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Popular Law Library Vol4 Torts, Damages, Domestic Relations | by Albert H. Putney



Although the branch of law now treated under the designation of torts is one of the earliest to appear in any legal system, the name itself has only come into general use during the past half century. It is very difficult to give any definition of tort which is both correct and concise. The reason for this lies largely in the great variety of wrongs which are included under this general title. The field of the law of torts is very broad, overlapping the field of criminal law on the one side, and that of contracts on the other...

TitlePopular Law Library Vol4 Torts, Damages, Domestic Relations
AuthorAlbert H. Putney
PublisherCree Publishing Company
Year1908
Copyright1908, Cree Publishing Company
AmazonPopular Law-Dictionary
-Eighth Subject. Torts. Chapter I. Definition And History Of Torts. Section 1. Definition Of Tort
Although the branch of law now treated under the designation of torts is one of the earliest to appear in any legal system, the name itself has only come into general use during the past half century....
-Section 2. Torts And Crimes Distinguished
The fact that torts and criminal law were originally one branch of the law has been already stated and explained.6 Even today, after the differentiation of the two branches has been completely worked ...
-Section 3. Torts And Breach Of Contract Distingqished
As shown in the author's definition of a tort, a right of action for tort arises where there has been a violation of a right given by law, while a right of action for breach of contract exists where t...
-Section 4. Torts And Equity
In a few cases a person injured by another has the option of suing for damages on the tort, or of going into equity to seek some special equitable relief, generally an injunction. Such cases will be m...
-Section 5. Parties In Actions Of Tort
As torts are the violation of general rights created by law, it necessarily follows that any person in the community may be the party injured by such a violation of rights, and may therefore be the pl...
-Section 6. Some Characteristics Of Torts
A tort is not a debt.27 Damages for torts, not reduced to the form of judgment, are therefore, not proveable in bankruptcy proceeding, and are not released by a discharge in bankruptcy.28 Constitution...
-Section 7. History Of The Law Of Torts
The subject of torts originates in the idea of hurt or damage done by force. The early history of the law of torts, after its separation from criminal law, is embraced in the history of the action of ...
-Chapter II. Trespass And Trespass On The Case. Section 8. Fundamental Distinction Between Trespass And Trespass On The Case
The distinction between trespass and trespass on the case is generally stated as being that if an injury-be done to A by the immediate force of B, the former may bring trespass; but that if the injury...
-Section 9. Scott Vs. Shepherd
Trespass and assault for throwing, casting, and tossing a lighted squib at and against the plaintiff, and striking him therewith on the face, and so burning one of his eyes, that he lost the sight of...
-Scott Vs. Shepherd. Continued
Gould, J., was of the same opinion with Nares, J., that this action was well maintainable. The whole difficulty lies in the form of the action and not in the substance of the remedy. The line is very ...
-Section 10. Trespass On The Case
The extent of the scope of trespass on the case is not limited to cases where the damage result as the consequential result of the unlawful application of force. Trespass on the case also covers the w...
-Section 11. Cases Where Trespass And Trespass On The Case Are Concurrent Remedies
Although trespass lies wherever the injury done to the plaintiff result from the immediate force of the defendant, still there are many instances in which the plaintiff, though he may adopt that form ...
-Chapter III. Trespass. Section 13. Classification Of Trespasses
The actions of trespass and trespass on the case have been compared in the previous chapter. It now remains to consider the various classes of wrongs which are redressed under each remedy. The wro...
-Chapter IV. Trespass Against The Person. Section 14. In General
No wrong is more early recognized in the primitive state of the law than the wrongful application of force to the person. A large portion of every early code is occupied with provisions for the punish...
-Section 15. Assault And Battery
Although the terms assault and battery are found, almost invariably, used in conjunction with each other, the two terms, nevertheless, designate two distinct torts.1 Every battery, however, must i...
-Section 16. Assault
The essential elements in an assault are the threat, some exercise of force, the present ability to commit the battery, and the reasonable belief on the part of the party against whom the threat is ma...
-Section 17. Battery
A battery is a consummated assault. Where a person is injured by force, wrongful intent on the part of the person responsible for such force is not essential to liability.32 Where no injury results th...
-Section 18. Aggravated Assaults Or Batteries
An aggravated assault or battery is either one which occurs in the commission of some other, and more serious, offense, or one done under circumstances or in a manner which adds to the enormity of the...
-Section 19. Acts Which Do Not Constitute Assaults Or Batteries
The term justifiable assault, which is often used, is an unfortunate and inaccurate one, as the word assault carries with it the element of unlawfulness. There are, however, certain instances where ...
-Section 20. Mutual Assaults
Circumstances may arise where each of two persons may have an action for assault and battery against the other. This may happen where two persons are engaged in an unlawful act, as a prize fight; or w...
-Section 21. False Imprisonment
The second great class of trespasses against the person consists of cases of false imprisonment.87 False imprisonment is any unlawful detention of any person. In an action for damages for false impr...
-Section 22. False Imprisonment, Compared With Malicious Prosecution
The actions of false imprisonment and malicious prosecution have often been confused together,91 but 89 Sugg vs. Pool, 2 Stew. & P., 196; Landrum vs. Wells, 7 Tex. Civ. App., 625. 90 Grace vs. Dempse...
-Section 24. The Detention Or Restraint
The confinement need not be in a jail;97 it may be in a private house, or even outdoors, if the party is deprived of freedom of movement.98 Where a person who had been fined for a violation of a munic...
