Volume 1 — Grant's Pennsylvania Cases

<p>Error to the Court of Compon-Pleas of Cambria county.</p>

This was an action of ejectment, brought to recover eighty acres of land, in the township of Fairfield, Crawford County. The plaintiff, Shoofstall, derived title through one Rachel- Mason, by a devise of the premises to him by will, dated May 18, 1842.

<p>Error to the District Court of Philadelphia.</p> <p>The facts appear in the opinion of the court.</p>

<p>I. A free colored man can acquire a pre-emption right to land, under the law which gives that right to persons who settle on vacant land of the Commonwealth, “with a manifest intention of ^making it a place of abode and the means of supporting a family.”</p>

This was an action on the case brought by James A. Dickson & Co., against John Forsyth, late sheiiff of the County of Allegheny, to recover damages for not levying, and for a false return of nulla bona to an execution placed in his hands, against Samuel Walker and James A. Eakin, at the suit of the plaintiffs. The plaintiffs, on the 12th of June, 1848, recovered a judgment in this court, against Samuel Walker and James A. Eakin, for the sum of $1226.32.

Error, to the District Court of Allegheny county. Defendants in error were plaintiffs below. This was an action upon a contract, of which the following is a copy: “ $571.34 Pittsburgh, Jan. 31, 1850. On the first day of August next, we promise to pay to F. & W. M. Faber, five hundred and seventy-one dollars,, 34-100, payable in good foundry pig metal, at the rate of Pittsburgh six months’ market prices, without defalcation, for value received. J. Bell k Co.” Geo.

<p>Error to the Court of Common Pleas of Gfreene county.</p> <p>This was an action of covenant brought by John Clark, the" defendant in error, who was plaintiff- below, against Lawrence Clark, the plaintiff in error and defendant below.</p> <p>The plaintiff claimed on articles of agreement dated June 11, 1842, wherein the plaintiff covenanted to sell and convey to defendant 100 acres of land, for the consideration of $1200, in payments — $400 of which was payable April 1, 1842, and $200 annually thereafter until paid, with interest on the whole sum from April 1, 1843. The deed to be made April 1, 1844. The plea of defendant was non est factum, covenants performed, with, leave to give the special matters in evidence, &c.</p> <p>At the time of the sale there were no judgments against plaintiff, although it appears he was largely indebted, but shortly after on July 2, 1842, Bradberry Tewksberry entered up a judgment bond for $197, against the plaintiff and one Solomon Hoge, who had formerly owned the land. In a short time after, the other judgments were entered up.</p> <p>On the 25th June, 1842, Lawrence Clark paid plaintiff $22; on the 6th of August, 1842, $117 more; and by an agreement with plaintiff, Lawrence assumed to pay Solomon Hoge a balance due said Hoge on this same land of some $75 or $80.</p> <p>Tewksberry, to whom John Clark had given the judgment before mentioned, issued sundry executions on Ms judgment, levied upon the land sold by John to Lawrence Clark, and sold it, and the interest of John Clark, in the unpaid purchase-money coming from Lawrence in this land, to Wm, Seals, Esq., for $345, to whom the sheriff made and acknowledged a deed, after which Lawrence .bought out Seals, by deed, which was acknowledged before the plaintiff, John Clark, Esq., who was then a Justice of the Peace, and it appears wrote this article between him and Lawrence.</p> <p>The Court, Gilmore, P., instructed the jury that if Lawrence Clark, at the time of the sale, had sufficient of the consideration-money in his hands to discharge the incumbrance on which the land was sold, the plaintiff was entitled to recover.</p> <p>The charge of the court was assigned for error.</p>

Error, to the judgment of the District Court of Allegheny eotmty upon the following stated case: “It is admitted that the defendant, Shoenberger, owned and held during the whole of the year 1852, the sum of $43,000 of the capital stock of the Exchange Bank: that the Commissioners of said county, during the year 1852, assessed against said defendant, a tax of three and one-half mills on the $43,000 of stock so owned and held by said.defendant, for county purposes; the said…

<p>Error to the Court of Common Pleas of JSrie county.</p> <p>The Erie Canal Company was incorporated by Act of Assembly passed March 7,1843, for the purpose of completing the Erie Extension of the Pennsylvania Canal, then nearly finished, — the State having expended large sums of money thereon. The act vested the canal in the company, subject, however, to be resumed by the Commonwealth, sec. Í4, providing for a resumption as follows : “ At any time hereafter it shall be lawful for the Commonwealth, upon the passage of a law by the legislature for that purpose, to resume the said line of canal and the privileges and franchises hereby granted, by paying to the said company the-amount of money expended by them in finishing and completing the same, together with the money expended for repairs and supervision, with interest thereon at the rate of eight per cent, per annum from the time the same was expended, if resumed by the State within eight years, and if after that time, seven per cent., deducting from the principal and interest aforesaid, the amount of tolls received during the period which the company has possession of said canal.”</p> <p>The ninth section of the act directs the manner in which the means necessary to be used in finishing the work should be raised, and is as follows:</p> <p>“Sec. 9. The directors shall have power to borrow money from time to time on the security of the corporate property by mortgage of the same or any part thereof, or by pledge of capital stock, at a rate of interest not exceeding seven per cent., but the total amount of such loans shall at no time exceed four hundred thousand dollars, without the consent of the legislature; they shall from time to time declare and make dividends of the net profits of the said company unto and among the whole number of shares into which the capital of the said company is divided. Provided, however, that before making any dividends of net profits as aforesaid, the said directors shall reserve thereout two per centum to be invested in state loans or other securities, and together with the accumulations, to constitute a contingent fund to provide for extraordinary repairs, and as a sinking fund for the extinguishing of any loans which said company may make.”</p> <p>Neither of the modes provided by the legislature were adopted, but engraved bonds, payable to bearer, signed by R. S. Reed, as president of the company, were prepared. The work was let by the directors to themselves, who received these bonds in payment for the work, and in turn put them in circulation.</p> <p>The following is a copy of one of the obligations so issued by R. S. Reed, and now held by John McMasters, the plaintiff, and is one of those on which this suit is' brought:</p> <p>“ State of Pennsylvania, No. 193.</p> <p>§50 Fifty Dollars §50</p> <p>The Erie Canal Company acknowledge themselves indebted to the bearer of this bond in the sum of Fifty Dollars, which sum they promise to pay in Erie, on the 1st day of January, 1850, with interest thereon at the rate of six per cent, per annum, payable on the 1st day of January, 1845, and annually thereafter at the Erie Bank. Witness the seal of the said corporation and the signature of the President and Secretary, at Erie, this 1st day of January, 1844.</p> <p>M. Goodwin, R. S. Reed,</p> <p>Secretary. President.”</p> <p>[Seal.]</p> <p>All of the paper so issued matured on the 1st day of January, 1850, and the holders might in the event of non-payment have had a sequestrator appointed under the act of 1836, but on the 9th of April, 1850, an act of assembly was procured, by which .the creditors were deprived of that remedy, and were left without any remedy against the company whatever.</p> <p>After the first day of January, 1850, the plaintiff made demand of payment, and on failure of the company to pay, he instituted this suit against the defendants.</p> <p>The amount issued by R. S. Reed, as shown by the evidence, was $658,418, and still further sums were issued to a large amount by his successor in office, Charles M. Reed.</p> <p>On the trial, the plaintiff requested the court to charge the jury as follows:</p> <p>1. That the Act of Assembly, of March 7, 1843, incorporating the Erie Canal Company, provides two methods of obtaining credit, either of which ought to be adopted, namely; first, a mortgage on the corporate property, and second, a pledge of the capital stock ; that the bills or notes in this case are not authorized by the charter, are issued in excess of the powers conferred by the legislature, and bind only the person issuing them.</p> <p>2. The officers who devised and issued the currency were but the agents of the corporation, and if the Act of Assembly contains no authority to make and put in circulation such notes, the corporation is not, but the agents so making and issuing them are, personally liable to the holders.</p> <p>3. There is nothing in the charter of the company authorizing its officers to issue notes or bonds payable to bearer, to pass as money, without transfer or assignment, and the officers putting them in circulation without such authority of law, must be held personally bound for their payment, on failure of the principal to pay the same on maturity.</p> <p>4. The act of incorporation, in requiring the indebtedness of the company to be secured by mortgage or pledge of stock, contemplated an effectual remedy to the creditor by proceedings to enforce a sale on the mortgage or the stock pledged, but by the device of issuing the currency in question, these remedies were taken away and the creditor left to proceed by sequestration} which last remedy was subsequently taken away by the act of April 9, 1850, and in this way the security afforded by the act of incorporation was entirely defeated and lost, and the creditor left without remedy, except upon the personal responsibility of the officers who put the paper in circulation.</p> <p>5. The Act of Assembly limited the indebtedness of the company to the sum of four hundred thousand dollars, and if the officers, in violation of the directions and provisions of the law under which they acted, have made and put in circulation a vastly greater amount, and if the jury believe from the evidence that the amount of notes put in circulation by the officers of the company now amounts freight hundred thousand dollars or about that sum, six hundred and fifty-eight thousand four hundred and eighteen dollars of which was signed by 11. S. Reed, then it is a fraud upon the bona fide holders of the paper, who had a right to rely upon the extent of indebtedness fixed by the charter, and renders the officers who signed and issued the notes liable to the holders thereof for the full amount with interest.</p> <p>6. Where a corporation is established for a specific object, as in this case to complete an unfinished canal, and the charter points out one or more modes of providing the means necessary to carry out the main design, the act operates as a restriction as against any other mode than those specifically named, and if the officers see proper to devise and carry out a plan of their own and one not authorized by the act of incorporation, and afterwards seek to cure the error by legislative enactment, such enactment must be clear and unequivocal in its terms, and must distinctly name and describe the illegal issue and in direct terms legalize the same; a mere allusion to the erroneous circulation in an act passed for another object in relation to the company or otherwise, will not be sufficient.</p> <p>7. If the act of incorporation gave no authority to issue bonds or notes such as these in question, no resolution of the .board could authorize the president or justify him in issuing or signing them so as to release him from personal liability, if the same is in excess of the corporate power of the board, and particularly so, as he was one of the board, and assisted in passing the resolution himself.</p> <p>8. If the jury believe the evidence, the corporation refused to pay the paper now in suit before action was commenced, and is evidence that it was repudiated by it.</p> <p>9. That the evidence given and relied upon by defendants, consisting of the act of 9th April, 1850, prohibiting the sequestration process as to this company, excepting for repairs, is evidence that the company has refused and does refuse to pay the notes according to the contract made by defendants, and therefore there is no resort on the company by the holders of the same.</p> <p>To which the court, McCalmont, P., gave the following answers :</p> <p>1. The bills or bonds were not expressly authorized by the Act of Assembly, but’we refuse to instruct you that they bind only the persons issuing them. If you believe they were issued by authority of the directors at a regular meeting, under resolutions of the board, for the purpose of paying the contractors for work done in the construction of the canal, and that the president signed and the secretary attested the bonds in pursuance of those resolutions, and that the interest was paid anhually thereon at the office of the company to the holders thereof, until the first of January, 1850, and the remaining interest from that time, at the office of the company, is indorsed upon the bonds, until 1853, then the company would be liable; and the president of the company, Eufus S. Eeed, was not liable in his lifetime for the payment of them, without an express promise to pay them.</p> <p>2. Notwithstanding this might be true as an abstract proposition, yet whether the defendants be liable in this case depends upon the facts and answers to the other points.</p> <p>3. There is nothing in the charter of the company expressly authorizing it to issue bonds payable to bearer. Whether the bonds were issued to pass as money, would be a question of fact. This point is otherwise answered in the negative.</p> <p>4. It is unnecessary for us to say whether the Act of Assembly left the bond-holders without any other remedy. Whether Eufus S. Eeed was responsible in his lifetime, or his executors after his death, on failure of the company to pay the bonds at maturity, are questions depending upon the facts of the case under the law as given you in the answers to the other points.</p> <p>5. Answered in the negative.</p> <p>6. We are of opinion that the subsequent Acts of Assembly are not sufficient to legalize the bonds if otherwise illegal. If the bonds were issued for the purpose of raising money to carry on the work, and the money thereby obtained, they would have been illegal; and the officers issuing them for that purpose, or their agents who used them, would have been liable to the proper parties in an action for the money paid or the labor expended upon them. The Act of Assembly did not authorize the company to borrow money in any other way than those specified in it. And, as qualified by our answer to the first point, we answer this one in the affirmative.</p> <p>7. Answered in the negative.</p> <p>8. The evidence is that payment was demanded before suit brought, and that they did not pay it. But taken in connection with the payment of interest it may be evidence, but very slight evidence, that the company denied the validity of the bonds, and their legal obligation to pay them.</p> <p>9. Answered in the negative.</p> <p>The defendants requested the court to charge the jury as follows:</p> <p>1. That there is nothing in the act of the General Assembly incorporating the Erie Canal Company, or any of the supplements thereto, prohibiting said company giving to its creditors its bonds or other evidence of indebtedness for debts contracted by it in the construction of the canal.</p> <p>2. If the jury believe from the evidence, that the bonds given in evidence by the plaintiff (called Erie canal bonds) were issued by order of the board of directors of the Erie Canal Company, in pursuance of contracts previously made by said directors with contractors for work and material furnished in the construction of the said company’s canal, and were taken and accepted by said contractors as evidence of debt against said company, it is legally liable for the payment of the same, and not the defendants’ testator.</p> <p>3. That the bonds given in evidénce- as the foundation of the plaintiff’s claim show upon their face that they are the bonds of the Erie Canal Company, and negative every thing like an undertaking on the part of Rufus S. Reed to pay the money therein specified out of his private estate; consequently the plaintiff is not entitled to recover against the defendants.</p> <p>4. If the issuing of the said bonds was not authorized by the act of incorporation of the Erie Canal Company, the several acts of the legislature passed the 10th day of April, A. D. 1846, the 24th day of June, A. D. 1849, the 9th day of April, A. D. 1850, and the 12th day of April, A. D. 1853, fully recognize and virtually sanction said issue, and that the said bonds are a legal debt against the said Erie Canal Company; consequently there was no liability on the part of the defendants’ testator.</p> <p>5. If the jury believe from the evidence that said bonds were issued as the evidence 'of a pre-existing debt of the Erie Canal Company by the authority of the board of directors of said company, the company only is liable, and no individual liability attaches to the president, who only carries out the resolution of the said board of directors.</p> <p>6. The bonds given in evidence by the plaintiff are clearly the obligations of the Erie Canal Company, and there is no intention expressed upon their face, of an undertaking upon the part of the defendants’ testator to incur any personal liability upon him, contrary to the express intention exhibited upon the face of the bonds.</p> <p>7. If the jury, believe from the evidence that the said bonds given in evidence by the plaintiff were executed and delivered by Rufus S. Reed, defendants’ testator, to other persons than the plaintiff, and that the said plaintiff has come to the possession of said bonds by delivery or transfer from other parties than the said Rufus S. Reed, in that place the plaintiff cannot recover in this action.</p> <p>8. The said bonds are not negotiable, and if illegally and unlawfully issued are mere choses in action, and the delivery of them to parties strangers to the original contract, transfers to the holder no right of action in his own name against the executors of the alleged wrongdoer.</p> <p>9. If the jury believe from the evidence that the plaintiff did not get the bonds which he gave in evidence directly from Rufus S. Reed, the defendants’ testator, he cannot sustain the action against the defendants.</p> <p>The court answered the 1st, 2d, 5th and 6th points in the affirmative; the 4th point in the negative. The 3d, 7th, 8th and 9th points were answered as follows :</p> <p>3. There might, notwithstanding, be an undertaking of Rufus S. Reed to pay, if the evidence supported the declaration, and therefore this point is answered in the negative.</p> <p>7. If the jury believe the bonds were issued to other persons than the plaintiff, then even if the same were illegal, we are of opinion that an action could only be maintained upon the consideration of the bonds, and in such case it would be necessary for the plaintiff to sue the person from whom he received them, or to use the name of the first holder as the plaintiff. That in such case he could not sue in his own name unless he was induced by the acts and declarations of Reed to take them, aside from the signatures on the papers, or unless there was an express promise by Reed to pay the same to the plaintiff.</p> <p>8. This point is answered in effect by our answer to the 7th.</p> <p>9. Whether he got the bonds directly from Reed would make no difference, if he were otherwise entitled to recover. A man who performs work or pays money on the request of any one, and the obligation given for the consideration is fraudulent or illegal, he may recover the price of his labor,^or the money paid, on the common counts. Rut in that case he must sue the person at whose request or for whom he performed the consideration.</p> <p>In the present case there are no common counts in the narr. We have considered it as if they were added.</p> <p>With these qualifications the point is answered in the affirmative.</p> <p>The answers of the court to plaintiff’s 1st, 2d, 3d, 4th, 5th, 7th, 8th and 9th points, and to defendants’ 1st, 2d, 5th, 6th, 7th and 9th points, were assigned for error.</p>

