grantee. Strickler v. Todd. 3. If in such subsequent conveyance, a covenant be entered into by the grantee, not to use the water except as it had been used, query, whether an action of covenant lies by the first grantee, as running with the land: but at all events, case will lie against such subsequent grantee for obstructing the water. Ib. 4. In a deed of bargain and sale which states a money consideration, evidence is admissible to show that besides the consideration of money, there was a consideration of advancement to the daughter of the bargainor.
Query, Whether parol evidence
is admissible, to show a consi
deration contrary to that ex- See TENANTS IN COMMON. pressed in a deed of bargain TION, 1. LEGACY, 1. RELEASE, 1. and sale. Hayden v. Mentzer.
3291. Where a testator orders his land
to be divided among several per-
sons in a particular manner, they
take under the will when the di-
vision is completed, notwith-
standing they execute mutual
releases. Leek v. Cowley.
2. Devise of land and quitrents to
testator's son A. during the term
of his natural life, and that after
the decease of A. the land and
quitrents should be equally di-
vided to and amongst all the
lawful issue of the said A. or
their legal representatives, share
and share alike, and to their heirs
and assigns. On the death of
the testator, A. entered on the
lands and suffered a common re-
covery to the use of himself in
fee. Held, that A. took an es:
tate for life with contingent re-
mainders to the children of A.
who were living at A's death,
and the children of such as were
dead; and by comparison with
other parts of the will, that such
grandchildren should take only
5. A. conveyed a tract of land of
140 acres 136 perches, to B. in
fee, "excepting a small quan-
tity struck off the said tract at
the west end by a conditional
line." B. entered into posses-
sion of the whole, and his title
and possession were transferred
to several others, two of whom
purchased under sheriff's sales
of the whole tract, no notice
being given or claim made on
the part of A. The conditional
line was not marked on the
ground, nor capable of being
ascertained. A., 23 years af-
terwards, came on the ground,
pointed out his part to his ven-
dee, who had 21 acres surveyed,
and took a deed for them from
A. Held, that A's vendee had
no title to the 21 acres.
An exception of "a small quan-
tity struck off a tract by a condi-
tional line," it seems is void for
uncertainty, if there is no such
conditional line ascertained, or
their respective parents' share; and that the life estate of A. being forfeited by the recovery, the remainders fell for want of support. Abbot v. Jenkins. 296 3. Testator devised to his son E.
C. two tracts of land to hold to
him and his assigns for and
during the term of his natural
life, he making no waste or de-
struction of the timber there-
upon and paying the testators
daughter twenty pounds within
two years after his wife's de-
cease; and from and immedi-
ately after the decease of E. C.
he gave one tract to his two sons
J. and D. their heirs and assigns
as tenants in common; and the
other tract tothe heirs male of the
body of E. C. lawfully begotten,
and the heirs and assigns of such
heirs or heir male for ever, and
for want of such heirs male then
to the two sons of J. and D. in
fee, as tenants in common.
C, suffered a common recovery.
Held, that by virtue of this de-
vise E. C. took an estate tail in
the second tract which was bar-
red by the recovery.
McMichael.
is prima facie evidence of possession by the defendants, whether they be originally named in the writ or added by the sheriff. Deitrick v. Mathers. 151 A verdict in ejectment, "that the defendant should have the third part of the 41 aeres and 32 perches neat, and if any overplus, it goes to the plaintiff," is too uncertain; and it cannot be cured by the courts' appointing a surveyor to designate the rights of the parties, and rendering judgment thereon. Smith v. Jenks.
7. Where the defendant proves
circumstances showing an anti-
cipated payment of a bond, and
the obligee is dead, the plaintiffs,
his representatives, may give in
evidence, to repel the presump-
tion, that the testator received
large sums of money about that
time, and was not in want of
funds.
Ib.
8. The declarations of a grantor of
a mill and of his son and heir
that all the water passed to those
in possession under a subsequent
grant of another tract through
which the water ran, are admis-
sible in a suit against one claim-
ing under the latter, for obstruct-
ing the water. Strickler v. Todd.
1. Some title or spark of title in
the grantor must be shown, be-
fore a deed from him can be read
in evidence. Hoak v. Long.
2. A witness may state the sub-
stance of what was sworn by a
witness on a former trial; he is
not obliged to testify to the very
words. Cornell v. Green.
3. It seems, notes of the evidence
testified by the oath of the person
making them, are sufficient, if
they contain the true substance
of what was said.
4. An act of the vendor after sell-
ing lands is admissible in evi-
dence to explain the whole of a
transaction respecting which the
opposite party has given partial
evidence. Reigart v. Ellmaker.
10. Query, whether an assignment
by an assignee of all his interest
in land, indorsed on the original
articles of agreement for the pur-
chase of it, dispenses with the
necessity of proving the articles,
or any previous assignment, in-
dorsed thereon.
At all events, a subsequent assign-
ment by his assignee, must be
proved in the ordinary way by a
subscribing witness. A reference
to such subsequent assignment in
a contract signed by the defend-
ant, is not sufficient to dispense
with the ordinary proof, if it re-
fers to it generally, and contains
nothing to identify it. Gardner
v. Grove.
