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MARRIED WOMAN. (Lunacy of husband—election.) The lunacy of the husband does not in any way remove the disabilities of the wife, and where in the course of the proceedings in such lunacy, the wife had before the master and also by her counsel in court consented to waive her right to a jointure secured by deed after marriage: Held, that such consent was improperly taken and did not bind her, that it made no difference that the subject waived was an interest in land, and that it could not be set up as an election to take the dower, which was of less value, instead of the jointure, because it was not put before her as a case of election, and that even if it had been so, such election could not be made during coverture. Frank v. Frank, 3 M. & C. 171.
MISJOINDER. (Objection taken on rehearing.) Where one of the objects of a suit was to have a lease declared void, which was good against one of the plaintiffs, and a decree had been obtained containing such declaration, the objection of misjoinder which had not been taken at the first hearing was allowed to hold good upon a rehearing. Story v. Johnson, 2 Y. & C. 586.
II.-DIGEST OF AMERICAN CASES.
Principal cases in 17th Pickering's (Massachusetts); 6th Paige's (New York Chancery); 8th Vermont; and 12th Connecticut Reports.
ABATEMENT. (Pendency of action for same cause.) If it appears by inspection of the writs in two suits brought by the same plaintiff against the same defendant, that the cause of action in the second suit is, in a material and substantial part, the same as in the first, although other causes of action are declared on in the second, the pendency of the first may be pleaded in abatement of the second. Buffum v. Tilton, 17 Pick. 510.
2. (Same—pleading.) If the defendant pleads in abatement of a
second action, the pendency of a prior action for the same cause, as by the record appears, and different causes of action really exist and are intended to be sued for, in the two actions, the plaintiff, instead of replying nul tiel record, should reply, specifying the demands for the recovery of which each action was instituted, and thus show that they were not for the same cause of action. Ib. ACT OF THE LEGISLATURE. (Evidence.) An act of the legislature, reciting a former statute, is evidence of the former statute. Lord v. Bigelow et al. 8 Vermont, 445. ACTION. (When commenced—statute of limitations.) An action is deemed to have been commenced on the day of the date of the writ. Thus, where a writ was filled up and dated before the expiration of the time limited by the statute of limitations for bringing the action, it was held, that the action was not barred by the statute, although the writ was not served until such time had expired. Gardner v. Webber, 17 Pick. 407. ADMINISTRATOR. (When allowed interest.) An administrator advancing money, in good faith for the estate, and being guilty of no neglect nor unreasonable delay in converting the effects into money, will be allowed interest on his advances. Riz Adm'r v. Heirs of Smith, 8 Vermont, 365. ADVERSE POSSESSION. (Valid conveyance, notwithstanding.) Where an administrator held a mortgage for the benefit of the heirs, he may make a valid conveyance to the heirs notwithstanding an adverse possession in a stranger. Appleton v. Edson, 8 Vermont, 239. AGENT. (Liability of, without authority.) A person assuming to act as the agent of another without authority may be made liable on the contract as principal. Or if the nature of the case do not admit of such remedy he may be made liable for all damages by action on the case as for a deceit. Clark v. Foster, 8 Vermont, 98. AMENDMENT. (Of criminal information.) A criminal information, filed by a public prosecutor, is not amendable, by adding a new count for the offence already charged, after the statute of limitations has run upon such offence. The State v. Rowley et al., 12 Conn. 101. ALIEN. (Construction of law of United States.) Under the statute of the United States, passed April 14, 1802, providing that the children of persons who then were or had been citizens of the United States, should, though born out of the limits of the United States, be considered citizens, it was held, that the child of a father, who was a citizen of the United States after the treaty of peace with Great Britain by which the independence of the United States was acknowledged and after the adoption of the constitution of the United States, was not an alien, although born without the limits of the United States. Charles v. Monson and Brimfield Manuf. Co., 17 Pick. 70. 2. (Real estate in trust for.) Where an attorney, who was employed to collect a partnership debt due to a firm the members of which were aliens, compromised the debt by taking lands therefor; but on account of the alienage of the creditors and without any directions from them, took the conveyance in his own name to enable him to sell the land and convert it into money, and wrote to them informing them what he had done and promising to sell the land for them as sooh as purchasers could be found, but died before any sale of the land had been made; and his heirs after his death sold the land supposing it to be their own: Held, that the proceeds of such sale in the hands of the heirs were personal property belonging to the copartnership firm, and that the personal representative of the last surviving partner was entitled to recover such proceeds as a part of the copartnership effects. Christy v. Christy, 6 Paige, 170. 3. (Same.) A conveyance of land to a citizen as a trustee, upon an express trust to sell the same as soon as practicable, and to pay over the proceeds thereof to a creditor who is an alien, is a valid trust, and does not subject the interest of the alien creditor in the proceeds of such sale to forfeiture; as the principle of public policy which prohibits an alien from holding lands, either in his own name or in the name of his trustee, without the consent of the state does not apply to such a case. Ib.