<p>1. The testator directed his land to be sold, and after payment of debts and legacies, the balance was to be loaned out on mortgage security, and the accruing interest was to be paid, one-third to the widow and the .balance to daughter, Jane. Upon the death of the widow, the principal and interest to go to daughter, Jane. Held, that Jane had no estate whatever in the land.</p> <p>2. If Jane had united with all the parties entitled to the proceeds of the land, she might by an act of election have taken an interest in the land in lieu of the money.</p> <p>3. A deed of Jane’s Interest in the land amounts to an equitable assignment ■of all her interest in the proceeds.</p> <p>4. The law of Ohio, making females of full age, when they arrive at the age of eighteen'years, enables them while domiciled in Ohio, to make a valid contract ■of sale of their .personal property in Pennsylvania.</p> <p>5. The general rule of thoy'us gentium is that in regard to questions of minority or majority, competency or incompetency, incapabilities incident to coverture, guardianship, emancipation and other personal qualities and disabilities, the law of the place where the contract is made, or the act done, furnishes the rule of decision. '</p>

This action was Debt, on single bill of defendant’s intestate, given to plaintiff, for $200, on which plaintiff declared, and added counts for so much money lent, paid out and expended, &c. Pleas, non est factum, payment, and infancy. The bill was read in evidence, and it was admitted that defendant’s intestate, Nimrod Gregg, died a minor in 1844.

<p>Appeal by George Arthurs from the decree of the Orphans’ Court of Allegheny county, allowing Sarah Ferguson to choose a guardian of her estate, and discharging the appellant from the further guardianship thereof, and requiring him to surrender and deliver to Joseph S. Morrison, a guardian chosen by the ward and approved by the court, the property, rights, credits, choses in action, and effects, of the said Sarah.</p> <p>George Arthurs, the appellant was appointed guardian of Sarah Montgomery, when she was of the age of ten years. When she arrived at the age of nineteen, having been married to Matthew Ferguson, she petitioned the court'to discharge the said George Arthurs from the guardianship, and allow her to choose a guardian. Various reasons were stated in the petition, but the principal allegation was. that she and her guardian were not on good terms, and there existed between them “irreconcilable difficulties,” which rendered it impracticable to have any amicable communication with Mm, which was essential to her interests and welfare.</p> <p>George Arthurs, the guardian, resisted the application, and showed'by testimony that he had managed the estate well, and alleged that there was no bad feeling on his part towards his ward.</p> <p>Upon the hearing, the court refused to dismiss the guardian, because no reasons had been shown for Ms dismissal, and in justice to Mm, they declined to grant the prayer of the petitioner. Subsequently a petition was presented, based upon the naked legal right of the ward to choose her guardian, at any time after she had arrived at the age of fourteen years. This was also resisted by George Arthurs, but the court overruled the objections, and the petitioner made choice of Joseph S. Morrison, who was approved by the court, and George Arthurs required to transfer her estate to him, which approval and order is the error assigned.</p>

<p>1. An agent need not be constituted by writing for any purpose except where he is to convey an estate in land for a longer period than three years.</p> <p>2. It needs no writing to constitute an agent to make an entry upon land, so as to toll the Statutes of Limitation, and such agency may be proved orally.</p> <p>3. An agent, to make an entry upon land, so as to toll the Statutes of Limitation, is competent to prove Ms own agency.</p>

This was a suit brought by the defendants in error, against Gallinger, to recover the balance alleged to be due on his bank account. . The plaintiffs were bankers and exchange brokers. They filed an account, the last item of which was one hundred dollars, charged May 10, 1851. 'This suit was brought May 12, 1855, for a balance of $130.71.

<p>Error to the Court of Common' Pleas of Westmoreland county.</p> <p>This was an action of ejectment, by James Braden and David Ferguson, plaintiffs in error, to recover two hundred and fifty acres of land in Derry township.</p> <p>It was a case stated in the court below, depending upon the following clause in the will of John Braden :—</p> <p>“ Further, I will and bequeath unto my two eldest sons, •'William and John, all my real estate, to' be equally divided among them, share and share alike, with the exception of four hundred dollars out of my real estate, which I will and bequeath unto my youngest son, James, to be paid unto him at the time he arrives at the age of twenty-one years. Also to have his maintenance and schooling out of my aforementioned real estate, what will be sufficient to make a common English scholar. And also, if any of my sons depart this life without a legal heir, his part or portion of him or them so dying shall go and be equally divided among the survivors of my sons. And my will and meaning is, that in case of any of my daughters departing this life without a legal heir of her body begotten, her or their part or portion so dying, shall be equally divided among her surviving sisters or sister.”</p> <p>The said testator left a widow, named Isabella, now deceased, and issue, three sons, William, John, and James, the last named being -the defendant in interest here. William died unmarried, without issue, and intestate, about the year 1846. And John died in January, 1854, unmarried, without issue, and intestate.</p> <p>The testator also left issue, Jane, the wife of William Cannon; Isabella, the wife of James Sweeny; Sarah, the wife of Leslie Sweeny; Agnes, or Nancy, the wife of Andrew Brown; and Margaret, the wife of David Elder; all of whom are still in full life, the first four named of them being the plaintiffs here.</p> <p>The plaintiffs claim as heirs-at-law of William Braden and John Braden, the younger, deceased, whom, they allege, took the land in dispute, in fee simple, on the death of John Braden the-elder, under and by virtue of his will, as they survived him ; and that having an absolute estate in the same as tenants in common in fee, upon their deaths it descended to their brother and sisters as their heirs-at-law, of whom the plaintiffs are four out of six.</p> <p>The defendant, James Braden, claims the whole land by virtue of the will of his said father, John Braden the elder, deceased, under that clause of the same which limits the estates in. the land to the survivors of his said sons.</p> <p>On' the 5th of October, 1854, the court entered judgment on the case stated for plaintiffs, for four undivided sixth parts of the land demanded in the writ.</p> <p>The entry of the judgment was the error complained of.</p>

This was an action of ejectment by the plaintiff in error, against Wilkins and Blocher, for .one hundred and fifty acres of land in Bullskin Township. On the trial, plaintiff showed that defendants were in possession of the land, and followed’it by the record of a judgment in favor of Morris, sheriff, against Blocher,' Shoemaker, Taylor, and Overholt, for $6,655.06: — fi. fa., vend, ex., coroner’s sale, and deed to G-eorge.E. Hogg, plaintiff, March 12, 1844.

This was an action of ejectment by the heirs of Dennis Murphy, for about three acres of woodland. Both parties claimed under Hugh Kelly, who was the owner of this lot in 1802. Defendants claim under and by virtue of a parol gift from Kelly, in 1802, and possession by them, and those under whom they claim, by entries, and cutting timber for firewood, &c., up to 1848. The lot was assessed to them, and they paid taxes on it.

The facts necessary to a correct understanding of the principie decided, sufficiently appear in the opinion of the court, delivered December 12, 1854, by

<p>1. A republication of a will may be proved by parol.</p> <p>2. A testator’s declaration that his will was in a box in his study, amounted to a new publication.</p> <p>3. An omission to serve a sci. fa. sur mortgage upon the heirs of a deceased mortgagor, does not avoid the sale; but such omission will let the heirs in on the trial in ejectment, to make any defence they might have made on the sci. fa.</p> <p>4. As a merger is for the benefit of him in whom the two interests unite, it ■will never take place when it is against his interest, or when it is most for his advantage to keep the charge alive.</p> <p>5. When one of the mortgagees purchased the mortgaged estate on a judgment entered after the mortgage, the two interests or estates do not merge, and the mortgage is not-extinguished.</p>

This was an appeal from a justice of the peace, by Campbell, the plaintiff in error. The justice had given judgment in favor of Brown, the plaintiff, for f>5.00 debt, and $10.75 costs. The 'case was afterwards tried twice in the Common Pleas, and reviewed twice by the Supreme Court. The suit was brought under the provisions of the Act of 23d March, 1809, by Brown, to recover damages for the killing of four or five sheep by Campbell’s dog..

