Imágenes de páginas

damages, and that the plaintiff was entitled to interest make and repair streets, and that the common council, on his verdict. Held, that the decision of the court in having had notice of the defect in the cross-walk in holding as matter of law that the fence, as represented question, was bound to repair it. When a public body by defendant to plaintiff, as covered by the patent, was is clothed with the power to do an act which public not covered by it, was erroneous. It was a ques interest requires to be done, and the means of pertion for the jury that the value of the patent depended formance are placed at its disposal, the execution of so much on different things, and varied so greatly in the power may be insisted upon as a duty, notwithdifferent localities, owing to the difference in price of standing the statute empowering it is only permissive. materials; that the instruction by the court to the jury Held, that the common council, having power to make for arriving at damages could hardly operate otherwise local assessments for all street work, grading, removthan unjustly, and was erroneous. That, if the ing, etc., it is no defense that there was no money in court had instructed the jury that they might allow the highway fund of said city. Judgment of the refinterest on the verdict by way of punishment for the eree reversed. Hines v. The City of Lockport. fraud, it would have been correct; but not having done so, ani the plaintiff's verdict being for unliquidated damages, the instruction that plaintiff was entitled to

COURT OF APPEALS ABSTRACT. interest was erroneous. Verdict set aside and new

JUNE DECISIONS, 1871. trial ordered. Douglass y. Pratt.

(Continued from last week.) SHERIFF.

EVIDENCE. Liability for acts of deputy, after expiration of term 1. Finding of referee: presumption.-An exception to of office. — This action was brought to recover money the finding of fact by a referee, to be available in this collected by defendant as under-sheriff of Monroe court, must show that the finding is wholly unsupcounty on two execụtions. Chapman was sheriff of Mon

ported by proof. Cox v. James. Opinion by Grover, J. roe county when the proceedings under which the exe

2. The giving of a joint warranty deed of land by a cutions were issued were commenced. Chapman's term

man and wife, is evidence that they claim it in comof office expired December 31, 1867, and he died the fol mon, and their possession will sustain a finding that lowing October. Defendant collected the amount due

they were so seized. There is no more presumption on the executions after the expiration of Chapman's

that the wife, by joining with her husband, merely term as part of his (Chapman's) unfinished business.

intends to extinguish her right of dower, than that the Held, that section 12 of Statutes at Large, 352, was

husband intends to extinguish his interest as tenant by intended to apply to a vacancy in the office of sheriff the curtesy. Ib. occurring while the term for which he was elected or

HABEAS CORPUS. appointed was running, and does not apply to a

See Practice, 3. vacancy occurring in the office of one whose term has

HUSBAND AND WIFE. See Evidence, 2. expired and to whom a successor has been duly elected

LANDLORD AND TENANT. See Damages. or appointed, and has duly qualified. That the power of an under-sheriff is not terminated by the death of

LIENS AGAINST VESSELS. See Constitutional Law. the sheriff. That upon the death of a late sheriff, after the election and qualification of his successor, section

NEGLIGENCE. 72 applies, and the under-sheriff has vested in him the 1. In collision between public conveyances ouned by powers of the late sheriff, as to all business in the different parties: discontinuance of suit against two hands of either unfinished. That the late sheriff must Urong-doers: practice. - The plaintiff was injured by be deemed to be in office, and the relation of principal a collision between the street car of the defendant in and agent still existing, and therefore the under which she was riding as passenger, and a car of the sheriff cannot be sued for misfeasance or nonfeasance Harlem R. R. Co., at a point where the defendant's in office. The action must be brought against the road crossed the other. Suit to recover for the injury principal and his bail. Judgment reversed. Newman was originally commenced against both the plaintiff v. Beckwith.

and the Harlem R. R. Co., but, upon the payment of STREETS.

