injured by said trade-mark may file complaint with the Commissioner of
Patents, and if the latter determines that there is an infringement,
or that someone has a prior right to the trade-mark, the registration
may be cancelled. Notice of registration of a trade-mark is given the
public by publishing the words, _Registered U. S. Patent Office_, with
the trade-mark.
Most of the states have statutes making it a crime falsely to use the
trade-mark or brand of another company. The use of labels by trade
unions is protected in this manner in several states.
WILLS
=348. Will Defined.= A will has been defined to be a "disposition
of real property to take effect after the death of the testator."
Originally, the term _will_ applied only to dispositions of real
property, and the term _testament_ applied to dispositions of personal
property. At present, the terms _will_ and _testament_ are not
uncommonly used. But the original limitation of the term, _will_, is no
longer commonly recognized. The term, _will_, is now used to describe a
disposition of personal as well as real property to take effect at the
maker's death.
=349. Names of Parties and Terms Commonly Used in a Will.= The person
who makes a will is called the _testator_ or _devisor_. The term
_testator_ is more commonly used than the term _devisor_ to designate
the maker of a will. The term _devise_ is used to designate the giving
of real property. If _A_ desires to give a farm to _B_ by will,
the language used in the will is, "I, _A_, devise to _B_ my farm."
Technically, the term _devise_ means the giving by will of real estate,
but it is commonly used to designate the giving by will of personal
property as well. The term _bequeath_ is used to designate the giving
of personal property by will. If _A_ desires to give by will a watch
to _B_, he uses the language, "I, _A_ bequeath to _B_ my watch." The
beneficiary, or person designated in the will to receive real property,
is called the _legatee_.
=350. Origin and Nature of Wills.= At common law, a person was
permitted to give by will a portion of his personal property. He was
not permitted to give real property by will. In England, the right
to give real property by will was given by statute. The law of this
country has always recognized the right to give real as well as
personal property by will. It is not regarded as a right but rather
as a privilege extended to an owner of property. This privilege is
controlled by the legislatures of the states.
The states differ in their statutory requirements as to the manner of
making wills, and the amount of property that may be willed to the
exclusion of the wife and family. A will must be signed, acknowledged,
and witnessed as required by statute, and may be rendered void if the
statutory requirements are changed between the time the will is made
and the death of the testator. A will is not a contract. The right
to make contracts cannot be abridged by legislation. This right is
a constitutional right. The constitution gives an owner of property
no right to make a will. It is a privilege which may be abridged or
taken away by the legislature. Most of the states give a wife a dower
interest in the real estate of her husband. (See _Dower Estate_,
chapter on Real Property.) A husband cannot will away his estate,
depriving his wife of dower.
=351. Law Governing Wills When Testator Owns Property in One State
and Resides in Another at Time of Death.= Real property is fixed and
immovable. No matter where a testator resides at the time of his death,
the law of the state where the real property is located governs the
will relative to its disposition. If the will does not comply with the
law of the state where the real property is located, the general rule
is that the will cannot be enforced, even though the will is valid
under the law of the state where the testator resides at the time of
his death. For example, if _A_ owns real property in Cleveland, Ohio,
but resides in Omaha, Nebraska, _A_ may make a valid will under the
law of Nebraska which may not comply with the Ohio law. If _A_ dies,
the provisions of the will cannot be enforced as to the real property
in Cleveland. Personal property, on the other hand, is movable and
is supposed to follow the residence of its owner. If a will is valid
where the testator resides at the time of his death it is valid to
pass personal property, regardless of where the personal property is
located. Some states at present provide by statute that if a will is
valid where the testator resided at the time of his death, it is valid
to pass real property, no matter where located.
=352. Essentials of a Will.= Primarily, a will is an instrument in
which a person expresses his intention to give his property to certain
designated persons, to take effect upon his death. Any instrument,
no matter whether it be termed a will, containing an expression of
intention to have property pass to another at the death of the maker,
satisfies the requirement.
To constitute a will, there must be no present interest in the property
passing absolutely to the beneficiaries named in the instrument at
the time the written instrument is made. A person may make a gift, a
bill of sale, or a deed of property if he chooses. The title to the
property passes to the purchaser or donee at once or at some future
stipulated time. Such transactions are not wills. A will does not take
effect until the death of the testator. It may be revoked, changed, or
supplanted at the will of the testator. Any instrument that conveys
a present interest is not a will. The two most essential things in
determining whether an instrument constitutes a will are, first, the
power to revoke the instrument, or a stipulation or language used
showing that the instrument is not to take effect until the testator's
death; and second, the expression of an intention of the testator to
make a will. Certain formal requisites as to signature and witnessing
are required by statute in different states. These requirements are
discussed under separate sections.
=353. Who May Make a Will.= By statute in most states, anyone of
legal age, of sound and disposing mind and memory may make a will. At
common law, when a woman married, her property became her husband's.
A married woman could not make a will. At present, by statute, most
states provide that married women may contract concerning their
separate estates. They are also permitted to make wills. A person must
be of legal age to make a will. What constitutes legal age is fixed
by statute in the different states. All provide that twenty-one years
is the legal age for males. Some fix the legal age for females at
eighteen, others at twenty-one.
What constitutes sound and disposing mind and memory is a matter
of some dispute. It is conceded that idiots, imbeciles, and insane
persons, while insane, cannot make wills. The mental capacity required
of a person to enable him to make a will is usually stated to be that
mental capacity which enables a person to describe his property, to
name the natural objects of his bounty, and to understand the nature
of a will. A person does not have to be in good health to make a will.
He does not have to be mentally sound within the ordinary meaning of
the term. He may be very ill, and weak both in mind and body. He may
be eccentric, may have been insane, may be subject to illusions, or
even may be under guardianship for insanity and still be able to make
a will. If he is able without assistance from others to describe his
property, to understand in general the nature and effect of making
a will, and to name the persons who are the natural objects of his
bounty, he is capable of making a will. If his mind is not sufficient
to perform all of these functions he is not capable of making a will.
To constitute an instrument a valid will, it is not necessary that the
instrument show in itself that the testator had all these powers. He
may not name all, or any of the natural objects of his bounty in the
will. He may not describe all of his property. If he was capable of
doing these things at the time he made the will, regardless of whether
or not he exercised this capacity, the will is valid.
If a testator makes a will under such mental pressure or threat of
violence that he does not act according to his wishes, the will may be
avoided by reason of undue influence or duress. Undue influence may be
exerted by anyone, but not necessarily by a beneficiary under the will.
All solicitations or remarks or supplications to the testator to make
a particular provision in a will do not constitute undue influence.
The influence must be of a sort to compel the testator to act against
his wishes, and to destroy his ability to act through his own mental
agency.
=354. What May be Disposed of by Will.= Any property owned by the
testator, whether real or personal, may be disposed of by will.
Property cannot be freed from liens or incumbrances by will. If _A_
owns a farm, but _B_ has a mortgage on it, _A_ can dispose of his
interest by will, _B_ retaining his interest in the mortgage as against
the devisee. A husband cannot cut off his wife's dower estate by will.
A person may dispose of all his real and personal property by will. A
will covering all the real and personal property of the testator will
pass the real and personal property acquired by the testator after he
made the will.
=355. Requisites of a Will as to Form.= Ordinarily, a will must be in
writing. In some jurisdictions, and under certain circumstances, oral
wills are recognized as sufficient to pass certain property. These
oral wills are called _nuncupative_ wills. They are discussed under a
separate section. A will may be written on any kind of material, and in
any language. It may be printed, written on a typewriter, written in
the testator's own handwriting or by another. It may be written on one
or several pieces of paper. The pieces need not be fastened together if
their contents show their connection. Another instrument not set forth
in the will may be incorporated into the will by reference, if the
instrument can readily be identified, and was in existence at the time
the will was made. A will must be signed.
