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Actions by and against Executors.

75. Tennessee.-An executor or administrator | 82. Although no suit can be maintained in the is not liable in a judgment beyond the assets to courts of Massachusetts by a foreign executor be administered, unless he pleads a false plea. or administrator, unless he has taken out letters Siglar et al. v. Haywood, 8 Wheat. 675; 5 Cond. of administration in that state, yet this principle Rep. 553. does not apply unless he sues in right of the de ceased. Trecothick v. Austin, 4 Mason's C. C. R. 16.

76. If he fail to sustain his plea of plene administravit, it is not necessarily a false plea, within his own knowledge; and if it be found against him, the verdict ought to be for the amount of assets unadministered, and the defendant is liable for that sum only. Ibid.

77. In such a case the judgment is de bonis testatoris, and not de bonis propriis. Ibid.

78. By statutes 8 and 9 W. III., ch. 11, if either party die after interlocutory, and before final judgment, a scire facias to complete the proceedings shall issue by or against the executor or administrator; but upon this statute the final judgment is entered by or against the executor or administrator, and not against the original party. Under this statute it has been adjudged, that the plaintiff must sue out two successive writs of scire facias to entitle himself to take out execution; one before final judgment, to make the executors or administrators parties to the record; the other after final judgment, to give them an opportunity of pleading want of assets, or any other matter which an executor may plead in his defence to a scire facias brought upon a final judgment against his testator: for it would be unreasonable that the executor or administrator should be in a worse situation, where his testator or intestate died before final judgment, than he would have been, had he died after. Hatch v. Eustis, 1 Gallis. C. C. R. 160.

79. The act of congress, of September 24th, 1789, ch. 20, provides that in any suit in a court of the United States, where either party shall die before final judgment, his executor or administrator, in case the cause of action shall by law survive, shall have full power to prosecute and defend the same until final judgment, and the court is authorized to hear and determine the same, and to render judgment for or against the executor or administrator, as the case may require. And if on scire facias, such executor or administrator shall refuse to appear, final judgment may be entered against the estate of the deceased party, in the same manner as if the executor or administrator had voluntarily made himself party to the suit. Ibid.

80. This statute embraces all cases of death before final judgment, and of course is more extensive than the statutes of 17 Car. II., and 8 and 9 W. III. The death may happen before or after plea pleaded, before or after issue joined, before or after verdict, or before or after interlocutory judgment: and in all these cases, the proceedings are to be exactly as if the executor or administrator were a voluntary party to the suit. Ibid.

81. Massachusetts.-Neither the general statute of limitations, nor the statute of limitations of Massachusetts as to executors and administrators, binds the United States, in a suit brought in the circuit court, and of course neither can be pleaded in bar of such suit. United States v. Hoar, Adm'r, &c., 2 Mason, 311.

83. If he sues in his own right, although the right be derived under a foreign will, no administration need be taken out in Massachusetts, if it does not affect real estate passed by the will in that state. Ibid.

84. District of Columbia.-An administrator having had letters of administration in Mary. land, before the cession of the District of Columbia, cannot, after the cession, maintain an action in the District by virtue of those letters, but must take out new letters within the District. Fenwick v. Sear's Administrators, 1 Cranch, 259; 1 Cond. Rep. 310.

85. A. L. brought an action of assumpsit in the circuit court of Virginia, and after issue joined the plaintiff died; and the suit was revived by scire facias in the name of the administratrix. While the suit was pending, the administratrix intermarried with F. A. which marriage was pleaded puis darrein continuance. Held, that the scire facias was thereon abated, and a new scire facias might be issued to revive the original suit in the name of F. A. and wife, as the personal representative of A. L., to enable her to prosecute the suit to final judgment under the 31st section of the judiciary act of 1789, ch. 20. 1 Story's L. U. S. 55. M'Coul v. Le Kamp's Adm'r, 2 Wheaton, 111; 4 Cond. Rep. 58.

86. Massachusetts.-The pendency of a commission of insolvency, is no bar to a scire facias against an administrator, on a judgment had against him. Hatch v. Eustis, 1 Gallis. C. C. R. 160.

