Sec.10. In the sale of a chattel, if the seller has possession of the article, and sells it as his own, he is understood to warrant the title. A fair price implies a warranty of title; and the purchaser may have satisfaction from the seller, if he sells goods as his own, and the title proves deficient. But if the possession is at the time in another, and there is no covenant or warranty of title, the party buys at his peril. It is thought, however, if the seller affirms that the property is his own, he warrants the title, though it is not in his possession.

Sec.11. With regard to the quality of the thing, the seller is not bound to make good any deficiency, except under special circumstances, unless be expressly warranted the goods to be sound and good, or unless he made a fraudulent representation or concealment concerning them. The rule is, if there is no express warranty by the seller, nor fraud on his part, and if the article is equally open to the inspection of both parties, the buyer who examines the article for himself, must abide by all losses arising from latent defects equally unknown to both parties.

Sec.12. But this rule does not reasonably apply to cases in which the purchaser has ordered goods of a certain character, or in which goods of a certain described quality are offered for sale, and, when delivered, they do not answer the description. There being no opportunity of examining them, there is an implied warranty of the quality. An intentional concealment or suppression of a material fact, when both parties have not equal access to means of information, is unfair dealing, and renders the contract void.

Sec.13. As a general rule, each party is bound to communicate to the other his knowledge of material facts, provided he knows the other to be ignorant of them, and they are not open and naked, or equally within the reach of his observation. Surely the moral law and fair dealing require, in all cases, a full disclosure of all defects within the knowledge of the contracting parties.



Chapter LVI.

Fraudulent Sales; Assignments; Gifts, &c.



Sec.1. The title to property is sometimes transferred with fraudulent intent. A debtor, to place his property beyond the reach of his creditors, sells or assigns it to others by way of mortgage, under the false pretense of securing the payment of a debt; the property to remain in the possession and use of the assignor.

Sec.2. Any agreement which operates as a fraud upon third persons, is void. It is a rule of common law, that all deeds of gift, and all transfers of goods and chattels made by any person to secure them for his future use, shall be void as against creditors; and that if property assigned or sold remains with the seller or assignor, the transaction is to be presumed fraudulent. But whether such conveyance of goods is only prima facie (at first view) evidence of fraud, which the vendee or assignee may rebut by proving the sale or assignment to have been made honestly and in good faith; or whether the transaction is fraudulent in point of law, and void, is a question upon which the decisions of the courts in England as well as those in this country differ, and which, therefore, may be considered as not conclusively settled.

Sec.3. Some have made a distinction between bills of sale and assignments that are absolute and those that are conditional. The supreme court of the United States has affirmed the doctrine that an absolute and unconditional bill of sale or conveyance, when the property is retained in possession, is of itself conclusive evidence of fraud; in other words, it is presumed to be fraud in point of law, whatever it may be in fact. It has been held by the same court, that a conveyance with a condition that the property is to remain with the vendor until the condition shall be performed, or a conveyance in the nature of a mortgage or security, expressing an agreement between the parties, that the mortgager shall retain possession, is valid.

Sec.4. In some states, the doctrine established by the courts is, that a continuance of possession is only prima facie evidence of fraud; in which case the mortgagee or assignee is allowed to show by proof, that the conveyance was made in good faith and for a valuable consideration. In other states, the strict rule prevails, that, without a change of possession, the transaction is fraudulent in law; in which case the assignee, or person claiming the property under the assignment, is not permitted to show that, in point of fact, the transaction was bona fide, (in good faith.)

Sec.5. The rule that holds every conveyance to be fraudulent unless the property immediately changes hands, often operates to inconvenience and even injury of honest debtors. A debtor may be obliged to part with property, however convenient or needful its present use may be to him, when, but for this stringent rule of law, he might borrow the money to pay a debt, or procure a postponement of payment, and retain the use of the property pledged.

Sec.6. In many of the states, this perplexing question has been settled by statute. In the state of New-York, the law expressly declares, that a sale or an assignment without immediate delivery and a change of possession, shall be presumed to be fraudulent and void as against creditors, unless the party claiming the property under the assignment shall make it appear that the same was made in good faith, and without any attempt to defraud. Laws more or less similar to this, and securing to the assignor the use of the mortgaged property, are believed to exist in a majority of the states. The instruments conveying the property are usually called chattel mortgages, and are required to be recorded as deeds; in New-York, and perhaps a few other states, only filed in the town or county clerk's office.

Sec.7. In the sale of personal property, though there should be a judgment against the vendor, and the purchaser should have notice of it, that fact would not of itself render the sale fraudulent. But if the purchaser, knowing of the judgment, purchases with the view or purpose to defeat the creditor's execution, the transaction is fraudulent. The question of fraud depends upon the motive.

Sec.8. Assignments are sometimes made by debtors for the benefit of their creditors. A person deeply indebted, or in embarrassed circumstances, assigns his property, in trust, to one or more persons, who are to dispose of it, and to apply the avails to the payment of his creditors, or a part of them; for the law does not forbid a debtor's giving a preference to one or more creditors over others, provided the assignment is for a sufficient consideration. A debtor may directly assign or transfer all his property to a single creditor, and the assignment be valid; but if the value of the property is manifestly excessive, and disproportionate to the debt which it is intended to cover, the other creditors have a right to the surplus.

Sec.9. When an embarrassed debtor agrees to pay his creditors a certain proportion of their claims in consideration of a discharge of their demands, if he privately agrees to give a better or further security to one than to others, the contract is void; because the condition upon which they agree to discharge the debtor is, that they shall share equally.

Sec.10. A gift, or conveyance founded merely upon a consideration of affection, or blood, or consanguinity, may be set aside by creditors, if the grantor was in embarrassed circumstances when he made it; for a man is bound, both legally and morally, to pay his debts before giving away his property. But if he is indebted to only a small amount in proportion to the value of his property, and wholly unembarrassed, the gift is not rendered voidable by his indebtedness, even though he should afterwards become insolvent.



Chapter LVII.

Bailment.



