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Theophilus Parsons.

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CONTENTS. XII

CHAPTER XXXrV.

LAW OF Copyright.

PAGE

St)Ction I. — \Vliai m&y be the Subject of Copyiiglit .... 591

n. — How CopyrigKts are to be obtained ..... 592

■• III. — Punishment for Infringement of Copyright .... 59-i

Forms.
Form 201. — Agreement betw&^in Author and Publisher ; short Form . 596
202. — Agreement between .Author and Publisher ; fuller Form . 596
203. — Assignment of a Copyright ...... 598

CHAPIEU XXXV.

MEANS PROVIDED FOR THE RECOVERY AND COLLECTION OF

DEBTS.

1 . — AiTest and Imprisonment ... ..... 599

2. — Ti-ustee Process . . . . . . -. . .599

8. — The Homestead . ... . . . • . . .600

CHAPTER XXXVI.

LIENS OF MECHANICS AND MATERIAL MEN FOR THEIR "WAGES

AND MATERIALS.

What is a Lien ....... ... 601

• Forms.

Form 204. — Notice under Mechanic's Lien Law 603

205. — Bill of Particulars of Mechanic's Claim .... 604

206. — Release and Discharge of a Mechanic's Lien . ,. . 604

207. — Release and Discharge of a Mechanic's Lien , another Form 605

CHAPTER XXXVn.

PENSIONS.

Instructions , . 606

Army Pensions. . . . . . . .' . . . 608

Navy Pensions . , ^ . . 610

Act of July 14, 1862 611



XX



CONTENTS.



Act of July 4, 1864 611

Act of June 6, 1866 614

Act of July 25, 1866 620

Act of July 27, 1868 622



Form 208.
209.
210.

211.

212.
213.
214.
215.
216.
217.
218.
219.
220.
221.
Guardian's



Forms.

— Declaration for an Invalid Pension ..... 625

— Declaration for obtaining a Widow's Army-Pension . . 626

— Declaration for Minor Children in order to obtain Army-

Pensions ......... 627

— Declaration for Mother's or Father's Application for Army-

Pension 628

— Declaration of Orphan Brothers or Sisters for Army-Pension 629



— Declaration for the Increase of an Invalid Pension

— Declaration of the Guardian of a IMinor Child .

— Widow's Declaration for an Increase of Pension

— Guardian's Declaration for Increase of Pension

— Declaration for Widow's Pension and Increase

— Declaration for Restoration to the Rolls

— Declaration for Arrears of Pensions .

— Declaration for Increase of Pension .

— Surgeon's Affidavit. Navy Claims .
Claims under Section 4, Act of July 27, 1868



630
631
632
633
634
636
637
638
638
639



CHAPTER XXXVm.
THE DISPOSAL OF TROPERTY BY WILL.



Section I. — Wills .
n. — Codicils
in. — Revocation of Wills

Form222. — A Wm



. 640
. 643
. 643

. 644



CHAPTER XXXIX.
EXECUTORS AND ADinNISTRATORS.

FoTTM.

Form 223. — Petition to be appointed Executor, without further Notice
224.— Executor's Bond



648
649



CONTENTS. XXI

PAGE

225. — Bond of Executor, who is also Residuary Legatee . 650

22G. — Administrator's Bond ....... 650

227. — Administrator's Petition for leave to sell a Part of the Heal

Estate 651

228. — Administrator's Petition for leave to sell the Whole of the

Eeal Estate 652

229. — Bond of Administrator licensed to sell Real Estate . . 653

230. — Account of Executor 651

CHAPTER XL.

GUARDIANS.

The rights and duties, powers and liabilities, of Guardians . . . 655

CHAPTER XLI.

ST^iMP ACT.

Schedule of Stamps required on different Instruments . , , . 657
Remarks on Stamp Duties . . . . . . . . . 608



NOTE.



Mt first chapter will state the purpose for which I have made this book, and the use I
hope it will perform.

