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CH. 28,

Art. 8.

&c., then their cases are several. So a release to one joint trespasser in assault &c. is a bar as to all; so is accord and satisfaction, though the sum received and the release be express, it shall be a bar only as to the one. Ruble v. Turner & al., 2 Hen. & Mun. 38, 49, was no seal on the instrument; the District Court also so decided in which the action was so commenced. If A, B, and C, commit a joint assault and battery on D, and he sues A alone, and gets judgment for damages, it is a bar as to all; Wilkes v. Jackson, 2 Hen. & M. 355, 361, § 4. If the jury assess damages in trespass, namely, £1000 Bul. N. P. 20, against A, and £50 against B, the plt. may take judgment is the case against A only, for the £1000, for as the plt. might have sued them jointly, or severally, he may have the same election as to damages, or he may take execution against both for the greater damages.

above.

Beal.

§ 5. To have an increase of damages in case of a maim or Bul. N. P. bad wounding, on inspection &c., the manner of the wound- 21, Cook v. ing must be stated in the declaration. See Raym. 176; Latch 225.

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Bul. N. P.

6. Trespass, quare clausum fregit, the plt. is not allowed to prove the deft. took a horse, as this bears a separate action; 89; Ch. 85. but in quare clausum fregit et domum fregit, the plt. may prove the deft. came into his house and defiled his daughter; for this, as it respects the father, does not bear a separate action, but is in aggravation of damages.

$7. 7. What a penalty. A and B made an agreement in 3 Johns. Ca. writing, by which A agreed to convey to B 700 acres of land, 297, Dennis to be appraised in part payment of a farm valued at $3750. v. Cummins. B contracted to sell to A, and it was agreed if either failed to perform his contract, he should forfeit and pay $2000 and damages. Held, this $2000 was a penalty, and so the parties intended.

Western

ART. 8. Damages applied to the good part of the declara- 2 Johns. R. tion. 1. As where part of a declaration states a sufficient 283, Steele r. ground of action, and a part is not actionable, the court will Island Lock intend, after a verdict, that the jury gave damages only for Nav. Com. the actionable part of the declaration. 1 Johns. R. 442. Laws, of N. And a corporation taking and using a man's land, by law is 334. liable to pay damages only for its negligent use of it.

Y. Vol. 1, p.

§2. Damages assessed for part. This was trespass for 5 Co. 35, breaking the plt's. close and taking away his fish. The dec- Flaytor's laration was good as to the close, and bad as to the fish ; case, Cro. beCar. 54, 239, cause the plt, did not state the number and kind of fish. En- Hob. 66, 70. tire damages were assessed, and judgment arrested, and the court said the plt. might have got the jury, if he had been wise, to assess separate damages, so much for breaking the close,

CH. 29.
Art. 1.

11 Co. 5, 9, Heydon's case.-See 2

Stra. 910.

Yelv. 67,

Cro. J. 73, Moore 762.-2 Hen. &

Mun. 355.4 Esp. R

158.-3 Mod. Hob. 66.

3 Burr. 1345.

Cro. Car. 54, Player v. Warne & al.

6 D. & E. 199.

1 Johns. R. 507.

3 Johns. R.

and so much for taking the fish, and then the plt. should have had judgment for damages for breaking his close with costs.

§3. Where the jury must assess damages jointly, &c. Resolved when trespass is brought against several defts., and they plead not guilty, or several issues, and the jury find for the plt. in all, the jurors cannot assess several damages against the defts., because all is but one trespass, and made joint by the plt. by his writ and declaration. And if one give the blow, and do in fact more injury than another, yet all coming to do an unlawful act, and of one party, the act of one is the act of all of the same party present. But in trespass against two, if the jury find one guilty at one time and another at another time, they may assess several damages. So if the defts. appear at different times and plead, there can be damages but once. Trespass against A and B; A makes default, a writ of inquiry of damages must be awarded against him, and issued, if there be no verdict against B; but if one against B, then A shall be contributory to the damages assessed against B. Quære of contribution in torts.

§ 4. Trespass-defts. defaulted-plt. sued out several writs of enquiry-set aside on his motion because he could not have several damages.

§ 5. If a clerk make a mistake in the assessment of damages, the court will order him to make another assessment.

