ed below 10l. by a set-off. 2 Dallas, 74.

3 Unascertained damages for a tort, cannot be set-off, in an action of debt on a bond. 2 Dallas, 237, 8. 4 The act putting promissory notes, discounted at the bank of Pennsylvania, ou the same footing with bills of exchange, does not give them the same priority in paying the debts of a testator, but only applies to the case of defalcation. 2 Dallas, 263, 4.

5 A balance of accounts due from a factor to his principal, may be setoff in an action on a bond by the latter against the former; and such accounts are not within the act of limitatious. 2 Dallas, 264, 5.

DELIVERY.

DEMURRAGE.

R. the owner of a ship, entered into a written agreement with B. to carry certain goods in the vessel from Newyork to Surrinam, and to bring back a certain cargo from that place to Newyork; and B. agreed to pay 2,600 dollars for the freight; but if accident should prevent the delivery of the return cargo, then he was to pay only 1,300 dollars, and R. engaged that the vessel should lie 35 days at Surrinam, to unload and reload. The vessel staid the 35 days, and the return cargo not being ready, she staid 20 days longer, at the request of the agent and consignee of B. who had no control over the vessel: and having brought back the return cargo, B. paid the 2.600 dollars freight. In an action of assumpsit, brought

by R. against B. to recover a con-pensation for the detention of the vessel beyond the time stipulated, in the nature of demurrage, it was held, that as the written contract contained no stipulation to pay demurrage, and no implied assumpsit to pay it, could arise from the act of the consignee of the goods, who had no authority to bind Bas to demurrage, the plaintiff was not entitled to recover. Robertson v. Bethune and Boorman. 3 Johns. Rep. 342.

DEMURRER.

I. Demurrer in general. II. Demurrer to evidence.

I. Demurrer in general.

If a defendant demur in abatement, the court will notwithstanding give final judgment, because there cannot be a demurrer in abatement. Dockminique v. Davenant. 1 Salk.

220.

5 Debt on a bond to prosecute error in the hustings, and to pay damages and costs if judgment be affirmed; plea that the writ was prosecuted with effect, and that the judgment was not yet affirmed; replication that the writ was nonprossed in the hustings; demurrer and objected that it did not appear before whom the hustings were holden; 2d, that it was not shewn that the writ was returnable; but overruled, and judgment for the plaintiff. Lavfield v. Satchwell. 1 Wils. 123.

6

Where the estoppel appears on the record, the other side may demur. Kemp v. Goodall. 1 Salk. 277. 2 L. Raym. 1154.

Nil habuit in tenementis is bad in debt for rent, if plaintiff declares upon a demise by indenture. Ib.

Plea waived after a joinder in demurrer. Herbert v. Griffith. 2 Str.

1181.

8 Setting out a judgment in C. B. prout per recordum ibidem jam residens: quod quidem recordum coram nobis certis de causis venire fecimus, &c. ill on special demurrer. Welder v. Buckland. 1 Str. 611.

9 Variance between the writ and declaration pleaded without craving or setting forth oyer. Plaintiff demurred, and held that defendant

13 Breach, that 31. for a year at Lady Day last was arrear, &c. well on general demurrer. Stagg v. Hind. 1 Salk. 139.

v. Banks. 2 Wils. 85.

10 Not guilty, and not guilty within six years to an action for crim. con. ; issue to one and demurrer to the other; verdict for plaintiff on the

Freak. The defendant pleaded his name is Walter; the plaintiff demurred, supposing that the defendant was estopped by the record to say his name was Walter; but

judgment was given quod billa cassetur; for the plaintiff should have pleaded it. Pleddall v. Freak. Salk. 152. 22 Assumpsit upon bill of exchange ; the plaintiff declares that secundem consuetudidem et usum mercatorum, the acceptor is bound to pay, &c. without shewing the custom at large; and the defendant demurred: it was adjudged for the plaintiff. And per curiam, it is a better way than to shew the whole at large. Soper v. Dible. 1 L. Raym. 175. 23 Upon nul tiel record pleaded of record of the same court, day may be given to the party to bring it in, or for the justices to inspect the record; but defendant cannot demur. Moor v. Manucapt. 2 Salk. 566. 24 One trespass well adjudged is suf

ficient on demurrer. Chamberlain v. Greenfield. 3 Wils. 292. 23 Not guilty in assumpsit, ill on demurrer. Marsham v. Gibbs. 2 Str. 1022.

26 If a defendant puts in a frivolous demurrer, he cannot withdraw it afterwards, aud plead the general issue, though he has a good defence. Griswold v. Haskins. 1 Johns. Cases, 135.

27 Where a bill seeks discovery as to lost deeds, and also to perpetuate the testimony of witnesses, a general demurrer to the whole bill, for want of an affidavit, is bad. Laight and others v. Morgan. 1 Johns. Ca

ses, 420.

28 In a bill in equity by executors, it is no cause of demurrer, that they have not set forth their letters testamentary. Telfair v. Stead. 2 Cranch, 408. 29 It is no cause of demurrer to a bill in equity against an executor seeking a discovery of assets, that the complainant had a right of action at law. 2 Cranch, 409.

30 Quere, whether the court ought to permit amendments after judgment upon demurrer. Mandeville v. Wilson. 5 Cranch, 15.

the court must be against the party who commits the first error. U. States v. Arthur. 5 Cranch, 257.

