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Mr. Troubat has added very considerable notes on this subject of the lex loci, comprehending some very important cases decided in our courts.
At page 371, vol. 1, Mr. Troubat, in a note, clears up a little confusion in which the subject of payments to an executor or administrator whose letters of administration are revoked, had been involved in Pennsylvania. Mr. Williams, in the text, makes a distinction between payments to an executor or administrator whose letters are revoked on appeal, and one whose letters are revoked on citation; the latter payments being a valid discharge of the debtor, since while the executor was acting under the sanction of a court of competent jurisdiction, his acts ought to be binding upon a future executor; but where an appeal is taken to the sentence granting the letters, the sentence is suspended, and in fact no letters of administration are effectively granted; and accordingly all acts done by the executor as such are void. The same distinction is made in Toller, p. 131, whose words are quoted by Mr. Williams in stating the distinction, for want of attention to which the court in 15 Serg. & Rawle, 39, suppose Toller to have contradicted himself in speaking in different places of the acts of an executor whose letters are subsequently revoked on appeal in one case and on citation in the other.
Mr. Williams has a section on the estate of an executor or administrator in chattels vegetable,' a phraseology which we do not remember before to have met with, and which seems to us not to be very happy. He treats very fully the subject of the executor's right to products growing upon or severed from the land, and extends the inquiry to the analogous subjects of heirlooms and fixtures, in treating of which last the work of Messrs. Amos and Ferard give him very ample materials. By presenting these questions in the different views as between landlords or tenants, on the one side, and the executors or administrators of either, on the other; and between executors or administrators on the one side, and the heirs of tenants in fee or remainder-men on the expiration of a life estate, the subjects are presented with great perspicuity and as satisfactorily as their intricacy and the unavoidable uncertainty of some parts of this branch of law admit of.
We have touched upon such topics as struck our attention in running over these volumes, a thorough analysis of which would make another very considerable volume, and quite exceed the space we can give to the subject. In the general distribution of materials and the disposition of subordinate topics - matters of very great importance as well as difficulty in a law-book — Mr. Williams has on the whole succeeded very well. The style and literary execution of his work are quite above the ordinary standard, and for this reason, as well as on account of the subject, it can be read with less effort of attention and greater interest than most of the books with which lawyers are obliged to occupy themselves. The topics seem in general to be treated with great fulness of learning, and usually with great clearness, and the author does not hesitate to give the results of his research with freedom. The notes of American law, added by the editor, are judiciously selected and aptly introduced and as full as could be expected considering the haste in which the edition was put out. We need not add that every lawyer will find the book to be a very valuable addition to his library.
RECENT ENGLISH CASES.
Cases from 10 Barn. & Cres. Part 4; 2 B. & Adol. Parts 2 and 3; 8 Bing. Parts 2, 3, and 4; 1 Tyr. Part 4; 2 Tyr. Part 1; 2 Moody & Malkin, Part 1; 5 Moore & Payne, Part 2; 5 Carrington & Payne, Part 1; 2 Crompton & Jervis, Part 2; and the first number of Dowling's Reports of Cases in the King's Bench Practice Court, which are distinguished by the letters D. P. R.
(Peerage.) A plea in abatement by an earl, on the ground of his not being sued as such by his title, must allege positively that he was an earl and had the title claimed at the suing out of the writ. It is not enough that this may be collected by inference. Rigby v. Alexander, 8 Bing. 416.
Goods belonging to the intestate were taken possession of and used by the administrator as his own for three months. Held that the time was not sufficient to make the goods liable under an execution against the administrator in his personal capacity. (4 T. R. 621.) Gaskell v. Marshall 2 M. & M. 132. AGREEMENT.
Assumpsit on two bills of exchange against the acceptor. After the bills became due, the plaintiff and three other creditors met, and agreed to receive payment by his covenanting to pay to a trustee, of their nomination, one third of his annual income, to which the defendant assented. The creditors did not nominate a trustee, nor was the agreement acted upon, but the defendant was always ready to perform his part: Held, this agreement constituted a defence to the action on the bills. Good v. Cheesman, 2 B. & Adol. 328.
