Alexander v. Fink

Headnote

The marriage plaintiff,feafter befo'^the'day not "beheaded no^caiMt"be bo pleaded, puis darrein cmtinwmce, after a report of referees and before it is filed in court, in a ba“seb'JenChreferred under the statute; ingh the°rsam^ aSjoryCrdlCt °f

THIS case, involving the examination of long accounts, had been referred by order of the court under the statute. After the hearing before the referees, and after they had made their report, but before it was filed, the plaintiff intermarried with William Garvin; and the marriage was pleaded in abatement pu{s darrein continuance, x

And the question as to the validity of this plea was submitted 1 to the court. A case agreed on by the parties as to the facts _ .. _ , ' proved before the referees was also submitted, with the report of the referees in the cause, on a motion to set the report . , _ aside»

It appeared from the case, that in the winter of 1807, the defendant called on the intestate, William Alexander, and informed him that he had a large quantity of wheat for sale, and wished to know with whom the intestate stored his wheat in Albany, as he wished to send a part to be stored there for Alexander to^sell, and the residue he would bring to Alexander,' at the Little Falls, to be sent by him with his own wheat to-Albany, or New-York, for sale, and to credit the defendant with the nett proceeds. Alexander informed the defendant that he stored all his wheat with 'Messrs. Hugh and Hamilton Boyd; of Albany, who were his agents for storing and selling produce: and the -defendant then agreed to send part of his wheat to Messrs. Boyd, at Albany, and bring the rest to Alexander, to be sold, and have the nett proceeds placed to his credit. Several parcels of wheat were accordingly delivered to Alexander, who sent the

same with his own wheat to Messrs. Boyd at Albany, to be sold by them on his account. And on the 2d of September, 1807, the defendant gave to Alexander, a receipt of Hugh 8 H. Boyd, for 243 bushels of wheat; and directed Alexander to send on the wheat he had to Messrs. Boyd, and to have the whole sold, in the same manner as he, Alexander, had his own sold. Rankin 8 Iieyer, of New-York, were the general agents of Alexander, in New-York, and the proceeds of all sales of produce, or notes taken, were deposited with them for collection on his account. In September, 1807, Alexander directed Messrs. Boyd to send the wheat, about 1,200 bushels, including the wheat expressed in the receipt, to the defendant, to New-York, to be sold to the best advantage. In October, 1807, half of the wheat was sent to New-York by Messrs. Boyd, and not being able to sell it for cash, they sold it on a credit of sixty days,, to John Townsend, a person then in good credit, and took his note, payable to Ran• kin 8 Heyer, which was left with them for collection, and to account therefor to Alexander. In November, 1807, the residue of the wheat was sent by the Boyds to New-York, and sold for the same price to Townsend, then in good credit, at a credit of sixty days, who gave his note for the amount, payable to'Rankin 8 Heyer, with whom it was deposited for collection, for account of Alexander. It was proved that other persons sold wheat to Townsend, at the same time, for the same price, and on the same credit. Before the notes were due, Toimsend became wholly insolvent, and the notes were never paid,