Page 2. The day laid in the declaration on a parol contract, is not material on evidence. Stout v. Rassel. 3. Judgment in dower reversed on error, after writ of seisin executed for want of a declaration. Ritchie et al., in error, v. Hastings. 4. Narr. in covenant on a general warranty of lands, stating that the defendant had no title at the time of sale, that an ejectment had been brought against plaintiff by a stranger, of which he gave the defendant notice, and that he had been afterwards evicted in due course of law, held sufficient on demurrer. Swenk v. Stout. 5. Narr. in trover, by an administrator, for a deed of land in Berk's county, good after verdict, though the names of the parties thereto, or the nature of the estate, or the situation of the lands, or their value, are not set forth. Weiser, in error, v. Zeisinger's administrator. DEEDS. (See Conveyances.) DEFALCATION, SET-OFF. 1. Debts which can be set-off, must be such as are due in the same right. Darroch's executors v. Hay's administrators. 2. In a suit by executors against executors, where due notice has been given, a demand in consequence of the plaintiffs, as executors, selling lands held in partnership between the two testators by agreement, may be given in evidence by way of set-off: aliter, where such_notice has not been given nor the matter pleaded. Boyd's executor v. Thompson's executors. HEIR. DESCENT. 934 433 470 537 208 217 1. Under the act of 1705, the real estate of a mother is subject to the same rules of distribution as that of a father dying intestate. Eshelman's lessee v. Hoke. 509 2. Collateral warranty, with sufficient real assets descending to heirs, will bar them from recovering the lands warranted. ib. DEVISE. 1. Devise of four tracts of land to I. his eldest son, provided he pays to the executors 3000l. at certain periods, with power to the executors to sell three of the tracts on I.'s default; I. enters therein, the executors sell two of the tracts, and the third, having been mortgaged by the testator, is sold by process of law: the devisee is liable to pay the difference between, the net amount of sales, and the 30007., and interest. Rushton's executors v. Rushton. 2. And the personal estate of testator shall not go in ease of the mortgaged premises, so far as to defeat the specific, or ascertained pecuniary legacies, or any part thereof: aliter, of the legacies of the residuum. 3. By a devise "to nephews and nieces of every description mentioned in the will," of the residue of the testator's estate, "the children" of nephews and nieces, and denominated as such in the will, shall not take; nor shall a niece by marriage. Lewis v. Lewis's ex'rs. 4 "Touching such worldly estate wherewith it hath pleased God to bless me in this life, I give, demise, and dispose as follows: I give to my brother H. now in Ireland, or his heirs, 200 acres of patented land at W. as mentioned in the patent of 300 acres, and the other undivided 100 acres I leave to my nephew B. according to the judgment of my executors in dividing the same." B. takes an estate in fee, the lands being wholly woodland and unimproved. Caldwell's lessee v. Ferguson. 54 ib. 196 250, 380 5. Devise "of real estate to a daughter, her heirs and assigns forever, but if she shall die without issue, the executor to sell the lands, and after the decease of the widow, divide the proceeds of the sale equally among the testator's nephews." The daughter marries, and has issue, which dies; the husband surviving her shall be tenant by the curtesy. Buchannan's lessee v. Sheffer et al. 6. Devise of an improvement, in 1745, without words of inheritance, will vest the devisee with all the the testator's interest in the lands. Green's lessee v. Creamer et al. 874 378 Page 7. Devise of several tracts of land to several children, their heirs and assigns forever: but if either of the children should die without issue lawfully begotten, then each and every of their respective shares shall be equally divided amongst the survivors; adjudged that the devisees took estate tail, and the remainders over are too remote to take effect as executory devises. Haines's lessee v. Witmer. 