PAPER MONEY

PAPER MONEY

    27.12.19  

PAPER MONEY:

 By paper money is understood the engagements to pay money which are issued by governments and banks, and which pass as money. Pardes. Dr. Com. n. 9. Bank notes are generally considered as cash, and win answer, all the purposes of currency; but paper money is not a legal tender if objected to. See Bank note, Specie, Tender.

TREASURE; TREASURER OF THE UNITED STATES... TREASURY

TREASURE; TREASURER OF THE UNITED STATES... TREASURY

    27.12.19  

TREASURE TROVE. Found treasure.

2. This name is given to such money or coin, gold, silver, plate, or bullion, which having been hidden or concealed in the earth or other private place, so long that its owner is unknown, has been discovered by accident. Should the owner be found it must be restored to him; and in case of not finding him, the property, according to the English law, belongs to the king. In the latter case, by the civil law, when the treasure was found by the owner of the soil, he was considered as entitled to it by the double title of owner and finder; when found on another's property, one-half belonged to the owner of the estate, and the other to the finder; when found on public property, it belonged one-half to the public treasury, and the other to the finder. Lecons du Dr. Rom. §350-352. This includes not only gold and silver, but whatever may constitute riches, as vases, urns, statues, &c.

3. The Roman definition includes the same things under the word pecunia; but the thing found must have a commercial value for ancient tombs would not be considered a treasure. The thing must have been hidden or concealed in the earth; and no one must be able to establish his right to it. It must be found, by a pure accident, and not in consequence of search. Dall. Dict. Propriete, art. 3, s. 3.

4. According to the French law, le tresor est toute chose cachee ou enfouie, sur laquelle personne ne peut justifier sa propriete, et qui est decouverte par lo pur effet du hasard. Code Civ. 716. Vide 4 Toull. n. 34. Vide, generally, 20 Vin. Abr. 414; 7 Com. Dig. 649; 1 Bro. Civ. Law, 237; 1 Blackstone's Comm. 295; Poth. Traite du Dr. de Propreite, art. 4.

TREASURER. An officer entrusted with the treasures or money either of a private individual, a corporation, a company, or a state.

2. It is his duty to use ordinary diligence in the performance of his office, and to account with those whose money he has.

TREASURER. OF THE MINT. An officer created by the act of January 18, 1837, whose duties are prescribed as follows: The treasurer shall receive and safely keep all moneys which shall be for the use and support of the mint; shall keep all the current accounts of the mint, and pay all moneys due by the mint, on warrants from the director. He shall receive all bullion brought to the mint for coinage; shall be the keeper of all bullion and coin in the mint, except while the same is legally placed in the hands of other officers, and shall, on warrants from the director, deliver all coins struck at the mint to the persons to whom they shall be legally payable. And he shall keep regular and faithful accounts of all the transactions of the mint, in bullion and coins, both with the officers of the mint and the depositors; and shall present, quarter-yearly, to the treasury department of the United States, according to such forms as shall be prescribed by that department, an account of the receipts and dishursements of the mint, for the purpose of being adjusted and settled.

2. This officer is required to give bond to the United States with one or more sureties to the satisfaction of the secretary of the treasury, in the sum of ten thousand dollars. His salary is two thousand dollars.

TREASURER OF THE UNITED STATES, government. Before entering on the duties of his office, the treasurer is required to give bond with sufficient sureties, approved by the secretary of the treasury and the first comptroller, in the sum of one hundred and fifty thousand dollars, payable to the United States, with condition for the faithful performance of the duties of his office, and the fidelity of the. persons by him employed. Act of 2d September, 1789, s. 4.

2. His principal duties are, 1. To receive and keep the moneys of the United States, and dishurse the same by warrants drawn by the secretary of the treasury, countersigned by the proper officer, and recorded according to law. Id. s. 4. 2. To take receipts for all moneys paid by him.

3. To render his account to the comptroller quarterly, or oftener if required, and transmit a copy thereof, when settled, to the secretary of the treasury. 4. To lay before each house, on the third day of each session of congress, fair and accurate copies of all accounts by him, from time to time, rendered to and settled with the comptroller, and a true and perfect account of the state of the treasury. 5. To submit at all times, to the secretary of the treasury and the comptroller, or either of them, the inspection of the moneys in his bands. Id. s. 4. 3. His compensation is three thousand dollars -per annum. Act of 20th February, 1804, s. 1.

TREASURY. The place where treasure is kept the office of a treasurer. The term is more usually applied to the public than to a private treasury. Vide Department of the Treasury o the United States.