The statutes of most states require that a will be signed by the
testator, or by some one authorized to sign for him. A person not able
to write may sign by mark. A person usually signs by mark as follows:
his
John _X_ Smith.
mark
Any mark made by the testator is sufficient. Most states require by
statute that wills must be signed in the presence of two or three
witnesses. These witnesses must be competent to understand the nature
of the transaction. They need not necessarily be of legal age. They
must affix their signatures as witnesses to the will. A beneficiary
under the will should not be a witness. The witnesses of a will are
required to observe the competency of the testator and his signature,
in order that they may testify to these facts when the will is proven.
The statutes of most states make it sufficient for the testator to
acknowledge his signature in the presence of the witnesses. In this
event, they need not see him sign his name to the will. The witnesses
are usually required to sign the will in the presence of the testator,
and in the presence of each other.
=356. Publication of a Will.= Some states provide by statute that
to constitute a written instrument a valid will, the testator must
acknowledge it to be a will at the time it is signed and witnessed.
This act is known as _publication_. Some states do not have such
a statutory provision. In the absence of statutory provisions,
publication is not necessary. It is not necessary that the testator
read or cause the will to be read to the witnesses to comply with the
statutory requirements of publication. The witnesses must know that
they are witnessing a will. Any word, expression or act on the part of
the testator which notifies the witnesses that they are witnessing a
will is a sufficient publication.
_A_ requested _B_ and _C_ to visit his house in the evening and witness
his will. They went to _A's_ house, where _A_ presented a document
to them, which he signed in their presence, and which they signed as
witnesses. _A_ did not acknowledge that the instrument was a will. The
court held this to be a sufficient publication. _B_ and _C_ had been
informed that the instrument was _A's_ will.
=357. Contract to Make a Will.= A person may enter into a contract
to make a will which will bind his estate. The party with whom such
a contract is made cannot force the other party to make a will, or
prevent him from revoking a will if made, but he can bring an action
for damages against such party's estate if the latter dies without
leaving a will according to his agreement. A will can be revoked at the
desire of the testator. Revocability is one of the essential features
of a will. A party may bind himself by contract to make a will in favor
of a certain person. This contract does not prevent such person from
revoking the will if made, but it renders the person's estate liable
for breach of contract. _A_, a boy of twenty-one years of age, was told
by his father, _B_, that if he would continue to work for him until he
was thirty-five years of age, he would will him a certain farm, _A_
agreed to this proposition, and worked for his father until he was
thirty-five years of age. _B_ subsequently died, leaving a will by
which the farm was given to another son. _A_ was permitted to recover
the value of the farm by suit.
These contracts require clear and convincing evidence to support
recovery. _A_ agreed to board, clothe, care for, and bury _B_, his
father, in consideration of _B's_ agreement to give _A_ all his
property. _A_ fulfilled the terms of his contract. _B_ died leaving
a will by which his property was given to _C_. _A_ was permitted to
recover the value of the property by suit.
=358. Holographic Wills.= A _holographic_ will is one written entirely
in the handwriting of the testator. Such wills are sometimes called
_olographic_ wills. A minority of the states of this country recognize
the validity of holographic wills. These wills need not be witnessed to
be valid. An ordinary will may be printed, typewritten, or written by
a person other than the testator. The testator must sign and publish
the will, that is, he must acknowledge the instrument to be a will, in
the presence of the attesting witnesses. In case of a holographic will,
there need be no witnesses, acknowledgment, or publication, but the
will must be entirely in the handwriting of the testator, and must be
signed and dated by the testator himself.
In some jurisdictions, it is necessary that a holographic will be found
among the testator's valuable papers, to constitute a valid will. _A_
died and the following document was found among his valuable papers:
$100,000.00
Four years after my death, I hereby authorize my executors to pay
Francis Penn one hundred thousand dollars.
Signed _A_.
This was held to be a valid holographic will. A holographic will is
frequently in the form of a letter addressed to the beneficiary.
=359. Nuncupative Wills.= Many of the states of this country recognize
the validity of oral wills made under certain circumstances for the
purpose of disposing of personal property. Such wills are called
_nuncupative_ wills. Soldiers and sailors while in actual service may
dispose of their personal property by this form of will.
Persons other than soldiers and sailors may make nuncupative wills
when in their last sickness or in danger of impending death. The will
is made by calling upon disinterested persons to bear witness to the
will which the testator describes orally. These words, in substance
at least, must be reduced to writing, usually within ten days from
the death of the testator, by one of the witnesses, and signed by the
witnesses. Nuncupative wills are not favored in law. They are not
sufficient to dispose of real property. Some states do not recognize
the validity of these wills unless they are made at the testator's
dwelling. An exception to this rule is where the testator, surprised by
sickness when upon a journey, dies while away from home. Nuncupative
wills must be proven within six months after they are reduced to
writing. _A_ was suddenly taken seriously ill at his home. He called
upon _B_ and _C_, disinterested witnesses, to bear witness to his will,
and directed that his personal property be given to his wife _D_. _A_
died, _B_ reduced the words of _A_ to writing within ten days after
_A's_ death, and _C_ and _B_ signed as witnesses. The will was proven
within six months. It was held to be a valid nuncupative will.
=360. Revocation and Alteration of Wills.= A will may be revoked at any
time before the testator's death. The testator may himself revoke his
will, or he may cause someone to perform some act under his direction
and in his presence, which will revoke the will. The statutes of most
states provide that a person may revoke a will by tearing, cancelling,
obliterating, or destroying the will with the intention of revoking
it. Any of these acts performed by a stranger, not in the presence nor
under the direction of the testator, are void acts, and do not destroy
the validity of the will. If the testator himself, tears, cancels,
destroys, or obliterates the will with the intention of revoking the
will, the instrument no longer has any validity or force as a will.
A will is cancelled by drawing lines with a pen or pencil across
the written portion of the will. A will may be revoked by a later
will which expressly revokes the former, or which disposes of all
the property of the testator. A later will which does not expressly
revoke a former will, and which does not dispose of all the testator's
property does not revoke the former will, but both are construed
together. A _codicil_ is an instrument altering, revoking, changing,
or adding to certain portions of a will. It must, itself, be signed,
witnessed and acknowledged the same as a will, and is construed as part
of the will.
=361. Lost Wills.= A will which is lost or destroyed with no intention
to revoke may be proven as a will after the testator's death. If a
will is partially or totally destroyed by accident, or by someone who
is to profit by the total or partial destruction, the will is said to
be _spoliated_, and its contents, as it existed before spoliation,
may be proven after the testator's death. It must be remembered that
a will may be revoked by a testator at any time. If a testator makes
a will, and has it in his possession, and after his death the will
cannot be found, the presumption is that he revoked the will. This
presumption may be rebutted, however. If the testator tells of having a
will shortly before his death, or if the will is seen, or any evidence
is produced that the will was not revoked by the testator, it may be
proven as a lost will. If a will is made and left for safe-keeping
with a third person, inability to find it after the testator's death
raises no presumption that is was revoked by the testator. To prove a
lost will as a will, witnesses must be produced who know in substance
the contents of the will, that it was made and that it was not revoked
by the testator. If a will is partially destroyed by someone who is
to benefit thereby, or by accident, the contents of the portion so
destroyed may be proven as a lost will.
