« ForrigeFortsett »
All concerned in the commission of petit larceny are principals ; none are accessories.-- W ard, v. the People, 3 Hill, 395. (1843.)
In actions of account parties must be held to the ancient rules of pleading ; unless such rules have been altered by legislative action.McMurray v. Rawson, 3 Hill, 59. (1843.)
An account bears interest from its liquidation; and will be considered as liquidated from the time when it was rendered, if not objected to within a reasonable time, and an unliquidated account bears interest from judicial demand.-Shaw v. Oakley, 3 Robinson's La. R. p. 361. (1843.)
ACT SANS SEIGN PRIVE.
Proof of the signatures of the grantor, and of one of the subscribing witnesses residing in another state, is sufficieni evidence of the execution of a deed : sans seign prive.- Thomas v. Turnley, 3 Robinson's La. R. p. 206. (1843.)
The maxim, de minimis non curat lex, is never applied to the positive and wrongful invasion of one's property.
To warrant an action in such case, the degree of damage is wholly immaterial; it is enough that there be a plain violation of right, and a possibility of damage. The Seneca Rail Road Company v. The Auburn and Rochester Rail Road Company. 5 Hill R. p. 170. (1844.)
The English decisions carry this doctrine to its fullest extent. The maxim, de minimis non curat lex, is 'never applied to the positive and wrongful invasion of another's property. To warrant an action in such a case, “some temporal damage, be it more or less, must actually have resulted, or must be likely to ensue. The degree is wholly immaterial; nor does the law, upon every maxim, require distinct proof that an incon. venience has been sustained. For example, if the hand of A touch the person of B, who'shall declare that pain has or has not ensued? The only mode to render B secure is to infer that an inconvenience has actua all resulted." (Hamm. N. P. 39. Am. Ed. of 1823.) In Ashlen v. White, it was beld finally by the House of Lords that to hinder a burgess from voting for a member of the House of Commons was a good ground of action. No one could say that he had been actually injured or would be : so far from it, the hindrance might have benefitted him. But his franchise had been violated. The rule is necessary for the general pró. tection of property; and a greater evil could scarcely befall a country than the rule being frittered away or relaxed in the least, under the idea
that though an exclusive right be violated, the injury is trifling, or indeed nothing at all.
. ADMINISTRATOR. . . ... .
A sale by an adroinistrator, unless for the purpose of paying debts, or to enable him to make distribution, is absolutely void. A private sale by an adıninistrator, who had intermarried with the widow of his intestate, of property belonging to the estate, passes only the right the husband acquired by marriage, and does not affect the right of distributees. -Baines v. McGee. 1 Smeders and Marshall's K. p. 208. (1844.) .
Where a testator domiciled in Scotland died possessed of large real estate there, and of personal estate there and in England, and devised the whole to executors and trustees, who renounced the office and trusts, and one of his next of kin, and devisee, obtained administratiɔn in England, and other trustees were by consent appointed by the Court of Session in Scotland; held that the latter had no power to administer the personal estate in England, nor to call upon the administratrix to transfer the property to them; although the law of the domicile governs the succession, wherever situated, yet the estate itself is to be administered in the country where possession is taken of it under lawful authority. Preston v. Viscount Melville, 3 Cl. f. Fil. p. 1. (1843.)
ADMINISTRATOR AND EXECUTOR.
If a person by practising upon the confidence and credulity of a man in extremis, weak in body and mind, obtain an unconscientious bargain from him, a Court of Chancery will entertain a bill at the suit of his per. sonal representative to set aside the contract, but the representative of the deceased can not be permitted to allege in his bill filed to set aside a conveyance of property by the deceased, that the conveyance was made with a view to defraud creditors. The fact that the personal representative is a creditor cannot make any difference, his character of creditor can not change the nature and legal effect of his position as representative, and standing in the shoes of the deceased, he shall not urge that which the deceased could not.—Moody. Adm. v. Fry et. als, 3 Humphrey's R. p. 567. (1843.)
Does the right of a tenant to set up an adverse possession, depend upon the landlord's right to receive rent ?
It does not, but depends on his right to enter.-Faring v. Schenk, 3 Hill, 344. (1843.)
What must defendant in ojectment (who is in possession at the commencement of suit,) show to compel the plaintiff to the proof of Quster?
AFFIDAVIT OF DEFENCE.
He must show affirmatively, that either he or the one under whom he claims is a joint tenant, or tenant in common with the plaintiff.Sharp v. Ingraham, 4 Hill, 116. (1843.)
Is an adverse possession, commencing in the life-time of the ancestor, interrupted by the title descending to a person under a legal dis ability ?
It is not.-Fleming v. Griswold, 3 Hill, 85. (1843.)
To defeat a deed of lands on the ground that the grantor was not in possession at the time of its execution, an actual or constructive adverse possession in another must be clearly proved.
Such adverse possession, however, will not affect the deed, if it appear that both the grantor and the adverse claimant were under an equitable obligation to convey.
The Statute of maintenance was intended for the protection of adverse claimants; and they may renounce the benefit of it.