Sec.1. The word bailment is from bail, French, to deliver. (Chap. XVIII, Sec.14.) Bailment, in law, is a delivery of goods, in trust, upon agreement that the trust shall be executed, and the goods restored by the bailee, when the purpose of the bailment shall have been, answered.

Sec.2. A person who receives goods to be kept and returned without reward, must keep them with reasonable care, or, if they receive injury, he will be liable for the damage: in other words, he is responsible only for gross neglect. Gross neglect is a want of that care which every man of common sense takes of his own property. A depositary, who is a person with whom goods are deposited, has no right to use the goods intrusted to him.

Sec.3. A mandatary, or one who undertakes to do an act for another without recompense, in respect to the thing bailed to him, is responsible for gross neglect, if he undertakes and does the work amiss; but it is thought that for agreeing to do, and not undertaking or doing at all, he is not liable for damage.

Sec.4. The borrower of an article, as a horse, carriage, or book, without reward, is liable for damage in case of slight neglect. But if the article is applied only to the use for which it is borrowed, is used carefully by the borrower only, and returned within the time for which it was borrowed, he is not liable.

Sec.5. Property taken in pledge as security for a debt or an engagement, must be kept with ordinary care; in other words, the pawnee is answerable only for ordinary neglect; and if the goods should then be lost or destroyed, the pawner is still liable for the debt. If the pawnee derives any profit from the use of the property, he must apply the profits, after deducting necessary expenses, toward the debt.

Sec.6. Another kind of bailment is the hiring of property for a reward. If an article is injured or destroyed without any fault on the part of the hirer, the loss falls on the owner, for the risk is with him.

Sec.7. If work or care is to be bestowed for a recompense on the thing delivered, the workman is liable for ordinary neglect; and the work must be performed with proper skill, or he is answerable for damage. If a tailor receives cloth to be made into a coat, he is bound to do it in a workmanlike manner.

Sec.8. Innkeepers are in general responsible for all injuries to the goods and baggage of their guests, even for thefts. But for loss caused by unavoidable accident, or by superior force, as robbery, they are not liable.

Sec.9. A person who carries goods for hire in a particular case, and not as a common carrier, is answerable only for ordinary neglect, unless he expressly takes the risk of a common carrier.

Sec.10. A common carrier is one who carries goods for hire as a common business, whether by land or by water, and is responsible to the owner of the goods, even if robbed of them. He is in the nature of an insurer, and is answerable for all losses, except in cases of the act of God, as by lightning, storms, floods, &c. and public enemies, as in time of war.

Sec.11. A common carrier is bound to receive from any person paying or tendering the freight charges, such goods as he is accustomed to carry, and as are offered for the place to which he carries. But he may refuse to receive them if he is full, or if they are dangerous to be carried, or for other good reasons. He may refuse to take them unless the charges are paid; but if he agrees to take payment at the end of the route, he may retain them there until the freight is paid. A carrier must deliver freight in a reasonable time; but he is not liable for loss by the freezing of a river or canal during his voyage, if he has used due diligence.

Sec.12. Proprietors of a stage coach do not warrant the safety of passengers as common carriers; and they are not responsible for mere accidents to the persons of the passengers, but only for the want of due care. Slight fault, unskillfulness, or negligence, either as to the sufficiency of the carriage, or to the driving of it, may render the owner responsible in damages for injury to passengers. But as public carriers, they are answerable for the loss of a box or parcel of goods, though ignorant of its contents, unless the owner fraudulently conceals the value or nature of the article, or deludes the carrier by treating it as of little or no value. Public carriers are responsible for the baggage of their passengers, though they advertise it as being at the risk of the owners.



Chapter LVIII.

Principal and Agent, or Factor; Broker; Lien, &c.



Sec.1. An agent, or factor, is a person intrusted with the management of the business of another, who is called principal. The words agent and factor both signify a deputy, a substitute, or a person acting for another; but agent seems to be the more comprehensive term, being applied to one who is intrusted by another with any kind of business; factor more properly denotes an agent employed by merchants residing in other places to buy and sell, and transact certain other business on their account. A factor, from his being commissioned or authorized to act for his principal, and especially if allowed a commission, or a certain rate per cent, of the value of the goods bought or sold, is called a commission merchant.

Sec.2. If a factor advances money on property intrusted to him, he can hold it until the money shall be refunded, and all charges paid. If the actual owner of the property is unknown to the factor, the person in whose name the goods were shipped, is to be deemed the owner.

Sec.3. The right of a factor to hold property against the owner in satisfaction of a demand, is called lien; and the factor may sell the goods to satisfy his claim; but he must pay the surplus, if any, to the principal or owner. A factor can not pledge goods intrusted to him for sale, as security for his own debts. If he disposes of merchandise intrusted or consigned to him, and applies the avails to his own use, with intent to defraud the owner, he may be punished by fine and imprisonment.

Sec.4. How far, in ordinary business, a principal is bound by the acts of an agent, it is not easy to determine. As a general rule the acts of a general agent; that is, one who either transacts all kinds of business for his employer, or who does all acts connected with a particular business or transaction, or which relate to some particular department of business, bind his principal, so long as he keeps within the general scope of his authority, though he may in some special cases act contrary to his private instructions. But an agent employed for a particular purpose, if he goes beyond the limits of his power, does not bind his principal.

Sec.5. An agent is bound, in ordinary cases, to observe the instructions of his principal, even though an act contrary to such instructions should be intended for the benefit of the principal. The agent must bear, personally, all losses growing out of a non-compliance with his orders; and the profit accruing therefrom goes to the benefit of the principal. An agent, however, is excused from a strict compliance with his orders, if, after receiving them, some sudden and unforeseen emergency has arisen, in consequence of which such compliance would operate as an injury to the principal, and frustrate his intention.

Sec.6. When an agent receives no instructions, he must conform to the usage of trade, or to the custom applicable to the particular agency; and any deviation therefrom, unless justified by the necessity of the case, renders him solely liable for any loss or injury resulting from it.

Sec.7. An agent is bound to exercise ordinary diligence and reasonable skill; and he is responsible only for the want thereof. Ordinary diligence is that which persons of common prudence use in conducting their own affairs. Reasonable skill is that usually possessed by persons of common capacity employed in the same business.

