Abbildungen der Seite
PDF
EPUB

a new action, for the same cause, brought in the interval between the order of nonsuit and the dismissal of the appeal. Trimmier v. Trail, 2 Bailey, 480.

ACTION.

1. (An appeal bond and fi. fa. on judgment.) The plaintiff in a judgment at law, may proceed at one and the same time, with a fi. fa. upon his judgment, and by suit upon an appeal bond, to enforce payment of the same claim. Sasscer v. Walker, 5 Gill & Johnson, 102.

2. (Same person cannot be plaintiff and defendant.) A man cannot bring an action at law against himself. The same natural person cannot be both plaintiff and defendant on the record. Grahame and Parran v. Harris, Parran & Co, 5 Gill & Johnson, 489.

[ocr errors]

3. (Same.) H., P. & S., partners in trade, sold goods to G. and P. ; after this, P. assigned his interest in the claim to H., for value. Held, that H., P. & S. could not sue G. & P. at law, for the use of H., lb. 5 Gill & Johnson.

4. (Parties.) An action on a bond of indemnity, given by one or two, when one has also been damnified, is rightly brought in the name of both the obligees for the use of the one; and declaration is not vitiated by a particular relation of the use, nor by the conclusion that the refusal of the defendant to pay was to the damage of one. Mehaffy v. Lytle, 1 Watts, 314.

5. (For money paid on a void contract.) Two persons entered into a parol agreement to purchase a tract of land, which was afterwards purchased, and a deed taken in the name of one of them: the other died; it was held that his administrator might maintain an action against the survivor to recover back the money advanced by his intestate, on the ground that the contract was vitiated in the origin by the fraud of the defendant, the surviving party. But in such action the contract must be wholly disaffirmed. The measure of damages shall not be estimated from any profit which was made. upon a subsequent sale of the land. Pennock v. Freeman, 1 Watts, 401.

ACTION, JOINDER IN

A cargo was shipped at New York for South America by five owners, including the master, and consigned to the master and the supercargo. The bill of lading expressed the proportions belonging to the several owners, the master's interest being three sixteenths. At Guayaquil the cargo was sold and the proceeds invested in a cargo of cocoa, amounting to 9682 bags, and the master signed a bill of

lading representing that the cocoa was shipped by the master and the supercargo for the same persons and in the same proportions as the original cargo. Upon this bill of lading the master and supercargo assigned their interests to insurance companies in New York, in pursuance of respondentia bonds on the former cargo. Afterwards, while at Guayaquil, the master was arrested for debt, and as collateral security to R. and W., who had become his bail, he signed another bill of lading representing that R. and W. had shipped 1000 bags of cocoa, and referring to the same as a part of the 9682 bags. The whole cargo was delivered to the defendant at Gibraltar, under the first of these two bills of lading, and the 1000 bags being afterwards demanded of the master under the second and being refused, the second was protested. The defendant sold the cocoa and paid the proceeds over to the five original shippers, except the proceeds of the 1000 bags, which he retained by the direction of R. and W., to indemnify them as bail for the master. In an action by the five original shippers against the defendant, to recover the proceeds of the 1000 bags, it was held, that the action could not be supported, for if their interest was several, a joint action could not be sustained; if their interest was joint, then the insurance companies had become jointly interested and they should have been joined in the action; if R. and W. took a joint interest in the whole cargo, they should have been joined; and if they took a several interest in the 1000 bags, then the plaintiffs had no cause of action. Hoyt v. Sprague, 12 Pick. 487.

ADMINISTRATION.

(Moneys received by intestate as trustee.) H., executor of B., sold the real estate of his testator and took bonds for the purchase money, which remained in his hands until he died intestate and insolvent. Held, that the estate of the testator which came to the hands of the administrator of the executor, should be appropriated by him for the benefit of the estate of the testator, and not to the creditors of the insolvent executor. Marshall v. Hoff, 1 Watts, 440.

ADMINISTRATION BOND.

1. (Sureties.) The same security which is afforded by an administration bond to the heirs of an intestate results to the commonwealth in the case of the death of an intestate without heirs or known kindred. Crawford v. The Commonwealth, 1 Watts, 480.

2. (Escheat.) In case of an intestacy without heirs or known kindred, the commonwealth can not maintain a scire facias upon a judgment obtained against the administrators on their administration bond to

recover the personal estate, without first having established her right by an inquest confirmed by the court. Ib.

ADMINISTRATORS.

1. (Joint.) Administrators who enter into a joint and several administration bond, and file a joint inventory, are jointly and severally liable for the whole amount of the personal property of the intestate. Boyd v. Boyd, 1 Watts, 365.

2. (Administrator and heir.) The fiduciary relation which exists between an administrator and heir, makes them so far privies in representation, that the act of the administrator will bind the heir, as that of his trustee. Pennock v. Freeman, 1 Watts, 401.

ADULTERY.

(In South Carolina not an offence.) Adultery is not an indictable offence in South Carolina; nor can an indictment be maintained for living in adultery, by charging it as an offence against public decency. State v. Brunson and Miller, 2 Bailey, 149.

APPORTIONMENT.

(Of wages.) Where a slave hired for a year, dies within the year, his wages must be apportioned. Bacot v. Parnell, 2 Bailey, 424. APPRENTICE.

