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Harrison vs. Rowan.

or the last in the affirmative, your verdict ought to be for the defendant; if otherwise, you should find for the plaintiff. In weighing the evidence, should you think it doubtful, or balanced, you ought to incline in favour of sanity, and against fraud. Verdict for plaintiff.

The defendant's counsel tendered a bill of exceptions to the opinion of the Court, in rejecting the record of the sentence of the Prerogative Court, against the probate of this will, as a testament of personal property; and, also, to that part of the charge, in respect to the alleged necessity of proving that the will was read to the testator.

Washington, Justice. A bill of exceptions to the opinion of the Judge, who tries, at Nisi Prius, the issue directed from the Court of Chancery, is quite a novelty. The practice in England is, for the Judge to send to the Court of Chancery, with the verdict, the notes taken at the trial; and if the Chancellor is dissatisfied with the verdict, either because improper evidence was admitted, or legal evidence rejected; or because of the evidence given to the jury, or the opinions of the Judge at Nisi Prius, he will direct a new trial, and sometimes set the verdict aside.

We see no reason, why the practice should be different, because the issue is tried by the same Court which directed the issue.

The only question will be, ought a new trial to be granted? And the evidence, and all the proceedings at law, being before the same Judges, it cannot be necessary, nor would it be proper, to present them for reconsideration and re-examination, in any other form, than on a motion for a new trial.

FINIS.

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INDEX

OF THE

PRINCIPAL MATTERS.

ABANDONMENT.

What will be considered a delay of an abandonment, so as to affect
the right to recover from the assurers. Smith et al. vs. The Dela-
ware Insurance Company, 127.

ACTION.

Where a charter party had been entered into by one Smith and the
defendant, although in the body of it he states himself the agent
of Clark, yet, as all the covenants were made with Smith, and he
executed the instrument in his own name, without reference to
Clark, the action cannot be sustained in the name of Clark. Clark's
Executors vs. Wilson, 560.

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ADMINISTRATOR..

1. Defendant obtained letters testamentary from the Register's office
in Philadelphia, to a supposed will of W. B., which, on an issue,
was determined not to be the will of W. B. In relation to another
supposed will, the same determination took place, and letters of
administration to the estate of W. B., were then granted to the
plaintiff. While the controversy as to the first supposed will was
pending, the defendant took possession of the estate of W. B.,
and went on to administer the same, until the appointment of an
administrator pendente lite, to whom the defendant delivered all
the effects of W. B. Bradford vs. Boudinot, 122.

2. The defendant having received letters testamentary on a will duly
proved, was authorized to perform every act proper for an execu

VOL. III.

4 F

ADMINISTRATOR.

tor to do, notwithstanding the pendency of the question relative
to the validity of the will. Ibid. 122.

3. The defendant was authorized, and it was his duty, (believing the

paper to be the last will of W. B.) to support the first probate ;
and he is entitled to retain out of the estate, the expenses he was
put to in that litigation; and also, the usual commissions for ma
naging the estate while in his hands. There is no ground for con-
sidering the defendant an executor de son tort, in this case. Ibid.
122.

AGENT AND FACTOR.

1. This Court has always deemed it proper to hold agents to a strict
account, in relation to the orders they receive, provided they are
expressed in plain terms, and free from ambiguity; and in this re-
spect the same measure of justice has been dealt out to agents
within the United States, acting for persons abroad, as to the fo-
reign agents of citizens of the United States. Loraine vs. Cart-
wright, 151.

2. Where an agent abroad, is directed not to sell for less than the first
cost and charges, and an invoice accompanies the letter, stating
the prices of the articles, and the amount of the charges on the
shipments, the price stated in the invoice is the maximum by which
the agent is to be governed. He has nothing to do with the ac-
tual cost of the articles. Ibid. 151.

3. If a consignee accepts a consignment, he does it on the terms pre-
scribed by the shipper; he might have rejected it, but he cannot,
after accepting it, refuse a compliance with the orders which ac-
companied it. Ibid. 151.

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Quere, What will amount to a ratification of the unauthorized acts of
an agent? Ibid. 151.

AGREEMENT.

1. If money is to be paid, or any other act to be done, on a certain
day, and at a certain place, the legal time of performance is, the
last convenient hour of the day for transacting business. But if
the parties meet at any part of the day, a tender and refusal at the
time of the meeting are sufficient. Savary vs. Goe, 140.

2. Sale, 1, 2.

ALIEN ENEMY.

1. Contracts made with an alien enemy, are lawful, if made in a trade
carried on under license of the government, whether they arise

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