87. If, after verdict and before judgment, the defendant die, and his administrator become party to the suit, and judgment pass against him, and execution issue thereon, and be returned unsatisfied; on scire facias against the administrator, he may well plead no assets, or insolvency, for he had no time to plead such plea in the original suit. Ibid.

88. Massachusetts.-Where an administrator sues as such, and he is a citizen of the same state as the defendant, the circuit court of the United States has no jurisdiction, although the intestate was a citizen of another state. An administrator is in such case the real, and not the nominal party. Dodge, Executor, v. Perkins, 4 Mason, C. C. R. 435.

89. Although no suit can be maintained in the courts of Massachusetts by a foreign executor or administrator, unless he has taken out letters of administration in that state, yet this principle does not apply unless he sues in right of the deceased. Trecothick v. Austin, 4 Mason, C. C. R. 16.

90. If he sues in his own right, although the right be derived under a foreign will, no administration need be taken out in Massachusetts, if it does not affect real estate passed by the will in that state. Ibid.

Administration of Assets by an Executor or Administrator.-Expatriation.

91. Mississippi. After the recovery of a judg ment by an administrator, it is not necessary in a suit upon the judgment that he shall sue as administrator, the debt on the judgment being due to him personally; and if in such suit he shall name himself as administrator, it will be surplusage. Biddle, Adm'r, v. Wilkins, 1 Peters, 686.

3. Administration of Assets by an Executor or Administrator.

3. The general doctrine is, that no persons can, by any act of their own, without the consent of the government, put off their allegiance and become aliens. Shanks v. Dupont, 3 Peters, 246.

6. The doctrine of perpetual allegiance is not applied by the British courts to the American ante nati; and the court, in the case of Blight's Lessee v. Rochester, 7 Wheat. 544; 5 Cond. Rep. 535, adopted the same rule with respect to the rights of British subjects here: that although born before the revolution, they are equally incapable with those born subsequent to that event of inheriting or transmitting the inheritance of lands in this country. Inglis v. The Sailors' Snug Harbour, 3 Peters, 99.

4. The American citizen who goes to a foreign country, although he owes local and temporary allegiance to that country, yet, if he performs no other act changing his condition, is entitled to the protection of his own government: and if, without the violation of any municipal law, he should 92. The executor or administrator cannot dis- be oppressed, he would have a right to claim charge his own debt in preference to others of that protection, and the interposition of the gosuperior dignity, though he may give the prefer-vernment in his favour. Murray v. The Charm ence to his own over others of equal degree. In ing Betsey, 2 Cranch, 64; 1 Cond. Rep. 358. some of the states this rule would not apply, as 5. A subject cannot divest himself of the ob in them there is no difference made in the pay-ligation of a citizen, and wantonly make a comment of debts between a bond and simple con- pact with the enemy of his country, stipulating tract debt. Page v. Patton et al., 5 Peters, 304. a neutrality of his conduct; but he may enter 93. Page was indebted at the time of his de-into an engagement on a capitulation, if his gocease, to Patton, three thousand pounds and up-vernment is no longer able to protect him. Mil wards, which was covered by a deed of trust on ler v. The Ship Resolution, 2 Dall. 10. Mansfield, one of Page's estates. The executors of Page refusing to act, Patton, in 1803, took out administration with the will annexed, and gave securities for the performance of his duties. Patton made sales of the personal estate for cash, and on a credit of twelve months, and received various sums of money from the same; he made disbursements in payment of debts and expenses for the support and education of the children of Page, and in advance to the legatees. He kept his administration accounts in a book provided for the purpose, entering his receipts 7. The right of election must necessarily exist and disbursements for the estate, but not bring-in all revolutions like that of America, and is ing his own debt and interest into the account. In 1810, he put the items of his account into the hands of counsel, and requested him to introduce the deed of trust "as he might think proper;" and an account as administrator was made out, in which the principal and interest of Patton's debt was entered as the first item. Afterwards, in the same year, by order of court, the real estate was sold, and Patton received the proceeds of the same. Held, that the sum due under the deed of trust to Patton should be charged on the funds arising from the sale of the real estate and that having omitted to retain from the proceeds of the personal estate the sum due to him by Page, Patton could not afterwards charge the same against the legal assets, being the fund produced by the personal estate. Ibid.

