1802. M'CLENA

CHAN

V.

CURWEN.

I observed before, that the words in, over, contiguous and near to the tract of the road, extended as well to the road itself, as to the adjacent grounds from whence the materials were to be procured, as to the damage done to the inclosure; so likewise I consider it to extend to both, as to making amends for any damages done to the improvements thereon: and if it has in any case been found necessary to pull down houses, destroy orchards, or spoil grain in the tract or route of the road, the company are undoubtedly bound to make compensation to the owners, as well as for the adjacent ground from whence they are to collect the materials. In the present case no such damage is found; and on the whole case it is our unanimous opinion, that judgment should be entered for the defendant.

ACTION.

See BOND, 1.

AMICABLE ACTION.

tions must be precisely pursued. Young v.
The Commonwealth,

ACT OF FRAUDS.

iv. 116

See FRAUDS AND PERJURIES.
The act of frauds and perjuries of the state
of Pennsylvania does not prevent a de-
claration of trust from being made by
parol. Hence in an ejectment by the de-
visees of A against B, it is competent to
give parol evidence of the declarations
of A, that the land she had purchased in
her own name, was bought for the use
of B, with money in which her husband
had given her only a life estate, and had
devised it to B after her death. Lessee of
German v. Gabbald,
iii. 302

1. Letters of administration granted under
seal in a sister state, are a sufficient au-
thority to maintain an action in this state.
M'Cullough v. Young,
i. 63
2. In order to reach the estate of a deceased
partner, an action for a partnership debt
lies against his executor, if the surviving
partner be a certificated bankrupt before
action brought. Lang v. Keppele,
i. 123
3. One partner cannot maintain assumpsit
against the other for the proceeds of a
partnership adventure, unless they have
settled their accounts and struck a ba-
lance. Ozeas v. Johnson,
i. 191
4. To support an action on the case for da-
mage occasioned by a common nuisance,
it is not necessary that the damage sus-
tained was immediate; it is sufficient if it
was consequential. Hughes v. Heiser, i. 4631.
5. The Prothonotaryof a Court cannot main-

3. The want of an actual settlement within
two years from the pacification with the
Indians, cannot be set up against the title
of a warrantee under the act of 3d April
1792, by a person who has taken wrong-
ful possession of the land, and before the
expiration of the two years has refused
to deliver it up to the warrantee. A bare
refusal is enough to estop the possessor,
without the threat or use of actual force.
Lessee of Patterson v. Cochran,
i. 231

tain an action for the recovery of his fees
in a cause which is still pending. Lyon v.
Мастапив,
iv. 167
6. The house of A and B at Madeira, ship-2.
ped two pipes of wine to Philadelphia,
for account and risque of S, to whom a
bill of lading was sent. The wine did not
arrive until after the death of S, when
his executors declined taking it, and re-
quested C, who was concerned in the
Madeira house, to keep it till it was paid
for. It remained in the cellar of C until
after his death. It was then delivered by
the agent of the executors of C to the
wife of S, upon her alleging that it was
her property, and that Chad kept it in his
cellar for her use. The wife of S sold the
wine, and received the price. Held, that
the executors of C could not maintain an
action against the wife of S, for the pro-
ceeds of the wine. Wells v. Stewart, v. 325
7. A agreed with B a common carrier, for
the carriage of certain goods. B without
the direction of A, agreed with Canother
carrier for the carriage of the same goods;
and C without the knowledge or direc-
tion of A, agreed with D a third carrier.
Dlost them. Held, that 4 might main-
tain suit against D, and that by bringing
his action he affirmed the contract made
with him by C, and could not after that
recover from B or C. Sanderson v. Lam-
berton.
vi. 129

ACT OF ASSEMBLY.
When an act of assembly makes innovations
on established rules, its positive institu-

4. When an actual settler, who has made
some improvements, has been deterred
by the violence of a younger settler from
completing his settlement, and has for
several years neglected to take steps for
the recovery of his possession, it is a fact
for the jury to decide whether he has
not relinquished his settlement. He does
not stand in the situation of a person hav
ing a legal title, who may bring eject-
ment at any time within twenty-one
years. Cosby v. The Lessee of Brown, ii. 124
5. An actual settler cannot support an
ejectment without a survey,
ib.

