a purchaser who is willing to pay the uttermost farthing, and only asks for a compliance with the solemn agreement of the ancestor? We do not set up this defence by way of defalcation or set-off, but insist on a defect of consideration as to part of the lands.

Messrs. M. Levy and J. B. M'Kean for the plaintiff. This point was slightly mentioned at the trial, and the sole question is, whether the plaintiff or defendants shall be turned round to seek redress from the executor of Patrick Colvin? The defence set up cannot operate by way of set-off, because unliqudated damages are not objects of defalcation.

Every thing in contemplation of the parties shall be presumed to have been inserted in a written contract. In the case of Langhorne Biles's mortgage, there is an express agreement that the vendee shall retain 500l. in order to discharge it; and if it was intended that he should also retain against the possibility of dower, it was equally natural to provide for that event. These bonds were made payable in 1794, 1795, and 1796, unconditionally, and if they had been regularly paid at the periods affixed, the present difficulty would not have occured. By remissness and breach of contract, Morris ought not to be put in a better situation than if he had fairly complied with his engagement.

In 1 Dall. 15, the right of dower existed at the time of the sale, but here was a mere possibility of the wife's surviving the husband, an event which has taken place since the mortgage and bonds were assigned. Can this right of dower be valued with accuracy? How long is it to be assumed that the widow will live? The vendee has a certain and complete action against the representative of Patrick Colvin on his covenant, to which he should resort; but the present attempt is calculated to throw all the burthen on one devisee, against the spirit of the common law, and the true principles of equal justice. If such future contingent interests are permitted to embarrass the honest assignees of bonds, when the obligor has his full remedy elsewhere, few persons will hazard the taking of assign

ments.

In Hamington v. Rudyard and wife already cited, the suit was brought against the administrator of the obligor, which greatly varies it from the present case. It is hoped that the court will not give the vendee an advantage which it was his own folly and negligence not to provide for in the written contract. If he should exclaim durum est, the ready answer presents itself, ita lex est scripta. The mortgagee has done what was in his power to guard against his wife's dower, by the devise in his will failing therein his estate should be responsible, not his innocent assignee.

The court said, the assignee took the assignments at his own peril, and stood precisely in the same situation as Patrick Colvin himself. The present is no more than the common case of bonds taken for the consideration of lands sold, and assigned, where part of the lands have been evicted by an adverse title, wherein juries have always allowed to the obligor the value of the lands recovered. There can be no recovery where the whole consideration of a bond totally fails; and the same principle applies where the consideration fails in part, pro tanto.

New trial awarded.

PETER ZUBER against CHRISTOPHER GEIGAR.

Verdict not warranted by the evidence set aside, and a new trial granted.

MR. LEWIS for the defendant, obtained a rule to show cause why a new trial should not be granted.

The cause had been tried on the 27th September last, at Reading, before Yeates and Smith, Justices, and the former made the following report of the evidence given at the trial:

It was admitted, that about the year 1785, Geigar sold a tract of land in Robeson township, Berks county, to Zuber, for 40007.; and that the latter being wholly unable to comply with his contract, executed to the former two bonds for 250l. each, with security, in May 1787, as a compensation of his damages.

On the 11th June 1793, a judgment was entered up on one of the bonds, which was afterwards assigned over to one William Lewis, the son-in-law of Geigar, in the same year Geigar commiserating the case of Zuber, told a friend of his that he should call on him, and he would transfer him a tract of land in Northumberland county, to make up in some measure his loss. Zuber called accordingly, and received from Geigar a patent to enable a scrivener to draw a conveyance thereof to him, which was afterwards prepared, and Zuber paid 158. for the drawing thereof.

In the month of December following, and before the deed was offer ed to Geigar to be executed, Zuber made an affidavit of defence to the judgment entered up, and insisted that a loose receipt which he had for 907. should be credited on the obligation over and above a receipt indorsed on the bond for the same sum, and bearing the same date. The cause came on to be tried at the ensuing May term when the jury were fully satisfied that only one payment of 90%. had

been made; and disallowed by their verdict the loose receipt. Geigar dissatisfied with and irritated at the dishonest attempt of Zuber, refused to execute to him the conveyance for the Northumberland tract; and for this breach of contract Zuber brought special assumpsit to recover damages.

No evidence was given to the jury of the value of this tract of land, its quantity, or part of the county wherein it lay.

The court observed to the jury, that exclusive of difficulty of giving damages for not conveying lands, of the value whereof nothing appeared, another object of consideration presented itself, whether the conduct of Zuber did not dispense with the performance of the gratuitous promise made by Geigar. The engagements in the nature of the thing must have been founded on motives of compassion, and made under a firm confidence that the two bonds would be discharged without further difficulty, and without attacking Geigar's reputation, by an unjust charge of fraudulently witholding a credit of 90l. It was true, the paying for the drawing of the deed was a loss to Zuber, and therefore a sufficient consideration for support. ing the promise; yet his proper conduct might discharge the party therefrom, or at least would in good conscience materially reduce the damages recoverable thereon.

