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wealth: a p.ilcnt, therefore, which embraces land not included in the survey, confers no title
upon the patentee, for sucii excess. Kelly v. Graham, 116.

LANDLORD AND TENANT.
RENT.

LAW AND FACT.

WARRANTY.
ISSUE.

1. An acknowledgment of a subsisting debt, to take a case out of the operation of the act
of limitations, should be clear, plain, unambiguous and express; arid a jury should not be
permitted to conjecture, whether words of acknowledgment and nfqnalificaiion in the same
discourse, proceed* d from different nets of the mind. Allison v. James. 380.

2. Where questions of law are proposed lo the court on a view of fiicts different from
those proved on the trial, or on some point not applicable to the case trying, it is the duly
of the court to place the matter in its true point of view before the jury, and to tell them
what the law is in the case before them. Hughes v. Boyer, 556.

LEASE.
RENT.

VOL. IX. 3 Z*



590 INDEX.

LEGACY".

ORPHANS' COURT.

1. The maintenance and support of a widow charged upon and payable out of the real
estute of a testator devised to his son, cannot be enforced by an action of ejectment against
his son or his aliene<; the remedy is peculiarly within the jurisdiction of the orphans'
court. Craven v. Bleakney, 19.

2. A testator having devised all his real estate, charged with the payment of an annuity
to his widow and several legacies to his brothers and sisters: Held, that upon a sale of the
estate by the sheriff, and a deficiency of the proceeds to pay all the legacies charged upon
it, the annuity of the widow shall not abate, with the other bequests. Reed v. Reed, 263.

3. In Pennsylvania, every bequest to the wife is conditional by force of the statute, which
declares that every legacy to her shall be in lieu of dower if the contrary be not expressed:
and thus standing as if a surrender of her dower had been expressly prescribed by the
testator, she is not a volunteer, but a purchaser. Ibid.

4. A legacy shall be deemed vested or contingent, just as the time shall appear to have
been annexed to the gift or the payment of it. And where there is no separate and ante-
cedent gill, which is independent of the direction and time for payment, the legacy is con-
tingent. Moore v. Smith, 41(3.

5. A testator, having given specific and residuary legacies to his grand-children, devised
liis real estate to his executors to be sold for their payment, and added: ' 1 allow that the
legacies bequeathed by me to my three first named grand-children shall be lent out by the
executors of this will as soon as it slrill be received by them, so that it shall bring interest
until my said ^rand-children shall severally become of age, when they are to receive the
amount:" Held, that no del iy of the executor, in making sale ot the real estate out of which
the legacies were to be paid, would defeat the right of the specific legatees to interest on
their legacies from one year after the death of the testator, unless such delay were occa-
sioned by something contained in the will, or by the procurement or fault of the legatees
themselves. Huston's Appeal, 473.

6. An action for a legacy being a substitute for a bill in equity, is to be so managed as
to take effect without hindrance from common-law technicalities. Hence, an action brought
in the name of executors, lor the use of a legatee against a legatee, to recover the one-third
of a legacy which hud been limited over upon a contingency to three legatees, will not be
defeated by the plea of a 'ormer recovery by the same executors fjr the use of another of
the three legatees. Seibert v. Butz, 490.

7. A test.itor bequeathed legacies to his three daughters, and added, "Should one of my
daughters die without heirs or testament, then her inheritance shall lapse in equal shares
to my yet living daughters, or to the heirs of their body, in equal shares, yet that it may
not be misunderstood, the sister's share to her children:" Held, that the contingency was
not too remote to take effect. Ibid.

LEVY.

A levy and sale of the undivided moiety of a tract of land, will vest that amount of inter-
est only in the purchaser, although at the time of the levy and sale, the defendant in the
execution was the owner of the entire estate. McCormick v. Harvey, 482.

LIEN.

LIMITATION.

1. A testator thus disposed of his estate: " I will that my three sons, namely, Jncob,
Christian, and John, with all my land, shall hold Tendue amongst themselves, and whoso-
ever shall give the m<*t for it shall have it, and that the money shall be divided amongst
my three sons into equal shares." In pursuance of this devise one of the sons obt.ined the
land, and died without paying all the purchase-money: Hrlil, that thut which remained
unpaid w >s a lien u|ioii the land, having a preference over other debts of the deceased de-
visee. Zerliy v. Zertty, 234.