EXPATRIATION.

1. Query, Whether a citizen of the United States, independently of legislative action on the subject, can throw off his allegiance to his native country. The Santissima Trinidad, 7 Wheat. 283; 5 Cond. Rep. 284.

2. If this may be done, it never can be, without a bona fide change of domicil; nor for fraudulent purposes; nor to justify the commission of a crime against the country, or any violation of its laws. Ibid.

well established by adjudged cases. Ibid. 122.

8. The supreme court, in the case of Millvaine's Lessee v. Coxe, 4 Cranch, 211; 2 Cond. Rep. 86, fully recognised the right of election; but they considered that Mr. Coxe had lost that right by remaining in the state of New Jersey, not only after she had declared herself a sove reign state, but after she had passed laws by which she declared him to be a member of, and in allegiance to the new government. Ibid. 124.

9. A citizen of the United States cannot dissolve the compact between him and his country, without the consent and default of the commu nity. Wilson, Justice, 4 Hall's Law Journal, 361.

10. A native citizen of the United States cannot throw off his allegiance to the government, without an act of congress authorizing the same. United States v. Gillies, Peters' C. C. R. 159.

11. One who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes, by those acts, such evidence of an intention to reside there, as to stamp him with the national character of the state in which he resides. The Venus, 8 Cranch, 278; 3 Cond. Rep. 109.

12. In questions on this subject, the chief point to be considered, is, the animus manendi; and courts are to devise such reasonable rules of evidence as may establish the fact of intention. If it sufficiently appears that the intention of removing was to make a permanent settle ment, or for an indefinite time, the right of do

Expired and Repealed Statutes.—Ex post facto Laws.

micil is acquired by a residence of even a few days. Ibid.

13. The national character, which a man acquires by residence, may be thrown off at pleasure, by a return to his native country, or even by turning his back on the country in which he has resided, on his way to another. It is an adventitious character gained by residence, and which ceases by non-residence. It no longer adheres to the party, from the moment he puts himself in motion, bona fide, to quit the country, sine animo revertendi. The Venus, 8 Cranch, 253; 3 Cond. Rep. 100.

19. Query, If an American born citizen can expatriate himself? If he can, e divests himself by the very act of expatriation, as well of the obligations, as of the rights of a citizen. He becomes, ipso facto, an alien. His lands are escheatable, and the rights appertaining to citizenship cannot be recovered by residence, but he must go through the formula prescribed by law for a naturalized citizen. The Santissima Trinidad, 1 Brockenb. C. C. R. 478.

EXPIRED AND REPEALED STATUTES.

20. But, whether the right of expatriation exists or not, an American citizen may, under the modern usage of nations, enter either the 14. If any thing short of actual removal be land or naval service of a foreign country, withadmitted to work a change in the national cha-out compromising the neutrality of his own, or racter, acquired by residence, the evidence of a divesting himself of his citizenship. Ibid. bona fide intention to remove should be such as to leave no doubt of its sincerity. Mere declarations of such an intention ought never to be relied on, when contradicted, or at least rendered doubtful, by a continuance of residence. They may have been made to deceive, or, if sincerely made, they may never be executed; the party may change his determination. Ibid. 15. It seems that where a native citizen of the United States emigrated, before a declaration of war, to a neutral country, there acquired a domicil, and afterwards returned to the United States during the war, and reacquired his native domicil, he became a redintegrated American citizen, and could not afterwards, flagrante bello, acquire a neutral domicil by again emigrating to his adopted country. The Dos Hermanos, 2 Wheat. 76; 4 Cond. Rep. 39.

16. The native character does not revert by a mere return to his native country, of a merchant who is domiciled in a neutral country at the time of capture, who afterwards leaves his commercial establishment in the neutral country, to be conducted by his clerks in his absence, who visits his native country merely on mercantile business, with an intention of returning to his adopted country: but the neutral domicil still continues. The Friendschaft, 2 Wheat. 14; 4 Cond. Rep. 189.