$100 by the Harlem Co. to plaintiff's attorney, it was Duty of city to repair. — This action was brought to discontinued, he paying costs of that suit to defendrecover damages sustained by plaintiff by falling ant's attorney, after which this action was brought. through a defective cross-walk in the city of Lockport. Held, that if the injury was caused by the concurrent The referee before whom the action was tried dis negligence of the defendant and the Harlem R. R. Co., missed plaintiff's complaint, on the ground that it plaintiff had a right to bring her action against both being discretionary with the common council to direct or either of the companies. Barnett v. Third Ave. R. R. the repairs of cross-walks in said city, it is not liable Opinion by Allen, J. because of the neglect or refusal to exercise such dis 2. Although the rule is that a party receiving an incretion. Held, that the following work is the only jury from the wrongful acts of others is entitled to work, under the charter, that is discretionary with the but one satisfaction, and that an accord and satisfaccommon council, viz. : When a new street is to be put tion by, or a release or other discharge by, the volunin condition, when a new side or cross-walk is to be tary act of the party injured, of one of two or more laid, a street paved or a sewer or drain made, and the joint tort feasors, is a discharge of all, the discontinumanner of doing such work, and also whether any, and ance of an action against those jointly liable by the atif any, what part of the expense of a local improvement torney of the injured party is not such a release, and is shall be borne by the city, and how much by the prop no bar to a new action against either, even though such erty owners. Held, that a cross-walk is a part of the attorney receives a certain sum for costs from one of street itself; that common council had power to make the parties against which the action is brought. Ib. and repair cross-walks, under the general power to 3. Such discontinuance and new action is within the

limits of the authority of an attorney, but he has no for the protection of the plaintiff, the original order power to conclude his client in relation to the subject- having been set aside, not as void or one improperly matter of the action without such client's consent. Ib. granted, but because the defendant had explained and

4. Motions to set aside verdicts as contrary to evi answered the prima facie case of the plaintiff. The dence, as well as motions for a new trial, upon the order was vacated upon motion on its merits, and ground of newly discovered evidence, are not governed not for irregularity. Elwood v. Gardner. Opinion by by any well-defined rules, but are addressed to the dis Allen, J. cretion of the court, and this discretion is not review 9. If the order had become void or inoperative for able. Ib.

any reason, so as not to authorize the longer detention See Contracts, 2.

of the defendant under it, or an execution against the

person, no motion would have been necessary. A writ PRACTICE.

of habeas corpus would have been the proper remedy. Ib. 1. General denial or denial of part of issues entitles 10. Equitable power of supreme court as to fraududefendant to trial: specific denial, when not required : lently obtained instruments.—The defendants, each frivolous answer.-When the general issue under the claiming to own a certain instrument made by plainformer practice was, and a general denial under tiff, brought separate actions against him thereupon. the present practice is, interposed as a defense, the The plaintiff then commenced this action against both party had and has a right to a trial by jury, which is defendants to compel a delivery and cancellation of secured to him by the constitution. Thompson v. Erie the instrument, on the ground that his signature to the R. R. Co. Opinion by Folger, J.

same had been procured by false and fraudulent repre2. Where only a portion of the allegations of a com sentations. Held, that it was within the power of the plaint are denied, the answer is as fully a general court of equity, in its sound discretion, to compel the denial to those allegations as is an answer denying the cancellation of a written instrument obtained by fraud. whole complaint a general denial of all its allega- | McHenry v. Hazzard et al. Opinion by Andrews, J. tions. Ib.

