Supplement: On Civil Law for Great Britain and the United States

[Editor's note: This Supplement is not part of Tanquerey's Latin text. It was printed in English, on separately signed sheets, in the issue of the 1922 edition for Great Britain and the United States; the issue for France carried a supplement on French law in its place. By its own first note it is "a short compilation" from the books it cites, and it names no compiler.]

In England, as well as in the United States of America, law is of two kinds: international and municipal; the former is that rule of civil conduct, which is prescribed by the common consent of Christian nations, and regulates their intercourse with one another; the latter is that rule of civil conduct, which is prescribed by the supreme power in a State, and regulates the intercourse of the State with its subjects and of those subjects with each other. - Here we have to deal only with Municipal law.

¹ This Supplement is not an original work, but a short compilation made out of the books to which we refer our readers; where the authors have explained concisely their doctrine, we frequently quote their own words, thus to express more accurately their meaning.

² W. C. Robinson, Elementary Law, Boston (Little and Brown) 1882, § 1-12; Stephen, New Commentaries on the Laws of England, 12th ed., London (Butterworths), 1898, p. 38-81.

In either country, Municipal law is unwritten or written. Unwritten law, known also as customary law, or common law, is that which originated in the common wisdom and experience of society, in time became an established custom, and has finally received judicial sanction in the decision of the courts of last resort. Written law is that which has been directly prescribed, in so many words, by the supreme power of the State.

In America, municipal law is of two kinds: Federal law, which is enacted by the supreme power in the United States, and regulates, in matters of a national character, the intercourse of the federal government with the people, and of the people with each other or with citizens of foreign States; - State law, which is enacted by the supreme power in each individual State, and regulates, in all matters not of a national character, the intercourse of such State with its own people and of its people among themselves. - From this it follows that State laws are not the same throughout the Union, and that it is well for a priest to get a certain knowledge of the statutes of his own State; but, in the most intricate cases, it may be necessary to consult with a skilful and honest lawyer.

By copyright we understand the right of an author to print and publish his own original work, exclusively of all other persons.

1° In England,¹ the copyright Act, 1842 (5 et 6 Vict. c. 45) provides that the copyright of every book, - under which word is included every volume, part or division of a volume, pamphlet, sheet or letterpress, sheet of music, map, chart, or plan separately published in the United Kingdom, - which shall be published in the lifetime of its author (whether a subject of the king or not) shall endure for his natural life, and for seven years longer; or, if the seven years shall expire before the end of forty-two years from the first publication, shall endure for such period of forty-two years; and that, when the work is posthumous, the copyright shall endure for forty-two years from the first publication, and shall belong to the proprietor of the author's manuscript; and that, as regards articles which are first published in periodical works, the copyright, unless there is some agreement to the contrary, remains vested in the author. The proprietor of a copyright infringed, by the book being unlawfully printed within the British dominions, may claim damages for the injury already suffered, and an injunction to prevent the continuance of the infringement or piracy; as regards books unlawfully reprinted in any place out of the British dominions, and imported into the United Kingdom, they may be seized as forfeited, by any officer of the customs or excise, and the offenders are liable to penalties.

¹ Stephen, vol. II, p. 34-43.

Moreover by the International Copyright Acts, it is provided that His Majesty by order in council may, - as regards books, prints, articles of sculpture, paintings, drawings, photographs and other works of art, first published in a foreign country, - allow the respective authors, inventors, artists, and their personal representatives, privilege of copyright for any period not exceeding the term for which the like productions would be protected, if first published in the United Kingdom.

2° In the United States, the Act of March 3, 1891, provides that the author, inventor, designer or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statuary, and of models or designs intended to be perfected as works of the fine arts; and the executors, administrators, or assigns of any such person, shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending the same: and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others. Authors and their assigns have the exclusive right to translate or to dramatize any of their works.

(A) Conditions to be complied with. (a) But to secure this privilege books must be printed from type set or plates made in the United States; photographs from negatives made in the United States; chromos and lithographs from drawings on stone or transfers therefrom made in the United States.

(b) A printed copy of the title of the book, map, chart, etc., or a description of the painting, drawing, etc., for which copyright is desired, must be delivered to the Librarian of Congress, or deposited in the mail, within the United States, prepaid, addressed "Librarian of Congress, Washington." This must be done on or before the day of publication in this or any foreign country. - No later than the day of publication in this country or abroad, two complete copies of the best edition of each book or other article must be delivered, or deposited in the mail within the United States, addressed to the Librarian of Congress, to perfect the copyright. Besides, one copy of each new edition wherein any substantial changes are made shall be deposited in the office of the Librarian of Congress. - No copyright is valid unless notice is given by inserting in every copy, on the title-page or the page following, these words: "Entered according to Act of Congress, in the year - by - in the office of the Librarian of Congress, at Washington"; or "Copyright, 19 - by -."

(c) In the case of books published in more than one volume, or of periodicals published in numbers, a copyright must be entered for each volume, or part of a book, or number of a periodical. To complete the copyright on a book published serially in a periodical, two copies of each serial part, as well as of the complete work, if published separately, should be deposited.

(d) Foreign authors may acquire copyright by complying with the foregoing regulations.

(B) Duration. The original term of copyright runs for twenty-eight years. Within six months before the end of that time, the author or designer, or his widow or children may secure a renewal for the further term of fourteen years, making forty-two in all. Within two months from date of renewal the record thereof must be advertised in an American newspaper for four weeks.

Patent-right is a privilege granted by the State to the first inventor of any new contrivance, that he alone shall be entitled, during a limited period, to benefit by his own invention.

1° In England,¹ the applicant for a patent may be a British subject or a foreigner. (a) The application is made by petition contained in, and supported by, a solemn declaration that the petitioner is the true and first inventor, and that the invention is not in use in Great Britain by any other person, to the best of his knowledge and belief; it must be accompanied by either a provisional or a complete specification: in this latter case, the complete specification must be sent no later than nine months from the date of the application.

¹ Stephen, vol. II, p. 23-34.

(b) The object of patent must be a new manufacture within the realm of England, that is some article fabricated by the hand of man, or an addition, by way of improvement, to one already existing, or a chemical process of production; it must be new in Great Britain, but the previous notoriety of the article, in a foreign country, is no objection to the validity of the patent.

(c) The patent-right can be granted only to the true and first inventor: no one can claim this character, if it appear that the novelty in question was first suggested to him by some other person in England.

(d) It is granted for fourteen years, and this term may be extended for seven, or, in exceptional cases, fourteen years, in favour of a patentee who has not reaped the full benefit of his invention.

