this deponent heard it publicly said, that Ware, had absconded, and had deserted his place of residence to avoid his creditors, and had gone to the college, in Virginia. Deponent afterwards saw Ware casually, in Philadelphia, and made demand of payment of said debt, for which he had the warrant: Ware stated he was unable to pay, and before deponent could get out process, Ware suddenly left the city: has recently understood he (Ware) was in New-York.

Second: WILLIAM BOZARTH was acquainted with Ware, who was a house carpenter, and kept an iron-mongery store, in Market street, above Ninth, Philadelphia. Some time in the year 1818, called at this store and enquired for Ware, and the person in the store informed him that Ware had gone away, he did not know where, but believed to the south; shortly after heard, as a matter of common report, that Ware had absconded, and different statements were made as to the place he had gone to. Some time in 1819 or 1820, deponent met Ware in the street, Ware could have been then but a short time in the city: has not since seen him in the city; has heard that he passed through the city within two years, on his way to New-York: thinks it was during the year 1818, that Ware left the city.

Third: PETER L. BERRY was well acquainted with Ware, and being his bail, was very desirous of finding him before he left the city, but was unable to do so. Ware left the city clandestinely, and deponent considered him as having absconded: does not exactly recollect the time Ware went away: thinks it was about ten years ago, (July, 1827.) Deponent always believed he left Philadel. phia, and went away to avoid his creditors.

Fourth: JACOB RHEIM was acquainted with Ware whilst he resided in Philadelphia. On the 5th of January, 1819, Ware was still residing in the city, and left it in the spring or summer following, to go to Virginia. He has been absent from the city ever since, except that he was once seen by the deponent, a year or two afterwards, in the city. [A written notice is exhibited in the deposition of this witness, which he states to be in Ware's hand-writing, and signed by Ware. It is dated 24th April, 1819, at Chester, in Delaware county, and is a notice by Ware to his creditors, that he has applied to the Common Pleas for Delaware county, for the benefit of the insolvent law, and that Monday, the 10th May, 1819, was the day appointed for the hearing of the petition.] Deponent was informed by Ware, that it was his intention to go to Virginia, to assist in building Jefferson college, and that the job would detain him several years.

Fifth: JOHN C. EVANS. Ware left Philadelphia some time after the begin. ning of May, and before the month of August, 1819.

Second: As to notice to Lybrand, the endorser, of non payment, the evidence is :

First: JOSEPH S. RANDALL, in August, 1819, was a clerk to Peter Lohra, notary public, in Philadelphia. On the 7th August, 1819, (as deponent knows by a memorandum made by him at the time) by the direction of Mr. Lohra, he put into the post-office of Philadelphia, separate notices for Richard Ware and George C. Lybrand, of protest of the note mentioned in the declaration. (The note and protest are identified by witness, and exhibited in his deposition.)

Second: JoHN C. EVANS. Lybrand left Philadelphia in the year of 1818 or beginning of 1819, deponent thinks the latter, and has continued to reside at a

distance from Philadelphia since. When in Philadelphia, he lived, as deponent believes, with his mother, in Eighth street.

Third: GEORGE MASTERS. Prior to August, or September, 1818, Lybrand resided in Market above Ninth street, Philadelphia, where he kept a hard-ware store. On the 7th of May, 818, deponent went to live on a place belonging to said Lybrand, in Roxboro township, about nine miles from Philadelphia, as a tenant of Lybrand's. In the month of August or September, of that year, Ly. brand came to live on the farm, and continued to live there two or three years. He followed no business there, was frequently in the city, and directed deponent if he should have occasion to see him, during his absence, to call for him at his mother's in Eighth street; deponent frequently saw him at his mother's; Ly. brand did not put up in the city, at any other place, and there deponent was frequently directed to call, on business for Lybrand; was in the habit of bring. ing things from that place to Lybrand, and on one occasion, particularly, he recollects carrying a note or letter to him.

Fourth: DAVID WATSON. (Two depositions of this witness.) First: Is, and has been, since 1810, a letter carrier, for a district in the city of Philadelphia; several years ago, was in the habit of receiving letters from the post office ad. dressed to George C. Lybrand, these letters were left with Lybrand's mother, in North Eighth street, Philadelphia; this practice of leaving Lybrand's letters with his mother, continued for two or three years; for several years, last past, deponen: does not recollect having received any letters for Lybrand; during the time he was in the habit of carrying Lybrand's letters to his mother's, heard no complaint of any miscarriage; from the practice of the post office, any let ters addressed to Lybrand, would have been carried to his mother's; does not recollect ever to have seen Lybrand.

