DISCONTINUANCE.] DISCONTINUANCE. (601) [ERROR, &c. Page 1. Discontinuances are the acts of the court, and subject to their discretion. DISTRIBUTION. 42 (See Intestate.) DIVORCE, ALIMONY. 1. On a sentence of divorce, the wife's disclaimer of alimony is not a per- 2. Where there has been a reconciliation between the parties after a divorce, DOWER. 1. To bar a widow of dower by a devise, it must be either so expressed, or 2. No damages or costs in dower, where the husband does not die seized. 3. Devise by husband of one third of his persenal estate to his wife, and the 4. Tenant in dower may clear woodland assigned to her in dower, provided 56 ib. 10 38 79 261 E EJECTMENT. 1. Where one defendant in ejectment states a special defence, disclaiming, 4. Ejectment may be maintained by the heirs of surviving trustee, not ad- 1. Under the election law of 15th February 1799, the inspector has no right 2. To constitute the offence of intimidation, threats, violence, or interrup- ERROR, WRIT OF ERROR. 1. A writ of error, or certiorari, will not remove an indictment without a 2. Scire facias on a recognizance on a writ of error, may issue before the 429 ib. 39 148 ESCAPE. Page 1. In debt against a sheriff for an escape, evidence that he did not arrest the prisoner till three days after the return of the ca. sa. (which he had returned in custody,) is inadmissible. Shewell v. Fell. 2. The statutes of the 13th Edw. 1, c. 11, and 1 Rich. 2, c. 12, concerning escapes, extend to Pennsylvania. 3. In debt for an escape from ca. sa. the jury must find the whole debt and costs. 4. Sheriff not liable for an escape, where an insolvent debtor, taken under a ca. sa. out of the Supreme Court, has been discharged by two justices of the Common Pleas of the county where he lives, on giving bond pursuant to the 14th section of the act of 4th April 1798. Stevenson et al. v. Caruthers. EVICTION. 1. Inquisition on a claim against the state, upon an eviction of lands, sold by the agents of forfeited estates, under the act of 6th March 1778, confirmed, though no possession had been delivered by council, and the purchaser had failed in an ejectment commenced against an adverse claimant, by title paramount. Conyngham v. Rempublicam. EVIDENCE. 1. Counsel or attorney, shall not be permitted to disclose confidential communications of their client, but may give evidence of collateral facts, or that their client expressed himself satisfied with a new security. Heister v. Davis. 2. Defendant, on the plea of payment to a bond, must specify the particulars of the defence, as to want of consideration, fraud, &c. if required by the plaintff, or he shall be precluded from giving the same in evidence. Greenwalt v. Born et al. 3. A legatee in right of his wife, transfers the legacy, and takes a bond therefor. He previously purchases goods of the executors of the testator, and they insist on retaining the amount against his assignee of the legacy. This may be given in evidence on the plea of payment against the equitable assignee of the bond. Baughman v. Divler. 4. In debt against a sheriff for an escape, evidence that he did not arrest the prisoner till three days after the return of the ca. sa. (which he had returned in custody,) is not admissible. Shewell v. Fell. 5. Letter of a deputy surveyor to his assitant to make a survey, is good prima facie evidence, though not proved to have been delivered, and the survey has been made after the death of the deputy; but it may be repelled by other proof. Bell's lessee v. Levers. 6. Where a partnership is sworn to by a clerk of books may be given in evidence to fortify, of Moyes et al. v. Brumaux. one of the partners, the 7. Misrepresentation to effect a policy of insurance, is not to be presumed. The burthen of the proof lies on the person who would avail himself of the fraudulent conduct imputed; but circumstantial evidence is all that can be expected in cases of this nature. Pine v. Vanuxem et al. 17 ib. ib. 180 471 4 6 9 17 23 30 . 30, 33 8. Parol evidence of the intention of a testatrix, not admissible. Sword's lessee v. Adams. 34 9. Evidence of improvements made to the westward in consequence of a military permit, shall not be received, unless an office right has been taken out therefor by the beginning of August 1769. Gratz's lessee v. Campbell. . 78 10. The presumption that a survey has been made with the party's consent, may be rebutted by circumstantial evidence. Merchant's lessee v. Millison. 73 11. A policy of insurance may be explained and controlled by the written order to make the insurance. Norris et al. v. Insurance Company of North America. 