=362. Abatement, Advancement, and Ademption.= If a person does not
have sufficient property at his death to pay the bequests and devises
made in his will after payment of his debts, his devises and bequests
are paid _pro rata_ out of the estate remaining after the payment of
debts and expenses, unless the testator expressed a wish or intention
that certain bequests or devises were to be satisfied in preference to
others. In this event, the wishes of the testator must be observed.
The rule requiring all devisees and legatees to receive but a portion
of the property mentioned in the will, in case there is not sufficient
property to satisfy all, is called _abatement_.
If a person makes a will bequeathing a certain article of personal
property, or a certain amount of money to another, and if, before
the will becomes operative by the death of the devisor, the latter
delivers the article or pays the money to the legatee, or sells or
disposes of the particular article mentioned in the bequest, the will
is said to be _adeemed_, and the act by which it is adeemed is called
_ademption_. In case of ademption of a particular article, the bequest
is satisfied. In case a certain sum of money is bequeathed to a person
by will, and the amount of money is given the legatee by the devisor,
whether it satisfies the bequest, or whether it is a gift in addition
to the bequest mentioned in the will, is a matter of intention on the
part of the devisor. If the devisor expressly says it is a gift in
addition to the bequest mentioned in the will, it will not satisfy the
bequest mentioned in the will. If nothing is said which expressly
shows the wish or intent of the devisor, the presumption is, that it is
to apply on the bequest, or if sufficient in amount, that it satisfies
the bequest. The intent of the testator may be determined by the
circumstances connected with the payment. If a sum of money is paid by
a testator during his lifetime to a legatee mentioned in his will, to
apply on the bequest, the payment is sometimes called an _advancement_.
=363. Form of Will.=
I, John Brown, of the City of Chicago, County of Cook, and State of
Illinois, being about 61 years of age, and of sound and disposing mind
and memory, do make and publish this my last will and testament.
_First_, I desire that all my debts and the expenses connected with my
funeral be paid.
_Second_, I give, devise and bequeath to my wife, Jane Brown, the sum
of $10,000.00, all the household furniture and chattel property of
every kind and nature used in and in connection with our residence,
and a life estate in my two farms.
_Third_, I give and devise to my two sons, John Brown, Jr., and Clark
Brown, jointly, my farm known as the "Home Place." This devise is
subject to the life estate of my wife mentioned in division two of my
will.
_Fourth_, I give and devise to my daughter, Anna Brown, my farm known
as the "North Place," during her life, and at her death to her lawful
issue. This devise is subject to the life estate of my wife, provided
for in division two of this will.
_Fifth_, the balance of my personal property I give and bequeath to
Smith Home for Aged Men, of Chicago.
I appoint my son, John Brown, Jr., executor of this will, and revoke
all former wills. In witness whereof, I have subscribed my name this
10th day of September, 1909.
JOHN BROWN.
The foregoing instrument was signed by the said John Brown in our
presence, and by him published, and declared to be his last will and
testament, and at his request, and in our presence and in the presence
of each other, we subscribed our names as attesting witnesses at
Chicago, Illinois, this 10th day of September, 1909.
THOMAS JONES, Residing at 21 State St.,
JAMES JOHNSON, Residing at 4704 Drexel Ave.,
Chicago, Ill.
COURTS AND LEGAL REMEDIES
=364. Courts.= Courts may be defined to be the institutions established
by the government to settle disputes and to administer justice. They
may consist of a judge sitting alone, of several judges sitting
together, or of a judge and a jury. Courts are assisted in their
work by bailiffs and clerks. Attorneys who conduct the trials for the
opposing parties are officers of the court. They can be fined and
imprisoned for refusing to obey the lawful order of the court. In
general, courts may be divided into state courts and federal or United
States courts.
=365. Federal Courts.= The Constitution of the United States provides
that:
"The judicial powers of the United States shall be vested in one
supreme court, and in such inferior courts as the Congress may from
time to time ordain and establish. The judges both of the supreme and
inferior courts shall hold their offices during good behavior, and
shall at stated times receive for their services a compensation, which
shall not be diminished during their term of office."
The United States Constitution further provides that:
"The judicial power shall extend to all cases in law and equity
arising under the constitution, the laws of the United States, the
treaties made, or which shall be made, under their authority; to all
cases affecting ambassadors, other public ministers and consuls; to
all cases of admiralty and maritime jurisdiction; to controversies to
which the United States shall be a party; to controversies between two
or more states, between a state and citizens of another state, between
citizens of different states, between citizens of the same state
claiming land under grants of different states, and between a state
and the citizens thereof, and foreign states, citizens or subjects."
Congress has provided for District Courts, Circuit Courts, and Circuit
Courts of Appeal, which, in addition to the Supreme Court, constitute
the Federal or United States Courts.
=366. United States District Courts.= The United States as a whole is
divided into districts. Each district is presided over by one United
States judge, called a district judge. Each state constitutes at least
one district and some states are divided into several districts. For
example, Ohio has two districts, called the Northern and Southern
Districts of Ohio. New York has four districts, called the Northern,
Southern, Eastern, and Western Districts. The judges are appointed
for life, or during good behavior. The appointments are made by the
President of the United States, by, and with the advice and consent of
the senate. Each district judge is required to reside in the district
for which he is appointed.
=367. United States Circuit Courts.= The entire territory of the United
States is divided into nine sections, and each section comprises the
jurisdiction of a separate United States Court. That is, there are
nine Circuit Courts in the United States. Each circuit is composed of
several districts. For example, the sixth circuit is composed of the
states of Ohio, Kentucky, Michigan, and Tennessee. Each circuit has at
least two circuit judges, and is presided over by one of the judges
of the Supreme Court of the United States. The Circuit Court holds
court in each district of the circuit, and the Circuit Court of each
district is composed of the United States Supreme Court judge presiding
over the circuit, the two circuit judges, and the district judge of
the district. The Circuit Court holds court at different times in each
district of the circuit. Any one judge may hold court alone. Usually,
trials in Circuit Courts are presided over by one judge.
The United States Circuit Court and the United States District Courts
have original and exclusive jurisdiction of practically all the cases
which may be brought in the United States Courts. The United States
Supreme Court has original jurisdiction of a few important classes of
cases. By _original jurisdiction_ is meant the right to commence cases
in the particular court. By _appellate jurisdiction_ is meant the right
to take a case from one court to a higher court upon appeal or writ
of error, for the purpose of having the case retried or examined for
errors of law.
=368. United States Circuit Court of Appeals.= Each of the circuits in
the United States has a Circuit Court of Appeals. This court consists
of one member of the United States Supreme Court, who acts as presiding
judge, and the two circuit judges of the circuit. At least two judges
must be present to hold court. If two of the regular circuit judges
are not present, a district judge of any district of the circuit may
act. A district judge cannot sit as judge of the Court of Appeals in
determining cases in the trial of which he acted as district judge. The
Circuit Court of Appeals has no original jurisdiction. It is solely
an appellate court. Cases from the District and Circuit Courts may be
appealed to it, and brought before it on writs of error. Some cases may
be appealed direct to the Supreme Court of the United States from the
District and Circuit Courts. The Circuit Court of Appeals has final
jurisdiction in many matters appealed to it.
=369. The Supreme Court of the United States.= The Supreme Court of the
United States holds court at Washington, and consists of nine judges.
It has original jurisdiction in some important matters, and cases may
be appealed to it, or tried on writs of error from the District Court,
Circuit Court, and Circuit Court of Appeals. The Constitution of the
United States provides that, "In all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be a
party, the Supreme Court shall have original jurisdiction."
