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being on the same day acknowledged as a will to the attesting

witnesses. In the goods of Woodington, 324. (Prerog.) 7. (Signature by another.) Testator being too ill to sign, request

ed another person, who had drawn the will, to sign it for him. This he did in his own name, as on behalf and by direction of

testator. Held good. In the goods of Clark, 329. (Prerog.) 8. (Signature by mark.) Will signed by a mark, and not contain:

ing in it the name of the testatrix, held good, being identified aliunde as the will. In the goods of Bryce, 324. (Prerog.)


Selections from 4 & 5 Shepley's (16 & 17 Maine) Reports ; 2 Ashmead's, 6

Wharton's, and 9 Watts's (Pennsylvania) Reports.

ACTION. (Premature.) Where by the terms of a contract one

party was to perform certain labor and the other, in considera. tion thereof, was to pay a sum of money in a certain month, an action commenced on the last day of that month is prematurely brought and cannot be maintained, although a demand of the money had been made by the plaintiff on the same day before

suing out the writ. Harris v. Blen, 4 Shepley, 175. ACTION OF ASSUMPSIT. (Against obligor in a bond.)

Where the obligor in a bond, conditioned to convey an undivided moiety of a mill on the payment of certain sums of money, has disenabled himself from performing on his part by conveying the land to another, although the obligee may be ex• cused from tendering performance on his part, he cannot maintain an action of assumpsit to recover back the money paid.

Goddard v. Mitchell, 5 Shepley, 366. ADMINISTRATOR. (Duty of, in selling property.) Where an

intestate left a bird (an ostrich), which subsequently died in the hands of the administrator, who suffered four months to elapse between the time of taking the inventory and the death of the bird, without exposing it to public sale ; which four months

were the most inauspicious for its sale or exhibition ; and it appeared, that an immediate sale of it would have sacrificed the property; and the postponement was made apparently for the benefit of the estate, the court refused to charge the administrator with the appraised value of the bird. Secondo Bosio's es

tate, 2 Ashmead, 438. AGENT. (Omission to inform principal.) The general rule is

that for an agent's omission to keep the principal regularly informed of the agent's transactions, and the state of the interests intrusted to him, the measure of damages is to be proportioned to the actual loss sustained by the principal. Arrot

v. Brown, 6 Wharton, 9. 2. (Same.) An exception to this rule is, where the information

transmitted is such as may induce the principal, in the adaptation of his operations to his means, to rely on an outstanding debt as a fund on which he may confidently draw; in which

case the agent makes the debt his own. Ib. ANNUITY. (Descent to annuitant of land charged.) Land

charged with the payment of an annuity, having descended to the heirs at law, of whom the annuitant was one, is not thereby wholly discharged from the payment of the annuity, but only pro tanto, which the annuitant took as heir at law. Quære, if the annuitant had acquired the same interest by purchase, and

not by the act of the law ? Addams v. Heffernan, 9 Watts, 529. ARBITRATION. (Mistake in calculating.) After an award is

made, and filed in court by the arbitrators, it is not competent for the court to alter it upon the affidavits of the arbitrators, that they made a mistake in calculating the amount. Tilghman v.

Fisher, 9 Watts, 441. ARREST. (Effect of discharge from.) The arrest of a debtor

upon a capias ad satisfaciendum and a discharge from the arrest by the consent of the creditor extinguishes the judgment; and it does not even remain as a good consideration for a subsequent promise to pay ; but if the debtor be discharged in consideration of a promise to pay, such promise is binding on him, and may be enforced by action. Snevely v. Reed, 9 Watts, 396.

ASSIGNEE. (Foreign.) A foreign assignee in bankruptcy

may sue in the courts of Pennsylvania, in the name of the bank. rupt, for the assets of the estate, and recover them, unless as against the rights of an American creditor. Merrick's estate,

2 Ashmead, 485. ASSIGNMENT. (What.) An order drawn by a creditor upon

his debtor in favor of a third person, and accepted, may operate as a valid assignment of the debt, although it be not negotiable, or expressed to be for value received. Johnson v. Thayer, 5

Shepley, 401. 2. (Same.) Where the plaintiff had agreed with his debtor to take

a note payable in three months to himself or to T, and afterwards gave an order on the debtor to “let A. (the defendant) have the note as we agreed for the balance due me;" this does not as between them furnish presumptive evidence of an assignment of the demand to the defendant for value. McNear v.