-Section 25. The Unlawfulness Of The Detention
The unlawfulness of the detention may arise either from the fact that it was without process, or under color of illegal process.105 An arrest without a warrant is always illegal unless made by an off...
-Section 26. Seduction
Seduction in its broadest sense means the inducement or incitement to wrongdoing of any kind;110 in its more specific significance it is the wrong of inducing a woman to consent to unlawful sexual i...
-Chapter V. Trespass To Real Property. Section 27. Trespass Quare Clausum Fregit
The law for the protection of real property against trespass is even stricter than that for the protection of the person. The reason for this rule, is probably, not, that the law puts a higher value o...
-Section 28. Illustrations Of Trespass Against Realty
The rule against trespassing upon another's land has been carried to such an extreme, that it has been held that if a person, who is mowing his own field, allows his blade to cut through into another ...
-Section 29. Realty Which May Be The Subject Of Trespass
The most serious form of trespass is that directed against a dwelling house. To constitute trespass there is no necessity for any violence, a mere entrance will be sufficient.8 5 Sterling vs. Jackson...
-Section 30. Who May Maintain An Action For Trespass To Realty
In order to maintain trespass quare clausum fregit, there must have been either an actual possession by the plaintiff at the time when the trespass was committed, either by himself or by his authorize...
-Section 31. Justifiable Entries Upon Lands Of Another
An entry upon the lands of another can be justified in one of the three ways - (1) that the entry was by the express invitation or consent of the owner of the property; (2) that it was by his implied ...
-Section 32. Trespass Ab Initio
Trespass ab initio arises where a person lawfully enters upon the property of another, under license of the law, and then abuses his license by doing some tortuous act.52 The doctrine of trespassor ab...
-Chapter VI. Trespass On Personal Property. Section 34. What Constitutes
The essentials to a right of an action for a trespass to personal property differ in one very important respect, from those in the case of a right of action for trespass against a person, or upon real...
-Section 35. Conversion
The most important class of trespasses to personal property are those known as conversions. Every act of control over personal property, without the owner's authority, and in violation of his rights, ...
-Section 36. Damage To Personal Property
The other form of trespass against personalty consists in its destruction or damage. As has already been stated, there must be some actual damage to sustain an action of this character. Thus in Marent...
-Section 37. Defenses To Actions For Trespass To Personal Property
Alleged trespasses to personal property may be justified for reasons similar to those which justify acts, which would otherwise be trespasses against the person. Self defense is always a good defense ...
-Section 38. Who May Bring An Action For Trespass To Personalty
In order to maintain an action for trespass to personal property the plaintiff must either have the actual possession of the property or constructive possession, with right to immediate possession.25 ...
-Chapter VII. Trespass On The Case. Section 39. Classification Of Wrongs Redressed By Trespass On The Case
The scope of the action of trespass on the case is very broad, embracing not only actions for indirect trespass and consequential injuries, but also actions where the right of action is based upon the...
-Chapter VIII. Indirect Trespass. Section 40. Forms Of Indirect Trespass
Not only is a person liable for those injuries which he personally commits, but, under certain conditions, he may also be liable for injuries inflicted by agencies or instrumentalities under his contr...
-Section 41. History Of The Doctrine Of Liability For Injuries By Animals Or Inanimate Objects
There are few more striking curiosities in early English law (and in this respect we find nearly all primitive legal systems closely resembling each other) than the view taken as to the liability for ...
-Section 42. Injuries By Wild Animals
While it is not illegal to keep wild animals, nevertheless, on account of the danger inherent in such animals, the owner is obliged to use the greatest care in their custody, and is liable for any inj...
-Section 43. Injuries By Domestic Animals
In the case of domestic animals the rule is materially different; domestic animals are not ordinarily dangerous, and knowledge of the dangerous propensities of such animals has to be brought home to t...
-Section 44. Injuries By Inanimate .Objects
A person may become liable in trespass for injuries caused by inanimate objects or elements, owned or controlled by him. The classes of cases falling under this species of trespass are very diverse in...
-Chapter IX. Waste And Nuisance. Section 45. Trespass, Waste And Nuisance
Trespass,1 waste and nuisance, are alike injuries to real property. There are, however, sharply defined distinctions between the three forms of wrongs. Where a person, not in possession of property, d...
-Section 46. Remedies For Waste
In the early period of the common law, the remedy for waste was by a writ of waste. This was a real action and, the plaintiff, if successful, recovered the premises wasted and treble damages for the i...
-Section 47. Definition Of Waste
Waste is any permanent or lasting injury done or permitted to be done, by the holder of the particular estate,5 to the inheritance, or to the prejudice of any one who has an interest in the inheritanc...
-Section 48. What Constitutes Waste
To constitute waste, the act must be wrongful,9 and there must be an appreciable 10 injury to the inheritance in some form.11 In an action by the owner of the fee, against the owner of the life estate...
-Section 49. Who May Commit Waste
Waste can only be committed by a person rightfully in possession of the property. Under the early common law only tenants of legal estates as distinguished from tenants of conventional estates, were l...
-Section 50. Definition And Classification Of Nuisances
In the broadest sense of the term the word nuisances is synonymous with annoyance.39 In the law this word is used to designate such use of property or cause of conduct as, irrespective of actual t...
-Section 51. Nuisances Affecting Land Or Buildings
The principal nuisances directly affecting lands and buildings are those consisting in violations of the right of support. Every owner of land has a right, against the adjoining owners of land to what...