=370. United States Courts with Admiralty Jurisdiction.= The
Constitution of the United States provides that the United States
Courts shall have jurisdiction over admiralty and maritime cases.
Admiralty cases comprise those cases arising out of breach of contract,
or out of injuries occurring upon the seas or navigable waters within
the jurisdiction of the United States. The District Courts of the
United States are given original jurisdiction in admiralty cases. In
the trial of admiralty cases, the judge acts alone and is not assisted
by a jury.
=371. State Courts.= The United States Constitution provides that,
"The powers not delegated to the United States by the Constitution nor
prohibited by it to the states, are reserved to the states respectively
or to the people." Thus, the provision of the United States
Constitution, authorizing the creation of federal courts does not
prevent the states from establishing and maintaining courts. Each state
has its own courts. In fact the bulk of litigation is tried by state
courts. The courts of the different states differ somewhat in name and
jurisdiction. Most of the states have a court of inferior jurisdiction
where small cases involving $300.00 or less, are tried, and a County
Court where cases involving more than $300.00 are tried, and to which
cases may be appealed from the inferior courts. The inferior court
is usually called a Magistrate Court, or a court of a Justice of the
Peace. All states have a court of last resort, usually called a Supreme
Court. The primary function of state Supreme Courts is to hear appealed
cases and cases brought to it upon writs of error. They have very
little original jurisdiction. Supreme Courts consist of judges only.
They have no juries.
Some states have an Appellate Court inferior to the Supreme Court,
which has jurisdiction to hear cases on appeal and error. The states
also have courts for the administration of estates, called Probate,
Surrogate, or Orphans' Courts.
=372. Courts of Equity.= Originally in England, the king was regarded
as having original right to administer justice. It became the custom
to appeal to the king in cases where the common law rules afforded
no remedy. Later, appeals were made to the chancellor, the king's
secretary. Cases were also referred by the king to the chancellor. In
time, a distinct court, governed by well established precedents and
rules, was established. These courts were called the Courts of Chancery
or Courts of Equity. Their jurisdiction covered only those cases not
covered by Courts of Law. Chancery courts consisted of a judge only,
or a number of judges who heard and determined cases without the
assistance of a jury. Courts of Equity are recognized in this country,
but few states have separate courts of Equity or Chancery. The same
judge is authorized to act as a Court of Law and a Court of Equity.
Equity has jurisdiction of those cases only, in which there is no
adequate remedy at law.
If _A_ makes a contract with _B_ by which he purchases a certain
desirable house and lot and _B_ refuses to make the transfer, and
if the house and lot are of such a character that _A_ cannot obtain
another which suits his purpose and fancy, _B_ may be compelled by a
Court of Equity to transfer the lot to _A_. A Court of Law would give
_A_ money damages for breach of contract, but would not compel _B_
specifically to perform the contract. The United States, as well as the
states, has Courts of Equity.
=373. Legal Actions and Their Enforcement.= Legal actions may be said
to be of three kinds, those arising out of contract, those arising
out of torts, and those arising out of crimes. Crimes are punishable
by fine, imprisonment, or death. The state, through its officers,
punishes criminals. In theory, a crime is a wrong committed against the
community. The community, that is, the state, through its officers,
convicts and punishes persons who have committed crimes. The person
who is injured personally, or whose property is injured, has an action
for damages against the party committing the wrong. This action is
independent of the crime. The same act may render a person liable to
punishment for committing a crime, and liable to an action for damages
to the injured party. If a person wrongfully strikes another and
injures him, the state may punish the guilty party for committing a
crime, and the injured person may sue him for damages.
Legal actions arising out of injuries to persons and property as
distinguished from crimes are called _civil_ actions. Civil actions
arise out of breach of contract, or out of torts. If a person fails
to pay a promissory note, or to perform any contract, a legal action
arises out of contract. If a person slanders another, or wrongfully
strikes him, a legal action arises out of tort. Legal actions are
enforced by the injured or complaining party filing a complaint in
court. The party against whom the complaint is filed is notified of the
suit by an officer of the court. This notice is called the _summons_.
The written complaint is usually called the _petition_. The complaining
party is usually called the _plaintiff_. The party against whom the
petition or complaint is filed is called the _defendant_. The defendant
is allowed a certain time in which to file a statement of his defense.
This written statement of the defendant in which he sets forth his side
of the case is called an _answer_. These written statements are called
the _pleadings in the case_. The parties then appear in court with
their witnesses and the case is heard. The judge determines questions
of law, and the jury determines questions of fact. The decision of the
jury is called the _verdict_. The twelve jurymen must agree to enable
them to render a verdict. If they disagree, a new trial with another
jury is held. The judge may set aside a verdict, and grant a new trial
if the verdict is irregular, or contrary to law. When a judgment
has been rendered, execution may be levied upon the property of the
defeated party for the amount of the judgment and costs. Execution
is levied by the sheriff, who seizes and sells the property of the
defeated party, sufficient to satisfy the judgment.
QUIZ QUESTIONS
MORTGAGES
1. What was the nature of a mortgage at _common law_?
2. At common law who had the possession of real property mortgaged?
3. Is a mortgage a contract?
4. What names are applied to the parties to a mortgage?
5. At present who is entitled to possession of mortgaged real estate?
6. Under what circumstances, if any, may a deed be construed to be a
mortgage?
7. What is the ordinary consideration to a mortgage contract?
8. May a mortgage be given to secure a future indebtedness?
9. What is meant by the _debt secured by a mortgage_?
10. Is an oral mortgage of real estate enforceable?
11. Distinguish a _mortgage_ and a _deed_.
12. If a mortgagor stipulates in the mortgage that he waives his equity
of redemption can this stipulation be enforced against him?
13. What is meant by _power of sale mortgage_?
14. Explain attestation of a mortgage.
15. Explain acknowledgment of a mortgage.
16. When does a mortgage become effective?
17. Define _delivery in escrow_.
18. What interest in real estate may be mortgaged?
19. Is a mortgage of real estate regarded as a transfer of the real
estate?
20. Explain _recording mortgages_.
21. What is the necessity of recording mortgages?
22. May a mortgagee transfer title to the real estate?
23. What interest in the real estate mortgaged can a mortgagee transfer?
24. If a mortgagee sells the debt what becomes of the mortgage?
25. How may mortgages be satisfied?
26. Define and explain _equity of redemption_.
27. Define and explain _foreclosure of mortgages_.
TRUSTS
1. Define _trusts of property_.
2. Classify trusts.
3. Define _grantor of a trust_.
4. Define and give an example of _settlor of a trust_.
5. Define and give an example of a _trustee of a trust_.
6. Define and distinguish _beneficiary of a trust_, and _cestui que
trust_.
7. What classes of persons may be parties to a trust?
8. What kinds of property may be the subject of a trust?
9. Define and give an example of an _express trust_.
10. Define and give an example of an _implied trust_.
11. Define and give an example of a _resulting trust_.
12. Define and give an example of a _constructive trust_.
13. Who has the legal title to trust property?
14. Is a person named in a declaration of trust as trustee, obliged to
accept the trust?
15. What are the duties and liabilities of a trustee?
16. May a beneficiary of a trust convey title to the trust property?
17. If a trustee wrongfully disposes of trust property what remedies,
if any, has the beneficiary?
LANDLORD AND TENANT
1. Define _lessor_ and _lessee_.
2. Distinguish _lease_ and _sale_.
3. Distinguish _lease_ and _assignment_.
4. Is a lease a contract?
5. Does a lease carry with it an implied warranty that the premises
described are in good condition?
