A A c: JO XI 8 1 3> 9 6 5 6 5 K623fq 1843 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY CATALOGUE OF VALUABLE STANDARD PUBLISHED AND FOR SALE BT GOULD, BANKS & CO. 144 NASSAU STREET, NEW -YORK, AND w m. & ii. aovioB, db CO. 104 STATE STKEET, AliBANY, N. Y. ADAMS (JOHN) Treatise on the Princir>les and Practices of the Action of Eiectment, with American Notes and Precedents, by J. L. Tillinghast and Thomas W. Gierke. 8vo New- York, 1840. AMERICAN COMMON LAW. A Practical Abridgement of American Common Law Cases, argued and determined in the Courts of the several States, and the United States Courts from the earliest period to the present time ; alphabetically arrangred ; with Notes and references to the statutes of each State, and analogous Adjudications comprising under the Reveral titles a practical Treatise on the different branches of the Common Law, by J. D. Wheeler, Esq. in 8 volumes. 1836. AMERICAN CHANCERY DIGEST, by Campbell and Cambrelleng, and Jacob D. 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You have well arranged the matter belonging to the subject, and have succeeded in your design of presenting it "as a system of consistent and rational principles, adapted with the utmost precision to the administration of justice, according to uniform rules." By sliowing the reason of the rule plainly, the rule itself becomes more intelligible to the student, and will more certainly adiicre to his memory. Allow me to repeat my tlianks for the gratification afforded me by the perusal of your work, and to assure you that I am with very great respect, Your obliged and obedient servant, J. MARSHALL. Extract of a letter from Chief Justice Spencer, dated, Albany, Dec. 27th 1832. If my opinion is entitled to any consideration, it is, that you have given to the profession a work evidently useful ; and, I may add, have supplied what was wanting — a logical and Bci- entific treatise on a most essential part of legal science. It has always been my opinion, that no man could be an accomplished lawyer unless he was thoroughly imbued with the learning of Pleading. With sentiments 'of high esteem and respect. Yours Sincerely, A. SPENCER. GRAHAM (DAVID) Essay on New Trials. 8 vo. New-York, 1834. GRESLEY (RICHARD NEWCOMB) Treatise on the Law of Evidence in Courts of Equity. 8 vo. Philadelphia, 1837. GROTIUS (HUGO) De Jure Belli ac Pacis ; Mare Liberum ac Libellum de ^quitate, etc, cum Notis, cura, J. Barbeyrac. 8 vo. Amst. 1735. GROTIUS (HUGO) Le Droit de la Guerre et de la Paix, trad, par .T. Barbeyrac, avec des Notes. 2 vols., 4 to. Amsterdam, 1724. GROTIUS (HUGO) Rights of War and Peace, translated from the Latin, Notes by J. Barbeyrac. I^ondon, 1738. HALE (SIR MATTHEW) History of the Pleas of the Crown, published from his MSB., by Solotnoii Einlyn, 2 vols. London, 1736. HALE (SIR MATTHEW) History of the Common Law of England. 8 vo. London, 1716. HAMMOND (CHARLES) Cases in the Supreme Court of Ohio. In Bank at December Term, 1837. Vol. 8. Columbus, 1838. HAMPDEN'S CASE OF SHIP MONEY. Argumcntfl of Sir Rd. Ilutton and Sir Geo. Crokc in the case of The King against John Hampden. 4 to. London, 1641. HARRISON (S. B.) Digest of all tU Reported Cases in the House of Lords and the (;()uris of Common Law, from Mich Term 1756, to Mich. Term 1834. 3 vola. 8 vo. Philadelphia, 1835. HILT-TARD (FRANCIS) Digest of Pickdnnn's Reports. Vols. 8—14. 8 vo. Boston, l-.-JT. HHJJARD ^FRANCIS) An Abridgement of the American Law of Real Property. 8 vo. 2 vols. Bobton, 1836. "The task Mr. Hilliard imposed upon himself was one of great toil, and he has resolutely and manfully j(erformcd i,t, evincing^ a patience of labor, worthy of the students and jurists of a former age; and he may fairly felicitate himself as having completed a work creditable to himself, and of great practical utility to the profession, throughout our whole country. The lawyer will find here brouglit into the compass of two reasonable volumes, a vast amount of matter, gathered from many camel-loads of text books, reports, and statutes correctly stated ; and should he desire to pursue his investigations further, he will find himself by the author's assistance, in the way to do it easily and expeditiously." American Jurist. HOFFMAN'S (M. De) Guide Diplomatique, ou Traite des Droits des immunites et des Devoirs des Ministres Publics des agens Diplomatiques et Consulaircs. 8 vo. 3 vols. Brussels, 1838. HUGO, Histoire du Droit Romain, 1 vol. in 8. Brux. 1840. JOHNSON (WILLIAM) Digest of Cases in the Supreme Court of Chancery and the Court of Errors at New York, from 1799 to 1836. 3 vols, in 2. 8vo, Philadelphia, 183.8. KENT'S COMMENTARIES ON AMERICAN LAW— By James Xenf. 4 vols. New York, 1840. 4th edition. KINNE'S BLACKSTONE. The most important parts of Blacksfone's Commentaries reduced to questions and answers — by Asa Kinne. One volume, second edition, improved and enlarged, with Index and Glossary. New York, 1839. This compilation has received the approbation of Chancellors Walworth and Kent of New- York, Chief Justice Cranch of Washington City, Chief Justice Williams of Vermont, Chief Justice Weston of Maine, Chief Justice Tucker of Virginia, Mr. Justice Story of Cam6ridge University, Ovid F. Johnson, Attorney General of Pennsylvania, R. S. Field, Attorney Genera! of New Jersey, Hon. Judges Peters, Jones, Bouvier, and Conrad of Philadelphia, Hon. Lucas Thompson of Staunton Va,, Peter S. Duponceaux, Wm. L. Hurst, David Paul Brown, and Joseph R. Ingersol, Esqs. of Philadelphia, President John Tyler, &c. Extract of a letter from Peter S. Duponceau of Philadelphia. " It is a handsome panorama of a grand edifice — it will be of great use to students par- ticularly in preparing for their examination, and also in their subsequent readings of the original work, in pointing out to them the parts to which their attention should be specially directed — it will also be useful to practising lawyers — not only as a good index, but as a refresher of the memory." PETER S. DUPONCEAU, From Judge Bouvier of Philadelphia. " The plan you have adopted cannot but be useful to students, who wish to become masters of Biackstone's Commentaries, and it will also be useful to their preceptors, furnish- ing them with a convenient key." JOHN BOUVIER. From Chancellor Kent. It cannot but be useful, and your book will excite and promote the study of the volumes at large and promote the knowledge of legal principle. JAMES KENT. KINNE'S KENT. The most important parts of Kent's Commentaries on American Law, reduced to questions and answers. — By Asa Kinne. 2d. edition, with an Index and Glos- sary. — The bench and bar in the United States have given the most flattering testi menials in favor of this publication. 8 Extract of a letter from Chancellor Kent to the Author. " I am much pleased with the ability, fidelity, and accuracy, with which you ha%-c stated the answers as drawn from the text. I approve of tlic work and wish it success, for I think it is well calculated to facilitate and promote the study and diftusion of the elementary prin- ciplcsof constitutional and municipal law embodied in the commentaries." JAMES KENT. KINNE'S LAW COMPENDIUM. Questions and answers on law, alphabcticaiiy arranged, with reference to the most approved authorities. — By Asa Kinne. Two volumes. A work of which the plan arrangement and execution, have received the highest com mendation from many of the most distinguished jurists in the United States. Extract of a Letter fiom James S. Austin Esq. Attorney General of the State of Massachusetts. I have examined this work to some extent and have been greatly satisfied with its plan and execution. The manner of presenting the subject to the mind by a direct question is exceedingly well calculated in my judgment to produce a clear and exact impression, espe- cially in a science like the law, in which precision and accuracy are indispensible. The answers given are full and explicit, and fortified b}' an exhibition of authority which demonstrate the industry and learning