12. In a suit against a surety, on a recognizance for good behavior, the confession of the principal, that he had published certain libels, may be given in evidence: aliter, of the admmissions of the counsel for the principal, on a former cause; nor can the verdict and judgment in the former cause, between different parties, be received in evidence against the surety. Respublica v. Davies. Page 13. Distributing newspapers, containing libellous matter, and the clerk of the printer receiving payment for them, evidence of the publication of a libel. ib. 14 Service of a notice of a rule to take depositions, on the plaintiff's wife, though a party in the process, is not good, if she has not acted in the business. Bauman v. Ziun et al. 157 15. Nor on the special bail, though he attended and cross-examined the wit- 17. A copy of the commissioner's assignment to the assignees, certified by their clerk, admitted in evidence. 18. Exemplification of a deed recorded in Philadelphia county for lands lying in several counties, received in evidence, the original being shown to be lost. 19. The release of an equitable interest arising from the discovery of vacant lands, may be shown by parol testimony. . 168 20. A deed recorded within a proper probate, is no evidence of notice to subsequent purchasers. Simons' lessee v. Brown. . 186 21. In partition, on the plea of non tenent insimul, the defendant may show in evidence an agreed line by the former owners, though his deed poll grants to him an undivided interest. Bates v. M'Crory. . 192 22. An original ancient letter from an assistant to the deputy surveyor of the district, indorsed by him, and found among the office papers, mentioning that he had received an order from G. A. for a survey made for him, allowed in evidence, as a receipt for surveying fees. Peterson's lessee v. Logan. . 195 23. Where a person claiming an application, asserts that G. C. presented him with it, an original memorandum of G. C. that he had the lands under his care for another, admitted in evidence. 24. In a suit for the consideration of a slave, recommended as honest, pnrchaser cannot give evidence of his being suspected of felony. Cook v. Neaff. 25. Evidence of the debt on which a sheriff's sale of lands was founded, being paid previous to the sale, shall not be received to affect the title of a stranger who has purchased. Aliter, if the plaintiff in the execution is the purchaser. Samms' lessee v. Alexander. 26. Parol evidence will not be received to prove the contents of written papers, unless they are proved to be lost, or in the possession of the adverse party. Campbell v. Wallace. 268 271 27. Evidence of improvements antecedent to the time of interest commencing, as stated in the warrant, shall not be received. Nicholl's lessee v. Lafferty. 272 28. Proofs of actual settlement must be subsequent to the law of 3d April 1792. Wilkins's lessee v. Allenton. 29. Recital in a warrant of acceptance, will be evidence against the late proprietaries, and those claiming under them by subsequent rights. Aliter, of those under elder rights. Elliott's lessee v. Bonnett. . 287 30. A warrant improvidently issued, without any money paid, directed by the surveyor general to a deputy to be executed, and a survey thereon, permitted to be read in evidence. Dougherty's lessee v. Piper. 31. Minutes of the Board of Property are uniformly read to show what passed before them. 32. In many cases, acts done since the ejectment brought, may be given in evidence. 33. Letter from a captain to his owner, cannot be received on the part of the owner, as proof of property shipped, without invoices or bills of lading. Crousillat v. Ball. 35. A warrant issued without money paid, and an inofficial survey thereon, permitted to be read in evidence. Nicholas's lessee v. Holliday. 36. A deed by husband and wife, joint-tenants, executed in Maryland, and acknowledged before two justices of the peace, and of the Common Pleas at 273 290 ib. ib. . 375 ib. 399 Page Baltimore, with a certificate under the county seal, that there were at that time no superior magistrates or peace officers in the county, allowed to be read in evidence. M'Intire's lessee v. Ward. 37. Nuisance in obstructing the waters in D. creek, by which plaintiff's lands were overflowed. The nuisance proved was, by erecting a dam in the waters of J. Variance held fatal. Funk v. Arnold. .424 428 38. The loss of a bill of exchange, proved by oath of plaintiff, its existence having been established by other proof. Meeker et al. v. Jackson. .422 39. Issue to try the validity of a will: two out of three subscribing witnesses prove it, and no evidence is given of the hand-writing of the third, who is absent out of the state. The declaration of such third person, that the testatrix was insane, shall not be received. Fox v. Evans. 40. Re-delivery of a deed executed by a feme covert, presumed after her husband's death, from circumstances. Evans v. Evans. 41. In slander, it is sufficient if the substantial slanderous words are laid and proved. If no special damage is laid, proof of particular damages will not be received. Hersh v. Ringwalt. . 506 507 508 42. Mere opinion is no evidence; but the opinion of men of science on facts stated, may be received to inform the jury. Forbes's lessee v. Caruthers. 