Sec.8. If an agent exceed the limits of his authority, he becomes personally responsible to the person with whom he deals, if the limitations of his authority are unknown to such person. He is in like mariner responsible, if he makes a contract in his own name; or if he does not disclose the name of the principal, so as to enable the party with whom he deals to have recourse to the principal in case the agent had authority to bind him. And if the agent even buys in his own name, but for the principal, and without disclosing his name, the principal also is bound, provided the goods come to his use. Also if the principal is under age, or a lunatic, or otherwise incompetent to contract, the agent is liable.

Sec.9. A broker is an agent employed to negotiate sales between parties for a compensation in the form of a commission, which is commonly called brokerage. His business consists chiefly in negotiating exchanges; or in buying and selling stocks, goods, ships, or cargoes; or in procuring insurances and settling losses; and as he confines himself to one or the other of these branches, he is called an exchange broker, stock broker, insurance broker, &c. A broker differs from a factor. He has not the custody of the goods of his principal. He is merely empowered to effect the contract of sale; and when this is done, his agency ends. If a broker executes his duties in such a manner that no benefit results from them, or is guilty of gross misconduct in selling goods, he is not entitled to a commission or compensation.

Sec.10. A lien, as the claim of a factor upon goods intrusted to him for sale, has been noticed. (Sec.3.) The right of lien extends to others than factors. It is intended also for the benefit of manufacturers, mechanics, and other persons carrying on business for the accommodation of the public. A tailor has a lien upon the garment made from another's cloth until he is paid for the making; a shoemaker upon the shoes made from another's leather; a blacksmith upon the horse he has shod; an innkeeper upon the horse or goods of his guest; and common carriers upon the goods they transport. But they cannot hold the property for any other debt; nor can they sell it to satisfy their claim. Whenever a person allows property to go out of his possession, he loses his lien.



Chapter LIX.

Partnership.



Sec.1. A partnership is an association formed by contract between two or more persons, for joining their money, labor, or skill, in lawful business, the profits to be divided and the loss to be borne by the partners in certain proportions. It is a partnership if one furnishes the funds and the other performs the labor; or if, when no money is necessary, each agrees to do his share of the labor. A partnership or association of this kind is denominated a firm, or house.

Sec.2. The act of any one of the firm is considered the act of all, and binds all; and either of them is liable for all the debts. But if a bill or note is drawn by one partner in his own name only, without appearing to be on partnership account, he alone is bound, though it were made for a partnership purpose. A partner buying goods on his own account for his individual use, is alone liable; but if they afterward go to the use of the partnership, all become responsible.

Sec.3. Sometimes a person agrees to receive, by way of rent, a portion of the profits of a farm, a tavern, or a manufactory; or an agent or a clerk receives a share of the profits for his labor. But as there is in these cases no partnership, the persons who buy the stock and hire the labor are alone responsible.

Sec.4. All the partners must unite in suing and being sued. One who should conceal his name so as not to be known when the debt is contracted, may be sued when discovered to be a partner, if he shares in the profits of the trade.

Sec.5. A partner cannot sell his interest to another person, who is to take his place in the partnership, without the consent of all the partners: nor can a partner, without such consent, withdraw when he pleases, and dissolve the partnership, except in cases in which the partnership is without any definite term. A partnership is dissolved by the death, insanity, bankruptcy, or other inability of one of the parties.

Sec.6. When a partnership is dissolved by the withdrawal of any of the partners, notice of dissolution ought to be duly published, or a firm may be bound by a contract made by one partner in the usual course of business and in the name of the firm, with a person who contracted on the faith of the partnership, and who had no notice of the dissolution. The same notice is necessary to protect a retiring partner from continued responsibility. And even if due notice is given, yet, if he willingly suffers his name to continue in the firm, or in the title of the firm over the door of the shop or store, he may in certain cases be liable.

Sec.7. In some of the states, a partnership may be formed by a number of persons, some of whom are to be responsible only to a limited amount; and their names are not to be used in the firm. Before a partnership of this kind can do business, a writing and certificate signed by the parties stating the terms of partnership, and the amount for which the special partners (as they are called) are to be responsible must be recorded. The terms of partnership must also be published in a newspaper.

Sec.8. In these limited partnerships, as they are termed, the special partners are liable only to the amount stated in the terms of partnership. The other partners, called general partners, whose names only are used, and who transact the business, are liable for all the debts contracted, as in ordinary partnerships. If such partnership is to be dissolved by act of the parties before the expiration of the term for which it is formed, notice of dissolution must be filed and recorded, and published in a newspaper. Such is the law in the state of New York; and it is presumed to agree, in its most essential provisions, with the laws of the other states in which these partnerships are authorized.



Chapter LX.

Promissory Notes.



Sec.1. A promissory note is a written promise to pay a specified sum at a certain time, to a person named, or to his order, or to the bearer. A common form of a note is the following:

$100. Albany, June 9, 1859.

Three months after date, I promise to pay to James Smith, or bearer, one hundred dollars, value received.

John Brown.

Sec.2. A note thus payable to Smith or bearer, or to him or his order, is called negotiable, because it may be sold or transferred to any other person, who has the same power to sue for and collect the money, as Smith, the original promisee. If it were made payable to Smith or order, he must indorse it by writing his name on the back of it, before it would pass as a negotiable note. The indorsement is considered as the order of Smith to the maker to pay it to any other person. But, though not negotiable, it might be transferred; but the holder must sue in the name of Smith, and Brown might offset any demands which he has against Smith.

Sec.3. An indorsement, made by writing the name only on the back of a note, is called a blank indorsement. A full indorsement is one which points out the person to whom the note is to be paid. A blank indorsement may be filled up at any time by the holder. For example: A note is payable to "John Jay or order," or to "the order of John Jay," who indorses it in blank which makes it payable to any other holder. Now if any holder or indorsee wishes it paid to any particular person, he fills up the blank by writing a request to that effect above the name of the indorser, thus: "Pay to George Bruce," or "Pay to George Bruce or order;" who, again, may by indorsement order it paid to some particular person. Or, if he should indorse it in blank, or order it paid "to the bearer," it would again pass, as at first, by mere delivery.