with which the work has been prepared. I cannot doubt that it will be well received by the profession and be found useful to the public. JAMES S. AUSTIN. From David Paul Brown Esq., Philadelphia. I have examined your work and am happy to say it will be an exceedingly useful one, and undoubtedly will contribute much to diminish the vexations and difficulties peculiarly incident to nisi prins trials. It imparts all the advantages of an accurate and well arranged note book, while it saves 1o the profession a vast deal of time and labor. Give me a fulcrum, said Archimedes, and I can raise the earth, give man time or save it for him and for worldly purposes he has little else lo ask. DAVID PAUL BROWN, Frotn Chief Justice Williams of Vermont. The utility of a work of this kind depends upon the accuracy with which it is compiled. From the attention I have been able to give it I should think you had bestowed much labor and mdustry upon the work and that the answers are faithfully and accurately digested from the licvcral books to which reference is had, and that it will be u.scful to the profession. CHARLES K. WILLIAMS. From Richard Peters Esq. Philadelphia. I am greatly pleased with the plan of the book. It will afford to the student, great facili- ties and advantage in the progress of his studies ; to the profession in general it will be highly useful. You appear to have collected with great diligence and accuracy the cases decided on the points picBcntcd bv your questions, and to have very ably advanced the subjects to wiiich those qucplions apply. I have examined some of the references to the cases in the Circuit and Supreme Courts reported by mo, and with pleasure avouch their fidelity. RICHARD PETERS. From Hon. D. B. Tallmadgc, Judge of the Superior Court, City of New York. The plan of the work will make it a useful and convenient book of reference, especially at Nmi I'riuH. Tlic part of the work I have looked over most particularly is that entitled Corporations, which appears to mc lo be accurately digested. DAN'L. D. TALLMADGE. From Judge Bouvier, Philadelphia. I have examined the work and do not hesitate to say it will be highly useful to students and profissioiial men generally. The plan is calculated to impress the memory by calling the attention to a single point which perhaps, would have escaped observation. I have fou.id it correct in giving the answers, and the references which are made cannot fail to be useful in makmg further research. J. BOUVIER. From William L. Hurst, Esq. Philadelphia. I have examined the work with great pleasure. It is calculated to be a greater help to the student than any other boi>k of its size extant, and will find its way upon every lawyer's table as a valuable ready reference. The authorities are concentrated upon the questions so skillfully, that besides the advantage peculiar to this vvcrk of presenting the decisions of English and American cases at a glance, tl.ere is as much reference as in a digest of quad- ruple Its size. WILLIAM L. HURST. From Ovid F. Johnson, Attorney General, Philadelphia. I have examined with some considerable care several of the leading heads of this compila- tion, and have also glanced at the entire plan of the work, and do not hcsitaie to say that it seems to be executed with accuracy, and on a general plan eminently calculated to simplify and facilitate the means of acquiring a knowledge of the law. I think it will be a useful book not only to the legal profession but lo students and to the public at large. OVID F. JOHNSON. LAWS OF THE UNITED STATES OF AMERICA, from the 4ih of March, 1833 to the 3d of March. 18 O, including all the Treaties negotiated and ratified within that period. Volume 9. 1833. « LIEBER (FRAXCTS) Manual of Political Ethics, for the use of Colleges and Students at Law. 8 vo. 2 vols. Boston, 1838 — 10. " I beg leave to say, without moaning any formal compliment whatever, that your Manual of Political Ethics is a profound work, full of deep reflection, solid principle, and sound and apposite illustrations. I have read it over snperficiallv, but I have begun and have far ad- vanced in the study of it with notes. I think your ethical and political principles just and admirable ani most instructive as to rights, duties, property, social relations, government, sympathy, &.C., &.C., and I hope and intend to make mvself familiar with your work as a text book." JAMES KENT. LAW OF SET-OFF, by Oliver F. Barhour. Albany, 1841. LIEBER (FRANCIS) Legal and Political Hermeneulics, or Principles of Interprofation and construction in Law and Politics, with remarks on Precedents and Authorities, enlarged edition. 12 mo. Boston, 1839. LERMINIER Introduction a I'etude du Droit, 1839. LONG ON SALES— A Treatise on the Law relative to Sales of Personal Pronerty, by Gpiorge Long Esq., Barrister at Law. 2d American edition, with additions by Benjamin Rand, Esq. Boston, 1839. LUBE'S EQUITY PLEADINGS. An Analysis of the Principles of Equity Pleeading ; containing a compeiuliurn of the Practice of the High Court of Chancery and the Founda- tion of its Rules, together with an illustration of the anal'iofy between Plead n7ii^A v. Manning, 9 Mass., 422. ABATEMENT. , 13 Where there is a verdict for a defendant in an action for a false re- turn, and the plaintiff applies for a new trial, which is granted, but pend- ing the motion, the plaintiff dies, the suit abates and cannot be revived by scire facias by his executors. — Benjamin'' s Ex'rs. v. Smith, 17 Wend., 208. A petition for a review abates by petitioner's death. — Woodioardy. Scollfield, 4 Mass., 375. So, of a motion for a new trial- — Turner v. Booker, 2 Dana, 335. Action of debt for a statute penalty abates by a single plaintiff's death. — Little v. Connant, 2 Pick., 527. Estes v. Lenox, C. ^ N., 72. Reed v. Cist, 7 S. <^ R., 184. But not by the death of one of the two plaintiffs. — WHo-A; v. Eldred, 2 Chip., 37. Action of assault and battery abates by plaintiff's death, after an ap- peal by the defendant from an award in favor of the plaintiff.— iWiZ/er v. Unbehower, 10 S. lfA., 31. Chambers v. Haley, Peck, 159. l^Fywan v. Dorr, 3 Greenleaf, 186. But it may be pleaded after a special imparlance, entered as record. Coattes V. McCamm, 2 Browne, 176. Purple v. Clarke, 5 Pick., 206. AZc Carney v. McCamp, 1 Ashm., 4. A plea that a plaintiff was not executor, need not be pleaded in abate- ment ; it may be joined with the general issue, and in pleading it, the de- fendant is not bound to crave oyer, and set out the letters testamentary ; but it seems he must do so. if he wishes to set up any matter in avoidance of the letters. — Gilherl^s Executors v. Cameron, 16 Wend., 579. Alienage may be pleaded in abatement or bar. — Jackson v. Decker, 117. R., 418. So, may alien enemy ; but abatement, in such case, may be considered most proper; as the judgment would not, in either case, be a bar to a new action on the return of peace. — Bell v. Chap?nan, 10 /. R., 183. A plea in abatement, after, and in addition to a plea in chief, is a nul- lity, and need not be answered. — Palmer v. Greene, 1 Johns. Cases, 101. See, also, 1 Ashm., 4. 2 Mu?nf., 297. If defendant, after having pleaded in abatement, voluntary plead to the action, without a judgment of respon- deat, &;c., it is a waiver of his first plea, which is to be considered as if never filed. — Wilson v. Oliver, I Stew., 46. Burnhamv. Webster, 5 Mass., 266. 