<p>In Chancery. — Appeal from the decree of the District Court of Allegheny county.</p> <p>Complainant’s bill charges — That an agreement was made May 10,1851, between Levi Einley and John Aiken, for the sale, by Einley to Aiken, of two lots in Pittsburgh, for the sum of ■ $6000. Deed and possession to be given October 1, 1851, when $2000 was to be paid, and $4000 secured by bond and mortgage on the premises, payable in four annual instalments of $1000 each, on the 1st days of October, 1852-3-4 and 1855, with interest payable semi-annually from October 1, 1851. Policy of insurance on the buildings and lots to be delivered to Aiken.</p> <p>That Einley delivered the policy to Aiken. That, by verbal agreement, the time of possession was changed from October 1, 1851, to July, 1,1851, when Aiken took possession, and received the rents and' profits.</p> <p>That on October 1, 1851, Einley tendered the deed to Aiken, and offered performance of his part of the contract, and that Aiken refused to perform his part of the agreement, alleging that Einley could not make him a good title to the lots. '</p> <p>The bill puts no- interrogatory — prays that Aiken maybe compelled to- answer, that specific performance may be decreed, and for general relief.</p> <p>To this the respondent demurred,, for want of jurisdiction in the court.</p> <p>The demurrer was overruled, after argument, and respondent was directed to answer.</p> <p>Respondent answered — That he admitted that he did, on May 10,, 1851, enter into articles of agreement with Levi Finley, for the sale and purchase of two lots of ground in the city of Pittsburgh, and that the articles were correctly recited in the bill. But he averred that, before, and at the time of the execution of the said articles, complainant assured him that he, complainant, owned a brick wall of the height of eight feet, of the thickness of nine inches, and extending fifteen feet, on the line of the ground sold, and that he owned the ground on which this wall stood; that he owned the whole of a privy, and the whole of the ground on which it stood, and that they were embraced within the limits of the lots agreed to be conveyed from complainant to respondent, and formed a part of them. That complainant, before the execution of the articles of agreement, took respondent to the premises, and pointed out to him this wall and privy, and assured him that they stood on the ground agreed to be conveyed to him, and he averred that he never would have agreed to purchase the property at all, but for complainant’s assurance, that the wall and privy Btood within its limits.</p> <p>He admitted that, in pursuance of a verbal agreement, he entered into possession of the lots July 1, 1851, instead of October 1, JL851, as provided in the articles of agreement, but he averred that the agreement, under which he took possession, was, that he should pay to Levi Finley $120, four months’ interest on the purchase-money, which he did pay to him, and that he, respondent, should collect the four months’ rent of the premises preceding the 1st of October, 1851, and that he entered into possession so far as to collect the rents aforesaid.</p> <p>But that after he had so taken possession, and before October 1, 1851, when he was to receive the deed, he discovered that Finley did not own the wall aforesaid, and the ground on which it stood, and that he did not own the whole of the privy, and the ground on which it stood, but on the contrary, the whole of the wall stood on an adjoining lot, and four and a half inches of the privy, in the line of the wall, stood on the adjoining lot; and in addition to this, the wall stood one and a quarter inches within the line of the adjoining lot on which it was built.</p> <p>He further averred, that after he had taken possession, and before October 1,1851, he discovered that there was a mortgage on the premises for $327.79, which did not become due for six months after October 1, 1851, when he was to receive his deed, and satisfaction was not entered on the mortgage until June 17, 1852. That when he took possession so far as to collect the rents as aforesaid, he intended and expected to continue the possession after October 1, 1851, when he should get his deed. That he had $2000 in the hands of a broker in Pittsburgh, ready to meet his contract on October 1, 1851, on Finley’s compliance with his part of the contract — that he kept the money ready for some two or three months after October 1, 1851 — that he offered to comply, fully, with his part of the agreement, on Finley’s making to him the deed to which he was entitled; and finally, on January 29, 1852,-he gave to Finley written notice, (as he had before, on or about January 1, 1852, given him verbal notice,) that he, Aiken, would have nothing further to do with the matter, as he, Finley, had failed to comply with his contract, and make to him such a deed as he was entitled, under the contract, to receive. That when, on or before January 1, 1852, he gave Finley notice that he would no longer hold himself bound by the contract, he offered to restore to him possession of the premises, which he had taken for the purpose of collecting the four months’ rent as aforesaid, and Einley refused to receive it, and that he collected or received no rents for the premises except the four months’ rent, for which he paid Einley the $120 before mentioned. He denied that complainant offered, on October 1, 1851, or at any other time, to perform his part of the contract, by the delivery to respondent of the deed to which he was entitled, or that he ever had the power to make him such deed. He admitted that he had received from Einley the policy of insurance, and he averred that, before he became aware of the defect of title, he renewed it for one year at his own expense. That he did not offer to return the policy to Einley, because he had refused to receive possession of the lots, and the policy remained in the hands of respondent, subject to the use of the complainant, if circumstances should make it of value to him.</p> <p>July 30, 1853, the case came on to be heard on bill, answer, replication, and testimony, and was argued by counsel, and thereupon it was ordered, adjudged, and decreed, that the respondent should specifically perform the contract — pay the costs of the suit, and, on failure of payment, execution as at law to issue against respondent.</p> <p>August 30, 1853, respondent, John Aiken, appealed, and complained that the court erred—</p> <p>1. In taking jurisdiction of the case.</p> <p>2. In decreeing performance of the contract.</p>

<p>DISSENTING OPINION BY BLACK, C. J., WITH WHOM KNOX, J., CONCUBBED.</p> <p>1. A right of common is an estate which the owner may convey or dispos eof by his will, and if he dies without doing either, it will descend to his heirs.</p> <p>2. The interest of the complainant in the common of Allegheny city is private property.</p> <p>3. Under the constitution of this State, private property cannot be taken for public use without just compensation. This restriction covers all kinds of property, personal and real, corporeal and incorporeal.</p> <p>4. Only commoners have a beneficial estate in the Allegheny common, and they cannot be deprived of it without a compensation which will fully pay them for all the injury, direct and incidental, which they must suffer.</p> <p>5. The city of Allegheny, in its corporate capacity, has no-interest in the common ; neither have a majority of those who elect her officers.</p> <p>, 6. The right of eminent domain, delegated to a corporation, can never be exercised without a strict and full compliance with all the provisions intended to secure compensation to the owners.</p> <p>7. The corporate authorities of the city of Allegheny have no authority to confer upon respondents the private interests of the commoners in the Allegheny commons.</p> <p>8. An equitable estoppel cannot be created by silence, which concedes nothing and deceives nobody.</p> <p>9. The city of Allegheny accepted the common for the use of the lot-holders, and put herself under a clear, legal and equitable obligation never to deprive them or their heirs of its use, without their consent in writing.</p>

<p>1. Declarations of the grantee of land made after the conveyance, are admissible, with corroborating acts and circumstances, such as the grantor’s continuance in possession, and the like, to show that a deed, absolute on its face, was a mortgage.</p> <p>2. A married woman, being bound like others by the recording acts, may be estopped from claiming under an unrecorded deed, if she sees one in possession and making valuable improvements, under a title that is good against any other title that she may have, and he has no notice or knowledge of her title under such deed.</p> <p>3. Where a bill is filed against a married woman to perpetuate evidence against a title that she might set up, and her husband is not made a party, because he is supposed and alleged in the bill to be dead, and at the taking of the evidence counsel appears for the defendants, and the husband also appears and is examined as a witness, and the decree of perpetuation is made without objection, because the husband is not a party with his wife, it is too late to raise the objection when the testimony is offered to be read.</p> <p>4. The District Court has jurisdiction of a case to perpetuate testimony.</p>

<p>Error to the Court of Common Pleas of Fayette county.</p> <p>This is an action of ejectment, in which the plaintiffs in error and plaintiffs below claimed a part of the land in dispute, as heirs of William Wilson, deceased. The father of the plaintiff’s wife had entered upon the Sally Gratz tract of land, lying in the mountains, in the year 1816, and made an improvement, and moved on to the land in the spring of 1817 — he built a small cabin house or two ; cleared about fifteen or twenty acres of the land, and raised a new hewed log-house; planted out fruit trees, &c., —in short, he made it his home and place of residence; raised grain, &c., on it, to support his family, until his death, which took place in 1828. The defendant in error is the step-son of William Wilson, and soon after his step-father’s death he took up his residence on this place, with his mother; and, as agent, took the management of the place, &c., for her and the young family of his mother, who were all minors. He worked the land for the family, and they all lived together, as before the old man’s death. This state of things continued, so far as the old lady and children knew, until her c|eath, which took place on the land, in 1839. Put, soon after the old man’s death, as appears from the testimony of A. Stewart, Esq., the defendant in error contracted with him, as the agent of the Gratz’s, for the purchase of William Wilson’s improvement on this tract, including the building; about seventy acres, for less than fifty cents an acre — paying nothing for the improvement, which was worth some $300. This purchase was made by the defendant in error, while acting as agent of the family in a fiduciary capacity.</p> <p>On the trial, Alexander McLean was called, by whom the plaintiffs propose to prove that his father, the deputy surveyor of this county, who made the survey on the Sally Gratz warrant, never did return it, and how he knows that fact. Defendant objects to the evidence offered, because it contradicts the official certificate.</p> <p>The court, Gilmore, J., sustained the objection, to which plaintiffs excepted, and now assign the same for error.</p>