I first attempted to make snch a book, compiling it from the law-books I had already
made for the profession ; and, adding a few Forms, published it in 1857 as " The Laws of
Business for Business-Men, in all the States of the Union." I became satisfied that this
book was open to three important objections. One, that it contained ycry much of argu-
ment, and the consideration of minute questions, which were out of place in a book
intended not for the profession, but for the community. Another objection was, that
very many more Forms were necessary to make the book as useful as it might be. The
third objection was, that as that book was entirely compiled from my other books, and
contained no topic not embraced in thera, it did not cover all the ground that the public
had a right to expect that a book of this kind would occupy.

I proposed, from time to time, to make a new edition of this work, and, indeed, made a
beginning of this ; but I became satisfied that this would not suffice, and that nothing
would suffice but a new book. This I have now made, and offer it to the community.

I have retained in this book a part of the title, and so much of the text, of the former
work as I thought would be useful ; rewriting it with such changes as might make it more
easily understood, and more useful. I have added many chapters on new.topics; and I
have multiplied the Forms tenfold. Of these Forms some are entirely new, composed by
me for this book ; others are selected with great care, from the widest collection I could
make of Forms sanctioned by use in various parts of the country. In these I have made
changes and additions, with directions for use. Some of these Forms will be found brief
and simple ; others of them, especially those in relation to real estate, are full and
minute. No-one but a lav/yer knows how necessary it is to use the technical, customary,
and established language of Forms, every phrase of which has been through repeated liti-
gation, and has thus acquired a certain meaning. Much in such Forms will seem, to those
ignorant of law, to be wordy and with much repetition ; but, if the Forms are made appar-
ently more simple by omissions and abbreviations, they may be good, and they may not:
and whether they are or not cannot be known except by litigation. And he must be a
bold lawyer who would undertake to prefer Forms of his own make to those which the
Courts and common use have sanctioned. This I Lave not done, because the very object
of this book is to enable persons who use it to conduct their business-affairs with ease,
safety, and certainty.

I think such a book possible, and I venture to hope that I have made such a book. 1
know only that whatever labor and care could do to make the book useful and safe has
been done. I have not made my law-books with the efforts which each required, and
then cast off" this book for more general use, lightly ; for in nothing that I have pub-
lished have I labored more strenuously to make my work satisfy the just requirements of

those to whom it is offered.

THEOPHILUS PARSONS.




) ^ 3.
THE LAWS OF BUSINESS.



CHAPTER I.

rL-HOS I»XJIti»OBE JkJS'D USE OF" THIS 3300K:.

The title of tliis work indicates, to some extent, its purpose and
character ; but, as they are in certain respects peculiar, it is thought,
that some remarks respecting thern may make the volume more useful.

Twenty years ago, after more than twenty-five years of practice
at the bar, I accepted • the office of Dane Professor in the Law
School of Harvard University. I have employed whatever leisure
the duties of that office have left me, in preparing a series of
text-books on Commercial Law. I have published many volumes ;
and the manner in which they have been received by my brethren,
calls, for my most grateful acknov.-ledgmcnts. One of those works
was entitled " The Elements of Mercantile Law," and was intended
as a general epitome of all Commercial Law. I began it mainly for
the use of lawyers, but at the same time hoping that it might be so
written as to be useful to others who were not lawyers. Before I
had made much progress iii it, the hope that one book could answer
these two purposes faded away ; and I finally made that work ex-
clusively for lawyers. But the circumstance that many persons who
were not lawyers, and did not intend to be, have bought my works, —
the remarks that have reached me in relation to them, and particu-
larly in reference to that above mentioned, from such persons, —
and many other kindred facts, — have given additional strength to
a belief that has led me to prepare this volume, for wide and general
use.

That belief is, that there is a strong and growing disposition,



2 PURPOSE AND USE OF THIS BOOK.

among the men of business of this couutryj to understand the laws
of business. This disposition, and the actual diffusion of this knowl-
edge, hare both greatly increased of late years, and I believe could
not have been arrested ; for this progress is one element of advancing
and improving civilization ; and I think it cannot now be prevented.