ARBITRATION. (Award void on account of arbitrators exceeding authority.) All demands between the parties were submitted to arbitration, and the arbitrators were authorized, in case they should find the plaintiff indebted to the defendant, to estimate the value of certain chattels of the plaintiff, and the defendant was to take them in part payment. The arbitrators found the plaintiff indebted to a less amount than the value of the chattels, but instead of appraising so much only of the chattels as would pay the debt, they awarded that the defendant should take them and pay the plaintiff in money the excess of their value beyond the amount of the debt. Held, that the arbitrators had exceeded their authority and that the award was invalid. Culver v. Ashley, 17 Pick. 98.
ASSIGNMENT. (Delivery.) In the case of a deed of assignment of goods, a delivery of a portion of the goods, in token of a delivery of the whole, was held to be a constructive delivery of goods embraced in the assignment, which were at a distance from the place where the actual delivery of the portion was made, and which were in the hands of a third person and subject to a lien for his labor upon them. Legg v. Willard, 17 Pick. 140.
2. (Lien.) The goods subject to the lien having been attached, after the assignment, at the suit of such third person, upon the claim secured by the lien, it was held, that the lien was at an end, and that the assignee might maintain trover (after demand and refusal) against the attaching officer. Ib.
ASSUMPSIT. (Will lie for money obtained through fraud and misrepresentation.) Money obtained through fraud and misrepresentation may be recovered back in an action of assumpsit for money had and received. Dana v. Kemble, 17 Pick. 545.
ATTORNEY AND COUNSELLOR AT LAW. (Lien of, in Connecticut.) The attorney of a judgment creditor has a lien upon the judgment and execution, as against the debtor, with notice, for his services and disbursements in the progress of the suit, which courts of law and equity will protect, subject to the equitable rights of others. Andrews v. Morse et al., 12 Conn. 444.
BAIL. (How declared against.) If before the purchase of a writ of scire facias against bail, one of the bail dies, the survivor and the executor or administrator of the deceased cannot be properly joined in such writ; for there can be no joint judgment against them, the survivor being liable de bonis propriis, and the executor or administrator de bonis testatoris. Niles v. Drake, 17 Pick. 516. 2. (Same—amendment.) But if, in such case, they are joined, the plaintiff may amend by striking out the name of the survivor. Ib. BANKS AND BANK COMMISSIONERS. (Duty of directors.) Loans and discounts made by the officers of a bank from its corporate funds, will be presumed to have been made by authority of the board of directors, unless it is shown that the funds of the bank have been misapplied by such officers, so as to render such officers liable for fraud and embezzlement. And where an officer of the bank has been guilty of fraud, by violating the charter of the company, against the positive instructions of the directors, or otherwise, if the directors neglect to remove such officer and continue to intrust him with the funds of the corporation, they will be considered as sanctioning the fraudulent act. Bank Comm'rs. v. Bank of Buffalo, 6 Paige, 497. BILL OF EXCHANGE AND PROMISSORY NOTE. (Separate contract.) The payees of a promissory note, in common form, by a contract in writing of the same date as the note, agreed to take certain goods of the promisor, and apply what they could get for them in market on such note. It was held, in an action by the payees on such note, that the declaration need not set out such separate contract. Serton v. Wood, 17 Pick. 110. 2. (Indorsement on wrapper.) After a promissory note discounted by a bank, had become due, the bank, upon the application of the promisor for a renewal, indorsed on the wrapper of the note the words, “renewed for three months;” and the promisor paid the interest in advance, but the note was retained by the bank and no new note was given. It was held, that this indorsement did not become a part of the note; and that the bank was