William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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his interest. Whittlesey v. Fuller, 11 Conn. B. 3:i7.

^^ Hr. Preston's opinion has been doubted. See Diasv. Glover, Hofhnan,
Ch. 71. In Pennsylvania the common law rule prevails, and they are seised
of the entirety though the conveyance in terms is to them **as tenants in com-
mon and not as joint tenants.'' Stuckey v. Keefe's Executors, 26 Pa. St. 397:
Fairchild v. Chistalleaux, 1 Pa. 176. In New York the court of appeal has
held that they neither take as tenants in common or as joint tenants, but
both are seised of the entirety, and neither can dispose of any part without
the consent of the other, and the survivor takes the whole. Torrey v. Torrey,
14 N. Y. 430; Wright v. Sealer, 20 Id. 320. And the Supreme Court has
recognized the common law doctrine; Barber v. Harris, 15 Wend. 615. Jeck-
son 9. Stevens, 16 Johns. 110; and see Dickenson v. Code wise, 1 Sand Ch.
214; Rogers v, Benson, 5 Johns. Chy. 431.

It has been recently held in Kansas that in a conveyance to husband
and wife they take by entireties, and that the rights of the survivor are not
changed by statute in that state. Baker v. Stuart, 2 L. R. A. 434 (Kans.),
aod the elaborate note thereto, in which the reader will find the rules and
biws of the several states fully set forth.

" Butterfield v. Butterfield, 3 Ind. 203; but such rights cease on nn ab-
solute divorce being pronounced. Stearns v. Steams, 10 Ohio, 540; Oldham v,
Henderson, 5 Dana, 256.

*' Hii« conveyance or mortgage passes only his life estate or the joint life
estate of himself and wife and no more. Shacklefonl v. Miller, 3 Dana, 291.



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f \: from the aatborities, when closely examined, sajs Mr. Preston [a]

f ; 1 it seems, that the husband has the power to transfer the whol

•n ;;■ ; estate of his wife, and the estate will be in the alienee of the bus

•^ ';' band, subject to the right of entry of the wife, or her heirs, am

|f «f which entry is necessary to reYest the estate after the hiisban

I i ^ ; discontinues ii She was driven at common law to her writ c

■- '''' ■' right, as her only remedy; but Lord Coke says (6), he found th«

in the times of Bracton and Fleta, the writ of entry cui in vik

was giyen to the wife, upon the alienation of her husband, an

... . this was her only remedy in the age of Littleton (c). The wri

' I ; became obsolete after the remedial statute of 82 Hen. YIIL c 2i

; which reserved to the wife her right of entry, notwithstanding he

husband's alienation; and the writ of entry lay even if she ha

joined with her husband in a conveyance by feoffment, or bargai

and sale, for such conveyances were deemed the sole act of tb

husband, as the wife was not separately examined (d)J^

(2.) To her life estate.
[* 134] *If the wife, at the time of the marriage^ hath an estal
for her life, or for the life of another person, the husbac

{a) Essay on Ahsfracts of Title, vol. i. p. 334, 435, 436. Sergeant William
in his note to Waller r. Hill. 2 Saiuui. 180, n. 81, concludes that as estates fi
life being freehold estates, and commencing by livery of seisin, could on]
be avoided by entry, leases for life by the husband were voidable only, bi
that leases for term of years were absolutely void on the husband's deatl
and this Chancellor Johnson considers the better doctrine, and this, I thinl
is the correct conclusion. Brown v, Lindsay, 2 HilVs S. C. Ch. B. 544.

(b) 2 Jnst. 343.

(c) Liu. sec. 534. The extent of the remedy under this ancient writ, ras
be seen in Bro, Ahr. tit. Cui in ttto, and F. N. B. 193, h. t.