6. _A_ rents _B's_ house for one year. _C_, a stranger, without right
attempts by legal action to evict _A_. Does _A_ have a right of
action against _B_ for breach of implied warranty of quiet
enjoyment?
7. For what purposes may a tenant use leased premises?
8. In the absence of express agreement what party to a lease is obliged
to pay taxes and insurance on the leased premises?
9. A lease provides that the tenant is to pay the taxes. A special
assessment for paving is levied. Is the tenant obliged to pay this
assessment?
10. Who is obliged to pay water rent in the absence of any special
agreement in a lease?
11. Who is obliged to pay for ordinary repairs?
12. At common law was a tenant relieved from paying rent by the
destruction by fire of the leased premises?
13. What is the rule at the present time as to release of a tenant's
obligation to pay rent in case the buildings leased are destroyed
by fire?
14. Is there an implied obligation on the part of the landlord to
deliver leased premises in any particular condition?
15. If a tenant is injured by reason of secret defects in the premises
is the landlord liable to him for the injury?
16. If snow and ice are permitted to accumulate on the walk of the
leased premises, causing injury to third persons, is the landlord
or tenant liable for the injury?
17. May a tenant become liable for rent without any express agreement
to that effect?
18. May a tenant be liable for rent without being in possession of the
leased premises?
19. _A_ rents _B's_ house, nothing being said about the condition of
the plumbing. The plumbing leaks. Is _A_ obliged to take the house?
20. If a tenant abandons the rented premises before expiration of the
term of the lease and so notifies the landlord, is he liable for
the balance of the rent?
21. In case a tenant abandons the rented premises, what three remedies
has the landlord?
22. Define _distress_.
23. At common law could a landlord sell personal property distrained?
24. What is the present-day method of distraining for rent?
25. Define _lease_.
26. Must a lease be in any particular form to be legal?
27. What leases, if any, must be in writing?
28. What is meant by attestation of a lease?
29. Define _acknowledgement_.
30. What is the necessity of acknowledgment of a lease?
31. What is the necessity of recording leases?
32. Define, and give an example of an _express covenant_.
33. Define, and give an example of _implied warranty_.
34. Is there any limitation upon a landlord's right to transfer his
interest in a lease?
35. Is there any limitation upon a tenant's right to transfer his
interest in a lease?
36. If _A_, a landlord, assigns his lease to _C_ without notifying _B_,
the tenant, and later the tenant pays _A_, who is insolvent, can
_C_ collect the rent from _B_?
37. Define _attornment_.
38. If a tenant assigns his lease is he relieved from his obligation to
pay rent?
39. Define, and give an example of a _lease for years_.
40. _A_ rents _B's_ house for one year, agreeing to pay rent in monthly
installments. Is the lease one for years, or from month to month?
41. Is a lease real or personal property?
42. What is the practical distinction between a lease for years and a
lease from month to month?
43. When, if at all, may a tenant sublet?
44. Distinguish _assignment_ and _sublease_.
45. If a tenant sublets the premises is he relieved of his obligation
to pay rent?
46. Define and give an example of an _estate at will_.
47. Distinguish an estate at will from an estate for years, and an
estate from year to year.
48. If a tenant for years is permitted to hold over his term with
consent of the landlord, in most jurisdictions is the new tenancy
one at will, or one from year to year?
49. Define, and give an example of a _tenancy at sufferance_.
50. Define and give an example of an _estate from year to year_.
51. _A_ leases a house for a month with the understanding that it is to
continue for similar periods if agreeable to both parties. Is the
lease from year to year?
52. _A_ rents _B's_ house for one year. At the expiration of the year
_A_ is permitted by _B_ to hold over for a month. _B_ then
endeavors to eject _A_. _A_ claims he has a lease for eleven more
months. Is _A_ correct in his assertion?
53. Is a lease from year to year terminated by mere lapse of time?
54. Does breach of a condition or covenant, in the absence of an
express stipulation in the lease making it a forfeiture, constitute
a ground of forfeiture?
55. Do leases for years require any notice to terminate?
56. Do leases from year to year require any notice to terminate?
57. In general, in what manner must notice to terminate a lease be
given?
58. Define and give an example of a _surrender_.
59. Does abandonment of the premises by a tenant without consent of the
landlord, constitute a surrender?
60. If a tenant abandons the rented premises, may the landlord relet
for the account of the tenant?
61. Distinguish _breach of lease_ from _surrender of lease_.
62. If a landlord commits a breach of lease by failing to repair
according to agreement, what is the measure of the tenant's
damages?
63. If a tenant abandons the rented premises what are the landlord's
remedies?
64. If a tenant abandons rented premises, may a landlord permit the
premises to remain vacant, and collect rent from the tenant for the
balance of the term?
65. If a tenant abandons a lease and the landlord desires to relet for
the account of the tenant, must he notify the tenant that he takes
possession, and relets for that purpose?
66. How may a landlord recover rent?
67. How may a landlord recover possession of leased premises when the
lease has expired, or is broken?
TRADE MARKS AND TRADE NAMES
1. What is the purpose of trade marks?
2. May anything other than words, letters, or figures be used as a
trade mark?
3. May a word which describes the article on which it is used be used
as a trade mark?
4. May a name of an individual be used as a trade mark?
5. May a name of a place or locality be used as a trade mark?
6. If a person uses a mark without any intention of its becoming a
trade mark, does he acquire a valid trade mark therein?
7. _A_ has acquired a trade mark on flour; has he also acquired the
same trade mark on stoves manufactured by him?
8. If _A_ has acquired a trade mark on flour, can _A_ prevent _B_ from
using the same trade mark on stoves?
9. What length of time is required to obtain a valid trade mark?
10. _A_ used a trade mark on flour for two years, and ceased using it
for two years. In the meantime _B_ used the trade mark. To whom
does the trade mark belong?
11. What trade marks, if any, may be sold?
12. Define _trade name_.
13. What is the distinction between _trade marks_ and _trade names_?
14. May a person acquire a trade name in a name describing the article
manufactured?
15. How is a trade name acquired and how long must it be used to be
acquired?
16. May a person acquire a trade name in a geographical name?
17. What is meant by _unfair trade_?
18. Is it unlawful for a person to adopt as a trade name or trade
mark, a name or mark descriptive of the article manufactured, or a
geographical or a proper name?
19. _A_ used the name "Chicago Varnish Co.," for ten years, and
advertised the name extensively, spending large amounts of money in
this connection. _B_ adopts the name, "Chicago Varnish Co.," and
the public purchases his product thinking they are buying _A's_
product. Can _A_ prevent _B_ from using the name "Chicago Varnish
Co."?
20. Is everyone entitled to use his own name in the manufacture or sale
of any article he pleases?
21. Who may register trade marks, and when may they be registered?
22. Does registration of a mark constitute it a trade mark?
23. What is the advantage of registering a trade mark?
24. How may registered trade marks be transferred?
WILLS
1. Define _will_.
2. When does a will take effect?
3. Can both real and personal property be disposed of by wills?
4. Distinguish the terms _will_ and _testament_.
5. Define and distinguish the terms _testator_ and _devisor_.
6. Define the term _devise_.
7. Define the term _bequeath_.
8. Define and distinguish the terms _devisee_ and _legatee_.
9. What are the most common statutory requirements of a will?
10. Is a will a contract?
11. By the laws of what state is a will disposing of real property
governed?
12. By the laws of what state is a will disposing of personal property
governed?
13. May a will be in the form of a letter addressed to a beneficiary
named in the will?
14. In a will does any present interest in the property pass to the
beneficiaries at the time the will is made?