11. That the court is not precluded from exercising 3. And the defendant has a constitutional right to such right, even though such fraud would be a good require that this denial be overcome by the same kind defense to an action at law. The person claiming of proof as is required to overcome a general denial equitable relief is not bound to await the commencethat is common-law proof. Ib.

ment of an action on the contract. Ib. 4. Whether the complaint sets up a claim formerly 12. While the code requires causes of action, legal and cognizable by a court of law, or entertained only in a equitable, growing out of the same transaction, to be court of equity, the answer follows the same form; united in a single suit, yet where suits have been coma general denial is the same in either case; the same menced by parties severally against an individual, rules of practice must apply to it, and a general denial claiming of him the performance of the same alleged by the defendant will require of the plaintiff a trial debt or duty, based upon the same contract, but claimand proof of his demand, by the production of wit ing title in hostility to each other, which debt or duty nesses before the proper tribunal. In neither case can is denied by the defendant, it is no bar to the bringing affidavits taken, ex parte out of court, determine the of an equity action for the cancellation of the contract issue. Ib.

in question on the ground of fraud. Ib. 5. The general denial of an answer has as wide a scopa See Arbitration and Auard; Negligence, 3; Deeds. as the allegation of the complaint which it denies, and if the plaintiff frames the allegations of his complaint so broadly that a general denial of it may leave DIGEST OF RECENT AMERICAN DECISIONS.* specifically undenied some part of the matter com

BANKRUPTCY. prised in the whole of his allegation, he cannot take from the defendant his right of a general denial, and

1. Impeaching discharge in State court. — A discharge require him to specifically deny each part of the whole

in bankruptcy cannot be impeached in a State court for which the complaint has alleged. Ib.

any cause which would have prevented the granting of 6. Where a first answer has been erroneously stricken

the discharge under the bankrupt act, or would have out as sham, a second answer cannot be stricken out

been sufficient ground for annulling the discharge in as frivolous. The first answer, remaining as part of

the United States court under that act. Corey v. Ripthe record, forbids the striking out of the second,

ley, (Me.) 19. though it may be so frivolous standing alone as to

2. The authority to set aside and annul a discharge in entitle the plaintiff to judgment upon. Ib.

bankruptcy, under the act of 1867, rests exclusively in 7. Failure to file return in time. Relief will not be

the United States courts. Ib. granted upon a motion to vacate an order dismissing

BOND OF INDEMNITY. an appeal for the non-filing return to the appeal within

No recovery on, without actual damage. - The plainthe prescribed time, if the appeal is without merits,

tiff had delivered to the defendants goods, subject to and the party will not be benefited by its restoration.

a lien for freight charges in favor of C., from whom Supt. of Poor v. Bostwick. Opinion by Allen, J.

plaintiff had received them, without collecting such 8. Effect of setting aside order of arrest prima facie charges, upon receiving from the defendants a bond, valid: habeas corpus.— The plaintiff applied for a re

conditioned to indemnify the plaintiff “against any argument in order to ask that an order vacating and

legal liability which he may have incurred" by so dosetting aside an order of arrest be modified so as to

ing. Judgment was recovered by C. against the plainrequire the defendant, as a condition for such order,

tiff for the amount of such charges and cost, but it did to stipulate not to sue plaintiff for false imprisonment,

not appear that it had been paid. In an action upon or for any proceedings under the order of arrest or

the bond, held, that the plaintiff could not recover, the execution against the person issued upon the judgment. Held, that such a stipulation was not necessary

* From 2 American Reports.

as there was no proof of actual damage. Weller v. is only liable to the extent of his route, and for safe Eames (Minn.), 150.

storage and delivery to the next carrier, yet if he store CARRIERS.

the goods in his own warehouse at the end of his line, 1. Liability for baggage received for transportation. without delivery or notice, or attempt to deliver to the The plaintiff was a passenger on defendants' road, but next carrier, his liability as a carrier will continue. had lost her trunk while traveling over a connecting Lawrence v. The Winona and St. Peter's R. R. Co. road. A few days after a conductor on the connecting (Minn.), 130. road found the trunk, and left it in charge of the

6. The defendants - common carriers — received for defendants' baggage master, stating the facts, and transportation from a connecting carrier, goods marked requesting him to forward it to plaintiff, which he for M., a point beyond their line. On the arrival of agreed to do. Nothing was said about freight, nor the goods at W., the terminus of defendants' line, they whether the trunk should go by the freight or passen were stored in their warehouse, where they were ger train. The trunk being lost, held, that the de- destroyed by fire. Some time previously the defendfendants were liable for its value. Wilson v. Grand ants, for the purpose of increasing the business of their Trunk Railway (Me.), 26.

