ESTATE. 1. D. E. devised his lands to his grandson D. C. in fee; but if he happen to die before he arrives at the age 4. of twenty-one years, or to have heirs of his body lawfully begotten, then the lands shall be given to his granddaughter F. H. &c. Held that the word or must be understood to mean and, and without heirs, &c. Den, ex dem. Abrahams, v. English et al., 280 2. In his codicil D. E. provides that, if both his said grand children die before they come of age, or have lawful heirs of their body, his lands shall be equally divided between D. E. and another D. E. to them, their heirs and assigns forever. D. C. the first devisee attained the age of twenty-one years, and died without issue. Held that D. C. took a fee simple, with a limitation to E. H. by way of executory devise; but as the event to give effect to the limitation, did not happen, D. C's estate became absolute. Ib. 281 3. D. C. devised all his estate, real and personal, to his father, for the term of his natural life, and after his decease, to be equally divided among the children of J. E. them, their The widow as Administratrix of her husband, by selling and conveying his lands for the payment of his debts, under a decree of the Orphan's Court, is not thereby estopped from claiming her dower therein, although it is not reserved or excepted in her deed to the purchaser, at such sale. Nor is her silence as to her right of dower, at the time of sale, evidence of fraud, or a concealment of a secret incumbrance, by which she forfeits her dower. She is under no obligation to proclaim at such sale, her right to dower in the property. Sip v. Lawback, EVICTION. 442 An eviction from the devised premises, without her fault, by title paramount, or by legal sale for payment of testator's debts, cannot bar a widow of dower. Thompson v. Egbert, 459 EVIDENCE. heirs and assigns forever. Held, 1. In trover, a plaintiff's admission that the remainder to such children, vested immediately upon the testator's death. Ib. ESTOPPEL. 281 that the property claimed is a third person's, may be proved on the trial. Glenn v. Garrison, 1 2. On an appeal, an execution on which the goods in controversy, were sold, is inadmissible as evidence, unless supported by a proof of a judgment; although not objected to in the justice's court. 16. 1. A sheriff is not, by a levy and sale, estopped from denying the plaintiff's right to the proceeds of sale; nor from showing that the property sold under plaintiff's execution, was not the 3. defendant's nor liable to such levy and sale. Hopkins et al. v. Chandler, 299 1 presence of witnesses; and no mere acknowledgment in their presence, of his signing a will, can make it good for the conveyance of lands; under the statute. Den, ex dem. Mickle, v. Matlack et al., 86 13. The rule adopted in the case of Walton v. Shelley, 1 7. R. 296, is not considered law in the state of New Jersey. Ib. 14. A disinterested indorser of a promissory note, is a competent witness to prove the usurious transfer of the note. Heath adsm. Everson et al., 245 6. Although three subscribing witnesses are requisite to the attesta tion of a will, it is not necessary that they should all prove the execution of it. One of them is suffi- 15. That the demandant received comcient for that purpose. Ib. 86 pensation for the annual value of her dower, during the heir's possession of the freehold, is not pleadable, but should be given in evidence in mitigation of damages, upon the writ of inquiry. Woodruff v. Brown, 7. An administrator although entitled to a distributive share of the personal estate, may be examined on oath, before the Orphan's Court, or Auditors, to prove that he or his coadministrator was indebted to the intestate. Davison et al. v. Davison's Administrators, 169 9. This summary mode is intended to be a substitute for the more expensive remedy by bill of discovery, in Chancery. Ib. 10. If a party making a discount in the ordinary course of trade, and, looking to the indorser, upon his contract of indorsement for ultimate indemnity, retain more than legal interest, it is not necessarily and per se, usurious: it may be so, or it may not: at most it will be only prima facie usurious, and be so considered unless it be shown that the excess was taken for a lawful purpose, and constituted no part of the contract or condition on which the discount was made. Freeman adsm. Brittin, 191 11. Whether usurious or not, is a question of fact for the jury, under the direction of the court. Ib. 192 12. An indorser of a note, is a competent witness to prove, 1st, that he obtained it at a discount exceeding legal interest; and 2dly, that in doing so, he acted as agent for the plaintiff the indorsee, and had no interest in the transaction. Ib. 192 22. A presentment and demand for payment of a promissory note, may be made at the drawer's office or sufficient. A knowledge that the maker could not pay, does not dispense with strict proof of demand and notice. Ib. 487 See USURY. EXCEPTIONS-BILL OF. regular known place of business for A bill of exceptions must be drawn up the transaction of his moneyed concerns, as well as at his residence. Sussex Bank v. Baldwin & Shipman, 487 23. Such presentment and demand may be made by a person not a notary public. An authority therefor, may be created by parol. And the mere possession of the paper, is evidence enough of such authority. Ib. 487 24. A notarial demand, and protest of non-payment of a promissory note, is not necessary to fix an indorser's liability. Ib. and sealed at the time of the trial; and no bill shall be afterwards sealed without the mutual consent of the attorneys; or unless settled by the judges who tried the cause, in pursuance of an agreement made at the trial, in open court, to that effect. Agnew v. Campbell's Administrators, EXECUTION. 