edged that his tenancy expired on a certain day. Ferguson v.
Reeve,
11. Rule to shew cause why a verdict be not set aside, grant-
ed, for the insufficiency of evidence of endorsing a note; the wit-
ness stating that he saw the person professing to be the endors-
er, write his name, for the purpose of enabling the witness to
prove his signature. Whitmore v. Corey,
12, Whether a writing is a deed or not a deed, is a question of
law and to be settled by the court, upon inspection, but whether
it is the deed of the party, is a question to be left to the jury.—
Corlies v. Van Note,
13, If an instrument, supposing it to be genuine, does not up-
on inspection, appear to be a deed so that the court can judicial-
ly pronounce it such, prima facie at least; it cannot be made a
deed by evidence dehors the instrument. It may and must be
shewn by evidence in pais, to be the deed of the party; but as to
the question whether a deed, or only a simple contract, the instru-
ment must speak for itself. It must upon inspection, appear to
be a sealed instrument, or cannot be recognized as such by the
court; that is, in case of its being pleaded as a deed, with a pro-
fert in curia.
14, A justice cannot be a witness in his own court, nor act up-
on his own knowledge of a fact, as evidence in the case before
him. The absence of a subscribing witness must be legally ac-
counted for, before evidence of his hand writing is admitted. Ib.
15, Proof of plaintiff's possession, is not requisite in trespass
quare clausum fregit, if in a suit in a Justice's Court, for the
same trespass, the defendant pleaded title and gave bond pursu-
ant to the statute. Appleby v. Obert,
16, Rule granted for the justice to certify what a witness testi-
fied on the trial, and whether the subscribing witness to a paper
read in evidence, was sworn on the trial, or his absence account-
ed for. Anonymous,
17, Rule granted to shew cause why there shall not be a new
trial, because the verdict was contrary to evidence, and to the
judge's charge, and the case involved new, important questions.
De Witt et al. v. Vliet,
18, Judgment of a justice reversed, the only evidence to sup-
port it being a letter from the defendant. Thomas v. Kitch-
395
19, Newly discovered evidence, as a ground for a new trial,
must be material and of a decisive character; and such as to in-
duce a belief that injustice has been done; mere cumulative or
corroborative evidence is not sufficient. Mech. Insurance Co.
ads. Nichols,
410
20, Newly discovered evidence may be admitted on the trial
of an appeal, on affidavit filed, although it is not of such a charac-
ter as would entitle a party to a new trial. Byerson v. Marseil-
lis,
21, A witness may on the appeal, give evidence of material
facts, which he did not testify to on the trial below. Ib. 452
22, In an action on a bank check signed by one as agent,
there must be proof of his agency and authority to draw checks,
in order to recover against the principal. Flax and Hemp Man-
ufacturing Co. v. Ballantine,
1, A sheriff is entitled to centage only on the sum raised for
the plaintiff in exceution, although the sales exceed that sum.-
Sinnickson v. Gale,
2, Execution and judgment set aside, laches appearing on both
sides. Halsey ads. Miller,
65
3, Growing grain, and other annual fruits of annual labor, are
personal estate, and subject to execution against goods and chat-
tels. Westbrook et al. v. Eager,
4, A sheriff having made a levy under an execution in his
hands, is bound to complete the service, although in the mean
time his term of office expires; and he cannot transfer it to his
successor in office, as an unexecuted writ. State v. Hamilton
et al.
5. The term unexecuted writ, used in the statute, means one on
which nothing has been done. Ib.
156
6. Execution from Court of Common Pleas, for costs in favor
of an insolvent defendant, stayed on a statement that it is intended
to remove the proceedings into this court. Allen et al. v.
Shurts,
7, After execution returned, no levy on property can be made
under it. Cook v. Wood,
8, A sheriff cannot sell property, not levied on, by virtue of
an execution.
9, Delivery of an execution to a sheriff. with instruction to do
nothing under it, is no legal delivery; but is a nullity. Ib. 262
10, An indefinite stay of execution, even with a levy, if the
property levied on remain by plaintiff's consent, with the defen-
dant, and under his control, is such a suspension of the plaintiff's
lien, that subsequent executions acted upon, have the prefer-
11, Rule to shew cause against a mandamus to Common Pleas,
to vacate a rule setting aside an execution, refused. It is not a
proper case for mandamus. Vanderveer v. Conover,
12. Money, whether in specie or bank notes, (which are treat-
ed, civiliter, as money,) if in the defendant's possession, or capa-
ble of being identified as his property, may be taken in execution,
or under an attachment. But money in a sheriff's hands, raised
by him on execution, cannot be by him applied in payment of
another execution in his hands against the person who is plaintiff
in the first execution, and defendant in the second; for it is not
his goods and chattels until paid over to him. Nor can such
money in the sheriff's hands be seized as money under an attach-
ment in his hands, for the same reason. But the attach-
inent may be served thereupon, as a right and credit of the defen-
dant, in the sheriff's hands. The sheriff should not deliver the
money to the auditors, but bring it into court, and inform the
plaintiff or auditors in attachment, that he has done so. Crane
v. Freese,
13, On certiorari to Common Pleas, on appeal, the correct
course to prevent, or to obtain a stay of execution, is, to apply to
a judge at Chambers, for a supersedeas. Hull v. Larzalere, 355
14, Execution may without notice to defendant, be issued by
the small cause court, on a judgment in defendant's absence, when
sued by summons; upon the court being satisfied of the danger
of losing the money, if execution be not immediately issued.-
Shay v. Norton,
15, The plaintiff's affidavit of his belief of the danger, is not
se ipso sufficient for issuing the execution: the Justice must be
satisfied of the fact, and must so record it.
