Gambar halaman
PDF
ePub

and adds three days to the thirty,-making it payable on the 24th of April.

And so completely is this recognized, that the banker,— properly and without exposing himself to the penalties of usury,—adds the three days in discounting the interest for the time it has to run; and, if the holder should commence a suit or treat it as dishonored, because unpaid, at any time before the close of business hours on the last "day of grace,' his notices to endorsers would be of no value, and his suit would fail and be dismissed.

[ocr errors]

So, although the technical common law is said to "know no division of a day," the custom of merchants, in computing the time a contract has to run, excludes the day of the date on which a note is given, when it is payable so many days from or after date.

4

CHAPTER III.

OF PROPERTY.

PROPERTY is the subject upon which "Commercial Law" operates, and for the acquisition, increase, regulation and transmission of which, all its manifold wisdom has been gathered and built up to its present perfection as a system.

The original investiture of man with rights of property and dominion is recorded in Genesis, (ch. i. v. 28), in the Creator's permission and direction,-" replenish the earth and subdue it; and have dominion over the fish of the sea, and over the fowls of the air, and over every living thing that moveth upon the earth."

This divine patent invests mankind, as a race, with all rights of property, and establishes community of ownership, without division and appropriation, except for the temporary purposes of use and enjoyment. But, as soon as distinct families and tribes began to exist, it became inevitable that ideas of more permanent appropriation of the substance of the thing used would be entertained; and we find among the earliest authentic accounts, special proprietorship claimed in the product of one's labor. "Abraham reproved Abimelech, because of a well of water, which Abimelech's servants had violently taken away," and Abraham made claim to it, and put into the hand of Abimelech seven ewe lambs, as a witness that he had digged the well."

At this time it is quite apparent that the product of the earth was held in common, and the inconvenience began to be felt, as appears by the strife between the herdsmen of Abraham and the herdsmen of Lot, which caused the separation of those kinsmen, as recorded in the thirteenth chapter of Genesis.

The necessities of life, in the rudest conditions of society, compelled men to produce and appropriate for their daily use, food and shelter for themselves and their flocks and herds.

Claim to property in the substance of that of which one. had been appropriating, the continuous use, followed naturally; and to secure that property resort was had to compact, and to societies for mutual protection and defence; out of which grew, in natural sequence, civil society and its train of resulting attendants,-States, governments and laws. Property once vested in one, who is its recognized and undisputed owner, is still not only subject to the control of the general society,-the State,-in the exercise of its rights of "eminent domain," but, upon the death of the particular owner, becomes again subject to the law of the place in which it is located, if it be real estate; or in which its owner had his home, if it be personal property. There is no natural and universally recognized law of "descents and distribution," nor is the right to dispose of one's estate by will universally recognized as a natural right.

It is now permitted and regulated by express legislation in all our States; but in past time, and in different countries, the different lines and courses of descents, and the limitations and restrictions upon the power of a testator, have been curious and interesting.

In the absence of a will, the general rule in the United States has always been, that children surviving their parents should inherit equally; in England, and some of the European States, the oldest son is the principal heir. Under our law, no one has an heir while he himself lives; but in some portions of the Eastern Continent, a son, as soon as he is born, acquires a vested interest in his father's estate, and may say, as the prodigal did, "Father, give me the portion of goods which falleth to me," and may compel him to “divide with him his living." The general usage of the old Germanic peoples forbade alienations without the consent of the male children.

Our ancestors seem to have been in this respect exceptional, for since very early time their positive law has di

rected that estates vest in such person as the last proprietor shall by will, attended with certain specified requisites, appoint.

No necessity with us exists for making any provision whatever for children. The somewhat common impression that something must be given to each child, to prevent him from "breaking the will," probably arises out of the legal rule, that whenever it appears that a child is overlooked or forgotten by a testator, in the distribution of his estate, the law will supply the omission. A legacy of small value is sometimes given to prevent such a supposition, and as the least offensive mode of securing the practical exclusion of the nominal legatee.

The law makes two general divisions of property, which are usually distinguished as " things real" and "things personal."

[ocr errors]

Things real" are such as are permanent and fixed.— "Things personal" are money, goods, and other movables.

Another division is important in a business view, viz. "things in possession" and "things in action." The former embraces all personal property of which one has possession; while the second includes such as an owner has not in possession, but in which he has a right of action, which, being enforced, will possess him of the thing itself, or its equivalent in value.

An illustration of the first may be found in the goods of a trader and the cash he receives on its sale; and of the second in the charges on his books and his bills receivable.

It is inherent in personal property, under American law, that it shall be transmissible, and no act or contract of man can render it inalienable.

"Good will" is an anomalous species of personal property, possessing commercial character. This consists in "the probability that the old customers will resort to the old place," and questions as to its ownership often arise on the dissolution of a partnership.

A partner dies: does the good will of the business pass to the surviving partner, or is it a partnership effect, liable, like

the goods and accounts and bills receivable, to be accounted for? In professional partnerships, it is generally held to pass to the survivor; but in mercantile houses it is sometimes of great value, and in some cases, perhaps in all which admit of it, a court of chancery will direct it to be sold, and will restrain the former partners from pursuing a business which would render it valueless to the purchasers.

The right to the exclusive use of a particular name or mark upon goods is also recognized as property, in which a man may have valuable interests, and which is protected by courts of chancery.

This right can only be acquired by special appropriation and undisturbed enjoyment, and the name or marks must be such as designate the origin or ownership of the article, and not such as indicate quality.

A merchant or manufacturer will not be permitted to use the name or trade mark of another, although the user may be ignorant that it has been appropriated and is owned by another.

« SebelumnyaLanjutkan »