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PENALTY.

A. and B. entered into a written agreement, by which A. agreed to convey

to B 700 acres of land to be appraised, in part payment for a farm, valued
at 3,750 dollars, which B. agreed to sell to A. and it was covenanted that
in case either party failed to fulfil the agreement, the party failing to per-
form, “ should forseit and pay to the party who should fulfil the agreement,

the sum of 2,000 dollars, as damages.".
It was held, that the 2,000 dollars was, according to the intention of the par-

ties, as inferred from the whole agreement, to be considered as a penalty,

and not as stipulated damages. Dennis v. Cummins, 297, 579.
On the distinction between penalty and stipulated damages, 299, 299–3, n.

(a.) and (b)

PLEADINGS.

I. Declaration.

1. Amendment.
2. Averment.
3. Certainty in.
4. Statement of Amount due.

5. Surplusage in.
II. Pleas.

1. In Action against Bail.
2. Striking out inconsistent.
3. Plea in Abatement to Jurisdiction.

1. Declaration.

1. Amendment.
1. After verdict, a mistake in dates in the narr. is not essential.

Allaire v. Ouland, 478. See vol. 2, p. 53.

2. Averment in.
2. The act of a servant in entering the locus in quo of another, by order of
the master, is not illegal as against the master.

Ernest v. Bartle, 457. See vol. 1, p. 219.
3. Whether the act incorporating the president, &c., be public or private, it
is not necessary to be set forth. So held on demurrer.

Bank of the U. S. y. Haskins, 435.

3. Certainty in.
4. Narr. against two jointly under the act. The plaintiff declared against

“ Becker and Harvey being in custody, &c, and the said Becker being re-
turned not found ;" on a special demurrer, it was held well enough, and
that Harvey shall be taken to be in custody, and the other being stated to
be returned not found, is not sufficient.

Hildreth v. Becker and Harvey, 515. See vol. 2, p. 339.

4. Statement of Amount due.
5. Pounds, &c., instead of dollars, alleged in the narr. no error, and not with-

in the act on this subject. The judgment must be in dollars and pounds,
are not an unknown money of account like foreign money, and the court
will ex officio take notice of the value in rendering the judgment.

Johnson v. Hadden, 501. See vol. 2, p. 274.

5. Surplusage in.
6. Plaintiff suing as attorney, is not bound to produce the attachment of pri-

vilege alleged in his narr. It was an impertinent averment, and not mere-
ly immaterial. The distinction between impertinent and immaterial

Allaire v. Ouland, 478. See vol. 2, p. 53.

averments.

II. Pleas.

1. In Action against Bail.
7. A person sued as special bail allowed by plea to traverse the fact that he

is not the same person, although of the same name and description.
The plea averred that there was another of the same name, &c. who becamo

the bail, and that the defendant was not the same, &c., the fact that there
was not another of the same name; held, not material after issue and ver-
dict. Reonard v. Noble, 511. See vol. 2, p. 293.

2. Striking out inconsistent.
8. Pleas of payment ante diem and payment ad diem. On motion, ordered

the first to be stricken out, but in a complicated defence the court will not,
by anticipation, discriminate in this peremptory manner.

Thayer v. Ryers, 437. See vol. 1, p. 152.

3. Plea by Abatement to Jurisdiction.
9. Defendant was an attorney, and arrested; he pleaded his privilege in

abatement to the jurisdiction of the court, and not of the bill. Plaintiff
entered judgment as if the plea were a nullity; held, it was not to be trea-
ted as being clearly so, and that the plaintiff ought to demur.

Pattison v. Brooks, 461. See vol. 1, p. 328.

See ASSINGEE.

PLEAS IN CHANCERY.

See Bill, DEMURRER IN CHANCERY, REVIEW.

POSSESSION.

1. Effect of conveyance by Grantor out of possession

upon adverse holder.
II. Effect of possession not characterized by adverse act.
III. Issue on writ of Right.
VOL. III.

100

I. Effect of conveyance by Grantor out of possession upon

adverse holder.

1. By the common law, a conveyance of land by a person against whom there

is an adverse possession at the time, to a third person, is void ; but the title
of the grantor is not thereby extinguished or divested ; nor will such con-
veyance enure, by way of estoppel, for the benefit of the defendant in pos-

session. Jackson, ex dem. Jones v. Brinckerhoff, 101, 540.
See notes (a), (b) and (c.)