15. When, if at all, may a will be revoked?
16. May a person under legal age make a will?
17. Can a married woman make a will?
18. What test is applied in determining whether a person is mentally
capable of making a will?
19. What kinds of property may be disposed of by will?
20. Must a will be in writing?
21. May a will be printed?
22. Define and describe _signing_, _attesting_, and _acknowledging a
will_.
23. Define and describe _publication of a will_.
24. Give an example of a contract to make a will.
25. May a contract to make a will be revoked?
26. Define and give an example of _holographic will_.
27. What is the distinguishing feature between a holographic will and
an ordinary will?
28. Define and describe _nuncupative wills_.
29. May real property be disposed of by a nuncupative will?
30. When, and by whom must a nuncupative will be reduced to writing?
31. Must a nuncupative will be attested?
32. What is meant by _revocation of a will_, and by whom, when, and how
may a will be revoked?
33. Define and describe _alteration of a will_.
34. Define _codicil_.
35. When, and how, may a lost will be proven?
36. Define and give an example of _abatement_.
37. What is meant by _ademption of a legacy_?
COURTS AND LEGAL PROCEDURE
1. Define _courts_.
2. In general how may courts be classified?
3. By what authority are Federal Courts established?
4. What is the term of office of Federal judges?
5. Classify Federal Courts.
6. How many United States District Courts are there?
7. How many United States Circuit Courts are there?
8. How many Circuit Court judges are there in each circuit?
9. Do the Supreme Court judges and District judges have anything to do
with the Circuit Courts? If so, what?
10. What is meant by _original jurisdiction_, as applied to a court?
11. Does the United States Circuit Court of Appeals have any original
jurisdiction?
12. How many United States Supreme Court judges are there?
13. What, in general, is the jurisdiction of the United States Supreme
Court?
14. Where are admiralty cases tried?
15. What cases are included in term admiralty cases?
16. Are juries used in the trial of _admiralty cases_?
17. By what authority are State Courts established?
18. Classify, in general, State Courts.
19. What are Courts of Equity, and over what classes of cases do they
have jurisdiction?
20. Classify legal actions.
21. Give an example of an act which is both a tort and a crime.
22. Define _plaintiff_ and _defendant_.
23. Define _pleadings_.
24. What is the function of a jury in the trial of a case?
25. Define _verdict_, and distinguish it from judgment?
26. How are judgments enforced?
INDEX
A
Abandonment, remedies of landlord for, 279
Abatement, definition of, 295
Acceptance
definition of, 15
of draft, 133
Acceptor
of negotiable instruments, 122
rights and liabilities of, 123
Acquisition of personal property, 179
Act of bankruptcy, 35
Act of God as affecting carriers, 225
Ademption, definition of, 295
Administrative law, definition of, 13
Advancement, definition of, 295
Adverse interest, 40
Age, legal, 16, 20
Agencies, irrevocable, 72
Agency
contracts within Statute of Frauds, 41
contracts which must be in writing, 41
definition of, 39
general, 43
purposes for which created, 42
ratification of, 42
special, 43
universal, 43
Agents
apparent authority of, 50
how appointed, 41
authority of, 43
to collect, 52
to warrant, 53
of corporations, 107
definition of, 39
delegation of authority by, 51
distinguished from master and servant, 39
duties of, to principal, 46
general, 43
principal to pay, 44
risks assumed by, 44
secret instructions of, 50
universal, 43
value of services, 44
who may be, 40
Anomalous indorser, 130
Appeal from one court to another, 298
Assessments
of corporations, 104
not included in taxes, 271
Assignment
of contract, 31
of insurance, 167
of lease, 269
notice of, 274
oral, 274
Assignability distinguished from negotiability, 113
Attestation
of deeds, 245
of will, 291
Attornment, definition of, 274
Auctioneer, 55
B
Baggage
what constitutes, 234
duty of innkeeper to receive, 236
sample cases, 234
Bailee
definition of, 205
liability of, 212
lien of, 212
right of possession of, 212
right of, against third persons, 212
right of, to use property, 212
right of, against bailor, 212
Bailment
classification of, 206
definition of, 205
distinguished from sale, 182
parties to, 205
for sole benefit of bailee, 208
for sole benefit of bailor, 207
what constitutes a, 206
Bailor
bailments for sole benefit of, 207
definition of, 205
Banks
checks on, 153
of circulation, 151
classified, 151
clearing houses, 157
definition of, 151
of deposit, 151
deposits in, 152
discount, 158
of discount, 151
exchange, 158
functions of, 152
interest, 158
loans of, 154
money, 157
national, 151, 155
pass books of, 153
powers of, 152
private, 151
rights of, in case of forged, altered, lost, or stolen checks, 154
savings, 156
state, 151
trust companies, 156
usury, 160
Bankruptcy
acts of, 35
definition of, 35
involuntary, 35
revokes agency, 59
voluntary, 35
Barter, distinguished from sale, 181
Bearer, negotiable instrument payable to, 112
Beneficiary of trust, 266, 269
Bequeath, definition of, 287
Bilateral contract, definition of, 19
Bill of exchange, definition of, 116
Bill of lading
definition of, 227
negotiability of, 227
valuation, 226
Blank indorsement, 124
Boarding housekeeper not an innkeeper, 235
_Bona fide_ holder of negotiable instrument, 135
Bonds
coupon, 118
definition of, 118
form of, 118
registered, 118
Breach of contract, 280
Brokers
definition of, 55
insurance, 55
stock, 55
real estate, 57
By-laws of corporations, 103
C
Capital of national banks, 293
Capital stock
of corporations, 103
decreasing, 105
increasing, 105
Capitalization of corporations, 103
Carrier
Act of God, 225
charges of, 230
common, 223
defined, 223
delivery of goods by, 229
delivery of goods to, 193
discrimination by, 230
of goods, 223
implied liability of, 224
interstate commerce act, 231
liability as insurer, 223
lien of, 230
limiting liability, 225
of mail, 230
negligence of shipper, 225
private, 223
public enemy, 225
stoppage _in transitu_, 229
title to goods in possession of, 227
Carrier of passengers
baggage, 233
definition of, 232
degree of care required of, 233
right to eject passengers, 233
rights and liabilities of, 233
Casualty insurance, definition of, 166
_Caveat Emptor_, rule of, in sales, 188
Certificate of protest, 136
Certificates of deposit, 121
Certificates of stock, 101
Certification of checks, 118
_Cestui que trust_
definition of, 265
rights and liabilities of, 269
Charter of corporations, 92
Chattel mortgage, 1
definition of, 247
distinguished from pledge, 218
distinguished from sale, 218
filing and recording, 220
form of, 250
mortgagee, 218
mortgagor, 218
parties to, defined, 218
possession of property, 218
redemption, 221
rights of mortgagee, 221
rights of mortgagor, 220
as security for a debt, 219
title in mortgagee, 218
Chattel real, definition of, 274
Chattels
definition of, 128
personal, 128
real, 128
Checks
on banks, 153
certification of, 118
definition of, 117
when returned, 153
Child may be agent, 40
Choses
in action, 178, 182, 219
in possession, 178, 182, 219
Circulation, banks of, 151
Clearing houses, 157
Codicil, definition of, 294
Cognovit promissory notes, 120
