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officer," in § 5, were inserted by the legislature.] Original note to § 4. "According to practice." To 5. "See note to § 7."

[$ 6, 7. Same as enacted, except that in § 7, the words "shall specify whether a bond has been executed pursuant to the foregoing provision or not, and," after "friend," were not adopted by the legislature.]

Original note. "In the 19th section of the act concerning executors, &c. (1 R. L., 315), is a provision that no suit shall be brought by a next friend, for an infant, in pursuance of that act, without a previous bond to account. The provision is valuable, and such as appears to the Revisers ought to be extended to all cases for the recovery of any debt or damages."

[S 8 not enacted; § 9 to 13. Same as § 8 to 12 R. S.] Original note. "The last six sections are conformable to practice.'

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"TITLE III.-Of suits by and against executors and administrators, and against heirs, devisees and legatees."

"ARTICLE I.-Of writs by and against executors and administrators."

[$ 2. Same as § 4 R. S.]

Original note. "Declaratory; see Tidd, 59, 60. In case of an action upon a promise to pay a debt or legacy, it is conceived that it is brought against them rather in their individual than their representative character, and therefore, in respect to such actions, they stand upon the same footing as other persons. For this reason, that case is omitted."

[S 4. Same as § 6 R. S.]

Original note. "This is deemed a necessary qualification of the preceding section, as the suffering a judgment by default is an admission of assets that cannot be controverted, 1 J. C., 276, and the other executors may, by their pleading, conclude the whole, on the question of assets. The provision is probably within the equity of the present act, but its explicit declaration is believed to be useful."

[$ 5, 6. Same as § 7, 8 R. S.]

Original note. "New. By the provisions of Title 3 of chapter 6 of the 2d part Revised Statutes, § 41, plaintiffs are denied costs, in certain cases, against executors, and the policy of the whole chapter is, to induce creditors to an amicable adjustment, without the aid of courts of law. And there may be cases, where there is no representative of a deceased person, against whom an action may be brought. It is but just, that during this period of suspense, the creditors should not lose his rights, by having the statute of limitations attach on his demand. The term of eighteen months has been selected as a reasonable time, because the executor is allowed one year to settle the estate, and a short time should be added for the delay that may occur in the proving a will or taking out letters."

[S 7. Same as § 9 R. S.] Original note. "Upon the same principle as the preceding section, to allow a reasonable time for an executor to ascertain the evidence of demands in favor of the testator."

[S 8. Same as 10 R. S.] Original note. "This is § 42 of Title 3 of Ch. 6, 2d Part R. S., and is inserted here, as falling more properly within the title of this article. It will be expunged from Ch. 6, if adopted here."

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[S 9. Same as § 11 R. S., except that the words "or defend," after maintain," were stricken out by the legislature.] Original note. "This section flows from $45, Title 2, Ch. 6, 2d Part R. S., which directs letters of administration to be granted on the death of an executor; but it is deemed useful to declare this effect explicitly."

[S 10, 11. Same as § 12, 13, R. S.] Original note to § 11. "New. In such a case a scire facias is believed to be wholly unnecessary." $ 12 as reported; enacted with material variations § 14, 15, 16 R. S. riginal note. "In 12 J. R., 121, the supreme court held that the liability of executors, &c., was to be determined by reference to the inventory. That rule has been adopted in the above section, with a modification which seems as just to creditors, as it will be salutary in restraining executors."

[S 13. Same as § 18 R. S.]

Original note. "By $ 60, Title 2, of Chapter 6, 2d Part R. S., executors de son tort, as they are called, are deprived of the right of retaining for any debt to them. The effect is to abolish the office, if it can be called such, as, in truth, he will be in no better situation than any trespasser. It is deemed useful, however, to declare it explicitly."

[S 14. Same as enacted § 18 R. S.] Original note. "§ 9, 1 R. L., 313, extended to writs of error, according to the decision of the court of errors, in Dale vs. Roosevelt, in 1826."

"ARTICLE IL-Of suits by and against legatees, and against next of kin, heirs and devisees, and between heirs and devisees."

[S 15. Same as § 19 R. S.] Original note. "1 R. L., 315, varied by substituting referees, for the convenience of applying to them the provisions of law respecting references."

[S 16, 17, 18. Same as $20, 21, 22 R. S.] Original note to § 18. "Varied from the former law by giving a new action, rather than a re-summons or a scire facias."

[S 19. Same as § 23 R. S.]

Original note. "By § 43 of Title 3 of Chapter 6, Second Part R. S., an action is given to creditors of a deceased person, to recover assets that may have been paid to legatees and next of kin. It is conceived that the creditor should be enabled to prosecute any one of the next of kin, for the property received, or all of them jointly."