2. A direction to the sheriff, by a plaintiff in an execution, "not to proceed further on his
writ," " t> put no more costs upon it," is a rdinquishment and waiver of his right u.ider
it, such as will postpone him to a subsequent creditor where execution was levied upuii the
game personal property. KnuffelCs Appeal, 334.

3. One who has the exclusive custody of a stock of goorls of another, for the purpose of
carrying on the business of a retail store, and during its continuance becomes personally
liable, and pays for goods purchased to replenish the slock. do< s not thereby acquire a
lien on the goods to secure him against such liabilities and advancements. Gray v. Wil-
ton, 512.

4. If judgment be obtained against the personal representatives of a deceased debtor,
within seven years after his death, the lien of the debt is thus coiitiuued upou his real es-



INDEX. 5i

LIEN.

tale for twelve years, and if afterwards prosecuted with due diligence, will not be affected
by lapse of lime. Sleele v. Henry, 523.

5. One win) has u lien upon two funds, and suffers one uf them to be disposed of by a
judicial bale, and the proceeds applied to junior incurnbranc.es, is not thereby precluded
from having the amount of his claim out of the second fund, when converted into money
by a judicial sale. Adams v. He/ernan, 529.

LIMITATION.

OUSTKR.

1. An entry upon land will avoid the operation of the statute of limitations; but it must be
accompanied by an explicit declaration, or an net of notorious dominion by which the claim-
ant challenges the right of the occupant. A Item us v. Campbell, 28.

2. If one enter upon land lying north of the Ohio and west of the Allegheny rivers, and
make an improvement, and procure the- deputy surveyor to make a survey on the ground,
without a warr.mt or other authority, such survey is competent evidence of the extent of
the cl.iim of the settler, and if he continue in possession for twenty-one years, under such
claim, the act of limitation will protect him in his title, to the extent of his claim, as desig-
nated by his survey, which is to be regarded as made under color of authority in such case.
Laurence v. Hunter, 65.

3. If, in an action of ejectment for a tract of land, the title to which was in either the
plaintiff or defendant, it appeared that the plaintiff had paid all the public taxes tor thirty
years, and the defendant had refused to have the land assessed in his name or to pay the
taxes, it is not error if the court instruct the jury that the plaintiff had gained a complete
title by the statute of limitations. Ktlsey v. Murray, 111.

4. An acknowledgment of a subsisting debt, to lake a case out of the operation of the act
of limitations, should be clear, plain, unambiguous and express; and a jury should not be
permitted to conjecture, whether words of acknowledgment and of qualification in the same
discourse, proceeded from different acts of the mind. Allison v. James, 380.

5. Although the presumption of payment of a specialty does not arise in less than twenty
years, yet circumstances may be shown to have occurred which, tiiken in connection with
the titne that has elapsed, will be sufficient to justify a verdict for the defendant. Tilghman
v. Fisher, 441.

6. Such a presumption should be considered more violent in the case where executors
have Iain by without having demanded the amount of the specialty, or done any thing show-
ing that in their opinion it was owing, /bid.

7. If a testator devise his real estate to his executors, to be sold, and directs the proceeds
to be applied to the payment of his debts, he thereby creates a trust for the benefit of liis
creditors, and there is no limitation to the lien of such debts as regards his real estate thus
devised. Steel v. Henry, 523.

8. If a judgment be obtained against the personal representatives of a deceased debtor,
within seven years after his death, the lien of the debt is thus continued upon his real estate
for twelve years, and if afterwards prosecuted with due diligence, will not be affected by
lapse of time. Ibid.

9. The occupation of town lots up to a line fence between them for more than twenty-one
years gives to each party an incontestable right, and this whether either party knew of the
adverse claim of the other or not; and whether cither parly has more or less ground than
was in the lot he owns, originally. The right is settled after a possession of Iwenly-one
years, without regard to where the original line once was. Brown v. McKr.nny, 565.

MECHANICS' LIEN.

1. A tenant for years of a lot of ground who procures a building to be erected thereupon,
thereby subjects il to a lien in favor of the mechanics and material men for their work,
labor, and materials furnished: and a proceeding thereupon to judgment, execution, and sale
of the property will divest the owner of the fee-simple of his estate, and vest the same in
the purchaser from the sheriff. Huldsfiip v. Abercrombie, 52.

