Law Library University of Chicago, of religious belief, and the judge admitted the testimony of witnesses in support of and in opposition to the objection, and afterwards the person objected to was examined on his voir dire, and having testified to his belief, was admitted to give evidence in chief. Held, that there was no error in this. Quinn v. Crowell, 4 Wharton, 334. 18. (Account in handwriting of deceased intestate.) In an action brought by the administrator of a deceased grandchild against the administrator of the grandfather, to recover a distributive share of the personal estate of the latter, an account in the handwriting of the deceased parent of the grandchild, is evidence to show the indebtedness of such deceased parent to the grandfather. Levering v. Rittenhouse, 4 Wharton, 130. 19. (Parol declarations in question of advancement.) Parol declarations of a deceased parent, tending to show that a child had been advanced by him, made in the absence of such child, are not admissible to charge such child, without some evidence aliunde of the fact of the receipt of money or other thing by the child. Ib. 20. (Partnership.) In assumpsit for goods sold, where the defence was, that certain persons not joined with the plaintiff were partners with him, evidence of transactions with the plaintiff, with and on behalf of the alleged partners, and of their acts in relation to their business, was held to be admissible. Wolle v. Brown, 4 Wharton, 365. Where, on the sale of sale is given, describing 21. But declarations of one of the alleged partners to the fact of rant the introduction of secondary evidence of its contents. Mattocks v. Stearns & Wife, 9 Vermont, 326. 24. (Usage.) Evidence of usage is proper to show when goods, landed on a wharf, are to be considered as in the custody of the wharfinger. Blin v. Mayo & Follett, 10 Vermont, 56. 25. (Matters in pais and of law.) The validity of a sheriff's sale does not depend upon any thing subsequent to the sale, and if the officer makes no return, the sale may be proved by parol. Gates v. Gaines, 10 Vermont, 346. 26. (In support of several counts.) If testimony be admitted, generally, in support of several counts in a declaration, which is admissible in support of a part only of such counts, it is error, unless the jury are properly instructed upon its application. Vail v. Strong, 10 Vermont, 457. EXECUTION. (Remedy of debtor committed on.) If a debtor is committed on a writ of execution, when it ought to have been levied on property, his remedy is by an action against the officer. The commitment is not therefore rendered void. And it seems, that to entitle the debtor to any redress in such a case, he should have been willing to acquiesce in the taking of his property.. Warner v. Stockwell and another, 9 Vermont, 9. EXECUTOR AND ADMINISTRATOR. (Grant of administration by a judge who was interested, void.) Where the judge of probate had a valid claim against the estate of a deceased person, but had determined in his own mind not to enforce his claim, and exercised jurisdiction over the estate by granting letters of administration, it was held, that he nevertheless was interested as a creditor of the estate, and that the grant of administration was therefore void for want of jurisdiction. Sigourney v. Sibley, 21 Pick. 101. FEME COVERT. (Money lent to husband.) A married woman having a separate estate may give or lend the income of it, if at her disposal, to her husband, as to any other person. When it is uncertain whether money received by such husband was intended as a gift or a loan, the jury, in an action against the husband's executors, may take into consideration, among other circumstances, evidence given to prove that always exist between the husband and wife. ner, 3 Wharton, 48. 2. (Same. Statute of Limitations.) Ib. harmony did not Towers v. Hag Where money has been lent by a wife, having a separate estate, to her husband, the statute of limitations does not begin to run against the debt, until the death of the husband. 3. (Becoming discovert.) If a married woman, having a separate estate, becomes discovert, the restraints upon the disposal of estate inconsistent with its general character, which attached during coverture, cease to exist while she is sui juris. Smith v. Starr, 3 Wharton, 62. 