1. Assignment by a debtor to trustees, in
trust, first, for the payment of specific
debts, second, for the payment of all the
other debts of the assignor, (except notes
and indorsements made by him for the ac-
commodation of others,) in full, if the mo-
ney be sufficient; if not, then in just and
equal proportions; and, after paying the
debts of the second class, then thirdly to
pay certain others, and if any surplus
should remain, then to pay the same to the
assignor, his executors, &c., provided, that
before payment of any of the said debts,
the creditors should release within a cer-
tain period. Held, that a creditor of the
second class, who did not release within
the period prescribed, was not entitled to
a dividend, notwithstanding he executed a
release before the assignees had declared
or paid a dividend, and a surplus remain-
ing after paying the second class of credi
Cheever v. Imlay.

tors.

ASSUMPSIT.

510

1. An award by arbitrators appointed by
the agreement of some of the children of
an intestate, and the husbands of some
others, directing one of the parties to the
submission to take the land of the intes-
tate, at the appraisement, and to pay a
certain sum to the children of the intes.
tate, is bad; first, because it cannot vest
the land in such party without a convey-
ance, which is not directed; secondly, be-
cause the husbands submitted without their
wives. Miller v. Moore.
164
2. If, by an agreement in writing, to refer
under the Act of 1705, it be stipulated that
the award shall be under the hands and
seals of the arbitrators, an award under
their hands without their seals, is bad
Rea v. Gibbons.
204
3. Referees, under the Act of 1705, are not
authorised to find the facts specially, and

submit the law to the Court. The report
must be good per se, to justify the entry of
a judgment upon it. Sutton v. Horn, 228
4. If an award of referees in the Court be-
low, is good on its face, this Court will not
on a writ of error, inquire into exceptions
made to the proceedings of the referees,
as to matters of fact or matters of law be-
fore them, and if the evidence and docu-
ments on these points, are blended by the
Court below, with the record returned,
this Court will pay no regard to them.
Harker v. Elliott.

284
5. In an action against executors on a joint
bond given by the testator and another,
the defendants pleaded a former recovery;
Held, that an award made by arbitrators in
a former suit on the bond against both ob-
ligors, in which an appeal was entered,
but the defendant's testator died, during
the pendency of the appeal, and the other
defendant disavowed the appeal, support-
ed the plea. Reed v. Garvin's executors.
354

BANK OF NORTH AMERICA.

1. The Act of the 17th of March, 1787, en-
abled the Bank of North America, to have,
hold, purchase, receive, possess, enjoy
and retain lands, rents, &c., and also to sell,
grant, &c., the same lands, &c., provided,
that such lands and tenements, which the
said corporation was thereby enabled to
purchase and hold, should only extend to
such lot and lots of ground and convenient
buildings, &c., as they might find neces-
sary for carrying on the business of the
said bank, &c., and should actually occu-
py; and to such lands and tenements
which were or might be bona fide mort-
gaged to them as securities for their debts.
Held, that the Bank might purchase abso-
lutely lands in a distant country, which
they did not oecupy, though their title
like that of an alien, is defeasible by the
Commonwealth; and if they convey to a
third person without claim by the Com-
monwealth, such third person holds the
same estate defeasible in like manner.
Leazure v. Hillegas.
SIS

BANKRUPTCY.
See ASSIGNEES, 1.

BANK BOOK.

See EVIDENCE, 11. RECORD, 1.

BILL OF EXCEPTIONS.

1. The Judge in charging the jury, is not
bound to deliver his opinion on matters of
law, further than is required of him. Fish-
er v. Larick.
99
2. A bill of exceptions and writ of error lie
on the refusal of the Court of Common
Pleas, to allow the plaintiff an amendment

corporation, merely because they are of
fered under the corporate seal; the Court
may inquire by what authority it is affixed.
Case of St. Mary's Church.

517
3. Where the trustees of a corporation con-
sist of three clerical and eight lay-mem-
bers, if one of the clerical members be ex-
cluded from the board, by a resolution of
the lay-members without authority, reso-
lutions for alterations of fundamental ar-
ticles of the charter passed in the absence
of such member, are unlawful.
ib.
4. In corporations where there are different
classes, the majority of each class must
consent, before the charter can be altered,
if there be no provision in the charter re-
specting alteratious.
ib.

1. Under the Act of 8th of March, 1815,
the mortgagor is the owner within the
meaning of the Act, so as to be entitled to
sue for the damages for injury to the land;
the mortgagees cannot interfere before
judgment, though, it seems, they might
come and claim afterwards, by motion to
take the money out of Court. Schuylkill
Navigation Company v. Thoburn. 411
2. In estimating the damages, the jury are
to value the injury to the property at the
time the injury was suffered, without re-
ference to the person of the owner or the
state of his business and the measure of
such damage is the difference between
what the property would have sold for as
affected by the injury, and what it would
have brought unaffected by such injury.

ib.

1. An exemplification certified by the re-
corder of a county of a deed conveying
lands lying in that and another county, is
evidence in a dispute concerning the lat
ter. Leazure v. Hillegas.

313
2. A deed under the seal of a banking cor-
poration, within this State incorporated by
Act of Assembly, is not evidence unless
the seal be proved. It is not necessary
that such proof should be by one who saw
the deed sealed; but the impression must
be proved by some one who knows the
motto, device, &c. &c.
ib.

