Wiley v. Wiley.

obtaining a license therefor, and proceeding therein in the manner herinafter provided." In the following sections the mode of proceeding is pointed out, which is, a petition in the County or Superior Court of the county in which the executor or administrator qualified; and then follow the details of the plan for converting the real estate into assets. and the manner of administering them. It is contended for the defendants that this act does not apply to the case of an executor who has full power by the will to sell real as well as personal estate for the purpose of paying the debts of his testator, particularly when he has so acted as to put it out of his power to resort to the personal property for that purpose. This makes it necessary for us to consider what is the proper construction of the act. The firt rule laid down by Blackstone for the interpretation of a statute is, to consider what was the former law, the mischief, and the remedy: that is, how the law stood at the making of the act; what the mischief was for which the former law did not provide, and what remedy the Legislature hath provided to cure this mischief. 1 Black. Com., 87.

Before the passage of the act of 1846, which is now contained in the Rev. Code, ch. 46, a creditor of a decedent's estate had first to resort to and exhaust all the personal assets, and had then to proceed against the lands which had descended to the heirs, or passed to the devisees of the intestate or testator. The mode of proceeding was by means of a sci fa. against the heirs or devisees or both, and was in practice found to be very dilatory for the creditor, and always very expensive, and often ruinous to the estate of the decedent in the hands of the representatives.

Such was the state of the law and the mischief under it, when the act in question was passed. It provides a simple, speedy, and, comparatively, cheap plan for having a decedent's debts paid, first out of his personal property so far as it will

State v. Merritt.

go, and then out of the proceeds of the real estate, if it shonld be found necessary to resort to that.

When the executor has full power under the will to sell both kinds of property for the payment of debts, it is manifest that there is no necessity for him to call in the aid of the statute. As to the estate represented by him there did not exist any mischief under the former law, and we therefore conclude that the act of 1846 was not intended to apply to such a case as his. If this be so, then it is clear that if, in attempting to apply the personal assets first, to the payment of the debts of his testator as it is his duty to do. (Knight v. Knight, 6 Jon. Eq., 134,) they are lost, he cannot proceed under the act to obtain an order for the sale of the land. The loss must fall on him, unless there be equitable circumstances which entitle him to relief, and that can be given him in a Court of Equity only.

The demurrer was properly sustained in the court below, and the judgment must be affirmed.


Judgment affirmed.


An indiscriminate assault upon several persons is an assault upon each. The facts being that the gun in question was fired by one of two defendants, whilst the other was present aiding and abetting, Held, that a charge in the indictment that both committed the assault was thereby made good.

ASSAULT, with intent to kill, tried before his Honor, Barnes, J., at Fall Term, 1866, of DUPLIN.

The indictment charged that both of the defendants made an assault upon Lipman Aarons, with an intent to kill him.

State v. Merritt.

The evidence showed that whilst Aarons and his wife, daughter and son, were sitting one night upon the front piazza of his house, during the fall of 1866, a gun was fired at them, the shot passing between them, and lodging in the wall of the house. The other evidence consisted of circumstances and confessions, and showed that the defendants were together at the time the gun was shot by one of them. Under the charge of his Honor the jury found the defendants guilty; and thereupon, having moved for a new trial unsuccessfully, and having been sentenced, they appealed.

Attorney General, for the State.

No counsel for the defendants.

READE, J. There was no specific instruction prayed for, and no specific exception taken below or in this court. Weare therefore left to collect from the whole of the Judge's charge and from the record, whether there was any error. Only two questions seem to be involved:

1. Whether an indiscriminate assault upon several is an assault upon each individual? Very clearly it is.

2. Whether when a gun is fired by one defendant, and the other is present aiding and abetting, the shooting may be charged to have been done by both? the act of both, and it may be so charged. Let it be certified that there is no error.


The act of one is

There is no error

Crawford. The Bank of Wilmington.


The return of a sheriff upon process served on the officer of a corporation need not designate the office filled by such person: In any event such return is cured by judgment.


The stay law of September, 1861, under which a defendant was not compelled to plead for twelve months from the return term," did not excuse him from entering an appearance at such return term, and then asking for time to plead.

A cause of action on bank bills does not accrue until a demand and refusal. Bank bills bear interest only from the time of demand and refusal. (Davis v. Shaver, and Sharpe v. Rintels, ante, 18 and 34, cited and approved.)

MOTION to set aside a judgment, allowed by Barnes, J., at Fall Term, 1866, of the Superior Court of WAYNE.

The complainant had sued out a writ in assumpsit against the defendant, returnable to Fall Term, 1864, and the return by the sheriff was, "To hand, August 30th, 1864, served a copy of the within on Col. John McRae." At the return term a judgment was taken by default final, for an amouut which covered the principal and interest of the bank notes sued upon, counting interest from the dates at which such notes had been issued, (4th April, 1856,) instead of the time at which they had been protested, (5th March, 1864.) Upon this judgment execution had issued, and been levied on land belonging to the defendant.

At Spring Term, 1866, motions were made to set aside the execution; to set aside the judgment by default; to reform the judgment, and to retax the costs. These motions having been continued to Fall Term, 1866, the last was not then pressed, and, upon consideration of the others, his Honor declined to grant the motion to set aside the execution, but allowed the motion to set aside the judgment.

From this order only an appeal was taken by the complainant, and as thereby the other motions were not brought be

Crawford. The Bank of Wilmington.

fore this court, only so much of the statement is given above as relates to the motion to set aside the judgment.

Strong, for the complainant.

1. The object of the statute (Code, p. 137, s. 24,) is to prevent a general return, and to let the complainant know on whom the writ was served, so that he can determine upon the propriety of such service. Its words are, "an officer,"

and not what officer.


2. The stay law of September, 1861, does not excuse from appearance, which is a different thing from pleading. The former law required defendants to appear, and plead, (Code, c. 31, s. 57.) This law excuses only from the latter. has been the uniform practice in the case of executors, &c., who wished time to plead, and the language of the act in their case is identical with that under consideration; compare Code, c. 46, s. 33, and Stat., c. 10, s. 3, 2d extra session, 1861.

3. That stay law was unconstitutional; for it granted delay whether necessary in the particular case or not, and, upon its own principle, might as well have granted it for ten years as for one. Besides, it drew a distinction between suits to recover interest and those to recover principal. The former law as to the time of entering pleas has existed since the last century. Sections 10, 16 and 19 show its unconstitutionality upon their face. Jones v. Crittenden, 1 Car. Law Repos., 385; Barnes v. Barnes, 8 Jon., 366.

4. This judgment therefore being regular, cannot be set aside, Davis v. Shaver, ante, 18; Sharpe v. Rintels, ibid, 34; Tidd 1, 568.

Person, for the defendant.

BATTLE, J. This was a motion to set aside a judgment taken by default in the Superior Court of Wayne, and was

« ElőzőTovább »