1. (Cannot be sent abroad on a whaling voyage.) It is not competent for a master cooper to send his apprentice abroad on a whaling voyage and receive his earnings on such voyage. Randall v. Rotch, 12

Pick. 107.

2. (Custom to this effect bad.) A custom for a master cooper to send his apprentice abroad on a whaling voyage, is bad, being repugnant to the objects and terms of the contract of apprenticeship. Ib. 3. (Agreement between apprentice and master.) A written agreement not under seal, signed by a minor, his mother and step-father of the one part, and by the defendant of the other part, recites that the minor has been living with the defendant as an apprentice to learn the trade of a cooper, but that no indenture has been executed, and stipulates that the minor shall go on a whaling voyage, and shall do 'the duty he ships to perform,' and that the defendant shall furnish him outfits, and shall receive all his earnings on the voyage, and that at the end of the voyage the minor shall be free from his apprenticeship. It was held, that so far as the relation of master and apprentice subsisted de facto by the actual residence of the minor with the defendant, it was waived and terminated by the written agreement; that the written agreement itself did not constitute a contract of apprenticeship; that independently of the supposed relation of master and apprentice, the contract was not reasonable and

beneficial to the minor, and not binding upon him; and that he was entitled to recover his earnings on the voyage to his own use. Nickerson v. Easton, 12 Pick. 110.

ARBITRATION.

(Umpire.) The umpire may award upon the report of the arbitrators, without re-examining the witnesses, unless he is directed to do so by the submission, or it is afterwards required of him by one or other of the parties, before he makes his award. Sharp v. Lipsey, 2 Bailey, 113.

ASSIGNMENT.

1. (What is embraced by the term 'other personal property.') A debtor, after reciting his inability to pay all his debts, and his desire to make a distribution of his property among his creditors in a certain manner, assigns to a trustee for that purpose, a distil-house in Medford, and the land and wharf adjoining, and all the apparatus, ' and all the rum and other liquors whatsoever in the same distil-house or on said wharf or elsewhere on the premises, and all the casks, shooks, wood, stock and other personal property whatsoever, being on the premises of or belonging to the debtor, and a certain lighter and boat, &c., and all the book accounts and debts due, &c.' At the time of making the assignment, the debtor had consigned to a commission merchant in Boston, several barrels of rum for sale, and while it remained unsold, a trustee process at the suit of a creditor of the consignor, was served upon the consignee. Held, that this rum did not pass by the assignment, (the words 'personal property' being restrained to articles ejusdem generis with those previously enumerated,) and therefore, was held by the trustee process. Tucker v. Clisty and Trs., 12 Pick. 22.

2. (Priority.) A bona fide assignment in trust for creditors, although executed out of the State, takes precedence of a subsequent attachment levied within the State. The distinction is between an assignment which operates solely by the deed of the party, and an assignment the operation of which is affected or regulated by the bankrupt laws of a foreign country: It is only in the latter case that the assignee is subject, in the same manner that the assignor would be, to all subsequent liens and equities on the assigned property with this State. Greene v. Mowry, 2 Bailey, 163. ASSUMPSIT.

1. (Goods sold and delivered.) Where the defendant agreed with one S. to take goods of him, to be manufactured for him by the plaintiffs, and goods were sent by the plaintiffs to the defendant, who credited them to S. and afterward accounted for them in a settlement with

S, and the plaintiffs, having seasonable knowledge that the goods were thus credited, gave no notice to the defendant, until after such settlement, that they had not been delivered on account of S., but of the defendant himself, it was held, that the plaintiffs could not maintain an action against the defendant for goods sold and delivered. Farwell v. Smith, 12 Pick. 83.

2. (Money had and received.) An action for money had and received lies against one who has tortiously taken the chattel of another and manufactured it into a different article and in that state has sold it and received the money for it. Gilmore v. Wilbur, 12 Pick. 120. 3. (The same.) If a person acting without authority as an agent for the owner of goods tortiously taken, receives other goods as an indemnity and converts the same into money, such owner may affirm the agency and maintain an action for money had and received. Ib. 4. (Goods sold and delivered.) Where one tortiously takes goods by virtue of a sale made by a person acting without authority, the owner may affirm the contract and maintain an action for goods sold and delivered. lb.

ATTACHMENT.

1. (Invalid, when the officer forces the outer door.) If a civil officer breaks open a dwelling-house by forcing the outer door, against the prohibition of the owner, with the direct and avowed purpose of making an attachment of the owner's goods in the dwelling-house, not only is such breaking an unlawful act, but the attachment made by means of it is unlawful and invalid. Ilsley v. Nichols, 12 Pick. 270.

2. (What is necessary to the validity of a prior attachment.) In order that a prior attachment of a debtor's property by one creditor, may be valid as against a subsequent attachment by another, the first writ, at the time when it is served, should set forth clearly the cause of action intended to be secured by the attachment. Fairfield v. Baldwin, 12 Pick. 388.

3. (Where a new court is filed.) If a new court is filed by the first atattaching creditor, which does not appear by the record to be for the same cause of action as the original declaration, and judgment for the plaintiff is rendered thereon, the attachment is vacated as against a subsequent attaching creditor. Ib.

4. (The same.) Thus, where the writ, at the time when the attachment was made, contained only general money counts, and the plaintiff filed new counts on promissory notes, the attachment was held to be vacated as against a subsequent attaching creditor, because the

« ZurückWeiter »