of the line was at the distance of six miles from the premises

conveyed. Ib.

See CONVEYANCE.

DEVISE. (Power to sell real estate.) Devise of real estate to

a trustee, his heirs and representatives, in trust to invest and reinvest the same from time to time in stocks or other safe securities, and the income thereof, together with 200 dollars annually of the principal, to pay over to the testator's daughter during her life, and after her decease to pay and transfer the whole of the trust fund to her children. Held, that, by necessary implication, the trustee had power to sell the real estate discharged of the trust. Purdie v. Whitney, 20 Pick. 25. DIVORCE. (Domicil.) Although the original domicil and marriage of the parties may have been in Pennsylvania, her courts have no jurisdiction of a cause of divorce alleged to have been committed by the husband whilst his domicil was in another state. Dorsey v. Dorsey, 7 Watts, 349.

2. (Same.) The law of the actual domicil at the time and place of the injury, is the rule in cases of divorce, for every thing but the original obligation of marriage. Ib.

DOWER. (Damages in.) The demandant in an action of dower

unde nihil habet is entitled to recover damages from the tenant of the freehold for the time being, to be estimated from the time of the death of her husband, where he died seised, although the defendant may have been tenant but a short part of the time. Seaton v. Jamison, 7 Watts, 533.

2. (Woodland.) A widow is not entitled to dower in a tract of

woodland, which the husband sold from the lot on which he lived, still retaining as part of the farm, at that time and until his death, many years afterwards, an abundant supply of wood for fuel, fencing, and repairs. Kuhn v. Kaler, 2 Shepley,

409.

EJECTMENT. (Acquiescence.) Where the true line between adjoining tracts of land is in dispute, the facts that the owner of one of the tracts directed his agent not to sell any lands within the disputed lines, and omitted to pay taxes imposed upon the

lands in dispute, are not such evidence of acquiescence as will conclude him from subsequently asserting his right to the land. The doctrine of acquiescence, as laid down in Adams v. Rockwell, 16 Wendell, 285, reiterated and confirmed. Van Wyck v. Wright and Johnson, 18 Wend. 157.

ESTOPPEL. (By covenants.) If one man convey land to another, covenanting only, that neither he, nor his heirs, nor any person under him or them, shall set up any demand, right, or title to the premises for ever, and at the same time take back a bond to reconvey the premises to him on demand, and afterwards become the assignee of a mortgage previously made by him to a third person; he is not estopped from setting up his title under the mortgage, against his grantee, or those claiming under him. Hatch v. Kimball, 2 Shepley, 9. 2. (Same.) The grantee in a deed of release, containing no covenants of warranty, is not thereby estopped from contesting the seisin of the grantor, and showing that he was himself before seised of the premises by an elder and better title.

Ham, 2 Shepley, 351.

Ham v.

3. (Same.) Where one seised of land by indefeasible title takes a mortgage thereof to himself, with covenants of warranty, and dies, and the mortgagor becomes entitled to the same land as heir; he is not estopped from asserting his title as heir against the administrator, in a suit upon the mortgage. Harding v. Springer, 2 Shepley, 407.

EVIDENCE. (Acts and declarations.) The least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all; and the acts and declarations of one may be given in evidence to affect the others. Gibbs v. Neely, 7 Watts, 305.

2. (Inconsistency between date and recital.) When the date of a deed and a recital contained in it are irreconcilable by the instrument itself, the party to it is not estopped from establishing the truth by parol evidence. Kelly v. Thompson, 7 Watts, 401.

3. (Entries on a shingle.) Where the plaintiff's intestate was

employed by the defendants to hew timber for them in the woods, and while so employed entered daily on a shingle the quantity hewed by him each day; and the timber was taken away by the defendants without a survey, and mingled with other timber; the shingle is competent evidence to be submitted to the jury on the trial in an action to recover the value of the intestate's labor. Kendall v. Field, 2 Shepley, 30.

4. (Parol, to explain deed.) Parol evidence is admissible to show,

that a conveyance of land, absolute in its terms, is only collateral security for the payment of a debt. Fales v. Reynolds,2 Shepley, 89.