Sec.4. In common business transactions in the country, notes intended to be negotiable are usually made payable to bearer, as in the form given. (Sec.1.) The young reader, or other person inexperienced in business, may not know why they are not always so written. The making of a note payable to order protects the holder or owner in case the note should be lost. Take, for example, the note supposed in the preceding section, indorsed in blank. Suppose the owner resides in Buffalo, and the maker in Detroit. The owner writes over the name of John Jay, "Pay to George Bruce," also residing in Detroit, to whom it is sent by mail, to be by him presented to the maker for payment. And should the note by accident or fraud fall into the hands of another, it being payable to Bruce only, or to his order, the parties are protected from loss.

Sec.5. As a contract is not binding without a valuable consideration, (Chap. LIV, Sec.6,) the words "value received" are inserted in notes, as evidence of such consideration. But where there is no statute requiring the insertion of these words, a note is good without them. Whether they are inserted or not, the note is presumed to have been given for a valuable consideration; and the maker, to avoid his obligation to pay it, must make it appear that no value was received.

Sec.6. A note made by two or more persons may be joint or joint or several. When it is written, "We promise to pay," it is only a joint note, and all must be sued together. If written, "We jointly and severally promise to pay," they may be sued either jointly or separately. Also if written "I promise to pay," it is treated as a joint and several note. A note written, "We promise," and signed, A. B., principal, and C. D., security, is the joint note of both; and if written, "I promise," and signed in the same manner, it is the joint and several note of both.

Sec.7. Any person having in possession a negotiable note, though a mere agent, is deemed the true owner, and may sue it in his own name, without showing title. The bona fide holder can recover upon the paper, though it came to him from a person who had stolen or robbed it from the true owner; provided he took it innocently in the course of trade for a valuable consideration before it was due, and with due caution. But if suspicion is cast upon the title of the holder, by showing that the instrument has got into circulation by force or fraud, then the holder must show the consideration he gave for it.

Sec.8. Ordinarily, a person can not convey to another a valid title to property which is not lawfully his own; and hence the purchaser of stolen goods must give them up to the lawful owner. The exception to this rule, in the case of promissory notes, seems to be founded in reason and good policy. The use of negotiable paper in commercial transactions is of great public convenience; and it is proper that, for the sake of trade, protection should be given to the holder of such paper who receives it fairly in the way of business, though it has been paid, if he received it before it fell due.

Sec.9. But it is equally material for the interests of trade, that the owner should have due protection. Hence if a person takes a note from a stranger without inquiring how he came by it; or does not take it in the usual course of business, or for some responsibility incurred on the credit of the note, he takes it at his peril. But the owner, in order to place his right to relief beyond question, ought to use diligence in apprising the public of the loss of the note.

Sec.10. A person buying a note after it has become due, takes it at his peril. Although the holder may sue it in his own name, the maker may offset any demands which he had against the promisee before it was transferred, as in the case of notes not negotiable. (Sec.2.) But when notes in which no day of payment is expressed comes under this rule, is a question to be determined by circumstances. In New Jersey and Pennsylvania, the words "without defalcation or discount," or words to that effect, must be inserted in notes, or they may be met by offsets as notes that are bought after due.

Sec.11. A note made payable in some commodity is not negotiable. If it is not paid according to the conditions therein expressed, the maker becomes liable to pay in cash. But in either case, if it passes to a third person, he can sue it only in the name of the promisee or payee; and it may be met by offsets as other notes not negotiable, (Sec.2,) and notes bought after due. (Sec.10.)

Sec.12. Notes payable on demand, or in which no time of payment is mentioned, are due immediately, and no demand of payment is necessary. But a note payable at sight, or at a specified time after sight, must be presented for payment before it can be sued. If the words "with interest" are omitted, interest commences at the time the note becomes due. If payable on demand, it will draw interest from the time when payment is demanded.

Sec.13. After the day on which a note is made payable, the maker has three days in which to make payment, which are called days of grace. Hence, a note payable on the first day of the month is not due and suable until the fourth. If, however, the last day of grace falls on Sunday, or the fourth of July, or any other day recognized by law as a holiday, or day of public rest, the last day of grace would be a day earlier. If the fourth of July or any other holiday should come on Saturday, the note would be due on Friday. Or if such day should fall on Monday, the last day of grace would be Saturday.

Sec.14. To hold the indorser of a note responsible, payment must be demanded of the maker on the last day of grace. As to the time of day when the demand should be made, it is considered that the maker is entitled to the latest convenient time within the customary business hours of the place where the note is presented.

Sec.15. If payment has been demanded and refused, notice thereof must be given to the indorser; and one entire day is allowed the holder to give the notice. If the demand is made on Saturday, it is sufficient to give notice on Monday. If the indorser resides in the same town, he may be notified personally by the holder, or by a messenger sent to his dwelling-house, where notice may be given personally, or left in a way likely to bring it to his knowledge. If the parties reside in different towns, notice may be sent by mail; in which case, the notice must be put into the post-office, as early as the next day after the last day of grace, so as to be forwarded as soon as possible thereafter: or notice may be sent by a private conveyance or a special messenger.

Sec.16. If, in consequence of the removal of the maker before the note becomes due, or from any other cause, his residence is unknown, the holder must make endeavors to find it, and make the demand there; though, if he has removed out of the state, it is sufficient to present the note at his former place of residence. If the maker has absconded, that will, as a general rule, excuse the demand.

Sec.17. Notes, on being transferred, are guarantied by indorsement. If a person simply writes his name on the back, he is liable as indorser only. If he guarantees "the payment of the note," he is generally considered liable as an original promisor. If he guaranties the note "good," or "collectable," the maker, and the indorsers also, if any, must be sued, before the guarantor is liable. Strict notice to a guarantor is not required to bind him, as in the case of an indorser. But to hold him liable in case immediate notice is not given, or the note is not immediately sued, it must be shown that he has not suffered injury from want of notice, or that the note was not collectable of the maker or indorsers when due. But the kind of liability incurred, whether that of indorser, original promisor, or surety, by indorsing a note or guarantying payment, is not the same in all the states. There are sundry other points in the law relating to promissory notes, on which the statutes and judicial decisions are not uniform in all the states.