road by drawing off the freight for M., from another 2. Duty to carry all freight without preference. — The road to M., connecting with their road at an interdefendants contracted with the Eastern Express Com mediate point, had agreed with P., another carrier, pany to give the latter a certain share in the baggage that they would deliver to him all freight consigned to and mail car attached to passenger trains for the car M., provided he would convey it regularly and at cerriage of their goods, and agreed not to let any similar tain rates from W. to M., and, in pursuance of this space in any car attached to passenger trains to any agreement, it was their custom to store all such freight other persons or express carriers during the continu in their warehouse until a load accumulated, when P. ance of the contract. Plaintiffs, another express com would send a team and take it. The plaintiffs' goods pany, offered packages to be transported on defendants' were so stored at the time of their destruction; but no passenger trains, which the defendants refused to re notice thereof was given to P. nor to the consignee. ceive or transport. Held, that defendants were liable In an action to recover the value of the goods, held, to plaintiffs for such refusal. New England Express that the defendants were liable as cominon carriers. Ib. Co. v. Maine Central R. R. Co. (Me.), 31.

CONSTITUTIONAL LAW. 2. Liability of, for willful misconduct of servants : measure of damage.—The plaintiff, a passenger in de 1. Taxation: exemption from by statute, not in nature of fendants' railway car, gave up his ticket to a brakeman, contract.—The legislature passed an act exempting from who was authorized to demand and receive it. Shortly taxation all property used for the purpose of manufacafter the latter approached plaintiff, denied that he turing salt, and offering a bounty of ten cents a bushel had received his ticket, and assaulted and grossly for salt manufactured in the State. Two years later the insulted him. In an action against the railway com said act was amended by limiting the exemption from pany to recover damages, held, that the defendants taxation to five years. The five years having elapsed, were liable, and that plaintiff could recover exemplary the complainant, a corporation for the manufacture of damages. (Tapley, J., dissented on the question of salt, organized after the passage of the original act, dainages.) Goddard v. Grand Trunk Railway Co. filed a bill to restrain the collection of a tax upon their (Me.), 39.

property, on the ground that the exemption from tax3. The defendants having retained the brakeman in ation was in the nature of a contract between the their employ after notice of his conduct, the court State and the parties acting under it, and therefore refused to set aside as excessive a verdict for $4,850. Ib. protected by the United States constitution. Held,

4. Express companies: liability of.—The defendants that the act was not in the nature of a contract, and were an express company, engaged in transmitting could be amended or repealed at any tiine. East from place to place goods for hire, having at different Saginaw Manufacturing Co. v. City of Last Saginan points local agents whose duty it was to receive goods (Mich.), 8:2. transmitted and deliver the same to the consignee, as 2. Act compensating ouners of sheep killed by dogs. well as to receive goods for transmission, having no A statute provided that any person suffering loss by vehicles or other means of transportation except at reason of the maiming, killing or worrying of his sheep their local offices for local purposes, but transmitting by dogs may present proof of the nature and extent goods, in charge of their messengers, by steamboats, of his damages to the selectmen of the town, who shall railroads, coaches, etc., owned and controlled by other draw an order for the amount in his favor upon the parties. Plaintiff's agent delivered to them goods for treasurer of the town, and thereupon the tow may transportation, taking a receipt, in which it was stip recover of the owner of the dog the full amount of ulated that the defendants were not to be held liable such order. Held, to be unconstitutional, in so far as for any loss or damage except as forwarders only, nor it undertook to bind the owner of the dog by the for perils of navigation and transportation. The steam decision of the selectmen fixing the amount of the boat on which the goods were being transported, in damage without giving him an opportunity to be heard consequence of the negligence of those in charge, ran on the question. Held, further, that the town could upon a snag and was sunk, thereby injuring the goods. nevertheless recover, under the statute, from the In an action to recover the damage, held, that the owner of the dog the actual damage which the jury defendants were common carriers, not forwarders, and, who try the cause find the owner of the sheep to have as such, liable for the loss, notwithstanding the terms suffered, not exceeding the amount of the order drawn of the receipt, which could not cover losses arising by the selectmen. Eust Kingston v. Toule (N. II.), from negligence. Christenson v. The American Express 174. Co. (Minn.), 122

