attachment," is void. Blackstone Bank v. Davis, 21 Pick.

42.

2. (Contingent remainder.) A testator, after devising to his wife the use of his real estate, while she remained his widow, proIceeded as follows: "Should my wife marry or die, the land then shall be equal divided among my surviving sons, with each son paying sixty dollars to my daughters, to be equal divided among them, as soon as each son may come in possession of said land." It was held, that the remainder given to the sons was contingent until the marriage or death of the widow of the testator; and that upon her death, the estate vested in a son who was then living, to the exclusion of the heirs of another son who died before the widow but after the death of the testator. Olney v. Hull, 21 Pick. 311.

3. (Duty of trustee to account.) A testator gives the residue of

his real and personal estate to his son's children born and to be born, subject to a charge of an annual sum to be paid to the son during his life, and appoints a trustee to manage the property, and "from the rents and profits thereof to appropriate such annual sum towards the support of the son, and the residue to account for with said grandchildren and their guardian, the trust to cease upon the death of the son." Held, that by the true construction of the will, the trustee must account annually with the grandchildren, for the surplus of the income. Pool v. Ward, 21 Pick. 398.

4. (Meaning of use and disposal during life.) A testatrix, after directing a sale of all her real estate, and the payment of her debts, &c. proceeded thus: “ What remains of real and personal estate I give and bequeath, as follows: one half thereof to my daughter M., (who was a married woman,) for her use and disposal during her life, and whatever shall remain at her death I give the same to her two daughters, D. and S., in equal shares; and the other half to the children of my son." It was held, that this was not a bequest to M. merely of the income of one half of such residuary fund during her life; but that she might, in her lifetime, if not alone, at least in conjunction with

her husband, dispose of the principal, either wholly or in part. Harris v. Knapp, 21 Pick. 412. ERROR. (In ejectment by persons claiming as heirs.) Where, in ejectment by persons claiming as heirs of the person last seized, the defendants pleaded jointly, and defended on the ground of a will, which, if substantiated, defeated the claim of the plaintiffs altogether, and the defendants showed no separate defence or title, nor asked for a separate trial, it was held, that they could not assign for error that the plaintiffs had joined in the action different persons, in possession of different properties, in different situations, and holding under different titles, and that a general verdict and judgment were entered against all the defendants. Jones v. Hartley, 3 Wharton, 178..

2. (Misjoinder.)

A declaration in an action on the case set forth that the plaintiff was possessed of certain shares of stock which he sold to the defendant for a certain price, which the defendant promised to pay; and that he, the plaintiff, was ready, and offered to transfer the stock to the defendant, who refused to accept and pay, &c. Afterwards the plaintiff filed. other counts, setting forth that the defendant, as agent, undertook and promised the plaintiff to sell the said stock for him, &c., yet the defendant, not regarding his duty or promise, negligently, &c., conducted himself, so that the plaintiff lost the same, &c.; Held, that if there was a misjoinder, the defendant could only take advantage of it by special demurrer, and that it could not be assigned for error. Martim v. Stille, 3 Wharton, 337.

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3. (Comments on testimony.) It is not error in a judge to tell a jury that a witness was a very willing witness," and that “ very little confidence was to be placed in her testimony:" nor to remark upon the strength or absence of evidence, or to suggest presumptions arising from the relationship and conduct of one of the parties. Burr v. Sim, 4 Wharton, 150.

EVIDENCE. (On complaint for flowing meadow.) On a complaint for flowing the plaintiff's meadow and thereby rendering it less productive, evidence on the part of the defendant that

other meadows on the same stream had, from natural causes, exhibited the same marks of deterioration, was held to be inadmissible, unless accompanied with proof that such meadows were similar to the plaintiff's meadow. Standish v. Washburn, 21 Pick. 237.

2. (Time of execution of specialty proved by parol.) Parol evidence is admissible to prove the time at which a specialty is actually executed. Battels v. Fobes, 21 Pick. 239.

3. (Account book of intestate.) In an action against an administrator, it was held, that a private account-book of the intestate was not admissible on the part of the defendant, to prove payments of money to third persons, they being competent witnesses. Faunce v. Gray, 21 Pick. 243.

4. (Comparison of handwriting.) Proved specimens of the signature of a party are admissible in evidence for the purpose of showing, by a comparison, that a memorandum not signed by such party is in his handwriting. Richardson v. Newcomb, 21

Pick. 315.