(d) Co. LiU. 326, a. The statute of 32 Hen. VIII. was re-enacted in Ne
York, in 1787, by act, 10th sess. ch. 48. But it does not appear in the r
vision of 1K30, and the action of ejectment was doubtless deemed oommei
surate with every right to the recovery of land. New York Revised Stutut

t vol. ii. p. 303. In New Jersey, by statute, it is declared that the husban

can do no act or make any default to affect or work any prejudice to tl
wife's inheritance or freehold, and after his death she may lawfully ent*
and hold the same notwithstanding. E'mer^'^ Dig. T7. This is the univers
law on the subject. In Maryland, under the statute of 1786, the husban
may elect, in right of his wife, to take her ancestor's lands at the valuatic
of commissioners, and pay or give bonds to the coheirs of the wife for the
just proportions of the estate, and that election ve.stsinhim the fee as a pu
chaser, to the exclusivin of the wifo. Stevens r. Richardson. 6 Hurt. <fr John
Bep. 156. In Miller v. Shackleford. 4 Dina, 27H, it was held, that a womai
whose estate had been wrongfully aliened by her husband, might recover
in ejectment after his death, without notice to the tenant to quit, and no a
quiescence in the tenant's holding, sh.)rt of 20 years, would bar her.

'* The statute is still in force in Massachusetts as '* modifying and amem
ing the common law.'* Bruce v. Wood, 1 Metcalf, 542.



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becomes seised of such an estate in right of his wife, and is en-
titled to the profits daring the marriage. On the death of the
wife, the estate for her own life is gone, and the husband has no
farther interest in it Bat if she have an estate for the life of
another person, who sorviyes her, the husband becomes a special
oocapant of the land daring the life of such other person. After
the estate for life has ended, the land goes to the person entitled
in rsTersion or remainder, and the husband, quasi husband, has
no more concern with it This estate the husband can only sell
or charge to the extent of his interest in it, and his representa-
tives take as emblements the crops growing at his death.

(3.) To her chattels real

The husband, upon marriage, becomes possessed, also, of the
chattels real of the wife, as leases for years, and the law gives
him power, without her, to sell, assign, mortgage, or otherwise
dispose of the same as he pleases, by any act in his lifetime (a) ;
except it be such an interest as the wife hath, by the provision
or consent of her husband, by way of settlement (6). Such chat-
tels real are also liable to be sold on execution for his debts.'' If
he makes no disposition of the same in his lifetime, he cannot
devise the chattels real by will (c); and the wife, after his death,
will take the same in her own right, without being executrix or
administratrix to her husband. If he grants a rent charge out of
the same, without altering the estate, the rent charge becomes
void at his death. If he survives his wife, the law gives him her
chattels real, absolutely, by survivorship; for he was in
possession of the chattel *real during the coverture, by [ * 135 ]
a kind of joint tenancy with the wife (d),

(4.) To he\' choBea in action.

As to debts due to the wife, at the time of her marriage, or
afterwards, by bond, note, or otherwise, and which are termed
choses in action^ the husband has power to sue for and recover

{n) Co. Litt. 46, b.

(6) Sir Edward Tnrner's case, 1 Vern. 7.

(c) A). LiU. 351, a.

(d) O). Litt. a51, b. Butler's note, 304, to Co. Litt lib. 3, 351, a. 1 Roi,
Ahr. 345, pi. 40.

" The wife's title is thus transferred by operation of law to the creditor.
Bale r. Alexander, 1 Wash. 30. An assignment of them will bind her even
though made without consideration, and an assignment in like manner oi a
judgment extended on elegit will bind her. 3 P. Wms. 200.



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[Part IV,


.!' 11. ,i.




the same; and when recovered, and reduced to possession, and
not otherwise, it is evidence of a conversion of the same to hi£
own use, and the money becomes in most cases abaolntelj hie
own (a)." The role is the same, if a legacy or distribntive shar<
accrues to the wife during coverture (6).'* So, he has power t(

(a) The reduction of the wife's choses in action into possession by thehos
band is not in all cases conclusive, though it is prima facie evidence of th(
conversion of it, for there may be satisfactory proof that he *took and hel<
the money as her trustee, and for which he would be accountable. Estat
of Hinds, 5 IfAcatow, 138. »•

(6) Garforth r. Bradley, 2 Tcwy, «e». 675. Schuyler c. Hoyle, 5 JoAim. Ck
Rep. 196. Haviland v. Bloom, 6 Ibid. 178. Carr v. Taylor, 10 Vesey, 578
Wildman «. Wildman, 9 Ibid. 174.

i« See Gochenaur's Este., 23 Pa. 460, and Gray's Este., 1 Pa. 329. He ma;
so treat it as to render himself and heirs liable as trustee for her separat
use. Resor v. Resor, 9 Ind. 347; Totten t>. McManus, 5 Id. 407. When ai
agreement is to pay to husband and wife during the life of the longest livei
a given sum 6he takes by survivorship and may assign it. Prindel r. Ca
ruthera, 15 N. Y. 426. See also Pike v. Collins, 33 Me. 38; Wright v. Sadlei
20 N. Y. 323; Stuckey t;. Keefe's Executors, 26 Pa. 397; Totrey v. Torrey
4 Vem. 430.

