General Principles. 1191. Affidavit Required of Pre-emption Claimant. subject to sale at I, A. B., claiming the right of pre-emption under the provisions of the act of Congress, entitled, "An Act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights," approved September 4, 1841, to the quarter of section No. , of township No. of range No. do solemnly swear [or, affirm] that I have never had the benefit of any right of pre-emption under this act; that I am not the owner of three hundred and twenty acres of land in any State or Territory of the United States, nor have I settled upon and improved said land to sell the same on speculation, but in good faith to appropriate it to my own exclusive use or benefit; and that I have not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which I may acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person except myself. [Signature.] do hereby I, C. D., register [or, receiver] of the land-office at certify that the above affidavit was taken and subscribed before me, this [Signature and title.] CHAPTER LXXIV. PRIVATE WAYS. PRIVATE rights of way-that is, ways which are for the benefit of particular persons, or the occupants of particular premises-may be created by imme morial usage, as is common in England; or by grant, as is the usual method in this country. The forms for such grants will be found in the chapter of DEEDS. Where a private way is necessary, the parties may proceed under the statute to have it laid out, and the damages caused by so doing assessed upon the applicants. The proceedings in such cases are analogous to those in respect to laying out highways.(a) 1192. Application for a private road.... PAGE 620 1198. Notice to be given by the commissioners to the owner of land through which the road is to run..... 620 1194. Certificate of necessity..... 620 1195. Order by the commissioners laying out a road through improved land..... 620 (a) 1 Rev. Stat. of N. Y., 517. Proceedings to Lay Out Private Road. 1192. Application for a Private Road. [As in Form 874 to the*, continuing thus:] lay out a private road for my use, commencing [here insert a description of the road applied for], passing through the lands of [Signature.] [Date.] 1193. Notice to be Given by the Commissioners to the Owner of Land Through which the Road is to Run. Please take notice, that on the noon, at the house of a jury will be selected for the purpose of determining upon the necessity of the road asked for in the application of which a copy is annexed; and to assess the damages by reason of opening the same. [Signatures of] Commissioners. [Date.] [Summons to the jurors, and their oath, may be framed with slight alteration from Form 896 and 881 respectively.] 1194. Certificate of Necessity. [As in Form 882, substituting the words, "private road" for "highway," wherever it occurs, and adding at the end:] for the use of said A. B.; and we hereby assess the damages to be paid by him to [owner of land], at dollars. 1195. Order by the Commissioners Laying Out'a Road Through Improved Land. [As in Form 875 to the*, continuing thus:] upon the application of A. B., a resident in said town, and liable to be assessed to work on the highways therein, for the laying out of the private road hereafter described, and on the certificate of twelve reputable freeholders of said town, convened and duly sworn, after due notice to the owner of the lands through which such road is to pass, as required by the statute, certifying that such way is necessary, IT IS ORDERED, determined and certified that a private way shall be, and the same hereby is laid out pursuant to said application for the use of said A. B., whereof a survey has been made, and is as follows [designating it as in Form 875]. General Principles. CHAPTER LXXV. PROMISSORY NOTES. A PROMISSORY NOTE is a promise in writing to pay to a specified person, a certain sum of money, and money only, without condition or contingency. A note payable to one or the other of two persons designated in the alternative, or payable out of a particular fund, or upon an uncertain event, or for payment of an unliquidated amount, or for performance of any other act, has not the qualities of a promissory note. A negotiable note is one which is by its terms either payable to the order of any person, or to the bearer or holder of it, whoever he may be. A sealed note is not barred by the Statute of Limitations until the lapse of twenty years; and an indorsement of a sealed note gives the holder nothing more than an equitable ownership, subject to all existing claims and defences by the maker. A note payable on demand is payable immediately, if the creditor choose to enforce it; and whether he make demand or not, the Statute of Limitations begins to run against it from its date; but he is not bound to make immediate demand in order to charge indorsers. Where a note is to be on interest, it should be so specified in the note by inserting the words "with interest," or "with use," else the note will not draw interest except from maturity. Where the rate of interest is not specified in the note, and it is made payable with interest, if not made payable at a particular place, it draws the rate of interest fixed by law in the State in which it is made; but if it is made in one State to be paid in another, it draws interest at the rate in the State where it is made payable. A note payable on demand, but not specifying interest, bears interest only from the time of demand. Indorsement.