Chapter LXI.

Bills of Exchange; Interest; Usury.



Sec.1. A bill of exchange is a written order or request to a person in a distant place, to pay a third person a certain sum of money. The following is a common form:

$1,000. New-York, August 10, 1859.

Twenty days after date, (or at sight, or ten days after sight,) pay to the order of John Stiles, one thousand dollars, value received, and charge the same to account of

To George Scott, Thomas Jones.

New Orleans, La.

Sec.2. Bills drawn on persons in foreign countries, are called foreign bills of exchange; those drawn on persons in distant places in our own country, are called inland bills of exchange. To persons in mercantile business they are of great convenience, as will be seen from the following example of their nature and operation.

Sec.3. A, in New-York, has $1,000 due him from B, in New Orleans. A draws an order on B for that sum, and C, who is going to New Orleans, pays A the money, takes the order, and receives his money again of B. Thus A is accommodated by receiving his debt against B, and O has avoided the risk of carrying the money from place to place. A, who draws the order, or bill, is called the drawer. B, to whom it is addressed, is the drawee; C, to whom it is made payable, is the payee. As the bill is payable to C, or his order, he may, by indorsment, direct the bill to be paid to D; in which case C becomes the indorser, and D, to whom the bill is indorsed, is called the indorsee or holder.

Sec.4. If, when a bill is presented to the drawee, he agrees to pay it, he is said to accept the bill, and writes his acceptance upon it. An acceptance may, however, be by parol. The acceptor of a bill is the principal debtor; the drawer, the surety. The acceptor is bound, though he accepted without consideration, and for the sole accommodation of the drawer. But payment must be demanded on the last day of grace; and, if refused, notice of non-payment must be given to the drawer, as in the case of an indorsed promissory note. (Chap. LX, Sec.15.)

Sec.5. No precise time is fixed by law at which bills payable at sight or a certain number of days after sight, must be presented to the drawee for acceptance; though an unreasonable delay might discharge the drawer. A bill payable on a certain day after date, need not be presented before the day of payment, but if presented before due, and acceptance is refused, it is dishonored; and notice must be given immediately to the drawer. If a bill has been accepted, payment must be demanded of the acceptor, when the bill falls due; and if no place is appointed for payment, the demand must be made at his house or residence, or upon him personally.

Sec.6. A check upon a bank, (Chap. XXIV, Sec.3,) is another kind of negotiable paper. It partakes more of the nature of a bill of exchange than of a promissory note. It is not a direct promise to pay; but it is an undertaking, by the drawer, that the drawee shall accept and pay; and the drawer is answerable only when the drawee fails to pay. A check payable to bearer passes by delivery; and the bearer may sue on it as on an inland bill of exchange.

Sec.7. When a foreign bill of exchange is to be presented for acceptance or payment, demand is usually made by a notary public; and in case of refusal, his certificate of the presentment of the bill and of the refusal, is legal proof of the fact in any court. This certificate is called protest, which means, for proof. A protest may be noted on the day of the demand; though it may be drawn up in form at a future period. Notaries are appointed in all towns and cities of commercial importance.

Sec.8. A protest of an inland bill of exchange is not generally deemed necessary in this country; though it is the practice to have bills, drawn in one state on persons in another, protested by a notary. No protest is legal evidence in court, except in the case of a foreign bill. Yet it is expedient, in many cases of inland bills, to employ notaries when evidence is to be preserved, because they are easily found when wanted as witnesses. In some states, bills drawn in one state and payable in another, are deemed foreign bills; and their protest as such is required. Notes payable at banks are also protested for non-payment.

Sec.9. Interest is a premium paid for the use of money, or a profit per cent, received for money lent, or on an unpaid demand. Thus a person lends $1,000 to another person, who pays for the use of it six per cent, a year, or $6 for every hundred, as interest. The rate of interest is fixed by a law of the state.

Sec.10. The established lawful rates of interest in the several states are as follows: Six per cent, in all but the following: In New-York, Michigan, Wisconsin, Minnesota, seven per cent.; in Alabama and Texas eight per cent.; in Louisiana, five per cent.; bank interest six; in California, ten per cent. But there may be taken by special agreement, in Florida and Louisiana, eight per cent.; in Mississippi, Arkansas, Ohio, Missouri, Iowa, ten; in Texas and Wisconsin, twelve; in Minnesota and California, any rate. In Illinois and Michigan, for money loaned, it may be ten. In Mississippi, for the bona fide use of money eight per cent.

Sec.11. A rate of interest beyond that which is established by law, is usury. Not only can no more be collected on any contract or obligation than the legal rate, but in most of the states there is some forfeiture for taking usurious interest. In a few, the obligation is void, and the payment of no part of the debt can be enforced by law; in others, twice or thrice the excess above the lawful interest is forfeited; and in some, only the excess paid can be recovered.



Chapter LXII.

Crimes and Misdemeanors.



Sec.1. The statutes of each state define the crimes of which its laws take cognizance. The definitions given in this chapter, agree substantially, it is presumed, with those of similar crimes in every state in the union. The statutes also prescribe the penalties, which are not precisely the same in all the states. Nor is there in any state an equal measure of punishment inflicted in all cases for the same offense. The laws usually declare the longest and the shortest terms of imprisonment, and the highest and lowest fines, leaving the exact measure of punishment, except for crimes punishable by death, to the discretion of the judges, to be fixed according to the aggravation of the offense.

Sec.2. The laws of the several states differ in respect to the number of crimes made punishable by death. In some states the penalty of death is annexed to the crime of murder only. Treason is punishable by death; but as this offense is defined and made punishable by the laws of the United States, not all the states take cognizance of it. If committed in such states, it is tried in the courts of the United States. In New York, murder, treason, and arson in the first degree, are punishable by death. Few states make more than these crimes thus punishable. In two or three states, the penalty of death has been abolished, and imprisonment for life substituted.

