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titled to a preference over all other claims. After these, all other debts seem to be put upon the same footing, without priority or preference. And if real estate has descended to the heir, or been devised, whereby the heir or devisee becomes liable for the debts of the deceased, they are to be proceeded against in the same manner, as an executor or administrator. In Virginia, no preference is given to any particular class of creditors over others. If no other person will administer upon insolvent estates, the sheriff of the county is to dispose of all the property and bring the proceeds into court, where they are to be distributed to all the creditors, pro ratá. Kentucky has adopted the law of Virginia upon this subject, in every respect. In North Carolina, South Carolina, and Georgia, it seems that all the property of the deceased insolvent, real as well as personal, constitutes one general fund, to be distributed pro ratá, as with us, among all the creditors of every class, without distinction. With regard to several of the new states, we have not sufficient information upon this subject to state their regulations with precision. In none of the states is the executor or administrator allowed to retain, as in England, for his own debt, where there is an insufficiency of assets to discharge all the claims of the same grade. Nor is he permitted in any case, as in that country, to exhaust the whole amount of the assets in paying one, or a few favored creditors of the same class. In every case, creditors of the same grade are to be satisfied pari passu. On the whole, whatever opinion may be entertained of the comparative merit of the laws of the different states, there can be no doubt entertained by any one, that they have all made greater or less improvement upon the law of England.
I.—DIGEST OF ENGLISH CASES.
Selections from 9 Adolphus and Ellis, Parts 3 and 4; 10, Same, Part 1; 2 Perry and Davison, Part 4; 3 Same, Parts 1 and 2; 1 Scott's New Reports, Part 1; 6 Meeson and Welsby, Parts 1, 2 and 3; 8 Dowling, Parts 1, 2 and 3; 1 Manning and Granger, Part 1; 9 Carrington and Payne, Part 2.
ACTION ON THE CASE. (By reversioner.) The erection on the defendant's house of eaves and a pipe, overhanging, and conducting water on land in the occupation of a tenant, is a permanent injury, which gives a right of action to the reversioner. Tucker v. Newman, 3 P. & D. 14.
ARBITRATION. (Award, when “made and published.”) Where an order of reference required that the arbitrator should make and publish his award in writing, ready to be delivered to the parties, or such of them as should require the same, on or before a certain day; Held, that the award was “published ” and “ready to be delivered,” within the meaning of the order, when it was executed by the arbitrator in the presence of and attested by witnesses; and that it could not be set aside, although the plaintiff died on the following day, and before he had notice that the award was ready. (3 M. & W. 461; 9 Bing. 605; 5 B. & Adol. 518.) Brooke v. Mitchell, 6 M. & W. 473; 8 D. P. C. 392.
ASSUMPSIT. (When it lies against a stakeholder.) The plaintiff agreed with G. to pay him 25l. if he performed certain work WOL. XXV.-NO. L. 25
to the satisfaction of a referee, and that a check for 25l. should be deposited with the defendant, to be handed over to G., if the work succeeded ; if not, to be returned to the plaintiff. The check was so deposited, and the defendant presented and obtained cash for it. The referee subsequently disapproved of the work, but no decision by him was communicated to the defendant: Held, that under these circumstances, the plaintiff could not sue the defendant for the amount of the check; and that the turning of it into money was not a breach of the defendant's duty as stakeholder, which entitled the plaintiff to recover it as money received to his use, it not appearing by the evidence that the parties had contemplated any distinction between a check and money. Wilkinson v. Godefroy, 9 Ad. & E. 536. AUTREFOIS ACQUIT. If a party charged with murder, committed in the perpetration of a burglary, be generally acquitted on that indictment, he cannot afterwards be convicted of the burglary with violence, as the general acquittal on the charge of murder would be an answer to that part of the indictment containing the allegation of violence. Reg. v. Gould, 9 C. & P. 364. BANKERS. (Liability of) A. having received a sum of money bequeathed by will to his wife, gave it-to her to take care of. The wife, without his knowledge, deposited it in a bank, in the name of her son by a former marriage, who was then an infant, and took from the bankers an accountable receipt in her son's name, bearing interest. Held, that the bankers were liable to A. for the amount, in an action for money had and received. Calland v. Loyd, 6 M. & W. 26. BILLS AND NOTES. (Notice of dishonor.) The following was held a sufficient notice of dishonor: “D.’s” acceptance for £200, drawn and indorsed by you, due 30th July, has been presented for payment and returned, and now remains unpaid. (2 M. & W. 799.) Cook v. French, 10 Ad. & E. 131, n. 2. (Promissory note, what is.) The following instrument is payable on a contingency, and therefore not a promissory note: “Twelve months after date I promise to pay A. and B. 36500,
