new note, was defeated upon the plea of usury. Held, that he was nevertheless intitled to recover in a new action for the price of the cotton. Chastain v. Johnson, 2 Bailey, 574.

7. (Is for the Jury.) Usury is a question of fact for the determination of a jury. A note made and endorsed in execution of a previous usurious agreement is void. Thomas v. Catherall, 5 Gill & Johnson, 23.

VERDICT.

1. (Jury discharged from finding certain issues.) Where there are several issues joined, and the finding of one or more of them is decisive of the cause and renders the other issues immaterial, the jury may be discharged from finding any verdict upon these other issues, whether the parties consent or not. French v. Hanchett. 12 Pick.

15.

2. (Verdict for too large a sum.) In the case of a verdict given for too large a sum, the excess, if ascertained, may be remitted and judgment be rendered for the balance; but where the excess was uncertain and considerable in amount, a new trial was granted. Lambert v. Craig, 12 Pick. 199.

3. (Juror dissents.) If one of the jurors, when the verdict agreed on is about to be delivered in open Court, expresses his dissent to it, it is no verdict; although the jury had been permitted, with consent of parties, to separate after they had agreed. Perry v. Mays, 2 Bailey, 354.

4. (Superfluous matter-reasons.) A verdict is not vitiated by the finding of superfluous matter by a jury. It is often proper and necessary that a jury should state in their verdict the grounds on which their verdict is founded. Fisher v. Kean, 1 Watts, 259.

WILL.

1. (Witness is legatee.) In the act of 1824, requiring wills to be attested by three or more 'credible' witnesses, the word credible is synonymous with competent; but the competency of a witness is not affected by his taking an interest under the will, if he have an equal or greater interest against it. Garland v. Crow, 2 Bailey, 24. 2. (Seal witnesses.) In Pennsylvania, it is not necessary to the validity of a devise that the will should be sealed; nor that it should be proved by subscribing witnesses. Rohrer v. Stehman, 1 Watts, 442.

A memorandum, taken in writing, from the mouth of a testator, for the purpose of drawing from it a formal will, and read over to him and approved, may be proved as a will. Ibid.

WILLS AND TESTAMENT. 1. (Limitations over.) H. by his will made in 1794, devised to his 'two daughters, E. and T., during their single lives, all the remainder of his land; and after their death or marriage, all the land this side of the branch, where I now live, I give to my grand-son O., to him, his heirs and assigns forever; And one negro boy Ralph, and in case of his death, to my grand-son V., and in case of his death, to my grand-son I., and in case of his death, to my grand-son B., and in case of his death, to my grand-daughter M.' Upon the death of the testator, E. and T. entered. T. married, and E. died, when O. entered, and continued in possession until his death-Held, that the true construction of this will was, that as O. was living at the time of the termination of the estate devised to E. and T., he took an absolute estate in fee, and that the limitation over to V. failed to take effect. Hill v. Hill, 5 Gill & Johnson, 87.

2. (Testamentary capacity.) The testator's capacity is to be determined by the condition of his mind, at the time of his executing the will or testament; and for the purpose of shedding light upon that, evidence of its condition, and of his bodily imbecility, both before and after the period of his executing or acknowledging his will, may be produced. It is not of itself sufficient to avoid a will or testament that its dispositions are imprudent, and not to be accounted for. But a will or testament may by its provisions furnish intrinsic evidence involving it in suspicion, and tending to show the incapacity of the testator to make a disposition of his estate with judgment and understanding, in reference to the amount and situation of his property, and the relative claims of the different persons who should have been the objects of his bounty. Davis v. Calvert, et. al. 5 Gill & Johnson, 269.

3. (Circumstances to be considered in deciding on the validity of a will.) The contents of a will or testament; the manner in which it was written and executed; the nature and extent of the estate of the testator; his family and connexions; their condition and relative situation to him; the terms upon which he stood with them; the claims of particular individuals; the condition and relative situation of the legatees or devisees named; the situation of the testator himself; the circumstances under which the will was made; are all proper to be shown to the jury, and often afford important evidence in the decision of the question of a testator's capacity to make a will. Ib.

4. (Importunity and influence.) A will may be avoided also for fraud, importunity, and undue influence. lb.