-If the payee or holder of a note writes his name upon the back of it, and transfers it to another person, he becomes an indorser, and the person thus taking the note is termed the indorsee. An indorsee may in turn become indorser, by transferring it in the same way. The person who, at any given time, has the right to the note, is termed the holder. An indorsement in blank is where the indorser writes his name only on the back of the note. An indorsement in full is where the person to whom the note is indorsed is named. Indorsement is an agreement to pay in default of payment by the maker, on the usual conditions of demand and notice. If the indorser wishes to transfer the note without making himself liable, he should write before his name the words "without recourse;" or, if he indorses merely as agent to transfer the nominal title, add the word "agent" to his signature. I promise [or, we promise-or, we jointly and severally promise] to pay to 14 Protests. A. B. or order [or, to A. B. or bearer], one thousand dollars [with interest], for value received. $1,000. 1197. Non-negotiable Note. [Signature of maker.] NEW YORK, January 1, 1861. Sixty days after date [or otherwise, as above], I promise to pay to A. B. one thousand dollars, for value received [with interest]. [Signature of maker.] [Indorsements as in forms on page 160.] 1198. Stock Note. [As in Form 1196, adding at the end:] having deposited with him, as collateral security, with authority to sell the same at public or private sale, on the non-performance of this promise and without notice [here designate the collaterals]. [Signature of maker.] CHAPTER LXXVI. PROTESTS. A PROTEST is a notarial act, done to furnish convenient evidence, in commercial affairs. A protest of a bill or note is made by the notary taking it to the place for presentment, and demanding acceptance or payment according to the case, and declaring and certifying default. He then gives notice to the indorsers (and other parties, if any, who may be charged upon the bill), either directly, or through the holder of the paper, who in turn will notify them. Marine protests are declarations of the master, etc., of a vessel, authenticated by a notary, setting forth a disaster and its causes. This is to be first made within twenty-four hours of arrival, and is entered by the notary in his records; and a more extended statement may be afterwards made before him or another notary. I. PROTESTS OF BILLS AND NOTES. 1199. Certificate of protest...... 1200. Certificate of service of notice.... 1201. Certificate of protest; when the maker, etc., cannot be found 1202. Notice of protest of note..... ....... 1203. Notice of protest of bill for non-acceptance.. 1204. Notice of protest for non-payment... II. MARINE PROTESTS. PAGE 623 623 624 : 624 624 624 Bills and Notes. I. PROTESTS OF BILLS AND NOTES. 1199. Certificate of Protest. [At the head of the paper attach the bill or note, with a wafer or gum.] UNITED STATES OF AMERICA, State of On the 88. 18,(a) at the request of [here name holder], I, M. N., a notary public of the State of duly commissioned and sworn, * did present(b) the original bill of exchange [or, promissory note] hereunto annexed, to Y. Z., the maker [or, the drawee—or, the acceptor](c), at [here state the place of demand] (d), and demanded payment [or, acceptance], who refused to pay [or, accept] the same. * Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do publicly and solemnly protest, as well against the drawer and indorsers of the said bill [or, note] as against all others whom it doth or may concern, for exchange, re-exchange and all costs, damages and interest already incurred, and to be hereafter incurred, for want of payment [or, acceptance] of the same. THUS DONE AND PROTESTED in the city of the presence of John Doe and Richard Roe, witnesses. In testimonium veritatis. [Official seal.] aforesaid, in [Signature of] Notary Public. 1200. Certificate of Service of Notice.(e) UNITED STATES OF AMERICA, State of New York, City and County of New York. I, M. N., a notary public of the State of New York, duly commissioned do hereby certify, that on the day of and sworn, 18 due notice of the protest of the before-mentioned bill [or, note] was served upon C. D. personally, and upon E. F. by putting the same into the post-office directed to him at and upon G. H. by putting the same into the post-office directed to him at each of the said places being the reputed residence (a) The hour of the presentment need not be stated. It will be presumed that it was at a seasonable hour. Cayuga County Bank v. Hunt, 2 Hill, 635; De Wolf v. Murray, 2 Sandf., 166. (b) The certificate must show that the notary himself presented the bill or note. Stating that he caused it to be presented is not enough. Warwick v. Crane, 4 Den., 460. (c) If they are a firm, the certificate should either state a presentment to the firm, or, if it state a presentment to one of the firm, it should name the one, and describe him as such-e. g., thus, "to Y. Z., one of the firm of Y. Z. & Co., the makers." Otsego County Bank v. Warren, 18 Barb., 290. (d) The place should be distinctly stated. If the note is payable at a bank, it is not enough to state a demand on the cashier of the bank, without saying where. (e) This form of certifying service is sustained by Seneca County Bank v. Neass, 5 Den., 829; 8 N. Y. (Comst.), 442. |