-Section 52. Nuisances Affecting Water Rights
Nuisances relative to water rights fall into three classes, (1) those which result in diverting water so as to deprive the plaintiff of its use to which he was entitled; (2) those which result in dama...
-Nuisances Affecting Water Rights. Continued
The supply of man's artificial wants is not essential to his existence; it is not indispensable; he could five if water was not employed in irrigating lands, or in propelling his machinery. In countr...
-Section 53. Nuisances Affecting The Enjoyment Of The Property
There are many acts which without injuring any of the tangible objects which make up the reality, yet seriously affect its enjoyment by its owner. Prominent among such nuisances is the corruption of t...
-Nuisances Affecting The Enjoyment Of The Property. Continued
Many law businesses and trades have been found to be nuisances under certain conditions, as follows: a blacksmith shop,119 a blacksmith shop operating at night,120 a boiler factory adjoining a dwellin...
-Chapter X. Deceit. Section 54. Definition
Deceit is the inducing a man to act to his damage by willfully or recklessly causing him to believe in a falsehood. Deceit is a species of fraud. These two terms are sometimes used as if they were in...
-Section 55. Requisites In An Action Of Deceit
There are five necessary requisites in an action for deceit. A failure to prove any one of the following five elements will be fatal to the plaintiff's cause in an action of this character: (1) There...
-Section 56. The Misrepresentation
There must always be a misrepresentation of material fact as the first element in an action for deceit. This misrepresentation, however, need not always consist of express words. There may be a misrep...
-The Misrepresentation. Continued
5 Kujek vs. Goldman, 150 N. J., 176;44 N.E.,773. 6 Peabody vs. Phelps, 9 Cal. 213. 7 Haight vs. Hayt, 19 N. Y., 464; Atwood vs. Chapman, 68 Me., 38; 28 Am. Rep., 5. 8 Barnard vs. Duncan, 38 Mo. 17...
-Section 57. Defendant's Knowledge Of The Falsity Of The Representation
There is no deceit, and therefore no ground of action, unless the defendant had knowledge of the falsity of his representations. If the defendant acted with reasonable care and good faith, in making h...
-Defendant's Knowledge Of The Falsity Of The Representation. Continued
In the case of McFerran vs. Taylor & Massie, in this court in 3 Cranch, 281, the court, after remarking that there was a material misrepresentation, and that the defendant had contended that it origi...
-Section 58. Plaintiff's Belief In The Truth Of The Representations
It is not enough that the defendants should have known that the representations were false; it is also necessary that the plaintiff should have been ignorant of such falsity, and should have believed ...
-Section 59. Necessity That The Defendant Should Have Made The Representation With The Intention That It Should Be Acted Upon
The representation, relied upon as the basis of the suit, must have been made with the intention of being acted upon. It is sufficient that the representations were either made especially to the plain...
-Section 60. Necessity That The Plaintiff Should Have Acted Upon The Representations And Have Been Damaged Thereby
Misrepresentations by themselves do not constitute a ground of action; it is necessary that such representations result in damage to the plaintiff before there can be any recovery by him. If the perso...
-Chapter XI. Actions Involving Malice. Section 61. Malicious Prosecution
The most important tort action involving malice, is that of malicious prosecution. Malicious prosecution, regarded as a remedy, is a distinctive action ex delictu for the recovery of damages to perso...
-Section 62. Elements Of The Action Of Malicious Prosecution
To sustain an action for malicious prosecution, the following elements must each be proved: (1) The commencement or continuation of an original criminal or civil judicial proceeding; (2) its legal cau...
-Section 63. The Original Action
In England, this action could only arise out of an original criminal proceeding;3 but in the United States, it may also be based upon a malicious civil suit.4 Actions like forcible entry and detainer,...
-Section 64. Defendant's Connection With The Original Action
The plaintiff, in an action for malicious prosecution, must show the defendant's connection with the original action. It is sufficient if the defendant either commenced the action or continued it afte...
-Section 65. Termination Of Original Action In Favor Of Accused
Before an action for malicious prosecution can be brought, there must be a termination of the original action in favor of the accused;34 the only exception being in the cases where the original action...
-Section 66. Want Of Probable Cause
One of the essential elements in every action for malicious prosecution is that the action should have been commenced without probable cause.55 Want of probable cause will not be inferred from the pro...
-Section 67. Malice
Finally, malice is an essential element in all actions for malicious prosecutions.67 Proof of probable cause makes out a prima facie case of malice,68 but this is not conclusive. Malice is not in its...
-Section 68. Conspiracy
The second great form of tort action involving malice, is that of conspiracy. Conspiracy, in its civil aspect (which is the only side of the subject to be here considered), closely resembles malicious...
-Section 69. Malicious Use Of One's Own Property
It is a general rule in the law of England and America that where a person is dealing with his own property, he may act as maliciously as he desires towards his neighbor, this rule being based upon th...
-Chapter XII. Slander And Libel. Section 70. Definitions
Closely allied with torts in which malice is an essential element are the wrongs of slander and libel. The word, 'slander,' is the general and original word for all kinds of defamation, and at an ear...
-Section 71. Distinctions Between Slander And Libel
From the definitions contained in the last section it has been seen that slander consists in oral words, while libel is either printed or written, or otherwise put into material form. A second distinc...
-Section 72. Slander Actionable Per Se
Slander is actionable per se in the following classes of cases: (1) Where the charge, which is the basis of the action, imputes to the plaintiff the commission of an indictable offense involving mora...