2. The mechanic*' lien law of 18U6 does not prescribe the kind of evidence necessary to
prove th it tne debt was contracted; the purpose for which materials were furnished or labor
was performed, may be established oy pirol. The liook of original entries of the mechanic
is not the sole test of the building lo be charged. C/nircfi v. Davis, 304.

3. The act of the 16th of June, 1836, rcl.itinv to mechanics* liens, is prospective in its
operation, and claims riled previously arc not iiffe<-ti.*d by its provisions. Th uct of 30th
March, 1831, extends the lien beyond five years from the time of filing the cla.m, wherever
a tcire facias has been issued within that lime. Ibid.



592 INDEX.

MERGER.

1. A deed is not always a merger of the articles of agreement for the sale of lands; in
many cases it is to be considered a part performance only. Selden v. Williams, 9.

2. loan action of covenant upon an agreement fiir the purchase and sale of land, in which
it appeared that the vendor has executed and delivered a deed of conveyance, and receipt
for the purchase-money, in pursuance of his covenant, it was held, that he is not thereby
precluded from a recovery, upon proof that the vendee had not complied with the covenant
on his part, by payment of the consideration. Byers v. Mullen, 266.

3. Lmd charged with the payment of an annuity, having descended to the hcirs-at-law,
of whom the annuitant was one, is not thereby wholly discharged fiom the payment of the
annuity, but only pro tanto, which the annuitant took as heir-at-law. Addams v. Heffernan,
52.J.

4. Quaere, if the annuitant had acquired the same interest by purchase, and not by the act
of the law? Ibid.

MESNE PROFITS.

ABATEMENT.

MINOR.

TREASURER'S SALE.

MORTGAGE.

WITNESS.

NEGOTIABLE NOTE.
ENDORSER.

NOTICE.

1. A notice of protest sent through the medium of the post office is sufficient to charge
the endorser, but the fact of putting the letter into the post office must be positively proved,
and without such proof it is error in the court to submit it to the jury. Weakly v. Bell fy
Sterling. 273.

2. A notice of protest sent hy mail and directed to the town, which is the seat of justice of
the couiity in which the endorser resides, is sufficient, although it be proved that there was a
post office nearer to, and within a short distance of his residence, and where he usually got
his letters. Ibid.

NUISANCE.

1. In an action for a nuisance created by obstructing a stream made navigable by law, if
it a;ipear that the injury to the plaintiff arose from causes which might have been foreseen,
such as ordinary periodical fresh -Is or the collection of ice, he, whose superstructure is the
immediate cause of the mischief, shall be liable to damages. But if the injury be occa-
sioned by an act of Providence, which could not have been anticipated, the defendant would
not be liable. Bell v. M'Clintock, 1 19.

2. By the act of assembly of the 29th of September, 1791, the right to erect dams in the
Swatara creek, then a public highway, was given to the Schuylkill and Susquehanna Navi-
gation Company; subsequent rights to erect dams and build mills on the same stream are
subordinate to it; and the owners thereof cannot recover damages from the Union Canal
Company, who succeeded to the rights of the Schuylkill and Susqu<:hannu Navigation Com-
pany, for injury done to their mills by reason of the erection of a dam in the said stream.
Union Canal Company v. Landis, 229.

OFFICER.
BOROUGH.
COMMISSIONERS.

1. Assumpsit cannot be maintained by a contractor, for work done for the state of Penn-
sylvania, agninft the snperintcndaiit: he is a public officer, aud accountable only to the Com-
monwealth. West v. Jones, 27.

2. An associate Jud.>e of a court of common pleas is not a county officer within the
meaning of the second section of the act of the 14lh of June 1836: and that court has not
jurisdiction to inquire by a writ of quo warranto into the authority by which he holds the
office. Lrib v. Commonwfilth, 200.

3. Si'mlilr, that public "fleers allowing papers or records to be taken from their offices
without the process or order of a court, are responsible with their sureties ibr the loss or
mutilation of such documents. Devliiig v. Williamson, 311.



INDEX 593



ORPHAN.

UNSEATED LANDS.



ORPHANS' COURT.

EJECTMENT.