$6. After default, where the judges have power to assess 153, M'Col- the damages, they may receive an assessment by the jury, though not in a formal verdict, if assessed in the presence of the court.

lum v. Barker.

6 Cranch 233,

7. Ad quod damnum. The Circuit Court in the District of Curtis' case. Columbia quashed an inquisition in the nature of a writ ad quod damnum. Held, an appeal lay to the Supreme Court, and that the Circuit Court could not so quash.

See Assets.

CHAPTER XXIX.

ASSUMPSIT. EXECUTORS AND ADMINISTRATORS, AND ACTIONS
BY AND AGAINST THEM, AND GENERAL PRINCIPLES.

ART. 1. 1. It is now a settled principle, that whenever assumpsit lies against the deceased at the time of his death, or he is then bound in any promise expressed or implied,

though payable in futuro, his executor or administrator is liable if called on in season; for the law transfers the duty and obligation of the deceased in this case to his representative, appointed by himself or by the laws to settle his affairs. All the rights and duties of executors and administrators are materials for a volume, but only the most material can be considered here. To this purpose the party must be such an executor or administrator, as the law requires. Next, he must be liable to the action. This naturally involves the question when he is or is not liable at all; and when once liable, he is discharged by any act of limitation or otherwise. He is known in law as the representative of the deceased, and therefore generally in contracts made by, or to him, this representative need not be named in order to sue or to be sued on such contracts.

2. Under this head there will be found a great mixture of English common law adopted here, and statute law made in the United States. The object in this place is to consider the rights and duties of these representatives in regard to actions, as founded on the laws of the United States, the statutes of Massachusetts &c. and the common law so far as it applies.

3. Executors and administrators acquire their authority in very different ways. Therefore, their appointments must be treated separately; but after appointed their powers and duties are so nearly the same, that actions by or against them may be treated very well together, as well as their rights and duties.

CH. 29.

Art 1..

4. By the 31 of Ed. III. it is enacted, that in case 21 H. VII, where a man dieth intestate, an administrator shall be appoint- Ch. 5. ed &c., "who shall have an action to demand and recover as executor the debts due to the person intestate;" "" and shall answer to others to whom the said deceased person was bound

in the same manner as executors shall answer." And an ad- 11 Mod 145. ministrator is bound to account without citation, before the last

day in the condition of the bond mentioned, at his peril; and if

an administration be granted by one who has no jurisdiction, 12 Mod. 617. it is void, and trover lies for the deceased's goods received under it.

Laws 157,

§ 5. Administrators, how appointed &c. By a statute pass- Mass. Colony ed in Massachusetts Colony, A. D. 1641, wills were proved, 158. and administrations granted for many years by the county courts, and in the vacation by two magistrates and the county clerk meeting together. Our present laws on this subject being in substance the province laws revised, it is unnecessary to state them. And it is also unnecessary further to notice the English statutes on this subject. The Civil law had no executors till a late period.

CH. 29.
Art. 1.

March 9, 1784, sects. 8, 10, and

A. D. 1818.

§ 6. This act provides, "that after the decease of any person intestate, administration of such intestate's goods and estate shall be granted unto the widow or next of kin to the Mass. Acts of intestate, upwards of twenty-one years of age, or both, as the judge of probate may think fit," in thirty days or sooner, and that an inventory of all the estate of the deceased be taken in three months &c., and if the widow or next of kin refuse &c. after the thirty days, the judge may commit administra→ tion "to some one or more of the principal creditors," if accepted by them, or others, as he shall think fit upon their refusal; and each administrator so appointed must give bond, as the law directs, to render a true inventory and an account of administration that no administration de bonis non be granted, unless it appear to the judge that there is personal estate of the deceased not administered upon, to the amount of £5, or upwards, and that no "administration be originally granted upon the estate of any person deceased, after the expiration of twenty years from the death of such person." On this law a minor is not entitled to administration. £5 was the sum in the Province act of 1723.

4 Mass. R.
348,

M'Gooch v.
M'Gooch.

336.

:

§ 7. By the 17 Ch. II, if the executor or administrator get judgment in England and die, the administrator de bonis non shall have a scire facias, as well as debt. This act has not been adopted here, as it has been held.