1. An offence against a temporary statute can. not be punished after the expiration of the act, unless a particular provision be made for that purpose. The Irresistible, 7 Wheat. 551; 5 Cond. Rep. 343.

2. The proviso in repealing the clause of the neutrality act of 20th April, 1818, did not authorize a forfeiture under the act of 3d March, 1817, which was included in the repeal, after its own limitation. Ibid. the time when that act would have expired by

3. One guilty of perjury under the bankrupt law, cannot be prosecuted for the offence after the repeal of the law. United States v. Passmore, 4 Dall. 371.

4. If the law under which the sentence of the sentence of the court below, and before final condemnation was pronounced, be repealed after sentence in the appellate court, no sentence of condemnation can be pronounced, unless some special provision be made for that purpose by statute. Yeaton et al. v. The United States, 5 Cranch, 281; 2 Cond. Rep. 256.

5. No sentence of condemnation can be af

17. Whether an American citizen may, inde-firmed, if the law under which the forfeiture pendently of any legislative act to that effect, and sale had taken place, and the money had accrued has expired, although a condemnation throw off his allegiance to his native country or been paid over to the United States before the not, it at least cannot be done without a bona fide change of domicil. It can never be asserted expiration of the law. The Rachel v. The United as a cover for fraud, or as a justification of the States, 6 Cranch, 329; 2 Cond. Rep. 388. commission of a crime against the country, or for a violation of its laws, where this appears to be the intention of the act. The Santissima Trinidad, 7 Wheat. 283; 5 Cond. Rep. 284.

EX POST FACTO LAWS.

18. On the 4th of October, 1776, the state of 1. The state legislatures can pass no ex post New Jersey was completely a sovereign and in- facto law. An ex post facto law is one which dependent state, and had a right to compel the renders an act punishable in a manner in which inhabitants to become citizens thereof. One it was not punishable when it was committed. born in the colony of New Jersey before 1775, Such a law may inflict penalties upon the perand residing there until 1777, but who then son, or may inflict pecuniary penalties which joined the British army, and ever since adhered swell the public treasury. The legislature is to the British, claiming to be a British subject, then prohibited from passing a law by which a and demanding and receiving compensation from man's estate, or any part of it, shall be seized that government, for his loyalty and sufferings for a crime, which was not declared by some as a refugee, has a right to take lands by descent previous law to render him liable to that punishin New Jersey. MIlvaine v. Coxe's Lessee, 4 ment. Fletcher v. Peck, 6 Cranch, 87; 2 Cond Cranch, 209; 2 Cond. Rep. 86. Rep. 208.

172.

Ex post facto Laws.-Extent.-Extinguishment.

before the court of probate, and an appeal to the superior court. Afterwards the will of N. M. was confirmed by the court of probate, and by the superior court at Hartford; and on an appeal to the supreme court of errors of Connecticut, the judgment of the superior court was confirm

2. The prohibition in the federal constitution of the ex post facto laws, extends to penal statutes only, and does not extend to cases affecting only the civil rights of individuals. Calder et ux. v. Bull et ux., 3 Dall. 386; 1 Cond. Rep. 3. A law that punishes a citizen for an inno-ed. More than eighteen months had elapsed cent action, or, in other words, for an act which, when done, was a violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause, or a law that takes property from A, and gives it to D, is contrary to the first great principles of the social compact, and cannot be considered as a rightful exercise of legislative authority. The genius, the nature, the spirit of our state governments, amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. Ibid.

4. If any act of congress or of the legislature of a state violates the constitutional provisions, it is unquestionably void; if, on the other hand, the legislature of the Union, or of any member of the Union, shall pass a law within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the opinion of natural justice. If the legislature pursue the authority delegated to them, their acts are valid; if they transgress the boundaries of that authority, their acts are invalid. Ibid.