1. A testator derised to his son a part of his real estate, subject to the payment of a cer-
tain sum, and directed his executors to sell all the rest of his reul estute and divide the pro-
ceeds amongst his children. The son refused to accept the device upon the terms stipulated;
but, treating that part of the estate devised to him as a lapsed device, he petitioned the
orphans' court for a writ of partition and valuation, which was regularly proceeded in; he
took thii same at the valuation; it was confirmed to him, and he went into possession. The
executors, treating this proceeding as illeg:.!, proceeded under the powers contained in the
will and sold the property to four other of the heirs, who brought ejectment for it: Held,
that the proceeding of the orphans' court was void, because there was no intestacy; und the
proceeding of the executors was void, becau>e they had no power under the will to sell this
property: and that the proper remedy was a proceeding in the orphans' court, under the
act of the 24th of February 1834, to compel the payment of the legacies charged upon the
land as devised, and thus sell it for the benefit of the legatees. Downer v. Downer, 60.

2. The orphuns' court have not jurisdiction of a petition for the appointment of a guar-
dian for a minor, while there is a testamentary guardian who hud neither resigned nor been
removed: an appointment under such circumstances is a nullity. Robinson v. Zfllinger, 169.

3. The orphans' court may direct an issue to the common pleas for the trial of facts con-
tested in a proceeding regularly before them, but they cannot send a case for their opinion
on a point of law; nor ought the latter court to entertain any issue improvidently directed to
them. Hi id.

4. When and how the fitness of such an issue will be recognized in this court, stated.
Ibid.

OUSTER.

As between tenants in common, a legal presumption of ouster arises in favor of one who
has been in the peacenhle and exrlusive perception of the profits of the land for more than
twenty-one years. Mehqffy v. Dobbs, 363.

PAPERS.

OFFICER.

PAROL CONTRACT.

FRAUDS AND PERJURIES.

Nothing amounts to a part performance of a parol contract, entitling a party to specific
relief, which does not put him into such a position that it would be a fraud upon him unless
the agreement be performed. Hence payment of part or the whole of the purchase-money,
on a parol sale of land, as it admits of direct compensation, does not take a case out of the
statute of frauds. McKee v. Phillips, 85,

PARTIES.

ACTION.

When a feigned issue is directed to try facts, no exception can be taken by either party
in interest in regard of the parties to, or form of, the issue ordered by the court. Addains
v. Heffrrnan, 530.

PARTITION.

1. A decree of the orphans' court in a proceeding in partition, that he to whom the real
estate was confirmed, should secure to be p;iid to a husband in right of his wife, her share
of the valuation-money, followed by a recognizance to the commonwealth, conditional for
the payment of the shares of the heirs generally, does not so vest the right in the husband
as to defeat the recovery of it by the wife after a divorce. Hake v. Fink, 336.

2. A proceeding in partition in the orphans' court under the intestate laws, by which
real estate is confirmed to one of the heirs nt a valuation, is not conclusive of a question of
title to the land confirmed to the heir, as between him and another heir, who claimed ad-
versely and disavowed the proceedings. Hurlan v. More, 362.

3. It is erroneous to join in an action of partition one who has not a freehold in the land
which is the subject of the action. Mark v. Mark, 410.

PARTNERSHIP.

1. In an action against three partners, only one of whom pleaded to issue, on the trial of
that issue, it is not competent for the plaintiff to give evidence of the declarations of the



594 INDEX.

PARTNERSHIP.

other p.irtners to establish the fact of partnership. But if the defendant first gives in evidence
their declarations to disprove a partnership, then the plaintiff* may also give the same kind
of evidence to produce a different result. Nelson v Lloyd, 22.

2 In assumpsit against three partners, all of who n were served with process, a trial,

verdict and judgment against one of them, without first taking an interlocutory judgment

against the other two, is erroneous. And after the judgment has been reversed, tlie error

cannot be cured by the other two defendants corning in and confessing judgment in the

original action, without the consent of their co-defendant Ibid.

PATENT.

LAND AND LAND OFFICE.

PAYMENT.

1. B having purchased of A at different times, several bills of goods at six months credit,
gave a note at twelve months, with C as collateral security for payment; subsequently
several other purchases were made upon the same terms, during the twelve months, and
subsequently, B made payments on account, which were credited generally in the books of
A without any special appropriation: Held, that such payments must be appropriated to
the piyment of the goods first due, and consequently in relief of C the surety in the note
of B. Berghaus v. Alter, 386.

2. In an action upon a bond, to which a presumption of payment arises, it is not competent
for the plaintiff to give in evidence an account between himself and the defendant, made
by himself at or about the time the bond was given, showing its consideration. Tilghman
v. Fisher, 441.