to be held by them as collateral security for any moneys now owing to them by J. M. which they may be unable to recover on realizing the securities they now hold, and others which may be placed in their hands by him. (4 M. & and W. 169.) Robins v. May, 3 P. & D. 147. 3. (What is a promissory note.) The following document was held to be a promissory note, and to require a stamp; “August 25, 1837. Memorandum, that I, Benjamin Payne, had £5 5s. for one month of my mother and S., from this date, to be paid by me to her.—Benjamin Payne.” (4 B. & C. 235; 7 D. P. C. 598. Shrivell v. Payne, 8 D. P. C. 441. 4. (Failure of consideration.) To an action on a bill of exchange for 20l. 8s. 6d., the defendant pleaded that it was agreed between him and the plaintiff that the plaintiff should do certain carpenter's work for the defendant for 63l.; that defendant paid plaintiff 431. on account of the work, and accepted the bill on account of the residue : that plaintiff neglected to do certain part of the work, and did other part in an unworkmanlike manner; and that the 43l. paid was more than the value of the work done : Held a bad plea after verdict, as not showing a total failure of consideration for the bill. Priquet v. Larne, 8 D. P. C. 174. COINING. An indictment under 2 W. 4, c. 34, s. 15, charging the gilding sixpences with materials capable of producing the color of gold, is good, and supported by proof of coloring sixpences with gold. Reg. v. Turner, 2 Moo. C. C. 42. 2. (Joint possession.) When pieces of counterfeit coin are found on one or two persons acting in guilty concert and both knowing of the possession, both are guilty under 2 W. 4, c. 34, s. 8. Reg. v. Rogers, 2 Moo. C. C. 85. COMPOUNDING FELONY. A person may be convicted under 18 Eliz. c. 5, s. 4, of taking money, &c., though in fact no offence liable to a penalty has been committed by the person from whom the money is taken. Reg. v. Best, 2 Moo. C. C. 124. COVENANT. Covenant does not lie against the chairman of the board of directors of a joint stock company, not incorporated by act of parliament, upon a deed under the seal of a former chairman. Hall v. Bainbridge, 1 Scott's N. R. 151. DETINUE. If one joint tenant bring an action of detinue, the objection that the other tenant should have joined can be taken only by plea in abatement. Broadbent v. Ledward, 3 P. & D. 45. 2. (Pleading.) The plea of non detinet merely puts in issue the simple fact of detainer, and if the defendant relies upon a justifiable detainer, he must plead it specially. Richardson v. Frankum, 8 D. P. C. 347. EMBEZZLEMENT. A coachman, employed by one proprietor of a coach to drive a certain part of the journey and to receive money and hand it over to him, may be charged with embezzling the money of that proprietor, though the money when received by him would belong to him and his partners. Reg. v. White, 2 Moo. C. C. 91. EVIDENCE. (Hand-writing.) Where the hand-writing of A. B. is in evidence, a paper purporting to be written by A. B., but not relating to the issue in the cause, cannot be put into the hands of witnesses in order to test their veracity, by asking them whether it is in his hand-writing. (5 Ad. & E. 514.) Griffits v. Ivory, 3 P. & D. 179. 2. (Secondary evidence.) There are no degrees in secondary evidence; therefore a party who has laid the foundation for such evidence may prove the contents of a deed by parol, though it appear that an attested copy is in existence. (6 C. & P. 206.) Doe d. Gilbert v. Ross, 8 C. & P. 389. 3. (Notice to produce—Secondary evidence.) The plaintiff had given the defendant notice to produce certain letters written by the defendant to his partner in New South Wales, and had called upon him to admit an extract from a letter book kept by the defendant (describing it): Held, that the letters contained in the book were secondary evidence of those described in the notice, although no other proof was given that the letters had been actually sent: Held also, that the defendant was not entitled to read other letters contained in the letter book.