(e) If a patent-right be infringed, the inventor may claim damages for the injuries sustained, and obtain an order restraining the wrongdoer from the further use of the invention.

2° In America, patents are issued in the name of the United States, and under the seal of the Patent Office, to any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned; and by any person who, by his own industry, genius, efforts and expense has invented and produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief; any new and original design for the printing of woolen, silk, cotton, or other fabrics; any new and original impression, ornament, pattern, print, or picture to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture; or any new, useful, and original shape or configuration of any article of manufacture, the same not having been known nor used by others before his invention or production thereof, nor patented nor described in any printed publication, upon payment of the fees required by law and other due proceedings had.

(a) Every patent contains a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to

make, use, and vend the invention or discovery throughout the United States and the Territories, referring to the specification for the particulars thereof.

If it appear that the inventor, at the time of making his application, believed himself to be the first inventor or discoverer, a patent will not be refused on account of the invention or discovery, or any part thereof, having been known or used in any foreign country before his invention or discovery thereof, if it had not been before patented or described in any printed publication.

(b) Joint inventors are entitled to a joint patent; neither can claim one separately. Independent inventors of distinct and independent improvements in the same machine cannot obtain a joint patent for their separate invention: nor does the fact that one furnishes the capital and another makes the invention entitle them to make application as joint inventors; but in such case they may become joint patentees.

(c) The receipt of letters patent from a foreign government will not prevent the inventor from obtaining a patent in the United States, unless the invention shall have been introduced into public use in the United States more than two years prior to the application. But every patent granted for an invention which has been previously patented by the same inventor in a foreign country will be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest unexpired term, but in no case will it be in force more than seventeen years.

(d) Applications for a patent must be made in writing to the Commissioner of Patents. The applicant must also file in the Patent Office a written description of the same, and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; and in case of a machine, he must explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions, and particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery. The specification and claim must be signed by the inventor and attested by two witnesses.

When the nature of the case admits of drawings, the applicant must furnish a drawing of the required size, signed by the inventor or his attorney in fact, and attested by two witnesses, to be filed in the Patent Office. In all cases which admit of representation by model, the applicant, if required by the Commissioner, shall furnish a model of convenient size to exhibit advantageously the several parts of his invention or discovery.

(e) The applicant shall make oath that he verily believes himself to be the original and first inventor or discoverer of the art, machine, manufacture, composition, or improvement for which he solicits a patent, that he does not know and does not believe that the same was ever before known or used, and shall state of what country he is a citizen. Such oath may be made before any person within the United States authorized by law to administer oaths, or, when the applicant resides in a foreign country, before any minister, charge d'affaires, consul, or commercial agent holding commission under the Government of the United States.

(f) On the filing of such application and the payment of the fees required by law, if, on such examination, it appears that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, the Commissioner will issue a patent therefor.

Every patent or any interest therein shall be assignable in law by an instrument in writing; and the patentee or his assigns or legal representatives may, in like manner, grant and convey an exclusive right under his patent to the whole or any specified part of the United States.

(g) A reissue is granted to the original patentee, his legal representatives, or the assignees of the entire interest when, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his invention or discovery more than he had a right to claim as new, the original patent is inoperative or invalid, provided the error has arisen from inadvertence, accident, or mistake, and without any fraudulent or deceptive intention. In the cases of patents issued and assigned prior to July 8, 1870, the applications for reissue may be made by the assignees; but in the cases of patents issued or assigned since that date, the applications must be made and the specifications sworn to by the inventors, if they be living.

Property, as to its legal character, is of two kinds: real and personal. Things real (otherwise called real property or realty) are such as are, in contemplation of law, permanent and immovable as lands, houses, etc. Things personal (or personal property, or chattels) are those which, in contemplation of law, are movable and have not a permanent duration, such as jewels, watches, books, etc.; they are called personal, because they may attend the owner's person, wherever he goes. - Some introduce a third distinction, viz. mixed things, which partake of the nature of both, as deeds to an estate; these are called real by others, because they may be considered as something accessory to real property.

1° Of things real.¹ Real property consists in lands, tenements and hereditaments.

¹ Stephen, vol. I, p. 168-638; Robinson, Elementary Law, § 38 - § 93.

(A) First it consists of lands and of whatever is erected, or growing upon, or affixed thereto, including whatever is beneath or above the surface. By way of exception, houses, trees, growing crops might be personalty, for instance, if a house were built on the land of another, with the latter's consent. Again objects, in their nature real, may by severance from the realty, become personal; thus trees growing on the land are real; when cut, and lying in logs on the land, they are personal. On the other hand, an object, which considered in itself, is personal, may become real; so the materials of which a house is to be built, are personal; but, when constructed into a building, may become real; again a great many fixtures, though originally movable and personal, become real by being affixed to real estate.

(B) It consists also of tenements; which word includes not only houses and buildings, but whatever may be holden, provided it be of a permanent nature, as a grade in the army, offices, rents, etc.

(C) Hereditaments, which pertain also to real property, include whatever may be inherited, be it corporeal or incorporeal: (a) corporeal hereditaments include land and everything permanently affixed to it; (b) an incorporeal hereditament is a right issuing out of a thing corporate, or concerning or annexed to, or exercised within the land in the ownership of another, such as the right of way, or the right of one man to pass and repass over the land of another by some accustomed or designated path.

2° Of things personal.² - Things or chattels personal comprise in a general way all sorts of things moveable. They consist of inanimate things, as goods, plate, money; or of vegetable productions, as the fruit or plant when severed from the ground; also of animals, which can convey themselves from one spot to another; lastly of certain incorporeal rights in moveables, such as patent-right, copyright, the right to a trade-mark.

² Stephen, vol. II, p. 1-12; Robinson, Elem. Law, § 113-118.

Chattels personal may be either in possession, or else in action: - in possession, when a man has the enjoyment, actual or constructive, of the thing; - in action, when a man has not the enjoyment of it, but merely a right to recover it by action, or by course of law: thus, money due on a bond is a chattel (or chose) in action, because, though not actually possessed, it may be recovered by course of law.

Children are legitimate, when begotten or born in wedlock; illegitimate, when begotten and born out of wedlock. The legal presumption is that a child born during wedlock is legitimate; this presumption may be rebutted, but only by clear proof. In England, one born a bastard is not rendered legitimate by the subsequent marriage of his parents; but, in many States of the Union, subsequent marriage legitimates a child previously born. - Here we treat only of legitimate children.