8. Divers devises in one will of the same thing; the last devise shall take place. Robinson v. Robinson's ex'rs. 9. Devise of lands to trustees, to the use of his wife during life, and after her death, to five children as tenants in common; but if any of them should die before his wife's decease, their shares to go to their legal representa tives, according to the common law, or as modified by the law of the states wherein they are respectively situated; one of the children died in the testators's life, and his wife survived him: the share of the child so dying is not a lapsed devise, but goes over to her legal representatives, who take as purchasers; and her brother of the whole blood will inherit her share, she dynig in 1786, and her father in 1797. Ware's lessee v. Fisher et al. DISTRIBUTION. (See Intestate.) DIVORCE. 1. On a libel for a divorce from bed and board, the facts when contested, shall be tried by the court, per testes. Carre v. Carre. 490 525 578 207 2. A marriage had, and the first husband being in full life, a second marriage of the woman is merely void, though her first husband has been absent eight or nine years. Kenley v. Kenley. 207 DOWER (AND ELECTION.) 1. Wife not entitled to dower of lands held under warrant, and sold by her husband in 1755. Dodson v. Davis. 168 2. Assignment of his lands by one in insolvent circumstances, to trustees for payment of debts, will not bar his widow's right of dower. Keller v. Michael. 300 3. Where a devise to a widow is absolutely inconsistent with, and repugnant to her claim of dower, she shall be put to her election; which shall be determined by plain and explicit acts, under a full knowledge of the circumstances of the testator, and of her own rights. Duncan v. Duncan's ex'rs. 802 4. Devise of lands to a wife, during widowhood, is a bar of dower, though not so expressed. Hamilton v. Buckwalter. 5. Devise by testator to his wife, not expressed to be in lieu of dower, and where her claim of dower is not inconsistent with and repugnant to the devise, she is entitled to her dower. Sample v. Sample. 389 433 6. Dower will lie of lands held by improvement right alone. Kelly v. Mahan. 515 E EJECTMENT, OF ACTION. 1. In ejectment against a purchaser of the lands of tenant in tail under com. missioner's sales, the heir in tail, after the death of the immediate devisee, need only show the will under which the lands were held, and is not obliged to produce the previous title. Miller's lessee v. Wilson. 2. Landlord cannot support an ejectment against his lessee, without a forfeit ure of his lease. Penn's lessee v. Divellin. 3. Ejectment will not lie for a mere privilege, or incorporeal hereditament. Blacks's lessee v. Hepburn et al. 4. In ejectment, under an agreement for the purchase of lands, the vendor may by his own act dispense with the tender of bonds, but the vendee must bring the consideration money into court before he can obtain a verdict. Minsker's lessee v. Morrison. 881 344 5. The jus possessionis is in sheriff's vendee, where the debtor was in possession of the lands at the time of the levy and sale. Culbertson's lessee v. Martin. 448 6. Settlers of lands under the act of 3d April 1792, must obtain surveys before they can recover in ejectment. Dawson's lessee v. M'Laughlin. 446 ELECTION. Page 1. Where a devise to a widow is absolutely inconsistent with and repugnant to her claim of dower, she shall be put to her election; which shall be determined by plain and explicit acts, under a full knowledge of the circumstances of the testator, and of her own rights. Duncan v. Duncan's ex'rs. 302 2. Where the implication is strong and necessary, that the wife shall not have both the devise and dower, or where the devise is inconsistent with her claim, she shall be put to her election. Hamilton v. Buckwalter. 3. Where one is bound to do an act, or pay money at a day certain, though after the day the election of the obligor is gene at law, yet in a hard case equity, it seems, would relieve. Wilson's adm'rs. v. Lewis et al. ERROR, WRIT OF ERROR. 1. Court, on error, will not reverse a judgment entered in the Common Pleas, where no rule to plead had been entered, and it did not appear when the declaration was filed. Melchior, in error, v. Ralston. 2. Writ of error will not lie on the dissolution of a foreign attachment by the court below; nor on many summary proceedings, as discharging a defendant on common bail, moderating bail, receiving justification of bail, &c.-So in the case of a privileged person held to bail on an arrest. Miller, in error v. Spreeher. ESTATE, REAL AND PERSONAL. 