<p>Error, to tbe Common Pleas of Adams county.</p> <p>Argued and decided in the Supreme Court at Harrisburg, at the June Term, of 1854.</p> <p>The plaintiffs below, now defendants in error, sued the administrator of Rebecca Malaun, deceased, in trespass on the case, and declared in four counts: 1st, On the alleged promise of the defendant’s intestate, Rebecca Malaun, that she would, at her decease, leave to the said Betsy, all the property and estate that she should be the owner of, at1 the time of her death: 2d, On the alleged promise of said Rebecca Malaun, that she would in, and by her last will and testament, devise and bequeath to her (said Elizabeth) all the property and estate of which she (Rebecca) should be the owner, at the time ©f her death : 3d, On the alleged promise of said Rebecca, that she would convey and transfer to her (Betsy) all the property and estate that she (Rebecca) should be the owner of at the time of her death: 4th, An “ indebitatus assumpsit” count for work, labor, care, diligence and attendance as a servant, housekeeper and nurse. The consideration laid in the 1st, 2d, and 3d counts, was, that the said Betsy (being sole) at said Rebecca’s request undertook, and faithfully promised the said Rebecca, that she (Betsy) would live with, labor for, and take care of and nurse the said Rebecca, from that time forward, to wit: 10th May, 1846, so long as she the said Rebecca should live. The narr. concluded to the damage of said plaintiffs of $2500.</p> <p>The defendant pleaded non assumpsit, non assumpsit infra sex annos, payment with leave and set-off.</p> <p>The plaintiffs sought to recover the whole estate of Rebecca Malaun, (laid at the value of $2500,) and appropriate it to said Betsy, on an alleged parol promise of said Rebecca. They gave the following evidence:</p> <p>Jacob Hullweiler, affirmed. — I am the brother of Elizabeth Ammon ; she came to Malaun’s when she was seven or eight years of age ; Benjamin and John, and Rebecca and Sally lived in the family; they were brothers and sisters; they then lived on a large farm; then afterwards the family moved to a house and lot; they lived in this house two years or more; then Benjamin died; a few years after Sally died; John and Becky remained together a few years ; then they two concluded to make a divide of the estate; they made a divide; they remained together till that time ; after that, then he left and went upon his farm; my sister (the plaintiff) remained with Rebecca; I came to Rebecca’s house after the division was made; after I came, Becky told me how the affairs h'ad went.</p> <p>Betsy told Rebecca, if she wanted to live with John that she would find another place for herself; Rebecca then said, “no, you must stay with me and take care of me while I live; you know I cannot live with John; after my death you shall have all I leave ;” Betsy consented that she would stay;' this was seven or eight years before her death; - she died in the winter of 1852.</p> <p>In the fall of 1851, I visited them; then I staid over night; in the evening at supper, while we were sitting at the table taking tea, Becky told me Betsy had a notion to get married ; I told her I thought Betsy was not so foolish as to get married, and that she would not leave her; Becky then said, “ no, she is not to get married, she is to stay and live with me and take care of me while I live, then after my death she is to have all I leave;” Betsy did live with Rebecca until she died; Rebecca urged on the marriage all she could; she said they had no man about; Rebecca and all lived together after the marriage of Betsy to Ammon; I visited them often, once or twice a year; Rebecca always came over the conversations I have mentioned.</p> <p>At one time Rebecca said, “ I have told several others, and I now tell you, so that if any thing happens, you may testify to the truth.” Betsy is thirty-eight or thirty-nine years of age.</p> <p>Gross-examined. — I was twelve or fourteen when Betsy went to Malaun’s; we then lived at the Branch Creek ; * * never called on any one to try to have it settled; never called on John Roland to try to have it settled ; I never tried to prove what Rebecca said to me as a will; I went with them to Evans’s; Benjamin went there to administer on the estate; I did not tell Evans and Mayer what I say now, nor did I say what I told here, that Rebecca said it must stand as a will; when Evans said it would not stand, I did not say it must and should stand as a will; I was examined before arbitrators in this case; I never told anybody that Betsy was cunning and planning, and I would help her all I could ; I told Mrs. Benjamin Malaun I thought a verbal will as good as a written one, but I did not say anything about Betsy’s planning; I went to John and we talked about this affair, and I said we ought to settle it. (Counsel for defendant, reading from notes at arbitration, as to first conversation.) This you read is not all I said when examined as a witness before the arbitrators. (Counsel reading from notes as to second conversation.) This you read now, is about what T testified to in the fall of 1851, and about all she told me; I said before the arbitrators what Rebecca said about my proving it.</p> <p>Agnes iSarbaugh, sworn. — I lived about a mile from Rebecca’s; Betsy was there from the time she was seven years old till the time Rebecca died ; she told me once when Betsy and her husband had gone to pay a visit, that it was understood that if Betsy staid with her until she, Rebecca died, Betsy was to have all she had; it rained, and it was the last of January; on the 11th of February she told me the same, and that if she died, Betsy was to have all; she told me Betsy was a good girl to work, and she worked out; I often heard Becky say Betsy was a good girl; I once heard her tell Betsy, the more she saved the more she would get; Betsy was a sickly woman ; she had pains in her breast; Betsy did sewing for the neighbors; for John Roland; I saw Becky bring in wood; Betsy dressed as well as became her. business.</p> <p>■ Abner H. Binder, sworn. — I was at Rebecca’s house; I was. the assessor; after I took her property, I asked her if Betsy had any money at interest; Becky told me she had none, that she had been living with her, and had no way of making money, and did not expect she would have any until her death, as she was to have then what she left; I then was satisfied; this was all that was said; this was about seven years ago.</p> <p>Philip Kimmell, affirmed. — I was a near neighbor to where Becky lived; twenty years I lived so near that they could hear by a loud call; I was there often ; I farmed a lot for them six years ; she was industrious as far as I know ; was a gpod girl as far as I know; Rebecca was a weakly woman, old, and was able to be about; she was over seventy years of age; the fall before she died, she said that Betsy was a good girl; this, I think, was before she was married; she said she was to live with her, and after her death she was to have all she, Rebecca, had.</p> <p>Oross-examined. — John Malaun and I have not been good friends ; I said John was savage against me, and that I was savage at him, and he was savage towards me; I do not step here for passion; this is the second time I was ever examined as a witness; I never told Emanuel Rhinehart that I knew nothing about this case; I never said so in the presence of my wife.</p> <p>John Maul, examined. — On the 16th February, 1852, I heard Rebecca Malaun was sick; I went to see how she was; she appeared to be very sick; about midnight, some of them went to bed ; they were in bed but a short time ; I said they should waken them ; said this to Betsy Fullweiler; I thought she would die; she then commenced to talk with me; I could not understand what she said; she was sitting on the bed; she then got out on the chair; some one helped her; then she said something; I don’t know what, — “after I’m dead,” or something like that; then she said, “ I wish Betsy to have the house and lot, and all that is left.” Then I said, “what do you mean by what is left ? Do you mean house and kitchen furniture ?” she said “ yes, house and kitchen furniture, and all that is left.” I said in her presence, “Ido not think this will do;” it was between 12 and 2, A. M., of the 17th; she died the 18th; I said I did not believe this would do; if she lived till morning they ought to send for two men; Mrs. Ross was present ; plaintiff and his wife present; when I said this, no one answered.</p> <p>Gross-examined. — Plaintiff nor his wife never said anything to me about a contract.</p> <p>Peter Peardorff, sworn and examined, and his testimony given under exception by defendant. — I was there on the 17th; she said, I give Betsy the sheep, and the cow, and the hogs and the house, and the lot, and what these two men reserved to me; she said, it is but ■ little; I had to make shift, and so she must too ; all my furniture, and all my money shall Betsy have, after my death ; we then bid her good-bye, and she said help her (Betsy) all that you can; I was not often there; I sold them wheat and wood, Betsy bought it and paid me for it.</p> <p>Gross-examined. — I came when I got this letter; (letter marked A); I came to Rebecca Malaun’s the time I speak of; Ammon and wife were there ; when all the people went off home, Betsy said Rebecca wanted to see us; she did not show us into the room, we went in ; Rebecca said she was very sick, and then stated what I have said; Diehl went in also; Elizabeth was in there then; she gave no directions about putting it in writing; the letter A, is in handwriting of Ammon; after Diehl came back Rebecca said nothing. Letter A read.</p> <p>“ Mr. Peter Deardorff, Rebecca Malaun wishes to see you very badly, and bring George Diehl along with you; you to come as soon as you possibly can.”</p> <p>Above letter admitted by plaintiffs’ counsel to have been written by Harmon Ammon.</p> <p>George Diehl, sworn and examined under exception by defendant. — On 17th February, 1852, Mr. Deardorff called, and showed me (letter A) these few lines; several persons were in Rebecca’s room when we went there; after they had left we went into Becky’s room; then she commenced with these words ; “ I give Betsy the cow, the sheep what is here, the hogs what is here, the house and the lot, and all that these two men reserved to me;” I then went into another room; when I came back I asked her what she meant by the things the men reserved for me; she told Betsy to go to her chest and get the papers, and she gave them to me; I then bid her good-bye ; she held out her hand and said I should see that Betsy should get these things ; these are the papers (B and C,) as near as I can judge.</p> <p>Gross-examined. — Deardorff asked me if I had put it down in writing, what she said; I said no, I would not, except I wrote it as. a will; that I am not capable to do.</p> <p>Deed of Release, John Malaun to Rebecca Malaun, for house and lot, and inventory of Rebecca’s personal estate, taken 6th March, 1852, amounting to $1193.87, were put in evidence.</p> <p>Defendant’s Evidence. — John L. Roland, affirmed. — I was raised in the family of the Malaun’s; for 35 years I was in it; the farm was one-quarter of a mile from the lot;, they left the farm in 1820; I left the farm in 1846, and moved to East Berlin in this county; Elizabeth came when she was 7, 8, or 9 years old; I then lived in the family; her mother was living on a branch of the Bermudian creek; her father had left the country; I did not see him in that neighborhood; she, after leaving Bermudian, lived about; the boys were put to trades ; when free, were at home keeping house with their mother, at Dr. Blish’s house near Hampton; sometimes Betsy lived with the Malaun’s, then with her mother; mother and daughters after that lived with Malaun’s; Betsy was dressed as well as any in the neighborhood; Malaun’s sent'her to school1; in 1820, they went to the house to live, and left the farm; all lived together till sister and brother died; after that, John and Becky and this girl lived together until they got to-loggerheads and parted ; John went to the farm and Rebecca and Betsy to the house ; after John and his sister parted Betsy kept the purse ; Betsy said, go he should, when the men wanted John to stay; go, she said, he must, and go he did ; Betsy ordered him not to stay another night; this was the night of the divide ; after the divide things went on as usual; she was old; Elizabeth had a horse to ride whenever she wanted to; I borrpwed $ 100 and paid it to Betsy; Pullweiller called on me after the death of Becky to go to Betsy and John to have things settled ; he staid all night and insisted upon me going; I said I would not; it was Jacob Fullweiller, the witness; she was doting; she was 77 years of age ; from the time I left the property her mind was getting weaker ; she told me she was so forgetful that she was not fit to do business ; she could be coaxed to do any thing; at least Becky would buy or sell nothing without consent of Betsy ; when Betsy ordered John to leave the house, Becky said nothing that I know of; Ihired girls at from $2 to $2.50 per month; they found their clothing; I would not like to give much for Betsy’s services and find her clothing. The way women now dress, I would not clothe them for their labor.</p> <p>Cross-examined. — I think about 70 or 75 the mind becomes weak.</p> <p>Ceorge Mundorff, affirmed. — When the administrator and appraisers were there, Betsy Ammon would show them, and pointed out such property as she chose to return to administrator, saying at the same time that the reserved property belonged to her; the administrator told her he did not want any property she claimed as her own, only what belonged to Malaun; she claimed property worth $300; more things left in the house than were sold ; girls got $2 to $2.50 per month.</p> <p>Peter Blaizer, sworn. — I was raised about one half mile from Malaun’s; Betsy came about twenty-one or twenty-five years ago; she had no means; her parents had no means; Betsy said he (John) should not stay; he went before night; went just after we were done ; Betsy received the money that I paid on a note I owed to Becky.</p> <p>Jacob Kochenour, sworn. — Bet.sy said that John should not stay over night, when we made the division; Becky did not object, but Betsy said he should go that night; wages of girls there, 50 to 62J cents per week.</p> <p>Barnett Hildebrand, sworn. — In the spring of 1850 and 1851, I paid to Betsy Ammon $70, money obtained from Becky Malaun.</p> <p>Emanuel Rhinehart, sworn. — I lived with John Malaun three years ago last spring; often passed Becky’s, and been in the house; saw Becky wash and carry in wood; once washing alone; Betsy was sickly all the time — doctored sometimes.</p> <p>Mr. Kimmell and Kimmell’s wife and myself were together ; Kimmell’s wife said they need not subpoena her, she knew nothing ; he said, nor I either ; I saw John, five years ago, at'Becky’s, when Sarbaugh died there; Becky had girls there hired to do work.</p> <p>David Deardorff, affirmed. — I got money from Betsy Ammon; I asked Mr. Ammon for the loan of $300 ; he promised it to me ; when I was there he was not at home; he said his wife would give me $100; she did so ; he gave me the rest two years this spring now coming in — spring of 1852 ; girls wages $3 to $3.50 on farms.</p> <p>Elizabeth Malaun, affirmed on voire dire. — Mr. Benjamin Malaun is myhusband; defendant in this suit.</p> <p>Elizabeth Malaun was offered, to contradict Jacob Fulweiler, and prove a conversation with him which he denied having with her.</p> <p>Evidence rejected by court.</p> <p>David MeConaughy, sworn. — I was present at the arbitration, and carefully took down the words which Fulweiler stated were spoken by Rebecca in the first and second conversations. The words are as follows: “ By no means, said Rebecca; I can’t live with John; you must stay with me while I live, and when I die you shall have what is left.” In the second conversation I said: “ No, I hope she was not so foolish“ No,” she said, “ she can’t leave me, she is to live with me, and after I am dead she is to have all I leave.” Í:</p> <p>Plaintiffs’ Point. — The court is respectfully requested, by plaintiffs’ counsel, to charge the jury:</p> <p>That if, from all the evidence in the case, they are satisfied that a contract was made between Rebecca Malaun and Elizabeth Fulweiler, (now Ammon,) by which the said Elizabeth was to live with and take care of the said Rebecca, so long as she, the said Rebecca, should live; for which she was to have, at the death of the said Rebecca, all her property or estate, or all that she should leave, and that the said Elizabeth, in pursuance of the said contract, did live with and take care of the said Rebecca, until her death, faithfully fulfilling said contract, on her part, and the said Rebecca failed to perform said contract, on her part — by reason whereof, the said Elizabeth did not receive said property or estate, nor any part thereof, at the death of the said Rebecca, nor since that time ; the plaintiffs are entitled to recover as much as the said property or estate of the said Rebecca, at the time of her decease, was worth.</p> <p>The court answered this point in the affirmative.</p> <p>Defendant’s Points. — The court is respectfully requested to charge the jury—</p> <p>1. That the evidence.given- in the cause, does not support either one of the first three counts in the declaration. The allegata and probata do not correspond, and on them, or either of them, the plaintiffs cannot recover.</p> <p>2. The fourth count is general; and upon it the plaintiffs can only recover the value of Elizabeth’s services to Rebecca Malaun, and if for these she has been fully paid, by articles kept by her, and money paid to her, then the plaintiffs cannot recover.</p> <p>Charge of the Court. — The court stated to the jury the substance of the four counts in plaintiffs’ declaration, and said: “ The plaintiffs cannot recover under any of the first three counts, unless they have proved the cause of action in substance as laid in at least one of them; or, in other words, a special contract as laid.”</p> <p>The court then read to the jury the evidence upon which the plaintiffs rely to prove a special contract, and said upon this evidence they predicate the following point: (court then read plaintiffs’ point and said) — this point the court answer in the affirmative ; but in so answering it, do not assert that the facts are as stated in it, or that the testimony of the witnesses is true. It is for the jury to ascertain what the facts are, and also whether the testimony of the witnesses is to be credited. If the jury decide from the evidence that there was such a contract as is supposed in the point, and that Betsy Eulweiler fulfilled her part of it, then the plaintiffs are entitled to recover; and the measure of damages is. the value of property or estate Miss Malaun agreed to give Betsy Eulweiler, whether it be her real or personal estate, or both, or any part of either.</p> <p>Upon the first three counts the defendant has also asked the court to charge the jury. (The court here read defendant’s first point, and said) — The court cannot answer this point in the affirmative, but tell the jury that, if the evidence proves to their satisfaction that Rebecca Malaun promised in substance “ to leave to,” or “to devise and bequeath to,” or “to convey and transfer to ” Betsy Eulweiler all the property said Rebecca should have •at the time of her decease, on condition that said Betsy would live with Rebecca during her life, and take care of her, and that Betsy did so live with her, then the plaintiffs can recover in this case, the value of the real and personal estate left by the said Rebecca at the time of her decease ; the exact words laid in the declaration need not be proved; it is sufficient if they be proved in substance.</p> <p>The court then read the defendant’s second point and answered it in the affirmative and said: — Upon the fourth count in the declaration, already explained to you, this point is predicated, and under it the plaintiffs are entitled to recover for any work done by Betsy Eulweiler for Miss Malaun, what it was reasonably worth, if she has not been paid for it, or received as much money belonging to Miss Malaun as amounted to its value. But the jury can find for the plaintiffs on this count on the supposition only, that no express contract was proved, and even then they cannot find for all the services rendered, but for that portion which was rendered within six years from the time this suit was brought; all. beyond that timéis barred by the Statute of Limitations, which is pleaded in this case.</p> <p>Verdict and judgment for plaintiffs, for $1843.47.</p> <p>'It was assigned for error, among other things, that the court erred in answering plaintiffs’ point in the affirmative, and in rejecting the testimony of the administrator’s wife.</p>

