Sivut kuvina
PDF
ePub

by reason thereof, became unmanageable, and ran upon the plaintiff's vehicle, and overturned it, though the plaintiff used all possible means to avoid said horse and waggon, in consequence of which the plaintiff was greatly injured; after a verdict for the plaintiff, it was held, 1. that the obligation of the defendants to keep the road in repair, was sufficiently stated in the declaration; and 2. that the defendants were responsible for the plaintiff's injury. Ib.

UNCERTAINTY. See SHIPPING ARTICLES.

USURY.

1. A promissory note for $1745, payable ninety days after date, made by B. at the request of E., and for his accommodation, and by E. taken to Ĝ. who endorsed it with E. and then delivered by G. to M. who negotiated it with H. for the sum of $1648, which was paid to F. is void for usury. Sauerwein v. Brunner, 1 Har. & Gill, 477.

2. Where a note commences in usury; or in other words, where a note is tainted with usury at its birth, when it first becomes legally efficient and operative so as to give to the holder a right of action upon it, no subsequent holder, for a valuable consideration, without notice of such usury, can maintain a suit upon it; such note being declared by statute null and void. Ib.

3. A note endorsed for the accommodation of the maker, and passed by him as a security for a usurious loan, is a usurious contract in its inception; as the lender is in fact to be considered the first holder of the note. lb.

4. A loan at par of bank notes passing at from 2 to 5 per cent. discount, unexplained by circumstances, would be usurious; but where the borrower was at liberty to return them to the lender at their par value, and so exempt himself from loss, such a transaction would not be deemed usurious, unless that privilege was a mere cover to cloak a usurious design. Caton v. Shaw, 2 Har. & Gill, 13.

VERDICT.

1. Where the parties agreed that the jury might give their verdict to the clerk of the court after the adjournment for the day, and the jury having signed and sealed a verdict, delivered it to him, but on being called at the bar the next morning, before it was recorded, they were sent back to their chamber by the court to correct it, as it did not determine the issues joined in the cause to their full extent, and they found a new verdict which did: Held, that the first verdict might be compared to one received by a judge out of court, or to a sealed verdict retained by the foreman of the jury in his pocket, in neither of which cases is the verdict binding upon the jury, but is liable to be changed and varied from by them in open court; and that

a judgment entered on the second verdict was correct. Edelin v. Thompson, 2 Har. & Gill, 31. VOLUNTARY AGREEMENT.

ANCE.

WARRANTY.

See SPECIFIC PERFORM

1. In sales by executors and administrators, if fraud exists, or there is an express warranty, and eviction, they would undoubtedly be personally answerable to the purchaser. Mocbee's Adm'r. v. Garner, 2 Har. & Gill, 176.

2. And in the case of a failure of title, while the purchase money for the property sold remained in their hands undistributed or unadministered, there would exist no well founded reason why they should not refund to the purchaser. Ib.

3. To create an express warranty, the word warrant need not be used, nor is any precise form of expression required; any affirmation of the quality or condition of the thing sold, (not uttered as matter of opinion or belief,) made by the seller at the time of sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase, if so received and relied on by the purchaser, is an express warranty. Osgood v. Lewis, 2 Har. & Gill, 495.

4. In cases of oral contracts it is the province of the jury to decide upon the existence of the ingredients necessary to constitute a warranty. Ib.

5. But in cases of written contracts, whether the instrument contain an express warranty or not, the court must determine. Ib. 6. The statement in a bill of parcels for a quantity of oil, that it was 'winter pressed sperm oil,' is an express warranty by the vendor that such oil was winter pressed. Ib.

WILL.

1. The words, 'without issue,' in a will, when applied to dispositions of real estate, ex vi termini, mean an indefinite failure of issue, if there be nothing in the will restricting it to a failure at the time of the death of the first devisee, or to some other time or event. Newton v. Griffith, 1 Har. & Gill, 111. 2. To have no issue, to die having no issue, and to die without issue, are technically and judicially convertible terms. Ib. 3. The words leaving, having, and without, in devises-as 'if he shall die without leaving any issue;' 'without having issue,' or 'without issue,' have acquired a technical judicial sense, and when applied to real estate, mean an indefinite failure of issue. Ib.

4. If there be a devise to one generally of the freehold and personal estates without any words of limitation, he will take an estate for life only in the freehold, but the personal estate absolutely. Ib.

See DEVISE.

WITHERNAM. See PRACTICE, 5.

WITNESS.

