in the meantime, the legacy upon the authority of precedent, as well as upon principle, vested in the legatee immediately upon the death of the testator.

Ibid.

24. And an administrator does not occupy a more favorable position in regard to the payment of a legacy thus bequeathed, than his intestate did, and cannot therefore be allowed to urge an objection to the payment to the intestate while living; which would not have been available if made by the intestate himself. So when a legatee in his life-time has received the full amount of such legacy, the discretion of the executor, exercised in the payment cannot be impeached by the personal representative of the legatee.

See Guardian and Ward-Will.

Ibid.

DISCONTINUANCE.

1. A suit is discontinued unless it appear from the record to have been continued by the court or by operation of law.

Kenon v. Bell, A. R. 98. 2. After a case had stood open many terms without any proceedings or continuances-defendant by affidavit continued it; this was a waiver of the discontinuance by operation of law.

Kennedy v. adm'r. Jackson, A. R. 137. 3. When an entry of continuance is omitted in the record, in order to sustain a judgment it will be inferred that the case was continued by operation of law. Clemens v. Judson, A. R, 395. Mendenhall v. Smith, A. R. 380.

}

4. When discontinuance is not allowable as to one of several parties, there must be an alias and a pluries.

Kennedy v. Russel & Patton, A. R. 77. 5. If a writ is executed on two, but a plaintiff discontinues as to one and takes judgment against the other, no advantage can be taken on error, unless the defendant make the objection below.

Roberts v. Johnson, 1 S. 13. 6. A discontinuance as to one of several joint obligors who has been served, is a discontinuance as to all-aliter, if not served.

}

Adkins et al. v. Allen, 130. Smith & Hill v. Cobb, 1 S. 62. Sadler, et al. v. Houston & Gillaspie, 5 S. & P. 206. 7. Discontinuance under statute may be entered in justices court as to parties not served with process, and may be entered in the circuit court after an appeal. Wade et al. v. Robinson, 1 S. 423. 8. On notice issued by State Bank against several defendants, judgment may be rendered against one only on whom the notice was served, and no discontinuance is necessary as to those not served.

Lyon v. State Bank, 1 S. 442. 9. Writ against three, service on two, and judgment against the two-this is error without a discontinuance as to one not served.

Williams et al. v. Lewis, 1 S. 41.

10. The statute 1818, authorizing discontinuances as to joint defendants, returned not found, extends to action against joint indorsers.

Martin v. Townsend, 2 S. 329,

11. In an action on a certificate of the Portland Town Company, not being within the statute of 1818, a discontinuance as to one returned " not found, is a discontinuance as to all, and such discontinuance is good cause of demurThompson v. Saffold, et al. 2 S. 494. 12. When the indorsee of a note sues the maker and indorser jointly under the statute 1828, defining the liabilities of indorsers-if he discontinue as to maker, he not being found, it is a discontinuance as to both.

rer.

Philips v. Jordon, 2 S. 38. 13. Writ against two, service on one- -the plaintiff has a right to discontinue as to the party not served, and proceed against the other, and it is sufficient if it is stated in the declaration.

McRae v. McMillian & Foster, 2 S. & P. 143.

14. In the practice of this State, a dismissal is like a discontinuance, and is not attended with the consequences of a retraxit at common law, and therefore a plea averring that a former action for the same cause had been pending and was dismissed, is not a good plea.

Bullock v. Perry, 2 S. & P. 320. 15. When declaration is filed against two defendants, only one of whom appears and pleads, and there is a regular continuance against each at every term down to the rendition of the verdict and judgment, against both-no discontinuance can be held to have operated.

Brooks & Brown v. Maltbie, 4 S. & P. 96.

16. A discontinuance as to a party not served with process, who is a joint contractor in a contract not embraced within the statute 1818, is error; for this act does not embrace the case of a co-defendant to joint contract in writing (not under seal) for the performance of work and labor.

Tindall v. Collins, sur. 2 P. 17.