6. A made application to the secretary of
the land office for a tract of land particu-
larly described, lying north and west of
the Ohio &c. On the 3d of April 1792, a
warrant issued, which by mistake of the

GENERAL INDEX.

office was filled up with lands lying else-
where On the 10th of April 1792 the
warrant was delivered to the deputy sur-
veyor of the district, who, perceiving the
mistake, did not enter the warrant in his
book according to its description, but ac-
cording to the description in the appli-
cation, and surveyed it on the 29th of
August following. Prior to the survey, but
subsequent to the 10th of April, B made
a bona fide actual settlement upon the
same land. Held, that the entry made by
the deputy surveyor, had no effect against
third persons, and that B was entitled to
recover. Lessee of Dawson v. Bigsby, v.
204

7. An actual settler cannot maintain an
ejectment for his improvement without
an official survey, or a private one, if by
due exertion he was unable to obtain the
v. 211
former. Stockman v. Blair,

ADMINISTRATOR.

See DEBTS.

JUDGMENT, 2.

1. Letters of administration granted under
seal in a sister state, are a sufficient au-
thority to maintain an action in this state.
McCullough v. Young,

i.63

2. An administrator is chargeable with in-
terest, where he has been guilty of ne-
glect in not putting out the money of the
intestate, or has used it himself; and it
lies upon him to shew what has been
done with it. But he is not liable for in-
terest until after twelve months from the
intestate's death. Fox v. Wilcocks, i. 194
3. Judgments obtained before a justice of
the peace, when filed in the common
pleas or made known to the administra-
tors, must be paid by them pro rata with
judgments in courts of record. Scott v.
Ramsay,

i. 221
4. Where there is a naked power to execu-
tors to sell, and they renounce, adminis-
trators cum testamento annexo, have not,
either at common law, or under any act
of assembly prior to that of the 12th
March 1800, authority to sell, though the
object of a sale be the payment of debts.
iv. 31
Lessee of Moody v. Vandyke,

against creditors in equal degree, when
there is a deficiency of assets. Ex parte
Meason,

AFFIDAVIT RULE.

v, 167

mon Pleas to regulate its practice, it has
1. Under the general power of the Com-
authority to make a rule, requiring of
defendants an affidavit of defence, and
authorizing a judgment, if it is not filed
within a certain time. Fanatta v. Anderson,
iii. 417

2. Where there has been an award of arbi.
trators, finding that the plaintiff has no
iv. 428
cause of action, an affidavit of defence is
not required. Gregg v. Meeker,
3. The rule for affidavits of defence does
not apply to a case in which the defen-
dant is an infant. Read v. Bush,

AGENT.

See FRAUDS AND PERJURIES, 3.
INSURANCE, 10.
AGREEMENT, 6.

v. 455

1. If an agent indebted to his principal,
ships property to him on board a vessel
belonging to a third person, (although
bound to conform to the agent's orders)
and the captain signs a bill of lading de-
liverable to the principal, the property
thereupon vests in the principal, and the
i. 106
agent cannot countermand or disturb the
shipment. Summeril v. Elder,
2. The secretary of an incorporated com-
pany, who as such signs a lottery ticket
for the company, is not personally res-
ponsible to the holder. Passmore v. Molt,
ii. 201

3. The supercargo of all the shipments but
one on board a vessel, and having also
the management of the vessel, joined
with the captain in putting in a claim for
the ship and entire cargo, on their being
captured and libelled as prize; and upon
the acquittal of that particular adventure,
he received it subject to the payment of
all the costs, expenses, and counsel fees,
arising from the capture and trial, which
he disbursed out of the proceeds. Held,
that he was intitled to an allowance of
those costs &c., although the owner was
in law chargeable only with a part of
them. Delaware Insurance Company v. De-
iii. 295
launie,

4.

5. Administrators, who for their own inte-
rest, contest the claim of persons assert-
ing themselves to be heirs to the intes-
taté, are not intitled in case of failure, to
charge the expenses of the suit to the
intestate's estate. It seems otherwise, if
the defence is made from a sense of duty
as trustees. Hartzell v. Brown's heirs, v. 138 | 5.
6. Since the act of 1794, an administrator

has no right to retain his whole debt

event not contemplated at the time the
A deviation from orders excused by an
orders were given. Dusar v. Perit, iv. 561.
A and B his wife, on the 12th of Decem
ber 1797, by letter of attorney authorised
C and D jointly and severally to make