Lapas attēli

very judicious feature in the report, and takes away the ground of one objection, which would probably otherwise have been made. In the details of the bill, only one new and unusual proceeding is proposed, namely, the dissolving of an attachment on mesne process, by giving security for the satisfaction of the judgment; and this is nothing more than is ordinarily done, substantially, in practice, by what is called receipting for the goods attached, that is, when the sheriff has attached goods on mesne process, the debtor proposes to put them into the hands of some one to keep, that they may be forthcoming to satisfy the judgment. The sheriff, in this case, generally consults the creditor, and' on obtaining his consent to accept the proposed receipter, all further expense for keeping the goods is saved, and only the personal responsibility of the receipter is looked to. The giving bonds, proposed in this act, is only a substitute for that proceeding, and it is a provision which ought to be made by law, though no insolvent act should be passed, since the keeping of goods by the sheriffs is attended with great expense, and often with very material damage to the defendant, for which he can now obtain no redress, unless it be in case of a malicious suit. If attachments on mesne process are allowed, therefore, the law ought to provide for a dissolution of the attachment on the substitution of sureties.

The only objection that occurs to us, as likely to be made to the proposed act, is to its length. But this will not, we think, be made by any except those who will not take the trouble to read it, and the expositions with which it is accompanied in the report. We are not able to find in the act any repetition, or any instance of obscurity, nor any useless provision. The language is remarkably simple, concise, and clear. It consists of about one fifth part as many sections as the recent British statute on the same subject. It appears to us, therefore, that any objection to the length will be a tacit confession, on the part of the person making it, that he has not given much attention to the subject.

If we were to give any credit to some suggestions made at the late sessions of the legislature in Massachusetts, some opposition to the adoption of this law, might be anticipated from the profession, on the ground that it might, perhaps, diminish the fees, and bills of costs, which are now attendant upon failures, and the contest and scramble among creditors for the debtor's property, either in contravention of voluntary assignments, or where no assignment is made. But no one, conversant with the general character of the profession, will give the least credit to the imputation against its members, that they will postpone the interest of the community at large, to any supposed interest of their own. Mr. Crabb, in his history of the law, speaks of the high principles of honor which have ever formed the characteristics of the profession,' in England, and the eulogy is no less just and applicable in the United States; and its members are so entirely conscious of the spirit of honor and prineiples of integrity prevalent in the body, that they do not consider any loose accusations to the contrary as worthy of notice. Indeed, trustworthiness, and a strict regard to obligation, are among the ordinary and essential qualifications for the practice of the law, the possession of which confers no distinction, but the want of which, in this profession more than any other, is disreputable, amounting to an absolute and noted disgrace. The strong prejudice and bias of the profession are undoubtedly in favor of adhering to established forms and usages, for authority and precedent are the great guides in practice. This accounts for the opposition of lawyers to any law which may disturb the accustomed routine, and savor of innovation, and it is to this principle that any opposition, which may be made to the proposed law from this quarter, ought to be attributed, if in fact there shall be any such, which we very much doubt.


Cases in
ASHMEAD'S REPORTS. Vol. I. In the Courts of Common Pleas,

Quarter Sessions, Oyer and Terminer, and Orphans' Court of the first

Judicial District of Pennsylvania : from June 1808, to December 1830. NEW HAMPSHIRE REPORTS. Vol. IV. P. 2. In the Superior

Court of Judicature of New Hampshire, from November 1827 to May

1829. DAY'S CONNECTICUT REPORTS. Vol. VII. P. 2. In the Supreme

Court of Errors, from July 1828 to July 1829.

ABATEMENT. 1. In general writs, where the special matter is not set forth, if

the plaintiff is nonsuited before he counts, and a second writ has been sued pending the first, yet the former cannot be pleaded in abatement, because it does not appear to the court to be for the same thing, but it is otherwise where the writs are

special. M Carney v. M*Camp, 1 Ashmead, 4. 2. Where a plea in abatement is not in time, it may be treated as

a nullity. 16. 3. If the defendant plead in abatement in time, the plea must be

replied to and disposed of, before any judgment can be signed

for want of an affidavit of defence. Ib. 4. Pleas in abatement are always regarded with jealousy, and the

general rule is, that a plea in abatement cannot be pleaded after

a general imparlance, but may after a special one. 16. 5. When the goods or estate of a defendant are attached, it is a

good cause to abate the writ, that no summons has been left with the defendant for his appearance at the time and place, when and where the writ was returnable. Nelson v. Swett,

4 N. H. Cas. 256. 6. In an action of assumpsit against a secret partner, it is a good

plea in abatement that there are other secret partners not named in the writ. Ela v. Rand, 4 N. H. Cas. 307.