The agreement on the sale of goods was for payment at the end of six months, by a bill at two or three months, at the option of the purchaser. Held, (Park, J. diss.) that this was a credit for nine months, and that the statute did not begin to run till the expiration of that time. Park, J. seemed to think that if no bill was given at the end of six months, the agreement
was broken, and the credit was at an end. (5 Taunt 398.) Helps v. Winterbottom, 2 B. & Adol. 431.
In an action for not obeying a subpoena, the declaration alleged that the plaintiff had caused to be left with the defendant a copy of the writ of subpæna: Held, that the judge had authority under 9 G. 4, c. 15, to order an amendment, by substituting the words, a copy of so much of the writ of subpæna as related to the said defendant. After verdict in the above action, the court refused to notice an objection, that the plaintiff had not alleged that he had a good cause of action. Masterman v. Judson, 8 Bing. 224. ARBITRATOR.
(Charges of.) A cause was referred to three persons. One declined joining in the award from conscientious motives. The award directed that the costs of the award should be paid in equal moieties. The two arbitrators who made the award having been paid for the making of the award: Held, that the third had no remedy against the party for his services. Taunton, J. intimated that the services of an arbitrator were honorary, and that he could not bring an action for his fees. Burroughs v. Clarke, D. P. R. 48.
The defendant sold by auction a policy of insurance, described as effected on the life of a person then living, subject to an annual payment. The vendee had, in fact, only a redeemable interest in the life, which interest was afterwards redeemed: Held, that the sale was good notwithstanding, it being the practice of the office to pay in such cases, and there being no intention to deceive: Held also, that evidence of such practice was admissible. Barker v. Morris, 2 M. & M. 62. ASSIGNMENT. See AsSURANCE. ATTORNEY.
(Privileged Communication.) A communication made to an attorney with reference to a dispute, is privileged, though no cause be actually pending. (See 5 L. M. 35.) Clark v. Clark,
2 M. & M. 3.
(Action on.) A reference was made by a judge's order, and the defendant attended at the first meeting: Held, that an action was maintainable on an award subsequently made. Wharton v. King, 2 M. & M. 96.
(Where final and certain.) Held that an award was sufficient
when an arbitrator had awarded general releases, although a claim for a bill of exchange was notified to him, and not specially arbitrated on, (1 Saund. 32.) Held, also, that an award was good, although it directed what it was not in the power of the party to perform, he having the alternative of paying a sum of money. Wharton v. King, 2 B. & Adol. 528.
A submission leaving the action and the subject matter thereof, and the issue therein, and the costs, to the arbitrament, final end, and determination of a barrister, does not authorize him to order a verdict to be entered up. Hutchinson v. Blackwell, 8 Bing. 331.
The defendant paid money into court in an action for fixtures relinquished by the plaintiff, but before the cause was brought to issue, the parties, by a submission which did not mention costs, appointed arbitrators 'to balance their accounts, and settle all matters in dispute respecting the having and occupying of two corn mills and a dwelling house.' The arbitrators ordered the defendant to pay a sum beyond that he had paid into court, and that each party should pay his own costs: Held, that the plaintiff was entitled to his costs upon taking the money out of court. Gazalee, J. doubted. Stratton v. Green, 8 Bing.
437. A verdict was taken, subject to an award as to damages to be made within a certain time. The arbitrator accidentally omitted to enlarge the time, and the defendant's attorney refused to allow of the enlargement; the object being to gain time till the defendant should return to England according to a promise given by him, and release his bail from liability. The court. ordered that the plaintiff should enter up judgment forthwith, unless the defendant consented to an enlargement of the time; but ordered that no proceedings should be taken to fix the bail until the ensuing term. The rule was made absolute without costs. (4 B. Moore, 3; 1 B. & C. 68.) Taylor v. Gregory, 2 B. & Adol. 774.
(Interest on.) Interest is recoverable on money ordered to be paid by an award, but it cannot be proceeded for by motion for an attachment. (3 Camp. 468.) In the matter of arbitration between Churcher and Stringer, 2 B. & Adol. 777.
(Set-off) To a claim to set off a bill of exchange, under 6 Geo. 4. c. 16, s. 56, it was objected, that at the time of the commission, the defendant was not the holder, but that it was in the hands of a third person, to whom he had passed it, namely, his