1. Personal estate of testator shall not go in ease of mortgaged premises devis- ESTATE TAIL. (See Devise, No. 7. Contingent Remainder, No. 2. Convey- ESTREPEMENT. 1. Writ of estrepement does not issue of course; but must be founded on an affidavit. But on application to a judge in vacation, he may direct the rule. Dickinson's lessee v. Nicholson. EVIDENCE. 389 466 154 162 54 261 281 1. The court will go great lengths in receiving evidence in the case of frauds. Shaw v. Wallis. 17 2. An executor, defendant, is a competent witness to prove the state of papers offered in evidence, when he found them, and where they were found, from the necessity of the case. Luken's ex'rs v. Dehaas's ex'rs. $7 3. But papers, purporting to be cancelled bonds, cannot be received in evidence without proof that they once existed as bonds. ib. 4. On the plea of payment to a bond, with leave, &c., evidence shall not be received to overhaul a report of referees, confirmed by a court of competent jurisdiction. M'Pherson's administrators v. Hamilton. 5. In a debt on a judgment, by executors, defendants shall not give in evidence, under the plea of payment that the plaintiff's testator had renounced his interest in certain lands of the defendants', and that his devisees have since sold part of them. Lukens v. Callender's executors. 6. Certificate of the surveyor general and receiver general, not on oath, respecting the practice of the land office, no evidence. Lowrey's lessee v. Gibson. 7. Vacating warrants have generally issued under special equitable circumstances, which will be presumed, after a lenght of possession, without positive evidence. 40 71 81 ib. 8. Order of the board of property, respecting the survey under which one of the parties claims, may be read in evidence, though the caveat was filed by a third person. Dunning's lessee v. Washmudt. 85 9. Recital in a sheriff's deed no evidence of his authority to sell lands, unless the judgment is produced, and also the executions, since 26th March 1785. Wilson's lessee v. M'Veagh, 86 Page 10. Declarations of the surveyor general shall not be given in evidence, respecting the return of a survey. Drinker's lessee v. Holliday. 8 11. Field notes, draft, or return of survey, are mere evidences of a survey; the actual lines run on the ground constitute the survey. ib. 89 12. Where one has sold the same lands, to different persons, his expressions before the second sale are evidence against the second vendee; aliter, of his declarations of what passed between him and such second vendee. Steward's lessee v. Richardson. 13. No vendor's declarations can be received in evidence to invalidate his own act; yet independent facts may be proved, or the expressions of the parties to show a suppressio veri or allegatio falsi, though every concealment will not invalidate a contract. 89 ib. 91 14. A deposition in pursuance of a rule of court, shall be read in evidence, without proof of notice, where the party has attended and cross examined the witness. Porter's lessee v. Johnson. 15. The strict rules of evidence do not apply to mercantile cases. Arnold v. Florence. 16. Where evidence does not support the declaration, the court will reject it. Anderson v. Hayes. 17. Where in covenant, plaintiff avers performance, he is bound to prove it. Neave v. Jenkins. 18. The plea of covenants performed admits the execution of the instrument, 20. Underhand agreements, contrary to agreements on marriage, are void; yet the court will not reject the evidence of such subsequent agreements, but declare their operation. 21. A settled account between other praties, is not evidence against a defendant. Steel v. Duncan's adm'rs. 22. On an indictment for conspiracy in inveigling a young girl from her mother's house by false pretences, and procuring the marriage ceremony to be recited between her and one of the defendants, she being drunk, the girl is a competent witness; and a subsequent carrying her off with force and threats may also be given in evidence. Respublica v. Hevice et al. 107 ib. 109 ib. 118 114 23. A sale under an order of Orphans' Court may be proved by parol evidence, without a return thereof. Rham v. North. 117 24. One entering a location in the name of another, it shall be presumed to be for the use of the applier: but this presumption may be repelled by reputation. Fogler's lessee v. Evig et al. 25. A stranger shall not prove the contents of a deed, without bringing himself fully within the rules of law. 26. An original corporation book is good evidence. Fleming v. Wallace. 