5. (Declarations of stockholder.) The declarations of a stockholder or of a director of a corporation are not admissible in evidence against such corporation, made at a time when he was not acting as the agent thereof. Polleys v. Ocean Insurance Company, 2 Shepley, 141. 6 (Objections to questions.) Objections to the form of the questions and to the manner of the examination should be made before the commission issues, when testimony is taken by commission, and when on notice, before the magistrate at the time of the taking; but testimony in itself illegal cannot be admitted, because objections are not thus made. Ib. 7. (Account books.) Where account books, kept in the handwriting of one of several partners, with his supplementary oath, would have been evidence for the plaintiffs, had he been alive; the same books are competent evidence after his death. Leighton v. Manson, 2 Shepley, 208.

8. (Same.) Although it is difficult to fix on any definite and clear rule of general application, to determine how large the quantity of articles delivered at one time must be, from whence the presumption arises, that there exists better proof, in order to exclude the books of the party; the best rule seems to be, for the judge to decide upon inspection of the items of the account, whether the articles charged could ordinarily have been delivered without the assistance of other persons, and admit or reject the testimony, as he may conclude the articles could, or could not, have been so delivered. Ib.

9. (Same.) Where the only items in the account were three hundred and fifty-five pounds of beef and three hundred and sixty pounds of beef, bearing the same date, and standing together without any other charges intervening; it was held, that the books were not competent evidence of the delivery of the beef. Ib.

10. (Answer of witness.) If a party chooses to hazard a general interrogatory to a deponent, and is disappointed in the answer, the court will not relieve him by excluding such answer, if it be pertinent to the issue. Kelley v. Merrill, 2 Shepley, 228. 11. (Declarations of servant.) Where a hired servant has possession of the chattels of his master, and while thus in his possession they are attached as the property of the servant, his declarations that the chattels were his own are inadmissible in evidence, in determining whose property were the chattels, between the master and the attaching officer. Abbot v. Hutchins, 2 Shepley, 390.

12. (Of appointment to office.) The certificate of the city clerk of Boston, setting forth that the plaintiff "had been duly appointed master of the house of correction," and that he " was master of the house of correction for the year 1834, and had continued in that office ever since," is not competent evidence to establish such facts. Robbins v. Townsend, 20 Pick. 345. 13. (Common prostitute.) Evidence of general reputation that a female witness is a prostitute, is inadmissible for the purpose of impeaching the witness. Bakeman v. Rose, 18 Wend. 146. Where a combination between

14. (Acts and declarations.)

several persons for an illegal object is clearly established, the acts and declarations of one of the parties in reference to the subject matter of the combination, whilst engaged in the prosecution of the joint design, are admissible in evidence against his associates. Waterbury v. Sturtevant, 18 Wend. 353.

15. (Interest.) In an action by a bank for the recovery of a promissory note, it is no objection to the competency of a witness, that he had been a stockholder and had sold out his interest to avoid an objection to his competency, although he avow his

intention of repossessing himself of the stock, and declare that he expects to obtain it at the same price at which he had sold: there being no understanding, however, between him and his vendee, that the stock should be re-transferred. The objection in such case goes only to the credibility of the witness. Stall v. Catskill Bank, 18 Wend. 466.

16. (Same.) The belief of a witness that he is interested in the event of the suit, or a feeling of honorary obligation to the party calling him, it seems, is no objection to his competency, if in fact he has no legal or equitable interest in the event of the suit. Ib.

17. (Co-surety.) Where two persons are sureties for a third, the maker of a promissory note, and payment of the note is enforced from one of the sureties, in an action by him against the principal to recover the amount of the money so advanced, the other surety is a competent witness for the plaintiff.

Benedict

'v. Hecox, 18 Wend. 490. EXECUTION. (Levy on land.) It is no valid objection to an extent of an execution upon lands, that but two of the appraisers signed the return, without any reason given why the third did not sign, if it appear from the return of the officer, that all three acted. Phillips v. Williams, 2 Shepley, 411. 2. (Same.) In an extent it is not essential, that the magistrate, administering the oath to the appraisers, should either make or sign a certificate thereof; but it is sufficient, if it appear by the return of the officer, that they were duly sworn.

lb.

3. (Same.) Where the officer returned, that the appraisers were duly sworn, "as will appear by the certificates of the justices," and there was no name signed to one of the certificates; the extent was held good. lb. EXECUTORS AND ADMINISTRATORS. (Words of appointment of.) The use of the word "executor" is not essential to the appointment of a person to execute a will. An executor may be appointed expressly or constructively, and designated by committing to his charge those duties which it is the duty of an executor to perform; by conferring those rights which belong