5. A law may be unconstitutional, and of course void, in relation to particular cases, and yet valid to all intents and purposes in its application to other cases within the scope of its provisions, but varying from the former in particular circumstances. Thus a law prospective in its operation, under which a contract afterwards made, may be avoided in a way different from that provided by the parties, would be clearly constitutional, because the stipulations of the parties, which are inconsistent with such a law, never had a legal existence, and of course could not be impaired by the law. But if the law act retrospectively as to other contracts, so as to impair their obligation, the law is invalid, or in milder terms, affords no rule of decision in these latter cases. Golden v. Prince, 3 Wash. C. C. R.

313.

6. There is nothing in the constitution of the United States which forbids congress to pass laws violating the obligation of contracts, though such power is denied to the several states. Evans v. Eaton, Peters' C. C. R. 322.

from the first decree of the court of probate, during which the right of appeal had been lost; and there was no law of Connecticut, before the passing of the special act of the legislature, by which a new hearing of the case could have been obtained. Held, that the act of May, 1795, was not an ex post facto law, prohibited by the constitution of the United States. Ibid.

9. An ex post facto law is one which, in its operation, makes that criminal or penal, which was not so when the action was performed; or which increases the punishment; or which, in relation to the offence and its consequences, alters the situation of the party to his disadvan tage. The United States v. Hall, 2 Wash. C. C. R. 366.

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10. The clause in the United States' constitu tion, concerning ex post facto laws, does not ex tend to civil rights or remedies. Society, &c., v. Wheeler, 2 Gallis. C. C. R. 138.

11. Subsequent to the execution of an embargo bond, on the 9th of January, 1809, congress passed a supplement to the embargo law, by which other and additional penalties were imposed; and the circumstances under which the obligor in any bond given under the act of the 22d of December, 1807, could obtain relief, were changed. The court said, they would never consider the latter act as applying to previous facts, unless such construction should be abso lutely unavoidable. The United States v. Hall and Worth, 6 Cranch, 171; 2 Cond. Rep. 340

EXTENT.

An extent upon real estate under the statute of Massachusetts of 1784, is not good, unless it appear by the return that all the appraisers were sworn; nor unless all the appraisers concur in the appraisement. But it is not necessary to the validity of the levy, as between the parties and their privies, that the levy should be recorded within the three months prescribed by the statute; nor that a certificate of the appraise ment should be made and signed by the ap 7. A resolution or law of the state of Connect-praisers. It is sufficient that the officer's return icut, setting aside a decree of a court, and granting a new trial to be had before the same court, is not void under the constitution as an ex post facto law. Calder and Wife v. Bull and Wife, 3 Dall. 386; 1 Cond. Rep. 172.

8. The legislature of Connecticut, on the second Thursday of May, 1795, passed a resolution or law, which set aside a decree of the court of probate for Hartford county, made 21st of March, 1793, disapproving of the will of N. M., and refusing to record the will. The act of the legislature authorized a new hearing of the case

contains all the facts necessary to make the levy valid. The United States v. Šlade, 2 Mason's C

C. R. 71.

EXTINGUISHMENT.

1. It is a settled doctrine, that the acceptance of a negotiable note for an antecedent debt, will not extinguish the debt, unless it is expressly agreed that it is received as payment. Peter v. Beverly, 10 Peters, 532.

Extinguishment.

2. Unity of possession does not extinguish the | principal and sureties, may be maintained at the right to use a watercourse appurtenant to a mill. same time. Walton v. The United States, 9 Wheat. Hazard v. Robinson, 3 Mason's C. C. R. 272. 651; 5 Cond. Rep. 717.

3. A judgment in a state court is conclusive in every other state, and extinguishes the original ground of action. Green v. Sarmiento, 1 Peters' C. C. R. 74.

4. When two or more persons are liable for a simple contract debt, a judgment obtained against one, is an extinguishment of the claim on the other debtors; in the same manner as a bond given by one of two persons for the simple contract debt, is an extinguishment of the original debt. Willings et al. v. Consequa, 1 Peters' C. C. R. 302.

5. A release of one or two joint obligors extinguished the obligation; and equity will not relieve in such a case, although it is most apparent the extinguishment was not intended by the parties. Ibid.