17. When A and B being sued before a justice of the peace-A appeared and on oath denied the execution of the instrument, and judgment was rendered against B, who did not appear but carried the case by certiorari into the county court-held that filing a declaration againt B alone did not create a discontinuance. Skinner v. McCarty, 2 P. 19.

18. When the leading process in a cause against several defendants did not appear to have been executed on all, and all seemed from the record to have appeared by counsel-it was held that the judgment against all was not Gilbert et al. v. Lane, 3 P. 267.

error.

19. In proceedings against sheriff for not returning an execution, a discontinuance as to the sureties who were not served with notice is not necessary, and if made does not prejudice the proceedings against the sheriff.

Hill, Sheriff v. the State Bank, 5 P. 537. 20. In cases where plaintiff is authorized to discontinue, he may do so as to any of the defendants in his declaration, without an order of the court. Wheeler, et al. v. Bullard, 6 P. 352.

21. When several defendants are sued as co-partners, and it is ascertained that one of them is not a partner, it is the duty of the court before whom the suit is pending to discontinue such suit against such as appear not to be partners; and the plaintiff in such case may discontinue at such time as he may think expedient, as he is the individual to be benefitted by the statute.

Ibid.

22. The statute of this State which authorizes a discontinuance in certain cases where defendants are sued jointly, and who are not served with the writ, does not require that a declaration shall make a literal disclosure of the cause of action, as it may be shewn by the indorsement of the writ, or proof given at the trial. Gillaspie, et al. v. Wesson, 7 P. 454. 23. The rule that a plaintiff cannot discontinue his action against any one defendant who has been sued on a joint contract, has not been adopted in this

country to the extent which it prevails in England. The rule, however, never extended to cases where one or more defendants are discharged by matter subsequent to the contract, as in the case of bankruptcy. So, also, in the case of executors, one may be discharged on the plea of plene administravit-so on a joint plea of the statute of limitations—one defendant may be discharged and a verdict had as to the other. Ivey v. Gamble, 7 P. 545.

See Recognizance-Scire Facias-Corporations-Errors and Appeals.

DIVORCE.

1. A divorce a mensa et thoro, pronounced against husband, does not bar his right of curtesy. Rochon v. Lecatt, 2 S. 429. 2. Adultery charged in a bill for divorce, while not necessary to be established by direct testimony, should be shown by such facts as would lead to the inference as a necessary conclusion, that it had been committed. Richardson v. Richardson, 4 P. 467.

3. The admission or confession of adultery in an answer, cannot establish the adultery, or authorize chancery to decree in reference to it without proof of the fact—and this applies in both cases of divorce "a vinculo, or "a mensa et thoro." Ibid. 4. An adulterer cannot resist a sentence of divorce by setting up a desertion. Ibid.

5. Chancery will not award costs against a wife who files a bill for divorce, though she may be unable to prosecute the case to a successful issue, and it seems it will direct the husband to pay over to the prochein ami, funds sufficient to prosecute the suit to a final hearing, and will award the wife alimony pendente lite. Ibid.

See Trespass.

DOWER.

1. Certificate of board of commissioners confirming a claim to land under a Spanish warrant of survey, is evidence of an estate in which the widow is entitled to Dower. Shields v. Lyon, A. R. 278.

2. The authority given to the circuit and county court in relation to the allotment of dower, is not exclusive of the power of chancery to determine whether the husband held an estate of which the wife is dowable.

Gillespie et al. v. Sommerville, 3 S. & P. 447.

3. Although a widow in this state is to be endowed of lands held by her deceased husband, both under legal and equitable titles, yet it must be a perfect equity, and the right of dower does not extend to a mere naked equity.

Ibid.

4. When a purchase is made of land from the government on the credit system, or from commissioners of the town, taking a credit or bond for title

when the purchase money should be paid, and dies without completing payment therefor, his widow is not entitled to dower in the lands so purchased. Ibid.

5. The widow of an Indian is not dowable of lands selected by the husband under the treaty between the United States and the Creek tribe, of 24th March, 1832, and by him conveyed in conformity with that treaty to a purChinnubee v. Nicks, 3 P. 362.

chaser.

