*ABATEMENT.

'HAT is a reasonable time to renew an action after abatement; or to prosecute it upon the foundation of the old writ, where there has been no abatement. Page 412.

See Practice. Action.

ACCOUNT.

See Action. ACTION.

The Court will not in one action enquire, upon motion, into the merits of another. 127 An action for money had and received, &c. is a liberal action, and will lie in all cases where, by the ties of natural justice and equity, the Defendant ought to refund. 145

But where a party might with good conscience receive the money, although he could not recover it at law, he who voluntarily paid it, cannot in this action compel a return. ibid.

The Court will enquire into the cause of action in the case of Foreign Attachments, as they do in cases of Capias. 154 There is no case which gives a creditor an action against the debtor of his debtor: there is no privity between them. ibid. A writing under seal cannot be given in evidence, to support an action of Assumpsit upon a promissory note. 208 An action will not lie in a common law Court, where the question arises from the necessary and immediate consequences of a vessel's being taken as prize. 218 In an action for money had and received, &c. the Plaintiff so far confirms the Defendant's act, as that he cannot gainsay the right to receive the money, and can recover no more than was actually received.

666

In an action of debt brought upon a bond, and where the issue is joined on a plea of payment, the Jury may, and ought to presume every thing to have been paid which ex equo et bono, in equity and good conscience, ought not to be paid.

260

In an action of account between partners, if these facts are proved, that a partnership existed, that the Defendant was the acting partner, and that he received any part of the sum, from any of the persons mentioned in the declaration, the Court will uniformly oblige him to account. 339 The mere sale and delivery of a promissory note, without any indorsement or assignment, will not be sufficient to maintain an action brought by the purchaser in his own name, where no other consideration for an Assumpsit is laid in the declaration. 370

A person whose estate was confiscated during the late war, under an act of the Legislature of Connecticut, for adhering to the British government, cannot sue here to recover a debt, vested by that confiscation in the State of Connecticut, although no proceedings were had on the part of the State, to reduce the debt into possession, before the treaty of Peace. 400 What is a reasonable time to renew an action after abatement, or to prosecute it upon the foundation of the old writ, where there has been no abatement. 412 Assumpsit for money had and received, &c. will lie to recover back the consideration money given for the purchase of lands; and deeds or other writings which are not the immediate foundation of the suit, but only tending to it, may be given in evidence. 429 11] Letters of Administration granted by the Archbishop of York in the kingdom of England, are not of sufficient authority to maintain an action here. Page 456 See Practice. Alien. Assignment. Consolidation. Covenant. Lis Pendens.

On the plea of want of assets, in an action against an executor by a residuary legatee, auditors shall be appointed ex tempore; and it is not sufficient to object, that the executor's accounts have been before settled by a reference. 164

Payment to an executor or administrator of a deceased partner can be no satisfaction to the survivor, who has the sole right of suing for, and of receiving the monies due to the company. 250

Although an executor by paying money over to his co executor, who becomes insolvent, would be chargeable if there were creditors, and a deficiency of assets to satisfy them, yet he is not answerable to legatees.

312 A creditor taking a bond from the executors or administrator of his deceased debtor, discharges the old debt, in note.

347

Letters of administration granted by the Archbishop of York in England, are not a sufficient authority to maintain an action here. 456 See Reference.

ADMIRALTY.

The Delaware is within the Admiralty jurisdic

49

tion. A Court Admiralty cannot carry an agreement into specific execution, nor give damages for the breach. ibid. The owners of Letters of Marque are responsible for injuries committed on the high seas, by the commanders sent out by them; at least to the value of the vessels.

95

In cases of capture from enemies, persons in other vessels acquire no right, merely by seeing the capture made. ibid.

In what cases the Admiralty has cognizance.

ibid. In what cases appeals from the Admiralty to the High Court of Errors and Appeals, are regular. ibid.

The master of a ship is answerable over to his owners, where they have been obliged to pay a third person for damages sustained by his misconduct; but the Court, under favourable circumstances, may reduce the quantum of damages below what the owners have paid. 180

It is a wrong position, that a master of a ship is not answerable for an error in judgment, but only for a fault of the heart, in civil matters. ibid.

Where the question to be tried, though not directly a question of prize is yet a question arising upon the immediate and necessary consequence of a vessel's being taken as prize, it is solely and exclusively of Admiralty jurisdiction, and an action will not lie in a common law Court.

See Master and Servant. Damages.

218

The Court, in an action on a bill of exchange,
will allow the Plaintiff to strike out a special, as
well as a general indorsement on the bill."