-Section 73. Particular Classes Of Defamatory Words And Acts
The following are among the most important forms in which defamatory words are to be found: Imputations of falsehood,12 but the charge must be of intentional falsehood and not of a mistake of judgment...
-Section 74. Imputations Of Crime
Imputations of crime are of such importance in this connection as to require special discussion. Any charge which falsely and maliciously accuses a person of the commission of a crime involving moral...
-Section 75. Publication
Since the basis of an action for defamation is damages for the injury to character in the opinion of other men, proof of the publication of the defamatory words is essential to the maintenance of an a...
-Section 76. Intent And Malice
A want of an intent to injure is no defence to an action for slander or libel.65 It is not a legal excuse that defamatory matter was published accidentally or inadvertently,66 or that the words were s...
-Section 77. Truth As A Defence
In the absence of statutory or constitutional provisions to the contrary, the truth of the matter charged is a good defence to a civil action for either slander or libel,72 and the fact, under such ci...
-Section 78. What Are Not Defences
The following constitute no defence to an action for slander and libel: That the defendant believed the charges that were made, to be true.75 That the charges were made under the influence of sudden...
-Section 79. Privileged Communications
As a matter of public policy, the law recognizes certain classes of communications as privileged, and not governed by the ordinary laws governing slander and libel. Privileged communications are divid...
-Section 80. Communications Absolutely Privileged
Absolutely privileged communications are confined 75 Hotchkiss vs. Porter, 30 Conn., 414; Prewitt vs. Wilson, 128 Iowa, 198; Powers vs. Cary, 64 Me., 9. 76 Mousler vs. Harding, 33 Ind., 176; Mile...
-Section 81. Communications Qualifiedly Privileged
The following classes of communications have been held to be qualifiedly privileged:105 Official communications.106 Reports of public committees.107 Communications relating to appointment of public...
-Chapter XIII. Negligence. Section 82. The Action For Negligence
Strictly speaking negligence is not a distinctive tort, but rather a factor which determines liability, and which may appear in a number of different torts.1 To save constant repetition, however, negl...
-Section 83. Definitions And Classifications Of Negligence
Many different definitions of negligence have been given among the best of which are the following: Negligence is the omission to do something which a reasonable man, guided upon those consideration...
-Section 84. Negligence In The Field Of Trespass
The question of negligence in the field of terspass is only important where the injury was occasioned unintentionally; if a person intentionally does an injury, by a direct application of force, he is...
-Section 85. Negligence In The Field Of Trespass On The Case
The leading case on the subject of negligence in the class of torts, which are redressed under an action of trespass on the case, is the case of Parrott vs. Wells, known as The Nitro-Glycerine Case....
-Section 86. Violation Of A Duty By Negligence
Before negligence can be imputed to a person, a duty, the breach of which is the tort in question, must be shown.15 This duty may arise in any of the following ways: (1) The duty may be implied by la...
-Section 87. Contributory Negligence
The doctrine of contributory negligence is, that one cannot recover compensation for an injury from any negligence, into which negligence of his own has to a greater or less degree entered cause, cont...
-Section 88. Comparative Negligence
In a few states the doctrine of contributory negligence is modified by what is known as the doctrine of comparative negligence. The doctrine of comparative negligence,31 by which a plaintiff in an ac...
-Section 89. Liability Of Public Corporations For Negligence
The important subject of the liability of Public Corporations for negligence will be taken up under the Subject of Public Corporations.48 45 Louisville vs. R. Co. vs. Burke, 6 Coldw. (Tenn.), 45; Nas...
-Ninth Subject. Damages. Chapter I. Definitions And General Principles. Section 1. Definition
Damages are the pecuniary reparation which the law compels a wrongdoer to make to the person injured by his wrong.1 ...
-Section 2. Theory Of Damages
The general theory upon which the law allows damages for the violation of a civil right is based upon the doctrine that where a civil injury has been sustained the law provides a remedy that should be...
-Section 3. Principal Rules Governing Damages
The most fundamental general rule with regard to damages is that requiring certainty. The rule on this point has been well stated as follows: Damages must be certain; both in their nature and in resp...
-Section 4. Classification
Before going further into the classification of consequences and losses, it is necessary to denote a brief chapter to the classification of damages. The next chapter will, therefore, explain the impor...
-Chapter II. Classification Of Damages. Section 5. Compensatory Damages
Compensatory damages are those which the law considers sufficient to indemnify the person injured for the loss suffered. In studying this definition, attention must be paid to the words, which the l...
-Section 6. Exemplary Damages
Exemplary damages, also known as punitive or vindictive damages, are those given beyond the actual or compensatory damages, and in the nature of a punishment to the wrongdoer. Exemplary damages are on...
-Section 7. Nominal Damages
Nominal damages are those of no appreciable amount. Nominal damages are awarded where there has been an infringement of a legal right, but where such infringement occasioned no real damage, and where ...
-Chapter III. Classification Of Consequences And Losses. Section 9. Proximate And Remote Consequences In General
For the purposes of determining liability, the consequences of wrongful conduct are divided into proximate consequences, and remote consequences. Compensation can be recovered for losses which are the...
-Section 10. Direct Losses
For the purpose of determining what consequences are proximate and what consequences are remote the losses caused by a tort, or by a breach of contract, are divided into direct losses, and consequenti...