3. Evidence tending to prove that the dog had killed 5. Liability for non-delivery to connecting line. - or worried sheep before is inadmissible in such acWhile in the absence of a special agreement, a carrier tion. Ib.


FIRE INSURANCE. 1. When void for mental unsoundness of party to. Condition in policy: non-payment of premium note.A. having a life estate in certain lands, and owning A policy, the premium for which had been paid by stock thereon, conveyed the same to defendant on con note, contained a provision that, in case the note dition that he should support her for life, which he should not be paid at maturity, the full amount of the did. After her death her executor brought action to premium should be considered as earned, and the recover for use and occupation of the lands and for policy become void while said past due notes remained value of the property, alleging that the conveyance overdue and unpaid; a loss occurred after the maturity was void, A. being mentally imbecile at the time it of the note and before it was paid. Held, that the was made. Held, that the plaintiff could not recover company was not liable for any loss which occurred in the absence of bad faith or fraud on the part of the during the continuance of the default, but that, on the defendant. Young v. Stevens (N. H.), 202.

subsequent payment of the note, the policy revived 2. Entirety: not to be performed within a year: statute and was in force from the date of such payment. of frauds. — On the 1st of January plaintiff made a parol Williams v. The Albany City Ins. Co. (Mich.), 95. contract with defendant to sell him all the wood upon

FOREIGN LAWS. a certain lot, at five dollars a cord, and to deliver as much thereof as he could that winter, and the balance

1. Contracts tending to violate laws of foreign country: the winter and year following, the defendant to pay on

proof of foreign laws. — Plaintiff and defendant, in purdemand for amount delivered at the close of each win

suance of an agreement to that effect, went to Canada ter's delivery. Plaintiff delivered a portion of the

in 1864 for the purpose of procuring men to be enlisted wood that winter, which was accepted and paid for;

in the United States army, and, before going, and also the remainder he delivered the winter and spring fol

while there, plaintiff loaned to defendant money to lowing, but defendant refused to accept or pay for it.

pay his expenses. In an action to recover such money, Held, that the contract was entire; that the delivery held, that the contract, having for its object the violaand acceptance of the first part took the case out of

tion of a law of Canada, was void, and that the plainthe statute of frauds; and that it was not a contract

tiff could not recover. Hall v. Costello (N. H.), 207. which was not to be performed within one year from

2. In proof of the laws of a foreign country, the testithe making of it, within the meaning of the statute.

mony of any person, whether a professed lawyer or Guult v. Brown (N. H.), 210.

not, who appears to the court to be well informed on

this point, is competent. Ib. CRIMINAL LAW.

3. Presumption as to.- In the absence of evidence the Sentence: power of court to revise. Where a prisoner | presumption is that the laws of another State conform has been convicted and sentenced, and duly commit in substance to the general principles of the common ted in pursuance of the sentence, the power of the law. Ellis v. Maxson (Mich.), 81. court to revise or change the sentence is at an end.

HIGHWAY. Brown v. Rice (Me.), 11.

