438. The Same; To a Surety in a Bond for Performance of Covenants. [If with surety, the penal clause will be as in Form 429; if without, as in Form 399 to the *, and thence continue thus:] WHEREAS, the above-named Y. Z., at the special instance and request of the above-bounden A. B., and for his debt, together with and as well as he, the said A. B., is held and firmly bound unto a certain M. N., of in and by an obligation bearing even date herewith, in the penalty of dollars, lawful money, as aforesaid, conditioned for [here recite the condition of the previous bond]: NoW, THE CONDITION of the above obligation is such, that if the above-bounden A. B. and his heirs, executors, and administrators, or any of them, shall well and truly perform the condition of the said recited bond, according to the true intent and meaning thereof, and shall indemnify and save harmless the said Y. Z., his heirs, executors, and administrators, from and against any and all actions, suits, damages, costs, charges, and expenses, by reason of said recited obligation, then this obligation is to be void; otherwise, to remain in full force and virtue. In presence of [Signatures and seals.] has levied on [here 439. Bond to Indemnify a Receiptor to the Sheriff. [Penal clause as in preceding forms.] WHEREAS, M. N., sheriff of the county of designate the goods], property of the above-bounden A. B., by virtue of an attachment [or, execution] against said A. B., issued out of the court, and has delivered the same to the said A. B., upon the said Y. Z. giving, at the request of said A. B., a receipt or obligation dated the day of and conditioned [reciting the condition]: Now, THE CONDITION of the above obligation is such, that if the above-bounden A. B. and C. D., their heirs, executors, and administrators, or any of them, shall well and truly indemnify and save harmless the said Y. Z., his heirs, executors, and administrators, from the giving of said receipt or obligation to said sheriff, then this obligation is to be void; otherwise, to remain in full force and virtue. In presence of V. OFFICIAL BONDS. [Signatures and seals.] The conditions of official bonds are usually prescribed by the law which exacts them, and the form should follow the statute. For that reason but one full form is given here. The penal clause of an official bond may be drawn, in all cases, similarly to that given below, unless the statute otherwise directs. 440. General Form. KNOW ALL MEN BY THESE PRESENTS, that we, A. B., of the town of in the county of and state of and C. D., of the same place, and county of farmer, are [or, the commonor, designating officers prescribed by lar], in the sum of dollars [inserting the penal sum], good and lawful money of the United States, to be paid to the said people of the state of [or, commonwealth or, said, designating officers, and their successors], for which pay merchant, and E. F., of the city of held and firmly bound unto the people of the state of wealth of of ment, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated this day of 18 WHEREAS, the above-bounden A. B. has been appointed [or, elected] to the office of [giving the title of the office at full length]. Now, THE CONDITION of the above obligation is such, that if the said A. B. shall [following the language of the statute which prescribes the form of the condition], then the above obligation is to be void; otherwise, to remain in full force and virtue. Signed and sealed in presence of [Signatures and seals.] [Acknowledgment.] 441. Bond of Sheriff. and state of lately elected [or, appointed] in the county of mer KNOW ALL MEN BY THESE PRESENTS, that we, Y. Z., of the town of in the county of sheriff of the said county, and A. B., of chant, and C. D., of, etc., are held and firmly bound unto the people of the state of in the penal sum of ten thousand dollars, good and lawful money of the United States, to be paid to the said people, for which payment, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated this WHEREAS, the above-bounden Y. Z. hath been elected to the office of sheriff of at the general election [or, at a special election, or, has been appointed, etc.], held therein, on the day of NOW, THEREFORE, the condition of the above obligation is such, that if the said A. B. shall well and faithfully, in all things, perform the duties and execute the office of sheriff of the said county of during his continuance in day of 18 the said office, by virtue of the said election, without fraud, deceit, or oppression, then the above obligation to be void; otherwise, to remain in full force and virtue. In the presence of [Acknowledgment.] 