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that the wife was entitled to the whole of the 300l. Davies v. Elmes, Bea. 131. 4. (Construction—Locality of subject—Personal ornaments.) A testator having three places of residence at A., B., and C., after having devised to his nephew his messuages at A., next bequeathed to him his house at B., which was leasehold, and the will then proceeded, “and I also give to my said nephew all my carriages, horses, implements, and my live and dead stock, and chattels in and about the said house and premises, and also my household goods and furniture, pictures, plate, linen, china, liquors of all sorts and brewing vessels, and likewise my watches and personal ornaments :” Held, that the household goods in each of the three residences passed by this bequest. Quaere whether a bust passed under the above words, and what is the meaning of “personal ornament.” Willis v. Curtois, Bea. 189. 5. (Construction—Remoteness.) A bequest of a residue to a class of children, some of them unborn at the death of the testator, followed by a clause that the shares should not be payable till the children attained twenty-three; and by another general clause that all legacies in the will should be vested in each of the legatees at twenty-three; and also that the shares and legacies of such as died under that age should go over to
the survivor: Held void for remoteness. Croneck v. Lumb, Y. & C. 565.
AGENT. (Common agent—Appropriation—Special case.) Where a debtor and a creditor have employed the same agent, a remittance by the debtor to such agent, for the purpose of being paid over to the creditor, must be so applied by the agent or his assignee, even though the estate of the agent has a claim against the remitting party; and upon this principle, where a Belgian house had, through the agency of the bankrupts, consigned to a house in China goods for which the latter house remitted bills to the bankrupts, who were also their agents, which they directed to be appropriated, as well as the balance of a previous remittance, in payment of the Belgian house, to whom they also sent at the same time, through the bankrupts, a letter announcing the appropriation, the date of such letter and of the last remittance from China being subsequent to the date of the fiat : It was held by the lord chancellor, upon a special case, affirming the judgment of the court of review, that the bills, as also the balances on the previous account, must be handed over to the Belgian house. Re Douglas, Mont. & Ch. 1. BANKRUPT TRUSTEE. (Dividends.) Bankrupt trustee not allowed to receive dividends on the trust fund, though the sum was only 200l. and the parties consented. Earp. Strettell re Raikes, Mont & Ch. 165. PRINCIPAL AND SURETY. (Interested assignee.) Where the principal and surety had concurred in an equitable mortgage to the creditor of an estate, in which each of them had an interest, and both principal and surety afterwards became bankrupt, and the creditor was appointed assignee of the surety, and presented a petition for sale of the estate, such an order was refused, till a quasi assignee should be appointed to protect the interests of the surety and his creditors in the matter. Erp. Haines, re Barnett, Mont. & Ch. 32. 2. (Proof by surety.) Where a party accepted bills for the accommodation of the bankrupt, which the latter redeposited with his bankers as a security for the floating balance due to them from him, and the bankers proved for the whole of such balance, and the acceptor of the bills then paid such bills in full : Held, that he was not entitled to receive back from the bankers the dividends received by them in respect of the amount due on the bills, but was only entitled to stand in their place as to future dividends on that sum. (Exp. Brunskill, 4 Dea. & Ch. 442.) Exp. Holmes, re Garner, Dea. 662.
Selections from 1 Curt. Part. 3. .
ALIMONY. (How forfeited.) Where a wife who had been decreed "alimony in a suit instituted by her against husband, had gone abroad for the purpose of evading compliance with a writ of habeas corpus issued against her by the King's Bench commanding her to produce her children, the Court held that this was no defence to a monition against her husband to compel payment of alimony. Greenhill v. Greenhill, 462. (Consist.)
PRESUMPTION OF DEATH. A person who had embarked in 1835, on his way from Manilla to London, in a vessel which had never since been heard of, nor any one on board, was presumed to be dead. In the Goods of Hutton, 595. (Prerog.)
2. (Priority of death.) A husband, his wife and child, having perished together by shipwreck, administration granted to the husband's effects as of a widower. In the Goods of Murray, 596. (Prerog.)
II.-DIGEST OF AMERICAN CASES.
