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promise by the defendant to guarantee, and the insolvency of the obligor, parol evidence was not admissible to show an undertaking by the defendant to guarantee the bill, no fraud, mistake, or omission of the scrivener being alleged. Heagy v. Umberger.
29. After the protest of a notary has been given in evidence by the plaintiff in a suit against the indorser of a promissory note, the defendant may call the notary to explain the protest, and even, it seems, to contradict it.
Query, whether the notary himself may object to being questioned for the purpose of contradicting his certificate of protest. Craig v. Shallcross. 30. A paper certified by the surveyor general to be a true copy of a list of the first grantees or renters from the proprietaries, extracted from book No. 31, remaining in his office, is evidence in ejectment to show title. A commission was returned from Barbadoes, and the return certified, that the execution of the commission appeared by the examinations hereto annexed." Held that a deposition not fastened to the commission, but enclosed in a cover under the hands and seals of the commissioners, and subscribed by them was evidence, there being no reason to suspect fraud or imposi
A copy of the register of marriages, baptisms and burials of a parish in the Island of Barbadoes, certified to be a true copy by the rector of the parish, proved by the oath of a witness, taken before the deputy secretary of the Island and notary public, (his) handwriting and office, being proved,) under his hand and
fi. fa. issued within the period of the stay, after security entered, is a nullity, and trespass lies against the plaintiff or prothonotary for issuing it. Milliken v. Brown. 188
If an execution issue against several defendants, and the assignee of one pay the amount thereof to the sheriff, who marks the execution satisfied, if such payment was in reality a purchase of the judgment the sheriff may correct the indorsement and proceed on the writ: but if the assignee had funds in his hands to pay the debt, and there are circumstances to show it was intended as a payment, the jury may so consider it, and the sheriff's proceeding afterwards on the writ will be considered a trespass. Kuhn v. North. 399
EXECUTOR DE SON TORT.
See VENDOR AND VENDEE, 2.
See HUSBAND AND WIFE.
If the owner continues in possession after an absolute assignment of goods, it is fraud per se, unless the possession is according to some condition or trust expressed in the assignment. Evidence of the declarations of the servant of a debtor who had made an assignment of property, that he was hired by the debtor and was still in his employ about the property, made after the assignment, though not in the presence of the assignee, is good to show the assignment colourable. Babb v. Clemson.
1. A fugitive from a foreign coun-
A schedule will not make an as-
See PRINCIPAL AND SURETY, 1.
HUSBAND AND WIFE.
Bequest of money by will to the children of the testator's daughter; the testator afterwards provides by codicil, that the money shall be paid to his
the very words of the libel must be set out. Commonwealth v. Sweeney. 173 2. An indictment against a justice of the peace for refusing a copy of his proceedings, ought to state a previous tender of his fee for that service, and the want of it is fatal. Wilson v. The Commonwealth.
daughter when she is either divorced from her husband, or voluntarily withdraws from him. In the event of the separation of the daughter from her husband by his desertion of her, this is a bequest to her separate use. The suit for such legacy should be brought in the name of the husband and wife: but if brought by the wife without the husband, advantage must be taken of it by plea in abatement; the objection is not available in arrest of judgment or in error. Perry v. Boileau. 2. A feme covert joined her husband in a deed of her real estate, but never separately acknowledged it, conveying the estate to trustees for the payment of the husband's debts, and then in trust for her separate use. Afterwards, living in a state of separation, the wife, by an instrument purporting to be her last 1. will, disposed of the property and died: held that the disposition was void. West v. West. 445
3. An indictment against a county commissioner under the act of 21st March, 1816, for being interested in the management and superintendence of a public building under the authority of the commissioners, he being then a commissioner, must be prosecuted in the Quarter Sessions: the Mayor's Court has not jurisdiction. Commonwealth v.
By an assignment under the acts of 1729-30, and 1798, the debtors estate in land passess to the trustees, though their assent does not appear.
An assignment by trustees appointed under an act of assembly made after the act has expired passes the estate, and the assignees may maintain ejectment. Gray v. Hiil.
judgment on his mortgage, evi- | 1. Though on an appeal from a jus
dence is not admissible to show that the scire facias on the mortgage which was returned served was not served.
Nor is evidence admissible to show, that the mortgage money for which judgment was recovered by default, was paid. Blythe v. Richards..
tice, the instrument declared on in the Common Pleas be stated differently from that mentioned by the justice in some particulars, yet this court will not reverse the judgment, if the cause of action appear in reality to have been the same before both. Bechtel v. Cobaugh. 121 Account render is not within the jurisdiction of a justice of the peace.
If the justice of the peace has no jurisdiction of a case, the Common Pleas have none on appeal. Guy v. Wright.
261 3. An insolvent debtor made a ge-2 neral assignment on the 24th November, 1819, indebted to C. on a judgment obtained against him on the 1st of April, 1818, to the plaintiff on a mortgage gi ven the 18th of May, 1819, and to the United States, on judg-3. ments for duties rendered the 16th of August, and 15th of November, 1819. Held, that C. had 'the prior right to the monies in court, raised by a sale of the mortgaged premises under a levari facias. Wilcocks v. Waln. 380 4. If one owning several tracts of land bound by a judgment against him, sells one tract to A., the remaining tracts being more than sufficient to pay the judgment, and afterwards sells
A refusal by a justice of the peace to deliver a copy of his proceedings to either party on demand, is indictable under the act of assembly.
The sentence of the court in such case ordering the fine of ten dollars to be paid to the commonwealth, is regular. Wilson v.
one of the remaining tracts to
1. If the sheriff who returns the jury is a brother of one of the parties, it is a good cause of challenge to the array. Munshower v. Patton. 334
JUSTICE OF THE PEACE.
See COSTS. SWINE.