193
A protest for non-payment must appear under a
notarial seal.
ibid.

Possession of a bill of exchange is evidence of an
authority to demand payment of its contents. ibid.
A bill of exchange without the words, or
order," or other words of negotiability, is not in-
dorseable over, so as to enable the indorsee to bring
an action on it, against the acceptor, in his own
194

name.

CONSOLIDATION.

See Reference.

CONTEMPT.

It is a contempt of the Court to withhold a Venire.
29
endeavour to prejudice the public mind in writings
It is a contempt, for which an attachment lies, to
respecting a cause depending in Court.
319

When the Defendant is present, on a rule to shew
cause why an attachment should not issue against
rule absolute; but proceed to give judgment for
him for a contempt, the Court will not make the
the offence.

See Reference.

CONTINUANCES.

See Practice. Limitations.

CONTRACT.

ibid.

superior officer, will bind the latter to discharge
the contracts of the former.

In what cases the relation of an inferior and
140

See Covenant.
CONTRIBUTION.

See Intestate.

COVENANT.

A covenant to repair, and deliver up the demised
premises in good order and repair, runs with the
land, and shall bind the assignee as much as the
lessee, even if the assignee were not named by
express words, on account of the privity. 210

Covenant to deliver up the premises in good order
on the 1st of March, 1778, but the same being taken
possession of by an alien enemy, and held until the
end of the Term, and afterwards: It was adjudged,
that the assignee of the lease was excused from
performance of this covenant; 1st, Because a coy-
enant to deliver up the premises in good repair,
against an act of God or an enemy, ought to be
special and express; 2dly, Because the Defendant
had no consideration, no premium, for the risque;
and it was not in the contemplation of either party;
and 3dly, Because equality is equity, and the loss
should be divided;-he, who had the term, will lose
the temporary profits of the premises; and [*vi
he, who has the reversion, will bear the loss done
to the permanent buildings.

- 210

Where there is a ground rent deed, containing an
express covenant on the part of the lessee, for the
payment of rent, and he assigns over the premises;
although the lessor accept rent from the assignee,
covenant will lie for him against the lessee to
recover subsequent rent.
307

CONVEYANCE.
See Deed.
COSTS.

The act of Assembly is positive, that, upon the
reversal of a judgment in the High Court of Errors
and Appeals, each party shall pay his own costs.

292
Costs not allowed where the debt is reduced
under £.10 by a direct payment, and not by set-off
on the trial.
308.457
What costs will be allowed on executing a com-
mission.
310

Where witnesses, upon an attachment for not
obeying a subpæna, proved their absolute inca-
pacity to attend, the Court directed the costs of the
attachment to abide the event of the suit. 340
The Jury ought to include the costs of the re-
plevin, in their verdict in an action brought upon
the replevin bond.

See Prosecutor.

CURRENT MONEY.

440

Current and Lawful Money are synonymous. 126
The legal currency of Pennsylvania was conti-
nental money.
ibid.

A bond payable in "lawful current money of
Pennsylvania" must be taken to relate to the
money issued by Congress.
ibid.

Current lawful money, by the positive words of
the act of Assembly, means such money as is cur-
rent at the time of entering into the contract. 175

See Payment.

cargo.

CUSTOMS.

Where the captain of a vessel is obliged by law to deliver a manifest of his cargo, he does not comply, unless he exhibits a true and accurate one. 205 Every thing put on board of a vessel, is, generally speaking, comprehended in the description of her 205 What unlading of goods will be cause of confiscation. ibid. The want of knowledge, or of participation of the owners, will not prevent the confiscation of a vessel, from which goods have been unladed before a due entry at the custom-house. ibid.

DAMAGES.

ON an appeal from the Admiralty, the High Court of Errors and Appeals, having reversed the decree of the Court below, granted a re-hearing upon this point, whether the High Court of Errors and Appeals had a discretionary power with respect to damages? which was determined in the affirmative. 185

In a suit against the captain of a privateer, brought by the owners of the vessel, after a recovery against them for his misconduct, in seizing a ship and cargo as prize, which were not so, the High Court of Errors and Appeals did not make the amount paid by the owners, the measure of damages against the captain; but, upon some favourable circumstances appearing for him, they decreed considerably less.

See Comptroller General. Bill of Exchange. DEED.

ibid.

