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ed legatees proportionably. One |
of the last mentioned legatees!
died in the lifetime of the testa-
tor; held, that this legacy was
lapsed. Craighead v. Given. 351
1. At a sale on a levari, the mort-
gagee may purchase, though
the property sells for less than
the mortgage money and costs.
Blythe v. Richards.
the improver to pay the taxes
for it or perhaps the case of a
piece of uninclosed woodland
lying between two neighbouring
cultivated parcels, might be left
to the jury. There may per
haps be other cases of excep
tion. Royer v. Benlow.
4. Actual occupation of land for 21
years, however tortious or de-
stitute of colour of title, gives a
right, to the extent of the enclo-
sure, against all the world but
The limitation against a settler
runs from the inception of his
settlement, whatever may be the
date of his warrant. Munshower
Construction of a marriage
settlement obscurely worded.
Bosler v. Bosler.
1. Persons having a right of entry
into land at the time of passing
the act of limitations, of the 26th
March, 1785, are not barred by
an adverse possession of 18 years
from that time; there must be
21 years adverse possession to
ought to regulate the rights of
mills, in respect to their streams
of water. Strickler v. Todd.
bar them of their right, whe-Query, as to the principles that
ther their right existed before,
or arose after that act.
er's Lessee v. Gonsalus.
2. The 5th section of the limita-
tion act of the 26th March, 1785,
does not apply to persons who
were in actual possession of their
lands at the time the act was
passed. Mickle v. Lucas.
3. An improver who enters upon
land held by another by warrant
and survey, is protected, after
21 years, by the statute of limi-
tations as to all that he encloses
or cultivates without enclosure,
but not as to those parts which
remain in wood and uninclosed;
though he uses them for fuel,
This is the general rule, but it
seems there may be exceptions;
such as the owner's confessing
himself out of possession of the
woodland uninclosed; suffering]
See JUDGMENT, 2. LEVARI FACIAS.
PAYMENT, 2. JUDGMENT, 3.
1. A return of a mulatto child
under the 4th sect. of the act of
29th March, 1788, as "born
about the 15th November, 1780,"
is a good return, where it suffi-
ciently appears that the entry
and oath of the registry were
made by the owner of the mo-
Though the sex of the child and
occupation of the owner were
omitted in the return, yet if
they are stated in the registry
by the clerk the defect is cured.
Stiles v. Nelly.
1. New trial granted for exces-
sive damages in an action of
trespass against the sheriff.
Kuhn v. North.
NON EST FACTUM.
See PLEADING, 1.
See EVIDENCE, 14. 29.
1. Possession of land is always
constructive notice of the ac-
tual title of the person in pos-
session. Harris v. Bell.
1. It seems as respects third per-
sons, a person acting as an
assessor is to be considered as
such, although he has not taken.
the oath of office. Parker v.
See JOINT SUIT.
See BILLS OF EXCHANGE, &c, 5.
1. Where a chose in action is
transferred to a creditor by his
debtor, the presumption is that
it is not intended as payment, if
not so expressed. Leas v. James.
PAYMENT, WITH LEAVE.
1. Under the plea of payment
with leave, the jury cannot find
any sum due frm the plaintiff'
to the defendant. Anderson's
executors v. Long.
2. Under the plea of payment to
a scire facias on a mortgage, the
mortgagee may give evidence
to show a variety of circum-
stances between the parties pre-
vious to its being given, proving
circumvention and deception
on the mortgagee, and that a
judgment in ejectment against
the mortgagor, which was one
of the inducements to his giving
the mortgage, was obtained by
surprise and improperly used
by the mortgagee. Robinson v.
3. Parol evidence is admissible
under the plea of payment to a
suit on bond against a surety, to
show, that he executed the bond
under a declaration by the ob-
ligee, that his signing was
mere matter of form, and that
he never should be called on for
payment. Miller v. Henderson.
4. If the defendants plead pay-
ment with leave, and go into an
equitable defence, the plaintiff
may, under the replication of
non solvit, give evidence of other
special matter to rebut the de-
fendant's equity. McCutchen v.
5. In a suit on a forfeited recog-
nizance for a party's appearance
at the next Court of Quarter
Sessions, to answer a charge of
fornication and bastardy, on the
pleas of payment and nil debet,
evidence is not admissible, that
the party had married the mo-1.
ther after the date of the recog-
No evidence is admissible under
these pleas, but what tends to
show, either that the recogni-
zance was not forfeited, or that
it had been remitted by lawful
Ii is error for the court to charge
the jury on such pleas, that al-
though the party did not ap-
pear, yet if he married the mo-
ther, even with the fraudulent
intention of deserting her after
marriage, the defendant was
entitled to a verdict, unless
See NOTICE, 1.
POWER OF ATTORNEY.
See EVIDENCE, 14.
Query, if the country has been
long enough settled, to allow of
the time necessary to prove pre-
scription. Strickler v. Todd. 63
If there has been an uninterrupt-
ed use and enjoyment of a stream
of water above 21 years, in any
particular way, this affords a
conclusive presumption of right
in the party so enjoying it. Ib.
3. Under what circumstances it
may be left to the jury to pre-
sume a conveyance. Kingston v.
PRINCIPAL AND SURETY.
privy to the fraud. Common- See BILLS OF EXCHANGE AND PRO-
wealth v. Nowland.
See SATISFACTION, 1.