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TRADE, TRADE MARKS... TRADER

TRADE, TRADE MARKS... TRADER

    27.12.19  

TRADE

 In its most extensive signification this word includes all sorts of dealings by way of Bale or exchange. In a more limited sense it signifies the dealings in a particular business, as the India trade; by trade is also understood the business of a particular mechanic, hence boys are said to be put apprentices to learn a trade, as the trade of a carpenter, shoemaker, and the like. Bac. Ab. Master and Servant, D 1. Trade differs from art. (q. v.)

2. It is the policy of the law to encourage trade, and therefore all contracts which restrain the exercise of a man's talents in trade are detrimental to the commonwealth, and therefore void; though he may bind himself not to exercise a trade in a particular place, for, in this last case, as he may pursue it in another place, the commonwealth has the benefit of it. 8 Mass. 223; 9 Mass. 522. Vide Ware R. 257, 260 Com. Dig. h. t.; Vin. Ab. h. t.

TRADE MARKS. Signs, writings or tickets put upon manufactured goods, to distinguish them from others.

2. It seems at one time to have been thought that no man acquired a right in a particular mark or stamp. 2 Atk. 484. But it was afterwards considered that for one man to use as his own another's name or mark, would be a fraud for which an action would lie. 3 Dougl. 293; 3 B. & C. 541; 4 B. & Ad. 410. 1 court of equity will restrain a party from, using the marks of another. Eden, Inj. 314l; 2 Keene, 213; 3 Mylne & C. 339.

3. The Monthly Law Magazine for December 1840, in an article copied into the American Jurist, vol. 25, p. 279, says, "The principle to be extracted, after an examination of these cases, appear to be the following: First, that the first producer or vendor of any article gains no right of property in that article so as to prevent others from manufacturing, producing or vending it.

4. Secondly, that although any other person may manufacture, produce, and sell any such article, yet he must not, in manner, either by using the same or similar marks, wrappers, labels, or devices, or colorable imitations thereof, or otherwise, hold out to the public that he is manufacturing, producing, or selling the identical article, prepared, manufactured, produced, or sold by the other; that is to say, he may not make use of the name or reputation of the other in order to sell his own preparation.

5. Thirdly, the right to use or restrain others from using any mark or name of a firm, is in the nature of goodwill, and therefore goes to the surviving or continuing partner in such firm, and the personal representative of a deceased partner has an interest in it.

6. Fourthly, that courts of equity in these cases only act as auxiliary to the legal right, and to prevent injury, and give a relief by account, when damages at law would be inadequate to the injury received; and they will not interfere by injunction in the first instance, unless a good legal title is shown, and even then they never preclude the parties from trying the right at law, if desired.

7. Fifthly, if the legal title be so doubtful as not to induce the court to grant the injunction, yet it will put the parties in a position to try the legal right at law, notwithstanding the suit.

8. Sixthly, that before the party is entitled to relief in equity, he must truly represent his title, and the mode in which he became possessed of the article for the vending of which he claims protection; it being a clear rule of courts of equity not to extend their protection to persons whose case is not founded on truth."

9. In France the law regulates the rights of merchants and manu facturers as to their trade marks with great minuteness. Dall. Dict. mot Propriete Industrielle. See, generally, 4 Mann. & Gr. 357; B. & C. 541; 5 D. & R. 292; 2 Keen, 213; and Deceit.

TRADER. One who makes it his business to buy merchandise or goods and chattels, and to sell the same for the purpose of making a profit. The quantum of dealing is immaterial, when an intention to deal generally exists. 3 Stark. 56; 2 C. & P. 135; 1 T. R.Fina 572.

2. Questions as to who is a trader most frequently arise under the bankrupt laws, and the most difficult among them are those cases where the party follows a business which is not that of buying and selling principally, but in which he is occasionally engaged in purchases and sales.

3. To show who is a trader will be best illustrated by a few examples: A farmer who in addition to his usual business, occasionally buys a horse not calculated for his usual occupation, and sells him again to make a profit, and who in the course of two years had so bought and sold five or six horses, two of which had been sold after be bad bought them for the sake of a guinea profit, was held to be a trader. 1 T. R. 537, n.; 1 Price, 20. Another firmer who bought a large quantity of potatoes, not to be used on his farm, but merely to sell again for a profit, was also declared to be a trader. 1 Str. 513. See 7 Taunt. 409; 2 N. R. 78; 11 East, 274. A butcher who kills only such cattle as be has reared himself is not a trader, but if he buy them and kill and sell them with a view to profit, he is a trader. 4 Burr. 21, 47. See 2 Rose, 38; 3 Camp. 233 Cooke, B. L. 48, 73; 2 Wils. 169; 1 Atk. 128; Cowp.745. A brickmaker who follows the business, for the purpose of enjoying the profits of his real estate merely, is not a trader; but when he buys the earth by the load or otherwise, and manufactures it into bricks, and sells them with a view to profit, he is a trader. Cook, B. L. 52, 63; 7 East, 442; 3 C. & P. 500; Mood. & M. 263 2 Rose, 422; 2 Glyn & J. 183; 1 Bro. C. C. 173. For further examples, the reader is referred to 4 M. & R. 486; 9 B. & C. 577; 1 T. R. 34; 1 Rose, 316; 2 Taunt. 178; 2 Marsh. 236; 3 M. & Scott. 761; 10 Bing. 292 Peake, 76; 1 Vent. 270; 3 Brod. & B. 2 6 Moore, 56.
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ARTICLES OF PARTNERSHIP