^^ Very oft«n it is a difficult question to determine what acts of the bu£
band will amount to a reduction into possession, but the mere poasessioi
of the instrument is not sufficient. Hartman v. Dowdel, 1 Rawle, 279; La
tourette v, Williams, 1 Barb. 9; Hall c. Young, 37 N. H. 134. There must b
a positive act. Barber i\ Slade, 30 Vt 192; Tritt's Admor. v. CalwelPs Ad
mors. 31 Pa. 233; Holmes v. Holmes, 2 Wms. (28 Vt.) 763; the money mua
be actually received by him or his agent for his use; or a judgment must b
recovered and execution issued in the name .oi the husband and wife or i:
his name alone. A mere intention is not sufficient. Blunt r. Best land,
Ves. 515. Nor is the mere receipt of interest. Stan wood v. Stan wood, 1
Mass. 57; Hunt v. Stevens, 51 Eog. C. L. 939. Nor tlie mere fact of joinin
the wife in a receipt for the principal. Timbres v, Katz, 6 W. & S. 29C
Bumham v. Bennett, 9 Jur. 888.

His act must be such as will change the property, or divest the wife'
right. If his action clearly shows an intention to use it as his own, a
mortgaging, procuring a judgment in his own name, appointing another t
receive it if such person actually does so will be sufficient. Stewart's App
3 W. & S. 376; Forrest v. Warrington, 2 Dessau, 254.

In Dald t. Geiger, 2 Gratt. 98, it was held that the wife's chose in actio
are liable to the claims of the husband's creditors, notwithstanding a settU
ment of them upon the wife with the husband's consent without their bein
reduced into possession. It would seem that a promissory note given to tb
wife during coverture is not a personal chattel vesting in the husband absf
lutely, and will 8ur^'ive to her unless reduced into possession. Gaters \
Madely, 6 M. & W. 423; Richards v. Richards, 22 Eng. C. L. 121; Scarpii
lim V. Atcheson, 53 Id. 874. See, however, Savage p. King, 17 Me. 301
Commonwealth v. Manly, 12 Pick. 173; Swan t>. Gray, 1 Hay. (N. C.) i
Jones V. Warren, 4 Dana, 333; Little r. Marsh, 2 Ired. Eq. 18; Cornwall i
Hoyt, 7 Conn. 420; Middleton v. Mather, Id, 598, where the contrary is heU

**See, further, Hapgood t?. Houghton, 22 Pick. 480; Poindexter v. Blacl
burn, 1 Ired. 330; Snowhill r. Snowhill, 1 Green. Ch. 30. It would sti
seem to be a vexed question whether the husband's creditors can sttbje<
to his debts a legacy acquired during coverture, and to which the hui
band asserts no claim. In Wheeler v. Moore, 13 N. H. 478; Coffin v. Moi
rill, 2 Foster (N. H.), 352; Gallego v. Gallego, 2 Brock. 287, it was held the



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release and discharge the debts, and to change the seonrities, with
the consent of the debtor (a). Bat if he dies before he recovers
the money, or alters the secnrity, the wife will be entitled to
the debts in her own right, without administering on his
estate, or holding the same as assets for his debts.'* If his wife
dies, and he silrriyes her, before he has reduced the cho8e in
action to possession, it does not strictly sarvive to him; but he is
entitled to recover the same to his own ase, by acting as her ad-
ministrator (b).^ By the statnte of distribntions of 22 and 23

(<i) The husband may release his wife's choses in action, even those in re-
mainder or ezpectencyv which may possibly falL in during the marriage. 1
Boper on Hwbandand Wife, 227, 237.