5^. /. Robertson v. Lee, 1 Stew., 141. Egerton v. Hart, 8 Verm., 207. An arrest in violation of a legal promise not to arrest, may be pleaded in abatement. — Steel v. Bates, 2 Aik., 338. A defendant sued by a wrong name, may plead the misnomer in abatement, after he has ap- peared and given notice of his appearance specially. — Munney v. Carley, 4 Cow., 148. If a plea in abatement conmiences improperly, or concludes in bar, the plaintiff may demur, either in bar or abatement. — Roberts v. Stewart, 1 Ycrger, 390. Whether a plea is in abatement, or in bar, is to be known by its cowclnsion. '-'Jenkins v. Pepoon, 2 J. C , 312. Executors of Schoon- maker v. Elmendorf, \0 J. R., 49. After a verdict, matter which abates the writ, cannot be pleaded ; for the defendant has no day in court. Nor the marriage of a woman plain- tiff, after verdict, and before the day in court, cannot be pleaded in abate-i ment ; puis darieti continuance. — Alexander v. Fisk, 12 /. /J., 218. A plea that there are other executors, not named in the writ, must allege lliat tlu^y were qualified, and took on themselves, the execution of ihe will. — Burrow v. Sellers, 1 Hayw., 501. If matter, which must be pleaded in abatement, is contained in a plea ABATEMENT. 21 in bar, without being verified by affidavit, the plaintiff may treat it as a nullity, and enter a default. — Robinson v. Fisher, 3 Caines' R., 99. Pleas in abatement cannot be amended. — Trendcr v. Durant,5 Wen- dell, 72. Pleas in abatement are not favored ; they must be precise, or they will be ill on demurrer. — Hayicood v. Chestney, 13 Wend., 495. Wads- worth V. Woodford, 1 Day, 28. Clarke v. Warner, 6 Con., 3551. Par- sons V. Ely, 2 lb., 377. See also following cases. — iacy v. Roberts, Brayt., 20. Butler v. Lowry, 3 Verm., 14. Payne v. Baco7i, 1 Root, 109. Chambers V. Haley, Peck, 159. Cleveland v. Welsh, A Mass., 591. Rath- bone V. Rathbone, 4 Pick., 89. Martin v. Blodget, 1 -4iA;., 375. 1 Breese, 96. Campbell v. S^«7e5-, 9 ilfa^.?., 217. 0i., 330. Bridges v. Ridgely, 2 iJ^^^, 396. Select v. Olmstead, 1 Poof, 497. Cregg V. Sumners, 1 McCord, 461. LarA v. Chappell, 1 McCord, 566. Alston V. Bowers, \ N. <^ M., 458. Bujac v. Morgan, 3 Yeates, 258. iori V. Strong, 1 Poof, 475. M«7Z.y v. Bishop, Kirby, 4. PzS. P. 7 Cranch, 201. i/a/Z v. Williams, 8 Greenleaf, 434. Morris v. Knight, 1 Blackf., 106. Colman v. Graeter, lb., 388. Ballou v. Hulbert, 1 Johns., 62. Dando v. Tremper, 2 76., 287. Jackson v. Hoag, 6 76., 59. PanA o/" Columbia v. Newcombe, lb., 98. Carman v. Townsend, 6 Wend., 206. Bennett v. Howard, 2 Pay, 416. Bulkley v. Starr, 2 Pay, 552. IFo/coff V. Dwight, 2 Pay, 405. Dcnslow v. Moore, 1 Poy, 290. Butts v. Fran- cis, 4 Conn., 424. Kipple v. Coleman, 1 Poof, 407. Gladwin v. Lewis, 6 Conn., 49. Selectmen of Caiiandish v. Turnpike Co., 2 Ferwj., 534, Pollord V. Picket, 4 Cranch, 421. Wood v. P«/e, 7Z»., 180. Gilbert v. Nantucket Bank, 5 Mass-, 93. Farrar v. United States, 3 Pef., 459. Roioley v. Stoddard, 7 Johns., 207. Co?f v. Sheldon, 1 Tyler, 301. Tu- berville v. Long, 3 77. ^ ikf., 300, Pen v. PseZ, 4 Hayw., 162. 77arf v. Huckins, 6 Mass., 399. Pixley v. Mitchell, 7 Co»y;., 366. Guilficld v, Jamaica, 2 Chip., 104. Huntingdon v. Spooner, 3 Ferm., 515. Browne V. Gordo7i, 1 Greenl., 165. ^^ajns' v. Wiscasset Bank, 1 Greenl., 361. Merchants' Bank v. Cooke, 4 Pick., 405. Ga_§-e v. Graffam, 1 1 37a5.s., 181. Colby V. Dillingham, 7 Mass , 475. Dunmore Manufacturing Co. V. Rockwell, Brayt., 18. Bristol v. Marblehead, 1 Greenleaf 82. Fowler V. Bebee, 9 ilfo^i-., 231. Mor.se v. CaZZcy, 5 iV. 77am;)., 223. IFootZ v. Ross, 11 Mass:, 271. Chapman v. Shaw, 3 Greenleaf, 372. Hearsay t. Bradbury, 9 Mass., 95. VFinrf^oni v. Hampton, 1 Poof, 175. Lawrence V. Kingman, Kirby, 6. Knox v. Sumners, 3 Cranch, 498. PeZZ v. Chip- man, 2 Tyler, 423. Johnson v. Hills, 1 Poof, 504. Pnoe v. Frisbie, 5 Pay, 122. Ca^e v. Humphrey, 6 Conn., 130. TyZer v. Tyler, 2 Root., 519. Treaf v. Carrington, I Poof, 356. Thatcher v. Heacock, 1 Poof, 24 ABATEMENT. 284. Miller v. Haijnes, Brayt., 21. Rand v. Proprietors of Locks, 6fCt on Con. River, 3 Day, 441. Backus v. Rogers, 8 Johns., 346. Seers v, Blakcsly, 1 iioo^, 54. JUDGMENT, 1. Will defects in tlie declaration be noticed by the court on a demurrer to a plea in abatement ? They will not.— Clifford v. Coney, 1 3/a5.y., 500. When the plaintiff takes issue on the plea and it is found against the defendant, judgment is final, and the same jury who found the issue should assess the plaintiff's damages. — McCartee v. Chambers, 6 Wend., 694. Dodgo V. Morse, 3 N. Hamp., 532. Jewett v. Davis, 6 Ih., 518. Mehaffy V. Share, 2 Pennsyl., 361. HolUngsvwrth v. Duane, Wallace, 57. Moore V. Morton, 1 /i., 234. But if the judgment be respondeat ouster only the defendant cannot assign it for error as it is for his advantage. — /oAn v. Clayton, 1 Blackf., 54. In chancery abatement is not necessarily a de- struction of the suit, like an abatement at law, it is merely a suspension of the progress of the suit. — Hoxie v. Carr,-1 Sumner, 178. Where an issue of fact on a plea in abatement is found against the defendant, the judgment is final and not a rcspondeas ouster. — Haight v. Holley,3 Wend., 258. The judgment on demurrer to a plea in abate- ment is rcspondeas ouster. — Haight v. Holley, 3 Wend., 258. The Bank of Orange v. Browne, 3 Wend., 158. The judgment of a plea of former recovery found against the defendant is quod respondeat ouster. — Marstin V. Lawrence, 1 J. C, 397. C. C, 97. SUPREME COURT OF THE UNITED STATES. Where any suit shall be depending in any court of the United States,- and either of the parties shall die before final judgment, the executor or administrator of such diseased party, who was plaintiff, petitioner, or de- fendant, in case the cause of action doth by law survive, may prosecute or defend such suit until final judgment ; and the defendant or defendants shall answer thereto accordingly ; and the court before whom such cause may be depending, shall hear and determine the same, and render judg- ment as the case may require. And if such executor or administrator having been duly served with a scire facias from the office of the clerk of the court where such suit is depending, twenty days beforehand, shall neglect or refuse to become a party to the suit, the court may render judg- ment against the estate of the deceased party, in the same manner as if the executor or administrator had voluntary made himself a party to the suit ; and the executor or administrator who shall become a parly, shall, I upon motion to the court, be entitled to a continuance of the cause until the next term of the court. And if there be two or more plaintiffs or de- fendants, and one or more of them shall die, if the cause of action shall i survive to the surviving plaintiff or plaintiffs, or against the surviving de- ' ACCIDKXT. 25 fendant or defendants the writ or action shall not be thereby abated ; but such debt being suggested upon the record, the action shall proceed at» the suit of the surviving plaintiff or plaintitl's, against the surviving de- fendant or defendants. Act, 24th September, 1789, sec. 31. See also Green v. Watkins, 6 Wheat., 260. Wilson v. Codman's Ex'rs., 3 Cranch., 193. McCaul v. Lecamp, 2 Wheat., 111. In real actions, the death of either parties before judgment, abates the suit ; and if the heir be made parlies by order of the court in which the suit is brought, and judgment be entered against them by default, for want of a plea, upoi! a summons and count against the original defendant, they may sue out a writ of error, and reverse the judgment. — ilfacA-er'^ Hetrs V. Thomas, 7 Cr., 530. Green v. Watkins, 6 Wheat., 262. Ad- miralty suits do not abate the death of a party. — Pcnhalhw v. Duane, 3 Ball. ,'86. No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes in any of the courts of the United States, shall be abated, arrested, quashed or reversed, for any defect or want of form. Act, 24th September, 1789, sec. 32. — Course v. Stead, 2 Ball, 22. Mossman v. Higginson, 4 Ball., 12. If the administratrix of the plaintiff in whose name the suit had been revived by scire facias upon the death of the intestate after issue joined, intermarry, and such intermarriage be pleaded j9Ui.y darricn continuance, the scire facias is thereby abated, but not the original suit, and a new scire facias may issue to revive the original suit in the name of the husband and administratrix, that she may prosecute the suit to final judgment. — McCaul v. LeCamp, 2 Wheaton, 111. ACCIDENT. 