7. A writ does not abate by the death of either party, between the

time when the writ is served, and the time of entering the action, provided the cause of action by law survives. Clindenin

v. Allen, 4 N. H. Cas. 385. ACTION. 1. Where a defendant, on an execution issued against him by a

justice of the peace, paid the amount, when he might have had redress by certiorari, it was held, that no action lay to recover

it back. Walton v. Robb, 1 Ashmead, 43. 2. Where a levy had been made on goods, which were afterwards

distrained by the landlord for rent in arrear, held by the court, that no action could be maintained against the landlord by the plaintiff, at whose suit the levy was made. Taylor v. Mander

son, 1 Ashmead, 130. 3. But, the constable making the levy, could undoubtedly main

tain trover or trespass against any third person who wrongfully

divested him of the fruits of his levy. 16. 4. When the legislature authorizes an act, the necessary conse

quence of which is damage to the property of another, and at the same time prescribes the particular mode in which the damage shall be ascertained and compensated, he who does the act cannot be liable as a wrong-doer. Woods v. N. M. Company,

4 N. H. Cas. 527. See HIGHWAY, 2. ACTION ON THE CASE. See CARRIER, 2. ADMINISTRATOR. 1. Nothing short of a divorce, or conviction of a crime, (of which

quære?) will deprive a husband of his right of administration over his wife's estate. Therefore, proof of desertion, ill treatment, and the like, and even an agreement of separation, are not sufficient to divest this right. Case of Jacob Altemus, 1

Ashmead, 49. 2. An administrator, taken upon an attachment, issued to compel

payment of a debt due to a creditor, is entitled to relief under

the insolvent laws. Maag's Case, 1 Ashmead, 97. 3. Where sums have been received by administrators, after the

expiration of a year, interest is not chargeable from the days they were received, but the court will allow six months from those times respectively, before the charge of interest is to

commence. Merrick's Estate, 1 Ashmead, 305. 4. A purchase, by an administrator, of the real estate of the intes

tate, although at a public sale by order of the Orphans' Court, and for a fair price, is void ; and it is not necessary that excep

tions should be made to the validity of the sale previous to the confirmation thereof by the Orphans' Court. Wallington's

Estate, 1 Ashmead, 307. 5. If the administrator has purchased at a price below the value

of the estate, and sold to a third person without notice, the court will order him to pay to the estate the difference between

the price paid by him and its estimated value. Ib. 6. Where administrators settled an account of the personal estate

of the intestate, upon which they were allowed a commission of seven and a half per cent., and afterwards they settled a second account which consisted entirely of the balance of the former account, and the proceeds of real estate, the court allowed the administrators three per cent. in the second account, but directed that no commissions should be charged on the balance brought

down from the first account. Miller's Estate, 1 Ashmead, 323. 7. Where an estate is insolvent, the administrators are entitled to

a moderate allowance for money expended in obtaining mourning for the widow and children of the decedent. Wood's Estate,

1 Ashmead, 314. 8. Where, upon the death of an intestate, his stock in trade was

appraised at a certain value, and the administrators delayed the sale and carried on his business for eleven months, apparently for their own benefit; the court held, that it was competent for the creditors to consider it as an election by the administrators to take the property at the appraised value, and that they were properly chargeable with the difference between the appraise

ment and the proceeds of the sale. 16. 9. But the mere circumstance of delaying the sale of household

furniture will not render administrators chargeable with the difference between the sale and the appraisement; and an election to take such property ought not to be inferred from the fact of leaving it a reasonable time with the widow and family.

16. See EXECUTOR. AFFIDAVIT. 1. The affidavit made by a defendant in order to obtain a post

ponement of his trial, is not necessarily to be taken as true, but it is necessary that the court should be satisfied. Commonwealth

v. Gross, 1 Ashmead, 281. 2. The affidavit of a plaintiff is sufficient to put the defendant to

determine whether he will deny upon oath, that books and papers referred to are in his custody and power. If he does, the plaintiff must produce evidence, before he can have the rule

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