¹ Stephen, vol. II, p. 289-304; Browne, Elements of the Law of Domestic Relations, Boston, 1890, p. 70-89; Robinson, Elements of American Jurisprudence, Boston, 1900, § 26.

1° Duties of parents. Parents are bound to protect, maintain and educate their children:

(a) To protect, viz. to uphold a child in his law-suits and defend him against an unjust assailant.

(b) To maintain minor children; but this obligation extends only to necessaries; and the father is not obliged to support his children in idleness if they are able to work. He is obliged by law to maintain them, even though they have some property of their own; but this rule has been relaxed by courts, when the estate of children is larger than that of parents. - After the father's death, the mother is bound to support the child, if able, but not at her expense, if the child has property of his own. - As a rule, the capital of his property will not be infringed for his support, except when necessary. - The parents are not liable for the debts of their children, even for necessaries, except when these have been bought with their parents' actual or implied authority.

(c) To educate their children, according to their condition; but this duty does not extend to a trade or profession.

2° Rights of parents. Parents have a right to the custody and services of their minor children.

(A) Custody. At common law, the father has the paramount right to the custody of the minor child, and, before dying, may appoint a testamentary guardian; in case of the father's death without the exercise of this power, the mother succeeds to these rights, but she loses them by remarriage. - The right of custody may be forfeited by misconduct, and granted to the mother or to a third person.

(B) Services. The father has the right to his children's services and earnings, whilst they live with him and are maintained by him; he may voluntarily relinquish this right by express or implied emancipation, which gives the child the free disposition of his own time and wages and discharges the parent from obligation to support, unless the child becomes unable to support himself. - But the father has no right in the child's separate personal or real estate; its management is entrusted to guardians or trustees appointed by the will of the donor of the property, or by a competent court.

The parent has a right of action for expenses and loss of the child's services caused by the negligence or wrong of another; this right is not defeated by the fact that the child is living with and in the service of another, unless the parent has relinquished all right to the child's service. - Again the father, or after his death the mother, has a right of action for enticing away or abducting the child, but not for enticing him into a marriage; the theory of this action is reimbursement for loss of service, not compensation for wrong to the child; the principle is the same in an action for seduction of a daughter.

The parent is not liable for his child's torts, although committed in his presence, but without his approval; he is liable for injury by the child's negligent acts which he knows of and permits on his premises.

At common law, an infant or minor is any person, male or female, under twenty-one years of age. But, in the United States, some statutes have reduced the age required for majority. Infants being generally unable, because of their youth and inexperience, to take care of their own interests, are placed under guardianship.

¹ Stephen, vol. II, p. 305-316; Browne, Domestic Relations, p. 90-122.

There are four kinds of guardians: (a) guardians by nature and nurture, who are the parents themselves, first the father, and on his death the mother; (b) testamentary guardians, who are appointed by the father's last will; (c) guardians appointed by the Court, when an infant, having some property, was entrusted to no other guardian; (d) guardians ad litem, who are appointed by a court of justice to prosecute, or more commonly to defend, for an infant in any action or litigious proceeding therein pending, to which such infant may be a party.²

² With regard to guardianship in socage, by election, or by custom, fallen in disuse, see Stephen, l. c., p. 310-314.

1° Rights and duties of guardians. (A) With regard to the person of the ward: the guardian is entitled to the custody of the ward's person, subject to the regulation of the court; his right is even superior to that of the parent, if this be alive; but as a rule the parent is appointed guardian, unless unfit. - Hence the guardian may recover the person of the ward from one unlawfully detaining him, select the place of his education, and bind him to apprenticeship.

He is bound to maintain him, but only from the ward's own estate. He has a large discretion in expenditure not encroaching on the capital, but is not allowed to expend more than the income of his ward's estate without consent of the court, except in the case of imperative and sudden necessity; in which case he may use the principal of personalty, but cannot sell the real estate except by order of the court and for the purpose of maintenance. - If necessary, he may place the ward at work, or if he is too young and feeble, entrust him to some charitable institution. - As he has no right to his ward's services, he cannot recover, for his own profit, any compensation for injuries committed against the ward.

(B) As to the ward's estate, the guardian is bound to manage it as a good and faithful administrator: he must receive, collect and invest the income, pay the necessary expenses of his ward, and account for his trust; he may lease, discharge a mortgage, sue for debts, compromise, release, or submit to arbitration. He cannot by general contract bind his ward's estate, nor avoid a beneficial contract made by his ward. He has no right to purchase the ward's property or sell his own property to his ward. He may lease the real estate of the ward, and repair it, but must not make improvements without authority of the court; with regard to selling real estate, special formalities are required.

In the discharge of all these duties, the guardian must act with care and diligence, and is responsible for fraud and negligence; but, when he has acted in good faith, according to his best judgment and with ordinary care, he will not be strictly held for losses.

The guardian cannot reap any personal benefit from his ward's estate except what is allowed by court for his services.

2° Rights of the ward. The ward may restrain his guardian from committing waste. - On the termination of the guardianship, he may sue him for an accounting, within a reasonable time. He will always receive the aid of the court in recovering property embezzled, concealed or conveyed away in fraud of his rights.

A gift or conveyance from ward to guardian during or shortly after majority is presumed fraudulent, and will not be sustained except on the clearest proof of the utmost good faith.

An infant may bind himself by contract for necessaries; but most of the other contracts made by him are considered as voidable.

Under the ancient rules of the common law, the wife's personality was suspended and merged in that of her husband, with whom she became in law one person, and that person the husband. All her

¹ Stephen, vol. II, p. 246-288; Browne, p. 29-53; Robinson, Jurisprudence, § 41-43.

personal property which she had in her possession at the date of the marriage, instantly became the property of the husband, and all her claims and rights of action against others vested in him, to be collected by him and applied to his own use, if he chose. Her temporary interests in lands, the rents and profits of her real estate, and all her services and earnings during the time of coverture (that is until the marriage relation was legally dissolved) were also his.

But in more recent times, both in England and America, these disabilities of married women have been greatly modified, first by the action of courts of equity, and next by legislative enactment.