11. Demurrer to evidence.

1 A demurrer to evidence admits the truth of every conclusion of fact which the jury could have inferred from the evidence demurred to. Cocksedge v. Fanshair. 1 Dong. 119 to 134, 224.

2

On a demurrer to evidence the party cannot take advantage of any objection to the pleadings. Cort v. Birkbeck. 1 Doug. 218 to 225. When evidence is demurred to, the jary may assess the damages conditionally. Ib. n.

If they do not, and judgment on the demurrer is given for the plaintiff, there shall be a writ of inquiry. Ibid.

And after the execution thereof the party may move in arrest of the final judgment on any objection to the pleadings. Ib.

3

4

5

6

On a demurrer to circumstantial evidence the party offering the evidence is not obliged to join in demurrer, unless the party demurring will distinctly admit upon the record, every fact and every conclusion, which the evidence offered conduces to prove. Gibson & alv.

Hunter. 2 H. Black. 187.

On a demurrer to evidence, every fact which the jury could legally infer from the evidence, is admitted. Forbes and another v. Church. 3 Johns. Cas. 159.

On a demurrer to evidence, the court will infer every fact which the jury could have done, had the cause been left to their decision of the evidence. Patrick v. Hallett and Bowne. 1 Johns. Rep. 244. On a demurrer to evidence, every thing which the jury might reasonably infer from the evidence demurred to, will be considered, by the court, as admitted. Few. 5 Johns. Rep. 1.

Lewis.

The court is not bound to give an opinion to the jury as to the meaning or construction of a written de- 1 position read in evidence in the

cause.

Marine Ins. Co. v. Young,

5 Cranch, 187. * The depositions contained in the proceedings of the foreign court of admiralty condemning the vessel are not evidence in an action upon the policy of insurance. Marine Ins. Co. v. Hodgson. 6 Cranch,

4

658.

The principal and not the deputy is entitled to fees new created after their deputation. Plaintiff having remedy upon a covenant to account cannot bring assumpsit for money had and received. Bulstrode v. Gilburn. 2 Str. 1027.

DESCENT.

Whoever elaims as heir by descent must make himself heir to the person last actually seized and in / An possession of the inheritance. actual entry is not necessary to be made to avoid a fine without proclamations. Jenkins on the dem. of Harris & wife v. Pritchard & others. 2 Wils. 45.

Borough English lands descends to the representative of the younger son. Where custom makes au heir, the law implies all incidents in course of descents. Clements v. Scudamore. 1 Salk. 243. 2 L. Raym. 1024.

If the legal interest in land descend in fee simple ex parte materna, and the equitable interest in fee simple ex parte paterna, or vice versa, the equitable shall merge in the legal estate, and both follow the line through which the legal estate descended Goodright v. Wells. 2 Doug. 771 to 780. An appointment by will under a

power in a settlement operates as a common devise; and the appointee in fee simple (if heir at law) is in by descent, and not by purchase. Hurts v. The Earl of Winchelsea.

1 Black. 187.

5 Where the same estate is devised to H. which he would have taken by descent, he is in by descent, notwithstanding the possibility of a charge. Clerk v. Smith. 1 Salk.

241.

6 A devise to one and her daughters may, in particular circumstances, make the heirs take by purchase. Lessee of Long v. Lamy. 1 Black.

265.

7 Descent que toll entry must be immediate, and coverture to avoid such descent must be continual. The Lesse of Carter v. Tash. 1 Salk.

241.

8 A. seized in fee of a copyhold of inheritance by descent ex parte materna, surrendered to the use of himself for life, remainder to such persons and for such estates as he should by deed or will, attested by three witnesses, appoint, remainder in default of appointment to himself in fee; afterwards he mortgaged and surrendered to the use of the mortgagee in fee, who upon repayment of the principal aud interest surrendered to the mortgagor: held that the line of descent was thereby broken, and that the estate descended to the paternal heir. Doe d. Harman v. Morgan. 7 Term Rep. 103.

9 A feoffinent and refeoffinent break the line of descent. 7 Term Rep.

105.

10 The rule of possessio fratris does not apply to estates-tail; nor even to inheritances in fee-simple, without an actual possession of the brother of the whole blood. Doe d. Gregory &d. Geere v. Whichelo. 8 Term Rep. 211.

11 J. A. devised all his lands to S. A. (his son by the first venter) when he should come to the age of 21 years, but if he should die before 21 years,

and D. A. (the testator's daughter by the second venter) should be then living, he gave the same to her when she should attain 21 years. Testator died, and then S. A. died under age and without issue; held, that on the death of S. A. the inheritance vested in D. A. his sister of the half blood in preference to his uncle of the whole blood. Doe d. Andrew v. Hutton. 3 Bos. & Pull.

643.

12 A. a feme covert, died seized of lands, in June, 1795, leaving a husband and two sons and three daughters. The husband continued sized, as tenant by the curtesy, until his death, in 1798. B. the eldest son, died abroad, in 1784, an infant, intestate, and without issue. C. the other son, on the death of his fa ther, entered as heir to his mother. It was held, that the descent was suspended, during the tenaney by the curtesy, and that A. being last seized, was the stock of descent, and as she died before the statute of descents, C. the second son, took the inheritance, as sole heir to his mother. Jackson ex dem. Gomez and others v. Hendricks. 3 Johns. Cas. 214.