Page images
PDF
EPUB

We are

case, admitted as a witness for or against the other. Also it is well kpown that interested witnesses are sometimes admitted on principles of convenience. A man robbed may be a witness in an action against the hundred for the robbery. And we are satisfied that the exclusion of parties to a negotiable security, from testifying that it was originally void, is another exception, established to assist commerce and to discourage fraud. therefore of opinion that the endorsers are incompetent witnesses in this case.'

The arguments here stated are substantially those by which the rule has always been defended. But we find it difficult to see their force. The argument no doubt tends to prove, what we certainly are far from disputing, that it is bad policy in the law to make negotiable paper void in the hands of a bona fide holder, on account of any illegality in the original consideration to which he was not a party.

But when statutes establish it as the standing policy of the law that such instruments shall be void even in the hands of innocent purchasers, is it competent for judges to adopt a new rule of evidence to subvert the policy introduced by the statutes? The arguments, however, used by the judge do not seem to apply at all to the case before the court, because the plaintiff was himself the usurer, and therefore had no claim to protection as an innocent endorsee.

Note to the article on the Criminal Law of England. The following is a list of crimes which now subject the offenders to the punish

ment of Death in England ; taken from the work of W. Robinson, Esq. L.L.D. of the Middle Temple, Barrister at Law, entitled ' An Analysis of, and Digested Index to the Criminal Statutes, published in the year 1829.

Administering drugs, or using other means to procure the abortion of a woman quick with child.

Setting fire to buildings, stacks of corn, coal mines, malt houses, ships or vessels, or otherwise destroying them, at sea or in port.

Burglary, murder, rape, robbery, sacrilege, by breaking and entering any church, and stealing therein, or stealing in a church and breaking out therefrom.

Carpal knowledge of a female child under ten years of age. Sodomy with mankind or with any animal.

Plundering or stealing any part of a ship or vessel in distress, or the goods on board.

Stealing horses, sheep, or cattle, or killing with intent to steal the carcase or skins.

Breaking into, and entering a dwelling house and stealing therein.

Stealing in a dwelling house any property, any person therein being put in fear.

Stealing in any dwelling house to the value of £5 or more.

Forgery to defraud the customs, to defraud the excise, to receive wages of seamen, officer, or marine, and altering any instrument for these purposes; also obtaining by a false oath a probate of a false will, or letters of administration of a seaman or mariner, and demanding and receiving the wages of any seaman or mariner by means of any document obtained by a false oath and with intent to defraud.

Poisoning, stabbing, strangling, or wounding with intent to murder. Also, cutting, shooting, or wounding, (which would amount to murder if death ensue. Attempting to drown with intent to murder.

Piracy on the high seas, smuggling by three or more armed persons, shooting vessels in the British or Irish Channel, or shooting at or wounding any officer.

Persons returning from transportation before the time has expired, who have been transported for having goods liable to forfeiture.

Persons who assemble riotously and demolish or destroy any church, building, machinery, or any engine used in any mine, &c.

Accessories before the fact are subject to the same punishment as the principals.

DIGEST OF RECENT DECISIONS.

This number contains a digest of the principal cases in

GREENLEAF'S REPORTS, Vol. 5.
PICKERING'S REPORTS, Vol. 7.

ABANDONMENT. See INSURANCE.
ABATEMENT. See PRACTICE.
ACTION.
If arbitrators erroneously refuse to consider a particular demand

laid before them, on the mistaken ground that it is not within the submission; the bond and award are no bar to a subsequent action upon the demand thus rejected. Bixby v. Whit

ney, 5 Greenl. 192. See ASSUMPSIT. ACTION ON THE CASE. 1. An action on the case for a conspiracy lies in favor of a cred

itor against his debtor and a third person, who have procured the property of the debtor to be aitached upon a suit for a fictitious debt, and applied to the payment of the judgment obtained in the action, in order to prevent creditors from obtaining payment out of the property, the creditor having subsequently attached the same goods, and not being able to procure payment of his debt in consequence of the prior attachment, and the debtor being insolvent. Adams v. Paige, 7 Pick.

542.

