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2. (False.) In an action by a vendor against a vendee, to recover

the consideration of the purchase of land, in which the defendant sets up a defective title and loss of part of the land as a defence, a false recital in the deed is not evidence of actual fraud, without which the stipulated price is the standard value of the compen

sation. Good v. Good, 9 Watts, 567. REFERENCE. (Judgment in effect of.) If a deed be placed

in the hands of referees, in a reference entered into by rule of court, to be delivered to the grantee, in pursuance of an agreement of the parties annexed to the rule, on his giving to the grantor his note for the amount found due by the referees, and if the note be given and received, and the deed be delivered, and the award be contested, but accepted by the court; all preliminary arrangements by the parties must be understood to be irrevocable while the judgment remains in force, and are not to be examined over again in an action for the land thus conveyed, even if mistake or fraud in the referees can be shown.

Tyler v. Carleton, 4 Shepley, 380. REPAIRS. (Pay for make.) A covenant by a lessor, that

he will pay all repairs exceeding a certain sum, cannot be so construed as to oblige him to make the repairs. Lomis v. Ruet

ter, 9 Watts, 516. STATEMENT. (In lieu of declaration.) Nothing is indispen

sable to a statement which is not made so by the statute which has substituted it for a declaration ; the cause of action must be set forth intelligibly, so as to exhibit an available cause of action, but performance of conditions precedent and every thing beyond the defendant's engagement to pay may be omitted.

Snevely v. Jones, 9 Watts, 433. STATUTES. (Revival.) The expiration of a statute, by its

own limitation, ipso facto revives a statute which had been re

pealed and supplied by it. Collins v. Smith, 6 Wharton, 294. SEIZIN AND DISSEIZIN. (Election.) If one who has the title

and right of entry into lands, make an actual entry upon the tenant in possession, who resists the entry, and persists in the occupation; this is a disseizing at the election of the owner,

upon which a writ of entry may be maintained, although the tenant may show on the trial that he held by lease under one without title.

Dow v. Plummer, 5 Shepley, 14. 2. (Declarations. Although the declarations of one in posses

sion of land that he held in subordination to the legal title, made after a conveyance of all his claim thereto, cannot affect the rights of the grantee, yet they do defeat any claim of title acquired by the grantor himself, prior to the conveyance, by

disseizin. Hamilton v. Paine, 5 Shepley, 219. SHIPPING. (Liability of owners.) Where a vessel is let to be

employed for the season in fishing, to one who is to be master, and is to victual and man her, and is to pay to the owners for her hire a certain proportion of her earnings, and is to take his outfits and supplies of them ; the owners are not liable during the time for any outfits furnished by others at the request of the

master. Houston v. Darling, 4 Shepley, 413. SLANDER. (Proving malice.) In an action of slander, evidence

of words of a similar import of those charged in the declaration, spoken by the defendant afterwards, before and after the commencement of the action, is admissible for the purpose of prov

ing malice. Smith v. Wyman, 4 Shepley, 13. 2. (Proof of charge.) In an action of slander, the defendant

cannot give evidence of any other crime than the one charged, either in bar of the action, or in mitigation of damages. · Ridley

v. Perry, 4 Shepley, 21. SUBSTITUTION. (Sureties.) One of three joint sureties, who

paid the debt to their common creditor, may be subrogated to the rights of that creditor in the judgment paid by him, to enable him to recover contribution from the other two. Croft v. Moore,

9 Watts, 451. SURETY. (Discharge of.) A surety is entitled to have his

contract executed according to its terms; and if the creditor before the day of payment make a new contract without the consent of the surety, whereby he gives time, and disables himself from compelling payment at the day by a suit at law, or places himself in such position that the debtor can in equity

obtain an injunction against his proceeding, the surety is dis

charged. Leavitt v. Savage, 4 Shepley, 72. 2. (Same.) If the contract be by an instrument under seal, the

surety may be discharged by an extension of the time of pay.