-Section 11. Consequential Losses
Consequential losses may be either proximate or remote. Many of the most difficult problems in the field of damages arise in the determining whether particular losses are proximate results of the wron...
-Chapter IV. Determination Of Damages. Section 12. Damages In Actions For Breach Of Contract
The leading case on the point as to what damages can be recovered for the breach of a contract is that of Hadley vs. Baxendale.1 In this case the plaintiffs were owners of a steam mill. The shaft was ...
-Section 13. Bonds, Liquidated Damages And Alternative Contracts
Formerly in a suit on a bond the measure of damages was the face of the bond; relief against such damages could only be obtained in equity and even these was originally only granted in cases of fraud,...
-Section 14. Damages For The Breach Of Contract For The Sale Of Goods And Damages For The Conversion Of Personal Property
In the case of a breach of a contract to deliver property the measure of damages is generally held to be the value of the property,6 or if the goods have not been paid for, the difference between the ...
-Section 15. Negotiable Instruments
In an action upon a negotiable instrument, to which there is no good defense, the measure of damages is the face10 of the paper with legal interest from the time of the breach. and agreed upon betwee...
-Section 16. Damages For Breach Of Promise Of Marriage
In an action for breach of promise of marriage, the amount of the verdict is in the discretion of the jury. All circumstances in aggravation or mitigation are admissible in evidence. Exemplary damages...
-Section 17. Telegraphic Despatches
Telegraphic companies in the absence of a special contract are liable for all damages resulting as the natural result of delay or mistake in transmitting a message. Thus in the case of Bartlett vs. W...
-Section 18. Damages In Actions Of Torts
The following set of rules given by a recent writer on the subject of Damages,15 contain all the leading principles favoring the awarding of damages in actions of tort: In all cases of tort, involvi...
-Section 19. Damages For Injuries To Person
No precise rules can be fixed for the measurement of damages caused by personal injuries.16 The damages recoverable will depend upon the circumstances in each particular case, and must be very largel...
-Section 20. Damage To Property
In the case of the loss or destruction of personal property the measure of damages is the reasonable value of the property at the time of its destruction.24 The general measure of damages for injury t...
-Section 21. Costs And Expenses Of Litigation
Expenses of litigation are not ordinarily recoverable as damages.27 The successful litigant in a suit recovers the money which he has paid out for court costs and in a few states a small amount is all...
-Section 22. Interest By Way Of Damages
As a general rule, interest cannot be recovered on unliquidated demands.28 This old common law rule, however, has been modified to some extent and under later decisions even though the amount of damag...
-Tenth Subject. Domestic Relations. Chapter I. Marriage. Section 1. Definition
It has been said that marriage is a mutual agreement of man and woman to live together in the relation and under the duties of husband and wife, sharing each other's fate or fortune for weal or woe u...
-Section 2. Dual Aspect Of Marriage
In studying the law governing the marriage relation, it must be remembered from the start that marriage is both a contract and a status. This dual aspect will be considered in sections 3 and 5. 1 Lew...
-Section 3. The Contract Of Marriage
The contract of marriage is solely an agreement to enter into the marriage relation or status. The mutual rights and obligations of the parties to the marriage contract are not, and can not be, determ...
-Section 4. What Law Determines The Sufficiency And Legality Of A Marriage
The sufficiency and legality of a marriage is determined by the law of the place where the marriage ceremony was performed. A few exceptions to this rule will be treated under the head of Conflict of ...
-Section 5. Marriage As A Status
Besides being a contract, marriage is also a status. By entering into a marriage contract the parties thereto, in addition to assuming rights and liabilities towards each other, assume a new relation ...
-Section 6. Parties To The Contract
Contracts of marriage like other contracts, require competent parties. The law as to the competency of the parties to a marriage contract differs in many respects from the law as to the competency of ...
-Section 7. The Age Of Consent
The age of consent is the age at which a person can make a valid contract of marriage. At the common law, this was fourteen years in the case of males, and twelve years in the case of females. At the ...
-Section 8. Mental Incapacity
Marriage is a civil contract and may be avoided, like any other contract, for want of sufficient mental capacity in the parties. If the mind is unsound at the time, it is incapable of consent, and th...
-Section 9. Physical Incapacity
Physical incapacity is the inability to perform the act of sexual intercourse. Inability to beget or bear children is not sufficient. Physical incapacity, if incurable, is a ground for the dissolution...
-Section 10. Drunkenness Of One Of The Parties To A Marriage
The drunkenness of one of the parties to a marriage, to such a degree as to render him unconscious of what he is doing, will render the marriage void.11 ...
-Section 11. Affect Of Fraud On Marriage
The affect of fraud on marriage is discussed in the case of Farley vs. Farley.12 Complainant consented, in fact became the wife of defendant, though beguiled into the assumption at that time of the s...
-Section 12. Affect Of Duress On Marriage
Marriage entered into under duress will be voidable. A degree of duress, is required to render a marriage invalid, sufficient to destroy the free will of a person of ordinary bravery and fortitude.14 ...
-Section 13. Bigamy
Bigamy is the entering into of the marriage contract by a party already having a legal wife or husband, alive or undivorced.15 The elements of bigamy are those of a legal first marriage, not dissolve...
-Section 14. Incestuous Marriages
In addition to the general incapacities to marriage there are also prohibitions against marriage with certain people. The most important of these restrictions are those prohibiting marriages between r...
-Section 15. Common Law Marriages
A common law marriage is a marriage entered into, without any marriage ceremony by the agreement of the parties to assume the marriage relation. The requisites for the validity of a common law marria...