1° In England, the matter has been mostly settled by the Married Women Property Acts of 1870 and 1882. According to these statutes, every woman who marries on or after the first day of January, 1883, is to hold as her separate estate all her property, either then already belonging to her or afterwards coming to her in any manner, whether such property be real or personal, including wages, earnings, and gains earned or made by her in any occupation which she carries on separately from her husband. - Besides a wife, whenever married, may effect an insurance upon her own or her husband's life, for her separate use, and may also acquire property independently of her husband in such deposits as she shall have made in a savings bank, or other bank, or as she shall have invested in the funds, in a joint-stock company, or in an industrial or loan society, - provided that she shall not have used her husband's moneys without his consent, and shall not have deposited or invested such moneys in fraud of his creditors. - Again, if a wife be deserted by her husband without reasonable cause, she may obtain an order, which is called a protection order, under which any money or property she shall acquire by her own lawful industry, or become possessed of, after the desertion, will be protected and belong to her as if she were a feme sole (unmarried); and if a wife is judicially separated from her husband, she is to be deemed a feme sole as regards all her property acquired subsequently to the judicial separation.

If she survives her husband, she is entitled to dower, that is to hold to herself, for the term of her natural life, the third part of all the lands and tenements of which her husband was seized or possessed in fee simple or fee tail at any time during the coverture, and of which any issue that she might have had could have been heir.

2° In America, each State has its own system of laws governing married women, and sometimes different systems applied to parties married before or after certain dates, and sometimes different systems under any one of which the parties may elect to live.

The State of New York, being the earliest and perhaps the most radical in this reform, it may be well to point out the substance of the statutes enacted on this point. The main principle is that a married woman retains the ownership, administration and enjoyment of her own real or personal property as if she were a feme sole, or unmarried. Hence, she may bargain, sell, assign and transfer her personal property, - perform any services or labor, carry on any trade or business on her sole and separate account, and her earnings therefrom shall be her sole and separate property. She may sue and be sued in all matters pertaining to her separate property, for damages or injury to her own person or character, and the recovery shall be her sole property. - She is not liable for the debts of her husband, except for those contracted by her as his agent for the support of herself and her children. The husband is not liable for his wife's ante-nuptial debts except to the amount of her separate property acquired by him; nor for contracts made by her respecting her separate property, unless it relates to property given or granted by him.

Many States by statute permit the wife to have the benefit of an insurance on the husband's life as against his creditors, though he has paid the premiums with his own money.

In some States of the Union, not only the widow, but also the husband, at the death of his wife, has the right of dower;¹ so, in Maryland, according to the new law of 1898, "every husband shall acquire, by virtue of his marriage, an estate for his life in one third of the lands held or owned by his wife at any time during the marriage, whether by legal or equitable title ... but such estate shall not operate to the prejudice of any claim for the purchase money of such lands, or other liens on the same". Yet this right of dower may be relinquished by either husband or wife, by joint or separate deed, according to the statutes of the various States.

¹ Dower, in English law, is the right of the widow to the use and enjoyment, for her life, of one-third of all the real estate of the deceased husband which the children could have inherited.

1° Notion. A corporation is a body consisting of one or more persons, established by or under the authority of the law, with the capacity of succession, either perpetual or for a limited period, and the faculty of acting as a natural person. - It may consist of one member, who is then a corporation sole; thus every bishop in England, and a few bishops in America, are acknowledged as corporation sole for their respective diocese. But generally corporation consist of several members. - Corporations are public, when created by law to promote public interests, such as counties, towns, cities; or private, when created for the private benefit of the members, such as banks, joint-stock companies, universities, etc.

² Stephen, vol. III, p. 2-55; Robinson, American Jurisprudence, § 71-112.

2° Organisation. Formerly a charter, granted by Parliament or by the Legislature of the State, was required for any new corporation. But now, in most of the States of the Union, a corporation may be formed by complying with some conditions determined by the Statutes of each State. As a rule, articles of incorporation have to be drawn up and signed by a certain number of persons, determining the name, the object, the place of business, the amount of capital or stock, the names and residences of stock-holders and of directors; these articles are deposited with and filed in the proper office; and from this moment the corporation has a legal existence.

So a corporation must have a name by which it may make contracts and hold property, sue and be sued; it must have a corporate seal to be affixed to the documents, and a place of business for the general management of affairs. It has the right of perpetual succession, by appointing new members and officers.

3° Dissolution. A corporation may be dissolved in various ways: by the death of all its members, if new ones have not been elected; by the voluntary consent of its members; by expiration of the time determined by the statutes, if limited; by a law repealing the charter, if created by an act of the Legislature; by a decree of forfeiture for misuse or non-user of its privileges.

In Great Britain as well as in America, there is a distinction to be made between prescription and limitation at law.

1° Of prescription properly so called.¹ In British countries as well as in the United States, prescription proper applies only to incorporeal hereditaments and to certain exemptions and privileges; land or moveables cannot be claimed by prescription. Incorporeal hereditaments include, among other species, the right of way, the right of fishing, the right to water cattle at a spring, or pond or stream, the right of pasture, the right to lay pipes to conduct water or gas, the right to put up a wall or a fence on the land of an adjacent proprietor, and also rents, offices, dignities, franchises and the like. - Prescription is always founded on the actual possession of the thing in question, and the measure of the actual enjoyment is, as a rule, the measure of the right. The time, during which such possession must have continued, was determined, in England, by the Prescription Act, 1832, and is of twenty, thirty, forty and sixty years according to some distinctions which it would

¹ Stephen, vol. I, p. 595-638; Robinson, Elem. Law, § 132.

be too long here to explain; - in the United States, it is fixed by statute, and extends usually to twenty years.

In either country, the possession must have been: (a) adverse, i. e. inconsistent with the enjoyment of the corporeal property by its true owner; (b) under a claim of right; i. e. with the avowal on the part of the possessor, that he has a real right to the possession of the incorporeal hereditament; (c) peaceable and continuous, i. e. without such action, on the part of the owner of the corporeal property, as suspends, or restricts or interferes with the enjoyment of the hereditament by its possessor; also without abandonment, or disuse on the part of the possessor; and therefore enjoyed during the whole of the required period of time by the same individual possessor, or by a series of individuals, each claiming a title through his predecessors; (d) with the knowledge of the owner of the corporeal property.

2° Of the limitation of actions. Besides prescription, by which a right may be acquired, there is another privilege, called limitation at law, whereby the claimant of a right cannot, after a certain period, enforce his claim before a court of justice.

The statutes of limitation originated in England as far back as 1623, and were adopted in most of the States of the Union.

In Great Britain,¹ the statutes of limitation apply both to real and personal property.

¹ Stephen, vol. III, p. 508-525.

