PAYMENT. See EXTINGUISHMENT AND SATISFACTION; PRESUMPTION AND PRESCRIPTION, 1; TRUSTS, 5, 6.

PLEADING.

1. (Terre-tenant to be cited.) In Pennsylvania, where lands are assets for the payment of debts; it is most just to afford the terre-tenant, who is the party to be affected, an opportunity to contest the debt, and the plaintiff may do so. Himes v. Jacobs,

1 Penn. 152. 2. (Joinder of counts.) A promise laid in one count, as having been made to the testator in his life time; and another as having been made to his administrators after his death, is not such a misjoinder of counts, as will be fatal to a general verdict and judgment. Bank of Pennsylvania v. Jacobs' Adm'r. 1 Penn. 161.

3. (Malicious prosecution by executor.) Where an original action was brought by executors, maliciously and without probable cause, in an action therefor against them, they must be sued in their individual capacity; a writ and declaration, calling them executors, is not mere description or surplusage, but is error. Zearing's ex'rs. v. Beashore, 1 Penn. 232.

4. (Nón est factum.) Where an award had been made against the defendants, and by agreement they were let into a defence on the merits, without being in any degree prejudiced by the award, in their defence, they are not precluded by the agreement from putting in the plea of non est factum, and availing themselves of the fact that the instrument declared on was executed by one of a firm only. Hart v. Withers, 1 Penn. 285. 5. (Waiver by taking issue.) But if such agreement had that effect, it would be waived by taking issue on the plea of non est factum, instead of moving to have it struck out. lb.

6. (Judgment in joint suit.) When suit is brought against several partners upon a sealed instrument, executed by one for all, the plaintiff cannot recover against the partner who actually executed the instrument alone. lb.

7. (Surplusage.) A plaintiff who states his case more particularly than is necessary, is not bound to the strict proof of circumstances, merely because they have been unnecessarily set out. Sidwell v. Evans, 1,Penn. 383.

8. (Another suit.) A special plea that a domestic attachment, grounded upon the same cause of action, had issued in another county, and is yet pending, is a plea in abatement, and cannot be put in after issue joined upon a plea in bar. Engle v. Nelson, 1 Penn. 442.

9. The rule is different as regards a popular action; there the pendency of a prior action extinguishes the title of every one else, and necessarily bars the right. lb.

10. (Verdict for plaintiff and demurrer ruled for defendant.) A trial upon the plea of payment, is not a waiver by the defendant of a joinder in demurrer to another plea put in by him; thus, when there is a joinder in demurrer, and the defendant is legally entitled to a judgment thereon in his favor, but the cause being tried, upon the plea of payment, and a verdict rendered for the plaintiff, it is error for the court to enter a judgment upon that verdict. Willard v. Morris, 1 Penn. 480. See AWARD, 1; EXECUTORS, &c. 5; HUSBAND and Wife. POWER. See LIMITATION, 7; EVIDENCE, 28.

PRESCRIPTION AND PRESUMPTION.

1. (Administration bond.) A presumption of satisfaction from lapse of time arises in the case of an administration bond; and the computation runs from the period when the money was demandable. Diemer v. Sechrist, 1 Penn. 419.

2. (Administration bond.) The presumption of satisfaction which arises as to a bond, conditioned for the payment of money, after the lapse of twenty years, is equally applicable to an administration bond; and the proof of circumstances to prevent the presumption of payment from beginning to run one year after the date of the bond, rests with the plaintiff. McLean v. Finley, 2 Penn. 97.

PRINCIPAL AND SURETY.

1, (Surety discharged.) The defendant in a judgment on a recognizance for the price of land, taken at a valuation in the Orphans' Court, gives security for the stay of execution allowed by the act of assembly; after which the land is sold by the sheriff, and the money brought into Court. The plaintiff, and other persons entitled, agree that the debts of a deceased brother, who died in the life time of the father, should be paid out of his estate as liens, although in point of fact they were not liens, and the proceeds of sale are thus exhausted, and not applied to pay the judgment, which was a lien. Held, that the liability of the surety on the recognizance was discharged, and the agreement of the defendant in the judgment to the misapplication of the fund will not, as respects the surety, alter the case. Finney v. The Commonwealth, 1 Penn. 240.

2. (Surety entitled to assignment of a judgment.) A judgment was obtained against a principal who gave absolute bail to obtain a stay of execution; after which the absolute bail were sued and judgment obtained against them, held, that one of two sureties in the original obligation, who paid one half of the debt, is entitled to an assignment of the judgments against the principal and the absolute bail, to enable him to indemnify himself for the amount thus paid. Barns v. The Huntingdon Bank, 1 Penn. 395.