1. What does the term accident signify in chancery practice ? It signifies such unforseen events, misfortunes, losses, acts, or omis- sions, as are not the result of any negligence or misconduct in the party, — Francis^ Maxim, M. 120, p. 87. 1 Story on Equity, ^ 78. Jeremy de- fines it, as used in courts of equity, to be " an occurrence in relation to a contract which was not anticipated by the parties, when the same was en- tered into, and which gives an undue advantage to one of them over the other in a court of law." — /er. on Eq., 358. This definition is objected to, because, as accidents may arise in relation to other things besides con- tracts, it is inaccurate in confining accidents to contracts ; besides, it does not exclude cases of unanticipated occurrences, resulting from the negli- gence or misconduct of the party seeking relief. — &7ory on Eq., 378, note 1. In general, courts of equity will relieve a party who cannot obtain jus- tice in consequence of an accident, which will justify the interposition of a court of equity. The jurisdiction being concurrent, will be maintained onjy, first, when a court of law, cannot grant suitable relief ; and secondly, when the party has a conscientious title to relief. There are many acci- dents supplied in a court of law : as loss of deeds, mistake in receipts and accounts, wrong payments, death, which makes it impossible to per- 4 26 ACCIDENT. form a condition literally, and a multitude of other contingencies ; and ftiany cannot be redressed even in a court of equity ; as if by accident a recovery is ill suffered, a contingent remainder destroyed, or a power of leasing omitted in a family settlement.— 1 Bouvier^s Law Dictionary, p. 37. The student will probably obtain some information on this head, by con- sulting the following ca.ses. — Arfmtage v. Wadstvorth, 1 Madd- R., 189 to 193. Atkinson v. Leonard, 3 Bro. Ch. R., 218. Beames' Eq., hy Jeremy, 111. 1 Fonhl. Eq., b. 1 . ch. 1 , sec. 3, note F., p. 12. Benson v. Baldwin, 1 Atk., 598. Cooper Eq. PL, 130. Brooks v. Jennings, 1 Mod. Rep., 174. Britton V, Balthurst, 3 Lev., 115. Brisbane v. Dacres, 5 Taunt., 143, 159. Burtenshaw v. Gilbert, Cooper R., 49. Barrisfordv. Done, 1 Vermont, 98. Bullock V. Domit, 6 T. R., 650. Bricknock cj- Canal Co. v. Pritchard, 6 T. ii., 750. 5a//bur v. IFes^on, 1 T. R., 310. ^rom/y v. Holland, 7 Ves., 19, 20. 7iroif«e v. //j^o-^, 4 7e5., 709. 5 Fe^., 495. 8 Fes., 561. 2 C/ionce o« Powers, ch. 23, ^ 1. Blimdell v. Brettagh, 17 Fes., 232, 240. 1 Cowpcr^s Public Records, 357. 4 /ns?., 84. Co?n. Dig. Chan. 3, f . 8. Com. Dig. Chan. 4, Z). 10. Cowper^s Eq. Pleading, 129, ch. 3. Chitty on Bills, p. 290. CoZ/e^ v. Jacques, 1 cA., Cas., 120. CocAs v. Foley, 1 Ferr/i., 357. Cookes v. Hellier, 1 Fes., 234. Clavering v. Clavcring, 2 Ves. ,232. Cary's Rep., 1,2. 7 Fes., 273. Chainherlain v. Chamber- lain, 2 Freem., 141. Coppinv. Coppin, 2 P. Will., 296. Croft's Ex'rs. V. Lyndsy, 2 Freem. R., 1. 2 ^y. Jli., 452. Chesterfield v. Bolton, Com. R., 627. Dorner v. Fortesque, 3 AzA., 132. Davis v. Socfrf, 4 Pnce, 176. jDMA:e o/" Leeds V. Powel, 1 Fes., 171. Di^ie <)/' Bridgwater v. Edwards, 4 /jVo. Pari., C, 139. Z)wAe o/" Leeds v. iX'^ew Radner, 2 Bro., ch. 338, 518. Davis V. Monkhouse, Fitzgib. R., 76. Davis v. Wattier, 1 >Sw7i. «^ Slew., 463. Doe v. Sandham, 1 T. i^., 705, 710. Z)?lRsr R., 112. Hasdett v. Pa^iZe, 6 JV/aJ. P., 4. Harding v. G/ynw, 1 ylrA., 469. Harrison v. 7^orJ, North, 1, cA., Cas., 83. Hallet v. Wylie, 3 Johns. R., 44. //arc v. Groves, 3 ^ns<., 667. Halbzapffell v. Baker, 18 Fes., 115. Jeremy on Eq. Jurisdiction, 282,307. 3 Wood's Lecture, 397. Johnson V. Johnson, 3 Boss. 6f Pull., 162, 169. Jackson v. Lever, 3 /?ro., C/i. Pe/)., 605. 9 Fes., 246. 7e«A««s v. /(:emts, 1 Cas., cA. 103. A'jno- V. Baldwin, 17 JoAns. /i., 384. A'ewp v. Pnor, 7 Fes., 248 fo 250. Ludlow V. Simond, 2 Caincs' Cas. in Err., 1. ie Roy v. Feer/er, 1 Johns. Cos., 417. Lemnon v. N upper, 2 Sch. c^ i^e/r., 684. Com. Dig. Chan., 4. >1. 5. Mitford PL Jiq., 127, 128, by Jeremy. Mi/ford PL Eq., 29, 54. 123, 124. Mossapv. Eaden, 16 Fes., 430, 434. Moorew. Moore, 2 Ves. 600. May v. Bennett, 1 Pu.vs. /i., 370. iVo«A v. Cooper, 2 Stra. R., 763 ACTS OF LEGISLATURES IN SEVERAL STATES. 27 Mortimer v. Copper, 1 Bro. Ch. R., 156. Marine Ins. Co. v. Hodgeson,! Crunch, 336. Melthorp v. Hield, 1 Cas., ch. 135. iVoc/ v. Robinson, 1 Ferm., 90. Orr v. Karnes, 2 Fe.?., 194. On?oni' v. Tyrcr, 1 P. Will, 343. 2 Fer?n., 751. Prec, ch. 459. Po^; v. Kimherly, 9 Johns. Rep., 470. Pierson v. Hutchinson, 2 Campb., 211. 6 ^^p., 126. Poo/e v. iJay, 1 P. Will., 355. Paradine v. Jane, Aleyen. R., 27. Pym v. Blackburn, 3 Fe.y., 34, 38. Penny v. Martin, 4 Johns. R., 596. Pierson v. Garnett, 2 Brown Ch. R,, 38, 226. PoweZ v. Po«;e^, Prec. Ch., 278. PteJ v. Brokman, 5 T. P., 151. Riddle V. Mandeville, 5 Crunch, 330. Rex v. Arundell, Hob. R., 109. Stoward v. Bridger, 2 Ferm., 516. Stoker v. Robson^ 3 Fe.y. ^ P., 50. Smith V. Bicknell, 3 Fe.y. ^ P., 50, {note.) Siigden on Pow- ers, ch. 6, 5ec. 2, p. 378, (3d et^j^.) -SmzY/t v. ^^A^ow, 1 Chan. Cas., 264. 2 Chance on Powers, chap. 23, sect. 1, ar;;. 2, 824, 2825, 2897, and 2915. /Sfory on Bailments, sec. 25, 35, 36. Seto7i v. Slade, 7 Fei'., 273. TouZ- wiflw V. Price, 5 Fe^-., 238. ToWy v. Nesbitt, 3 P. P., 153. Tersey v. Gorey, Pnnc/j. P., 301. 1 Ves., 345. Tollettv. Tollett, 2 P. m//., 489. See Com. Dig. Chan., 3 F. 6, 7, 8. Po/ziZ. Eq., b. 1, c^. 4, ^ 25. "^FAl^ /eZcZ V. Fossatt, 1 Fe5., 392, 393. 3 P/ocA. Coot., 431. 1 Fonbl. Eq., b. 1, ch. 1, sec. 7. Walsmly v. Child, 1 Fe.?., 341. Whitchurch v. Golding, 2 P. TFiZ/., 541. White v. iVafi, 1 P. Will, 61. IFAjZ^on v. Pw^^eZ, 1 Atk., 448. 1 ikTai. Ch. Pr., 46. TFeaZe v. Lower, 1 Py. Abridg., 266. lcf of September 2Ath, 1789, sec. 6. And if no Justice of the supreme court attend within four days after the time ap- pointed by law for the commencement of the session, the court may be adjourned to the next stated term, by the judge of the district, or in case of his absence, by the marshall. — Ac^ of Maj/ 19 th, 1794. A district court, in case of the inability of the judge to attend at the commencement of a session, may, by virtue of a written order, from the judge, directed to the marshall of the district, be adjourned by such mar- shall, to such day antecedent to the next stated session of the court, as in the said order shall be appointed. — ^cf of Sept. 24th, 1789, sec. 6. In case of the inability of such judge to attend on the dai^ appointed for holding a special or adjourned court, such court may, by such order, be adjourned by the marshall, to the next staled term, or to such day prior thereto, as in such order shall be appointed. — Act of2Gth March, 1804. In case of the death of the district judge, and the vacancy not being supplied, all process, pleadings, and proceedings, of what nature soever, pending btfore the district court, shall be continued, of course, until the next stated session after the appointment and acceptance of the office by his successors. — Act of 2ith September, 1789, sec. 6. AI.IF.M. ALIEN. Whenever there shall be a war declared between the United States and any foreign nation or government, or actual or threatened invasion against the territory of the United States by any foreign nation or gov- ernment, and the President of the United States makes public proclama- tion to that effect, all natives, citizens, denizens, or subjects, of the hostile nation or government, being males of the age of fourteen years and up- wards, who shall be within the United States, and not actually natural- ized, may be apprehended, restrained, secured, and removed, as alien enemies, considerable discretionary power in such case is entrusted to the President. See the Act, July 6th, 1789, sec. 1. Act, July 6ih, 1812. After proclamation so made, the several courts of the United States, and of each state, having criminal jurisdiction, and the several judges and justices of the courts of the United States, may upon complaint, against any alien enemies, resident, and at large, within such jurisdiction or dis- trict, to the danger of the public peace