-Common Law Marriages. Continued
Blackstone, 1 Com., 439, says: 'Any contract may be made per verba de praesenti, or in words of the present tense, and in case of cohabitation per verba de futuro, also, between persons able to contr...
-Section 16. Indian And Slave Marriages
Indian marriages between Indians living under tribal relations, contracted according to their own laws and customs are valid. Slave marriages were not binding at the time they were contracted but were...
-Section 17. Action For Breach Of Promise To Marry
For questions relative to actions for breach of contracts to marry, consult the subject of Contracts.21 20 10 Ohio St., 181. 21 Vol. 3, Subj. 6. ...
-Chapter 11. Divorce. Section 18. Definition
Divorce is a dissolution of the marriage status. Divorce must be distinguished from an annullment of marriage. Where a marriage is annulled, it is rendered void from the beginning. In the case of a di...
-Section 19. Two Forms Of Divorce
At common law there were two kinds of divorce - a vinculo matrimonii, or absolute divorce and a mensa et thoro, which nearly corresponds to our separate maintenance. In this country there is but one k...
-Section 20. The Law Of What Place Determines The Legality Of Divorce
In general, the validity of a divorce granted by one state will generally be recognized by the courts of every other state. Some exceptions to this rule are to be found in cases where the defendant wa...
-Section 21. Grounds For Divorce
The most common grounds for divorce are adultery, desertion for a certain specified period, extreme and repeated cruelty, habitual drunkenness, attempting the life of the other, bigamy, and impotency....
-Section 22. Alimony And Custody Of Children
The courts upon granting a decree for divorce may make provisions for the payment of certain sums of money for the support of the wife and minor children. States. Residence Required. ...
-Section 23. Prohibition Of Re-Marriage
4 See Chapter 7, on Custody of Children. States. Residence Required. Causes for Absolute Divorce. In addition to adultery, which is cause for divorce in all the States* N. H...
-Chapter III. Husband And Wife. Section 24. Rights Of Husband In Property Of Wife At Common Law
At common law, by marriage, all the personal property of the wife passed to her husband,1 who was also entitled to the rents and profits of her real estate during coverture.2 Choses in action became t...
-Section 25. Liability Of Husband For The Torts Of His Wife At Common Law
At common law, the husband was jointly liable with his wife for all torts committed by her alone,4 and alone liable for all torts committed by his wife in his presence or with his assistance.5 The abo...
-Section 26. Liability Of Husband For Debts Of His Wife At Common Law
At common law, the husband was, during coverture, liable for all the ante-nuptial debts of his wife, even although he did not know of their existence at the time of his marriage.7 The husband could, h...
-Section 27. Coverture
At common law, coverture was the estate which a husband had in the real property of his wife during their joint lives. Coverture is more fully discussed under the subject of Estates in Real Property.1...
-Section 28. Curtesy
The estate by the curtesy, is a life estate in the real estate of a deceased wife, held by her husband after her death. A husband is entitled to such estate when there has been issue of such marriage...
-Section 29. Dower
Dower is the estate to which the widow was entitled during her life in one-third of the lands or tenements in fee-simple or fee-tail, of which her husband was seised at any time during the coverture a...
-Section 30. Homestead
Homestead is the estate which the husband, or other head of the family, holds in real estate exempt from being taken on execution for his debts. For a further discussion of Homestead, see subject of R...
-Section 31. Estates By Entirety
An estate by entirety was the estate which was formerly created by the gift, conveyance, bequest or other transfer of real estate to husband and wife. They were said to hold by entireties instead of b...
-Section 32. Ante-Nuptial And Post-Nuptial Marriage Settlements
An ante-nuptial marriage settlement is valid except where one party thereto has obtained an unfair advantage of the other through fraud or undue influence, or where the settlement is in fraud of third...
-Section 33. Conveyances Between Husband And Wife And Advancements
Under the common law, transfers of real estate directly between husband and wife were invalid. Under modern statutes a husband may make a gift of any property which he desires to his wife, and such g...
-Section 34. The Wife's Right To Contract At Common Law
Under the common law, the rule was very strict that a married woman could make no contract. This rule was first changed to a certain degree by equity and later nearly abolished by statute. At common l...
-Section 35. The Wife's Separate Estate In Equity
The first improvement in the legal condition of a married woman was made by the Equity Courts in their creation of what was known as the Wife's Separate Estate. The beginnings of this principle was as...
-Section 36. Actions By Husband For Violation Of Rights Growing Out Of The Marital Relation
At common law a husband could sue either for criminal conversation with his wife, alienation of his affections or enticing her from him.18 In an action for alienation of the wife's affection, it is no...
-Section 37. Actions By Wife For Violation Of Rights Growing Out Of The Marital Relation
At common law, a wife could not sue for the alienation of her husband's affection, but she has the right by statute, at the present time, to sue in such cases. The righi, to sue for alienation of her ...
-Chapter IV. Community Property. Section 38. Definition
Community property is a species of property, in the nature of partnership property, vested by law in the husband and wife by virtue of the marriage relation. ...
-Section 39. Where In Force
It is in force in those states which take their laws in this respect from the Roman, French, Spanish or Mexican law, e. g. Texas, California, Washington, Louisiana, Idaho, Nevada. ...
-Section 40. Principal Incidents
Property may become community property either by the express acts of the parties or by the action of the law, the law favoring this system of property. The rights of husband and wife in such property ...
