Second. That the conveyance to Ash,
in its terms and upon its face, was ex-
actly such as Clarke, under the sta-
tutes and orders before mentioned, was
fully authorized to make.
id.

3. Third.-That this conveyance, being a
deed of bargain and sale, and its ex-
ecution and delivery being admitted,
was sufficient proof, in the first in-
stance, that it was in reality founded
upon the pecuniary consideration there-
in stated; and that the acknowledg
ment therein contained was also suffi-
cient proof that the consideration men-
tioned was, in fact, paid.

7. Seventh.-That there was no evidence
that could justify the Court in saying,
that the orders of the Chancellor, un-
der which the sale and conveyance to
Ash were made, were procured, as is
alleged, by a concealment and misre-
presentation of material facts; but that,
on the contrary, the truth of the re-
presentations contained in the petition
of Clarke, upon which the orders were
founded, was established by the report
of the Master to whom the petition
was referred, and by the confirmation
of that report by the Chancellor.

to grant leases for a term not exceed-
ing twenty-one years from the making
thereof.

id.

8. Eighth. That had the clearest proof] 15. The testator authorized his trustees
been given, that the orders in question
were procured by fraud, yet, as they
were regular and valid on their face,
the fraud would not have affected the
title of an innocent purchaser, and there
was nothing in the pleadings or proofs
to show that actual or constructive no-
tice was imputable to Ash.
id.

9. J. Thomas, by his last will, devised all
his estate to trustees, in trust, to apply
so much of the rents and profits as
might be necessary to the support and
maintenance of his wife during her life,
and to divide the residue among his
three children named in the will, dur-
ing their lives. Two, only, of the chil-
dren, and the wife, survived the testa-
tor. Griffen v. Ford.
123
10. Held, that the trust created no sus-
pense of the power of alienation be-
yond the lives of the two children liv-
ing at the death of the testator.

id.

Held, that these words confined the trus-
tees to a grant of leases in possession,
and that when a power to lease is thus
limited, a lease, to commence in pos-
session upon a future day, is wholly
void.

id.

16. Held, therefore, that a lease in ques-
tion, which was executed and delivered
on the 20th of December, 1849, for a
term of years not to commence until
the 1st of May, 1850, was void in its
creation upon its face.
id.

17. The testator directed that his trus-
tees, in making leases, should reserve
the best and most improved rent that
could be gotten; and it was proved
upon the trial, and found by the Judge,
that when the lease in question was
executed, a much higher rent than that
reserved could have been obtained. id.

Held, that a trustee, directed to obtain
the best rent, is bound to the exercise
of reasonable diligence, as well as of
good faith; and as it has clearly ap-
peared that this diligence had not been
used, the lease in question must, upon
that ground, be adjudged to be void. id.

18. A lease for a longer term of years
than is authorized by the power under
which it is made, although bad at law,
is good in equity for a term correspond-
ing with the power, and is void only
for the excess.
id.

in the R. S., that had been relied on in
support of the objection. (§ 60, 1 R.
S. p. 729.)
id.

Vide ante, 214.

E

ESCAPE.

Vide SHERIFF, 1.

ESTOPPEL.

menced such suit, that it should be
brought by his son as owner, but could
be maintained by the father as bailee;
nor do such facts estop the plaintiff from
claiming title as owner, as against de-
fendants who have no claim of title,
or right of possession conferred, or at-
tempted to be conferred on them, by
any one claiming to own them, or the
right to have the possession of them. id.

4. Although a defendant may be entitled,
equitably, to an allowance, on the trial,
for services rendered and materials
furnished to the plaintiff after suit
brought, yet, if on the trial an inquiry
into them, subsequent to suit brought,
is excluded by the Court on the de-
fendant's motion and objection, such
defendant cannot object, on appeal from
the judgment, that he was not allowed
for such matters furnished subsequent
to suit brought. Ford v. David. 569

1. In an action, to recover the possession
of family portraits, by one having a
paper title from the original owner (the
plaintiff's paternal grandmother); it ap-
pearing that the plaintiff had permitted
his father to have the possession of
them for several years, and that the
latter took them to the residence of the 5.
defendants, and left them there tempo-
rarily, (one defendant being his daugh-
ter, and the other the husband of such
daughter,) the plaintiff does not forfeit
his right of property, because the de-
fendants, to his knowledge, and with-
out objection from him, repaired the
pictures while in their possession, at
their own expense, they not then claim-
ing title, and the plaintiff not having
disclaimed it. Hunt v. Moultrie and
wife.
531

2. Declarations, made by the plaintiff,
tending to show that he was not the
owner, though competent as evidence
against him on the question of title,
cannot operate as an estoppel to his
claim of property, when it does not ap-
pear that such declarations ever came
to the knowledge of the defendants,
or have been acted upon by them. id.