The institutions and characteristics of this country have their bear-
ing upon this question. We have no sovereign but the law ; or
rather the people is the sovereign, and the law is their only utterance.
It is a sense of this that has here transferred, m some degree at least,
the loyalty which in the kingdoms of the Old World attaches to a
person, to the law itself, using this word in its most comprehensive
sense. This is a good thing ; not because the law is always wise and
good, but because it will more probably become wise and good, if
the whole community recognize it as entitled to obedience, and there-
fore entitled to their constant, earnest,, and vigorous endeavors to
cure its defects, and bring it into harmony with tliose princijilcs of
truth and justice of which it should be the expression. This great
duty rests upon us with the stronger obligation because of our
greater intelligence and activity of mind, or more general education
and wider extent of common knowledge ; all which are none the less
facts, altbough they are sometimes used as mere food for vanity, or
as topics for adulation. And all these things together seem to lead
to the conclusion, that here and now proper efforts should be -made
to supply all of the community who ask for it, — with accurate and
practical information concerning those laws which are of the most
immediate concern to them.

So far as concerns the whole people, their wish, if expressed in tbe
simplest terms, would Undoubtedly be, to know the laws which must
regulate their conduct and determine their rights. This wish admits
of but one question ; it is. How far is this thing practicable ? for so
far as it is, its propriety and expediency can hardly be denied or
doubted. Indeed, they who would most strenuously oppose any effort
to teach the people the law, would do so only on the ground that it is
impossible to give to the public any knowledge of this kind which
would be wide enough and accurate enough for use. They would
tliink that the very endeavor to learn the law, by persons the main
business of whose lives must be of a very different kind, would lead



PURPOSE AJsTD USE OF THIS BOOK. 3

cnlj to a superficial and erroneous view of the subject ; and this,
under the name of knowledge, is only the most dangerous ignorance.

We should, however, remember, that the people generally, here and
elsewhere, must necessarily know a certain amount of law, for with-
out this they cannot live safely in society. For example, men in
business must know something of the most general laws of business ;
as how to conduct their sales, how to make notes, how to collect
them, and the like ; and all men must know so much of ordinary
law as protects and defines their common and universal rights.
Moreover, it will probably be admitted that important mistakes,
leading to much loss and difficulty, are every day made, because
many do not know those general principles or rules of law which
some do know, and which every man in business might know. The
question, therefore, can only be, how much of law it is possible and
desirable for men in business to learn ; and what is their best way
of learning it.

Here let me remark, that few persons, who have not had occasion
to study and to teach Commercial Law as a whole, are aware of that
unity and harmony of its principles, which make it indeed a system
of laws ; or of the prevailing simplicity and reasonableness of its
rules. An eminent English lawyer has said, that it was astonishing
within how small a space all the principles of commercial law may
be compacted. It is equally true, that tlie laws of business are
generally free from mere technicality and obscurity ; and the reason
is, that they are for the most part, and substantially, nothing more
than the actual practice of the business community, expressed in
rules and maxims, and invested with the authority of law.

The knowledge which a trader acquires of the laws of trade need
not, at all events, be superficial ; for a knowledge of principles, and
an intelligent appreciation of them, however limited it may bo,
should not be regarded as superficial. And these limits need not bo
narrow. The extent of this knowledge, and its accuracy, tliorough-
ncss, and utility, must obviously depend upon the books from which
it is acquired, and upon the manner of ushig those books.

Considerations of this kind led me to the belief, that it was possi-
ble to make a book, which should place within the apprehension of
every intelligent trader, and of every young man who proposes to



4 PURPOSE AND USB OF THIS BOOK.

engage iii any department of business (and this now means almost
every man in the community), at the cost of no more time than
every one can conveniently give to it, a useful knowledge of all the
elements, or general rules and principles, of the Laws of Business.

In other words, I thouglit it an undeserved reproach of our Laws
of Business, to say that they were not intelligible by all, if stated
with simplicity and accuracy ; and an equally undeserved reproach
of our Men of Business, to say that they could not comprehend laws,
which were made for them, and were intelligible in. themselves, and
plainly stated. It seemed to me, therefore, that tlie time had come,
in this country, for a book which no one has ever attempted to make
anywhere heretofore. This book should contain all the principles
of all the branches of the laws which regulate the common transac-
tions of life, stated with all the accuracy that care and labor could
insure in any book, and so stated that any man of good capacity,
with reasonable effort, might understand all of them ; and might,
with the help of the Index, find in the volume a true and intelligible
answer to the questions wliicli every day arise ; and might, if he
were willing to make a regular study of the whole book in course,
become acquainted with the rules, and the reasons of the rules, by
which all business may be safely conducted. And this book I
have endeavored to make. I have compiled it, mainly from the law-
books I have already made fw the profession. If they are accurate
and trustworthy, this is so ; and I may be permitted to say, that
whatever earnest endeavors could do to make those books trust-
worthy was done ; and that accumulated testimony, which I have
no right to disregard, encourages me to hope that I have not labored
in this respect in vain.