1. A witness, on his cross-examination, may be inquired of, whether he has not had a controversy with the party against whom he testifies, and whether he has not threatened to be revenged on him, for the purpose of discrediting his testimony; and if his answer is in the negative, it may be contradicted by other witnesses. Atwood v. Welton, 7 Con. 66. 2. A person who disbelieves in any punishment in a future state, though he believes in the existence of the Supreme Being, and that men are punished in this life for their sins, is not a competent witness. Ib.

See EVIDENCE, 3, 4, 6.

WRIT AND DECLARATION. See BILLS OF EXCHANGE, AND PROMISSORY NOTES, 2.

LEGISLATION.

Maine.

At the session of the legislature of Maine, held in January, 1829, forty-one public acts and sixty-five private acts were passed. The private acts are published and numbered separately; an arrangement which we hope may be imitated elsewhere.

Ch. 449. Militia. Upon the requisition of any commanding officer of a company, at five days notice, the selectmen of towns and the assessors of plantations are to pay, at the place of inspection and review, to each officer and member of the company belonging to such town or plantation, who shall then and there' perform military duty, twenty-five cents.

Ch. 446. Disputed Territory. "If any person, not a citizen of the United States, or any person under the authority, or color, or pretence of authority from any foreign prince, state, or government,' exercise any acts of ownership or jurisdiction within the limits of the state, as described by the treaty of 1783, or claim right, or threaten so to do, such person and his abettors are to be deemed guilty of a high misdemeanor, and are liable to be tried for the offence by any court having competent jurisdiction, in any county within this state, and shall be punished by fine and imprisonment at the discretion of the court, according to the nature and aggravation of the offence.'

Ch. 418. Witnesses. Persons who have been stockholders of any bank in the state, after the transfer of their stock therein, are to be deemed competent witnesses for or against the bank.

Ch. 441. Justices of the Peace. Justices of the peace, whose commissions have expired or may expire, and shall not be renewed, are authorized to issue and renew executions on judgments and recognisances, by them rendered or taken while in commission; but this authority is not to continue beyond the term of two years from the expiration of their commissions.

Ch. 443. They are authorized to hear and determine 'any action of replevin, for the replevying any goods and chattels, not exceeding the value of twenty dollars.'

Ch. 448. If any justice of the peace dies or removes from the state, without recording and signing any judgment rendered by him, and his docket, the original writ, and the executions returned are deposited in the office of the clerk of the judicial courts of

the county within which he had jurisdiction, the clerk, when requested, is to make out and certify copies of the original writ and execution, if any issued, which copies shall be deemed sufficient evidence to maintain an action of debt thereon;' provided the clerk shall also certify that the docket was kept in legal form, and that the action was duly entered. If any justice of the peace neglects, for sixty days after the rendition of any judgment, to make up and sign a record thereof, he is to forfeit a sum not exceeding $100, nor less than $20, to the use of any person suing therefor, and he is further liable for all damages sustained by reason of such neglect.

[ocr errors]

Ch. 442. Foreign Attachment. Any persons, body politic or corporate, entitled to any personal action (except such as are excepted by "An act concerning foreign attachment,") against any person or persons, body politic or corporate, having any goods, effects, or credits so entrusted or deposited with any other body politic or corporate, (except counties, towns, and parishes) that the same cannot be attached by the ordinary process of law,' may cause them to be attached by process of foreign attachment; the corporation may appear by attorney or agent and make disclosure, and such disclosure is to be in writing and sworn to by the attorney or agent.

Ch. 431. Attachment. The estate, right, title, and interest, which any person has by virtue of a bond or contract in writing, to a conveyance of real estate,' upon conditions to be performed, may be taken by attachment, and may be seized and sold on execution, in the same manner as an equity of redemption and a similar right of redeeming is reserved to the debtor. The purchaser may, by bill in equity, compel the obligor or contractor to convey, upon performance of the conditions. If the obligor or contractor refuse to give information of the conditions remaining unperformed, on the part of the obligee or holder of the contract, the purchaser may maintain his bill, without offering to perform them, and may pray in his bill for a discovery thereof; and the respondent is required to disclose all matters duly prayed for therein. If an assignment by the obligee or person entitled to a conveyance, made previously to the attachment, is pleaded or disclosed, and the complainant put in issue its validity, the court is to cause the person so disclosed as assignee to be made a party to the bill, and, after notice to him, the issue is to be tried by a jury; if the assignment is found to be fraudulent, it is not to operate as a bar to the conveyance.

Ch. 444. Courts. The Supreme Judicial Court is to have original and concurrent jurisdiction with the Court of Common Pleas, in actions of assumpsit, debt, trespass, or case, where the damages demanded exceed $300. If the plaintiff, in an action commenced in the Supreme Court, fail to recover so much as

« EdellinenJatka »