The jury however found a verdict for the plaintiff for 180l. 6s. 3d. damages, and handed a paper to the clerk of the court (which was produced on the motion) whereby it appeared, that each juror had put down a sum in figures from 500l. to 57. the aggregate whereof divided by 12, had produced a quotient, which resuited in their verdict.

On hearing of this statement, Mr. Hallowel of counsel for the plaintiff, candidly admitted, that the want of evidence as to the value of the tract of land in Northumberland county, was an insuperable defect, and that the jurors' mode of adjusting their verdict, in a matter of property, was highly dangerous in itself, and not to be justified; whereupon the rule for granting a new trial was made absolute.

RUTH PERIT, executrix of PELATIAH WEBSTER against SAMUEL

WALLIS.

Where goods levied on have not been removed by the sheriff, though they remained unsold above two years the plaintiff does not lose his lien.

A TESTATUM fieri facias issued in this cause, to Northumber land county, returnable to March term 1797, on which the defendants' real personal property was leived. A venditioni exponas issued to September term 1797, returned "no buyers." An alias venditioni issued to September term 1798, returned “sale postponed at the plaintiff's risk," and a pluries venditioni afterwards issued to last September term.

Moses Levy, esq. obtained a testatum fi. fa. to March term last, against the same defendant in the same county, on which part of the same personal property was again levied, and in persuance of a writ of venditioni exponas returnable to this term, the same was sold by the sheriff.

Messrs. Ingersoll and Lewis moved, that the money arising on the sales should be paid over to the first execution creditor, the personal property being bound by the delivery of the writ to the sheriff. This case is the same as that decided in Swift et al. v. Hartman; and in Cox v. M'Dougal, determined last term, the cir cumstances were stronger, for there the plaintiff requested the sheriff, that the goods and household furniture might remain in the defendant's hands; and yet after a delay of going on exceeding fif teen months, the plaintiff's prior lien was recognized by this court, and the moneys ordered to be paid to him.

Messrs. Dallas and W. Tilghman, e contra. The leaving of the goods in hands of the debtor tends to defraud others, and is a cir cumstance which shall postpone the creditor. 1 Wils. 44. It is within the principle of a bill of sale being deemed fraudulent when the possession of the articles is retained by the vendor. Such possession is presumptive evidence of fraud, and it is incumbent on the first execution creditor who permits it, to remove this legal presumption.

By the court. We must be consistent in our determinations, otherwise the utmost uncertainty would ensue. A sheriff levying on a debtor's personal estate is an act of notoriety, and is not to be compared to the case of a private bill of sale, which is generally transacted in secret. Our own customs must govern with respect to executions and the effects of a levy on goods not removed. If a sheriff here would insist on removing goods immediately

after they were levied on, though security was offered for their being produced when demanded, it would create a just and general outcry against his cruelty. The cases of Hartman v. M'Dougall are precisely in point, and binding on us. Wherefore, let the surplus of the property, after paying the costs of sale, be paid over to the first execution creditor.

JOHN ROBINSON against JOHN MARTIN and DAVID ROBINSON, executors of WILLIAM ROBINSON.

A child dying intestate without wife or child, the father takes all his personal estate. A legatee dying before the testator his legacy is lapsed; and where a residue is devised to several though some of them are not executors, and there are no words pointing to a tenancy in common, and one of them dies in testator's life-time, his share shall survive.

Divers devises in one will of the same thing, the last devise shall take place.

THE following case was submitted to the decision of Yeates and Smith, Justices, at the last court of Nisi Prius held at Harrisburgh for Dauphin county, in October last, by Mr. Hamilton for the plaintiff, and Mr. C. Smith for the defendant.

William Robinson, the testator, by his last will, dated the 12th June 1790, names therein his seven sons; 1. James, to whom he devises 207. and afterwards erases the same; 2. Hugh, to whom he devises 107.; 3. John, to whom he devises 107. and three bonds. which he owed his father; 4. Alexander, to whom he devises 57.; 5. David, to whom he devises the one half of his real estate in fee simple, the other half to go to sale; 6. William, to whom he devises 57.; 7. Joseph, a son by a second venter, to whom he devises a legacy of 607. bequeathed to his wife, the mother of the said Joseph, by her father, John Caldwell, &c.-and also his four daughters; 1. Margaret, married to Robert Carnahan, to whom he devises 487. due to him by her husband; 2. Mary, married to Croshier, to whom he devises 1. and the interest of a bond for 277., including what is due thereon, the principal thereof to be divided equally between her two sons; 3. Elizabeth, to whom he devises 307., 4. Jean, to whom. he devises 407. with the privilege of having her home free while she remained single.

Then come the following clauses in the will;"Item, I will, that if any of my legatecs die without natural heir, that my bequeathments return into my family, to whom they please. And further, I also allow my personal estate, either by vendue or otherwise, and then what ready money is made, be equally divided among my legatees, by equal proportions, at the discretion of my executors. And futher, I allow, that what my estate, personal or real, shall overmount these my bequeathments, that then the overplus shall fall to