(A) The real property Limitation Act, 1874, completing and correcting the statutes previously enacted, decides: (a) that no person shall, after 1st January 1879, make entry or distress upon, or bring an action to recover any land or rent, unless within twelve years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. However if, at the time at which the right of any person shall first accrue, such person is under the disability of infancy, coverture, idiocy, lunacy or unsoundness of mind, he or the person claiming through him may, though twelve years have expired, enter or sue within six years next after the person to whom the right accrued shall have died or ceased to be under disability; but no such right of entry, distress or action, shall be exercised, except within thirty years next after the right accrues, even though the disability may have attached during the whole of the thirty years, or although the term of six years above mentioned shall not have yet expired.

(b) That no action or other proceeding shall be brought to recover any money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent at law or in equity, or any legacy, except within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, - unless indeed part of the principal money shall have been paid or an acknowledgment in writing given, and then only within twelve years after such payment or acknowledgment.

(c) That no arrears of rent, or of interest, or any damages in respect of any such arrears, shall be recoverable, but within six years after the same shall have become due or been acknowledged in writing to the person entitled thereto or his agent, signed by the party chargeable or his agent, - subject to this proviso, that where a prior mortgagee or incumbrancer has been in possession, within one year next before action, the second mortgagee may in his action recover the arrears of his interest for the whole period (although exceeding six years) that the prior mortgagee has been in possession.

(B) With regard to things personal, it is provided, in substance: (a) that actions of trespass in general, all actions of account (other than between merchants), and all actions of debt on simple contract, or for arrears of rent not due upon specialty, shall be limited to six years after the cause of action accrued; (b) that actions of trespass for the particular injuries of assault, menace, battery, wounding and imprisonment, shall be limited to four years; (c) and the actions on the case for verbal slander, shall be limited to two years. - But to these limitations, there are exceptions, in favour of persons labouring under disability.

N. B. Between these two classes of limitations, there is this important difference, namely, that the former statute concerning real property has, by its express provision, the effect of extinguishing the right, as well as of barring the remedy; whilst the latter, concerning personalty, bars the remedy only, without extinguishing the right, so that though I can bring no action to recover a debt on contract, after the expiration of the limited period, there is nothing to prevent my obtaining payment of the debt after that period in any other manner. - This distinction is particularly important for the forum conscientiae.

In the United States, the matter is regulated by statutes which substantially agree with the English regulations as above explained. However, in many States, the period of time during which an action may be brought to recover real property, is twenty years, as it used to be in England before. - Besides, in some States, special laws have been enacted allowing squatters sooner to become owners of the lands they have cultivated in good faith.

[Pages 16* and 17* of the Supplement are missing from the only scan we have; the text resumes mid-sentence on p. 18*.]

include an indemnity against the obligations which he has contracted under the contract which is set aside, but it cannot, as a rule, include damages for loss sustained.

(C) These untrue conclusions may have been induced by representations of the other party made with a knowledge of their untruth and with the intention of deceiving: this is fraud. The person injured by fraud has several remedies: (a) he may affirm the contract and ask for a fulfilment of its terms, or damages for such loss as he has sustained by their non-fulfilment; (b) he may avoid the contract, either by taking active steps to get it cancelled on the ground of fraud, or by resisting a suit for specific performance, or an action for damages brought in respect of it; (c) if, after becoming aware of the fraud, he does not give notice of his intention to avoid the contract, he may lose his option to affirm or avoid the contract, but he retains the right of entering an action for deceit and of recovering by that means such damage as he has sustained.

(D) The consent of one of the parties may have been extorted from him by the other by actual or threatened personal violence¹: this is duress. A contract entered into under duress is not void ipso facto, but is voidable.

¹ It is considered to be personal, when the subject of it is the contracting party himself, or his wife, parent, or child.

(E) Circumstances may render one of the parties morally incapable of resisting the will of the other, so that his consent is no real expression of intention: this is undue influence. Contracts made under such an influence are voidable, not void. As soon however as the undue influence is entirely withdrawn, the contract may be reaffirmed by the influenced party and thus become valid.

4° Of the subject-matter of contracts. The subject-matter of a contract may be either some real or personal estate, or some exercise of "skill and labor," or some right or some forbearance of an existing right, or any other matter beneficial to the person to whom it is to be given, or for whom it is to be done. But certain objects of contract are forbidden or discouraged by law.

(A) Some contracts are forbidden by Statute; thus certain wagers² have been declared to be void, in England, by the Gaming Act of 1845, enacting: "that all contracts or agreements, whether by parole or in writing, by way of gaming or wagering, shall be null and void; and that no suit shall be brought or maintained in any Court of Law or Equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made".

² A wager is a promise to give money or money's worth upon the determination or ascertainment of an uncertain event; wagers, or wagering contracts, made by a man to protect himself against a risk (marine insurance, life insurance) are perfectly lawful; but wagers made entirely for sport or gambling are forbidden.

(B) Other contracts are illegal at Common law; such are agreements to commit a crime, an indictable offence, or a civil wrong; agreements to injure the public service, or to pervert the course of justice; agreements which are contrary to good morals.¹

¹ Thus a promise made in consideration of future illicit cohabitation is unlawful; a promise made in consideration of past illicit cohabitation, is not considered to be illegal, but a mere gratuitous promise, binding, if made under seal, void if made by parol. (Anson, op. cit., p. 217-218.)

N. B. The effect of illegality upon the validity of contracts varies according to circumstances; it may affect the whole or only a part of the contract; the contract may be simply discouraged, in as much as the law will not enforce it, or made void. (a) When the contract is divisible, i. e. when you can sever the illegal from the legal part, you may reject the bad part and retain the good; but where you cannot sever them, the contract is altogether void. (b) From the text of the law, it must be considered whether the contract is forbidden under penalty, without being declared void, - or whether it is simply discouraged, but without any penalty, - or whether it is purely and simply made void.²

² As for illustrations, see Anson, op. cit., p. 224-227.

5° Of the parties to a contract. Any person, not debarred therefrom by law, may make a contract. Now certain persons are by law incapable, wholly or in part, of binding themselves by a promise, or of enforcing a promise made to them. This incapacity may arise from political or professional status, - from youth, - from the marriage bond, - from permanent or temporary aberration of mind.

(A) From political or professional status: (a) An alien cannot acquire property in a British ship. - An alien enemy cannot, without licence from the Crown, make any fresh contract or enforce any existing contract during the continuance of hostilities; but his rights as to contracts made before the commencement of war are only suspended, and can be enforced upon the conclusion of peace. - A person convicted of treason or felony cannot, whilst undergoing sentence, make a valid contract, nor enforce contracts made previous to conviction; but these may be enforced by an administrator appointed by the Crown. (b) A barrister cannot sue for fees due to him for services rendered in the ordinary course of his professional duties.