6. But it is not meant to concede that when two persons are indebted by simple contract, and the note of one for the amount of the debt is taken by the creditor, it is in all cases necessary to the discharge of the other, to prove an express agreement to accept the note in satisfaction. The agreement may be inferred from the operation of the new contract, or from circumstances clearly indicating that such was the intention of the parties. Harris & Donaldson v. Lindsay, 4 Wash. C. C. R. 271.

7. An action cannot be maintained on an original contract for goods sold and delivered by a person who has received a note as a conditional payment, and has passed away that note. Harris v. Johnston, 3 Cranch, 311; 1 Cond. Rep.

543.

13. Where higher security is given by the debtor, prima facie, the law presumes it intended as an extinguishment of the debt. Aliter, where it is the bond of a third person. United States v. Lyman, 1 Mason's C. C. R. 482.

14. If the vendor of property accept of a note or bill in satisfaction of his debt, he cannot sue his original debtor, provided there was no fraud or unfairness on the part of the vendee. Parker v. The United States, 1 Peters' C. C. R. 262. 15. If the vendor without an agreement to receive the note of the vendee in payment, take such note and transfer it, his right of action on the contract of sale is taken away as long as the note is out of his possession; and he can only sue on the contract when he gets back the note, and has it in his power to return it to the vendee. Ibid.

16. A bond given to secure the payment of duties on imported goods is not an extinguishment of the debt, but merely security for the payment. United States v. Lyman, 1 Mason's C. C. R. 482. United States v. Ashley, where it was held, that though both partners in a firm were bound on the importation of goods, for the duties, yet a bond given by one, extinguished this obligation, and made it his separate debt. Ibid.

17. The reception of a bond for duties on merchandise imported, does not extinguish the debt of the importer to the United States for the duties. Meridith et al. v. The United States, 13 Peters, 486.

18. Where the endorsed notes of A became 8. A covenant, under seal, to come to a settle- due, and were taken up at the banks, and new ment within a limited time, and to pay the ba- notes signed by A, and B his partner, and enlance which might be found due, is merely col-dorsed, were received by the banks in their lateral, and cannot be pleaded as an extinguish stead: it was held, that by such substitution ment of a simple contract debt; the period with- the old notes were extinguished. Russell v. in which the settlement was to be made having Perkins, 1 Mason's C. C. R. 368. elapsed before the commencement of the suit, and the plea not averring that any such settle ment had been made. Baits v. Peters, 9 Wheat. 556; 5 Cond. Rep. 675.

19. Taking of a bill of exchange is, at most, only prima facie evidence of a satisfaction and extinguishment of an antecedent debt. Query, How far even this is to be relied on, as a gen9. A security under seal extinguishes a sim-eral presumption in foreign states? A copy of ple contract debt, because it is of a higher order the protest for non-acceptance need not accomand nature. Bank of Columbia v. Patterson's pany the notice of dishonour. It is sufficient Adm'r, 7 Cranch, 299; 2 Cond. Rep. 501. to produce it at the time. Wallace v. Agry, 4 Mason's C. C. R. 386.

10. But this effect has never been allowed to a sealed instrument, which merely recognises an existing debt, and provides a method of ascertaining its amount and liquidation. Ibid.

11. The obligation of a contract is not fulfilled by a cessio bonorum. The parties have not merely in view the property in possession, at the time the contract was formed, but its obligation extends to future acquisitions. Sturges v. Crowninshield, 4 Wheat. 122; 4 Cond. Rep. 409.

12. The official bond given by a receiver of public moneys, does not extinguish the simple contract debt arising from a balance of account due from him to the United States. An action of assumpsit for the balance of account, and an action of debt upon the bond against the

20. If the vendor of lands, takes a negotiable note from the vendee, endorsed by a third person, payable at a future time by instalments, this is such a distinct security, as extinguishes the lien on the land for the purchase money. Gilman v. Brown, 1 Mason's C. C. R. 192.

21. The official bond given by a receiver of public moneys, does not extinguish the simple contract debt arising from a balance of account due from him to the United States; if such bond is not given for the balance due, it is a collateral security for the faithful performance of the official duties of the officer; and an action may be brought for the recovery of the balance on the account; and an action of debt

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