442. [Signatures and seals.] Affidavit of the Sufficiency of Sureties, to be Indorsed on the Foregoing Bonds. COUNTY OF 88. C. D. and E. F. [or, C. D., one of] the sureties named in the within bond, being duly [severally] sworn, says [each for himself], that he is a freeholder within the state of New York, and worth the sum of thousand dollars, over and above all debts whatsoever owing by him. Subscribed in my presence, and sworn before [Signatures of sureties.] 443. Clerk's Certificate of Approval of Sureties. I, M. N., clerk of the county of do hereby certify, that I have exam ined the competency and do approve of the sureties, C. D. and E. F., in the within bond. [Date.] [Signature.] CHAPTER XVI. CERTIFICATES. 444. Certificate to copy of paper on file.......... 445. Certificate to copy of record..... 444. Certificate to Copy of Paper on File. STATE OF } 88. PAGE. 233 233 233 234 I [give name and official designation of officer] DO HEREBY CERTIFY, that I have compared the foregoing copy of a [naming the instrument], [and of the indorsements thereupon], with the originals now remaining on file in this office, and that the same are correct transcripts therefrom, and of the whole of said originals. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal, this day of in the year one thousand eight hundred and [OFFICIAL SEAL.] I [give name and official designation of officer] DO HEREBY CERTIFY that I have compared the preceding with a certain indenture recorded in this office, in Book of Deeds No. , page etc., and do certify that the same is a correct transcript therefrom and of the whole of said indenture. [Here note any alterations in the manuscript, if any there be―e. g., thus: one line interlined at the top of page 2, before making this certificate.] IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of this office, at the city of in the year one thousand eight hundred and [OFFICIAL SEAL.] the day of I, M. N., clerk of the said county, do hereby certify that O. P., the person subscribing the foregoing [here designate the instrument], and before whom the same was taken, was, on the a judge of the court of day of 18, therein mentioned, a court of record of the said county of [or other officer, as the case may be], and that I am well acquainted with the handwriting of the said O. P., and verily believe that his name subscribed to the said certificate is his proper and genuine signature. [Attestation, signature, etc., as in preceding form.] For a form of certificate of official character, including the due execution of the instrument according to the laws of the place, see chapter on ACKNOWLEDGMENT AND PROOF OF DEEDS, Form 95. For the various provisions relating to certificates in New York state, see Birdseye's R. S., 2d ed., pp. 381-384. 447. Certificate as to Authentication of Papers Under United States' STATE OF I, clerk of the , Laws. court in and for the said county, the same being a court of record, do hereby certify, that whose name is subscribed to the jurat of the annexed affidavit, was, at the time of the taking of said affidavit, a notary public in and for said county, and then was duly authorized by the laws of the said state to take the same, and to administer oaths within said state, and was also duly authorized by the laws of said state to take the proof and acknowledgment of deeds to be recorded in said state; and I do further certify that I am well acquainted with the handwriting of said notary public, and that I verily believe his signature subscribed to said jurat is genuine. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on this 189. , day of NOTE. The foregoing certificate should be executed under the name and official seal of the clerk, register, recorder, or a prothonotary of the county, or the clerk of any court thereof having a seal, or of the secretary of state. It will not be sufficient if the signature purports to be made by a deputy.1 CHAPTER XVII. CHARTER PARTIES. A CHARTER PARTY is a contract of affreightment in writing, by which the owner of a ship or other vessel lets the whole, or a part of her, to a merchant or other person, for the conveyance of goods, for a particular voyage, or period of time, in consideration of the payment of freight. The instrument ought to contain: 1. The name and tonnage of the vessel. 2. The name of the captain. 3. The names of the charterer and the freighter. 4. The place and time agreed upon for the loading and discharge. 5. The price of the freight. 6. The demurrage or indemnity in case of delay. 