Second deposition: In the year 1818, deponent carried letters addressed to George C. Lybrand, to the store which Lybrand then kept in Market street; does not recollect of carrying any letters to Lybrand previously to April, 1818; deponent cannot state at what time Lybrand left the store, in Market street, but afterwards deponent was in the habit of carrying letters for him to his mother's, in Eighth street; after some time deponent understood he had left Philadelphia, and from that time, has no recollection of any letter being left for him, in the post office; whatever letters came at any time for him after he left the store, were taken to his mother's and there left; deponent recollects the person of George C. Lybrand; deponent recollects after Lybrand left the store, his mo. ther's was the place pointed out by Lybrand, at which letters to him were to be left, but cannot state this positively; cannot state the year Lybrand left Phila. delphia.

W. W. Irwin, for defendants. H. Stanbery, contra.

By the COURT.

We all concur in opinion, with the Supreme Court of the United States, upon the first point, in this case. In the case of McGruder v. the Bank of Washingion, (6 Wheat. 140) cited by the plaintiff's counsel, they have settled, that the removal of the maker of a note, after it was made, and before its maturity, into a

different state, from that where he resided when the note was made, excuses the holder from making actual demand of payment from the maker. Whether a demand should be made, at any other place, is not made a point, or adjudicated upon in that case. But it seems to us a clear consequence of the decision, that such demand is unnecessary. The fact of removal commits the endorser, and dispenses with all demand, unless a particular place be appointed for the payment of the note, in the note itself. In this case, the evidence to prove the removal, was admissible, and the jury found the fact of the removal: The verdict cannot be disturbed on this point.

Second: The second ground urged for a new trial, is, that the testimony received to prove that the notice was given to the defendant, of the non-payment of the note, was not admissible for that purpose. It is fully proved, that the defendant resided a part of his time in the country, nine miles from the city, and a part, at his mother's, in the city. But transacted no regular business at either place. Notice of the protest was put into the post office in the city, from whence a letter carrier distributed letters, who testified that he had carried letters to Lybrand, from the post office. The proof is also clear, that Lybrand had directed letters and other matters of business, to be left for him at his mother's. There is no evidence in this case, whether there was a post office nearer to his country residence, than that of the city, and the counsel for both parties contend that this omission is in their favor. But, as the question is presented to us, we do not consider the fact very material. All the evidence received, was properly admissible. Its sufficiency to charge the defendant might depend up on the facts. Proof that there was a nearer post office, would have been a sufficient answer to it, before a jury. But this, instead of rendering it original. ly inadmissible, would be defeating it by counter proof. Its operative effect, not its admissibility, depended upon that fact. And its operative effect, not its admissibility, depended upon that fact. And its operative effect too would de. pend entirely upon the light in which the other facts might be considered by the jury. Should they be satisfied from the testimony, that the notice actually reached the defendant, or that he was, in the city, at the time the notice was put in the post office, and receiving letters by the carrier, the fact of a nearer post office, would be considered wholly immaterial. It is therefore very clear, that the testimony was properly admitted. Its effect is not now before us, and it is unnecessary to express any opinion upon it.

New trial refused, and judgment on the verdict.

DABNEY v. MANNING, ET AL.

Where a power is given by will to an executor to sell lands when in his opinion a sale can be made to good advantage, and the proceeds devised to children as they come to age, such power is connected with a trust and the executor is enti led to the possession of the lands.

When lauds are sold on proceedings in partition subsequently reversed, the purchaser who entered under such sale is not liable in trespass, for acts done while the decree was in force.

This was an action of trespass for breaking and entering the plaintiff's close, and was adjourned here for decision from the county of Trumbull upon a spe eial case.

The plaintiff was executrix of the 1st will of N. G. Dabney, deceased, which had been duly proven and recorded, and the executrix had accepted the trust under it, and qualified. The will contained the following bequest:

"I do will and ordain, that my executors hereinafter named, do sell my farm, on which I now reside, containing one hundred and sixty-eight acres, when. ever, in their opinion, they can do the same to good advantage."

By other provisions in the will,the proceeds of the sale were devised to be dis. tributed amongst the testator's wife and children; to be paid to the latter as they arrived at the age of twenty-one. The plaintiff, who was named executrix, was the wife of the testator. The other person named executor in the will, de. clined to accept the appointment.

