rather made a valid partition in accordance with it, by taking possession and exercising acts of exclusive ownership, on the principle of Ebert v. Wood, 1 Binn. 216, a question arises whether it was not avoided by the subsequent eviction of a part of one of the purparties.

This question is of easy solution. Every partition, as well as every exchange, implies not only a warrant at the election of the party, but a condition entire, the breach of which gives an entry into the whole; with this difference, however, that a voucher to warranty of the part evicted affirms the partition by the acceptance of a compensation, while an entry for the condition broken defeats it. If, then, the whole or any less estate of freehold be evicted, in all or any part of a particular property, the partition may be avoided in the whole, whether it be of a manor that was entire, or of parcels that were several. As if A., being seised in fee of one acre in possession, and of another expectant on an estate for life, disseise the tenant for life, and die, a partition of these two acres between his two daughters will be avoided by the entry of the disseisee: Vin. Par., 2 pl. 5, 6; and the same law is laid down, 1 Inst. 174. So it is said that one parcener can not enter into her part again without the consent of the other, yet if a stranger enter into her purparty by an older title, she may enter with the other and compel her to make a new partition: Bro. Par., pl. 34. Again, after eviction of an estate of freehold from a parcener who has a bad title as to the whole or a part, she may enter and avoid the partition as to the whole or a part: Co. Lit. 208; and the same law was held in Bustard's case, 4 Rep. 121, b, on the authority of 15 E. 4, 3, and 42 Ass. 22; and the principle of the Earl of Pembroke's case was affirmed, while the opinion of Cavendish, that partition shall remain, though an estate for life or in tail were evicted, was denied. Such, then, being the rule, and the party entitled to enter being already in possession, an entry to give her the benefit of the condition was unnecessary; as was held in Hamilton v. Elliott, 5 Serg. & R. 375, where the doctrine on the subject was particularly examined. By the eviction of part of the purparty allotted to Garber's heirs, therefore, the parties were remitted to their original rights; and these were not varied by their action on the covenant of Grant, from whom the original tenants derived the estate; inasmuch as recourse to that was entirely consistent with the original tenancy.

In respect to another point in the cause, the court charged that if the defendant's husband came into possession under his

father (one of the original tenants in common), she would be bound to deliver the possession to the plaintiffs, who are grantees of the father's reversion. But she, also, was a child of one of the original co-tenants, and in the absence of other proof, there is a presumption that she and her husband came in under both. On the death of her father, then, to what did she succeed? Not only to a portion of his estate, but to his character of landlord, in which, as she could not surrender the possession to herself, she was entitled to retain it as an accessory of her newly acquired ownership, at least so far as was consistent with the nature of her estate, and the concomitant rights of her cotenants. The parties, then, stand in point of right as if no partition had been made, or under tenancy created, each being entitled to possession in common with the rest, according to the quantum of his estate.

Judgment reversed, and a venire de novo awarded.

PAROL PARTITION FOLLOWED BY POSSESSION ACCORDING THERETO IS VALID Jackson v. Harder, 4 Am. Dec. 262 and note; Haughabaugh v. Honald, 5 Id 548; Jackson v. Vosburgh, 6 Id. 276; Compton v. Mathews, 22 Id. 167 and note.

PARTITION MAY BE MADE ON A MAP.-Actual separation of parts is not necessary: Compton v. Mathews, Id.

ORPHANS' COURT HAS NOT AUTHORITY TO DECREE A PARTITION between the children and their father's co-tenant, and between the children themselves: Brown v. Adams, 2 Whart. 191; Romig's Appeal, 8 Watts, 415; Mehaffy v. Dobbs, 9 Id. 376; In re Eell's Estate, 6 Pa. St. 459, in each of which the principal is referred to. Further citations of Feather v. Strohoecker, will be found in Coleman v. Coleman, 19 Id. 110; and in Seaton v. Barry, 4 W. & S. 185, in regard to the warranty by which parties to a partition are bound.

CASE OF MILLER'S ESTATE.