8. In this case it has been decided in construction of the above act, that the intestate's widow is exclusively entitled to the administration on his estate, unless there be among his next of kin a suitable person to be joined with her in the judge's opinion, or to administer alone. As to administration in other States, see s. 17 and art. 4, s. 19.

12 Mod. 617, 9. If administration be granted to one not next of kin, it Slaughter v. is not void, and all acts done by him before it is repealed, are May-1 Bin. good. Administration may be granted to A, during B's absence, but his absence must be averred in A's declaration; Salk. 42; 2 Ld. Raym. 1071. And administration must be granted where the intestate has his domicil. So one's will of personal estate must be executed according to the law of the place of his domicil at his death; if void by that law, it will not pass personal estate in a foreign country, though executed according to the law there; 1 Bin. 336, Desesbats v. Berquier; 5 East 131; Toller 387.

5 East 131.

10. Who is next of kin, may often be a question on the As to admin- above act of March 1784, as on the English act of 21 of H. istration dur- VIII, which is in the same words, to wit: "unto the widow or tor's absence, to the next of kin, or to both." So that the construction in see 8 Cranch this point given of this English statute applies here, and on this

ing execu

9, 30, can

not be, if he be capable.-3 Salk. 21.-1 Com. 360.-2 Stra. 891, 1111.

:

CH. 29.

Art. 1.

1 Wils. 168. -2 Bl. Com.

Chris. Notes

618.-Toller'

English act the order has been determined to be, and so on our act: 1. To the husband on his wife's estate: 2. To her on his 3. If no husband or wife, to the children, sons or daughters of the whole or half blood: if no children, then to the next of kin, as father or mother, and after them uncle, aunt, or cousin lastly to a creditor of the deceased, or to 8-12 Mod. any other person at the judge's discretion; but by our act, this 622-4 Co. other person cannot have administration till the creditors shall 51-12 Mod. have refused. But this does not extend to goods the wife L. of Ex'rs. deceased had as executrix to another husband, administra- 118, 122.tion on his goods must go to his next of kin; and administration goes to the son before the father, though in equal degree. 1 Salk. 28.— Where there is a brother and a sister of the half blood, admin- 12 Mod. 618. istration may be granted to her, for she is in equal degree of kindred; but if married, then to the brother, and not to her and her husband. To a feme covert, if next of kin, and if she refuse, to her husband; and though grandfather and uncle be in equal degree, the former has the preference.

1 Com. D.

343, 360.

-12 Mod.

§ 11. The next of kin are found by the rules of the Civil 2 Bl. Com. Ch. Notes 78, law, including relations both on the paternal and maternal Evelin v. sides, who are to have the benefit of the statute of distributions. Evelin.But brothers and sisters exclude grand parents, though in 12 Mod. 624. equal degree. The grandmother is nearer than the aunt, for 623.-Salk. aunt and neice are related only in the third degree. Brothers 37, Fawtry v. and sisters are nearer than grandmother, and aunt than great Fawtry. grandmother. It is said, administration of the intestate's goods may be granted to his wife or next of kin, or of part to one, and of part to the other, but of hers must be to the husband; but one entire debt cannot be divided. Part to one, not our practice.

Mass. Act,

§ 12. By this act it is enacted, that when any executor or Feb. 6, 1784, administrator shall reside without the limits of this state at the A. D. 1818. time of taking on him the trust, or shall afterwards remove out, See a. 13, s. 22, Absent and shall neglect or refuse, after due notice from the judge of Executors probate, to render his account and make a settlement of the &c.-2 Mod. estate with the creditors, legatees, and heirs, or their legal Tracy. Dis. representatives; or when any executor or administrator shall tribution is become insane, or otherwise incapable of, or evidently unsuit- made equally among childable to discharge the trust, the judge of probate is authorized ren of the to grant administration with the will annexed, or otherwise, to whole and such person within the government, as he shall judge meet; see Watts v. and the administrator so appointed to have the same power, Cooke, so and to do the same duty as if the former administrator or ex- decided in ecutor were dead. 13. And when the executor is under twenty-one years of The Surrogate has discretionary power to choose an adm. from those who are next of kin to the intestate, and may grant sole administration to one of them, 2 Caines' Ca., Ch. 143. 71

VOL. I.

half blood.

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the House of Lords, Ch. 17.

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