Sec.3. Crimes punishable by death, are called capital crimes, and their punishment is called capital punishment. The word capital is from the Latin caput, which means head; and so has come to signify the highest or principal. Hence, probably, the application of the word capital to the principal crimes receiving the highest punishment, which was formerly practiced extensively in other countries by beheading or decapitating the criminals.

Sec.4. Treason is defined by statute to be, levying war in any state against the people of the state; or a combination of two or more persons, attempting by force to usurp or overturn the government of the state; or in adhering to enemies of the state while separately engaged in war with a foreign enemy, and giving them aid and comfort.

Sec.5. Murder is the killing of a person deliberately and maliciously, and with intent to effect death; or killing a person in committing some other crime, though not with a design to effect death; or in killing a person purposely and without previous deliberation. The less aggravated cases of murder, are in some states distinguished as murder in the second degree, and punished by imprisonment for a long term, or for life.

Sec.6. Manslaughter is killing a person either upon a sudden quarrel, or unintentionally while committing some unlawful act. The statutes of New York define four different degrees of manslaughter.

Sec.7. Arson is maliciously burning any dwelling-house, shop, barn, or any other building, the property of another. Arson in the first degree, which is burning an inhabited dwelling in the night time, is in some states punishable with death.

Sec.8. Homicide signifies mankilling. It is of three kinds: felonious, justifiable, and excusable. When felonious, it is either murder or manslaughter. Justifiable homicide is that which is committed in the necessary defense of one's person, house, or goods, or of the person of another when in danger of injury; or that which is committed in lawfully attempting to take a person for felony committed, or to suppress a riot, or to keep the peace. Excusable homicide is the killing of a person by accident, or while lawfully employed, without any design to do wrong. In the two last cases there is no punishment.

Sec.9. Intentionally maiming another by cutting out or disabling the tongue or any other member or limb; inveigling or kidnapping; decoying and taking away children; exposing children in the street to abandon them; committing or attempting an assault with intent to kill, or to commit any other felony, or in resisting the execution of a legal process; administering poison without producing death; poisoning any well or spring of water; are all felonies, and punishable as such.

Sec.10. Burglary is maliciously and forcibly breaking into and entering in the night time, any dwelling-house or other building, with intent to commit a crime. Breaking into and entering a house by day, is considered a minor degree of burglary.

Sec.11. Forgery consists in falsely making, counterfeiting, or altering any instrument of writing, with intent to defraud. The word counterfeiting is generally applied to making false coin or bank notes, or in passing them; or in having in possession any engraved plate, or bills unsigned, which are intended to be used for these purposes.

Sec.12. Robbery is the taking of personal property from another in his presence and against his will, by violence, or by putting him in fear of immediate injury to his person. Knowingly to send or deliver, or to make for the purpose of being sent, a letter or writing, threatening to accuse any one of crime, or to do him some injury, with intent to extort or gain from him any money or property, is considered an attempt to rob, for which the offender may be imprisoned.

Sec.13. Embezzlement is fraudulently putting to one's own use what is intrusted to him by another. To buy or receive property knowing it to have been embezzled, is to be guilty of the same offense. Embezzling is usually punishable in the same manner as larceny of the same amount.

Sec.14. Larceny is theft or stealing. The stealing of property above a certain amount in value is called grand larceny, and is a state prison offense. If the value of the property stolen is of less amount, the offense is called petit larceny, and is punished by fine or imprisonment in jail or both.

Sec.15. Perjury is willfully swearing or affirming falsely to any material matter, upon an oath legally administered. Subornation of perjury is procuring another to swear falsely; punishable as perjury.

Sec.16. Bribery is promising or giving a reward to a public officer, to influence his opinion, vote or judgment. A person accepting such bribe, is punishable in the same manner, and forfeits his office, and, in some states, may never hold another public trust. This offense is not in all the states punishable by imprisonment in the state prison.

Sec.17. Dueling is a combat between two persons with deadly weapons. Killing another in a duel is murder, and punishable with death. If death does not ensue, imprisonment. Challenging, or accepting a challenge to fight, or to be present as a second, imprisonment. Dueling is not a punishable offense in every state.

Sec.18. Aiding or attempting to aid a prisoner committed for felony, to escape from confinement, or forcibly rescuing a prisoner charged with crime, from the custody of a public officer, is a crime. If the offense for which the prisoner is committed is less than felony, the punishment is imprisonment in jail, or fine, or both.

Sec.19. Bigamy is the crime of having two or more wives, and is also called polygamy. But bigamy literally signifies having two wives, and polygamy any number more than one. These words, in law, are applied also to women having two or more husbands. A person having a lawful husband or wife living, and marrying another person, is guilty of bigamy. An unmarried person, also, who shall marry the husband or wife of another, is punishable in like manner.

Sec.20. Incest is the marrying or cohabiting together as husband and wife, of persons related to each other within certain degrees.

Sec.21. Opening a grave and removing a dead body for any unlawful purpose, or purchasing such body knowing it to have been unlawfully disinterred, is a crime. This offense is in some states punishable by imprisonment in a county jail, or by fine, and not in a state prison.

Sec.22. Persons sometimes advise or are knowing to the commission of felonies, but are not actually engaged in committing them. Such are accessories. He who advises or commands another to commit a felony, is called an accessory before the fact, and is punished in the same manner as the principal. If he conceals the offender after the offense has been committed, or gives him any aid to prevent his being brought to punishment, he is an accessory after the fact, and may be imprisoned or fined.

Sec.23. Assault and Battery is unlawfully to assault or threaten, or to strike or wound another. Besides being liable to fine and imprisonment, the offender is liable also to the party injured for damages.

Sec.24. A riot is the assembling together of three or more persons, with intent forcibly to injure the person or property of another, or to break the peace; or agreeing with each other to do such unlawful act, and making any movement or preparation therefor, though lawfully assembled. When riotous persons are thus assembled, and are proceeding to commit offenses, any judge, justice, sheriff, or other ministerial officer, may in the name of the state, command them to disperse. If they refuse, the peace officers are required to call upon all persons near to aid in taking the rioters into custody. Persons refusing to assist may be fined.