ment, or of performance, by a writing without seal. Ib. 3. (Same.) Yet if the contract extending the time be without

consideration, it is not binding upon the creditor, and the surety

will not thereby be discharged from his liability. Ib. 4. (Same.) But the mere delay of the party to enforce payment

at the time or in the manner provided in the contract does not release a surety; nor will the liability of the surety be discharged by the neglect of the creditor to enforce payment by a

suit against the principal on the request of the surety. Ib. TENANTS IN COMMON. (Ouster.) As between tenants in

common, a legal presumption of ouster arises in favor of one who has been in the peaceable and exclusive perception of the profits of the land for more than twenty-one years. Mehaffy

v. Dobbs, 9 Watts, 363. TRUSTEES. (Liability of.) Where one of two joint trustees,

who had received the fund of a residuary estate bequeathed to a minor, became embarrassed in his business, and placed in the hands of his co-trustee securities “as a deposite for moneys belonging to the residuary estate" used by him, for which his co-trustee gave him a receipt; and afterwards the friends of the residuary legatee becoming alarmed applied to the co-trustee, who said he held notes sufficient to cover the whole of the estate," and that they might make themselves perfectly easy on that score ;” which induced them to pay no further attention to the subject; and subsequently the co-trustee, who had received the securities, returned them to his colleague, who realized the amount of them, and the debt was lost to the estate in consequence of his bankruptcy: held, that the trustee was chargeable in account with the amount of the deposited securities surrendered by him, together with interest upon the amount thereof, first deducting therefrom a commission of five per cent. Evans's estate, 2 Ashmead, 470.

2. (Same.) Where the trustee appropriated the amount of the

securities returned to him by his co-trustee, together with other moneys received by him, belonging to the trust fund, to the purchase of lands in the state of Ohio, it is no objection to the liability of the co-trustee, for the amount of the securities lost through his negligence, that the party injured made no attempt to enforce the specific lien which might have existed against

the land purchased by the bankrupt trustee. Ib. 3. (Same.) Where it can be clearly proved, that a trustee has

used his trust funds in the purchase of lands in his own name and for his own use, chancery will raise the money out of the land, by a sale of the whole, or such part of it as may be neces.

sary to produce the sum drawn from the trust fund. Ib. 4. (Resulting trusts) arise where purchases are made with the funds

of another, in the name of the purchaser, for the use of the owner of the money ; and equitable liens arise in cases where it can be clearly shown that a trustee has used the trust funds

in the purchase of real estate for his own use. Ib. 5. (Same.) A resulting trust, if it arise at all, must arise at the

time of the conveyance, and is a pure, unmixed trust of the ownership and title to the land itself; and is not an interest in the proceeds of the land, nor a lien upon it as security for an advance or other demand, nor an equity or right to a sum of money to be raised out of the land, or upon the security of it.

Ib. 6. (Purchase from.) The maxim caveat emptor is inapplicable to

a purchaser from a trustee, but he may set up a want of consideration, or any defect of title, as a defence to an action for the purchase-money, which he might set up to an action on a contract of sale by the beneficial owner ; hence, in an action by an assignee in trust for the benefit of creditors, to recover the price of a tract of land held by the insolvent assignor under articles of agreement only, the defendant is entitled to defalcato in proportion to the purchase-money due by the assignor on the

articles. Adams v. Humes, 9 Watts, 305. TRUST. (Payment of purchase money.) Where one contracts




for the conveyance of land to him on his paying certain sums at specified times, a resulting trust is not created by his paying a part of the purchase money. Conner v. Lewis, 4 Shepley,

268. USURY. (Sale of note.) The sale of a negotiable note, free

from usury when made, at a greater discount than legal interest, is not conclusive evidence of usury, although the party making the sale is unconditionally liable by his endorsement. Farmer

v. Sewall, 4 Shepley, 456. VENDORS AND PURCHASERS. (Vesting of property.) Where

an election is given to the party receiving a chattel to return it, or to pay a sum of money, by a given day, the property in the chattel immediately vests in him. Buswell v. Bicknell, 5 Shep

ley, 344. 2. (Same.) Where the owner of a cow delivered her to another,

on his promise to pay a certain sum of money therefor by a given day, or to return the cow and pay a lesser sum for the use thereof, the property in the cow immediately passed from

the former to the latter. Ib. WAGER. (Not recoverable.) An action cannot be maintained

in Pennsylvania to recover a sum of money alleged to have been lost by the defendant to the plaintiff upon a wager or bet.

Edgell v. M'Laughlin, 6 Wharton, 176. WARRANT. (Same name.) A plaintiff could not maintain

ejectment for a tract of uncultivated land merely because his name is the same as that used in the warrant; he must be iden. tified by evidence of his having paid for the warrant, or procured the survey to be made, or paid the purchase-money : — and if it appear that another person paid the purchase-money and procured and paid for the survey, the name will not give title against the purchaser who bought and paid for the land, even if the plaintiff show that he wrote the application. Wolf v. Goddard,

9 Watts, 544. WARRANTY. (Unfounded affirmation.) No implied warranty

arises from an unfounded affirmation of soundness in the sale of a chattel; but for a deceitful representation of it, the remedy is by an action ex delicto. M Farland v. Newman, 9 Watts, 55.

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