[$ 20. Same as § 24 R. S.]

Original note. "To enable a plaintiff to collect his debt of those brought into court, instead of apportioning among each. It would seem unjust to compel him to incur the risk of the solvency of all the relatives. By a subsequent section, provision is made to enable a relative to compel contribution by the others."

[S 21 to 24. Same as § 25 to 28 R. S.]

Original note. "The rule proposed in the above section, is different from that in § 20, concerning next of kin, on the ground that the plaintiff should make the apportionment among the legatees himself. If the distinction is not approved, the words of section 20 may be substituted."

[S 25, 26, 27. Same as § 29, 30, 31 R. S.] Original note. "These provisions are all new, as is the subject itself; they are framed in

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analogy to those of article 3 of Title 5 of Chapter 6, Third Part R. S., p. 50."

[S 28. Same as § 32 R. S.]

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Original note. "$ 1, 1 R. L., 316. As estates held in trust are descendible; ( 4, 1 R. L., 74, and Chap. 1, 2d Part;) and as they may be devised, (§ 21, Ch. 2, 2d Part, and § 2, Title 1, Ch. 6,) it is conceived they will be sufficiently described by the terms used in this section."

[S 29 to 32. Same as § 33 to 36 R. S.]

Original note. "No principle can be better settled at the common law, than this, that the personal estate is the first and immediate fund for the payment of debts. And unless the personal estate be expressly exonerated, it must be first applied to the payment of a debt charged on land, (1 Cruise Dig., 73, 74, pl. 61, 64; 2 J. Ch. Rep., 614.) And yet it has been held that the heir could not plead assets in the hands of the executor, (1 And., pl. 13, Dyer, 204, Fitz. Execution, 163;) contrary to the opinion of Coke, 2 Inst., 442, and to 7 Ed., 4, 13.”

[S 33. Same as § 37 R. S.] Original note. "In conformity to § 27, Title 3, Ch. 6, of 2d Part R. S., relative to executors; and as a substitute for latter part of § 1, 1 R. L., 317.”

[S 36. Same as § 40 R. S.]

Original note. "The two last sections are in conformity to § 31 of Title 2 of Chapter 6 of the 2d Part. It is believed that the same principle of an equitable distribution among creditors, should prevail in suits against heirs and devisees, as in suits against executors. They are equally trustees of the property of the deceased, and they ought not to be permitted to give a preference to one creditor over another." [S 37. Same as § 41 R. S., except that the words "under a notice for that purpose," after "payment," were stricken out by the legislature.] Original note. "It seems doubtful whether payment to other creditors, even to the value of the land descended, would avail an heir, Kielway, 63; Comyn's Pleader, 2 E., 1. Contra Strange, 665. The above section is drawn to settle this rule, and to conform to the principles of the preceding sections."

[S 38. Same as § 42 R. S.]

Original note. "When there are numerous heirs, it will frequently save expense to allow of one suit against all; and it will save the necessity of a suit by one heir against the others, to compel contribution; see 5 J. Ch. Rep., 235. This section is conformable to the rule of the common law, which requires that if the suit be against an heir in gavelkind, it shall be against all the sons together; Comyn's Pleader, 2 E., 1."

[$ 39. Same as § 43 R. S.] Original note. "The term 'personal' omitted, as the action is necessarily personal."

[S 40. Same as § 45 R. S.]

Original note. "Part of 4, varied in requiring the plaintiff to specify, so that there may be evidence of the land claimed to be charged, in order to give effect to subsequent provisions."

[S 42. Same as enacted § 47 R. S., except that the words "the court shall decree," were substituted for "judgment shall be rendered,” as reported.]

Original note. "New. The latter part, as to the effect of a confession, declaratory, see Comyn's Digest, Pleader, 2 E., 1, extended so as to declare the law also in all cases where the land has not been aliened. In those cases, it follows from the first section of the act, that the heir is not personally responsible, but that the property itself is the fund for the payment of the debt."

[$ 43, enacted § 48 R. S., with such alterations as to make it applicable to the court of chancery.]

Original note. "New. In case of conflicting judgments, one against him as heir, and one for his own debt, it is conceived that the debt of the ancestor should be first paid. A legislative declaration seems useful."

[S 44, 45. Same as § 49, 50 R. S., except in last that the words "may plead and give in evidence," were reported, instead of "may shew," as enacted.] Original note to § 45. "Declaratory."