11. If one party gives evidence of
sufficient personal assets remain-
ing, in order to show that the
sale of the land of an intestate
was fraudulent, the other party
the person whose name was used in an application for land in what was then Northumberland, since Westmoreland county, both the grantor and grantee being described as of the city of Philadelphia, diligent search being made for the subscribing witness in Philadelphia, and the handwriting of the grantor being proved, though possession did not accompany the deed, and there was a short adverse possession, allowed to go to the jury.
a deed accompanied with possession proves itself; and whether 21 years is sufficient.
Title being traced to a grantee described in the deed to him, as of city of Philadelphia, a copy of a will alleged to be his, being offered in evidence, in which he describes himself as of London Grove, Chester county, whether he is the same person is a question for the jury. The possession of the deed by his devisees is some evidence that he is. M'Gennis v. Allison.
opinion of the court rejecting evi-Query, what is the time after which dence and the same evidence is afterwards admitted, the exception cannot avail the party. Ib. 14. A certificate of a notary in a foreign country, of proof before him by two witnesses of a power of attorney, for the sale of lands in Pennsylvania, is not sufficient under the act of 1705. Nor is evidence admissible, in an ejectment by one claiming under! such power, that other persons had purchased and held lands in the same place under the power, that the defendant held a lot, not the one in dispute under it; or that the attorney had acknowledged in writing the subsequent revocation of his power, and the appointment of a new attorney by the principal. Griffith v. Black.
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18. Parol evidence may be given to show that a mistake was made in the affidavit of an assessor filed in the office. Ib. 19. Parol evidence is admissible to prove a long practice in a county for a sheriff to sell on a venditioni exponas after the return day, and such sale is valid, when supported by a long practice. Blythe v. Richards.
20. Where it is proved that a fieri facias and venditioni existed, and are lost, the execution docket of the Court of Common Pleas is evidence to prove their contents, and the proceedings had upon them. Buchanan v. Moore. 275 Where the sheriff sold the property of A. and B. as " 200 acres of arable land, more or less, in Newton township," and A. and B.
16. If a party produce a letter in
evidence on a trial, that is suffi-
cient ground to make it evidence
for the opposite party in a sub-121.
sequent trial of the same action.
Maclays Lessee v. Work.
17. A deed fifty years old, from
had two adjoining tracts there, | Evidence is not admissible to show
one of 114 acres and allowance,
the other of 161 acres 32 perches
and allowance: the declarations
of A. at the time of sale, that
the lands selling contained more
than either of these tracts taken
separately, are evidence in an
ejectment by the purchaser
against B. and others for the land.
So A's. returns of the land to the
assessor are evidence.
Ib.
22. The circumstance of A's. hav-
ing assigned the land for the be-
nefit of his creditors 20 years be-
fore the trial, does not prevent
his declarations being evidence,
if the assignees have never ac-
cepted not interfered.
Ib.
23. Parol evidence is not admissi-
ble of the contents of a written
paper produced and read by the
opposite party on a particular
occasion, unless notice has been
given to him to produce it.
Declarations of a deceased person
are evidence as to boundary: but
not of those of a person living,
who might be produced.
In a question as to the quantity of
land purchased at sheriff's sale
evidence of the annual value of
the land, is immaterial, and not
admissible.
Ib.
24. The declaration of the obligee
of a bond before assignment, as
to his being paid the amount,
are evidence in a suit to recover
land in consideration of which
the bond was given, brought
against one holding the land by
deed from the obligee of the bond
and holding the bond also by as-
signment.
If the defendant give in evidence a
verdict and judgment in a for-
mer suit respecting the land in
controversy, to which the plain-
tiff was party, the plaintiff may
show that the evidence given in
the present cause was not known
or produced.
the general character of a wit-
ness for drunkenness. Brindle v.
M.Ilvaine.
25. If the debtor assign over to
the creditor a bond payable to
himself but not yet due, and the
assignment is silent as to its be-
ing transferred in payment, or
not, parol evidence may be given
by the creditor to show, that it
was transferred as a collateral
security and not as payment.
Leas v. James.
307
Where a witness is contradict-
ed, and evidence is given to im-
peach his character, evidence
may be given of what he swore
on a former trial of the cause,
in order to corroborate his testi-
mony. Henderson v. Jones. 322
27. A certified copy of a survey
given by the surveyor general,
under seal of office, is evidence,
though it appear in such copy
that part of the writing of the
original survey had been oblite-
rated.
But if the part obliterated, was
that which recited the authority
for making the survey, and there
be no other evidence of any au-
thority to make it, nor of the re-
turn being accepted by the board
of property, it is not evidence.
If an act of assembly authorise a sale
by a guardian of the property of
minors on entering into a certain
recognizance, to be approved of
by the court, a certificate from
the clerk of the Orphans' Court
that such recognizance was giv
en, is not evidence: a copy of
the recognizance should be stat-
ed with the approbation of the
court. Jones v Hollopeter.
28. Defendant assigned to the
plaintiff a single bill in exchange
for a horse, declaring in the
agreement, that he would not
guarantee the bill. Held, that in
an action on the case, alleging a
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