3. (Cashier's bond.) The cashier of an incorporated bank gave a bond with sureties conditioned that he would 'well and truly perform the duties of cashier.' By the act of incorporation the bank was required to pay annually to the state treasurer six per cent. of the amount of dividends; on failure of which for a specified time, the charter was thenceforth to become absolutely null and void and of no effect whatever, and the bank to be dissolved, unlawful, and unincorporated,' except inasmuch as corporate capacity should be necessary to the enforcement of contracts made by it or with it, before the period of its delinquency. Within that specified time, by the omission of the cashier, the six per cent. on the dividends was not paid to the state treasurer, by which the charter was forfeited, in the beginning of January, 1818: by an act passed the 2d February ensuing, the charter was 'revived and continued in as full force and ample a manner as if no forfeiture had taken place.' Held, that the sureties were not liable to the bank for the defaults of the cashier, which happened subsequently to the act of restoration. Bank of Washington v. Barrington, 2 Penn. 27. 4. (Neglect by principal.) When a creditor has it in his power to receive a part of his debt out of the estate of the principal debtor, who is deceased, and does not avail himself of it, the surety will be thereby discharged pro tanto. Ramsay v. Westmoreland Bank, 2 Penn. 203.

See BANKS.

RECORD.

(Trial list.) A trial list certified under an act of Assembly for holding a special court, forms no part of the record, it is the private paper of the judge, which he has a right to do with as he pleases, and the entries made upon it by him, are intended for his own information. Moore's Adm'rs v. Kline, 1 Penn. 129.

RELEASE. See CONTRACT, 12.

ROADS AND BRIDGES. 1. (Reservation of lands by the State.) The right of the State to take and use for public purposes six out of every hundred acres of land sold, is not an implied right but an express reservation; the State infringes upon no private interest, nor does it injure any man by using this right; the utmost that can be required is, that it should pay for improvements put by the owner on such part as the State should subsequently use. Commonwealth v. Fisher, 1 Penn. 462.

2. (Susquehanna.) All below high water mark in the channel of the Susquehanna river, is a public highway, and the State has a right to improve it by deepening it, or it may raise dams in it, and thus swell the water; and if in so doing, a spring which rises below high water mark is covered, and which an individual has been accustomed to use, he cannot recover damages therefor, under the act of 9th April, 1827; it is damnum absque injuria. Ib.

SHERIFF.

The neglect or refusal of a sheriff, to commit a person convicted of fornication until the sentence should be complied with, according to the decree of the court, makes him liable upon his official bond, to the mother of the child, for the amount which the person convicted was sentenced to pay for its maintenance. Snyder v. Commonwealth, 1 Penn. 94.

See CONTRACT, 10.

SLANDER.

(What words are.) Words which impute an offence against morality, are not actionable, unless the offence be indictable, or induce some legal disability. Therefore to say, 'J. H. swore a lie before the sessions, and I can prove it by by twenty witnesses,' is not actionable. Harvey v: Boies, 1 Penn. 12. See ACTION, 3.

STATUTE OF FRAUDS.

1. (Parol conveyance.) A parol gift of a lot of ground by a father to his married daughter, accompanied by possession and valuable improvements made by the husband at his own expense, vests in him no estate in addition to the freehold which the law allows him in right of his wife. Ingham v. Mason, 1 Penn. 389. 2. All agreements for the sale and purchase of land, are consummated and extinguished by the deed. McKennon v. Doughman, 1 Penn. 417.

STATUTE.

(Promulgation.) On the 6th of April, 1830, the act of assembly

which provides that the lien of a mortgage shall not be affected by a sheriff's sale, was approved by the Governor. The act on the 20th of April, was published in a paper printed in Adams county, and on the 23d, in a paper printed at Harrisburg. On the 10th April the sheriff of Adams county, having previously regularly advertised the same, sold the land of R. to D., who had before that mortgaged the same to A. Before the sale, and before the passage of the said act of assembly, S. as the attorney of the mortgagee, he being also the attorney of the plaintiff in the execution, gave notice to the plaintiff that the mortgage money would be claimed out of the sale. It was the understanding of the sheriff, and the general understanding at the time of the sale, that it would be so paid; but the said act of assembly was not known by any person present at the sale. Held, that the mortgagee A, was entitled to be paid his mortgage out of the fund raised by the sale, in preference to a subsequent judgment creditor; and that the purchaser took the land sold, clear of the lien of the mortgage. Shultze v. Diehl, 2 Penn. 273.

SURETY. See PRINCIPAL AND SURETY.

TAXES.

(Sale of land for.) A purchaser of unseated lands, sold for the payment of a direct tax, in pursuance of the act of Congress, and having in his possession a deed from the collector, who wast authorized to make the sale, has such a right as will authorize him to redeem the same lands, from a person who had purchased them at a treasurer's sale for taxes, made in pursuance of the act of assembly. McBride v. Hoey, 1 Penn. 54. TRUSTS.

1. (Charity.) A gift to a charity shall not fail for the want of a trustee, but vest as soon as the charity has acquired a capacity to take. McGirr v. Aaron, 1 Penn. 49.

2. (Construction.) Devise. 'I give and bequeath all my real estate, to wit, &c. to a Roman Catholic priest that shall succeed me in this said place, to be entailed to him and his successors, in trust and for the use herein mentioned, in succession forever, &c. &c., and further, it is my will, that the priest for the time being shall transmit the land so left him, as aforesaid, to his successor, clear of all incumbrances,' &c. Held, that the devise was for the maintenance of a priest, but in ease of the congregation, and for its benefit alone; and the congregation is entitled to take the profits in the first instance, but subject to a right in the priest to have them applied to his support. lb.