<p>ERROR'to tbe Court of Common Pleas of Westmoreland county.'</p> <p>This was an action of ejectment, in which the plaintiff in error was defendant below.</p> <p>The facts of the case are fully stated in the opinion of the court, delivered May IT, 1855.</p>

<p>Error to the Court of Common Pleas of Cfreene county.</p> <p>This was an action of ejectment, brought by defendant in error, who was plaintiff below, against the plaintiff in error, John B. Gordon, who was the landlord, and Harvey Renner, his tenant, for 130 acres of land. The plaintiff claimed that this land was devised to him for life by his father, and the defendant elaimed that the plaintiff, Thomas Inghram, owned a, fee simple in it by a former gift from his father ; but that whether Thomas Inghram owned a fee, or a life estate, his title was divested by sundry sheriff’s sales.</p> <p>The plaintiff offered in evidence the will of Arthur Inghram, dated Oct. 13, 1834, proven and registered in the proper office, Oct. 27, 1834, in which inter alia this land is devised as follows :</p> <p>“ I give and bequeath unto my son, Thomas Inghram, the plantation adjoining the'aforesaid land, on which there is a stone house, being the same tract of land I purchased from Samuel Archer; and further that after my son is deceased, that his son Thomas, called Zaar, is to have the said plantation.” Upon this proof plaintiff rested.</p> <p>The defendant, Gordon, in his behalf, offered proof of two sheriff’s sales of the premises, sold both times as the land of said Thomas Inghram.</p> <p>The first sale was made upon a decree in the Orphans’ Court of Greene county, against Thomas Inghram, who had settled an account as the guardian of Thomas Porter, a minor, wherein a balance was found against said Inghram, of $357.75. By allowance of the said court, a writ in the nature of a fieri facias had issued, the land in dispute'was levied upon, and after a condemnation, a venditioni exponas to June term,-1842, was issued, and the land sold to Wm. Rhodes for $200. A sheriff’s deed was regularly acknowledged to said Wm. Rhodes for the land in dispute, and the $200 — by an auditor’s report, — appropriated to payment of liens against said Thomas Inghram. Deed from William Rhodes, purchaser aforesaid, to JohnB. Gordon, defendant, dated June 27, 1843. The defendant then offered in evidence a former ejectment, to March term, 1844, in which a verdict and judgment was entered for John B. Gordon, the plaintiff, against Thomas Inghram, and a hah. fac. pos. issued to March term, 1845, and the return of sheriff thereon of “ possession delivered to plaintiff.” The plaintiff then proved that he had kept possession from the .time the sheriff delivered the'premises to him till the present time.</p> <p>The defendant then, in order to show a better outstanding title, gave in evidence the record of a judgment to Dec. term, 1845, Jesse Hook, for use, v. Thomas Inghram, debt, $59.17, fi. fa. issued thereon, Dec. term, 1845, and levied upon the land in dispute, inquisition and a condemnation Joy a jury, vend. exp. March term, 1846, and return of sheriff sold to R. W. Downey, for $300. Sheriff’s deed to R. W. Downey, dated and acknowledged March 18, 1846.</p> <p>The defendant then, further to maintain the issue on his part, adduced testimony to prove that Thomas Inghram, prior to these sales, always claimed a fee simple in the premises, and got the benefit of the two sales, and that the amount of these sales was applied to his debts, as before proven, and that his father, Arthur Inghram, had made a parol gift to him in or about the year 1816 or 1817, in pursuance of which, he had taken possession of the land, made valuable improvements, lived upon and occupied it until ousted by the writ of possession issued under the judgment obtained by J. B. Gordon, as before stated. That the land was assessed in the name of Thomas Inghram since the year 1817, prior to which, it had been assessed to his father.</p> <p>The defendant requested the court to charge the jury as follows :</p> <p>1. That the plaintiff is estopped after having the proceeds of two judicial sales applied to his indebtedness, without a tender to refund the amount so paid by defendant.</p> <p>2. That if the land was held adversely to the plaintiff, though his interest was but a life estate, yet, if at the time of the seizure and sale on the judgment of Hook, it was yielding no rents, issues and profits, that Hook could have had applied to the extinguishment of his judgment, such sale would pass the title.</p> <p>3. If a defendant, before the sale of his land by the sheriff, claimed an interest or title in the land which would be subject to levy and sale, and was in possession a long time under such title, and gets the advantage of a sale of a fee simple interest, it would be inequitable to allow him to set up against the sheriff’s vendue a title or interest not subject to levy or sale.</p> <p>The court answered the points in the negative. Yerdict and judgment for plaintiff, Thomas Inghram. The answers of the court were the errors assigned.</p>

<p>1. The word “money,” in a will, may be construed to mean cash, or may stand forthewhole personal estate; and is to be received in theone or the other sense, as will best effectuate the general intention of the testator, deduced from every part of the will.</p> <p>2. Where a testator bequeathed to his daughter, household goods, a horse and cow, “ and also one-third of the remainder or balance of money that may be left after paying all my just debts and funeral expenses;” and his intention was manifestly to divide his personal estate equally between his two children; Held, that the nature ofhis personal estate rendering such a construction necessary to effectuate- his intention, the word “ money” must be construed to mean ‘ ‘ personalty.”</p>

Scire facias sur mechanics’ lien. The facts of the case are stated sufficiently for a correct understanding of the point decided in the opinion of the court, delivered December 11, 1854-.

Assumpsit for money received by defendant for use of plaintiff. 'In 1836, the plaintiff’s testator, Riddell, and the defendant, Babbitt, were practising attorneys in the Court of Common Pleas of Erie county, but not partners. A suit in ejectment, — Heirs of Collins v. Geo. Southwick, was pending in said court, involving the title to a town lot in the borough of Erie.

<p>1. E. and C. were in partnership : C. bought out E., and gave him three judgment notes for $1088.33 each, and agreed to pay the partnership debts. At the same time, 0. assigned to E. some individual debts, which E. bound himself to collect, and apply to the payment of certain specified debts against the firm. On the trial of a sci.fa. sur judgment entered on one of the notes, it was competent for C. to prove that E. had received money on the claims put into his hands, and had not applied it as agreed.</p> <p>2. If E. had to pay debts that 0. agreed to pay, this would be a sufficient answer to O.’s set-off, pro tanto.</p> <p>3. A refusal to open a judgment, is not a judgment, sentence or decree, and concludes nothing, and is not assignable for error.</p> <p>4. A discontinuance is matter of discretion with the court; a nonsuit is a matter of the discretion of the plaintiff, and it would be error to refuse it.</p> <p>5. A plaintiff of right may take a nonsuit, at anytime before the jury announce * their readiness to deliver the verdict.</p> <p>Note by the Reporter. — Por reasons which need not be explained, parts of this opinion were written by Mr. Justice Black, the residue by the judge who read it.</p>

<p>Error to the Court of Common Pleas of Fayette county.</p> <p>Charles Austin confessed three judgments, Nos. 97, 98 and 103, of September term, 1852, to his father, John M. Austin.</p> <p>Sabrina Greenwalt, executrix of William Greenwalt deceased, also had a claim against Charles Austin, upon which she obtained a judgment, after his goods had been levied on by his father’s execution.</p> <p>Executions were issued in favor of John M. Austin, and of Mrs. Greenwalt, executrix, and the store of defendant sold, and money brought^into court for distribution. Roth parties claimed the money, and Mrs. Greenwalt alleged that the judgments in favor of John M. Austin, were entered and the executions thereon issued with the intention of hindering, delaying, and defrauding her out of the collection of her judgment, and this case is a feigned issue, directed at her request, to determine the validity of those judgments.</p> <p>The court, Gilmore, J., inter alia charged as follows : — “ In ruling out evidence, we have already decided, that one creditor may prefer another, and that such preference does not amount to a fraud, although it may hinder and. delay, and indeed effectually prevent the recovery of the judgment.” This is assigned for error, and raises the material point in this case.</p>

<p>1. The authority to tax costs according to the exigency of each case, or to a general rule, has always been an element of chancery jurisdiction, and is not withheld from our courts in chancery cases.</p> <p>2. Until the court establish a fee bill in chancery cases, costs are necessarily a matter of discretion, and are to be taxed with the aid of the analogies of our costs at common law.</p>

<p>’ Ekror, to the Court of Common Pleas of Indiana county.</p> <p>George and Edward Duffield, ténants on the land of Samuel M. Russell, were the owners of the undivided half of four hundred dozen of wheat in the sheaf, lying in Russell’s barn, of the crop of 1850. On the 14th October, 1850, M'Cartney and Coleman, the defendants, by process of attachment before a justice of the peace, attached the interest of Edward Duffield in the said wheat and some rye, which attachment was duly returned and judgment obtained thereon against Edward Duffield, on the 16th October, 1850, for $53.34. On the same day, 16th October, 1850, an execution was issued on this judgment, and a levy entered thereon by the constable, in the justice’s office, of Edward Duffield’s interest in the wheat in question. • Of this execution the constable made return on the 5th November, 1850, that- by virtue thereof, he had sold the one-fourth of four hundred dozen of wheat, as attached, to Coleman and M'Cartney, on the 21st October, 1850. He states in his testimony that Tie sold at one o’clock, P. M. After the sale, M'Cartney and Coleman threshed out the grain at the barn, and took and carried away the one-fourth, being the interest of Edward Duffield.</p> <p>On the 16th October, 1850^ Andrew R. Sloan obtained a judgment against Edward Duffield, before a justice of the peace, for $22.11, and on the same day an execution was issued thereon and a levy made, on the one undivided half of the four hundred dozen of wheat above-mentioned, being the interest of Edward Duffield. On the 6th November, 1850, the constable made return of this execution, that by virtue thereof he had sold the interest of Edward Duffield in said wheat, to Robert Harbison, plaintiff in this case, for the sum of $23, on the 21st October, 1850. The constable states in his testimony, that he made the sale at nine o’clock, A. M. M'Cartney and Coleman, the defendants,, were present at this sale.</p> <p>On these facts, the court directed the jury to find for the defendants, and this is the error assigned.</p>