-Section 41. Disposal
Upon the death of the husband or wife, the community property, vests, in the absence of ante-nuptial, stipulations to the contrary, one-half in the surviving spouse and one-half in the heirs of the de...
-Section 42. Changes
Any ante-nuptial agreement made by the parties to a marriage, as to the possession of their property will be binding and will supercede the usual community rights. The rules governing community proper...
-Chapter V. Parent And Child. Section 43. Definition
The words child or children as used in law, always mean legitimate children. The word child is often used as denoting a person under the age of 21 years, that is an equivalent to the word infant. It i...
-Section 44. Liability Of Father For Torts And Crimes Of Child
A parent is responsible for any tort of his child when said tort was committed under his instructions, with his connivance or consent, in his presence without objection, under circumstances from which...
-Section 45. Duty Of Parent To Support Child
The duty of parents to provide for the maintenance of their children is a principle of natural law, and it is a duty which the municipal law of all well regulated nations have taken care to enforce. I...
-Section 46. Right Op Parent To Services And Earnings Of Children
The father has a right to the services and earnings of his minor children while under his care and protection, unless such right has been voluntarily relinquished by him. This is based upon the idea o...
-Section 47. Advancements And Hotchpot
An advancement is a gift of property made by the parent to the child, during the lifetime of the parent, with the intention that it shall be applied on whatever share of the estate of the parent the c...
-Section 48. Right Of Action By Parent For Injury To Child
The parent of a minor child who is injured by the wrongful or negligent act of another cannot recover for the injury as such, because that right of action belongs to the child.9 The parent may, howeve...
-Section 49. Right Of Action By Child For Death Of Parent
A child may recover for the death of parent. Such recovery will be limited to the actual value of the support which the child would have been liable to receive from parent, and in most states the tota...
-Chapter VI. Custody Of Children. Section 50. Rights Of Parent To Custody Of Children
At common law, the father was considered as always entitled to the custody of his child, on account of his being the head of the family, and the party to whom the child had the right to look for suppo...
-Section 51. Right Of Charitable Institutions And Third Persons
The rights of charitable institutions and private persons, who take infants to raise, will be considered paramount to those of the parents when such a disposition of the matter will be manifestly for ...
-Section 52. Delegation Of Custody
The law gives the parent no right to delegate his authority over his child to a third person, except to a certain degree to a teacher or to a party to whom the child has been apprenticed. Any agreeme...
-Section 53. Custody Of Orphans
The custody of an orphan belongs to his guardian. No particular relatives of an orphan, except his grandparents, have any legal right to his custody. ...
-Section 54. Custody Of Infants. How Determined
The question as to who is entitled to the custody of an infant may be determined and tried by habeas corpus proceedings.4 3 Beller vs. Jones, 22 Ark., 92; In re Bullen, 28 Kan., 781. 4 See discussion...
-Chapter VII. Adopted Children And Bastards. Section 55. Adoption
Adoption is the act by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature.1 ...
-Section 56. Adoption At Common Law And By Statute
The common law did not recognize the adoption of a child. This right is now given by statute in each of the states. A child adopted under modern statutes stands in the same position as a natural child...
-Section 57. Inheritance By Or From Adopted Children
Adopted children have the right of inheritance from their adopting parents to the same extent as natural children; they cannot, however, inherit through 1 Am. & Eng. Ency. of Law, Vol. I, p. 726. Ado...
-Section 58. Bastards
A bastard is a child born out of lawful matrimony. A bastard was legitimized by the after marriage of his parents according to the rule of the civil law, but not according to the rule of the common la...
-Chapter VIII. Infants. Section 59. Definition
An infant is any person under the age of 21 years. In some states, including Illinois, a female becomes of age at the age of 18 years. ...
-Section 60. Liability Of An Infant On His Contracts And Torts
An infant is in general not bound by his contracts. The exception to this last rule is that any infant is bound by his contract for necessaries. Necessaries include whatever may be required for the su...
-Section 61. Suits By Or Against An Infant
The statutes in the different states regulate the proceedings which must be had when suit is brought against an infant, and in order to obtain a valid judgment against the infant, all the requirements...
-Section 62. Criminal Liability Of An Infant
An infant is responsible for a crime committed by him when he is of sufficient intelligence to understand the nature of his act. Under the age of seven he is conclusively presumed incapable of committ...
-Section 63. Competency Of An Infant As A Witness
Infants will be allowed to testify in court when they have acquired sufficient intelligence to be able to understand the nature of an oath and the consequences of perjury. There are probably no cases ...
-Section 64. Domicile Of An Infant
The domicile of an infant will be that of his father, unless the father is dead or the custody of the child has been decreed to the mother, in which case the domicile of the mother will govern that of...
-Section 65. Other General Rights And Disabilities Of An Infant
An infant cannot make a will, except that in some states they are authorized, after reaching a certain age, to make a will disposing of their personal property. An infant has the right to recover for...
-Chapter IX. Guardian And Ward. Section 66. Definition And Classification
A guardian is one who has, by the law, the care, custody, control or management of either the person or estate of his ward. The different classes of guardians are - natural guardians, testamentary gua...
-Section 67. Guardians - How Appointed, And By Whom
Any adult person of sound mind and good character may be appointed a guardian, except a married woman (without the consent of her husband), at common law and in some states. A guardian may be appoint...