[3 RAWLE, 312.]

THE EXECUTION OF A SPECIALTY IS SUFFICIENTLY PROVED by the testimony of the subscribing witnesses, that they recognize their signatures and remember the transaction, though they have forgotten the fact of formal delivery.

WHERE THE SUBSCRIBING WITNESSES do not remember, the testimony of a person present will be received to prove the execution of a specialty. AN ACQUIRED CHARACTER DEPENDING ON ACTUAL RESIDENCE, and not on the existence of commercial relations, is abandoned for every purpose of legal effect the instant a step is taken to abandon the country.

ON A DECEDENT'S DEATH ASSETS ARE TO BE COLLECTED by the authority and administered according to the law of the country where they happen to be at the time of the decease.

A FOREIGN CREDITOR OF AN ESTATE must submit to the law of the former in the administration of the estate. Whether the rule applies to foreigners from whose country assets have been irregularly abducted, quære. APPEAL from a decree of probate. William G. Miller died at Alvarado, Mexico, after a residence there of four or five months. Clement S. Miller, his brother, of Philadelphia, took out letters of administration on the estate, which consisted of funds transmitted to him by the surviving partners in Alvarado. Simple contract creditors residing in foreign countries preferred claims to amount almost equal to these assets; and the assignees of Abraham Piesch presented a claim as specialty creditors on a specialty executed by Miller, as follows: Miller gave a sealed acknowledgment of his debt, which sealing was not stated in the body of the instrument, the party declaring himself only to have "set his hand." The subscribing witnesses swore to their own signatures, but could not remember any signing, sealing, or delivery by Miller. One of Miller's assignees having released his commissions, deposed that he himself had affixed the seal by agreement with Miller, and that he afterwards acknowledged the instrument in the presence of the subscribing witnesses. The instrument was pronounced a specialty by the court, and it being for amount greater than the whole estate, the assets were ordered to be paid to the assignees of Piesch. Whence the simple creditors appealed.

Laussat and C. J. Ingersoll, for the appellants. The subscribing witness alone ought to have been permitted to testify to the execution of the specialty: U. S. Bank v. Dandridge, 12 Wheat. 91; Sigfried v. Levan, 6 Serg. & R. 311 [9 Am. Dec. 427]; Steel v. Tuttle, 15 Id. 210; Cowden v. Reynolds, 12 Id. 283; Lesher's Lessee v. Levan, 2 Dall. 96. The circumstance of forgetfulness in the subscribing witness is no reason for introducing other testimony: Appleton v. Beard, 18 Serg. & L. 219; Pitt v. Griffith, 17 Id. 56; Taylor v. Meekly, 4 Yeates, 79. The funds in this case were wrongfully removed from Alvarado, and ought to be distributed according to equity, there being no law providing for preferences in such funds: Harvey v. Richard, 1 Mason, 408; Milne v. Moreton, 6 Binn. 353 [6 Am. Dec. 466]; Topham v. Chapman, 1 Const. Rep. (S. C.) 292 [12 Am. Dec. 627]; Holmes v. Remsen, 20 Johns. 265 [11 Am. Dec. 269]; Dawes v. Head, 3 Pick. 128.

Miller, contra. The subscribing witnesses have proved enough to sustain the instrument as a specialty: Pigott v. Hollo