ARTICLES OF PARTNERSHIP

    22.12.19  

ARTICLES OF PARTNERSHIP:

The name given to an instrument of writing by which the parties enter into a partnership, upon the conditions therein mentioned. This instrument generally contains certain provisions which it is the object here to point out.

2. But before proceeding more particularly to the consideration of the Subject, it will be proper to observe that sometimes preliminary agreements to enter into a partnership are formed, and that questions, not unfrequently, arise as to their effects. These are not partnerships, but agreements to enter into partnership at a future time. When such an agreement has been broken, the parties may apply for redress to a court of law, where damages will be given, as a compensation. Application is sometimes made to courts of equity for their more efficient aid to compel a specific performance. In general these courts will not entertain bills for specific performance of such preliminary contracts; but in order to suppress frauds, or manifestly mischievous consequences, they will compel such performance. 3 Atk. 383; Colly. Partn. B. 2, c. 2, 2 Wats. Partn. 60; Gow, Partn. 109; Story, Eq. Jur. 666, note; Story, Partn. 189; 1 Swanst. R. 513, note. When, however, the partnership may be immediately dissolved, it seems the contract cannot be specifically enforeed. 9 Ves. 360.

3. It is proper to premise that under each particular head, it is intended briefly to examine the decisions which have been made in relation to it.

4. The principal parts of articles of partnership are here enumerated. 1. The names of the contracting parties. These should all be severally set out.

5. – 2. The agreement that the parties actually by the instrument enter into partnership, and care must be taken to distinguish this agreement from a covenant to enter into partnership at a future time.

6. – 3. The commencement of the partnership. This ought always to be expressly provided for. When no other time is fixed by it, the commencement will take place from the date of the instrument. Colly. Partn. 140 5 Barn. & Cres. 108.

7. – 4. The duration of the partnership. This may be. for life, or for a, specific period of time; partnerships may be conditional or indefinite in their duration, or for a single adventure or dealing; this period of duration is either express or implied, but it will not be presumed to be beyond life. 1 Swanst. R. 521. When a term is fixed, it is presumed to endure until that period has elapsed; and, when no term is fixed, for the life of the parties, unless sooner dissolved by the acts of one of them, by mutual consent, or operation of law. Story, Part. 84.

8. A stipulation may lawfully be introduced for the continuance of the partnership after the death of one of the parties, either by his executors or administrators, or for the admission of one or more of his children into the concern. Colly. Partn. 147; 9 Ves. 500. Sometimes this clause provides, that the interest of the partner shall go to such persons, as be shall by his last will name and appoint, and for want of appointment to such persons as are there named. In these cases it seems that the executors or administrators have an option to continue the partnership or not. Colly. Partn. 149; 1 McCl. & Yo. 569; Colles, Parl. Rep. 157.

9. when the duration of the partnership has been fixed by the articles, and the partnership expires by mere effluxion of time, and, after such determination it is carried on by the partners without any new agreement, in the absence of all circumstances which may lead as to the true intent of the partners, the partnership will not, in general, be deemed one for a definite period; 17 Ves. 298; but in other respects, the old articles of the expired partnership are to be deemed adopted, by implication as the basis of the new partnership during its continuance. 5 Mason, R. 176, 185; 15 Ves. 218; 1 Molloy, R. 466.

10. – 5. The business to be carried on and the place where it is to be conducted. This clause ought to be very particularly written, as courts of equity will grant an injunction when one or more of the partners attempt, against the wishes of one or more of them, to extend such busiress beyond the provision contained in the articles. Story, Partn. 193; Gow, Partn 398.

11 – 6. The name of the firm, as for example, John Doe and Company, ought to be ascertained. The members of the partnership are required to use the name thus agreed upon, and a departure from it will make them individually liable to third persons or to their partners, in particular cases. Colly. Partn. 141; 2 Jac. & Walk. 266; 9 Adol. & Ellis, 314; 11 Adol. & Ellis, 339; Story, Partn. 102, 136, 142, 202.