Collateral promissory note, 120
Collateral securities, definition of, 283
Combination of capital distinguished from trusts, 265
Commercial law, definition of, 13
Compensation of agent, 44
Conditional sale, definition of, 181
Conflict of laws in contracts, 30
Consideration
adequate, 17
in contracts of suretyship, 173
definition of, 17
good, 17
illegal, 17
in negotiable instruments, 132
past, 17
to trust agreement, 321
valuable, 17
Consolidation of corporations, 98
Constitution
definition of, 12
English, 12
limitation of, 95
Constructive trusts, definition of, 268
Continuing guaranty, definition of, 175
Contract
acceptance to, 15
as affected by duress, 28
as affected by frauds, 28
as affected by mistake, 29
agreement in, 15
assignment of, 31
bilateral, 19
breach of, 34
competent parties, 16
consideration to, 17
by correspondence, 25, 26
definition of, 14
dependent covenants in, 34
discharge of, 33
of drunkards, 22
elements of, 15
executed, 19
executory, 19
express, definition of, 18
forms of, 38
of idiots, 22
illegal, 27
implied, 18
independent covenants in, 34
of infants, 20
of insane persons, 22
of married women, 22
mutuality in, 19
offer to, 15
parties to, 16
of partnership, 77
remedies for breach of, 36
rescission of, 34
signing of, by corporation, 108
specific performance of, 37
_statu quo_ in, 34
Sunday, 27
by telegraph, 25, 26
trust created by, 266
under seal, 27
unilateral, 19
voidable, 20
warranty in, 34
will not a contract, 288
Corporation
act through agents, 39
by-laws of, 103
calls and assessments of, 104
capitalization of, 103
certificates of stock of, 101
charter of, 92, 95
common stock of, 105
consolidation of, 98
creation of, 92
_de facto_, 96
definition of, 90
directors of, 102
dissolution of, 111
distinguished from partnership, 90
dividends of, 106
estoppel of, 95
foreign, 110
franchise of, 90
kinds of, 94
meetings and elections of, 99
names of, 93
nature of, 90
object of, 90
officers and agents of, 107
organization of, 92
powers of, 91
preferred stock of, 105
promoters of, 96
regulation of, 103
reorganization of, 197
resolution of, 103
revocation of franchise of, 91
seal of, 91, 108
stockholders of, 100
_ultra vires_ acts of, 109
voting at meetings of, 99
watered stock, 105
Counterclaim good against assignee, 274
Coupon bonds, 118
Courts
appeal from one court to another, 298
classification of, 296
definition of, 296
reports, 12
Covenants
in deeds, 245
dependent, 34
express, 273
implied, 273
independent, 34
of leases, 273
Creditor to suretyship contract, 169
Credits, definition of, 154
Crime, agency to commit, 42
Crimes of corporations, 185
Criminal, 13
Cumulative voting at corporate meetings, 99
Custom as part of contract, 22
Customs make law, 11, 12
D
Damages, definition of, 13
Death
of partner, 87
revokes agency, 59
Debts
of another, 169
secured by chattel mortgage, 219
secured by mortgage, 257
transfer of, 261
Deeds
acknowledgment of, 246
conclusion of, 245
covenants in, 245
definition of, 243
description of property in, 244
formal parts of, 243
habendum clause, 245
indentures, 243
as mortgages, 256
premises of, 244
quit claim, 246
redendum clause, 245
signature of, 245
trust created by, 266
warranties in, 245
witnesses to, 245
_De facto_ corporation, 96
Defenses, 132
_Del credere_ agency, 56
Delivery
in escrow, 258
of goods, 193, 229
of mortgages, 258
of personal property sold, 184
Deposit
indorsement for, 129
banks of, 151
Devise, definition of, 287
Devisor, definition of, 287
Discharge of contract
by bankruptcy, 35
by breach, 34
by performance, 33
by subsequent agreement, 34
by tender, 33
Discount, definition of, 158
Dishonor, notice of, in negotiable instruments, 36
Dissolution of partnership, 87
Distress, definition of, 273
Distribution of assets of partnership, 88
Dividends of corporations, 106
Divisions of law, 12
Domestic exchange, 158
Dower estates
definition of, 31
cannot be taken away by will, 288
Draft
definition of, 116
presentment and acceptance of, 133
Drawee of negotiable instrument, 122
Drunkard
contracts of, 22
cannot enter into partnership, 78
Duration of estates, 239
Duress
as affecting wills, 289
as defense to payment of negotiable instrument, 131
as defense to suretyship contract, 176
definition of, 28
Duties
of agent to principal, 46
of partners to each other, 84
of partners to third persons, 85
of principal to agent, 44
E
Election of corporations, 99
Elements of a contract, 15
Emblements, definition of, 236
Enemy, public, as affecting carrier, 225
Equity
courts of, 37, 300
definition of, 37
of redemption in chattel mortgages, 221
of redemption in real estate, 263
Estate, trust, 265
Estates in land, 239
Estoppel,
of corporation from denying existence, 95
partnerships by, 77
Exchange
barter, 181
definition of, 158
of goods not a sale, 181
Executed contract, definition of, 19
Execution
of contracts of corporations, 108
definition of, 300
of leases, 273
of negotiable instruments, 108
Executory contract, definition of, 19
Exempt property, 206
Express contract, definition of, 18
Express trusts, definition of, 266
F
F. O. B., definition of, 227
Factors, definition of, 54
Federal court, 297
Fee simple estates, definition of, 239
Females, legal age of, 16
Fictitious name of partnership, 79
Fidelity insurance, definition of, 169
Foreclosure of chattel mortgages, 222
Foreclosure of mortgages, 264
Foreign corporation, 110
Foreign exchange, 158
Forfeiture of leases, 279
Forgery
of negotiable instruments, 130
ratification of, 42
Forms
of bond, 119
of certificates of deposit, 121
of certificates of protest, 136
of certificates of stock, 101
of cognovit note, 120
of collateral note, 120
of contract, 38
of judgment note, 120
of partnership agreement, 89
of will, 296
Franchise of corporation, 90
Fraud
defense, of in suretyship, 176
definition of, 28
effect of, upon lease, 277
effect of, on sale, 188
renders contract voidable, 28
Freehold estates, definition of, 239
G
Gambling contracts void, 28
Gift of personal property, 179
Government warehouses, 209
Grace, days of, 134
Guarantor
contract of, 171
notices to, 175
Guaranty
continuing, 175
general, 175
letter of, 175
limited, 175
special, 175
Guests, duty of innkeeper to receive, 235
H
Habendum clause in deed, 245
Hereditaments, 236
Highways, how established, 238
Holder in due course of negotiable instrument, 135
Holographic wills, 293
Homestead estates, 241
Hotelkeeper (see Innkeeper), 235
I
Idiot
contracts of, 22
cannot enter into partnership, 78
cannot be a principal, 40
relation to contract, 16
Illegal acts cannot be ratified, 42
Illegal agencies void, 42
Illegal consideration, 17
Illegal contracts, 27
Implied contract, definition of, 18
Implied contract of bailment, 206
Implied trusts, definition of, 267
Implied warranty, definition of, 189
Indemnity in suretyship, 178
Indorser
anomalous, 130
blank, 124
for collection, 129
contract of, in suretyship, 172
for deposit, 129
in full, 126
irregular, 172
liability of, 130
without recourse, 128
Infant
may be agent, 40
contracts of, 20
definition of, 40
may be partner, 78
cannot be principal, 40
may be trustee, 265
Infringement of trade mark, 283
Innkeeper
definition of, 235
duties and liabilities of, 235
lien of, 236
Innocent purchaser for value without notice, 135
Insane person may be agent, 40
Insane person to contract, 16