[$ 49. Same as § 52 R. S. Original note. "This should follow, if an action is allowed against them jointly, as just in itself, and calculated to save the expense of subsequent suits to compel contribution." [$ 50, 51. Same as § 53, 54 R. S., except that the word "decree" substituted by the legislature for "judgment," wherever occurring.] Original note to § 51. "Latter part of § 6, 1 R, L., 318, varied in conformity to the decision of the supreme court, in 6 Cowen, 50; and the language of the provision altered accordingly, as the execution must correspond with the judgment."

[$ 52. Same as § 55 R. S., except that the word "solicitor" was substituted by the legislature for "attorney."] Original note. "Necessary to carry out the preceding section."

[S 53, 54. Same as § 56, 57 R. S.]

Original note. "It is conceived that devisees ought not to be called on, until the lands descended, and of which the testator has made no disposition, are exhausted; for the very fact of a devise shows a preference by the testator. And this is conformable to the rule in equity, 3 P. Wm., 367; 3 Atkins, 556; 8 Vesey, 124. The two last sections adopt and carry out this principle."

[S 55 to 58. Same as § 58 to 61 R. S.]

Original note to § 58. "1 R. L., 317, § 5, extended so as to declare the effect of an alienation by a devisee, according to what would probably be the construction of the present act, although perhaps contrary to the policy of the original English act, 3 W. and M., ch. 14."

[S 59 to 63. Same as enacted § 62 to 66 R. S.] Original note. "These sections prepared to carry out the provisions."

"TITLE IV.—Of proceedings by and against corporations, and public bodies having certain corporate powers, and by and against officers representing

them."

"ARTICLE I.-Of proceedings by and against corporations, in courts of law." [S1. Same as enacted.] Original note. "New. See 4 J. Ch. R., 370; 6 Cowen, 46."

[2. Same as enacted.] Original note. "Intended to reach a case noticed in 4 J. Ch. Rep., 370, and to prevent the violation of our restraining laws by corporations of neighboring states."

[S 3. Same as enacted, except that the words "created by or under any statute of this state," were inserted by the legislature.]

Original note. "In 8 J. Rep., 378, 14 do., 238, 416, the supreme court determined that corporations, in all cases where the general issue was pleaded, must, on the trial, prove their existence. This is extremely burthensome, and frequently expensive; and in almost every case wholly useless, as the fact of the plaintiffs' being a corporation is very rarely a ground of defense. When it is so, it is so easy for the defendant to plead it, that it is proposed to require such proof only, when the fact is put in issue."

IS 5, 6, 7, 8. Same as enacted, except that in § 8, the words "together with a copy of the declaration," were inserted by the legislature.] Original note to 8. "See 6 Cowen, 41."

[S 9, 10. Same as enacted. Original note to § 10. "New.”

[S 12. Same as enacted.] Original note. "§ 3, of act of 1818, p. 243, varied so as to give a construction to the provision different from that of the supreme court in 4 Cowen, 161. It is conceived that damages at the rate of 17 per cent would be exorbitant, and calculated to defeat the policy of the act.”

[S 13. Same as enacted.] Original note. "New; proposed to save prolixity in pleading, and to settle a doubt which now exists. See 1 Chitty Pl., 218. Bac. Abr. Statute (L.) 1 J. C., 132."

[S14. Same as enacted.] Original note. "This question has excited much discussion, and is probably in doubt. See 2d Cowen, 770. It is proposed to place corporations on the same ground in this respect as individuals. See 1 Strange, 556; 2d Ld. Raymond, 1541." IS 17 to 30. Same as enacted.]

Original note. "In 16 J. Rep., p. 5, it was decided that an attachment does not lie against a foreign corporation, under the absent debtor act; and it has been recently decided in the court of chancery, and affirmed on appeal, and that court has no jurisdiction to attach the property of such corporation. These bodies are becoming very numerous, and are carrying on an extensive business in this state. The fair protection of our own citizens requires that some provision should be made to render such corporations amenable to our laws, and in our own courts. The preceding sections have therefore been drawn in analogy to the provisions in Chapter V. Title I., of the Second Part, R. S., against absent debtors. The variations introduced are in favor of the corporations: 1st. In requiring security for costs: and 2d. In providing for the publication of a notice, before the attachment can issue. It is questionable whether the latter provision should not be so modified as to authorize the issuing an attachment at once."

ARTICLE II.-Of proceedings against corporations in equity.”

[S 31. Same as enacted.]

Original note. "The proceedings at law by quo warranto or scire facias, are so dilatory, that much mischief will generally be done before judgment can be obtained; and are so expensive, that a summary remedy seems absolutely necessary. Ch. Kent held, in 2 J. Ch. Rep., 391, that the court did not possess the power proposed to be given in the preceding section."

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