, Error, to the Court of Common Pleas of Indiana county. The facts of the case sufficiently appear in the opinion of the court delivered December 11, 1854, by

The facts of the case are fully stated in the opinion of the court below, by M'Calmont, P., as follows : “The plaintiff in this suit, William T. Luther, residing in the State of Pennsylvania, was, in the spring and summer of the year 1850, the owner of a canal boat, named “ The Huron,” Hilbert Henderson became the master and captain of the boat, and whilst under his charge, it was taken- into the State of Ohio, and was, in the summer of that year, laden with 250 barrels of…

<p>Habeas Corpus to the sheriff of Allegheny county.</p> <p>The facts of this case are sufficiently stated in the opinion of the court, by</p>

<p>Error to the Court of Common Pleas of Berks county.</p> <p>This was an action of assumpsit on a promissory note, brought by Eox against Taggart. The plaintiff filed a copy of the note. Before the time appointed by the rules of the Court for hearing motions for judgment, defendant entered a rule to choose arbitrators, and afterwards in due time, a rule of reference. The court set aside the rules, and entered judgment in favor of the plaintiff, for want of a sufficient affidavit of defence. This was assigned for error.</p>

<p>1. When a sheriff levies upon goods and refuses to sell, the plaintiff in the execution is entitled to recover from him the value of the goods levied upon, or the amount of the execution, whichever is least. ^</p> <p>2. When the sheriff makes a levy and refuses to sell, the only remedy of the plaintiff in the execution is against the sheriff to the amount of the goods levied upon.</p> <p>3. The sheriff is not answerable to a junior creditor, whose writ comes so late</p> <p>that the money could not be made.</p> <p>4. For a misfeasance in office by a sheriff, each creditor can recover only what he has lost by it, and one who could have got nothing if the sheriff had done his duty, can demand nothing for the breach of it.</p> <p>. 5. A judgment, sentence, or decree of a coprt of competent jurisdiction, is conclusive evidence of every fact on which it must necessarily have been founded.</p> <p>6. A. had the senior, and B. the junior execution in the sheriff’s hands, both of which were levied on personal property, which the sheriff refused to sell, and removed it to another county. Subsequently the real estate was sold. Meld, that if A. had a right of action against the sheriff, for the proceeds of the personal property, it was a satisfaction pro tanto of ‘his judgment, and that for that amount he was debarred from claiming out of the proceeds of the realty, as against other judgment-creditors.</p> <p>T. When the sheriff has money in his hands — -the proceeds of the sale of real estate — he has a right pro interesse suo, to appeal from the order of the court decreeing distribution.</p>

In the spring of 1852, plaintiff had run some pieces of lumber out' of the Brokenstraw creek, a tributary of the Allegheny river, and had landed the same in the Allegheny river, near the mouth of said creek, at what is called Brokenstraw eddy. These pieces had been coupled together, for the purpose of forming a river-raft.

This was a scire facias by defendant in error, to revive and continue the lien of a judgment, to which defendant below pleaded, “ payment, with leave to add and alter;” and subsequently added, “the plea of discharge in bankruptcy.” When the case was on trial, and plaintiff had given the judgment in evidence, and rested, the defendant offered a certificate, authenticated under seal of the District Court of the United States, Western District of Pennsylvania, of a proceeding…

The plaintiffs in error were defendants below. This was an action brought by Morrow, assignee of Absalom Morris, under a voluntary assignment, for the benefit of creditors on sundry promissory notes of the same tenor, except as to date and amount, a copy of one of which is given in the opinion of the court below. The defendants admitted the signatures to the notes to be genuine, and that the same were given for an adequate consideration.

<p>1. A sale of a horse, accompanied by an actual delivery and change of possession during several weeks, will not be presumed fraudulent as to creditors, though after that time the property is frequently in the possession of the vendor; nor will the admissions of the vendor, after such period, be admissible as evidence against the vendee.</p>

<p>1. To a sci. fa. on a claim filed by a municipal corporation for grading and paving a certain street, it is no defence that the grading of another street did great damage to other lots of the defendants.</p> <p>2. Municipal corporations are not liable for injuries arising from the grade which they give to their streets.</p> <p>3. On a sci. fa. sur a lien for grading and paving a street in Allegheny city, under Act of 30th May, 1852 — filed against property owned by a minor — and served upon the guardian, a judgment for want of an affidavit of defence is regular.</p>

This was an appeal by Philip L. Grim, the acting administrator of Joshua Logan, deceased, from the decree of the Orphans’ Court of Allegheny county, dismissing the petition of the administrator, for an order to sell certain lots, alleged to be the property of the said Joshua Logan.

<p>Appeal by Thomas Mellon, Esq., general assignee, of Gen. William Larimer, from a decree of the District Court of Allegheny county, allowing Adelia Thacker to take out the money paid into court in this case.</p> <p>Gen. Larimer, was a banker in Pittsburgh. On the evening of the 30th December, 1854, he shut his office apparently as usual. That was Saturday evening. On Monday morning the office did not open ; but that being New Year’s Day, no notice was taken of it. On Tuesday the office did not open, and it came out that the General had failed, and was broken up. His failure was a bad one. Ilis assets were muck less than his liabilities. He made an assignment to the appellant for the benefit of his creditors. Thomas Dawson was named in the assignment, as an assignee along with Mr. Mellon, but he did not accept, and Mr. Mellon became the sole assignee. The assignment was signed and sealed on the evening of Saturday, the 6th of January, 1855, a week after Larimer’s failure; but it was not delivered to Mr. Mellon till Monday, the 8th. On the same evening on which the general assignment was made, just as Gen. Larimer was going to sign and seal it, he said to Mr. Mellon that he owed to Adelia . Thacker a debt of such a character, that it ought to be preferred. And he drew up a paper assigning to her so much of the judgment against Mr. Robertson, as would be' necessary to cover her claim, and handed it to Mr. Mellon, to enable him to pay her claim, when the money was collected. He then signed and sealed the general assignment to Mr. Mellon, and delivered it to him on the next Monday morning. Miss Thacker was not present when the assignment to her was made, nor any one on her behalf. Mr. Mellon was not her attorney.</p> <p>■ Mr. Mellon was notified, on the part of the general creditors, not to pay the money to Miss Thacker, on the ground that the assignment to her was a fraud on the Act of the 17th of April, 1843, prohibiting preferences in assignments.</p> <p>On the 20th of July, 1855, Mr. Mellon, still retaining in his hands the assignment to Miss Thacker, a rule was taken in the District Court, to show cause why the judgment should not be marked to Miss Thacker’s use. Mr. Mellon, in answer to the rule, then filed the assignment, together with a statement of the circumstances under which it was made, and asked leave to pay the money into court, which was granted. The counsel of Miss Thacker then had added to the rule of the 20th of July, the following words, “ and why she .should not take out the money paid into court.” This rule thus amended, came on to be heard on Mr. Mellon’s answer ; and the court, on hearing, made it absolute, marking the judgment for Miss Thacker’s use, and allowing her to take out the money paid into court.</p> <p>From this decree of the court this appeal is taken by Mr. Mellon.</p>

The plaintiff in error was defendant below. Andrew Nelson died intestate prior to the year 1822, leaving a widow, Mary Nelson, the plaintiff in interest in this case, and no issue but brothers and sisters, and the representatives of deceased brothers and sisters.

This was an action of debt, on a recognizance to the Commonwealth, by Carter and Lantz. Partition had been made of the estate of Joseph Ball, deceased, and it was taken by the defendants at the appraisal, and this recognizance given to secure to the other heirs their respective purparts.

<p>1. A. delivered to B. a treasurer’s deed for certain land, as security for a debt. Held, that B. does not thereby sustain such Ti fiduciary relation, as to prevent him from purchasing the same land at a subsequent treasurer's sale.</p>

<p>1. A judge of one county has no authority to issue his warrant for the arrest or removal of a person charged with the commission of a misdemeanor in another county; alitor if the offence charged is a felony.</p> <p>2. In misdemeanors, the means provided for the arrest and return of fugitives from justice, is a warrant issued by a justice of the peace of the county where the offence is alleged to have been committed, and endorsed by a justice of the county where the offender is found.</p> <p>3. The Court of Quarter Sessions of one county have no power to order a defendant, charged with a misdemeanor, to be committed in default of bail for his appearance at the next Court of Quarter Sessions of another county.</p> <p>4. One arrested upon a warrant issued by a justice of the peace of another county, and endorsed in the county where he is found, if the offence is bailable, may, at his option, give bail in the county where he is arrested, for his appear-</p> <p>. anee at the court where the offence is triable.</p> <p>5. The oath of a married woman will not sustain a warrant for the arrest of her husbaiid for adultery; nor can a husband bo a witness in a case against his wife for adultery.</p>

Error, to the District Court of Allegheny county. The defendant here, but plaintiff below, brought an action of trespass on the case for the use and occupation of two undivided tenth parts of a tract of land. The declaration did not allege, nor did the plaintiff prove any contract but the implied one, arising between tenants in common, from the defendant below, having occupied the land of plaintiff.

<p>Error to the Court of Quarter Sessions of Erie county.</p> <p>This was an indictment against defendants, Delany and Fuller, charging that they did “ falsely, unlawfully, and wickedly conspire, confederate, and agree among themselves, to deceive and defraud, and to cause to be deceived and defrauded, divers of the citizens of the Commonwealth of Pennsylvania, of great sums of money, by means of false pretences, and false, illegal, and unauthorized paper writings, in the form and similitude of bank notes, which said paper writings were of no value,” and were “ false, forged, and counterfeited; and that according to, and in pursuance of said conspiracy, combination, confederacy, and agreement among themselves, had as aforesaid, the said Baxter Fuller afterwards did fraudulently, unlawfully, and deceitfully offer and pay to one Elisha Nason, for the purpose of deceiving and defrauding him, the said Elisha Nason, for and as a good, genuine, and lawful hank note, one of the aforesaid false, illegal, and unauthorized paper writings, in the form and similitude of a bank note.”</p> <p>The indictment further charged, that Fuller obtained goods by fraud and false pretences, to the amount of the forged note.</p> <p>Defendants moved the court to quash the indictment: for that “ if the facts alleged in said indictment were true, the defendants would be guilty of the crime of uttering and passing counterfeit money; consequently, the lesser (the agreement) would be merged in the greater offence, the passing of the counterfeit money.”</p> <p>Upon hearing, the court, Galbraith, P., quashed the indictment, which is the error complained of here.</p>

By articles of agreement, dated January 18,1853, Colvin agreed to convey to Schell a tavern house in Somerset, and also to guarantee that the house should remain as it then was, unless Schell should himself agree to alter it. The consideration was to be the conveyance, by Schell, of a house and lot in Huntingdon, and the payment of $2400.

<p>I. A promise by a guarantor, after the failure of his principal to pay the debt, is an admission that there has been no such want of diligence as is prejudicial to his interests.</p>

By the Act of Assembly of April 15, 1851, the county commissioners of Crawford county, for the time being, and their successors in office, or any two of them, were constituted a board of directors of the poor and of the house of employment, in the county of Crawford, and, as such, created a body politic and corporate, to sue and be sued, by the name, style, and title of “ The Directors of the Poor and of the House of Employment, in the County of Orawford,” and by that name…

<p>Error to the Court of Common Pleas of Crawford county.</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

Scire facias upon a mechanic’s claim for materials. Pleas— 1. Payment with leave. 2. That plaintiffs did not furnish the materials on the credit of the building, but on the credit of David Yan Billiard, the defendants’ intestate. 3.