(6) Garforth r. Bradley, 2 Veiey, 675. Lord Tenderden, in Richards v
Richards, 2 B. dt Adolphus, 447.

could not, while in Wheeler r. Bowen, 20 Pick. 563; Hay ward v. Hayward,
W. 528; Btrong v. Smith, 1 Mete. 476; Vance v. McLanghlin, 8 Gratt. 289,
it was held that an attachment of her interest in a legacy in the hands of
the executor created a lien, which the death of the httsband dnring the snit
will defeat. See, also, Hairstono. Hairston, 2 Jones' £q. (N. C.) 123; Deuson
r. Patton, 19 Geo. 577; Sloper r. Cottrel, 37 Eng. L. & Eq. 89.

In Pennsylvania before the act of of 1848 it was held that a voluntary as-
signment for creditors would not pass the legacy of the wife nor her chose
io action Skinner's App., 5 Pa. 262; Helfrich v. Obermyer, 15 Pa. 113; and
an assignment by a husband, who had deserted his wife, pending divorce
proceedings, for the purpose of barring her right of survivorship does not
divest her title. Knapp «. SchoU, 10 Pa. 193.

^ If the husband takes a seonrity in the wife's name, it constitutes a

Sift, and its retention in his custody is a delivery to him, and upon his
eath it belongs to her absolutely and not to his estate. Scott v. Simes,
19 Bosw. 314. In Richards v. Richards, 22 Eng. C. L. 119, where the wife
was an administratrix, and ns such lent her husband money, taking as se-
curity the promissory note of himself and two others, it was held she could
after his decease sue upon it, as it was a chose in action which survived to her.
See. also, Dummer f. Pitcher, 5 Simons, 35; Gibson v. Todd, 1 Rawle, 455. A
volantaiy assignment without consideration is no bar to her survivorship.
CarrolL v, Carroll, 11 Wheat. 134; Parsons v. Parsons, 9 N. H. 321. The
right of a wife in the personal estate of her deceased husband is a mere chose
ia action before a division thereof, and if she marries again and her second
husband dies without reducing it into possession it survives to her. Har-
per V. Archer, 8 Sma <& Mush. 229; Clark v. McCreary, 12 Id, 347.

* In Hendrin v. Colgin, 4 Mnnf. 233, it was held that if a husband ob-
tains possession of the wife's personal property without taking out letters of
administration he may retain it as against her next of kin. In case the
wife's next of km administer he will l^ a trustee for the husband or his rep-
resentatives should the husband die before taking out administration. Stew-
art V, Stewart, 7 Johns. Chy. 229; Clark v. Clark, 6 Watts & Sergt 85. In
Ferrer v The Commonwealth, 8 Sergt. & Rawle, 315, it was held that he is
not entitled as administrator to her share of the proceeds of real estate sold
by order of the orphan s court after her decease though the order was made
before her death, but he would be entitled to his estate as tenant by the
curtesy. AJifer, if the wife had died alter sale. Huett v. Fisher, 1 Har. &
Gib. 88; Leadenham v. Nicholson, Id. 267. In Jones v. Brown, 37 N. H.
439 it was held that although a husband had allowed a wife to retain and
oon^l personal property she had before marriage, he is entitled to admin-



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[Part IV.


Charles II., and the 25th section of the statate of 29 Charles IL
c. 3, in explanation thereof, and which have in snbstanoe been re-
enacted in New York (a) and the other states of the Union, the
husbands of femes covert who die intestate, have a right to ad-
minister npon their personal estate, and to recover and enjoy the
same. Under the statute, it is held, that the husband is entitled,
for his own benefits, jure mariti, to administer, and to take all
her chattels real, things in action, and every other species of per-
sonal property, whether reduced to possession, or contingent, or
recoverable only by suit (&). But if the wife leaves choses in
action not reduced to possession in the wife's life, the husband

will be liable for her debts dum sola, to that extent; for
[ * 186 ] those choses in action will be assets in his hands (c).'* *It

is also settled, that if the husband, who has survived his
wife, dies before he has recovered the choses in action, his repre-
sentatives are entitled to that species of property; and in New
York it would seem (though it would be contrary to the English
rule), that the right of administration follows the right of
the estate, and is to be granted to the next of kin of the hus-
band; and the representatives of the husband, who administer
upon the assets of the wife remaining unadministered, are liable
for her debts to her creditorp, in preference to the creditors of


(a) K Y. Revised StatutcB, vol. ii. p. 75, sec. 29. Ibid. 98, sec. 79.

