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d. Grantor for Grantee, at the suit of third person in Trespass.
25. In an action of trespass quare clausum fregit, the defeudant justified

under right of freehold; and it was held that a person who had conveyed
the premises in question to the plaintiff, with covenants of warranty, was

a competent witness to prove the trespass. Van Nuys v. Terhune, 81.
Cascs and authorities, 83, n. (6.)

e. Tenant of Devisee in ejectment, by Heir v. Dedisee.
26. A person who was a tenant under a devisee of part of the estate devised,

was held to be a competent witness, in an action of ejectment brought
by the heir against a tenant, who held part of the premises under the
testator or devisee, and under the witness, in order to impeach the validity

of the will. Jackson, er dem. Woodhull v. Rumsey, p. 234.
Cases and authorities, 237, n. (b) and (c.)

f. Party to negotiable paper to impeach the same.
27. A person is not a competent witness, to impeach the validity of a nego-

tiable nute or instrument, which he has made or endorsed, though he is

not interested in the event of the suit.
The payee and endorser of a promissory note, who had been discharged un-

der the bankrupt law of the United States, and had released all his inter-
est, was held to be an incompetent witness, to prove that the nole was
given for a usurious consideration.

Winton v. Saidler, 185. Stewart v. Cunie, 546.
Cases and authorities, 197, n. (a.)
28. The principle of these cases is overruled in New York, Virginia, Con-

necticut, Massachusetts, South Carolina, Tennessee, Maryland, New Jer.
sey, North Carolina, Alabama, Illinois, Missouri, and also in England.

The United States Courts, however, follow the principle of these cases.
See 197, n. (a.)

(g.) Effect of pardon with proviso against relieving from iegal disabilities.
29. A. having been convicted of forgery, was sentenced to the state prison

for life. He was afterwards pardoned by the governor. The pardon con-
tained a proviso, that it was not to be construed so as to relieve A. from the
legal disabilities arising from his conviction and sentence, &c., but only

from the imprisonment.
He was afterwards offered as a witness for the people, on a trial for an in.

dictment and admitted to testify, although objected to as incompetent. It
was held that the proviso in the pardon being incongruous and repugnant
to the pardon itsell, ought to be rejected, and that the witness was compe-

tent. The People v. Pease, 333.
30. The authority of this case, however, seems to be doubtful.
See cases and authorities, 335, n (a.)

3. Subscribing.
31. Proof of the hand-writing of an instrumentary witness who is dead, is

sufficient prima facie, without proof of the hand-writing of the party exe-
cuting it. Mott v. Doughty, 449. Seo vol. 1, p. 230, 231, n. (a.)

XXVI. Written Contract-Parol Evidence to vary-Am-

biguitas latens.
32. A policy of insurance was effected on goods from Philadelphia to Ham-

burgh, dated the 29th of May, 1798, at 17 1-2 per cent. “ to return 15 per
cent. in case an insurance has been effected in Europe.” It also contained
the following printed clause : “ Provided that if the assured shall have
made any other assurance upon the premises prior in date to this policy,
then the insurers shall be answerable only for so much as the amount of
such prior assurance may be deficient, &c. and shall return the premium
on so much of the sum assured, as they shall, by such prior assurance, bo
exonerated from. And in case of any insurance upon the premises, subse-
quent in date to this policy, the insurer shall be answerable for the full sum
subscribed, &c, and be entitled to retain the premium, in the same manner
as if no such subsequent insurance had been made." Insurance was also

effected on the same goods at Hamburgh, the 19th June, 1798.
It was held, that according to the true construction of the written and printed

clauses, the insured could not claim a return of premium on account of the
insurance at Hamburgh; and that parol evidence to show that it was the
understanding and intention of the parties that the policy was to be void in

case of a double insurance, was inadmissible.
If there be any apparent contradiction in a contract, it is the business of the

courts to endeavor to reconcile the whole instrument; and the language
which is clear and explicit, must always control that which is obscure or

equivocal. Per Kent, J.
Parol evidence is to be received in the case of an ambiguitas latens, to ascer-

tain the identity of a person or thing, but before the parol evidence is to be
received in such case, the latent ambiguity must be made out and shown

to the court. Per Kent, J. New York Ins. Co. v. Thomas, 1.
Cases and authorities, p. 4, n. (a) and (b), p. 5, n. (d) and (e.)




On a sheriff's sale by an alias fi. fa., held:
1st. That the alias clause may be rejected, no previous fi. fa. having issued.
2d. That the sheriff's return on the writ is not material to the purchaser's

3d. That the purchase of an agent for the plaintiff, and a deed to him creates

a resulting trust for the plaintiff, not within the statute of frauds, and that
the possession of the defendant is not to be deemed adverse to the pur.
chaser without an actual disseisin or ouster.
Jackson, ex dem. Kanes v. Sternbergh, 440. See vol. 1, p. 153.