EDUCATION.

1. Under the Acts for the education of the
poor of the first district, the controllers
have a right to refuse to draw an order
for the payment of a larger sum, for the
education of children in the seventh sec-
tion, than is paid for the other sections of
the district, though such sum be agreed to
by the directors of such seventh district.
The Commonwealth v. The Controllers of
454
the Public Schools.

EJECTMENT.

See EVIDENCE, 7.

1. After a plaintiff has obtained judgment
in ejectment for a moiety of the land, he
may sustain a new ejectment for the whole
against the same parties, without taking
possession, or suing out a writ of posses-
sion, or using any means to enforce the
former judgment. But if a party, after
recovering in ejectment, harrass the de-
fendant by a new ejectment, when he is
willing to surrender, such defendant
might obtain relief on motion. Rambler
v. Tryon.

90

2. In ejectment, a description of the land
claimed, as two houses, one barn, eighty
acres of arable land, twenty acres of wood.
land, with the appurtenances, in Penn's
township, Northumberland county, being
part of a tract of land surveyed in pursu
ance of a warrant granted to W. G. is suf-
ficient after verdict. Fisher v. Larick.
99

9. Under the 3d sect. of the Act of 13th
of April, 1807, in case of the death of a
party ejectment, the person next in in-
terest, may be compelled to appear.
Darnes v. Welsh.

203

4. Where both the plaintiffs and defendants
claim under the same right, the plaintiff's
are not bound to trace back their title be-
yond the person holding that right. If
there be an adverse right, itflies on the de-
fendant to shew it. Riddle v. Murphy.

230

5. The admission of incompetent evidence
cannot be assigned for error, when the
fact it was adduced to prove, is afterwards
established by other conclusive evidence.
Wolverton v. The Commonwealth.

273

6. In an action against the Sheriff and his
sureties on their recognisance, for a breach
of duty in the Sheriff's suffering a defen-
dant to scape, after being in custody; it
the plaintiff, after having given notice to
the defendant to produce the execution,
offer to prove the existence of the execu
tion by parol evidence, and the defendant
object to the evidence, on the ground that
a record cannot be proved by parol evi-
dence, and the Court admit the evidence,
and the defendant except to their opinion,
he cannot afterwards, in bringing a writ of
error, avail himself of the objection to the
evidence that there was no proof that the
execution had come to the Sheriff's hands.
ib.

7. Where the Court below after a prelivni-
nary inquiry admit evidence of a writing
alleged to be lost, it must be a strong case
to induce this Court to interfere in error.
Leazure v. Hillegas.

313
8. If the opinion of the Court be requested
on a certain point, and the Court, in an-
swer, say the adverse party has given a
certain answer to it, which is also stated, it
is error. Simpson v. Wray.

336

9. A writ of error lies to the judgment of the
Court of Common Pleas, on the verdict of

2. When books are produced on notice, and
entries are read in evidence by the party
calling for them, the party producing them
may read other entries necessarily con-
nected with the former entries, if made
prior to the commencement of the suit
Withers v. Gillespey.

10
3. It seems, however, that the rule is dif-
ferent, if the party merely inspect the
books with a view to their being used. ib.
4. A declaration by a vendor evincing a dis-
position to defraud, is not evidence against
him in a subsequent and distinct transac-
tion with another person, not then in con-
templation. Share v. Anderson. 43
5. On the trial of the validity of a will im-
peached on the ground of imbecility of
the testator from childhood to death, the
opinion of other witnesses than those who
attested the will, who knew him during
that time without stating any facts, is not
admissible, but when they state facts as
the ground of the opinion, it is good evi-
dence. Rambler v. Tryon.
90

ib.

6. In such case, the declarations of the sup-
posed testator made in the absence of his
wife, the devisee, of importunity used by
his wife, and his father-in-law to procure
the will to be made are evidence.
7. Where witnesses on the trial of the va-
lidity of a will have given their opinion of
the understanding of the testator, they
cannot, in the cross examination be asked

12. After introductory evidence tending to
shew that a payment by a check was made
as a loan to the payee, the bank book of
the drawer, if the entries are duly proved,
and with it the check itself are evidence
by way of corroboration; but a bank book
is not evidence without proving the entries
by the clerk of the bank who made them,
unless it appears to be out of the power of
the party to do so. Patton's administra-
tors v. Ash.
116

13. A copy of a letter, proved to be a true
copy of an original, put in the post office,
directed to the defendant's intestate,
without notice to produce, the original, is
not evidence.
ib.
14. A letter dated 24th June, 1773, from a
confidential clerk in the land office to the
plaintiff's ancestor, shewing title in the lat
ter, accompanied with the original applica
tion and memorandum filed in the office,
and afterwards ratified by the covenants of
the parties, is evidence in favour of the
plaintiff. Foster v. Shaw.

156

15. Where the plaintiff's father owning the
moiety of a tract of land, dévised the tract
to the plaintiff and directed that the other
moiety, the property of A. should be pur-
chased at the expense of his other son J.,
in a suit for the moiety against persons
claiming under A., a forged deed from A.
to J., of all A's right to the tract, no parti-
cipation being shewn by the plaintiff is
the fraud, is not evidence for the defendant.

ið.