Baron and Feme joined in a conveyance of the Feme's lands to trustees for certain uses; they afterwards acknowledged the deed before a Justice of the Common Pleas, who indorsed upon the deed, that the Feme was examined apart from her husband, and declared that she had voluntarily executed it, &c. Adjudged to be a good conveyance, upon account of the usage. 11. 17

An ancient deed, of sixty years date, allowed to be read in evidence, although possession had not gone along with it, on proof of the hand writing of one witness who was dead, and the other not known. 14 The recital of one deed in another, is only evidence against him who claims under it. 67 Interlineation, if made after execution of a deed, vii* will avoid it, though in an immaterial point; and the presumption is against its having been made before.

67

Deed dated before, but not recorded 'till after a sheriff's deed, allowed to be read in evidence. 69 The Court cannot hinder the reading a deed under seal; but what use will be made of it is another thing.

ibid.

J. V. devises lands unto his eldest son A. in fee tail, with remainder in fee to all his other children; and afterwards by deed "in consideration of natu"ral affection, he gives, grants, &c. fully, freely, "absolutely, and clearly, the same premises, to his "son 4. V. together with all the rights, titles, in"terest, claim, and demand whatsoever, which he "then had in the said granted premises, or any part "thereof, Habendum unto him only the said A. V. "without any further condition, &c.' Adjudged 1st. That this deed is a covenant to stand seized to uses: 2d, That since the stat. of 27 H. 8. c. 10, no inheritance, in a covenant to stand seized to uses, or other deed to uses, can be raised, or new estate created, without the word heirs: and 3d, That there are no words in this deed, technical or relative, that can raise a fee; so that A. V. had only an estate for life in the premises. See Partners.

Evidence. Devise. Mortgage.

DEVISE.

137

Devise to trustees, to the intent, that after my wife's decease, or in case she shall marry, they should sell, and divide the money arising from the sale among the testator's children, when they severally attained the age of 21 years, or were married: Adjudged, that this was a vested legacy in one of the testator's children, who attained the age of 21, married, and died intestate, and without issue, in the life time of the widow, who never had married again, but after whose death, the trustees sold.

"I devise the residue of my estate to J. P. during the term of his natural life, and if he leaves lawful issue, then I give my real estate unto such issue: But in case of his dying without issue, or they dying under 21, then I devise all my real estate unto A. J. his heirs and assigns, on condition that he, or they, pay, &c." Adjudged, that J. P. took an estate tail, which was forfeited by his attainder. 47 The word transfer being used among the disabilities to which non jurors are subjected by the act of Assembly, a non juror is incapable of devising lands.

179

Devise of lands to the testator's son John, when

he arrives at the age of 21 years, to hold to him, his heirs, and assigns forever, is a vested devise; and in case of the death of the son intestate, under age, unmarried, and without issue after the death of his father, his mother surviving him, the estate devised shall not go to his eldest brother as his heir at common law, but be distributed equally among 20.175 his brothers and sisters.

T. B. begins his will, "And as to what worldly estate I am blessed with, I dispose of as followeth :" and then, he devises, 1st, "To his son J. B. a house and plantation where the testator then dwelt, &c. to have and to hold unto the said J. B. his heirs and assigns forever, he paying, &c." 2dly, "To his wife M. a certain piece of land, bounding, &c." Also, he gave his wife one third of such moveable estate as should remain after the payment of his debts, funeral expenses, and legacies, which should be in licu of her dower or thirds of his estate: And, 3dly, after bequeathing some legacies, he directs his house and land by the mill to be sold by his executors: Adjudged, that the wife M. had only an estate for life in the piece of land devised to her. See Deed. Will. Dower. Intestate.

DISCONTINUANCE.

226

The Court refused to allow the nominal Plaintiff to discontinue an action, it being proved, [*vfil that it was brought in his name for the use of another, upon a bona fide assignment of the debt. 139 See Practice.

DISTRESS.
See Replevin.
DISTRINGAS.
See Practice.
DIVORCE.
See Practice.

DOMESTIC ATTACHMENT.

The creditors under a domestic attachment hav

ing made a dividend before notice of a debt due to the Commonwealth, under the circumstances of the case, the Commonwealth was not afterwards entitled to full payment.

151

What constitutes an inhabitant within the attachment laws. 152. 158 A judgment has relation to the first day of the Term, so as to exclude a domestic attachment in favour of the judgment creditor.

See Foreign Attachment.

DOWER.

450

The demandant in dower is not estopped from recovering therein, by an action of partition which she had before brought, for dividing lands under a devise in her husband's will, and in which it was acknowledged, that the moiety of the premises, out of which dower is claimed, belonged to the tenants.

See Devise. Partition.

418