or safety, and contrary to the tenor of such proclamation, or other regulations which the president may es- tablish in the premises, cause such alien to be duly apprehended, &c. See Act, July 6th, 1798, sec. 2. The same act authorizes the marshall of the district in which any alien enemy shall be so apprehended, to exe- cute by himself or ^his deputy, or other discreet person or persons to be employed by him, the orders of the President, court, judge or justice aforesaid, in relation to the removal, &c., of such alien enemy. But a citizen of the United States, by becoming a citizen of another country, does not thereby cease to be a citizen of the United States, nor is he absolved from his original allegiance. — Talbot v. Jansen, 3 Dall., 133. Sautissima Trinidad, 7 Wheaton, 548. See U. States v. Williams, 4 Halls. L. Journal, 451. United States v. Gillies, 1 Peter, 161. He may acquire in a foreign country the commercial privileges attached to his domicil, and be exempted from the operation of commercial acts embra- cing only persons resident in the United States or under its protection. — Murray v. Charming Betsay, 2 Crunch, 120. Citizens of the United States have a right to expatriate themselves in time of war as well as of peace, until retrained by congress. Such right is subject to the control of the legislature, and to render the exercise of it valid, there must be an entire departure from the United States for a purpose which is not illegal, nor in fraud of the duties at home of the emigrant. — Talbot v. Janson, 3 Dall., 133. Santissima Trinidad, 7 Wheaton, 548. See United States v. Williams, 4 Halls. L. Journal, 461. United States v. Gillies, 1 Peter, 161. 1. Can an alien enemy sustain a suit in the courts of the United States ? Not if the alienage be properly pleaded. — il/wwi/orc/ v. Mumford, 1 Gall., 366. But if an alien plaintiff become an enemy, after obtaining judgment in the circuit court, the supreme court, may, on a writ of error, affirm the judgment. — Oujcn^ x. Hanney, 9 Cranch, 180. The property 30 AMBASSADORS. of alien enemies is liable to confiscation, _;ure belli, and their civil capacity l(j sue is suspended. — F(//r/ax v. Hunter,! Cr., 603. But title acquired by an alien enemy is not divested until ofBce found. — Craig ei al. v. Iladfurd, 3 \Vh., 594. When a person dies, leaving issue, who are aliens, they do not lake as his heirs at law, but his estate descends to the next of kin, who has inheritable blood, as if such alien issue did not exist. — Or V. Hadson et nx, 4 Wheaton, 453. An alien may take an estate in lands by the act of the parties ; but he cannot take by act of the law, as by descent. — Or v. Hodgson ct ux, 4 Wheaton, 454. 'I'he treaties of 1783 and 1791, only provide for titles existing at the time those treaties were made, and not to titles subsequently acquired. — Blight's less. V. Rochester, 7 Wheaton, 535. Consequently British sub- jects born before the revolution, are equally incapable, with those born after, of inheriting or transmitting the inheritance of lands in the United States. The title of heirs of an alien and a British subject, who came into the United States subsequently to the treaty of 1783, and before the signature of the treaty of 1794 died, seized of lands, is not protected by those treaties. — Ibid. The treaty of 1778, between the United States and France, allowed the citizens of either country to hold lands in the other.— Chirac v. Chirac, 2 Wheaton, 259. 269. AMBAS SADORS. The President shall have power, by and with the advice and consent of the Senate, to appoint ambassadors and other public ministers and con- suls. — Con., Art. 2, sec. 2, ch. 2. The President shall not allow to any minister plenipotentiary, a greater sum, than at the rale of nine thousand dollars per annum, as a compensation for all his personal services and expenses, nor to any charge des affairs, a greater sum than at the rate of four thousand live hundred dallars per annum, as a comjjensalion for all his personal services and expenses ; nor to the secretary of any legation or embassy, to any foreign country, or secretary of any foreign minister plenipotentiary, a greater sum than at the rate of two thousand dollars per annum, as a compensation for all his personal services and expenses. The President may allow to a minister plenipotentiary, or charge des affairs, on going from the United Slates to any foreign country, an outfit, which shall in no case exceed one years full salary. But no consul shall be allowed an outfit in any case whatever. Act of May, Isl, 1810, sec. 1. But nothing herein contained shall be construed to authorize any ap- pointment of a secretary to any charge des affairs, or to any consul resi- ding on the Barbary coast, or to any claim against the United States, for expenses incident to the same. — Ibid, sec. 2. By Act of Congress, April 30, 1790, sec. 25, ambassadors or other public ministers of any foreign prince, and their domestics, are privileged from arrest in all civil cases, whatever, their chattels cannot be destrained, seized or attached. Any person who shall sue forth or prosecute any writ or process on such person, and all attorneys and solicitors prosecuting ARREST. 31 or soliciting in such case, and all officers executing any such writ or pro- cess, being thereof convicted, shall be deemed violators of the laws of nations, and disturbers of the public repose, and imprisoned not exceeding three years, and fined at the discretion of the court : Provided neverthe- less, That no citizen or inhabitant of the United States, who shall have contracted debts prior to his entering into the service of any ambassador or other public minister, which debt shall be still due and unpaid, shall have, take, or receive any benefit of this act, nor shall any person be pro- ceeded against by virtue of this act, for having arrested or sued any other domestic servant of any ambassador or other public minister, unless the name of such servant be first registered in the office of the secretary of state, and by such secretary transmitted to the marshall of the district in which Congress shall reside, who shall, upon receipt thereof, afiix the same in some public place in his office, whereto all persons may resort and take copies without fee or reward. Act, April 3d, 1790, § 26. If any person shall violate any safe conduct or passport duly obtain- ed and issued under the authority of the United States, or shall assault, strike, wound, imprison, or in any other manner infract the law of nations, by offering violence to the person of an ambassador or other minister, such person, so offending, on conviction, shall be imprisoned, not exceed- ing three years, and fined at the discretion of the court. — Act, April 30th, 1790, sec. 27. Ambassadors and other foreign ministers retain their domicil in the country which they represent and to which they belong. But a difl'erent rule generally applies to consuls, and to other commercial agents who are presumed to remain in a country for purposes of trade, and who therefore acquire a domicil where they reside. — Vattel, b. 1, ch. 19, ^ 217. The Indian Chief, 3 Rob., 13. 27. The Josephine, 4 Rob., 26. ARREST. SHERIFF'S AUTHORITY FOR BREAKING OPEN DOORS IN ORDER TO MAKE AN ARREST; AND WHAT WILL CONSTITUTE AN ARREST. 1. Will the law allow an officer to break open the outer door of a house in order to arrest the owner on a civil process 1 It will not ; but if he enter the outer door peaceably, he may then break open the inner door, though it be the apartment of a lodger — if the owner or himself occupies a part of the house. But to justify breaking open an inner door, belonging to a lodger, admittance must be first de- manded, unless defendant is in the room. And the breaking open an inner door of a stranger, cannot be justified on a suspicion that defendant is in ihe room. There can be no doubt but a dwelling house is a pro- tection from arrest in civil process, to the occupant, his children and do- mestic servants, and permanent lodgers and boarders. For " every man's house is looked upon by the law to be his castle of defence and asylum, 32 ARREST. wherein he should suffer no violence." — 3 Blachstone's Com., 288. Cowp., 1. 