2. C. & G., who were partners, being in failing circumstances,

G. made a note in the partnership name for 1500 dollars to P. it being agreed between G. and P. that the stock of C. & G. should be attached on the note, and the proceeds of the attachment applied ratably to the payment of the debts of C. & G. The attachment was accordingly made, and A. & Co. creditors of c. & G. subsequently on the same day attached the same stock, in a suit for their debt. The object of the suit of P. was explained at a meeting of some of the creditors of G. and of C. & G. on the same day, one of the firm of A. & Co. being present. P. afterwards obtained judgment on the note, and seasonably levied his execution on the attached property, which was not sufficient to satisfy his judgment, and distributed a part of the proceeds ratably among creditors of G. and of C. & G. and tendered A. & Co. a like percentage of their debt, which they refused to take.' A. & Co. afterward obtained judgment in their action, and took out execution and delivered it to the officer who made the attachment, but not until after thirty days from the time when their judgment was obtained. The officer returned it unsatisfied. In an action brought by A. & Co. against G. and P. for a conspiracy to prevent A. & Co. from obtaining payment of their debt out of the property of C. & G., who still remained insolvent-Held,

that the action lay;--That the proceedings in the suit on the note by P. against C. &

G. were a fraud on all creditors of C. & G. who did not assent

to them:That in order to maintain the action, it was not necessary to

prove any moral fraud on the part of G. & P;That the action was not defeated by A. & Co's. not delivering

their execution to the officer within thirty days, as he had nothing in his hands on which to levy ;That A. & Co. might maintain this action, whether the debt to

them from C. & G. was payable or not at the time of their bringing their action against C. & G., on which the attach

ment was made:That the rights given to subsequent attaching creditors by Mass.

St. 1823, c. 142, of assuming the defence of actions against the debtor, do not defeat this action at common law, the remedy given by the statute being merely cumulative. Adams

v. Paige, 7 Pick. 542. 3. Case and not trespass, is the proper form of remedy, for a

father, for the offence of debauching his daughter, where the injury was done in the house of another. Clough v. Tenney,

5 Greenl. 446. AGREEMENT. See CONTRACT. AMENDMENT. 1. Where the principal, in an action against a factor to recover the

amount of sales under a commission del credere, declared in indebitatus assumpsit on a balance of accounts—for money had and received—and on an insimul computassentand amended by declaring against the defendant as a simple factor, and likewise as a factor under a commission del credere, it was held, that all the counts were for the same cause of action, and that the amendment was therefore allowable. Swan v. Nesmith, 7

Pick. 220. 2. In assumpsit against two or more, the plaintiff cannot amend by

striking out the name of one of the defendants. Redington v.

Farrar, 5 Greenl. 379. ANNUITY. A testator devised lands to each of his five children, and also

bequeathed an annuity to his wife for her life in lieu of dower, charging the estates of each of his children with the payment of one fifth part of the annuity. After his death the widow accepted the annuity, which was paid to her for some years, and then discontinued until her death. Parcels of the land devised to one of the sons were taken during the widow's life and sold by order of court to pay the debts of the testator. They were sold subject to the annuity, and the deeds to the purchasers also stated that the lands were subject to certain incumbrances charged in the will’ of the testator. During the widow's life, several creditors of the same son severally levied executions which they had obtained against him, on the remainder of the lands devised to him; the appraisers, in estimating their value, taking into consideration the annuity and the amount in arrear. The administrator of the widow brought assumpsit for one fifth of the arrears of the annuity against all the purchasers of the devised land and all the creditors to whom land was set off as above mentioned, having previously made a demand on them while they were tenants of the land. Held, that the action for the annuity might be maintained, and that all the defendants were properly joined. Swasey v. Little,

my Pick. 296. APPRENTICE. See GUARDIAN. ARBITRATION. 1. Though the power of referees, appointed under Maine Stat. 1821,

ch. 78, does not extend to cases in which the title to real estate comes in question, yet a claim of damages occasioned by the making of a canal, not being of that character, is within the

scope of their authority. Fryeburg Canal v. Frye, 5 Greenl. 38. 2. It is no valid objection to a report of referees, that one of them

had formed a previous opinion upon the case submitted to them, if his mind appears to have been still open to conviction, and no imputation of unfairness rests upon him. Graves v. Fisher,

5 Greenl. 69. 3. Where two parties executed a bond, submitting to arbitration

all debts, dues, and demands heretofore subsisting between them;' and on the same day one of them gave the other a promissory note payable in specific articles at a remote day; it was held that the note was not within the terms of the submission, it being, by intendment of law, given after the ex

ecution of the bond. Bixby v. Whitney, 5 Greenl. 192. See ACTION. ARREST. It is not lawful to arrest a debtor, on mesne process, in any case

where, after judgment, his body is not liable to be taken in

execution. Green v. Morse, 5 Greenl. 291. ASSESSORS. See Town. ASSIGNMENT. 1. A debtor, being about to stop payment, made a deed of cer

[ocr errors]
« PreviousContinue »