Ann Dunkin died in 1832, leaving a will, by which, after appointing William Davidson and his son executors and trustees, she gave, devised and bequeathed to her “ said executors, and the survivor of them, and to the heirs, executors and administrators of such survivor, all my estate, real, personal and mixed, in trust, after payment of my debts and funeral expenses, to receive and take all the rents and profits, dividends and income of every kind, which shall from time to…

<p>1. The Acts of Assembly, conferring chancery powers, carry with them as a necessary incident to the jurisdiction, the authority to enforce decrees by the ordinary process of attachment, sequestration, &c., unless that authority be excluded by legislative enactment.</p> <p>2. The Act of 16th June, 1836, regulating the power of the several courts “ to issue attachments, and to inflict summary pjmishment for contempts of courts,” has no relation to attachments to enforce decrees in equity, where the object is not to “inflict punishment” but to compel performance of such decrees.</p> <p>3. A decree in equity for the payment of money due upon a contract cannot be enforced by attachment, since the Act of July 12, 1842, abolishing imprisonment for debt.</p>

John Constine’s real estate having been sold by the sheriff, April 2, 1853, under a venditioni exponas, and the writ returned on the 4th of.April, the court appointed an auditor to distribute the proceeds. The proceeds were insufficient to pay all the lien creditors; Constine was not entitled to, and did not claim, any part of the fund, and did not take any part in the proceedings for distribution.

<p>1. J. B. and wife conveyed a tract of land,'by a deed containing a reservation as follows in the preamble: “ Whereas a part of the said premises has since been laid out into a town plat, now called and known by the name of Bath, and lots thereof, hereinafter excepted and reserved, have been sold and disposed of by the said J. B. and wife, and the titles thereto are now vested in other persons,” and in the description of the premises granted, after embracing the whole farm, was this clause: “ Excepting thereout lots No. 2, etc., in the said town of Bath, as the same are laid out and numbered on an original plat or draft of said town, which have been heretofore conveyed, and in which the said J. B. and wife hold no estate.” Held: That these recitals were not sufficient evidence of an outstanding title to defeat the recovery by the heirs of J. B. of the lots reserved from one in possession, who had shown no title in himself.</p> <p>2. Recitals cannot have the effect of an estoppel, in favor of one who was neither a party nor a privy to the deed.</p> <p>3. An estoppel can only be pleaded or asserted by one who was affected by the act which constitutes the estoppel.</p>

<p>1. J. B. and wife conveyed a tract of land: “ Excepting lots No. 2, etc., which have been sold by the said J. B. and wife, and the titles thereto are now vested in other persons, and in which the said J. B. and wife hold no estate.” At the time'of the conveyance, J. B. was in possession of the whole tract, including said lots, which had never been enclosed and separated from the.rest of the tract. The lots reserved had actually been sold to various persons, and conveyances executed, some of which had been delivered, but none of the purchasers took possession. Under the above deed, J. B. delivered possession of the tract to his grantee, as fully as he had held it himself; and this possession continued in the grantee and those claiming under him, down to the time when suit was brought. Held: That the heirs of J. B. were not entitled to recover said lots in ejectment against one in possession, who showed title under the grantee of the tract, subject to the said reservations.</p>

Replevin for a yoke of oxen. , In 1851, Alden, the plaintiff below, and defendant in error, became surety for Paine, one of the defendants, for a debt of some seventy-five dollars, due by him to one A. Seward. Paine, to secure Alden, agreed that the oxen in question should be his until this debt was paid; but the oxen were left by Alden in Paine’s possession.

Error, to the Court of Common Pleas of Philadelphia. This was a feigned issue, devisavit vel non, as to the will of Margaret Landis; the allegations of the plaintiff being: 1. That the testatrix was not of sound mind, memory, and understanding, nor of mental capacity to make said instrument of writing. 2. That she did not execute said instrument of writing with a full knowledge of its contents. 3.

<p>Error to the Court of Common Pleas of Chester county.</p> <p>This was ejectment by the vendee against the vendor, to compel the specific performance of articles of agreement, for the sale of land-. The defence set up was, the defendant’s being in such a state of intoxication, at the time of the execution of the . contract, as to render him incapable of assent — misrepresentation on the part of the plaintiff, as to the terms and effect of the written agreement — and dissatisfaction of the wife of defendant, and her refusal to sign the deed.</p> <p>Hanna, on the 29th December, 1853, executed a written article of agreement, to convey his farm, “containing about one hundred acres,” to Phillips, on or before April 1, 1854, with liberty for Phillips “ to enter upon the premises after executing this article, to improve, lime, quarry, and remove stones, and clearing the field south of the railroad.” The price was to be $60 per acre: $50 to be paid on signing the article; $2000 on the 1st April, 1854, on delivery of the deed; $1000 on the 1st April, 1855; $1000 on the 1st April, 1856; $1000 on the 1st April, 1857; and $-, the balance thereof, on the 1st April, 1858, with interest at five per cent.; said payments to be secured by bond and mortgage on the premises.</p> <p>The evidence on the trial, as to the sobriety of Hanna, at the time he executed the article, and as to misrepresentation by Phillips, was conflicting. The $50 was paid at the time of signing the article, but some time afterwards was returned by Hanna.</p> <p>To show the contents of the farm, plaintiff offered in evidence, the records of three deeds to Planna, embracing, together, ninety-seven acres and one hundred and seven perches, to be followed by evidence that they covered the • tract described in the writ. To the admission of this evidence, the defendant objected; the court overruled the objection, and defendant excepted.</p> <p>The plaintiff then showed that he had, on the 1st April, 1854, tendered to Hanna, $2000 in gold, with certain bonds and mortgages, in fulfilment of his agreement, but that Hanna refused to receive both the money and his securities. Plaintiff then offered in evidence, the bonds and mortgages, to which the defendant objected; but the court overruled the objection, and defendant excepted.</p> <p>The plaintiff offered to show that he had entered upon the land, and cut timber upon the field south of the railroad, under the article ; to which offer the defendant objected, but the court admitted the evidence, and defendant excepted.</p> <p>The defendant offered to prove that his wife was dissatisfied with the contract, to which the plaintiff 'objected. The court sustained the objection on the ground that the evidence was irrelevant, and defendant excepted. The fact, however, that the wife was dissatisfied, was developed in the further progress of defendant’s case.</p> <p>The plaintiff, in rebuttal, offered to -prove by the declarations of defendant himself, — by the reputation of the neighborhood, and by his conveyance not signed by any wife, that the defendant was not a married man. Defendant objected, but the court overruled the objection, and defendant excepted.</p> <p>The court, Haines, P., charged the jury as follows: — “ The enforcement of a contract for the sale of land is not of right, but of grace, and where any well-grounded suspicion that all was not fair rests upon the bargain, the plaintiff is not entitled to recover in ah action of ejectment for specific performance. The court will give no relief to a party who has been guilty of any fraud or misrepresentation; his conduct must be free from all imputation. It is laid down as law, that misrepresentation, operating to a certain, though small extent, disqualifies a party practising it from calling for the aid of a court of equity, where he must come down, as it is said, with clean hands. There is no authority anywhere, — no case where the court has, when misrepresentation was the ground of the contract, decreed the specific performance of it. A vendee, plaintiff, having tendered the purchase-money, or a part of the purchase-money, and the proper securities for the payment of the balance, according to the terms of the contract, and having brought the same into court upon the trial, is entitled to the specific performance of the contract; but this proposition must be controlled by circumstances such as I have noticed, and such as will be noticed immediately. If the jury believe that Hanna did not agree to all the terms of the contract, but was induced to sign the article by the promise of Phillips, that he would make it all right at another timé, the plaintiff is not entitled to recover in this action. If the jury believe that the written article does not contain the actual agreement of the parties, and that terms and stipulations therein contained were not assented to by Planna, the plaintiff is not entitled to recover. But, whether Hanna did or did not agree to the terms of the contract; whether he was, or was not induced to sign the article by the promise of Phillips that he would make all right; whether the article contains or does not contain the actual agreement, are questions of fact which the jury will determine from the whole evidence in the case. So, also, if the jury believe that Hanna’s reason and judgment were clouded by drunkenness at the time the article was signed, so that he was incapable of giving deliberate consent to all its terms, the plaintiff is not entitled to recover in this action; but in judging of the events which took place at the execution of the article, you will recollect the conduct of the parties as well before that day, as afterwards, and at the time; you will weigh well the position of the witnesses, their credibility, and their opportunities of seeing and understanding what took place. All these belong to the transaction, and are for your consideration.</p> <p>“ During the trial, plaintiff introduced evidence to prove the defendant to be an unmarried man. This was with a view to counteract the effect of testimony offered by defendant that his wife was dissatisfied, and declared she would not sign the deed. If the jury believe from the evidence that Hanna, the vendor, is unmarried, then the question as to whether a verdict for the plaintiff, in such a case as this, docs or does not barthe dower of the wife of a vendor., defendant has nothing to do with the present case. I say further, that reputation and cohabitation are sufficient evidence in civil cases, of marriage ; and the fact whether the plaintiff is or is not a married man, is a question for the jury from the evidence in the case. If they believe he is a married man, then I lay down the principle, if in addition they are satisfied that the wife refuses to sign the deed, that the plaintiff is not entitled to recover.</p> <p>“If even the contract were fair in all its parts, and unexceptionable as to the mode of its being procured, still it is necessary that the plaintiff, to entitle him to recover, shall have proved that he tendered not only .the bonds and $2,000, but a mortgage also for the unpaid purchase-money; one witness, however, spoke of the mortgage, and there is some evidence for the jury of the tender of the mortgage along with the other papers.</p> <p>“ Mesne profits may be recovered in ejectment, to be computed from the institution of the suit to the rendition of the verdict; and the jury are not confined in their verdict to the mere rent of the premises, but may give such extra damages as they may think the particular circumstances of the case demands.”</p> <p>The jury found a verdict for the plaintiff, and assessed the damages at $450.</p> <p>The admission of the evidence and .the charge of the court were assigned for error.</p>

<p>1. The Act of March 23, 1839, entitled, “A supplement to an act, entitled a further supplement to an act, entitled an act to incorporate the town of West Chester into a borough, passed the 16th day of April, 1838,” does not contravene the provision of the constitution, requiring compensation to be made or security given, before private property shall be taken for public use.</p> <p>2. Where land devised since the Act of April 11, 1848, to a married woman, is sought to be taken for public use, a bond to secure the payment of the damages may be drawn in her favor, and tendered to her alone: her husband has no vested interest in the land till her death, and no tender of security to him is necessary.</p>

<p>Error to the Court of Common Pleas of Tioga county.</p> <p>Assumpsit. — Roberts, plaintiff below, and defendant in error, entered into a contract with one Robinson, by which the latter agreed to sell and deliver to him one hundred thousand feet of lumber, upon the terms set forth. Upon a Sunday in March, 1851, defendant Sherman signed the instrument upon which this action was brought; and which was endorsed on the back of the original contract as follows :</p> <p>“ I hereby guarantee, that the within named Charles T. Robinson, will fulfil the within contract as agreed, and in case of his neglect or refusal so to do, I agree to pay all damages sustained in consequence thereof, Jeeeerson Sherman.</p> <p>“ Rutland, March, 1851.”</p> <p>This instrument was not delivered to Roberts, however, till some three or four days after it was signed. Robinson failed to deliver the lumber according to contract. No proceedings were instituted against him to recover the damages sustained thereby; but Roberts brought this action against Sherman, upon the above instrument, to recover the damages sustained by Robinson’s nonfulfilment of his contract. .There was no allegation or proof that Robinson was insolvent.</p> <p>The court, White, P., charged the jury that the execution of the instrument on Sunday did not avoid it, unless it was delivered to Roberts on Sunday, or he had a knowledge of the fact of its execution on Sunday,- of which there was no proof. That the instrument itself was a special undertaking in the nature of a contract of surety, and not subject to the rules of law which govern contracts of guaranty in the technical sense. That it was not necessary, in order to entitle plaintiff to recover, that he should prove that he had brought suit against Robinson, and used due diligence to compel-the performance by him, or that he was unable to compel performance, or collect the damages by reason of Robinson’s insolvency. That the sense in -which the party used the term “ guarantee,” was obviously its popular and not its technical sense, as was shown by the phraseology of the whole writing. That in addition to the money advanced by plaintiff upon the contract and interest, he was entitled to whatever damages he had sustained by reason of the non-performance of the contract by Robinson, which according to the evidence was fifty cents per thousand on the lumber not delivered. That the fact that $200 had been advanced by plaintiff on the contract prior to the execution of the instrument by Sherman, constituted no defence pro tanto.</p> <p>The jury found a verdict for the plaintiff for $711.17 ; whereupon the defendant took this writ of error, and assigned the charge of the court for error.</p>

Indictment for forcible entry and detainer. The defendants having been found guilty, a motion was made in arrest of judgment, on the ground that the indictment was defective; because, 1. There was no venue laid. 2. It did not appear that the grand jury were in the county, or inquiring in the county, when the presentment was made. . 3. The presentment did not appear to be made upon the oath or affirmation of each and all of the jurors. 4.