7. Such other conditions as the parties may agree upon. Important differences in reference to the rights and liabilities of the parties, not only as between themselves, but as respects consignors and consignees, and persons furnishing supplies and repairs, depend upon the question whether the charter party reserves to the owner the right of possession and of control, or divests him of it, and gives it to the freighter, so as to make the latter the owner pro hac vice. In the absence of express words on this point, it is to be determined as a question of construction upon the whole instrument, whether the owner intended to part with possession. But the contract may limit or relieve the owner's liability imposed by the passenger laws of the congress. Where the owner of a vessel charters her for a voyage, equips her himself, hiring and paying the crew, and furnishing them with provisions, and reserving room for them and the provisions, the hirer is not owner of the vessel pro hac vice, but the original ownership continues. Where, by the terms of the charter, the shipowner appoints the master and mariners, and retains the management and control of the vessel, the charter is rather to be considered as a covenant to carry goods. Where, however, the whole management is given over to the freighter, it is more properly a hiring of the vessel for the voyage; and in such case the hirer is deemed owner pro hac vice. The owner of the vessel is presumed to warrant the vessel's seaworthiness. 448. Charter party reserving possession to the owner........ 1 Steele v. U. S. Pipe Line Co., 90 Hun, 35. PAGE. 235 237 448. Charter Party Reserving Possession to the Owner. THIS CHARTER PARTY, made and concluded upon the the year one thousand eight hundred and of which in day of between A. B., master and part owner [or, agent for the owners, or otherwise, as the fact may be] of the ship [or other vessel, naming it], of is master, of the burden of tons or thereabouts,1 register measurement, now lying in the harbor of of the first part, and Y. Z., of , in the state of merchant, of the second part, WITNESSETH, that the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, does covenant and agree on the freighting and chartering of the said vessel unto the said party of the second part, for a voyage from [here describe the voyage e. g., thus:] the port of M. to N., and return to M., and on the terms following that is to say: 1. The said party of the first part engages that the said vessel, in and during the said voyage, shall be kept tight, staunch, well-fitted, tackled, and provided with every requisite, and with men and provisions necessary for such a voyage. 2. The said party of the first part further engages that the whole of the said vessel (with the exception of the cabin, the deck, and the necessary room for the accommodation of the crew, and the stowage of the sails, cables, and provisions)2 shall be at the sole use and disposal of the said party of the second part during the voyage aforesaid; and that no goods or merchandise whatever shall be laden on board, otherwise than from the said party of the second part, or his agent, without his consent, on pain of forfeiture of the amount of freight agreed upon for the same.3 3. The said party of the first part further engages to take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and merchandise as the said party of the second part, or his agents, may think proper to ship [under and on deck]. 4. And the party of the first part agrees to proceed with all dispatch from M. direct to N., and return to M., and there discharge the cargo aforesaid. [Here may be inserted any special stipulations which may be agreed as to the use of the vessel -e. g., the following:] The party of the second part is to have the use of the cabin for passengers, and to carry, if desired, steerage passengers on the between-deck, and to provide for the same himself. [Or thus:] It is further agreed, that the vessel takes one passenger, free of expense, he furnishing all his extra stores, etc. 1 Describing the vessel in the charter officers and crew are to be accommodated in party as of the burden of a specified number the mode adapted or fitted to their station, of tons, or thereabouts, is a description and the character of the vessel and the nature of not a warranty; and if it is not fraudulently the voyage being taken into consideration. inserted, and does not entrap the charterer Almgren v. Dutihl, 5 N. Y., 28. into the bargain, it will not vitiate the contract, although the vessel be of considerably less burden, and although shipments could not be so readily obtained, or insurance upon cargo so readily effected in a vessel of such size, as in one of the size stated in the charter party. Ashburner v. Balchen, 7 N. Y. 262. 2 Such a provision as this contemplates not merely accommodations absolutely necessary and literally indispensable, but that the 3 Where the charter party contains such provisions as the two foregoing, which are in the usual form, and the owners appoint the master, they are deemed to continue in possession, and may have a lien for their charter money upon all merchandise. Holmes v. Pavenstedt, 5 Sandf. 97 and cases cited; McTaggart v. Henry, 3 E. D. Smith, 390; Williams v. Johnson, 11 Barb. 501. |