5. (Same.) Importunity and undue influence may be fraudulently exerted, but they are not inseparably connected with fraud; nor is it every degree of importunity that is sufficient to invalidate a will or testament. Honest and moderate intercession, or persuasion, or flattery unaccompanied by fraud or deceit, and where the testator has not been threatened or put in fear by the flatterer, or persuader, or his power, or dominion over him, will not have that effect; but there may be great and overruling importunity and undue influence without fraud, which, when established, may and ought to have the effect (under circumstances) to avoid a will. Ib.

6. (Same.) That degree of importunity or undue influence which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act, is sufficient to invalidate a will; and this, not only in relation to the person alone by whom it is so procured, but as to all others who are so intended to be benefited by his undue influence. Ib.

7. (Same.) If any part or clause of a will was first suggested to a testator by any other person, and adopted by such testator, such adoption ought not to be the result of his incapacity or weakness of mind, nor of fraud, circumvention or undue influence, and whether it is so, is for the jury from all the facts and circumstances to decide. lb.

8. (Same.) To invalidate a will on the ground of fraud, or undue influence, it is necessary that it should have been induced by fraud, circumvention, deception, imposition, or undue influence, operating upon and controlling the testator at the time it was executed, of which, and in what degree he was so influenced and controlled, is for the jury to decide; and it is not necessary, that such fraud or undue influence should have been immediately and directly exerted at the particular time at which the will was made, nor is it material by whom practised. Ib.

9. (Estate for life.) A devise in 1796, that' my son F. shall have all the land I have any right, title, or claim to, either by law or equity, except the house and lot, and two acres adjoining,' which the testator, by a previous clause in his will, had devised in fee to his six daughters-only passes a life estate to F. Dougherty v. Monett's Lessee, 5 Gill & Johnson, 459.

WITNESS.

1. (Interest.) The interest, which excludes a subscribing witness to a written instrument, must exist in him at the time, when he is offered for examination. Where, therefore, a promissory note was taken

for a debt due to the subscribing witness, and was made payable to a third person, for the express purpose of enabling the real creditor to become a witness: Held, that a release of his interest to the nominal payee, rendered the subscribing witness competent to prove its execution; and that the objection to his testimony went only to his credibility. Crosby v. Floyd, 2 Bailey, 133.

2. (Debtor.) A defendant in an execution, the proceeds of whose property is in court for appropriation, may be examined as a witness on the trial of a feigned issue, to ascertain facts in relation to it; his interest, as regards the plaintiff and the defendant in such issue, being equal. Stewart v. Stocker, 1 Watts, 135.

3. (Same.) When a judgment has been opened at the instance of creditors, upon an allegation that it was fraudulent as against them, the defendant in such judgment is a competent witness for the creditors to establish the fraud. Sommer v. Sommer, 1 Watts, 303.

DIGEST OF ENGLISH CASES.

COMMON LAW.

Comprising the principal cases in 3 Barnewall & Adolphus, Part 3; 1 Adolphus & Ellis, Part 2; 3 Nevile & Manning, Parts 3 & 4; 1 Bingham's New Cases, Part 2; 4 Moore & Scott, Parts 3 & 4, and 5 Moore & Scott, Part 1; 1 Crompton, Meeson, & Roscoe, Part 2; (the first portion of) 4 Tyrwhitt, Part 2; Dowling's Practice Cases, Vol. 2, Parts 3 & 4,—and Vol. 3, Part 1;-all cases included in former Digests being omitted.

ACTION ON THE CASE.

1. An action lies against a party, who by carelessly or negligently excavating his own ground, causes or accelerates the fall of an adjoining house. (1 Salk. 13; 2 Saund. 394, 396; 1 C. & J. 20; 9 B. & C. 725; 3 B. & Ad. 871; Vin. Abr. Trespass, I. a; Com. Dig. Ac tion on the case, Nuisance, C.) Dodd v. Holme, 3 N. & M. 739. 2. (For false representation.) A defendant's attorney requested a plaintiff's attorney to forbear charging the defendant in execution until the next term and falsely represented that he had the defendant's authority to consent that he should not be charged in execution until the next term; and gave a written consent to that effect, which however omitted to state, according to the rule Hil. 26 & 27 G. 3, that the proceedings were stayed at the defendant's request. The plaintiff's attorney forbore accordingly to charge the defendant in execution until the next term, and the defendant was discharged, for want of having been so charged, on the ground of the above omission in the consent. The plaintiff sued the defendant's attorney for the false representation, as having occasioned the damage: Held, that the action could not be maintained. Hewitt v. Melton, 1 C., M. & R. 233.

AGREEMENT.

(Statement of consideration in.) Assumpsit on the following agree

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