12. – 7. A provision is not unfrequently inserted that the business shall be managed and administered by a particular partner,20or that one of its departments shall be under his special care. In this case, courts of equity will protect such partner in his rights. Story, Partn. 172, 182, 193, 202, 204 Colly. Partn. 753. In Louisiana, this provision is incorporated in it's civil code, art. 2838 to art. 2840. The French and civil law also agree as to this provision. Poth. de Societe, n. 71; Dig. 14, 1, 1, 13; Poth. Pand. 14, 1, 4.

13. Sometimes a provision is introduced that a majority of the partners shall have the management of the affairs of the partnership. This is requisite, particularly when the associates are numerous, As to the rights of the majority, see Partners.

14. – 8. A provision should be inserted as to the manner of furnishing the capital or stock of the partnership. When a partner is required to furnish his proportion of the stock at stated periods, or pay by installments, he will, where there are no stipulutions to the contrary, be considered a debtor to the firm. Colly. Partn. 141; Story, Partn. 203; 1 Swanst. R. 89, Sometimes a provision is inserted that real estate, and fixtures belonging to the firm shall be considered, as between the partners, not as partnership but as several property. In cases of bankruptcy this property will be treated as the separate property of the partners. Colly. Partn. 141, 595, 600; 5 Ves. 189; 3 Madd. R. 63.

15. – 9. A provision for the apportionment of the profits a and losses among the partners should be introduced. In the absence of all proof, and controlling circumstances, the partners are to share in both equally, although one may have furnished all the capital, and the other only his skill, Wats. Partn. 59; Colly. Partn. 105; Story, Partn. 24; 3 Kent, Com. 28; 4th ed.; 6 Wend. R. 263; but see 7 Bligh, R. 432; 5 Wils. & Shaw, 16.

16. – 10. Sometimes a stipulation for an annual account of the Property of the partnership whether in possession or in action, and of the debts due by partnership is inserted. These accounts when settled are at least prima facie evidence of the facts they contain. Colly. Partn. 146 Story Partn. 206; 7 Sim. R. 239.

17. – 11. A provision is frequently introduced forbidding any one partner to carry on any other business. This should be provided for, though there is an implied provision in every partnership that no partner shall carry. on any separate business inconsistent or contrary to the true interest of the partnership. Story, Partn. 178, 179, 209.

18. – 12. When the partners are numerous, a provision is often made for the expulsion of a partner for gross misconduct, for insolvency, bankruptcy, or other causes particularly enumerated. This provision will govern when the case occurs.

19. – 13. This instrument should allways contain a provision for winding up the business. This is generally provided for in one of three modes: first, by turning all the assets into cash, and, after paying all the liabilities of the partnership, dividing such money in proportion to the several interests of the parties; secondly, by providing that one or more of the partners shall be entitled to purchase the shares of the others at a valuation;thirdly, that all the property of partnership shall be appraised, and that after paying the partnership debts, it shall be divided in the proper proportions. The first of these modes is adopted by courts of equity in the absence of express stipulations. Colly. Partn. 145 Story, Partn. 207 8 Sim. R. 529.

20. – 14. It is not unusual to insert in these articles, a provision that in case of disputes the matter shall be submitted to arbitration. This clause seems nugatory, for no action will lie for a breach of it, as that would deprive the courts of their jurisdiction, which the parties cannot do. Story, Partn. 215; Gow, Partn. 72; Colly. Partn, 165 Wats. Partn. 383.

21. – 15. The articles should be dated, and executed by the parties. It is not requisite that the instrument, should be under seal. Vide Parties to contracts; Partners Partnership.

EQUITABLE, EQUITY, EQUITY OF REDEMPTION

EQUITABLE, EQUITY, EQUITY OF REDEMPTION

    1.2.18  

EQUITABLE. That which is in conformity to the natural law. Wolff, Inst. §83.

EQUITABLE ESTATE. An equitable estate is a right or interest in land, which, not having the properties of a legal estate, but being merely a right of which courts of equity will take notice, requires the aid of such court to make it available.

2. These estates consist of uses, trusts, and powers. See 2 Bouv. Inst. n. 1884. Vide Cestui que trust; Cestui que use.

MORTGAGE

MORTGAGE

    28.12.17  

MORTGAGE, contracts, conveyancing. Mortgages are of several kinds: as the concern the kind of property, mortgaged, they are mortgages of lands, tenements, and, hereditaments, or of goods and chattels; as they affect the title of the thing mortgaged, they are legal and equitable.

2. In equity all kinds of property; real or personal, which are capable of an absolute sale, may be the subject of a mortgage; rights in remainder and reversion, franchises, and choses in action, may, therefore, be mortgaged; But a mere possibility or expectancy, as that of an heir, cannot. 2 Story, Eq. Jur. 1021; 4 Kent, Com. 144; 1 Powell, Mortg. 17, 23; 3 Meri. 667.