ECCLESIASTICAL COURTS. 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 tees of the father, and for every purpose. Jackson's administrator v. Moore and Wife, 8 Dana, 170. BILLS OF EXCHANGE AND PROMISSORY NOTES. (Draft payable at particular bank.) A presentment of a draft, payable at a particular bank, to the cashier for payment at the bank, on the day it fell due, but after business hours, who refused payment because the acceptors had provided no funds, was held sufficient. Flint v. Rogers, 3 Shepley, 67. 2. (Same.) After due demand and refusal of payment, and after notice thereof has been put into the post-office directed to the indorser of a draft resident in another town, an action against such indorser, commenced on the same day, may be maintained, although by the regular course of the mail the notice would not reach him until the next day. 3. (Declarations of payee.) Ib. The declarations of the payee of a note, who is not at the time the holder, and while it is actually held by another for value, are not admissible in evidence in a suit upon it against the maker by an indorsee. Russell v. Doyle, 3 Shepley, 112. 4. (Protest. Evidence.) In an action upon a foreign bill, the protest is competent evidence to prove presentment of the bill to the acceptor and non-payment. Green v. Jackson, 3 Shepley, 136. 5. (Sale of note at more than legal discount.) The sale of a negotiable note, free from usury when made, and available as a good note before the sale, at a greater discount than legal interest, is not usurious, although indorsed by the party making the sale; and on non-payment by the maker, the indorsee may maintain an action against the indorser. French v. Grindle, 3 Shepley, 163. 6. (Damages.) The sum which the indorsee is entitled to recover from the indorser is the amount of the money paid for the note with interest. Ib. 7. (Indorser not discharged by delay.) Mere delay to enforce the collection of a note against the maker, does not discharge. an indorser, once made liable, where the holder does not so bind himself to give time to the maker, that an action against him on the note cannot be maintained. Page v. Webster, 3 Shepley, 249. 8. (Law and fact.) In an action against the indorser of a note, when the facts have been ascertained, whether legal notice has or has not been given, and whether due diligence has or has not been used, are questions of law to be decided by the court. Thorn v. Rice, 3 Shepley, 263. 9. (Evidence of payee.) The payee of a negotiable note, indorsed before it fell due, cannot be received as a competent witness to prove the note originally void. Clapp v. Hanson, 3 Shepley, 345. 10. (Alteration.) The holder of a bill has no right to make an alteration in it to correct a mistake, unless to make the instrument conform to what all parties to it agreed or intended it should have been. Hervey v. Harvey, 3 Shepley, 357. 11. (Assignment.) Where a negotiable note has been assigned, but not indorsed, proof by the maker, that there was no consideration, or that the note was fraudulently obtained by the payee, is admissible. Calder v. Billington, 3 Shepley, 398. 12. (Guaranty.) A guaranty of payment of a negotiable note, "for debt and costs without demand or notice," made by the indorser, renders him liable to the indorsee for the costs of a fruitless suit against the maker, but does not subject him to the payment of the expense of a protest. Gilman v. Lewis, 3 Shepley, 452. 13. (What proved by protest.) A bill of exchange drawn in one state of the union upon persons residing in another, is to be treated as a foreign bill, and a protest, apparently under the seal of a notary public, made in the state where the drawees reside, need only be produced, and proves itself as to the presentment and refusal; and so also, it seems, as to the transmission of notice to the parties on the bill, if such fact be stated in the protest. Halliday v. McDougall, 20 Wend. 81. 14. (Checks.) Checks are governed in several particulars by the same rules that prevail in relation to inland bills of exchange, |