Page:United States Reports, Volume 2.djvu/252

 a46 Cam ruled and adjudged in the !796. ought not  he brought in eafe of the uparticular lands mort- gaged; but rt feems to me, that the dev' e of the reliduary part of the pnfonal ellate lhould give wa to the devife of the real ellste, ubje&ed to the mortgage, and be applied as far as it will go in difcharge of the mortgage; for the devifee of the real eltate mult take it can mere, that is fubje& to the mortgage, nnlefs the relidue of the pe1·I'onal eltate will be fulhcient to dif- eharge it. See GW. R¢p.in Eq. 72. Talbot ao:. 2 Atl. ago. r WiII.7go.6g4. -Pm·.in Cba 578. The following judgment was thereupon entered. . Br rmt .Cour.·r :-It is oonlidered by the Court, that the plaintiii recover the fum of money mentioned-in the verdié}, to- - Elm with lawful interek thereon, and the coils of fuit; and t if there fhould remain any overplus, after paying and fatis- fying the general debts, the fpeeilic and pecuniary legacies, out of the perfonal dlate, and the equitable charge of [gooo on the lands devifed to the defendant, that the fame he applied, in the litlt place, in difeharge of the mortgage on part of the faid lands to the managers of the Pemfylvauia Hofpital, and after- wards of the charitable legacy, and then among the reliduary le- gatees, agreeably to the willof the teftator. I I. I Nxcttor.son’s Lelfee mfm Mrrrux. jg g55_ %UB'I'ION arofe in this cafe, whether the defendant r im h `ven a written authority to Edward Borg/bl! (a Scri- $` fvener, who {Lp: an 0Ece for the [ale of lands) to difpofe of the {dig ifes in queftion, which the letfor of the plaintilf alledged [ md contraéled for, and bought, undezr that authority. ’ To prove that a written aut orit was given, but had been millaid, the P1aintiiFs Counfel oE{red Edward Baqpzll, as a witnefs: But, sr rm; Coursr :-—The agpnt is not a competent witnefs to prove his own authority for t e fale of lands, in this way: the contents of the writing mul! be proved by other witnelies; and then he might be allowed to ihew in what manner he had -· ecuted his inltrudtions. The plaintiff not being able to give any other evidence of this preliminary faét, fuffered a non-fuit. d;cLi·§i.v and (5%::, for the plaintiE Iugnfdl and Caddy for d endant. Sepmvhr

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