2 Moore, 207. 8 Taunt., 250. S. C. Ousted v. Shed, 13 Mass., 520. 3 2)'. cj- P., 222. 4 Tawn^., 619. 5 Tawn^., 765. 6 £J., 246. The State v. Thackmn Sf Mason, 1 J5ay'5 »S. C. Rep., 358. But it is the defendant's own dwelling which by law is said to be his castle, for if he be in the house of another, the sheriff may break and enter it to effect his purpose, but he ought to be very certain that the defendant be, at the time of such forcible entry, in the house. — Johnson v. Leigh, 6 Taunt., 246. But if the sheriff has once arrested the defendant and he takes refuge in his dwelling house, the oflicer may break into the house in pursuit of him, but before so doing he should demand admittance and be refused. -~ Ot/stedv. Shea, 13 Mass., 520. Allen v. Martin, 10 Wend., 300. So, bail may break open an outer door after demand of admittance and re- fusal, to take the principal. — 8 Pick., 138. 7 Johns., 145. And they may justify entering the house of a stranger, (the outer door being open,) to take the defendant though he be not in the house. — 2 He?i. Bla., 120. And bail may command assistance from the sheriff and his oflicers to take the principal. — 8 Pick., 138. The principle " that every man's house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence," is carried so far in the civil law, that for the most part not so much as a common citation or summons, much less an arrest can be executed upon a man within his own walls. — Ff., 2. 4. 18. 21. But in execution of criminal process, an officer may break open the doors of a house in the night as well as in the day-time after demand of admittance and refusal. There is some contradiction in the ancient authorities as to the point, whether a sheriff can break the doors of a dwelling house loserve a process for a breach of the peace. But the principle seems never to have been doubted, that where a public offence has been actually committed, any proceedings in the name of the public for its punishment, shall not be delayed by the privilege " that every man's house is his castle. Some of the cases supposed to be exceptions, are those where no crime has been perpetrated ; and the doctrine is occa- sionally laid down as to felonies alone, without particularizing breaches of the peace. But it is well explained by East, C. L., 324, c. 5, i} 88, that this privilege extends no further, than against arrests upon process in civil suits for when a felony has been committed or dangerous wounds given, or even where a minister of justice comes armed with a process founded upon a breach of the peace, the party's own house is no sanctuary for him, but the doors may be forced after the notification, demand, and refusal. In 1 East. C. L. 324, ch. 5, s. 88, it is well observed that such process may be executed at night as well as by day ; and therefore killing t|he sheriff or other officer, on pretence of his corning at an unreasonable hour would be murder. — 77• ARRKST. 33 Stone remarks, book 3, p. 288, " that an urresl nuisl be by corporal seizing or U)uching the delendant's body." But this does not seem to be abso- lutely necessary for if an officer come into a room, and tell the defendant he arrests him, and lock the door it is sufficient. — Bull. N. P., 82. C T. See C. T. Hat/w., 301. 2 New R., 211. Or if the officer having the authority be near and act in the arrest, without being the person who actually arrests the defendant. — Cowp., 65. Or if the parly be within the power of the officer and submit to the arrest. — Gold v. Bissel, 1 Wend., 215. Doubted, 2 N. Ilamp., 318. Huntitigton v. Btaisdcll, see also Hun- tingdon V. Schults, Harper, A53. United States v. Benner, 1 Bald., 239. When one not generally known as an officer, makes an arrest, he must show his authority, if demanded, or he may be lawfully resisted. But the right to demand of one not generally known as an officer, to pro- duce his warrant, is when the party submits himself to the arrest, not where he immediately resists. — Commonwealth v. Field, 13 Mass., 321. State V. Curtis, 1 Hayw., 471. Arnold v. Sleeves, 10 Wend., 514. EXEMPTION FROM ARREST, INCLUDING PRIVILEGE, AND WHO MAY BE ARRESTED, SECOND ARREST FOR THE SAME CAUSE OF ACTION, AUTHOR- ITY TO MAKE AN ARREST, &c. 1. Are not members of congress, and of state legislatures, privileged from arrest 1 They are. — Gibbs v. Mitchell, 2 Bay., 406. United States v. Cooper, 4 Dall., 341. King v. Coit, 4 Day, 133. But a member of congress is only privileged from arrest while actually going or returning from congress. — Lewis V. Elmendorf, 2 Johns. Cos., 222. See also. Cox v. McClenechan, 3 Dall., 478. So, parties to a suit, and their attornies, are for the sake of public justice, protected from arrest, in coming to, attending upon, and returning from the courts, or as it is usually termed, euondo, 7norando, et redeundo. — 2 Roll. Abrtdg., 272. 2 Lit. Pr., 369. ] Mod., 66. S. C. 1 Vent., 11. Gibb, C. P., 207. Barnes, 27, 378. 2 Stra., 986. Peakes* Ev., 5th edit., 198,9. 1 Campb., 229. 4 Moure, 34. 6 Taunt., 356. 2 Marsh, 57. S. C. Hurst's Case, 4 Dall., 387. 4 Yeates, 124, note. 1 Wash. C. C, 186. McNeil's Case, 6 Mass., 245, 264. Harris v. Gran- tham, Coxe, 142. Blight v. Fisher, Peters C. C, 41. Commonwealth v. Ronald, 4 Call., 97. Richards v. Goodson, 2 Virg. Cas., 381. 11 East, 439. See also, Tidde, 8th edit., 192 to 214. Humphry v. Cumming, 5 Wend., 90. 9 Johns., 216. Webb v. Cleveland, 9 Johns., 266. 2 Caines, 387. Sperry v. WiUard, 1 Wend., 32. Scott v. Van Alstyne, 9 Johns., 2l6. But they are not privileged from service on them of process where only common bail is required.— Hop A:m5 v. Coburn, 1 Wend., 292. But an attorney, or other officer of the court, is never privileged from arrest, when sued with another, though during the actual sitting of the court, and during his attendance there. — Gay v. Rogers ^ Winl, 3 Cow., 362. Tiffany v. Driggs, 13 J. R., 252. 5 34 ARREST. A debtor's body is not exempted from arrest, in one state, because he has been committed in another state for the same debt, and been ^liere discharged upon laluiiu; the poor debtor's oath. — Hubbard v. Went worth. 3 N. Hump., 43. Woodbridgaw Wright, 3 Com., 523. Peck v. Hosier, 14 Johns., 34G. In Ohio, by statute of 1831, females are not liable to arrest on contracts.— O. Boyle v. Browne, Wright, 465. A judge is not liable to arrest by process issuing out of his own court, but must be proceeded against by bill. — Livingstones Case, 8 JoJins., 361. An oflicer is bound to serve process, notwithstanding a claim of privi- lege by the defendant. But after the defendant is discharged, he may, if then liable to arrest, be again arrested on the same writ. — Sperry v. Wil- lard, 1 Wend., 32. -S. P. 8 Pick., 137. 18 Johns., 52. Van Wezel v. /an Wezel, 1 Edward Chan., 113. In England, it is holden, that the servants in ordinary of the King or Queen regent, though subject to a capias, ought not be arrested, even upon process of execution, without notice first given to, and leave obtained from the lord chamberlain of his majesty's household. And a servant of this nature, is not liable to be arrested, although the debt be contracted in the course of trade, which he publicly carries on. — bDurnford 6f East, 686. 2 Chitty Rep , 46. 1 Dowl. Sf Ryl, 127, n. T. Raym., 152. 2 Keh., 3, 485. But see 1 Barn. the person who is to be arrested by it, or to the bystanders. — 2 Tyler''s R., 214. State V. Curtis, 1 Hayw., 471. ASSIGNMENT. VOLUNTARY ASSIGNMENT BY DEBTORS FOR BENEFIT OF CREDITORS. 1. May not a debtor in failing circumstances by assignment of his estate in trust prefer one creditor to another ? He may, if the assignment is made bona fide and in good faith. The question of the validity of such conveyances, and under what circum- cumstances they are deemed fraudulent or bona fide, has been handsomely treated upon by that able and distin^ui.shed American jurist, Mr. Justice Story, 1 Story's Eq. Juri.