(6) Whitaker v. Whitaker, 6 Johns. Rep. 112. The statate of 29 Charles
II., ch. 3, sec. 25, left the effects of femes covert as at common law; and the
right of the hnshand, at common law, was not only to administer, but to en-
joy exclusively ^he effects of his deceased wife. 2 Blacks. Com. 515, 516.
Hoskins v. Miller, 2 Dev. N. C. Rep. 360. It seems to he the settled rule,
that if the husband is reduced to the necessity of suing either at law or in
equity in order to recover his deceased wife's choses in action, he must first
administer on her estate and sue in the capacity of administrator.

(c) Heard v. Stanford, 3 P. Wms. 409, 411. Oaaea temp. Talb. 173, S. C.
He is only liable as administrator on the estate of the wife for her debts, to
the extent of the assets received by him. N. Y. Beviaed StatuteSy vol. ii. p. 75.


istration and to keep the balance. It would also seem that his representa-
tives are entitled to choses in action not reduced into possession. Vestervelt
V, Gregg, 12 N. Y. 206; Valence v. Bausch, 28 Barb. 633; Lee v. Wheeler, 4
Ga. 541. See Farrie's App., 23 Pa. St. 29, where it was held that a devise
of real and personal estate to a married woman for her sole and separate use
**not to be liable for her husband's debts, hot subject to curtesy or any legal
estate or material rights " did not exclude his right to administration undei
the intestate laws.

'^ If he takes out letters of administration, he will be presumed to have
assets in his hands sufficient to satisfy her debts and will be liable therefor.
New York Rev. Stat 5 ed. vol. 3, ch. 6, sec. 29. If he intermeddles with
the estate without taking out administration he will be liable for her debts.
Lockwood V. Stockholm, 11 Paige, 87.


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the hasband (a)." So, if after the husband has administered in
part on his wife's estate, and dies, and administration de bonis
non of the wife should be obtained by a third person, or by the
next of kin of the wife, he would be deemed a mere trustee for
the representatives of the husband (b).^

It has been considerably discussed in. the books, by what title
the husband, surviving his wife, takes her choaes in action. It
has often been said, that he takes by the statute of distributions
AS her next of kin. But, from the language of the English courts,
it would seem t-o be more proper to say, that he takes under the
statute of distributions aa httsband, with a right in that capacity
to administer for his own benefit; for in the ordinary sense,
neither the husband nor wife can be said to be Tiext of kin to the
other (c)."*

What will amount to a change of property in action belonging
to the wife, so as to prevent it from going back to the wife in
case she survives her husband, was discussed in the case of
Schuyler v. Hoyle (d).^ It was there shown, that the husband
may assign, for a valuable consideration, his wife's choaes in
ac^^m to a creditor, free from the wife's contingent
*right of survivorship. The doctrine that the husband [ * 137 ]
may assign the wife's chose in action for a valuable con-
sideratioQ, and thereby bar her of her right of survivorship in
the debt, but subject, nevertheless, to the wife's equity, has been
frequently declared, and is understood to be the rule best sus-
tained by authority. Such an appropriation of the property is
the exercise of an act of ownership for a valuable purpose, and
aa actual appropriation of the chattel which the husband had a

(a) New York Reviged Sfaiuiea, vol. ii. p. 75, sec. 20.

(6) BiUier'8 noU, 304, to lib. 3, Co, LitL Elliott v. Collier, 3 Aik. Rep. 526.
Spencer, J., 6 Johns. Rep, 118. 1 Hagg, Eccl. Rep, 341. Betts v. EimptoD,
2 £. <fr Adolphus, 273. See, also. Hunter v. Hallett, 1 Edw, Ch, Rep. 388, and
infra, p. 411, 412.

(e) 3 Keaey, 246, 247. 14 Ibid. 381, 382. 15 Tkid, 537. 18 Ibid. 49, 55, 56.

(d) 5 Johu. Ch. Rep, 196.