3. The facts that; the father, in his life-
time, brought an action against the de-
fendants, and which was pending when
he died, to recover possession of the
portraits, and made an affidavit that he
was the owner of them, and that the
plaintiff signed an undertaking in that
action as surety for his father, is no
bar to an action by the son, to recover
the property, after his father's death, it
not appearing that the son ever saw
such affidavit, and it also appearing that
the father was advised when he com-

When a plaintiff, under a contract be-
tween him and one of several defend-
ants, and under subsequent contracts
between such defendant and his co-
defendants, in relation to the same
matter, claims, in good faith, a right to
be boarded without charge, as due to
him upon a just construction of such
contracts, and such board has been
furnished under such claim, and as of
right due to the plaintiff, the defend-
ants so furnishing it cannot recover of
the plaintiff for its value, though the
Court may think the plaintiff's construc-
tion of the contracts erroneous.

Vide SHERIFF, 6.

LIFE INSURANCE, 5.

EVICTION.

Vide LANDLORD and TENANT, 1, 2.
LESSOR and LESSEE, 2.

EVIDENCE.

id.

159

2. When improper or irrelevant evidence
has been admitted by a referee, the
error in its admission will be disre-
garded if it manifestly appears that the
evidence could not have influenced his
decision, and that his conclusions must
have been the same, had it not been
received. Belmont v. Coleman. 188

respect to such matters, notwithstand-17. When an account has been rendered
ing the evidence sought to be contra- to a defendant which, on the trial, he
dicted was elicited by his cross-exami- refuses to produce, and which, it ap-
nation. Mills v. Carnly.
pears, was transcribed from the ledger
of the plaintiffs, the account in the led-
ger is good secondary evidence. But
when no reason is shown for not pro-
ducing the ledger, a copy of the ac-
count taken from the ledger cannot be
received, as it is plainly not the best
secondary evidence which, the plain-
tiffs had it in their power, to give.
The American cases have established
that there are grades in secondary evi-
dence, and the true rule deducible from
them is, undoubtedly, that laid down
by Mr. GREENLEAF; namely, "That,
if from the nature of the case itself it is
manifest that a more satisfactory kind
of secondary evidence exists the party
will be required to produce it, but
when the nature of the case does not
disclose the existence of such better
evidence, the objector must prove its
existence, and must also prove that it
was known to the other party in sea-
son to have been produced on the
trial."

3. A bill of exchange, drawn upon an
incorporated Company, and accepted
by its president, is presumptive evi-
dence that it was founded on a suffi-
cient consideration and was drawn for
legitimate purposes within the purview
of the charter of the Company.

id.

4. In an action in which the plaintiff relies
upon the validity of the bill as binding
the Company, the burthen of proof,
when its validity is denied, as drawn
for purposes not within the lawful
powers of the Company, rests upon the
defendant.
id.

5. In an action against an individual
stockholder of an incorporated Com-
pany, by whose charter the stockhold-
ers are made liable for its unsatisfied
debts-the record of a judgment against
the Company, and an execution thereon
returned unsatisfied, are prima facie
evidence that the debt so recovered
was a valid debt of the Company, and
the burthen of proving collusion or
mistake is cast upon the defendant. id.

6A bank check, in the hands of the
drawer, paid by him, is not evidence,
per se, of a debt due to him from the
payee; but when it is shown that the
check was in fact lent to the payee, it
may be read in evidence to prove the
amount of the loan. A draft, in the
hands of an acceptor, and paid by him,
is not evidence of a debt due to him
from the drawer; but on the contrary,
the presumption of law is, that the draft
was drawn against funds of the drawer,
then in his hands. In order to charge
the drawer of a bank check, it is not
necessary to show presentment for pay-
ment and refusal, if it is proved that,
at the time, he had no funds in the
bank upon which the check was drawn.
Reddington v. Gilman.
235

id.