way, 1 Binn. 436; Long v. Ramsay, 1 Serg. & R. 72. If they had not, the testimony of the assignee was competent: Taylor v. Meekly, 4 Yeates, 79; Lowe v. Jolife, 1 Bl. 365; Ley v. Ballard, 3 Esp. 173, note; Grellier v. Neal, Peak. N. P. 198. Upon the question of domicile, counsel cited: 2 Kent Com. 348; Guier v. O'Daniel, 1 Binn. 352, note; Bruce v. Bruce, 2 Bos. & Pul. 229, note; Somerville v. Somerville, 5 Ves. jun. 787; Denisart, tit. Domicile, 1, 7, 18, 19; 2 Domat, p. 486, b. 1, tit. 16, sec. 3, pl. 5; Pothier, Costumes d'Orleans, c. 1, n. 8, 9; Voet, Pandect, lib. 5, tit. 1, 92, 97; Monroe v. Douglass, 5 Madd. Ch. 379. The business of administration is to pay debts as well as collect assets: Selectmen of Boston v. Boylston, 4 Mass. 318, 324. These payments should be according to the law of the forum: Richards v. Dutch, 8 Mass. 506; Dawes v. Boylston, 9 Id. 337 [6 Am. Dec. 72]; Stephens v. Gaylord, 11 Id. 255; Dawes v. Head, 3 Pick. 128; Harrison v. Sterry, 5 Cranch, 299; Smith v. Union Bank, 5 Pet. 516; Desesbats v. Berquier, 1 Binn. 344 [2 Am. Dec. 448].

By Court, GIBSON, C. J. The execution of the disputed specialty is established by plenary proof. Did it stand on the testimony of but the subscribing witnesses, it would still be sufficiently made out. Both recognize their signatures, and both remember the transaction, but neither remembers the fact of a formal delivery. Nothing is clearer, however, than that a formal delivery is not indispensable. The leaving of a deed on the table for the grantee to take it away, has been held sufficient. Here the instrument is proved, by one of the subscribing witnesses, to have been laid on the counter, which, in connection with the fact that it is produced by the party who claims under it, is enough in all reason to warrant a presumption of its delivery, and this on the ground of all presumptions-the usual course of such transactions. In a vast majority of cases, the deed is merely left for the grantee to take it away, and where it is produced by him, the law, in the absence of proof to the contrary, infers a delivery, for the reason that, in the absence of countervailing proof, it presumes against fraud and in favor of innocence. So strong is this presumption that in the case of a second marriage within a year after the husband had left the country, it has been allowed to prevail over the usual presumption of continuauce in life: Stark. Ev., pt. 4, p. 1248. It is therefore natural and reasonable to presume that the grantee producing, as he does, an instrument which is proved to have been signed, sealed, and left on the counter, with no view, that

appears, to a postponement of the delivery, obtained the possession of it with the assent of the grantor rather than surreptitiously. It is by force of the same presumption that proof of the handwriting of subscribing witnesses, who are dead or can not be had, is prima facie evidence of execution. And such presumption accords not only with the current of such transactions, but with the recollection, as far as it goes, of the subscribing witnesses here, both of whom say, in effect, that unless the deed had been delivered they would not have subscribed it as witnesses of the fact. Of what effect then is it that the parties have omitted the usual recital of having affixed the seal? That recital is by no means essential to the validity of a deed, nor does it bear even remotely on the disputed fact of delivery; and as evidence of intention it is certainly less operative than the customary memorandum of the execution subscribed by the witnesses, to which any recital or declaration of the parties themselves is inferior, just as proof of their handwriting is inferior. But in addition to the testimony of the subscribing witnesses we have that of one of the assignees, having released any beneficial interest which he might be supposed to have in the trust, who proves the admission of the assignor, at the time of sealing, that the instrument was then his deed, of which delivery was certainly a constituent part. The objection to the competency of this witness, on the alleged ground that none but a subscribing witness, where there is one, can be heard, is destitute of the shadow of an argument. The testimony of the subscribing witness, where it is attainable, must be had in the first instance, as it has been here; but the law is not so unreasonable as to declare that the grantee must lose his right wherever they have lost their memory. The title to priority in the case before us, then, depends not on the proof of the instrument, but on the solution of a question, whether administration is to be made according to the law of the domicile, or of the situs rei, at the time of the intestate's death, and that involves a preliminary inquiry as to the true place of his domicile.

The facts are, that being a native of Philadelphia, and having been absent from the United States for seventeen years, he returned on the business of a commercial house at Buenos Ayres and Montevideo, of which he was a partner, but with no purpose of resuming his foreign residence. He resided with his father's family here for two years, during which his connection with the house in South America was dissolved by efflux of time, and a partnership formed between him and other persons