27. An assignment of an application for lands, sent to the deputy surveyor, and possession accompanying it though only 28 years and 5 months old, read in evidence without giving an account of the subscribing witness thereto, another person being present at the execution thereof. Everley's lessee v. Stoner. 119 ib. 120 122 28. Asmall book of field notes of an imperfect survey, begun by a deputy surveyor, allowed in evidence. Hubley's lessee v. White et al. . 133 29. But the declaration of the surveyor, made in the absence of the parties, was refused. Surveys in April 1777, by one who acted under a proprietary deputy surveyor, on warrants in 1773, are inofficial, and cannot be received in evidence as appropriations of the land. ib. ib. 31. So of a general draft of the lands by such person. ib. 32. Declarations of a party who has released his interest, shall not afterwards 34. Where a former will is attempted to be set up, from the cancelling of a latter will, all facts, evincing the intention of the party therein, shall be received in evidence. Boudinot et al. v. Bradford. Page 170 35. If a vessel be condemned as a prize in a foreign court, yet if it does not clearly appear to be on the ground of being enemy's property, or, if such a conclusion would contradict the grounds of the sentence such sentence is not conclusive evidence that the insured has not complied with his warranty of neutrality. Vasse v. Ball. 36. Letters written by strangers to a witness, are no evidence to prove an independent material fact; but they may be received as introductory evidence. Lewis, in error v. Manley. 37. The notoriety of an adverse claim in the neighborhood, may be shown in evidence. Davis's lessee v. Butterback. 38. On general principles, a party is concluded by the lines of his patent. 178 200 211 ib. 212 40. When a deposition refers to books of account, copies of them, at least, 213 219 42. A deed acknowledged in 1783, before a member of the Supreme Executive Council, cannot be read in evidence without other proof. 43. Improvements on lands not purchased of the Indians, or made after the treaty at Fort Stanwix, and before the opening of the land office, on 3d April 1769, not allowed in evidence. Sherer's lessee v. M'Farland. 44. Money given to a surveyor to enter a caveat against a survey, and he neglecting to do it, no evidence against a third person. ib. 224 ib. 45. Depositions taken between the same parties on a caveat before the Board of Property, not allowed in evidence, though the witnesses were cross examined, and are since dead. Montgomery's lessee v. Snodgrass. 230 -(So in De Haas's lessee v. Galbreath, pa. 312.) 46. Nor a deposition, sworn to before referees, in a former suit between same parties. Starret's lessee v. Chambers. 232, n. 47. Condemnation of goods in the District Court of the United States is conclusive; and the property, or right of seizure cannot be again tried in an action of tresspass against the excise officer. Buchannan v. Biggs. 48. A justification in slander must be confined to the words charged to have been spoken. Frederitze v. Odenwalder. 49. Evidence shall not be received of the party's intentions, to assist an indescriptive application, but his intentions may be given in evidence against him. Galbraith's lessee v. Maus. 50. Original notes of a survey, found among the official papers of the deputy surveyor, may be read in evidence: but an indorsement thereon that it belonged to the surveyor, or his declarations that he made no actual survey, shall not be given in evidence to affect bona fide purchasers who do not claim under him. Funston's lessee v. M'Mahon. 232 243 244 51. The day book of a consignee is evidence to prove the expences of the outfit of a vessel in a foreign port. Seagrove v. Redman et al. 52. Abstracts from the books of merchants abroad, are evidence to prove the shipment of goods; but they must be supported by other proof. Bell et al. v. Keeley. 53. Lands of an intestate, valued by an order of Orphan's Court, and sold by his daughter, evidence may be given of the illegitimacy of such daughter. Davis v. Houston. 54. Where there is no ambiguity in an agreement, parol evidence shall not be admitted to show the intention of the parties, according with its legal operation. Litle, in error v. Skiles's assignees. 289 295 |