6. Under the operation of the statue of uses, a jointure made expressly in lieu of dower, barred the widow of her dower, but a devise or bequest will not unless expressly or impliedly so declared in the will, and in such case the widow is entitled to her election. Ex'rs. Green v. Green, 7 P. 19. 7. When no provision is made for the widow in the will of her husband, may claim dower without any express dissent from the will, and a petition for dower is a sufficient dissent, and is equivalent to an abandonment under the will.

she

Ibid.

8. The will intended to be remedied by the statute, (Aikins' Digest 132,) was the delay to which a demandant on dower was subjected at common law, and not the inadequacy of the common law remedy; and as the rights of all parties were carefully guarded at common law-so, under the statute, it is necessary in the petition or suggestion for the demandant to state who are the heirs and tenants of the freehold, and to avoid delay she may give them notice to appear and contest the claim; and the petition should set forth with reasonable certainty all the facts on which the claim rests; and semble, that if after notice, the heirs and terretenants do not appear, the facts should be spread upon the record, before the court will be sufficiently authorized to grant the prayer of the petition. Ex'rs of Green v. Green, 7 P. 19.

9. Notice to executor, that he may contest the claim of demandant, and public notice in the gazette, if demandant be herself executrix or administratrix, or there be no tenant in possession, or the person claiming the fee be not in reach of process, are also necessary parts of the proceeding; but semble the executor is not constituted a defendant to protect the rights of those who claim an interest in the freehold, nor can those interested be concluded by his action or by his failure to act.

Ibid.

10. The executor may show cause against the claim of the demandant to the personal estate of the deceased, by making known that the estate is not finally settled, or that there are outstanding debts, or by showing any claim he might have under the will, or that the land is a term and not a freehold; but for any other purpose, he has no right to contest the claim of the widow, and will be considered a mere volunteer; nevertheless, where he has been cited by process of the court to appear and contest the claim of the widow he cannot be amerced in costs.

Ibid.

11. A widow has no dower in lands purchased from the State, when partial payment have been made under the equity of the statute 1816, now obsolete, endowing widows in lands purchased from the United States, under like circumstances. Lewis et ux. v. Moorman, 7 P. 522.

12. By the statute authorizing the sale of lands granted by Congress, for internal improvement, the state cannot enforce its claim for the purchase money-but the land is forfeited by failure to pay, and reverts to the Statetherefore, there rests on the personal representatives of one who has thus purchased and failed to pay, no legal obligation to pay up the remaining instalments and a claim for dower cannot rest upon such a payment out of the assets of the estate.

1bid.

13. When the purchase money has been paid by a vendee to the State before his death, the widow is dowable though the title be not perfected at that time. Ibid.

14. What would be the right of a widow in a case where the husband left land on which a sum of money was due, which the executor was under a legal obligation to pay, is a question of the gravest import

Ibid.

DUELLING.

1. Since the statute 1819, giving a challange to fight a duel is not indictable, unless a combat ensues.

Smith v. State, 1 S. 506.

2. The statute 1807, punishing the offence of sending a challange is, as to that offence, repealed by the statute, 1819.

1bid. 3. The statute 1826, requiring attorneys to take an oath against duelling In the matters of J. L. Dorsey, 7 P. 293.

is unconstitutional.

DURESS.

1. When A, being arrested under legal process on a charge of felony, and to procure his discharge, executes a deed to B, and the arrest is not feigned and malicious, such deed cannot be avoided upon the ground of duress of imprisonment. Hatters ex'r. v. Greenlee, 1. P. 222.

2. Every illegal restraint of a man's liberty, is duress of imprisonment; and, when the warrant is regular and legal, if it appear that the arrest under it, has been procured under a false charge, without probable cause, and as a pretext to cover an illegal design, it will be duress. Ibid.

3. If one be confined legally, maltreatment while under arrest will be considered duress of imprisonment, so far as to invalidate any act produced by it.

Ibid.