1. A special plea of fraud and
covin to debt on a single bill is
in nature of a special non est
factum, and if the plaintiff reply
to such plea that it is his deed
on which issue is joined, and a
verdict given for the plaintiff
the judgment is regular. Stoe-
ver v. Weir.
2. The want of a similiter to join
the issue in the plea of not
guilty to an indictment, is
amendable in the court below.
Wilson v. Commonwealth.
1. An obligee called on by the
surety of the obligor to sue the
principal loses his resort against
the principal by neglect; but
evidence is not admissible of a
call of that kind made on the ad-
ministrators of the obligee by
the guardian of one of his heirs.
Geddis v. Hawk.
See EVIDENCE, 29.
1. If the recognizance on appeal
from a judgment of a justice of
the peace be for payment of the
debt, instead of being in the na-
ture of special bail, it is void,
and no action lies on the recog-4.
1. The daughter of the testator
took under his will an estate in
fee in a portion of land, to be di-
vided off to her by three per-
sons; after the division she mar-
ried, and, by a mistake of the
scrivener, a release was execut-
ed from the other children to
the husband alone in fee simple,
which purported to be in execu-
tion of the will, and contained a
covenant on their part, never to
claim any right in the land; the
wife died without issue: held, in
ejectment by the releasors, that
they were not barred of their
right to the land. Leek v. Cow-
1. In replevin, on the issue of
no rent in arrear, a finding by
the jury of damages and costs,
and a judgment thereon that the
defendant have a return of the
goods, and recover the dama-
ges and costs, are regular. Smith
2. An avowry for rent in arrear,
should name for what lands, how
much was due, when and by
5. Replevin does not lie by one
not in the actual, exclusive pos-
session of land, whatever title
he may claim, against one who
is in the actual, visible, notorious
occupation and possession there-
of, claiming the right, for slates
taken out of a quarry on the land.
Brown v. Caldwell.
On the issue of no rent in ar-
rear, the tenure of the plaintiff
cannot be inquired into nor is
the charge of the court in that
In avowry for rent, if there is a ge-
neral verdict for the defendant
for a sum certain but no finding
of the value of the goods dis-
trained, the judgment is a judg-
ment at common law, de retorno
habendo. Williams v. Smith. 202
5. If the defendant in replevin
makes cognizance as bailiff, and
states that A. B. held the lands as
tenant under a demise at a year-
ly rent and rent accrued, and
plaintiff replies non demisit and
no arrear, the plaintiff may with
previous notice of special mat-
ter in evidence, that A. B. took
the lands for a certain period,
and paid rent in advance. Beau-
mont v. Wood.
1. Where the court reversed a
judgment on a scire facias post
annum et diem, on which the de-
fendants land was sold, and part
of the money paid to the other
jugdment creditors, and part to
the plaintiff, the court refused to
award restitution, but ordered
the money received by the plain-
tiff to be brought into court to
await their further order; and
took no order as to that portion
paid to the judgment creditors,
as they were not before the court.
Kirk v. Eaton.
1. The report of viewers vacating
an old road and substituting a
new one, must be accompanied
with a plot or draught of the
part vacated as well as the new
road substituted, with the cour-
ses and distances. Case of Ru-
SALE FOR TAXES.
1. Query, whether the treasurer's
deed on a sale of unseated lands
for taxes, is evidence without
first proving, that an assessed
tax was due, and that a warrant
of sale was issued to the treasu-
If the purchaser at a treasurer's
sale for taxes, has neglected to
file a bond for the surplus monies
within two years after the sale,
the deed to him is void. Sutton
1. If the plaintiff enter on the dock-
et after suit brought, "ended and
debt and costs paid," it is equiv-
alent to an entry of satisfaction,
and may be pleaded in bar of
a new suit for the same cause of
action. Philips v. Israel. 391
See JUDGMENT, 2. ADMINISTRA-
the amount in which he is ag-
grieved. Withrow v. The Com-
See PAYMENT WITH LEAVE.
Where an administrator sues
for a debt due to himself for
goods of the intestate sold by
him to the defendant, the defen-
dant cannot set off a debt due
from the intestate to him. Wol-
fersberger v. Bucher.
If a sale of land be made by an
executor under an authority giv-
en by will, and the administra-
tor cum testamento annexo, after the
executor's death, brings eject-
ment to compel payment of the
residue of the purchase money,
the vendee cannot in such suit
give in evidence by way of set
off or as an equitable defence
that the administrator by means
of a mill-dam existing at the
time of the sale, and ever since
had overflowed a valuable por-
tion of the land. Cornell v.
The jury cannot, under any plea
or notice, find a sum due from
the plaintiff to the defendant, to
be deducted from another debt
due from the defendant to the
plaintiff. Anderson's Executors v.
1. A scire facias on the sheriff's
official recognizance ought to
state, how the plaintiff was dam-
nified, in what action the she-
riff violated his duty; a gene-
ral allegation that the sheriff
had not paid over to the parties
the sums to them belonging
which have come to his hands,
and especially to the party who
sues in the name of the common-
wealth, is erroneous and bad.'
On such recognizance each suitor
who is damnified may sue a scire
facias, and recover judgment for
Under the plea of set off, evi-
dence is admissible to show, that
since suit brought the plaintiff
acknowledged, that a settlement
had taken place after the action
was instituted, and that he there-
by became indebted to the de-
fendant and gave him a note for
the debt, and such note is also
admissible. Marshall v. Sheri-
See LIMITATIONS. DEED, 1.