Atwood. 5 Shepley, 434. 3. (Conditional signature.) An assignment for the benefit of

creditors stipulated for a “full and complete release of their respective claims” against the assignors within a certain time. A mercantile firm, creditors of the assignors, executed a general release under seal, and added to the signature the following words, “ on condition that the assignment pays over 25-100 on our claim : " Held, that the condition was void, and the release single and absolute; and that it extinguished the debt. Tyson

v. Dorr, 6 Wharton, 256. ATTORNEY AT LAW. (Authority to release.) The attorney,

of record, in a suit against the maker of a note, has no authority from his employment as attorney, to execute a valid release to an indorser of the same note to render him a competent witness.

York Bank v. Appleton, 5 Shepley, 55. 2. (Same.) The attorney of record, acting in a suit, has no

power as such to release the liability of a witness to pay a part

of the costs of the suit. Springer v. Whipple, 5 Shepley, 351. BAIL. (When allowed on criminal charge.) Where a crime is

charged, which is short of a capital felony, the judges are bound


to admit the prisoner to bail ; but, where a capital felony is charged, and the proof of it is evident, or the presumption great, no power exists anywhere to admit to bail. Commonwealth y.

Keeper of prison, 2 Ashmead, 227. 2. (Same.) A safe rule, where a malicious homicide is charged,

is to refuse bail in all cases where a judge would sustain a capital conviction, if pronounced by a jury on such evidence of guilt as was exhibited to him on the hearing of the application to admit to bail ; and in instances where the evidence for the commonwealth is of less efficacy, to admit to bail. Hence, where a judge is satisfied, that the offence at most is only murder in the second degree, the prisoner is entitled to be liberated

on bail. Ib. BAILMENT. (For hire.) If one hire a carriage and horses to

go a journey, and the owner send his own driver, and the horses are injured by immoderate driving, the person who hired them is not liable to the owner for damages. Hughes v. Boyer, 9

Watts, 556. 2. (Same.) In such case, the hirer incurs no responsibility for

any injury happening to the carriage or horses, unless such injury have occurred from some act or interference of his. A driver sent by the owner is his servant, and unless the hirer causes the driver to go beyond the contract of hiring, he will not be liable for the acts of the driver occasioning injury to the carriage or horses. Quære, whether he be liable for injuries

done to third persons, by the act of the driver? Ib. BEQUEST. (To wife.) In Pennsylvania, every bequest to the

wife is conditional by force of the statute, which declares that every legacy to her shall be in lieu of dower if the contrary be not expressed ; and thus standing as if a surrender of her dower had been expressly prescribed by the testator, she is not a vol

-unteer, but a purchaser. Reed v. Reed, 9 Watts, 263. BILLS OF EXCHANGE AND PROMISSORY NOTES. (Fraud

in drawing check.) If the maker of a check, payable instantly, has no funds at the time in the bank upon which it is drawn, it is, when unexplained, deemed a fraud ; and the holder can

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sustain an action upon it, without presentment for payment, or

notice. True v. Thomas, 4 Shepley, 36. 2. (Grace.) Where the maker of a note is entitled to grace, the

indorser has the same privilege. Central Bank v. Allen, 4

Shepley, 41. 3. (Place of payment.) Where a note is made payable at a par

ticular bank, and before the day of payment arrives, that bank has no place of business, and ceases to exist, and another bank does business in the same room ; it be necessary to make a presentment of the note for payment, it is sufficient, if made at that room.

Ib. 4. (Same.) Where a note is made payable at a particular place,

the reply which is there made on presentment for payment, is

admissible in evidence. Ib. 5. (Residence of maker.) Where the maker of a note has re

moved before it falls due, and his residence cannot be ascertain. ed by reasonable diligence, if it be necessary to make a demand, it may

be made at his former residence. Ib. 6. (Same.) The replies made on inquiry for the maker's place of

abode, are admissible in evidence. Ib. 7. (Records of notary.) In an action on a promissory note, or

inland bill of exchange, the original records of a deceased notary public are admissible in evidence to prove demand and notice.

Homes v. Smith, 4 Shepley, 181. 8. (Same.) A copy of the record of a deceased notary, duly

attested by the clerk of the court in the county where such record is filed, is admissible in evidence to prove demand and notice, under stat. 1821, c. 101, "concerning notaries public."

Ib. 9. (Same.) The statute requires all copies furnished by the

notary to be under his hand and seal; but it does not require, that the record itself should be under seal, or that the clerk of

the court should affix a seal to his copies thereof. Ib. 10. (Same.) Although the records of a notary public are admissi

ble to prove demand and notice, yet in Maine they are not the only evidence, but the facts may be proved by other testi

mony. Ib.

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