-Section 68. Powers, Duties And Liability Of Guardian
A guardian is bound to use due care and diligence in caring for the property of his ward, and will have the power to perform all necessary routine acts, such as collecting rents, etc. A guardian canno...
-Questions. Torts
Chapter I Page 11-12. 1. Give three definitions of torts. State which one you prefer and why? Page 13. 1. What is the difference between a tort and crime? Page 14. 1. Where an act is both a tort...
-Questions. Torts. Continued
2. What is the other form of trespass against personal property? Page 78. 1. What are some of the principal defenses which may be set up against actions for trespass to personal property? Page 79. ...
-Questions. Damages
Chapter I Page 193. 1. Define Damages. 2. What is the general theory governing damages? 3. For what purpose are damages awarded? 4. What exceptions, if any, are there to this rule? Page 194. 1....
-Questions. Domestic Relations
Chapter I Page 215. 1. What is marriage? 2. Is marriage anything besides a contract? Page 216. 1. In what respects does a contract of marriage differ from all other contracts? 2. The law of what...
-Questions. Domestic Relations. Part 2
6. Can a wife convey her dower right to her husband? 7. Does a conveyance of a dower interest come under the statute of frauds? 8. How is dower assigned? 9. Can the right of dower be lost by estopp...
-Questions. Domestic Relations. Part 3
6. What power of inheritance had a bastard at common law? 7. What is the status of children of a void marriage? 8. * Can the resemblance of child and alleged parent be admitted as evidence? 9. By t...
-Appendix A. To Domestic Relations. Synopsis Of Marriage Laws Of The Various States
Marriage Licenses. Required in all the States and Territories except Alaska, New Jersey (if residents, otherwise required), New Mexico, New York, and South Carolina. California requires man and woman ...
-Appendix B. To Domestic Relations
Paragraph 1. Wife May Sue and Be Sued Alone. Section 1. Be It Enacted by the People of the State of Illinois, Represented in the Gen-eral Assembly. That a married woman may, in all cases, sue and be ...
-Table Of Cases. Cases Cited On Eighth Subject - Torts
Abt vs. Burgheim (80 111., 92), 49. Adams vs. Adams (2 Mo., 169), 20. Adams vs. Railroad Co. (18 Minn., 260), 63. Ahern vs. Collins, (39 Mo. 150), 56. Allen vs. Macon, etc., R. Co. (107 Ga., 838),...
-Table Of Cases. Torts. Part 2
Cardival vs. Smith (109 Mass., 158), 148. Carey vs. Sheets (67 Ind., 375), 152. Carter vs. Sutherland (52 Mich., 597, 18 N. W., 375), 49. Cartwell vs. Hoyt (6 Hun., (N. Y.), 557), 59. Carroll vs. W...
-Table Of Cases. Torts. Part 3
Earl vs. Johnson (81 Minn., 472), 159. Earl vs. Van Alstine (8 Barb. (N. Y.), 630), 88. East Tenn., etc., R. Co. vs. Aiken (89 Tenn., 245), 189. East Tenn., etc. R. Co. vs. Gurley (12 Lea. (Tenn.),...
-Table Of Cases. Torts. Part 4
540) 79. Haynes'vs. State (17 Ga., 463), 49. Hayman vs. Hewitt (Peake Add. Cases, 176), 184. Hays vs. State (77 Ind., 450), 43. Hazard Powder Co. vs. Volger (C. C. A., 58 Fed. Rep., 152), 89. ...
-Table Of Cases. Torts. Part 5
Lewton vs. Hower (35 Fla., 58), 150. Lexington, etc., R. R. Co. vs. Applegate (8 Dana (Ky.), 289), 115. Lindley vs. Horton (27 Conn., 58), 157. Lingwood vs. Croucher (2 Attc, 644), 20. Liquid Carb...
-Table Of Cases. Torts. Part 6
O'Brien vs. Bennett (72 N. Y. App. Div., 367, 371), 156. O'Brien vs. St. Paul (25 Minn., 336), 107. O'Connell vs. Scontz (126 Iowa, 709), 158. Olds vs. Chicago Open Board of Trade (33 111. App., 44...
-Table Of Cases. Torts. Part 7
Ryan vs. Copes (11 Rich. L. (S. C), 217), 164. Rylands vs. Fletcher (3 H. & C, 774), 90. Sandell vs. Sherman (107 Cal., 391), 152. Sanders vs. Hall (22 Tex. Civ. App., 282), 158. Sarles vs. Sarles...
-Table Of Cases. Torts. Part 8
Strader vs. Snyder (67 IIl., 404), 158. Strayton vs. Knowles (6 Hurl. & W., 454), 100. Streight vs. Bell (37 Ind., 550), 148. Strong vs. Strong (102 N. Y., 69; 5 N. E., 799), 138. Sturges vs. Brid...
-Cases Cited In Ninth Subject - Damages
Ball vs. Mabrey (91 Ga.), 781, 211. Bender vs. Fromberger (4 Dall., 436, 444), 197. Bird vs. Railroad Co. (8 Rich. Eq., 46), 198. Blackman vs. Barden, etc., Bridge Co. (75 Me., 214), 211-Boardman vs. ...
-Cases Cited In Tenth Subject - Domestic Relations
Abney vs. De Laach (84 Ala., 393), 267. Alexander vs. Morgan (13 Ohio St., 546), 245. Allen vs. Allen (63 Mich., 635), 261. Baker vs. Baker (13 Cal., 87), 224. Baker vs. People (2 Hill, 325), 224. Bee...







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