Insane person cannot be partner, 78
Insolvency of purchaser, 193
Insurable interest, definition of, 162
Insurance
assignment of, 167
broker, 55
contract, 160
definition of, 160
fidelity and casualty, 166
kinds of, 162
life policies, 165
marine policies, 165
open policy, 168
representations in contracts of, 164
standard policies, 166
suicide clauses in policy of, 166
term policies, 165
tontine policies, 165
underwriter's, 161
valued policy, 168
warranties in contracts of, 173
who must pay on leased premises, 271
Interstate commerce act, 231
Involuntary bankruptcy, 35
Irrevocable agencies, 59
J
Joint liability of parties, 32
Judgment
definition of, 300
promissory note, 120
Justice of peace court, definition of, 299
L
Landlord and tenant
attornment, 274
definition of, 269
implied warranty, 270
lease, 269
notice, 279
rent, 272
taxes, repairs, and insurance, 271
Law
administrative, 13
commercial, 13
constitutional, 12
criminal, 13
definition of, 11
division of, 12
private, 13
public, 13
sources of, 12
statute, 12
unwritten, 12
written, 12
Law merchant, 113
Leases
acknowledgment of, 273
assignment of, 269
covenants of, 273
definition of, 269
forfeiture of, 279
form of, 273
recording, 273
signing, 273
termination of, 279
transfer of, 274
witnessing, 273
Legal tender, 33, 157
Legatee, definition of, 287
Lessee, definition of, 269
Lessor, definition of, 269
Liabilities
of agent and principal, 46
of agent to third person, 47
of partners to each other, 84
of principal to agent, 44
of undisclosed principal, 48
Lien
of bailee, 212
of carrier, 230
at common law, 212
how enforced, 212
of innkeeper, 236
seller's, 193
Life estates, 240
Life policies of insurance, 165
Limited partnership, 89
Loans, definition of, 154
Lost wills, how proven, 294
M
Magistrate, court of, definition of, 299
Males, legal age of, 16
Marine insurance, definition of, 165
Married women, contracts of, 22
Membership, changes of, in partnership, 86
Mercantile agencies, definition of, 154
Minds, meeting of, 15
Mistake of fact, 29
Mistake of law, 29
Money, definition of, 157
Mortgagee, definition of, 218, 256
Mortgages
debt secured by, 257
deeds as, 256
definition of, 255
delivery of, 258
elements of, 258
equity of redemption, 263
foreclosure of, 264
parties to, 256
of personal property, 218
recording, 260
satisfaction of, 262
transfer of, 261
Mortgagor
definition of, 256
rights of, 220
Mutuality in contracts, 19
N
National banks
capital of, 155
how created, 155
U. S. corporation, 92
Necessaries, definition of, 20
Negligence
gross, 210
liability of agent for, 46
ordinary, 210
of shipper, 225
slight, 210
Negotiable instruments
_bona fide_ holder of, 135
definition of, 112
forgery of, 130
origin of, 112
parties to, 122
presentment and acceptance, 133
presentment for payment of, 135
promissory notes, 114
purpose of, 112
requisites of, 122
signing, by corporations, 108
Negotiability
of bill of lading, 227
definition of, 112
distinguished from assignability, 113
Note
cognovit, 120
collateral, 120
definition of, 114
judgment, 120
Nuncupative wills, 293
O
Open insurance, 168
Oral assignment of leases, 274
Oral contract, 41
Organization of corporation, 92
Ostensible partner, definition of, 79
P
Partners
agreement of, 81
definition of, 77
distribution of assets of, 88
duties of, to each other, 84
kinds of, 79
powers of, 82
property of, 82
survivorship of, 87
withdrawal of, 86
Partnership, 77-90
Pass book of banks, 153
Pawnbrokers, 55
Payee of negotiable instrument, 122
Partial assignments, 274
Perpetual succession of corporation, 91
Perpetuities, rule against, 239
Personal property
definition of, 178
mortgages of, 218
possession of, 179
sale of, 179
title to, 179
transfer of, 179
Pledgee, definition of, 214
Pledges, definition of, 213
Pledgor, definition of, 214
Preferred stock, 105
Principal, definition of, 39
Q
Quit claim deed, definition of, 246
Quorum at corporate meetings, 99
R
Real property, definition of, 236
Redemption
equity of, in real estate mortgage, 263
mortgagor's right of, in chattel mortgage, 221
of pledged property, 217
Redendum clause in deed, 245
Registration of corporation, 103
Registration of trade marks, 286
Reinsurance, definition of, 167
Remainder, estates in, 212
Rent
action by landlord to recover, 281
definition of, 272
when payable, 272
Reorganization of corporation, 97
Rescission
of contract, definition of, 34
of sale by reason of fraud, 188
Revocation of agency, 58
Revocation of offer, 25
Revocation of wills, 294
Rights, definition of, 11
S
Sale
caveat emptor, 188
definition of, 179
distinguished from bailment, 182
implied warranty, 190
of pledged property, 214
of trade mark, 283
Savings banks
definition of, 156
deposits in, 152
pass books of, 153
Seal
contract under, 27
definition of, 27
private, 27
use of, by corporation, 108
Signature
of agent to written instruments, 53
to deeds, 245
to a will, 291
Silent partner, definition of, 79
Spoliated wills, how proven, 294
_Statu quo_, definition of, 35
Statute of Frauds
as affecting contracts, 23
agency contracts within, 41
as applied to leases, 273
contracts of suretyship within, 174
partnership contracts within, 78
in sales, 183
Statutes, definition of, 12
Stock
common, 105
increasing and decreasing, 105
preferred, 105
watered, 105
Stockholders of a corporation, 102
Stoppage _in transitu_, 193, 229
Storage companies, 209
Subagents, 51
Subletting, 272
Subrogation in suretyship, 177
Sufferance
estates at, 242
leases at, 277
Sunday contracts illegal, 27
Surety contract of, 170
Surety companies, 177
Suretyship, 169-178
Survivorship in partnership, 87
T
Taxes, 271
Tearing wills, 294
Telegraph, contracts by, 25
Tenancies
at sufferance, 277
from year to year, 278
for years, 275
at will, 277
Tenant, definition of, 269
Tender, definition of, 33
Tenements, definition of, 236
Testament, definition of, 287
Testator, definition of, 287
Third persons
contracts for benefit of, 21
property held for benefits of, 265
Title to negotiable instruments, 215
Title to
personal property, 179
pledged property, 215
real property, 243
trust property, 266
Tontine policies of insurance, 165
Torts, 46, 111
Trade marks, 282
Trade name, 284
_Transitu_, stoppage in, 193, 229
Treaties, definition of, 12
Trust companies, definition of, 156
Trustees, 265
Trusts, 265
beneficiary of, 266
classified, 265
consideration to, 267
how created, 266
U
_Ultra vires_ acts of corporation, 109
Underwriter, definition of, 161
Undisclosed principal, 48
Unfair trade, 285
Unilateral contract, definition of, 19
Universal agents, 43
Unwritten law, 12
Usury, 160
V
Valued insurance, 168
Verdict, definition of, 300
Voluntary bankruptcy, 36
Voting by proxy, 99
W
Wagering contracts void, 28
Warehousemen, 209
Warranties
in deeds, 245
in insurance contract, 164
Warranty
in contracts, 34
deeds, 244
express, 189
implied, 190
Watered stock of corporations, 105
Wife, dower of, 288
Will
ademption, 295
codicil, 294
creation of trusts by, 266
definition of, 287
duress, 290
estates at, 242
form of, 296
holographic, 293
leases at, 277
nature of, 288
nuncupative, 293
publication of, 292
revocation of, 294
signature to, 291
statutes regulating making of, 288
who may make, 289
witnessing, 291
Witnesses
to deeds, 245
to a will, 291
Written law, 12
TRANSCRIBER'S NOTE:
-Obvious print and punctuation errors were corrected.