5. (To vary amount appearing due by note.) Where a note was given to the plaintiff by the defendant for three other notes held by the plaintiff against him, it was held, that a memorandum in the handwriting of the plaintiff, purporting to be a computation of the amount due on three notes, the items of which corresponded with the notes, as regarded dates and amounts, was competent evidence to prove, that in consequence of errors made by the plaintiff in such computation, the note first mentioned being given for the amount appearing to be due by the memorandum, was for a larger amount than was actually due. Ib.

6. (Confessions of accomplice.) Confessions of an accomplice made in the presence of the defendant and assented to by him are admissible in evidence against him. Commonwealth v. Call, 21 Pick. 515.

7. (Different offences.) Although evidence of one offence is not admissible for the purpose of proving the charge of another, yet it may be so connected with the proof of a relevant and material fact, that its introduction cannot be avoided. Ib.

8. (Conversations between plaintiff and defendant's agent.) In assumpsit on a contract alleged to have been made with the plaintiff, a native of France, by an agent of a society, of which the defendants were members, upon which contract the plaintiff came over to this country, to teach the art of making sewing silk, it was held, that a deposition of a third person, stating certain conversations between the said agent and the plaintiff and the deponent, relating to the situation and prospects of the plaintiff, ought to have been admitted in evidence; but the judge having, at the conclusion of other testimony, offered to admit parts of the deposition in evidence, and the counsel for plaintiff not offering the deposition at all in evidence after the offer of the judge, it was held, that he could not assign this for D'Homergue v. Morgan, 3 Wharton, 26.

error.

9. (Irrelevant matter.) A witness cannot be interrogated by the party calling him, as to irrelative matter, although on a previous cross-examination he has been questioned as to such matter and given testimony. Smith v. Dreer, 3 Wharton, 154.

10. (Direct and cross-examination.) On the trial of an action for work and labor done, in furnishing gas fittings for the defendant's house, a witness produced by the defendant, having given evidence to show that the work was badly done, was asked on his cross-examination whether the plaintiff had not made the gas-fittings at the Exchange, and certain other public places: Held, that the defendant's counsel could not ask the witness whether the gas fittings made by the plaintiff for those places were not so defective as to render it necessary to remove them. Ib.

11. (Record of judgment.) In ejectment by a purchaser at sheriff's sale, a ainst one claiming by a different title, the record of the judgment under which the land was sold by the sheriff, is admissible in evidence for the plaintiff. Schall v. Miller, 3 Wharton, 250.

12. (Parol evidence.) In ejectment by a purchaser at a sheriff's sale, where it was proved that the sheriff's deed was lost, and

the levy did not specify distinctly the land levied on, it was held, that parol evidence was admissible to show what land was levied on and sold. Ib.

13. In an action of covenant on an agreement, by which the defendants covenanted to raise a certain dam, to a certain number of inches above its then height, and to maintain and keep it at that height, and in good order, casualties excepted, it was held, that evidence was not admissible on the part of the plaintiff, to show the condition of the dam previous to the agreement. M'Credy v. Schuylkill Nav. Co., 3 Wharton, 424.

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14. (Competency of witness.) If different persons, either before or after suits brought, agree to divide among themselves the amounts any, that may be recovered, each of them is liable to the defendant for costs. They cannot, therefore, be made witnesses for one another, by exchanging mutual releases. The costs of suit must be paid before any of them can be examined. Mackinley v. M'Gregor, 3 Wharton, 369.

15. (Same.) In an action against three joint obligors in a bond, the sheriff returned, that he had summoned one, and “nihil habent," as to the others: Held, that one of the obligors not summoned was not a competent witness for the defendant, although the latter paid into court a sum sufficient to cover the principal and interest of the bond, and the costs of suit. Smith v. Sillyman, 3 Wharton, 589.

16. (Same.) In an action for a breach of a warranty in the sale of goods, it appeared that the sale was made by A as the agent of the defendants, and that after the plaintiff discovered the alleged defects in the sale of the goods, A guaranteed that the goods should prove to be of the first quality, and that he would refund as much as two disinterested persons should certify to be just. An award was made, finding that a certain allowance should be made: Held, that A was nevertheless a competent witness for the defendants. Jackson v. Wright, 3 Wharton, 601.

17. (Want of religious belief.) The defendant called a witness, to whom the plaintiff objected, on the ground of an alleged want