527 43. Letter from the secretary of the land office to the deputy surveyor to make a survey, if lost, and no memorandum of it to be found in the land office, may be proved by parol evidence. Armstrong's lessee v. Morgan. 529 44. Every presumption is in favor of an ancient possession. Crunkleton's lessee v. Evert et al. . 570 45. Quære, whether parol evidence may be received, of a mistake make by the clerk of the peace of the county, in registering the name of a negro slave, the original return of the supposed owner being missing. Campbell v. Wallace. 46. On a promise of indemnity against I, the plaintiff declared that I had recovered against him a certain sum. Proof of recovery of a different sum by I, is no fatal variance, because the recovery is stated only by way of inducement, and not as the ground of the suit. Repher v. Shane. 47. A second return of survey, on an order of the Board of Property, differing from the first return, may be given in evidence te correct a mistake in the first return. Eddy's lessee v. Faulkner. 48. The usage of the land office, as to substituting other names in applications, with the consent of the applicant, after 22d April 1794, provided the boundaries are not changed, may be received in evidence. 49. No actual settlement, or transfer thereof, subsequent to an adverse survey on a warrant, can be received in evidence. 50. Copy of a survey not returned nor verified by the surveyor who made it cannot be received in evidence. Davis's lessee v. White et al. 51. An improver of land, whether plaintiff or defendant, who takes out an office right, and does not insert therein the true date of his improvement, shall not be allowed to give evidence of improvements prior to the time expressed in the office right. Reigart's lessee v. Haverstock et al. EXECUTION. 1. No execution shall issue against an insolvent debtor, who had given bond under the act of 4th April 1798, in the same cause. Shorthouse et al. v. Carothers. EXECUTOR. EXECUTORY DEVISE. EXTINGUISHMENT. (See Administrator.) (See Contingent Remainder.) 1. A grants land to B, subject to a yearly rent charge, with right of entry, &c., and B covenants to pay the yearly rent to A, his heirs and assigns, B grant the lands to C, subject to the first rent and to a new created rent payable to himself, and conveys the last rent to W, who afterwards becomes entitled to part of the first rent, under his father's and mother's wills; no part of the first rent is extinguished hereby. Philips v. Clarkson, et al. 572 575 580 ib. ib. 586 591 182 114 1. Return of the viewers of improved lands taken up by public road, that the damages resulting to the owner are valued at 45l, is radically bad. Ferree v. Meily et al. 2. The soil of improved lands converted into a public road, is not to bc valued and paid out of the county stock. Ferree v. Meily et al. 3. The review of a road is a matter of right. Berlin Road. FORCIBLE ENTRY. 1. Indictment that B. was peaceably possessed in his demesne as of fee, of certain lands, and continued so seized and possessed, until F. and L. thereof disseized him, and him so disseized and expelled, did keep out &c., held good on error. Fitch et al. in error v. Rempublicam. FORFEITURE. 1. A libel is cause of forfeiture of a recognizance for good behaviour, and the guilt of the party may be determined in a suit on the scire facias, without a previous conviction. Respublica v. Cobbet. G 153 153 263 49 93 GAOL. 1. The,inspectors of the gaol of the county of Philadelphia, are bound by the law of 4th April 1792, to furnish German passengers arrested, and in the debtors' apartment, with blankets and fuel. Moore v. Servening. 443 GOOD BEHAVIOUR. (See Recognizance.) H HABEAS CORPUS. 1. Habeas corpus under the act of 1785, does not lie to the bail of one charged with a criminal matter. Respublica v. Arnold. 2. It persons indicted keep the state witnesses out of the way, they are not entitled to be discharged, though two sessions have intervened under the act of 1785. 263 ib. 1. The offices of city recorder or justices of the peace, are not constitutionally incompatible with offices of trust or profit under the United States. Respublica v. Dallas. INDICTMENT, INFORMATION. (See forcible Entry. Habeas Corpus. §2.); 1. Indictment will not lie against county commissioners, for refusing to pay money allowed for a bridge, by the sessions and grand jury, under the act of assembly of 15th August 1782; nor under the act of 11th April, 1799, for a bridge erected before the passing of that law. Respublica v. Meylin et al. 2. A writ of error or certiorari, will not remove an indictment without a special allocatur, or the consent of the attorney general. Sheffer in error v. Rempublicam. 800 1 89 8. Indictment on the first clause of the 6th section of the act of 22d April 1794, against maiming, leaving out the words "lying in wait;" or, on |