The plaintiff adduced no other title or evidence of right of possession, but that contained in this devise.

The defendants set up a defence upon the following foundation. The heirs at law of N. G. Dabney, Were some of them infants: One, who was of full age, (the executrix not having sold the estate,) filed a petition for partition, in the Court of Common Pleas of Trumbull county, where such proceedings were bad, that the court made an order for the sale of the land, it being reported incapable of division. The order appointed N. Scott to make the sale, in these words: "It further appearing to the court here, that there is no administrator on the estate of N. G. Dabney, it is ordered by the Court, that N. Scott be appointed administrator to make distribution of the avails of said lands, &c. &c. It is also ordered by the Court here, that an order issue to the said ad. ministrator to sell the land, in the petition described, at public vendue." &c.

Under this order, Scott proceeded to sell the land; the defendants became the purchasers, and Scott made them a conveyance, in which no reference is made to the judicial proceedings under which he acted. He describes himself as "administrator to sell the lands and tenements of Nath. G. Dabney, late deceased," and, in the covenant of title, he recites his power thus; "I, the said Ne. hemiah, in my said capacity as administrator to sell the lands and tenements of N. G. Dabney, late deceasad, do, for myself, my heirs, &c. that at, and until the ensealing of these presents, I am, in my said capacity as administrator,well seiz. ed of the premises, as a good indefensible estate in fee simple, and have good right to bargain and sell the same in manner and form as above written." Under this deed the defendant entered and took possession. Subsequent to the sale and conveyance, a writ of error was brought, on the proceedings in par tition, and the order of the Court of Common Pleas, directing the sale, was reversed. The defendants then abandoned the possession.

Upon this state of facts, two questions were raised for decision.

First: Had the plaintiff such possession of the premises, as that she could maintain an action of trespass for an unlawful entry upon it?

Second: Can the defendants protect themselves under the purchase from Scott?

P. W. Burr, for plaintiff. Metcalf and Loomis, contra.

By the COURT.

The testator in this case, directed his executors to sell his real estate, whenever, in their opinion, they could do so to good advantage. He devised the proceeds of sale, to be paid in shares to his wife and children; and appointed the payments to the children to be made when they should respeetively become of age. We cannot consider these provisions as giving to the executors a mere naked power to sell the land; because they confide a discretion as to the time of making the sale to good advantage; and because they are entrusted with the charge of the proceeds, until the time appointed for paying it to the legatees. The executrix had an interest in the performance of the trust thus confided to her, and she had also an interest as one of the devisees of the proceeds. For the preservation of these interests, the law entitled her to the pos session of the land, from which they could not be separated. The title certainly descended to the heir, while the trust remained unexecuted, subject to be divested by the execution of the power. But the right of possession did not descend with the title; that passed with the will for the better enabling the executors to effect the objects of the testator. We are consequently satisfied, that the plaintiff has such right of possession, as enables her to sustain this action.

The laws of this state provide, that where lands descend in parcenary to heirs, some of whom may be of full age, and some minors, those of full age, may petition for partition: and the power of hearing and determining upon this petition, is conferred upon the courts of justice. If, upon certain proceedings, it shall appear that the lands cannot be partitioned to advantage, power is given to the courts to direct a sale, and to distribute the money.

The proceedings and judgments of the courts, in a petition for partition, must, like judicial proceedings in all other cases, bind both parties and privies, while they remain unreversed, however erroneously they may have been conducted.

In this case, the court of Common Pleas clearly were invested with jurisdic. tion over the subject, and between the parties. Whether such interest descended to the heirs of Dabney, as entitled one of them to demand partition, was a judicial question, which that court were competent to decide. It naturally arose in the cause, and the decision of it concluded all concerned until reversed. The adjudication upon every other fact in the cause, was of the same character.

It is urged, that by law the court are, in case of a sale being ordered, directed to require that the sale be made by the sheriff, and that, in this case, they appointed another person to make it. But this error could not have the con sequence of taking away their jurisdiction, nor of rendering the sale void. They were authorised to direct a sale, by one person, and they directed a salo by another. There is no just analogy between such a case, and one where the Court adjudge that to be done, which the nature of the action does not warrant, as adjudging that a defendant make a conveyance for land, or receive a beat. ing in a personal action,