(B) From youth. (a) In England, the Common law about infants has been modified by the Infants' Relief Act of 1874, which provides as follows: "All contracts whether by specialty or by simple contract henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void. - No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall be or shall not be any new consideration for such promise or ratification after full age". - From this it follows that contracts for necessaries are binding on infants, although they may take the form of supply of goods or even a loan of money; it belongs to the Court to determine whether the things supplied can reasonably be considered necessaries at all, according to the station in life of the infant or the peculiar circumstances in which he may be placed. Again contracts of apprenticeship and with regard to labor are not void on the plea of infancy alone; when the contract, carefully examined in all its terms, is for the benefit of the infant, the Court will not allow the infant to repudiate it. Besides, if an infant has paid money for goods received, and taken benefit under the contract, he cannot recover the money so paid.

N. B. In the United States, the contracts of infants, except those for necessaries, are voidable only, at their option. Besides, contracts for necessaries do not bind them, when they are sufficiently supplied by their father, mother or guardian.¹

¹ Browne, Domestic Relations, p. 107-112.

(C) From the marriage bond. Formerly the contracts of a married woman were, as a rule, void. But, in England, by the Married Women's Property Acts of 1882 and 1893, a married woman may enter into contracts, and render herself liable thereupon, as though she were a feme sole, in respect of and to the extent of her separate property acquired before or after marriage.²

² Anson, op. cit., p. 137.

In most of the States of the Union, the same doctrine begins to prevail, and the contract of a married woman may be enforced against her separate property, when it relates to or is made for the benefit of her separate estate, or when created in or about carrying on a trade or business of the wife.³

³ Browne, op. cit., p. 45-47.

(D) From permanent or temporary aberration of mind. (a) The contract of a lunatic is binding upon him, unless it can be shown that, at the time of making the contract, he was wholly incapable of understanding what he was doing, and that the other party knew of his condition. (b) A contract made by a person in a state of intoxication may be subsequently avoided by him, but if confirmed, whilst he is sober, is binding on him.

The contract of sale is a contract by which the property in goods is transferred from one person to another for a price. Where this price is money, it is a sale proper; where it is goods, it is called exchange or barter. Again there is a difference between a sale and an agreement to sell: where the property in the goods is transferred from the seller to the buyer, the contract is called a sale; but where the transfer is to take place at some future time, or subject to some condition thereafter to be fulfilled, it is an agreement to sell. - To constitute a sale, the goods sold must be specific, i. e. sufficiently determined, - in a deliverable state, and the sale must be unconditional; if any one of these requisites is missing, the contract is only an agreement to sell.

¹ Stephen, vol. II, p. 73-86; Anson, p. 85-86 et alibi passim; Kent, vol. II, Lect. XXXIX.

1° In Great Britain, the contract of sale is now regulated by the Sale of Goods Act, 1893; we shall give a brief summary of the main points contained therein.

(A) With regard to the transfer of property: (a) In the case of a sale for ready money, of specific goods, immediately deliverable, the property in the goods is transferred, as soon as the price is agreed upon by the two parties, provided one of these three conditions is fulfilled: 1) delivery of the goods or of any portion of them, by way of earnest, or tender of delivery, - 2) payment or tender of payment, - 3) if any part of the price be paid down and accepted. - (b) In the case of a sale of goods on credit, i. e. when the goods are to be delivered forthwith, but to be paid afterwards, the property passes to the vendee immediately upon the striking of the bargain, without either delivery of the goods on the one hand, or tender of payment on the other. - (c) Where there is a contract for the sale of unascertained goods (i. e. not specific), the property passes not until the particular goods are ascertained or made specific by weighing out, or by severance or otherwise. - (d) Where the goods are not in a deliverable state, the property remains in the vendor and at his risk; sometimes, as in the case of ships which are being built under a contract to pay piecemeal as certain parts of the vessel are completed, the property passes piecemeal from the vendor into the vendee.

(B) With regard to the right of possession. Even in the case of a sale of specific and finished goods, the vendee cannot take the goods (if bought for ready money), until he pays or tenders the whole price agreed on. But, if he tenders the money to the vendor, and the latter refuses it, the vendee may seize the goods, or bring an action against the vendor for detaining them.

(C) When the goods are sold for the price of ten pounds sterling or upwards, the contract of sale shall not be enforceable by action, except the buyer shall either accept part of the goods and actually receive the same; or unless he shall give something in earnest to bind the bargain, or in part payment; or unless some memorandum or note in writing of the bargain be made and signed by the party to be charged with such contract, or his agent thereunto lawfully authorized.

(D) If the vendor of goods transmit them to the vendee, without receiving payment of the price, and afterwards become aware that the latter is insolvent, the law allows him the right of stoppage in transitu, i. e. of reclaiming the goods, whilst they are still in their transit, and not yet delivered to the vendee.

(E) With regard to the transfer of rights from the vendor to the vendee, attention is to be paid to the following regulations:

(a) "Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell.

(b) Where goods are sold in market-overt,¹ according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller...

¹ By sale in market-overt is meant selling goods in open market as opposed to selling them privately. In the country the market-place or piece of ground set apart by custom for the sale of goods is in general the only open market there; but in London, and in other towns where so warranted by custom, a sale in an open shop of proper goods is equivalent to, and in fact amounts to, sale in market-overt. (Indermaur, Principles of the Common Law, 6th ed., 1891, p. 323.)

(c) When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller's defect of title.

(d) Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market-overt or otherwise...

(e) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender.

(f) Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same."

(F) As for the execution of the contract, these are the main points to be minded: -

(a) "It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.

(b) Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.

(c) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the seller's place of business, if he have one, and if not, his residence: provided that, if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery...

(d) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered, he must pay for them at the contract rate. - Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate. - Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.

The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.

(e) Where, in pursuance of a contract of sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer. - Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages...

(f) The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. - Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them."

2° In the United States, the same regulations are substantially in force, subject however to a few modifications from the Statutes of the various States.

A will or testament is an instrument by which a person makes a voluntary disposition of his property to take effect after his death.

¹ Stephen, vol. I, p. 543-564; Schouler, A treatise on the Law of Wills, 3rd ed., Boston, 1900; G. F. Tucker, Your will: how to make it, Boston, 1896.

1° Who may make a will? All persons of sound mind, except infants and married women, whose capacity is somewhat restricted.