Notice of defect in.-In an action against a town to ELECTION.

recover for injuries caused by a defect in a highway, 1. Certificate of, prima facie evidence: mandamus.

the question whether notice to the town of the existThe relator received from the proper officer a certi

ence of the defect can be inferred from the length of ficate of his election to the office of district clerk of M.

time it has continued is a question for the jury. Colcounty; he subsequently took the oath, gave and filed

ley v. Inhabitants of Westbrook (Me.), 30. the bond required by law, and then demanded of the

(To be continued.) respondent- the former clerk, whose term of office had expired, and who was in possession — the seal, records, books, papers, etc., belonging to said office,

DECISIONS OF THE COURT OF APPEALS, The respondent answered that the relator, being a nonresident of the State, was ineligible to the office, and The following decisions of the court of appeals were therefore not legally elected. Held, that the relator handed down on the 5th inst: was entitled to a mandamus. State v. Sherwood Judgments affirmed with costs—Florence v. Hopkins (Minn.), 116.

and another; Higgins v. The Watervliet Turnpike Co.; 2. A certificate of election is prima facie evidence of Lowry and ano. v. Inman; The Ocean National Bank title, and the court will not go behind it in proceed 1. Olcott and ano.; Holden v. The Putnam Fire Insurings for a mandamus. Ib.

ance Co.; Duffy v. O'Donevan et al.; Hough et al. v. The American Baptist Mission Union; Richardson v.

The N. Y. Central Railroad Co. ; Ross v. Ackerman, Evidence of parol contemporaneous agreement to impleaded, etc.; Hoffman v. Hoffman; Crocker v. Colrevoke written instrument inadmissible.- In an action well, impleaded, etc.; People ex rel. Dunkirk and for goods sold and delivered, the plaintiff gave in evi Fredonia Railroad Co. v. Cassity, etc., as assessors, etc. dence a written order for the goods, signed by the de Judgments affirmed without costs - Lanel v. Van fendant, and proved that they were delivered accord Wagener; Lanel v. Van Wagener. ing to the terms of such order. The defendant Judgments reversed, new trial granted, costs to abide thereupon offered to prove that at the time said order event – Drew v. Swift; Hall v. Lauderdale; Grant, was made, as an inducement thereto, plaintiff verbally survivor, etc., v. Smith; Hart v. Messenger and o’rs; agreed with defendant that the latter might revoke Hamilton and ano. v. Douglass; Madison Avenue Bapthe order during the summer and not take the goods, tist Church v. The Baptist Church in Oliver street; and that during the summer, and before the delivery Etna National Bank of New York v. The Fourth Naof the goods, he did revoke said order. Held, that such tional Bank. offer was properly rejected. Wemple v. Knopf (Minn.), Judgment of general term reversed, and that of 147.

special term affirmed with costs — The National Park


Bank of New York v. The Ninth National Bank of versies are quite at an end, for, by the statute 22 and 23 New York.

Car. II, c. 10, explained by 29 Car, II, c. 30, it is enacted Orders of the general term and special term of the that the surplusage of intestates estates (except of femes supreme court reversed, and assessments vacated with covert, which are left as at common law) shall,” etc. I costs — In re petition of George W. Douglass to vacate am unable to see what the statute of frauds had to do assessments in 64th street.

with the question. In the matter of the application of the Episcopal Bacon, in his abridgement edition, 1793, vol. I, page Public School to vacate assessments - Orders of supe- 289, uses the following language: “But choses in action, rior court at general and special terms and of the as debt due to the wife by obligation, etc., which are to county judge, reversed and application denied with be demanded by action, though they are likewise so costs. People ex rel. White v. Hulbert, County Judge, far vested in the husband that he may reduce them etc.

into possession; yet, if he dies before any alteration Order affirmed with costs - In the matter of Eagar | made by him, they shall go to his wife, nor shall they, to vacate assessments, etc.

without such alteration, survive to the husband upon Order of general term of superior court affirmed the death of the wife, or he have any right to them, with costs - People ex rel. Perkins v. Hawkins, super but as he is entitled as administrator to his wife." He visor, etc.

then refers in a note to 1 Rob. Abr. 910, and the statute Order granting new trial affirmed, and judgment of Charles, etc. absolute for the defendant, with costs pursuant to stip The twenty-ninth section of the act referred to in ulation - Bank of Albion v. Burns and another.