Selections from 3 Shepley's (Maine) Reports; 20 Wendell's (New York) Reports; and 7 & 8 Dana's (Kentucky) Reports.
ACTION OF ASSUMPSIT. (Mistake of law and fact.) Where the parties contract under a mutual mistake of the facts supposed to exist, there being no fraud, and no beneficial interest obtained, the one who pays can recover back the money paid. Norton v. Marden, 3 Shepley, 45.
2. (Same.) But money paid under a mistake of the law cannot be reclaimed.
A mistake of a foreign law is regarded as a mistake of a fact. Ib.
3. (Same.) Nor can it be recovered back, when voluntarily paid, or paid with a knowledge, or means of knowledge in hand, of the facts. Ib. 4. (Same.) Nor where there may have been a mistake of the facts, if the party paying has derived a substantial benefit from such payment. Ib. 5. (Sealed instrument.) A sealed instrument may be used as evidence in an action of assumpsit, and may form the very foundation out of which the action arises, where in the sealed instrument there is no stipulation for payment or performance to the party to be benefited, or to some other person for his use. Hinkley v. Fowler, 3 Shepley, 285. 6. (When notes are taken on time.) Where one sells property belonging to himself and others, and takes promissory notes therefor to himself alone, payable on time, and transfers the notes for his own benefit, an action will immediately lie against him, although the notes may not have become payable. Ib. AGENT. (Liability of town agent.) A town agent is not liable to the town for not resisting the payment of a claim, which the town had agreed to pay, even if the claim could have been successfully resisted. Pittston v. Clark, 3 Shepley, 460. ALIEN. (Feme covert.) A feme covert who is an alien may be naturalized; but her naturalization has not, under the general acts of congress, a retroactive operation, so as to entitle her to dower in lands of which her husband was seised during coverture, and which he had aliened previous to her naturalization. Priest v. Cummings, 20 Wend. 338. ASSAULT AND BATTERY. (Plea of justification.) To an action for an assault, battery, and wounding, defendants plead that they gently laid hands on the plaintiff to arrest him for felony, and did him no more injury than was necessary in effecting the arrest: the plea, as it does not justify the wounding, is insufficient; for, though a private citizen may arrest a felon, he may not wound him, unless resistance makes it necessary; and, in that case, a plea of justification must aver it. Boles and another v. Pinkerton, 7 Dana, 453.
ASSETS. (Notes.) Notes taken by an executor, upon a sale of property of the decedent, are not assets; and the mere fact that they were taken by one executor, who passed them over to another, does not make the former liable. Young v. Wickliffe, 7 Dana, 450. ASSIGNMENT. (Covenant to pay money.) A covenant for the payment of money, in which there is also one for work and labor, is not assignable, so as to vest the assignee with the right to sue in his own name. Marcum and another v. Hereford, 8 Dana, 1. ASSUMPSIT. (Mutual mistake.) Where a contract is made upon an assumed state of facts in reference to which there is a mutual mistake, money paid under such contract may be recovered back, pro tanto, in an action of assumpsit ; and it was accordingly held in this case, where a contract was made for the sale and delivery of oats, and the parties, upon a mistaken state of facts, estimated the quantity at a certain number of bushels, for which the stipulated price was paid, that the purchaser was entitled to recover back money paid for the difference between the estimated and real quantity; and that, notwithstanding he had agreed to take the oats at the estimated quantity, hit or miss. Wheadon v. Olds, 20 Wend. 174. 2. (Consideration.) The inducement to sell a slave, or to reduce the price, being, in part, a promise made by the purchaser not to sell him so as to separate him from his family, or to sell him only to the vendor, or the like, is a good consideration to uphold the agreement. Turner v. Johnson, 7 Dana, 441. BASTARDS. (Statutes of Virginia and Kentucky respecting.) The common law doctrine, that one born a bastard can never become legitimate, has been repealed, and the principles of the civil law adopted, by statutes of Virginia and Kentucky, by which it is provided, that antenuptial children shall be legitimated by the father's marriage to the mother, and recognition of the children; and that the issue of a marriage deemed null in law shall, nevertheless, be deemed legitimate. By these statutes, children so circumstanced, are legitimated as heirs and distribu