Sec.25. A sheriff or other officer voluntarily suffering a prisoner charged with or convicted of an offense, to escape, from his custody, is guilty of a misdemeanor. To rescue a prisoner thus charged or convicted, is punishable in a similar manner. It is also a misdemeanor to assist a criminal, with a view to effect his escape, though he does not escape from jail.

Sec.26. A person taking upon himself to act as a public officer, and taking or keeping a person in custody unlawfully or without authority, is false imprisonment; for which the offender may be fined or imprisoned.

Sec.27. The offenses mentioned in the last four sections, being of a lower grade than those defined in the preceding sections, and not being punishable in a state prison, are usually called misdemeanors, and are punishable by fine or imprisonment in a county jail. There are numerous other misdemeanors and immoralities, as profane cursing and swearing, betting and gaming, horse racing, disturbing religious meetings, sabbath-breaking, trespasses and injury to property, and many disorderly practices, all of which are punishable in a like manner.



Law of Nations.



Chapter LXIII.

Origin and Progress of the Law of Nations; the Natural, Customary, and Conventional Laws of Nations.



Sec.1. The law of nations consists of those rules by which intercourse between nations is regulated. In its present improved state, the law of nations has not long existed. Ancient nations were little governed by the principles of natural justice. Little respect was paid by one nation to the persons and property of the citizens of another. Robbery on land and sea was not only tolerated, but esteemed honorable; and prisoners of war were either put to death, or reduced to slavery. By this rule of national law, commerce was destroyed, and perpetual enmity kept up between nations.

Sec.2. Within the last three or four centuries, essential improvement in the law of nations has been made. By the light of science and Christianity, the rights and obligations of nations have come to be better understood, and more generally regarded. Commerce also has done much to improve the law, by showing that the true interests of a nation are promoted by peace and friendly intercourse.

Sec.3. Hence we find the nations of Europe and America recognizing the same rules of international law. And as the light and power of Christianity shall increase, the law of nations will undergo still further improvements. And it is to be hoped, that, as one of these improvements, the practice of settling national disputes by war will be abolished, and the more rational and humane course be adopted, of referring difficulties which the parties are incapable of adjusting, to some disinterested power for adjudication.

Sec.4. There are, in every nation or state, courts of justice to try and punish offenders; but there is no tribunal before which one nation can be brought to answer for the violation of the rights of another. Every nation, however small and weak, is independent of every other. Therefore, when injuries are committed by one upon another, the offended party, unless it chooses quietly to endure the wrong must seek redress, either by appealing to the sense of justice of the party offending, or by a resort to force.

Sec.5. Every nation has a right to establish such government as it thinks proper; and no other nation has a right to interfere with its internal policy. To this rule, however, some writers make an exception. They hold that the natural right of a state to provide for its own safety, gives it the right to interfere where its security is seriously endangered by the internal transactions of another state. But it is admitted that such cases are so very rare, that it would be dangerous to reduce them to a rule.

Sec.6. So cases seldom arise in which one nation has a right to assist the subjects of another in overturning or changing their government. It is generally agreed, that such assistance may be afforded consistently with the law of nations, in extreme cases; as when the tyranny of a government becomes so oppressive, as to compel the people to rise in their defense, and call for assistance. When the subjects of any government have carried their revolt so far as to have established a new state, and to give reasonable evidence of their ability to maintain a government, the right of assistance is unquestionable. But it is not clear that, prior to this state of progress in a revolution, the right to interpose would be justifiable.

Sec.7. There is a sense, however, in which nations are not wholly independent. Mankind in the social state, as we have seen, are dependent upon each other for assistance. (Chap. I, Sec.2.) Such is, in a measure, the mutual dependence of nations. Although the people of every nation have within themselves the means of maintaining their individual and national existence, their prosperity and happiness are greatly promoted by commerce with other nations. And as laws are necessary to govern the conduct of the individual citizens of a state, so certain rules are necessary to regulate the intercourse of nations.

Sec.8. It has been observed, also, that the law of nature is a perfect rule for all moral and social beings, and ought to be universally obeyed. Equally binding is this law upon nations. It requires each nation to respect the rights of all others, and to do for them what their necessities demand, and what it is capable of doing, consistently with the duties it owes to itself. And the general good of mankind is as really promoted by the application of this law to the affairs of nations, as by its application to the affairs of individuals.

Sec.9. The law of nature applied to nations or states as moral persons, is called the natural law of nations. It is also called the necessary law of nations, because nations are morally bound to observe it; and sometimes the internal law of nations, from its being binding on the conscience.

Sec.10. Although the law of nature, as expressed in the law of revelation, is a correct rule of human conduct; yet, as much of this law consists of general principles from which particular duties can not always be deduced, positive human enactments are necessary to define the law of nature and revelation. So an important part of the law of nations necessarily consists of positive institutions. Hence some writers have divided international law under these two principal heads: the natural law of nations, and the positive.

Sec.11. The positive law of nations is founded on usage or custom and agreement, and may be considered as properly divided into the customary law of nations, and the conventional. The customary law of nations consists of certain maxims, or is founded on customs and usages which have been long observed and tacitly consented to by nations, and have thereby become binding upon all who have adopted them, so far as their observance does not require a violation of the law of nature.

Sec.12. A conventional law of nations is one that has been established by a treaty or league. The word convention usually signifies an assembly of persons met for some benevolent, political, or ecclesiastical purpose. It also signifies a treaty, or agreement between nations; and such agreement or contract, though made without a formal meeting, is deemed conventional.

Sec.13. As the law of nature is liable to misconstruction, and as the law of usage or custom is vague and uncertain, conventional law, because more definite, has been found to afford greater security to the rights of commerce. Hence the practice, now so common among nations, of regulating their intercourse by negotiation. By treaties, the rights of the contracting parties are placed beyond dispute.