(a) Soundness of mind, such as will enable a person to make a will, has relation to the business to be transacted: hence his mind must have been sound with reference to whatever is involved in this transaction: he must have been able to understand the nature of his property, and his relations to those persons who are about him and to those who would naturally have some claim to his remembrance; he must have been capable of understanding the nature of the act he was doing, and free from any delusion which was the effect of disease and which would or might lead him to dispose of his property otherwise than he would have done, if he had known and understood correctly what he was doing. - Therefore the will of an idiot, or lunatic, or insane person is invalid when he is wholly without mental powers or self-control, or when the nature of its provisions is such as he could not have comprehended it, or when it is made under the influence of some delusion, or in obedience to an impulse at once unreasonable and irresistible, or under the pressure of external conditions which perverted his judgment, or exercised such undue influence over his testamentary act as it could not have been entirely voluntary.¹ - The capacity of making a will must exist when being made, and subsequent incapacity will not invalidate it.

¹ Robinson, Amer. Jurisprudence, § 36. - To break a will for drunkeness, it must be proven by contestants not only that the testator was intoxicated but also that he did not comprehend what he was doing.

(b) With regard to infants, at common law, they cannot devise real property, but may make a will of personal property at 14, if males, and at 12, if females. But this was modified in the United States by some statutes, which allow a greater capacity to infants.

(c) Married women, at common law, could not make a valid will, and marriage revoked their wills already made. But now it is otherwise. In England, by virtue of the New Wills Act, married women have the fullest power of devise in regard to their separate estate. In most of the States of the Union, the wife's will made before marriage is no longer revoked by marriage, and she may generally bequeath her own separate property as if unmarried. Besides she can make a will in favor of her husband, and such a will is no longer revoked by her second marriage.²

² Browne, Domestic Relations, p. 54-55.

2° Who may receive by will? Generally every person, even infants, wives, insanes, except those expressly forbidden by law. Now, as a rule, witnesses subscribing to the will cannot be legatees, unless they be creditors whose debts are, by the will, made a charge on the real estate. Corporations can receive by will only to the extent allowed by their charter. In a few American States, aliens are still debarred from the privilege of being legatees. - In most of the States, a testator may cut off his children, if he pleases; but in some, the law provides that, if a child is not mentioned in the will, he shall take the same share of the estate as he would have been entitled to, if his parent had died intestate: this accounts for the familiar provision of a legacy to a child of a dollar, thus to mention his name.

3° What property may be bequeathed? As a rule, all the property, real or personal, which one owns, after all the debts have been paid. Formerly, at common law, the testator could dispose only of the property already acquired at the time of making the will; but now, in England as well as in most States of the Union, one may dispose by will of all real and personal estate, legal or equitable, to which he or she shall be entitled at the time of death. Yet, there are certain kinds of property, such as an estate of homestead, a life insurance, that are devisable only under certain conditions, for which it may be necessary to consult with a lawyer.

4° Legal forms of wills. Two kinds of wills are recognised by law: nuncupative and formal. A nuncupative will is an oral will declared by a testator before witnesses, and afterwards reduced to writing; it is valid when made by a soldier in actual military service, - i. e. engaged in an expedition, - or a sailor at sea, or, in some States, by other people in extremis who are prevented from executing a formal will. But, apart from these exceptional cases, all wills must be in writing.

(A) In England¹: (a) No will is valid, unless it be in writing, and signed at the foot or end thereof by the testator or some other person, in his presence, and by his direction, such signature being also made or acknowledged by him, in the presence of two or more witnesses, present at the same time, and such witnesses attesting and subscribing the will in his presence. According to the new statutes, the incompetency of any attesting witness will not invalidate the will; yet, any beneficial gift to an attesting witness, or to the husband or wife of an attesting witness, remains void.

¹ Stephen, l. c., p. 551-554.

(b) As to revocation, no will shall, under the new statute, be revoked by the marriage alone of a testator or testatrix. A revocation may, however, take place by the execution of another will or of a codicil, or of some writing of revocation executed like a will, or by the burning, tearing, or other destruction of the original will by the testator or by some person in his presence and by his direction; - obliteration and other alteration made after execution are of no effect, where the original meaning can still be deciphered, unless executed with the same ceremonies as the will itself, or the signature of the testator and the subscription of the witnesses, be made opposite or near the part altered, or at the foot or end of some memorandum written on the will, and referring to the alteration.

(c) When a will is once revoked, it is not to be revived otherwise than by re-execution of the original, or by a codicil duly executed and showing an intention of revival.

(B) In the United States, the same rules are substantially enforced with a few exceptions introduced by statute-laws. (a) So, in a very few States, holograph wills are allowed: they must be entirely written, dated and signed by the testator's own hand, and when it is so, no subscribing witnesses are required.

(b) But, in most of the States, two or three witnesses are required: any one may be a witness who is competent to give testimony, and is not, on the other hand, beneficially interested in the will. If the will is not written by the testator, but by another person, this person shall write his own name as a witness, in the presence of two other witnesses; - besides, the testator shall write his full name at the end of the will, - or, if he does not know how to write, he will make a cross or any other mark. - It is not necessary that the witnesses should know the contents of the will; but the testator must acknowledge, in their presence, his signature, and declare that this paper is his last will and testament. Then the will is to be signed by them, in presence of the testator and in the same room; in some States, the simultaneous presence of all the witnesses is required. If the witnesses cannot sign, a cross or other mark will suffice. They should also write out their addresses, though this is not necessary for the validity of the testament. - A codicil, i. e. any new disposition added to the will, is subject to the same legal forms as the will itself.

(c) As a rule, a will is revoked by marriage and the birth of a child subsequent to the writing of the will, if the wife and child were wholly unprovided for; but marriage alone will not, in most of the States, break off the will. It may be also revoked by the destruction of the original will, or execution of another will, as explained above, p. 26.

5° Of the executors or administrators of the will. It is well for the testator to appoint an executor of the will; otherwise, the Court will provide for it by appointing an administrator. The appointment of an executor may be qualified by limitations as to time, place and subject matter, and the appointment may be conditional. - As a rule, any one capable of making a will may be an executor. In some States, minors may be named as executors, but they cannot act if they are under twenty-one years of age when the testator dies. In most States, a single woman may now be an executor; and, under modern statutes, married women may also, in many States, act as executors, without any assent on the part of their husbands.

The duty of an executor, after burying the deceased party, is to have the will proved in the proper Court, and, after probate, to make an inventory of the property,¹ which must be filed within a stated period in the register's office. Then he will administer the property according to the directions of the will and the laws of the State. Where there is a deficiency of assets, if there are no directions in the will on the subject, personal property is generally to be used first to pay debts with, and real property afterwards.