Ib.
16, If a suit is commenced by summons, and judgment is ren-
dered for the plaintiff, it is irregular to issue execution thereon
before the expiration of the time of delay allowed to a freehold-
er, unless applied for instanter at the time of rendering jadg-
ment; or, at a subsequent day, upon the proper affidavit, and
notice to defendant, of the intended application. Eddy v. Wil-
liamson,
17, An execution to collect a fine against a defaulting juror,
must not direct the constable to take his body for want of goods.
The State v. Hollinshead,
1, Executors are liable to an action of trover, for a bond and
mortgage converted by their testator. Terhune v. Bray's Exe-
2, A declaration in trover containing counts for a conversion
by a testator and another for conversion by his executors, is a
misjoinder.
3, In an action for legacy, the costs and expenses of auditing
and stating the executor's accounts, upon a plea of want of assets,
as well as the costs of suit generally, will be awarded against
the defendant de bonis propriis if he has been faulty in not pay-
ing the legacy, or any part of it. Meeker v. Arrowsmith, Exe-
cutor,
4, Whether faulty or not, is a questiou for the court, upon the
facts of the case, as reported by the auditors; and the court are
not concluded by their opinion on that point.
5, An administrator suing in trover for goods converted in bis
own time and from his own possession, is liable for costs, if he
fail in his suit. Norcross v. Bowne's adr. C. T. A.
6, The true rule is, that if it is not necessary for the plaintiff
to name himself executor or administrator, he shall pay costs;-
but if his title to the action, comes to him in his representative
character, and he can sue only as such, he shall be excused, if he
fail in the action.
7, Interest upon a specific legacy of money, is to be computed
after and from the expiration of one year after the testator's
death, unless otherwise directed by the Will, although the fund
liable therefor, may not have come to the executors' hands with-
in the first year after testator's decease. Hoagland v. Exrs. of
Schenck,
1, A complaint that the defendant forcibly detains the "mes-
suage or dwelling-house," is too loose and uncertain. And judg-
ment on such complaint, that the plaintiff have restitution of the
messuage, lands and tenements, &c. and a writ of restitution con-
forming to said judgment, are erroneous and cannot be support-
ed. Applegate v. Applegate,
2, Omitting to record in the justice's docket, the sheriff's re-
turn to the venire, is a fatal error.
Ib.
1, This court will not in a summary way, on motion in behalf
of third persons, creditors, enquire into the truth of the plaintiff's
affidavit on entering up a judgment by confession on bond and
warrant of attorney. Nor will it in such summary way on such
motion, set aside such judgment, upon allegation of fraud, al-
though supported by counter affidavits of the applicants. Hoyt
v. Hoyt.
2, The most that the court can do, if fraud be imputed, is to
refer it to a jury, when a proper case is made to justify such a
3, The court ought not to set aside a judgment, or postpone a
plaintiff, in favor of other creditors, on the ground of an implied
or constructive fraud, where no actual injustice has been done.
If the transaction is fair and honest, as between the parties; if
no actual fraud has been perpetrated or intended, but the plaintiff
with an equitable right, has an advantage at law, over other
creditors, the court ought not to interfere. Ib.
4, The question in cases of this kind is not whether other cred-
itors might not have secured their claims if the judgment com-
plained of had not been entered; but whether the plaintiff has
done any thing mala fide or contrary to the statute. If he has
not, his security ought not to be disturbed.
5, A charge, "for that in consideration that the plaintiff
would discharge one V. a third person, from a certain debt, the
defendant promised to pay it ;" and "for that the said V.
being so indebted to the plaintiff, in consideration that he
would forbear to prosecute said V. the defendant promised to
pay V.'s said debt;" And " for that V. being indebted to
the plaintiff for goods sold and delivered by the plaintiff
to said V. the defendant in consideration thereof, promised
to pay for them, &c." being all parol promises, are within
the statute of frauds, and not actionable. Saxton v. Lan-
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