my former letter, and which is unrepealed by the act of Judgment affirmed with costs as to Leonard-Dixon 1867, is: “A husband, as such, if otherwise competent v. Palmer, and judgment of superior court reversed and according to law, shall be solely entitled to administrajudgment on report of referee affirmed against Stephens tion on the estate of his wife, and shall give bond as with costs, deducting $130.08 from the original. Judg- other persons, but shall be liable, as administrator, for ment to correct error of referee in computation. the debts of his wife only to the extent of the assets Dabeny et al. v. Stephens and ano., impleaded, etc. received by him. If he shall not take out letters of

Judgment affirmed with costs to respondent, to be administration on her estate, he shall be presumed to paid by the plaintiff from the estate of the testator. have assets in his hands sufficient to satisfy her debts, White and ano., ex’rs, etc., v. American Colonization and shall be liable therefor; and if he shall die leaving Society, impleaded; White and ano., ex’rs, etc., v. any assets of his wife unadministered, they shall pass Trustees of the Board of Domestic Missions; White to his executors or administrators as part of his perand ano., ex’rs, v. American Tract Society, impleaded, sonal estate, but shall be liable for her debts to her etc.

creditors, in preference to the creditors of the husJudgment reversed, new trial granted, cost to abide band.” event, unless the defendant within thirty days after In 1853 an act was passed exempting the husband from notice of this judgment oonsents to the entry of a liability for his wife's debts, except so far as he had judgment against him for $6,453.67, with costs in the assets from her, but that does not affect the question. court below and in this court, and in that event the The decision of the general term reversing the decree judgment thus modified, affirmed-Currie and ano. V of the surrogate in the case referred to involves the White.

absurdity of giving the wife's property to the adminisJudgment of general term reversed, and that on trator of the husband, in case of his death; while it report of referee affirmed with costs—Childs v. Smith. excludes him, if living, from any enjoyment thereof. Judgment reversed and judgment for the people,

Yours respectfully, adjudging that the relator was not duly elected to the

J. G. COLLINS. office, and that the act of the legislature extending the term of office of the defendant was unconstitutional

THE ALABAMA CLAIMS. and void, and that neither the relator nor defendant The following circular has been issued from the were entitled to the office, without costs to either party State department: against the other— People ex. rel. Fowler and o’rs. v.


“WASHIN TON, August, 1871. 5

“ Claimants who have not already filed in the departCORRESPONDENCE.

ment of State their claims against Great Britain, growDISTRIBUTION OF A WIFE'S PERSONAL ESTATE.

ing out of the acts committed by the sereral vessels ANGELICA, August 29, 1871.

which have given rise to the claims generally known as Editor of Law Journal:

the Alabama claims, are requested to do so without Dear Sir- After I wrote to you on the 26th instant, delay, in order that they may be taken into account in my attention was more particularly drawn to the last presenting the aggregate claims of the United States clause of section 79, which reads: “As they are entitled to be brought before the tribunal of arbitration which by the rules of the common law.” It struck me the is to meet in Geneva in the month of December next. revisers of 1830 had made a mistake in saying that the It will not be necessary for claimants who have already husband's right was derived from the common law. filed their claims, sustained by proofs, to take any steps

The only authority for this expression I was able to under this notice, unless they may have additional find was in Chitty's Blackstone, vol. I, page 435, in proof to file. No papers already tiled can be withwhich this language is used : “And the right of the drawn. Claimants must prepare for themselves the husband not only to administer, but also to enjoy proof of their claims. This department will, on appliexclusively, the effects of his deceased wife depends cation, forward to claimants a copy of the treaty and still on this doctrine of the common law, the statute of a circular showing the form of proof that is advised frauds declaring only that the statute of distributions by the department in the absence of all rules by the does not extend to this case. But now these contro tribunal which will pass on the same. The early atten

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