^^p., 341, under the head of constructive fraud, sections 349. 369, 370. 378, 379. It may be stated in general that such priorities and preferences are not deemed fraudulent or inequitable ; and even a stipulation, on the part of the debtor, in such an assignment, that the creditors, taking under it, shall release and discharge him from all iheir further claims beyond the properly assigned, will (it seems) be valid ASSIGNMENT. 43 and binding on such creditors. It seems to be a well settled principle in the English and American law that a debtor may prefer one creditor to another. — Story^s Eg. Juris., vol. 2, p. 302. Pierpont v. Lord, 4 Wash. C. C. Rep., 232. Brashear v. West, 7 Peter's R., 608. Wheeler v. Sumner, 4 Mason Cir. R., 183. Halsey v. Whitney, Ibid, 206. Spring V. South Car. Ins. Co., 8 Wheat. R., 268. Murray v. Riggs, 15 Johns. 571. Grover V. Wakeman, 11 Wend., 187. Tillou v. Britton, A Halst., 121. Haven v. Richardson, 5 iV. Hamp., 113. 5«rc? v. Smith, 4 Dall., 85. Widgerry v. Haskill, 5 Mass., 153. Stevens v. J5eZ/, 6 Mass., 342. Robinson v. Rapely, 3 Stew., 86. Ingraham v. Wheeler, 6 Conn., 277. Cameron v. Montgomery, 13 /S. (f- 22., 132. Brashear v. VFe^f, 7 Peter, 608. Pierpont v. Graham, 4 V7asA. C. C, 232. i/afcA v. 5^mi. 1, c/n. 4, 1^ 12. Jeremy on Eg. Jurisd., b. 3,pt. 2, c/j. 3, § 4. Ma/m V. Gamsey, 16 /o^«. P., 189. Reickart v. Castelor, 5 Binn., 109. Drinkwater v. Drinkwater, 4 Mass. R., 354. The decisions in New York are against the validity of an assignment with such a clause of re- lease. — Hyslop V. Clarks, 14 Johns. R., 459. Austin v. i>eZZ, 20 Johns. R., 442. Seaving v. Brinckerhoof, 5 Johns. Ch. R., 329. PFaA:eOTCfn v. Grover, 4 Pa^e P., 23. 6'. C. 11 PFencZ. P., 187. And see, Ingraham v. TFAeeZer, 6 Conn., 227. Attkinson v. Jordan, 5 Ham. ,293. Lord v. Brig Watchman, 8 ^m. /wr., 284. The law in New Jersey is an exception to the rule in the text. It is made essential there by statute — {Elmer's Digest, 16,) to the validity of an insolvents assignment, that it create no preferences and that it be for the equal benefit of the creditors. An as- signment of real and personal property in trust, to pay a favored creditor, and then to divide the residue rateably among the other creditors, and the surplus, if any, to return, though good in New York, where it was made, was adjudged void as to property personal as well as real in New Jersey. — Varnum v. Camp,, 1 Green's N. Y. Rep., 326. But the New Jersey act to secure creditors an equal and just division of the estate of debtors, who convey to assignees for the benefit of cred- itors, does not extend to a solitary transfer of an individual item of pro- perty to a creditor in payment of a debt ; and the operation of the act must be confined, if not to cases where trust is created, at least to cases where there is something like , universality in the assignment.— P27Zou v. Britton, 4 Halst., 131. 44 ASSIGN JI EXT. In Georgia, by statute of 19th December, 1818, all assignments and transfers of property by insolvent debtors, giving preferences are declared to be fraudulent and void. — Princes Digest, 164. The insolvent act of Massachusetts of 1838, eh. 163, establishes much the same law. The statute of Ohio, of 1838, prohibits assignments in trust, in contemplation of insolvency, with the design to prefer one creditor to another, and such assignments are made to inure rateably to all. So the Connecticut act of 1828, declares all assignments of lands, chattels or choses in action with a view to insolvency, to any person in trust for his creditors, or any of them, to be void as to creditors, unless made in writing for the benefit of all the creditors, in proportion to their claims, and be lodged for record in the probate office of the district, and the duty of such trustee is specially regulated. — Statutes of Connecticut, 1838, p. 300. In Pennsylvania by statute of 24th March, 1818, voluntary assignments for the benefit of cred- itors must be recorded within thirty days, or they are void as against any of the creditors of the assignor, without as well as within the assignment. In order to entitle the creditors, named in a general assignment for the benefit of creditors to take under it, it is not necessary, that they should be technical parties thereto. — Gazzard v. Lord Landerdale, 3 Sim., 1. Acton v. Woodgate, 2 Mylne dj- Keene, 492. New England Bank v. Lewis, 8 Peck, 113. Halsey v. Whitney, 4 Mason R., 206. Smith v. Wheeler, I Vent. R., 128. 2 Keble R., 564. Bradshear v. West, 7 Peter's R., 608. The assent of the creditors to be benefitted by the assignment, has been held under the New England attachment and trustee process, to be essential to its validity, so far as that the intervening attachment of another creditor who is no party to the assignment, issued before such assent be given has been preferred. — Wtdgerry v. Haskill, 5 Mass. Report, 144. Stevens v. Bell, 6 Ibid, 339. Ward v. Samson, 6 Pick. R., 350. Jewett V. Barnard, 6 Greenl. Rep., 381. In Boyden v. Moore, 11 Pick. R., 326, it was held that an assignment in trust to pay the assignee and other ( ii-ditors who were parties and assenting was valid. But if not parties and assenting, an intervening attachment prior to the assent will have preference. So, a voluntary assignment in contemplation of insolvency and giving preferences made in Pennsylvania, is not good in Delaware against a subsequent attachment by a citizen there, of the insolvents ef- fects in Delaware, Mayberry v. Shissleer, 1 Har. R., 349, but subject to this qualification the assent of the creditors need not be given at the time of the assignment, and a subsequent assent in terms, or by actually re- ceiving the benefit of the assignment, will be sufilcienl. — Ellison v. Elli- son, 6 Vcs., 656. Cunninghumx. Freeborn, 1 Edw. Ch. Rep., 262. Mar- burry v. Brooks, 7 Wheat., 556. Brooks v. Marburry, 11 Ibid, 79. Bra- shear V. West, 7 Peter's U. S. Rep., 608. Nicoll v. Mumford, 4 Johns. Ch., 522. Browne v. Minturn, 2 Gallis, 557. Cunningham v. Freeborn, I I Wend., 240. The assignment has been held to be good against a subsequent at- tachment, if the creditors had assented to the assignment prior to the at- tachment, and the assignment has been supposed to be valid, even without such intervening assent, in the case of an assignment to trustees, for the benefit of the preferred creditors. — 5roiu« v. Minturn, 2 Gall. Rep., 557. Halsay v. Whitney A Mason's Rep., 217. Hastings v. Baldwin, 17 Mass. ASSIGN^IENT. 45 Rep., 552. The legal estate passes and vests in the trustees, and a (■omt of equity will compel the execution of the trust for tlie benefit of the creditors, though they be not, at the time assenting and parties to the con- veyance. — Small V. Oudley, 2 P. Wms.,A21. Nicoll v. Mumfurd, 4 John. Ch. R., 529. Brooks v. Marburry, 11 Wheaton, 97. Gray v. Hill, 10 Serg. cj- Rawle, 436. Halsay v. Whitney, 4 Masoii's Rep., 206. This rule in the English chancery seems to have been made subject to the same embarrassing qualifications. If the creditors are not parties or privies to a conveyance by a debtor to trustees, to pay scheduled creditors and do not conform to its provisions, and the trustees have not dealt with the creditors in pursuance of the deed, they cannot in chancery enforce performance, and have no lien on the property conveyed. The deed is regarded as a mere disposition between the debtor and his trustee for his own accommodation, and the property is not deemed to be withdrawn from the debtors absolute control. If, however, there be an actual settlement made for vesting an estate or stock in trustees for volunteers, the case is different, and the trustees having the legal estate becomes such for the volunteers, who, as cestui que trusts may claim against the trustee in the deed. — Ellison v. Ellison, 6 Ves., 662. Walwynn v. Coutts, Merrivale's Rep., 707. Garrard v. Lord Landcrdale, 3 Simon^s Rep-, 1. Actor v. Woodgate, 2 Mylne ., May 24th, 1797, Cred. of Gordon, Diet., 2905. 