I. Right to recover rents due to Testator or Intestate

and on Covenant of Testator.
II. Proceedings against.

1. By Devisees.

2. Setting aside default.
III. Costs in Actions by.

I. Right to recover rents due to Testator or Intestate, and

on Covenant of Testator.

1. Executors are liable upon the express covenant of their testator, so long as

a privity of contract exists, though the breach happen while a third person

is in possession of premises to which the covenant relates.
An executor cannot recover rent accrued after the testator's death upon a

lease in fee. Ex'rs of Van Rensseluer v. Ex'rs of Platner, 475.
See vol. 2, p. 17.

II. Proceedings against.

1. By Devisces.
2. The executors of a lessee of an estate in fee are not liable for rent accrued

after the death of their testator. There is no privity of estate nor contract.
The privity was destroyed by the will under which the plaintiffs must claim
as devisees or assignees, and they are not assignees under the statute 32
Hen. VIII., ch. 34, which applies only to leases for life or for years. So
held although the covenant was express.
Devisees of Van Rensselaer v. Er'rs of Platner, 475. See vol. 2, p. 24.

2. Setting aside Default.
3. Defendant was sued in several actions as administratrix for debts of the

same grade, and she confessed judgments in some, and pleaded those judg-
ments and nil assets ultra to this action. This was held proper, and a
regular judgment having been obtained against her during the sickness,
of her attorney, and her absence from the state, she was permitted to plead
and go to trial on the question of assets ultra, but the judgment to stand as
a security for such assets, and for assets quando acciderint.

Nitchie v. Smith, 504. See vol. 2, p. 286.

III. Costs in Actions by.

4. Executors recovering under £10 in this court are not entitled to costs, nor

are they bound to pay costs. Executors of Mahany v. Fuller, 489.
See vol. 2, p. 209.




I. To settle with Insurers for total lossLiability of.
II. Lien of

I. To settle with Insurers for total loss-Liability of.

1. Where the insured employed a factor or agent to settle with the insurers

for a total loss, and an abandonment was duly made, and the agent, aster-
wards, through mistake or misapprehension of a letter of the insured, or
from negligence, adjusted the claim with the insurers, as an average loss,
at 20 per cent., and cancelled the policy; it was held, that the agent was
responsible for the whole amount being considered as subtituted in the place

of the insurers. Rundle v. Moore s Pollock, 36.
Cases and authorities, 39, n. (a.)

II. Lien of

2. A person acting as agent and having guaranteed the payment of a note of

his principal, is entitled to retain the money of his principal to refund to
self. Armstrong f. Barnewall v. Gilchrist, 607.


1. After a judgment is assigned to an innocent third party, the court will not

award an issue at the instance of a defendant, to try the fact of usury al-
leged by him to impeach it.

Wardel v. Eden, 500. See vol. 2, p. 258.
2. A feigned issued awarded to try the fact of usury, a judgment having been

entered by confession on a warrant of attorney, accompanying the bond,
&c. Giibert v. Edens, 501. See vol. 2, p. 280.



Where a British subject died seised of lands in this state, in 1752, leav-
not impair the rights of the wives, nor prevent the full enjoyment of the
property, according to the laws of the marriage state ; especially, after
the provision contained in the ninth article of the treaty of amity and com-

ing daughters in England, who married Brilish subjects, and neither they,
nor their wives, were American citizens; it was held that the husbands
of the heiresses might be joined in a demise with their wives, in order
to maintain an action of ejectment; and that even if the marriages were
subsequent to the American revolution, such marriages with aliens would

merce with Great Britain, of the 9th November, 1794.
The court will not intend a disability. It lays with the party interested to

show it. Per Kent, J. Jackson, ex dem. Gansevoort v. Lunn, 109.


Fictio juris is never allowed to work an injury or prejudice to any party.

Per Radcliff, J., in Carpenter v. Butterfield, 145.
Cases and authorities, 150, n. (6.)





On certiorari to bring up proceedings of forcible entry and detainer, a rule

to assign errors, held a nullity.
The record is thereby removed, and the issue is to be tried.
A landlord or those who stand behind the tenant, admitted by the common
law to defend, but the manner not stated.

The People v. Burtch, 523. See vol. 2, p. 400.




Indorsee against the maker of a promissory note given in Connecticut, where

by the lex loci it was not negotiable ; held, that this was no objection to
an action here in the name of the endorsee. The lex loci must be pleaded
subject to the mode of redress by our law.

Lodge v. Phelps, 441. See vol. 2, p. 355.

See ATTAINDER, Act of. Feme Covert.


An order soliciting a favor and not importing a right in the drawer to make

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