LEGACIES AND DE- 1. When a legacy is given session of his daughter B. they might recover by action at law. Secondly, because as to the issue of P. born before the testator's death, they did not pass under the will to the children of B. Hurdle v. 87 Reddick, "Increase" in the bequest of a female slave means only the increase born af ter the testator's death; unless where upon an apparent intent to include issue born after the making of the will, or even that before, by any words of reference to a period, from which the birth of the issue, that is to pass, shall be counted. Ibid. 4. A testator devised to his wife during her life or widowhood all his estate except what he should by his will otherwise dispose of. He then gives certain property to his children to be theirs at his decease. Then comes this clause: “Also, at the decease of my wife, I give to my son G. my man Stephen, and to my son L. my man Charles. Also I give and bequeath to my son L. W. all my lands, &c." (on which he had previously given his wife a life estate.) "Also unto my son L. W. I give my two boys Dick and David with their mother." Held, that these negroes did not pass immediately to L. W. but only in remainder af ter the death or marriage of the widow. Sherrill v. Echard, 161 5. A testator devised "to my grandson J. S., son of S. S. the tract of land I now live on, with the reserve and privilege of my son S. S. the father of the said J. having the full privilege of the said land, and all the profits arising therefrom during his natural life." In a subse-8. quent clause he says, "1 further give and bequeath all my lands, that I am seized and possessed of at this time, or the profits arising therefrom to my beloved wife, during her) natural life or widowhood, ; then for it to fall back to to said heir as above mentioned." Sullivan v. Ragsdale, 194 6. Held, that, even if J. S. be the heir intended in the second clause of the will, yet he could only take the lands, subject to the reservation in the first clause of a life estate to to them and their heirs forever." Held, that as this disposition, if applied to land, would have crea ted an estate tail, it gives the absolute property in the slave to Elizabeth Coon, there being nothing in the other parts of the will to shew that the words, "heirs of the body," meant "children." Coon v. Rice, 217 A by will in 1786, devised to his son R a tract of land and then proceeded as follows: "And my desire is, if my son R die without heir lawfully begotten of his body, for it to be sold, and equally di vided between his own sisters." Held, that the limitation over was too remote, and that estates tail having by the Act of 1784 been converted into fee simple estate, the son R took an absolute estate in fee simple in the land devised. Hollowell v. Kornegay, 261 OF, AND PRESUMP TIONS. his father, and that he LIMITATIONS,STATUTE could not bring an action. to recover the lands in the lifetime of the father. Ibid. 1. 7. A testator bequeathed to A. B. as follows: I give and bequeath unto my daughter Elizabeth Coon,) during her natural life, at the end of which to the only heirs of her body, one negro girl named Riah, this to the aforementioned! If in reply, to the plea of an executor of the Act of 1789, limiting the time within which actions shall be brought against executors,&c. the plaintiff' wishes to avail himself of the proviso in that Act, that he was requested by the executor not to sue, he 1. In an action for malicious prosecution, where probabable cause is alleged, it is the duty of the Court to direct the jury, that, if they find certain facts from the evidence,or draw from them certain other inferences of fact, there is or is not probable cause; thus leaving the questions of fact to the jury, and keeping their effect, in point of reason, for the decision of the Court as a matter of law. Beale v. Roberson, not continue or revive the liability of the estate of a deceased obligor by partial payments, obtaining indulgence or other means, so as to repel the operation of that Statute. Ibid. 4. In an action on a bond for $60, payable to two attornies, for attending to a suit, which bond had been due more than twenty years, the defendants relied upon the presump-2. tion of payment or satisfaction under the statute, from the lapse of time. To rebut the presumption, the plaintiff proved, that one of the defendants had recently said that he had paid one-half of the bond, { and the other half was relinquished, because the attorney to whom it was payable, had neglected to attend to the suit. Held, that these declarations were not sufficient to rebut the presumption. Henry v. Smith, 348 5. A payment made by one of the makers of a promis, 280 In an action for a malicious prosecution, it is sufficient, in order to prove the prosecution terminated, to shew that the plaintiff was bound to appear at a term of a Court to answer a criminal charge, that he did appear and was not rebound. Much more is it so, when the Solicitor for the State makes an entry on the docket, that he does not think the evidence sufficient to convict. Rice v. Ponder, 390 3. It is not a sufficient defence to an action for a malicious prosecution, that the defendant really 4. If the truth of the charges MILLS. 418 1. An executor or administrator has a right to a remedy by petition, under the Act, Rev. Stat. ch. 74, to recover damages for the overflowing by a mill pond of his testator's or intestate's land in the lifetime of such testator or intestate. Howcott V. Warren, 20 2. A remedy by petition, under the Act of Assembly, Rev. Stat. ch. 74, to recover damages for overflowing land by a mill pond, may be had against the executors or administrators of the person who committed the injury. Howcott v. Coffield. 2. PARTITION. The act of 1829 (Rev. St. 3. The Court will not enter- PARTNERS. ་ PRACTICE AND PLEADING. 1. The Act of Assembly restraining Judges from expressing to the jury an opinion as to the "facts," of the case, only applies to those "facts," respecting which the parties take issue or dispute, and on which as having occurred or not occurred, the imputed liability of the defendant depends. State v. Angel, 2. When the Attorney General, upon an appeal by the defendant on an indictment, informs the Court, that he has looked into the record and that he consents that the venire de novo prayed for should be granted, the Court will of course grant the venire de novo, without examining into the errors 27 as 3. The Supreme Court will take no notice of mistakes by the jury in the Court below, whether or not they find against the facts or the law. State v. Gallimore, 147 4. The jurisdiction of the Supreme Court is confined to matters of law, adjudged by the Judge of the Court below, and, to ascertain what matters of law were so adjudged, they look to the case stated, which is in the nature of a bill of exceptions. Ibid. 5. Yet upon a motion in arrest of judgment, the Supreme Court will look into the whole record, and, if they find error, will so decide. Ibid. |