54 Geo. 3, c. 137. 2 Bell's Com., 366, et seq. The assignee cannot- plead compensation upon the debt assigned, if the concourse ceased before the assignment was completed by intimation. Braham, Nov. 1733, reported by Elchies, n. 2, v. Compensation. And in like manner, if an assignation be not intimated by the assignee during the life of the cedent, any creditor of the cedent, who, upon his death, con- firms the debt assigned before the assignment be intimated, shall be pre- ferred to such assignee. — Kaims, 87. Sinclair, July 5th, 1726. Diet., 1793. See also, Durie, Jan. 22 J, 1630. Macgill, Diet. 860. Fou7it. July 22nd, 1708. Ex. of Selkirk, Diet., 4453. As reversed in House of Lords ; Robertson's Cases, 1. See 2 Bell's Comm., 23. Kaimes, Rem., Dec. 124. TurnbuU, June I2th, 1751. Diet., 368. Fac. Coll., Nov. 23d, 1785. Newton 6f Co. Diet., 850. Elphinstone, Dee. l\th, 1674. Diet., 12, 462. Dalr., 179. Faculty of Advocates v. Dickson, July 25th, 1718, Diet. 866. Fount., Feb. I6th, 1703, Leith Diet. 865. Fac. Coll., Jan. 18th, 1776, Dickenson's Diet., 873. Durie, March \Ath, 1626, L. Westraw Diet., 859. Ersk., b. 2, tit. 1, sec. 28; sec. 4, ad fin. ; b. 3, tit. 5, sec. 5. Stair, b. 2, tit. 1, sec. 24. Bankt., b. 3, tit. 1, sec. 12. Staire, h. 3, tit. 1, sec. 10. Staire, Feb. 3d, 1676. Cultie Supp. to Diet., p. 50, and 2 Browne's Supp., 197. Lyell, MarchWth, 1823. S. 5, 2 Da//., 211. 1 Yeates, 255. McCarty v. Emlen, 2 Da//., 77. 2 Teaie^, 190. iio^^ v. Clarke, 1 Da//., 254. Sharpless v. l^Fe/^^, 4 Da//., 279. Bank of N. America v. McCall, 3 Binney, 338. i¥«7«e v. Moreton, 6 5m«., 353. Ludlow v. Bingham, 4 Da//., 47. Moore v. Spackman, 12 S. 6f R., 291. 86 ATTACHAIKNT. FOR WHAT DEMANDS AND IN WHAT COURTS A FOREIGN ATTACHMENT LIES. 1. Does a foreign attachment lie in the circuit court of the United States, a/ey v. Wells, 5 Conn., 431. An executor cannot be held as garnishee in foreign attachment for a legacy payable to the dehtox.— Winchell v. Allen, 1 Conri., 385. 94 ATTACHMENT. Money in the hands of a sheriff, &c., cannot be taken on attachment. — Glary v. Sheppard, 1 Root, 544. The declarations of an absconding debtor are not evidence for the plaintiff in foreign attachment. — Enos v. Tuttle, 3 Conn. Rep., 247. But tbe deposition of such absconding debtor is admissible for the garnishee to prove the effects attached belongs to a stranger. — Enos v. Tuttle, 3 Conn., 24:1 . The eflects and debts of absconding, or absent debtors, in the hands of any agent, factor, trustee, or debtor, may be attached by any creditor by the process of foreign attachment. — Statutes of Conneticut, 1838, j!j. 287. It lies also against persons imprisoned for debt, who shall not, within three months, be admitted to take the poor man's oath ; and debtors discharged from imprisonment, are to be deemed absconding debtors, so as to allow the creditor to proceed against their goods and effects, in the hands of their attorney, agent, trustee, or debtor. — Statutes of Conn., 1838, />. 293, 294. If money in the garnishee's hands is taken from him by a compulsory process, he will be excused. — Hooper v. Benson, 1 Root, 545. Gagor v. Watson, 11 Conn., 168. Thompson v. Steioart, 3 Conn., 171. A debt due to an absconding debtor, by assignment from a third per- son, is attachable. — Apthorp v. Lockwood, 1 Root, 198. A garnishee will be allowed his expenses in defending his principal. — Barber v. Andrews, 2 Root, 250. The precise period when a debt is attached is the time of the service of the writ. — Fitch v. Waite, 5 Conn., 117. A garnishee, if required, must appear in court, and answer on the scire facias. — By art v. Stewart, 1 Root, 149. A public officer, or agent, is not liable to a foreign attachment. — Spald- ing V. Imlay, 1 Root, 551. Stillman v. Isham, 11 Conn., 124, See also, following cases. — Knox v. Protection Insurance Co., 9 Conn., 430. Fitch V. Waite, 5 Conn., 117. Pollord v. Dwight, 4 Cranch, 421. Benton v. Dutcher, 3 Day, 436. Stanton v. Holmes, 4 Day, 87. Enos v. Tuttle, 3 Conn., 27. Wadsworth v. Marsh, 9 Conn., 481. Starr v. Corrington, 3 Conn. R., 278, Green v. Gillet, 5 Day, 485. Coit v. Ball, Kirby, 149. Edwards v. Baldwin, 2 Root, 23. Strong v. Barlow, Kirby, 376. Fowler V. Spellman, 1 Root, 295. De Witt v. Baldwin. Hubbard v. Browne, 1 Root, 276. Woodhridge v. Winthrop, Ibid, 557. Laight v. Tomlinson,2 Root, 233. Wilford v. Jones, Ibid, 324. Cuttler v. Baker, 2 Day, 498. Beach V. Swift, 2 Conn., 269. ToJ(^ v. Hall, 10 Conn., 544. Barber v. Hartford Bank, 9 Conn , 407. Boardman v. Stewart, 1 iioof, 473. Smith V. Sillman, 8 Conn., 115. ATTACHMENTS AGAINST ABSCONDING AND ABSENT DEBTORS IN TENNESSE. 1. Is not attachment the same process in equity as at law? It is ; and will not lie where the defendant can be arrested on ordi- nary process. — Tervill v. Rogers, 3 Hayw., 203. Money levied by a sheriff on execution, cannot be attached in his hands. — Pawley v. Gaines, 1 Overt., 208. ATTACHMENT. 95 Bank stock cannot be condemned nor sold on execution, nor can it be the subject of garnishment — Nashville Bank v. Raggsdale, Peck, 296. The court may, at any time during the term, set aside a judgment by default against a defendant in attachment, on his replevying the property, and offering to plead. — Roberts v. Stewart, 1 Yerg., 390. Attachment is a process to compel the appearance of the defendant. — Terrillv. Rogers, 3 Hayw., 203. Cheatham v. Trotter, Peck, 198. If levied on property by actual seizure, or on sums of money in the hands of the debtor of the defendant, he is before the court, and if he does not ap- pear, replevy, and plead, judgment may be taken against him. — Peck, 198. To authorize an original attachment, one of the parlies must be an inhabitant of the state. — Kincaid v. Francis, Cooke, 49. A debt that is not due cannot be attached. — Childress v. Dickens, 8 Yerg., 113. A garnishee's answer is conclusive as to his liability ; if he state that he gave the defendant a negotiable note or single bill, but does not know who holds it, or whether it is assigned or not, he must be discharged.— Huffv. Mills, 7 Yerg., 42. An attachment is a lien on the property from the return. — Vincen v. Huddleston, Cooke, 254. No judgment can be entered against a garnishee until judgment against the defendant. — Seawell v. Murphy, Cooke, 478. An affidavit that the defendant has removed himself, so that the ordi- nary process of law cannot be served on him, without stating that he has absconded, is not sufficient to authorize an attachment. — McCullagh v. Foster, 4 Yerg., 162. The creditor, in the case of an absconding debtor, need not be a resi- dent ; but in the case of an attachment against a non-resident debtor, he must hQ.— Tennesse Act of 1794. 1 Yerger's R., 101. 6 Ibid, 473. No attachment will lie against property, when both creditor and debtor are non-residents, unless judgment had been first obtained, and execution issued in the courts of the jurisdiction where the defendant was a resident ; or in cases in which personal service of process cannot be made, nor an attachment at law lie. In these special cases, the non-resident creditor may, by bill in chancery, cause stocks, and choses in action, and other property belonging to the non-resident defendant, or held in trust for him, to be applied to his debt. — Stat. 1801, ch. 6. Stat. 1832, ch. 11. Garret V. Scott, 9 Yerger, 244. Where the reason of their statute law is clearly stated, and justly vindicated. > ATTACHMENTS AGAINST ABSCONDING AND ABSENT DEBTORS IN MARYLAND. 1. Can the defendant appear without bail upon the return of an attach- ment ? He cannot. — Campbell v. Morris, 3 Har. ^ McHen., 535. An equity of redemption may be taken by attachment. — Pratt v. Law, 9 Cranch, 456. 96 ATTACHMENT. Where a debt has been recovered by attachment in a foreign court, the recovery is a protection to the debtor, as garnishee, against his original creditor. — Taylor v. Phelps, 1 Har. Sf Gill, 492. See also, following ca- ses.— Z)aw«c?.yon V. Beatty, 3 Hnr.