¹ By way of exception, an inventory may not be necessary, where the testator makes the executor the residuary legatee. But, in this case, if there is not property enough to pay debts and legacies, the executor may have to pay them out of his own property.

He must pay the debts of the deceased, and observe the rules of priority, according to the several degrees which the law has established in this matter; next the legatees are to be paid.¹

¹ As for the order to be followed in the payment of debts and legacies, see Stephen, vol. II, p. 209-215; and, with regard to the United States, the various Statutes.

Executors or administrators are not allowed to retain a part of the revenue as a payment for their services, except by order of the Court.

6° A few practical suggestions on making a will. (a) If you are of age, and have any property of your own, make a will as soon as possible: else a part of your estate might be wasted in legal expenses. Do not put it off until you are dying: wills written when the testators are in extremity are often unsatisfactory, as important matters are likely to be forgotten, and suspicion of undue influence may be aroused.

(b) A will entirely of your own handwriting affords the best proof that it is genuine; but take heed that its legal expressions be sufficiently clear; hence, be not satisfied with reading the statute-law of your own State on the matter of wills, but consult a lawyer, and show him your draft. After your will has been prepared, think its provisions over, for two or three days before executing it, provided of course you are not in danger of death.

(c) Write out your will in a plain and clear style; if it is obscure, the Court may have difficulty to get at your intention. See that the words used by you not only convey your meaning, but that they convey no other meaning. If you make a detailed will, be careful in the description of the property devised to your legatees. - When the will is written on several sheets of paper, it is safe to sign every sheet, the better to identify it.

(d) See whether, in case your legatee dies before you, you wish his children or other representatives to take his share, and express it clearly.

(e) Have witnesses respectable for their character and good standing, clear-headed, honest and disinterested, one or two more than the number strictly required, who are not your own legatees. Talk with them clearly and intelligently upon matters of local and personal interest, so as to impress upon them that you are perfectly sound of mind and free from all undue influence.

(f) When once your will has been executed, permit no alteration of any sort: but, if you have changed your mind, make rather a new instrument.

(g) Keep your will in such custody as it will not be destroyed or altered, and leave a sealed copy of it to a trustworthy friend.

In the case of an intestacy, i. e., where no will has been made, or where the testator has not disposed of his whole estate, the property or its residuum has to be divided according to the law of descent.

1° In England, a distinction is to be made between real and personal estate.

(A) The rules of descent applicable to the real estate of persons dying before the first day of January, 1834, are as follows:¹

¹ These rules are condensed from Stephen's vol. I, p. 369-406, to which we refer our readers for a clear exposition of the same.

(a) In every case the descent shall be traced from the purchaser; now the word purchaser means here the person who last acquired the land otherwise than by descent.

(b) Inheritance shall in the first place lineally descend to the issue of the purchaser, in infinitum.

(c) The children of the purchaser are preferred to the grandchildren or remoter issue; among such children, males are preferred to females, and an elder male is preferred to a younger; but females take together.

(d) The issue of the children of the purchaser represent or take the place of their deceased parents in infinitum, subject always to the third rule (c).

(e) On failure of the issue of the purchaser, the inheritance shall descend to the nearest lineal ancestor then living in the preferable line, - supposing no issue of a nearer deceased ancestor in that line to exist.

(f) Among the lineal ancestors of the purchaser, the paternal line is always preferred to the maternal.

(g) Where an ancestor, to whom, if living at the purchaser's death, the inheritance, would according to the fifth rule (e), descend, dies before the purchaser, leaving issue, the issue of such ancestor in infinitum shall represent him, according to the same law of succession laid down with respect to the issue of the purchaser; but with this addition, that those related by the whole blood to the purchaser, are preferred to those related by the half-blood.

(B) With regard to the personal estate, according to the Statute of Distributions (22-23 Car. II, c. 10) and the Intestates' Estates Act, 1890, it must be distributed in the following manner:

(a) One-third should go to the widow of the intestate, and the residue in equal proportion to his children; or, if they were dead, to their representatives, that is their lineal descendants; if there were no children or lineal descendants, then a moiety is to go to the widow and a moiety to the next of kindred in equal degree,¹ and their representatives; therefore the father succeeds to all the personal effects of his children who die intestate without wife or issue, in exclusion of the deceased; if the father be dead, and any of the children die intestate without wife or issue, the mother and each of the brothers or sisters of the deceased (or their representatives) shall divide his effects in equal portions.

¹ The propinquity of degree is reckoned according to the computation of the civilians (Roman jurists); cfr. Stephen, vol. II, p. 201.

(b) If no widow should survive, the whole estate is to go to the children; if there were neither widow nor children, the whole is to be distributed among the next of kin in equal degree, and their representatives.

(c) No children of the intestate on whom he may have settled, in his lifetime, any estate in lands or pecuniary portion equal to the distributive shares of the other children, shall have any part of the surplusage (the remainder of property) with their brothers and sisters; but, if the estates, so given them by way of advancement, shall not be quite equivalent to the other shares, the children so advanced shall have as much as will make them equal to their brothers.

(d) When a husband dies intestate (after the 1st September, 1890) and leaves no issue, the whole estate, real and personal of the deceased now passes to his widow, if it be under a total value of 500 pounds; and where such estate exceeds that value, she now takes 500 pounds out of it, in priority to all persons entitled under the Statutes of Distribution (as above); and then, the residue of the personal estate is distributable according to the former law, that is to say, one half to the widow and the remaining one-half among the next of kin.

2° In America, the laws of descent vary according to the Statutes of the various States, and, as changes in this matter are frequent, it is necessary to take into consideration the latest statutes. The only general rule is that the property goes to the lawful descendants in the direct line, i. e. to the children, next to the grand-children, and so on, without distinction of sex. Where the descendants are in equal degree, each one receives an equal share, and therefore takes per capita; for instance, if there be three brothers, each one will receive one third of the inheritance. Where the descendants are of different degrees, - v. g. one child and two grand-children, - the grand children take per stirpes, or representation, i. e. inherit only such a share as their parents would have respectively inherited. To illustrate: A. leaves B. a son and two grand-children D. and E., sons of C, who died before his father; B. gets a half of the estate: D. and E. take one fourth each, because their father would have taken a half, which is equally divided between them. We conclude with the remark of Robinson, Elem. Law, § 126: "Each of the States has its own laws of descent, subject of course to occasional changes, and the only reliable source of information concerning them is the statute-books, in which they are contained".