I have made changes which seemed to be required by the intended
adaptation of this book to merchants and not to lawyers. These
are, first, the omission of citations and references to reports
and authorities ; next, the addition of some elementary rules and
principles and definitions, which would not be necessary in a book
for lawyers only ; and lastly, the use of common or non-professional
language, the general omission of merely technical words, and the
full explanation of such words when they are used.

If there are those who are preparing for a life of business, or are



BUSIIHESS LAW IN GENERAL. 5

now engaged in it, who will study this volume, in course, — dwelling,
on what seems most important, and examining with care what seems
obscure, — I venture to hope that they will find the work so ar-
ranged, and the meaning so expressed, that what conies before
explains what follows, and every part of it will be intelligible. At
the same time, I have labored to make every thing plain hy itself ,
as far as that was possible, that it might not disappoint those who,
without reading it in course, look into it for an answer to questions
as they arise. And for such persons I have endeavored to have the
Index of Subjects (at the end of the book) exceedingly full and
minute.

I have added a great variety of Forms. Of course no collection
of Forms could be made large enough to meet the exact facts of
every case that can arise. But it is possible to give accurate Forms
of all sorts ; and any person can select the Form nearest to his par-
ticular need, and easily make the alterations which the facts of his
case require.



CHAPTER n.

All law is divided into what is called, in law-books, common law
and statute law. "We have legislatures, and our fathers had them ;
and a very large proportion of the laws now binding upon us were
made by those legislatures in a formal and regular way. All these
are Statutes ; and taken altogether, they compose the Statute Law.
Beside this, however, there is another very large portion of our law
which was not enacted by our legislatures ; and it is called the
Common Law. In fewer words, all law was regularly enacted, or
it was not. If it was, it is statute law; if it was not so enacted, it
is common law.

The common law of the several States of this country consists, iu



6 BUSINESS LAW IN GENERAL.

tlie first place, of all the law of England — whether statute or
common there — which was in force in that State at the time of
our independence, and recognized by our courts, and which has not
since been repealed or disused. And next, of all those universal
usages, and all those inferences from, or applications of, established
law, which courts in this country have recognized as having among
us the force of law. For this common law there is no authority
excepting the decisions of the courts ; and we have no certain
means of knowing what is or is not a part of the common law,
excepting by looking for it in those decisions. Hence the value and
importance of the reported decisions, which are published by oflScial
reporters in most of our States.

A very important part of the common law, especially to all men
in business, is what is called, by an ancient phrase, the Law-Mer-
chant. By this is meant the law of merchants ; or, more accurately,
the law of mercantile transactions ; and by this again is meant all
that branch of the law, and all those principles and rules, which
govern mercantile transactions of any kind. Tliis great department
of the law derives its force in part from statutory enactments, but
in far greater part from the well-established usages of merchants,
which have been adopted, sanctioned, and confirmed by the courts.
For example, a large proportion of the law of factors and ^brokers,
most of that of shipping and of insurance, and nearly all the pecu-
liar rules applicable to negotiable paper (or promissory notes and
bills of exchange payable to order), belong distinctly to the Law-
Merchant.

The courts of this country have always acknowledged that a
custom of merchants, if it were proved to be so nearly universal
and so long established that it must be considered that all mer-
chants know it and make tlieir bargains with reference to it, consti-
tutes a part of the law-merchant. And the law-merchant is itself
a part of the common law, and therefore has the whole obligatory
force of law. This would not be true, if the custom was one which
violated statute law, or the obvious principles of public policy or
common honesty. But we may suppose that no custom of this kind
would ever be so generally adopted and established as to come
before the courts with any claim for recognition as law.