291 1. On an appeal, an execution on which the goods in controversy, were sold, is inadmissible as evidence, unless supported by proof of a judgment; although not objected to in the justice's court. Glenn v. Garrison, 1 A sheriff is not, by a levy and sale, estopped from denying the plaintiff's right to the proceeds of sale; nor from showing that the property sold under plaintiff's execution, was not the defendant's, nor liable to such levy and sale. Hopkins et al. v. Chandler, 25. Any person may present at its maturity, a promissory note of which he is put in possession, and if paid in the ordinary course of business, and 2. taken up, the payment is good; and if not paid, the demand is good as a groundwork for notice to the indorser's, and that without any protest. Ib. 487 26. A notary's name may be printed or written at the foot of the notice to indorsers, that a note is dishonored. 3. Execution in ejectment set aside, on Ib. terms. Keen adsm. Den, Saxton, 313 487 EXECUTORS. 299 On the question whether an administrator or executor should sue in his own name, or in his representative character, the true rule is this: that in all cases where the executor or administrator has the action, in the right of his testator or intestate, that is, where the action accrued to the deceased, in his life-time; and also, where the action has accrued to the executor or administrator, since the death of the testator or intestate, either upon contract express or implied, made with the testator or intestate, or for an injury done to the property of the testator or intestate, in his life-time; there,' the executor or administrator must sue in his representative character; but where the action accrues to the executor or administrator, upon a contract made by or with him, as 7. such, since the death of the testator or intestate; or for an injury done to, or a conversion of the property of the testator or intestate, in the hands or possession of the executor or administrator after the death of the testator or intestate, there the action may and ought to be brought in the proper name of the executor 8. or administrator, describing himself to be such; but not as executor or administrator. Stewart v. Richey, 164 5. If an executor or administrator, plead payment, with notice of set-off, under the statute, and obtain a verdict for a balance due to his testator or intestate, he may have judgment and execution thereon, with costs, if the plaintiff sued in his own right;| but if he sued as executor or administrator, no judgment can therein be entered against him for such balance; but it becomes a debt of record, the truth of which cannot be questioned, and which can be enforced only by action of debt, or by scire facias; and which must be responded to, according to the laws regulating the administration of estates. Executors of Shinn adsm. Executors of Paterson, 322 6. An executor is not compelled to become a party plaintiff in a cause commenced by his testator, in which a verdict was rendered against him; and who died before judgment. Lloyd v. Johnsons, 349 The process being against defendants as executors; the declaration against them in their individual capacityand the evidence on the trial being entirely against them as executors, constitute such a variance as is fatal to the plaintiff's recovery in the suit. Shangles and Runyon v. Runk, 372 A count against an executor as such, for money paid by plaintiff since the testator's death, on a bond in which he was testator's surety; and charging the executor with such payment to his use as executor, and with his promise to repay, &c. is a count on which a judgment de bonis testatoris, may be rendered; and which may be joined with counts for promises made by testator in his life-time. Cawley, Ex'r, v. Reeve, 415 9. Counts may be joined, where the fund out of which the damages are to be applied, is the same. Ib. 415 EXECUTORY DEVISE. In his codicil D. E. provides that, if both his said grand-children die before they come of age, or have lawful heirs of their body, his lands shall be equally divided between D. E. and another D. E. to them, their heirs and assigns forever. D. C. the first devisee attained the age of twenty-one years, and died without issue. Held that D. C. took a fee simple, with a limitation to one E. H. by way of executory devise; but as the event to give effect to the limitation, did not happen, D. C.'s estate became absolute. Den, ex dem. Abrahams, v. English et al., FENCES. 280 An award of Commissioners, assessing damages for running, making and maintaining fences, without showing that the lands of the party, through which the road is run, are improved lands, is illegal and void. The charter authorizing such damages 2. The widow as Administratrix of her husband, by selling and conveying his lands for the payment of his debts, under a decree of the Orphan's Court, is not thereby estopped 270 An indictment charging that the defendant "uttered and published in this state, a forged or counterfeit Bank note of another state, for two dollars; adjudged good, on demurrer," although the Passing of any Bank note, under five dollars, is in this State, prohibited by statute. It is not necessary in an indictment, to aver that the Bank whose note is alleged to be imitated or forged, is an incorporated institution. The State v. Van Hart, 327 FRANCHISE. The Charter of a Company provides for the payment of certain taxes to the State, and then enacts "that no further or other tax or impost shall be levied or assessed upon said Company." Held that this does not exempt the franchise or privileges merely, of the company; but the company generally and its property, from taxes for county, township and all other purposes than those stated in the Charter. The State v. Berry et al., 80 FRAUD. from claiming her dower therein, 1. Parties to a suit may compromise although it is not reserved or excepted in her deed to the purchaser, at such sale. Nor is her silence as to her right of dower, at the time of sale, evidence of fraud, or a concealment of a secret incumbrance, by which she forfeits her dower. She is under no obligation to proclaim at such sale, her right to dower in the property. Sip v. Lawback, 442 or terminate it, without consulting their attorneys, provided they do it in good faith; and the attorneys must look to their clients for their costs. But when the parties collusively agree to practice a fraud upon their attorneys or either of them, this court will not aid them to consummate their unjust designs. Heister et al. adsm. Den, ex dem. Mount, 438 |