II. Effect of possession not characterized by adverse act.

2. Where the legal possession of lands was in the heirs of A. under a claim

of title, and a descent in 1752, and B. afterwards entered on the land, and
made improvement, and his possession was continued for 37 years; but it
did not appear that he entered under claim or color of title, or hostile to
the heirs of A., whose title was not disputed until after 1783, it was held
that the legal intendment was, that B. entered under the title of the heirs
of A., and that the statute of limitations could not begin to run, till after

the possession of the defendant was held adversely to the heirs of A.
An entry adverse to the lawsul possessor, is not to be presumed, but must be

proved. Jackson, ez dem. Gansevoort v. Parker, 124-2.
Authorities, see 125, n. (a.)
3. A tract of land was granted, by letters patent. to A. in 1735, which was

surveyed and laid out into lots. In 1736, B. executed leases for several lots
to different persons, for lives, reserving rent, in which he asserted his claim
to the whole tract; and exercised various acts of ownership, until his death
in 1752, and his heirs also gave leases of some of the lots, in 1767, and his
title and that of his heirs, continued to be acknowledged by the tenants,
and remained undisputed, until after the year 1783. In an action of eject-
ment brought by the heirs of B. against C., who had been in possession
since 1772, it was held that a grant from the original patentees to B. was
to he presumed ; that entry, by him, into part, with a claim to the whole,
was to be considered as an entry into the whole ; and that the entry of C.
was in subordination to the title of B.

Jackson, er dem. Gansevoort v. Lunn, 109, 539.
Cases upon the doctrine of presumption to supply defective evidence of title,

124, n. (a) and (b.)

III. Issue on writ of Right.

4. On the issue on a writ of right, the only question is, which of the parties

has the better right; and the evidence to establish the right is subject to the

same rules as in other cases.
Where the ancestor of the demandant was in possession of the premises in

question, 51 years ago, and died in possession 41 years ago, leaving the
demandant his only son, this was held sufficient evidence to rebut tbe pro-
1. Of Declaration.
2. Of Pleading after Demurrer.

sumption of right in the tenant, arising from a possession of 38 years only,

commenced by wrong.
And a patent died in 1697, produced in evidence by the tenant, not for the

purpose of deducing a title to biniself, but to show a title out of the demand-
ant, was held not sufficient to repel the conclusion in favor of the demand-
ant, as the jury might presume a title in the ancestor of the demandant,

derived from the patet. Nase v. Peck, 128, 533.
Cases and authorities, 129, n. (a), 130, n. (6.)

See ENTRY.

POWER.

Where an inquisition taken under the second section of the act, amending

the act to establish the Columbia Turnpike Company, passed March 28,
1800, (sess. 23,) omitted to state a disagreement between the owner of the
lands mentioned, and the company, and that the judge who appointed the

commissioners was not interested, &c., it was held defective and quashed.
Where a special power is granted by statute affecting the property of indi-

viduals, it must be strictly pursued; and it must appear on the face of the
proceedings, that the directions of the statute have been strictly observed.

Gilbert v. The Columbia Turnpike Co. 107, 541.
Cases and authorities, 109, n. (a.)

See LIMITATION.

PRACTICE.

J. Abatement.

1. Of Suit by Civil Death.

2. Privilege.
II. Act for the relief of Debtors with respect to

the Imprisonment of their Persons-

Practice under.
III. Absent and Absconding Debtors.
IV. Account.

V. Administrator.
VI. Affidavit.
VII. Amendment.

3. Upon what terms.
VIII. Appearance.
IX. Arrest of Judgment.
X. Attachment.
XI. Attorney.

XII. Auter action pendens.
XIII. Bail.

1. Effect of, and Pleading in chief.
2. Justification.
3. Surrender of Principal.
4. Relief of.
5. Discharge of.
6. Proceedings against.

a. Irregular-Effect of Laches.
b. No peculiar indulgence to.

c. Where Bail have been personated.
XIV. Case.

1. Where a point is reserved.
2. Amendment to.

3. Effect of
XV. Certiorari.

1. Rule to join in Error on.

2. Nature of return to.
XVI. Commission.

1. Issuing of, in Discretion of the Court.
2. Affidavit to support motion for.

a. Who may make.

b. What it ought to contain.
3. Costs on motion for.

4. Return of.
XVII. Contempt.
XVIII. Costs.

1. For not proceeding to Trial.
2. Of former Action.
3. Payment of
4. Collecti n of.
5. Notice of Taxation on whom served.
6. Against Attorney.

7. In Writ of Right.
XIX. Damages.

XX. Debt.
XXI. Declaration.

1. Change of Venue.

2. Time to plead to Amended.
XXII. Default.

1. When it may be entered.
2. Application to set aside.
3. Against whom entered in Ejectment.
4. In Actions against Administrators.
5. In Actions against Bail.

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