OP INFANTS, OR IkHNOES. JT

A great deal of the language of every art or science or profession
is technical (indeed, technical means belonging to some arf)^ and is
peculiar to it, and may not be understood by those who do not pur-
sue the business to which it belongs. This is as true of law as of
every thing else. In this work, however, I have avoided as far as
possible mere law-words ; and when I have used them have ex-
plained them at the time. There are some, however, which cannot
be dropped: they express exactly what is meant, and we cannot
express it without them, unless by long and awkward sentences. A
good instance of this is in those words which end in er (or or) and
in ee. As for example, promisor and promisee, vendor and vendee,
indorser and indorsee. These terminations are derived from the
Norman-French, which was, for a long time, the language of the
courts and of the law in England. And it might seem that we had
just as good terminations in English, in er and ed, which mean the
same. thing. But it is not so. Originally they meant the same
thing, but they do not now : for both er and ee are applied in law to
persons, and ed to things ; so that we want all three terminations.
For example, indorser means the man who indorses ; indorsee means
the man to whom the indorsement is made ; but the note itself wa
say is indorsee?. So vendor means the man who sells, vendee means
the man to whom something is sold, and the thing sold is vendee?.
And the promisor makes the promise, the promisee receives
it, and the thing to be done is promisee?. We have retained
not only this phraseology, but some other words or phrases, of
which similar things might be said



CHAPTER ni.
nsT'A.NT©, on m:i]voiis.



SECTION I.

Generally, all persons may bind themselves by contracts. But
some are incapacitated. The incapacity may arise from many



8 OF INFAJTTS, OR MINORS.

causes ; as from insanity ; or from being under guai'diansliip ; or
from alienage in time of war ; or from Infancy ; or from Marriage.

All persons are infants, in law, until the age of twenty-one. But
in Vermont, Maryland, Ohio, Maine, Missouri, Texas, and perhaps
one or two other States, women are considered of full age at eigh-
teen, for some purposes.

The rule of law is, that a person becomes of age at the beginning
of the day before his twenty-first birthday. This rule opposes the
common notion, and it rests on no very good reason, but on ancient
authority and constant repetition. The reason assigned is, that the
law takes no notice of parts of a day. The effect of the rule is, that
a person born on the 9th of May in the year 1840, becomes of age
at the beginning of the 8th of May, 1861, and may sign a note, or
do any thifig, with the fall power of a person of age, on any hour
of that day.

The contract of an infant (if not for necessaries) is voidable, but
not void. That is, he may disavow it, and so annul it, eitlier before
his majority, or within a reasonable time after it. As he may avoid
it, so he may ratify and confirm it. He may do this by word only.
But mere acknowledgment that the debt exists is not enough.
It must be substantially, if not inform, a new promise. In England,
and a few of our States, it is provided by statute, that this confirma-
tion can only be by a new promise in writing, signed by the prom-
isor. This rule seems to be useful, and we think it will be more
widely adopted.

It must be a promise by the party, after full age, to pay the debt ;
or such a recognition of the debt as may fairly be understood by the
creditor as expressive ai the intention to pay it ; for this would be a
promise by implication. There are no particular words or phrases
which the law requires or favors as a confirmation. No ratification
or confirmation can be used in any action which was brought before
the ratification was made. It must also be made voluntarily, and
with the purpose of assuming a liability from which he knows that
the law has discharged him. And if it be a conditional promise, the
party who would enforce it must prove the condition to be fulfilled.
Thus, if the plaintiff relies on a new promise, and asserts and proves
that the defendant said, after full age, " I will pay when I am able,"



OF INFANTS, OK IVUNOES, 9

he must also prove that the defendaut was able to pay when the
action was brought.

If an infant's contract is not avoided, it remains in force. And
it may be confirmed without words; and the question sometimes,
occurs, whether confirmation by mere silence, after a person arrives
at full age, prevents him from avoiding his contract made during his
infancy. As a general rule, mere silence, or the absence of dis-
afiirmance, is not a confirmation ; because it is time to disaffirm the
contract when its enforcement is sought.

But if an infant buys property, any unequivocal act of ownership
after majority — as selling it, for example — is a confirmation of the
purchase. And, generally, a silent continued possession and use of



Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions → online text (page 2 of 70)