^ Id Ohio the hasband is not next of km to his wife. Dixon v. Dixon, 7
Ohio St. 432; Hoop v. Plnmmer, 14 Id. 448.

"In Ohio he cannot collect a legacy in his own right, aocmin^ to the wife
doling coverture; after the decease of the wife he must administer and ao-
connt to the creditors and the heirs. Curry v. Fullerton, 14 Ohio, 100.

*• See upon the subject ffenerally, Harleston v. Lynch, 1 Desau. ch. 244;
^ogmv, Krebs, 6 Har. & John. 31; Hammond v. Steer, 2 Gill & John. 81.

'^See note 17 ante. The taking of the dividends of stock standing in her
name does not reduce the stock into possession. Burr v. Sherman, 3 Bradf.
(N. y.) 85, ^^



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to make (a).^ But a volantary assignment bj the hnsbani
wife's choaes in action without consideration, will not bin<
! she survives him (b)" The rule is, that if the husban<
Qts an attorney to receive the money, and he receives ii
he mortgages the wife's chosea in action^ or assigns ther
at reservation, for a 'Valuable consideration, or if he recover
3bt by a suit in his own name, or if he releases the debt; i
3se cases, upon his death, the right of survivorship in th
JO the property, ceases. And if the husband obtains a judg
or decree, as to money to which he was entitled in rigl
wife, and the suit was in his own name alone, the properf
in him by the recovery, and is so changed as to take awa

the right of survivorship in the wife. If the suit wa
8 ] in their joint names, and he died ^before he had re

duced the property to possession, the wife as survivoi
[ take the benefit of recovery (c).^ It is settled, that in
1 chancery, by the husband, to recover a legacy, or distribc
bare due to the wife, she must be made a party with hin
[len the court vriU require the husband to make a snitabl
iion for the vnfe out of the property. The court bf chan

::;ftrteret v. Paschal, 3 P. Wms, 197. Bates v. ]>and7, 2 Aik. Rep. 20<

3 EusseVs Sep, 65, note. Jewson v. Moulson, 2 Atk. 417. Earl (
iry r. Newton, 1 Eden's Rep, 370. Sir William Grant, in Mitford i
i, 9 Vesey^ 87. Johnson v. Johnson, 1 Jack. <fc Walk. 456. Schuyler i

above cited. Kenny v. Udall, 5 Johm. Ch. Rep. 464, S. C. 5 Cbiwiw'
YI. Siter and Another, Guardians of Jordan. 4 Rawle's Rep. 468. I
3t case the. assisniment was sustained, not strictly as an assignmen
duable consideration enuring to the husband, but on the very meri

ground that the assignment of the wife's chose in action to trustee
' the benefit of her and her child. It was a reasonable anticipatio
tlement, of a provision for the wile's equity, and valid in equitj

the fund was not reduced to possession before the execution of th

Jumet «. Kinnaston, 2 Vem. Rep. 401. Sir William Grant, in Mit
Mitford, 9 Vesey, 87. Sir Thomas Plumer, in Johnson v. Johnson,

Walk. 456. Jewson v. Moulson, 2 Atk. Rep. 4SsO. Saddington t
an, 1 Bro. 44. Hartman v. Dowdel, 1 Rawle^s Rep. 279.
lilliard v. Hambridge, AUe%n^8 Rep. 36. Lord Hardwicke, in Gai
. Bradley, 2 Vesey^ 675. M'Dowl v. Charles, 6 Johns. Ch. Rep. 132.
Iinson V. Johnson, 1 Jac. & Walk. 456; Jewson v. Moulson, 2 Atk. 417

r. Udall, 5 John. Ch. 464; S. C. 3 Cow. 590; Krumbaar v. Burt, ;
C. C. 406; Lodge v. Hamilton, 2 Sergt. <& R. 325; Ashley v. Ashley
rer, 553.

imper v. Barber, 5 Madd. 157; Cassell v. Carroll, 11 Wheat. 134; Sear
Searing, 4 Paige 283; Tritt's Admr. v. C)lwell, 31 Pa. 228; Webb'
n Pa. 248; Westervelt t;. Gregg, 12 N. Y. (2 Kern) 202; SmiUes' App.

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 23 of 108)