4. (Cannot execute power to convey lands.) A feme covert cannot, either separately, or jointly with her husband, execute a valid power of attorney, to convey lands, held in her right. Sumner v. Conant, 10 Vermont, 9. FLOWING LAND. (Effect of non user.) A right to flow, derived from grant, is not lost by non user, when it cannot be used without disturbing the right of others, but may be exercised, whenever the right of the others can be extinguished or bought. Mower and another v. Hutchinson, 9 Vermont, 242. FOREIGN ATTACHMENT. (Money in hands of administrator belonging to wife.) Money in the hands of an administrator, before a decree of distribution, and where the wife is heir to the estate, is not liable to the process of foreign attachment, at the suit of the creditors of the husband. Short v. Moore, Trustee, 10 Vermont, 446. FRAUDS, STATUTE OF. (Agreement to construct an article, not within.) The defendant went to the plaintiff's shop and selected a lining for a carriage. The plaintiff had on hand the body of a carriage nearly finished but not lined, and upon a conversation between them it was understood that the plaintiff was to finish a carriage for the defendant in a fortnight, and the unfinished carriage was completed accordingly, and the defendant had notice thereof and was requested to take it away. It was held, that this was not a contract of sale, but an agree ment with a workman to construct an article for his employer, and therefore was not within the statute of frauds and need not be proved by a memorandum in writing. Mixer v. Howarth, 21 Pick. 205. 2. (Delivery.) The defendant offered the plaintiff a certain price for a steam-engine, a part of the money to be paid when the engine should be taken away by the defendant, which was to be done in two or three weeks, and the balance to be secured by a promissory note. The plaintiff accepted the offer, and said, "then you consider the engine to be yours as it is,” and the defendant said "yes." The boiler was set in bricks, in the plaintiff's shop, and could not be removed until they were taken away, and the plaintiff was to take them away, which he did, the next week. The defendant told a witness he had bought the engine, and made inquiries on what terms he could get it carried to another place. The bargain was not in writing, and the defendant did not pay or secure any part of the price, and did not take away the engine. It was held, that there was no delivery and that the sale was therefore void under the statute of frauds. Dole v. Stimpson, 21 Pick. 384. 3. (Promise to pay debt of third person.) A promise to pay the debt of a third person is a collateral promise, and within the statute of frauds, and must be proved in writing, if the original debtor still remains liable for the debt; but if, by the terms of the contract, the original debtor is discharged, and it remains no longer a debt against him, it is an independent contract, and not within the statute. Anderson v. Davis, 9 Vermont, 136. GUARDIAN. (Of spendthrift, remedy against.) If the guardian of a spendthrift, having assets, refuse to pay a debt due from his ward, the creditor has a plain and adequate remedy at law, by an action on the guardianship bond; a bill in equity, therefore, for the recovery of the debt, cannot be sustained. Conant v. Kendall, 21 Pick. 36. HIGHWAY. (Liability of town for defect in.) If a road be out of repair, and an injury happen by reason of such want of repair, and the plaintiff or his agents are guilty of no want of care and prudence, the town is liable, notwithstanding the primary cause of the injury was a failure of a nut or bolt, which was insufficient or improperly fastened. Hunt and Wife v. Pownal, 9 Vermont, 411. INDICTMENT. (Special verdict.) In the case of an indictment, a special verdict finding the defendant guilty of the offence, but not finding him guilty in the county where it is alleged to have been committed, cannot be supported. Commonwealth v. Call, 21 Pick. 509. 2. (Same.) Such a verdict will not operate as an acquittal, but the accused must be again put on his trial. Ib. 3. (Variance.) Upon an indictment for obtaining money of P. by false pretences, the proof was that the false representation was made to P.'s agent, who communicated it to P. and thereupon, by P.'s direction, paid the money to the defendant out of P.'s funds. It was held that this was not a variance. Ib. 515. INFANT. (Assignment by.) One of two partners made a general assignment, in the name of the firm, of all the partnership property, in trust for the payment of the debts of the company, and delivered the property to the assignee. The other partner, who was under age, ratified the assignment, but on coming of age, he brought an action of trespass against the assignee for the alleged unlawful taking and asportation of the property. Held, that trespass would not lie. Furlong v. Bartlett, 21 Pick. 401. INSURANCE. (Alteration of building insured.) By an act incorporating an insurance company it is provided, that if any alteration shall be made in any building by the proprietor thereof, after insurance has been made thereon with the company, whereby it may be exposed to greater risk from fire, the insurance shall be void, unless an additional premium and deposit after such alteration, be settled with and paid to the company; but no alterations or repairs not increasing the risk, shall affect the insurance. In an action on a policy under this act, the jury were instructed, that the alteration must have been such that a higher rate of premium would have been demanded to insure |