A, being the owner of a farm containing 320 acres, executed a deed to B, intending thereby to convey the whole ; but by reason of a mis. take in the description, the deed only conveyed about one-third of the farm. B took possession and executed a mortgage, intending that it should cover the whole farm, but which in fact, contained a description copied from the deed (of A). The mortgage was assigned to D, and foreclosed under the statute, he becoming the purchaser. Some time afterwards D discovered the mistake in the deed and mortgage, and requested A and B to correct it, threatening to file a bill against them if they refused. B said he would abide by whatever A thought proper to do in the matter, whereupon the latter executed to D a quit claim deed of the whole farm, B being still in possession. Held, that the quit claim was valid, notwithstanding B's possession, and that D acquired title to the whole farm.—Cameron v. C. 8. W. Irwin, 5 Hill, R. p. 272. (1844.)
The affidavit on which a writ of attachment is to issue is defective if it omits the words “so that the ordinary process of the law cannot be served upon him."-Page v. Ford, 2 Smedes & Marshall's R., p. 266. (1844.)
AFFIDAVIT OF DEFENCE.
If a judgment be opened upon an affidavit of defence, and the defendant let into a defence upon the merits, he will not, upon the trial, be permitted to take advantage of a technical exception to the form of action.—Church v. Swevier, 3 Watts and Sergeant's R., p. 272. (1843.) AGENT.
Under a power of attorney, authorizing the attorney to act in every species of business wherein the principal may be concerned or interest ed in the United States. Held, notwithstanding the broad terms of the power, the attorney is not authorized to pledge the property of his principal to secure the individual debt of the attorney.--Hewes v. Doddridge, 1 Robinson's Virginia R., p. 143. (1843.)
If the agent of the State having power to bind the State by contract combine with third persons to commit a fraud on the State, the acts of such agent, so made by combination, would not be obligatory on the State.- The State v. Jefferson Turnpike Company et als., 3 Humphrey's R., p. 305. (1843.)
The declarations of one who had acted as an agent, made after the termination of his agency, are not binding on the principal, though the former be dead at the time of the trial.-Reynolds et al. v. Rowley et al., 3 Robinson's La. R., p. 201. (1843.)
The fact that an agreement is optional wito one of the parties, and obligatory as to the other, does not destroy its validity. If there be a sufficient consideration on both sides, it is mutual and valid.—Cherry v. Smith, 3 Humphrey's R., p. 19. (1843.)
How is the word “agreed” in a written agreement executed by two regarded ?
It is regarded as the words of both parties.-Barton v. McLean, 5 Hill, 256. (1844.)
AGREEMENT OF PARTIES.
If the parties to an action enter into an agreement that the cause shall be tried upon a certain plea, it is not in the power of the Court afterwards to admit any other plea without the consent of both parties.-Fursht v. Overdeer, 3 Watts and Sergeant's R., p. 470. (1842.)
The capacity to take by descent must exist at the time descent happens.-Orser v. Hoag, 3 Hill, 79. (1843.)
Where the process is made returnable to the wrong term of the court. it is a defect that may be aménded on motion such a writ is a
bufficient notice of the action to the defendants served with it, and an appearance by them in a motion to quash the writ will remove the neces. sity for amending it.-Harrison v. Agricultural Bank. 2 Smedes & Marshall's R. p. 307. (1844.) ¿ Au amendment of a writ after service, and without leave of the court is illegal, but if it be afterwards assented to by the defendant it cap' no longer afford any legal objection to the further prosecution of the writ. Marine Bank v. Hervey 21 Maine R p.38. (1843.) .
Where a new trial is granted on motion of a plaintiff in ejectment; will the court at the same time give him leave to amend by inserting the names of additional plaintiffs, with proper counts ?
It will, if reasonable grounds be shown.---Martin v. Lake, 3 Hill 475 (1843.)
Where the amount to be paid to an annuitant is allowed by the win to be increased at the discretion of the executor, the court will not interfere to compel any such increase where he does not act mal a fide. Nor can he be compelled to continae any increase which he may at one time have volunteered Mason & Jones, 3 Edwards' Ch. R. 497. (1843.) .
The Court are bound to disregard extraneous matters, if a justice return such, on an appeal.- Wood v. Randall, 5 Hill, 264. (1844.) ! "
See also appeals from Justices' Courts, Moon v. Eldred, 3 Hili, 104 (1843.) Miller v. Woodworth, 3 Hill, 529. (1843.)
In New York, under the Statute (2. R. Š. 259, S. 189) the sureties in an appeal bond, are not liable beyond the amount of the penalty though the judgment obtained against the appellant in the common pleas exceed the amount of the bond ; and the proceedings against the sureties on the bond will, on paying the amount of the penalty with the costs into court, be stayed.—Culver v. Greene, 4 Hill, 570. (1843.) ; ** If a party appeals by obtaining'an order to stay proceedings pursuant to Statute (Sess, laws of 1832, p. 189, Sec. 4,) instead of giving security, he does so at the peril of losing his right to prosecute the appeal on a revocation of the order.--McKim v. Munwaring, 5 Hill, 296. (1844.)
** APPEAL BOND.
An appeal bond given to the people or to the relator is good, and if forfeited may be sued upon by either.- Spalding v. The People of Nero York, ? Howard's U, S. R.P: 65. (1844.16