Sec.14. But it may be said, if each nation is independent of every other, and if there is no constituted authority to enforce the fulfillment of treaty stipulations, the rights guarantied by treaties are still insecure. But few governments are so devoid of a sense of honor as, by a palpable violation of treaty obligations, to incur the odium and condemnation of all mankind. Self-respect and the fear of provoking a war, have generally proved sufficient incentives to the observance of treaties.

Sec.15. The obligations of nations are sometimes called imperfect. A perfect obligation is one that can be enforced—one that exists where there is a right to compel the party on whom the obligation rests to fulfill it. An imperfect obligation gives only the right to demand the fulfillment, leaving the party pledged to judge what his duty requires, and to do as he chooses, without being constrained by another to do otherwise.



Chapter LXIV.

The Jurisdiction of Nations; their mutual Rights and Obligations; the Rights of Embassadors, Ministers, &c.



Sec.1. The seas are regarded as the common highway of nations. The main ocean, for navigation and fishing, is open to all mankind. Every state, however, has jurisdiction at sea over its own subjects in its own public and private vessels. The persons on board such vessels are protected and governed by the laws of the country to which they belong, and may be punished by these laws for offenses committed on board of its public vessels in foreign ports.

Sec.2. The question how far a nation has jurisdiction over the seas adjoining its lands, is not clearly settled. It appears to be generally conceded, that a nation has a right of exclusive dominion over navigable rivers flowing through its territory; the harbors, bays, gulfs, and arms of the sea; and such extent of sea adjoining its territories as is necessary to the safety of the nation, which is considered by some to be as far as a cannon shot will reach, or about a marine league.

Sec.3. It is the duty of a nation in time of peace, to allow the people of other states a passage over its lands and waters, so far as it can be permitted without inconvenience, and with safety to its own citizens. Of this the nation is to be its own judge. The right of passage is only an imperfect right, because the obligation to grant the right is an imperfect obligation. (Chap. LXIII, Sec.15.)

Sec.4. In general, it is the duty of a nation to allow foreigners to enter and settle in the country. On being admitted into a state, the state becomes pledged for their protection, and they become subject to its laws; and in consideration of the protection they receive, they are obliged to aid in defending it, and in supporting its government, even before they are admitted to all the rights of citizens.

Sec.5. But no state is bound to shelter criminals fleeing into it from a foreign state. They can be tried only in the state whose laws they have violated. It is therefore the duty of the government to surrender a fugitive on demand of the proper authorities of the state from which he fled, if, after due examination by a civil magistrate, there shall appear sufficient grounds for the charge. The surrender of criminals is sometimes provided for in treaties.

Sec.6. The rule which makes foreigners amenable to the laws of the state in which they remove, does not apply to embassadors. They are not responsible to the laws of the country to which they are sent, even when guilty of crime. When their conduct is dangerous to the government and its citizens, all that can be done is, either to deprive them of liberty by confinement, or to send them home and demand their punishment. As every nation has a right to treat and communicate with all others, it ought not to be deprived of the services of its representative. Hence, the persons and property of all public ministers are held sacred and inviolable.

Sec.7. Embassadors are entitled to the same protection in the countries through which they pass in going to, and returning from the government to which they are sent. And to insure them a safe passage, some governments have given them passports to be shown if required. A passport is a written license from the authority of a state granting permission or safe conduct for one to pass through its territory. Passports, though named in our law, are not known in practice, being deemed unnecessary.

Sec.8. If a minister at a foreign court treats the sovereign with disrespect, the fact is sometimes communicated to the government that sent him, with a request for his recall. Or, if the offense is a more serious one, the offended sovereign refuses intercourse with him while his master's answer is awaited. Or, if the case is an aggravated one, he expels him from the country.

Sec.9. Ministers at foreign governments, in their negotiations or business correspondence with those governments, sometimes consider themselves ill treated, and their own nation dishonored, and take their leave and return home; or the minister informs his sovereign, who either recalls him, or takes such other measure as he thinks the honor and interest of his nation demand.

Sec.10. The peculiar condition of a country, the nature of the business upon which an embassador is sent, or the personal character of the embassador, may be such as to justify a government in refusing to receive him. But to preserve the friendly relations of the two countries, satisfactory explanations ought to be made, or good reasons offered for the refusal.

Sec.11. A minister can not bind his sovereign to any treaty or agreement, conclusively, under the authority of an ordinary credential, or letter of attorney. He can not do so without a special power, containing express authority so to bind his principal. Ministers act under secret instructions which they are not bound to disclose. Even the treaties signed by plenipotentiaries, (a word signifying full power,) are, according to present usage, of no force, until ratified by their governments.

Sec.12. Consuls are not entitled to the privilege enjoyed by ministers, but are subject to the laws of the country in which they reside. Their principal duties have been described. (Chap. XL, Sec.9.) The office of consul has been found to be one of great utility; hence, every trading nation has a consul in every considerable commercial port in the world. As in the case of ministers, consuls carry a certificate of their appointment, and must be acknowledged as consuls by the government of the country in which they reside, before they can perform any duties pertaining to their office.



Chapter LXV.

Offensive and Defensive War; just Causes and Objects of War; Reprisals; Alliances in War.



Sec.1. Wars are offensive and defensive. The use of force to obtain justice for injuries done, is offensive war. The making use of force against any power that attacks a nation or its privileges, is defensive war. A war may be defensive in its principles, though offensive in its operation. For example: one nation is preparing to invade another; but before the threatened invasion takes place, the latter attacks the former as the best mode of repelling the invasion. In this case, the party making the attack acts on the defensive. (Sec.10.) The contending parties are called belligerents. The word belligerent is from the Latin bellum, war, and gero, to wage or carry on. Nations that take no part in the contest, are called neutrals.

Sec.2. War ought never to be undertaken without the most cogent reasons. In the first place, there must be a right to make war, and just grounds for making it. Nations have no right to employ force any further than is necessary for their own defense, and for the maintenance of their rights. Secondly, it should be made from proper motives, the good of the state, and the safety and common advantage of the citizens. Hence, there may be, according to the law of nations, just cause of war, when it would be inexpedient to involve the nation in such a calamity.