3. In such action it is competent for the defendant to give in evidence the will of the
plaintiffs testator, the inventory of his estate, and the account of the executors, in order to
show lh.it no account was taken of the bond, in order to strengthen the presumption of pay-
ment from lapse of time. I did.

4. A purchaser at sheriff's sale, being under the impression, that he was liable to pay a bond
secured by mortgage on the property purchased, paid the same, and afterwards discovered
that he was not bound to pay it: Held, That he could not recover the money back, the
holder of the bond having conscientiously received the same. Espy v. Allesin, 462.

PLEADING.

TRESPASS.

LEGACY.

I. There is no exception to the rule, that in actions real, personal or mixed, a defence
which arises during the pendency of the suit may be pleaded after the last continuance in
bar of the plaintiffs right. Brownfield v. Braddee., 149.

2 Qucere. Whether the court below could, after the time for an appeal has elapsed, and
execution has beeu issued, set aside an award on the allegation of a defect in the pleadings?
Orlady v. MNamara, 192.

3. In an action of debt upon a recognizance in the orphans' court, to a husbmd and wife,
in right of the wife, instituted by the wife alone after a divorce, the record of that divorce,
if set out in the plaintiffs declaration, may be given in evidence: and however erroneous,
could not be reversed in a collateral proceeding. Hakev. Fink, 336.

4 In such an action, it is not necessary to set out the divorce: it may be shown in evi-
dence, when material, without being pleaded. Ibid.

5. Nothing is indispensable to a statement which is not made so by the statute which
has substituted it for a declaration; the cause of action must be set forth intelligibly, so as
to exhibit an available cause of action, but performance of conditions precedent and every
thing beyond the defendant's engagement to pny, may be omitted. Snevely v. JonfS, 433.

6. Where, in an iction of debt, there are two issues, one upon the plea of non est factnm,
and the other upon a plea of payment with leave, &c., a general finding for the defendant
finally disposes of both, and the subject matter of a set-off or defalcation given in evidence
tinder the pica of payment, cannot be reasserted in another action between the same par-
tics. Good v. Good, 567.

POSSESSION.

TROVKR.

The occupation of town lots up to a line-fence between them, for more than twenty-one
years, gives to each party an incontestable right, and this whether either party knew of the
adverse cl.iim of the other or not; and whether cither party has more or loss ground than
was in the lot he owns, originally. The right is settled after a possession of twenty-one
years, without regard to where the original line once was. Brown v. M'Kinney, 565.



INDEX. 595

POWER.

1. A power to take care of land, carries with it a power to pay the taxes assessed upon
it, or to redeem it if sold by the treusurer as unseated, for the payment of the taxes; and
in such case, the death of the owner is not such a revocation of the power, as will make
void a redemption of the land by such agent, after a sale of it, as unseated. J'atirrsun v.
Brindle, 98.

2. A (erne covert is deemed, in respect to her separate estate, a ft me sole only lo the
extent of the power clearly given by the instrument by which the estate is settled, and has
no right of disposition beyond it. Wallace v. Coslin, 137.

3. A power of a private nature must be executed by all to whom it is given: but a
power of a public nature may be executed by a majority. The criterion seems to be, not
so much the character of the power or of the act to be done by virtue of it, as the character
of the agent appointed for the performance of it. Hall v. Canal Commissioners, 466.

4. An authority committed to several as individuals, is presumed to have been given to
them for their personal qualifications, and with a view to an execution of it by them all.
Ibid.

5. A vacancy in the board of canal commissioners by the death or resignation of one
of its members would not cause a suspension of its functions to the detriment of the pub-
lic; and a majority of them would constitute a quorum for the transaction of public busi-
ness. Ibid.

POWER OF ATTORNEY.

Testimony merely irrelevant or immaterial, properly rejected. Circumstances that will aid
or control an illegal or insufficient execution of a power of attorney. Bank v. Strohecker, 237.

PRACTICE.

PARTNERSHIP.

BOND.

SCIRE FACIAS.

1. When a witness is called to state a particular fact, it is improper to lead him to a full
statement of the defendant's case which is not yet opened to the court and jury; but it is
not error to permit him to answer on his cross examination a single question closely con-
nected with what he has proved, even if the answer operate in favor of the party putting
the question. Bank v. Slrohecker, 237.



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