<p>Error to tbe court of Common Pleas of Tioga county.</p>

<p>1. A private direction to an agent not to purchase goods on credit, will not save the principal from liability to third persons, where the usual course of the business is to purchase on credit.</p> <p>2. A debt of the principal may in some cases be taken out of the Statute of Limitations, by the act of an agent, having authority, either specified or necessarily implied from the nature of his duties; but the naked fact that the agent contracted the original indebtedness, will not warrant the implication of snch authority.</p> <p>3. An agent employed as the manager of iron works, borrowed money for the use of the establishment more than six years before suit brought. Held, that the naked promise of the agent, within six years to pay the debt, would not take the case out of the Statute of Limitations.</p> <p>4. An executor or administrator cannot waive the Statute of Limitations.</p> <p>5. A new promise of a joint debtor is allowed to affect no one but himself.</p>

<p>1. A trustee, who purchases the trust property at his own sale, or procures another to purchase it for him, at such sale, holds it, subject to the original trust.</p> <p>2. Where executors, empowered by-will to sell real estate of the decedent, exposed the same to public sale, and had it bought by a third person, for themselves, and afterwards sold it at private sale, but not as executors, at an advance, it was held, that they were accountable for the amount received on the second sale.</p> <p>3. The fact that the final account of the executors had been filed and confirmed before, did not, in such case, prevent the issuing of a citation by the Orphans’ Court, to compel the executors to account for the balance..</p>

<p>1. A parol promise to convey lands, gives no title to the promissee.</p> <p>2. A trust cannot be established by merely showing that the owner of the legal title promised, when he bought, that he would convey to the alleged cestui que trust, upon his being repaid the purchase-money.</p> <p>3. A parol promise, by the owner of the legal title, at the time he bought, that he would convey to the alleged cestui que trust, upon his being repaid the purchase-money, is within the Statute of Frauds, and, although an action at law may be sustained on it, a specific execution will not be decreed.</p> <p>4. When an' absolute conveyance is taken by a surety or creditor, as a security for a debt, pprol evidence may be given to prove the true nature of the agreement, without violating either the Statute of Frauds, or that rule of evidence which forbids that a writing shall be varied by parol.</p> <p>5. A man cannot take a conveyance of land, in pledge for the payment of money, and afterwards hold it as his own.</p> <p>6. If A. bound himself to pay money for B. to C., and took a deed to himself from C. for B.’s land, in order to secure the reimbursement of the money, he was a mortgagee of the land.</p>

Error, to the Court of Common Pleas of Washington county. This was an action of ejectment by the plaintiff in error, for one hundred acres of land, more or less, in West Finley township. Some time prior to 1843, the land in dispute belonged to a Mr. White, and was purchased as such, at sheriff’s sale, by Pattison, the defendant in error. In 1843, it was sold by the sheriff, as Pattison’s property, and purchased by James Spriggs.

<p>Error to the District Court of Allegheny county.</p> <p>The action below was trespass on the case, by M£Clowry, the plaintiff in error, to. recover damages from the administrator of William Oroghan, for the breach of a contract to renew for the term of five years, a lease of certain premises held by M£Clowry unller a prior lease, about to expire.</p> <p>The contract for renewal was shown by parol testimony, and by a written memorandum signed by the plaintiff and defendant, as follows:</p> <p>££ I hereby certify, that the leasehold of property at the point on Penn street, late in the occupancy of P. Trainer, whose interest was purchased at sheriff’s sale by John N. M£Clowry, which said property is described in a lease from Jean Barbeau to Samuel Roseburg, dated May 26, 1830, was by agreement of Mr. Croghan, in bis lifetime, to be renewed to said M‘CIowry for a period of five years from and after tbe 1st day of April, A. D. 1851, for a consideration to be named, wbicb said consideration is to be of an annual ground rent, besides all taxes assessed and to be assessed on said property, wbicb said renewal of said lease is to be executed or completed and delivered on or before December 1, 1850. 0. B. Scully, Agt.</p> <p>John N. M‘Clowry.”</p> <p>Mr. Crogban bad a life estate in tbe premises, and died on the 22d of September, 1850. Frequent demands for tbe renewed lease were made in bis lifetime. Tbe premises with other lands bad been originally demised by Croghan to Jean Barbeau, under a lease for twenty-one years from tbe first of April, 1830, expiring 1st April, 1851, and were sub-let by Barbeau to Roseburg for twenty years by lease. By subsequent assignments, tbe lease having become vested in Patrick Trainer, tbe unexpired term of which was purchased at sheriff’s sale, by M'Clowry, for $36. Tbe value of the annual rent was proved to be worth $200 per annum, and tbe jury, making allowance under the instruction of tbe court, for all taxes, assessments and risks, ascertained the value of tbe lease for tbe five years tend, agreed to be renewed at $540, and returned a verdict for tbe plaintiff in that sum, subject to tbe opinion of tbe court on tbe following reserved point:</p> <p>“ The defendant’s counsel requests tbe court to charge tbe jury, that tbe rule or measure of damages for tbe breach of tbe alleged contract in this case, is tbe actual loss or consideration paid by plaintiff; and that not having paid tbe intestate anything in consideration of tbe alleged contract, all that plaintiff is entitled to recover, is tbe sum of $36, and interest, paid for Trainer’s unexpired lease; but the court refused to charge as requested by defendant’s counsel, and instructed tbe jury, pro forma, that the value of tbe lease agreed to be given, or of tbe contract at tbe time of tbe breach, is the proper measure of damages, and that plaintiff is entitled to recover whatever the lease, if given, was worth, or would have brought in the market, as of the date of ■the breach ; reserving the question for tbe further consideration ■of tbe court in banc; and if, upon such consideration, tbe court should be of opinion that tbe value of tbe lease, or contract, is tbe proper measure of damages, as charged, then judgment to be entered for tbe plaintiff on tbe verdict, for the amount found by tbe jury; but if tbe court should be of opinion that tbe rule of damages is not as charged, and that tbe plaintiff is not entitled to recover tbe value of the contract, or damages for tbe loss of tbe bargain, but only tbe actual loss sustained, or tbe consideration paid for Trainer’s unexpired term in tbe premises, (on tbe •assurance of the lease being renewed,) viz., tbe sum of $36, with interest, then the finding of the jury to be modified and reduced by the court to said amount, and judgment to be entered for the plaintiff on the verdict, so modified, for said sum of $36, and interest, notwithstanding the finding of the jury for a larger amount.”</p> <p>After argument, the court entered judgment in favor of plaintiff, for $49.72, non obstante veredicto.</p> <p>Opinion of the District Court.</p> <p>“ Williams, J. — This is an action to recover damages for the breach of a parol contract between the plaintiff and defendant’s intestate, by which the latter, in consideration of an annual rent of twenty or twenty-five dollars, agreed to renew, for a period of five years from the 1st of April, 1851, the lease of certain premises, (in which the intestate had a life estate,) in the occupancy of Patrick Trainer, under a lease for years, ending April 1st, 1851, whose interest or unexpired term the plaintiff purchased at sheriff’s sale. By the agreement between the parties, the renewed lease was ‘ to be executed, completed and delivered, on or before December 1, 1850.’ The intestate died, without having executed the lease, on the 22d September, 1850, and the remainderman refused to execute a lease for the premises, on the terms of the contract between the plaintiff and the tenant for life. It was not alleged on the trial, nor was any evidence given tending to show, that the plaintiff had paid the intestate anything as a consideration for the contract; but some evidence was given, tending to show that he had purchased the interest of Patrick Trainer in the unexpired lease, at sheriff’s sale, on the faith of the assurance of intestate’s agent that the lease would be-renewed, and that he had paid therefor the sum of thirty-six dollars. The defendant’s counsel contended, that the amount paid for Trainer’s unexpired term, with interest, was all that plaintiff was entitled to recover as damages, for the breach of the alleged contract. But the court instructed the jury, fro forma, that the plaintiff was entitled to recover the value of the lease agreed to be given, as of the date of the breach — reserving the question as to the true measure of damages, for the further consideration of the court in banc. The jury found a verdict for plaintiff, and assessed his damages at five hundred and forty dollars.</p> <p>“ Did the court rightly instruct the jury as to the true rule or measure of damages for the breach of the contract declared on and found by the jury? Is the plaintiff entitled to recover the value of the contract as found, or should his damages, under the facts of this ease, be limited to his actual loss, or the amount paid and expended on the faith of the agreement ? It seems to me that the rule or measure of damages for the breach of a contract to lease, ought to be the same as for the breach of a contract to sell land. What, then, is the measure of damages for the breach of a contract to sell, where the vendor acts with good faith and without fraud, but is incapable of making a title to the land ? The rule of damages applicable in such a case, has become textbook law, and is thus stated in Sugden on "Vendors: ‘If the purchaser affirm the agreement by bringing an action for nonperformance of it, he will obtain nominal damages only, for the loss of the bargain, because a purchaser is not entitled to any compensation for the fancied goodness' of his bargain, which he may suppose he has lost, where the vendor is, without fraud, incapable of making a title.’ Sugd. Tend., (7 Am. cd.,) vol. 1, (t. p.) 491, (m.) 425. See note, and the authorities cited. The same rule is laid down in other text books: 2 Pars, on Contr. 503-506; 2 Greenl. Ev. (5th ed.) sect. 261, note 3: and is amply sustained by authority. Flureau v. Thornhill, 2 W. Black. 1078; Walker v. Moore, 10 B. & C. 416; Baldwin v. Munn, 2 Wend. 299; Shannon v. Comstock, 21 Id. 460; Peters v. M'Keon, 4 Denio, 546. In Peters v. M'Keon, the court say: ‘ On an executory contract for the sale of land which the vendor believes to be his own, and when there is no fraud on his part, if the sale falls through in consequence of a defect of title, the measure of damages is substantially the same as it is in the case of an executed sale. If the vendee has paid any part of the consideration, he may recover back the money with interest. But he can recover nothing for the loss of a good bargain.’ . This rule is also recognized and affirmed in Bitner v. Brough, 1 Jones, 127, and in M'Dowell v. Oyer, 9 Harris, 417. In this last case the court say: ‘In an ordinary case, the vendee is compensated by recovering back so much of the purchase-money as he has paid; or by nominal damages, if he has paid nothing. But he may prove that the land rose in value after the contract, or that it was worth more at the time of the contract than he agreed to give, (1 Jones, 127,) and, if he does so, the vendor must respond for the difference.’ But the vendor is only liable for the difference in value, where he might make the title and does not, or where he has acted with bad faith. Eor further on, in the same opinion, the court expressly declare, that, ‘ where he is not able to comply with his contract, and is guilty of no default or bad faith, he is not obliged to pay the vendee for the loss of his bargain.’ Any other rule would be inconsistent with the doctrine laid down in Bitner v. Brough, (1 Jones, 139,) and in all the other cases cited.</p> <p>“ In this case, the intestate was guilty of no default or bad faith. He died, before he was bound to execute the lease, and his estate in the premises was determined by his death. It was not possible for his administrator to execute the contract, and the intestate was prevented from doing, it by an event over which he had no control. And, therefore, according to all the authorities, the plaintiff is not entitled to recover damages for the loss of his bargain ; in other words, the value of the contract is not the measure of damages, in this case, for its breach.</p> <p>“ But there is another aspect in which the case may be regarded, which seems to me equally decisive of the point as to the true measure of damages for the breach of a contract like this. The intestate had but a life estate in the premises. It is well settled that the covenants of warranty and for quiet enjoyment, implied from the words of leasing in an indenture of lease for years, last no longer than during the life of the.lessor. If, therefore, ‘a tenant for life make a lease for years, and die before its expiration, and the remainderman evict the lessee, no action on the implied covenant will lie against the executor of the lessor.’ Rawle on Cov. 362-364; 2 Bac. Abr. (Bouv. ed.) Cov. (E.) 564; Platt on Cov. 459; Gervis v. Peade, Cro. Eliz. 615; Swan v. Stransham, Dy. 257, A.; Adams v. Gibney, 4M. & P. 491; S. C., 6 Bing. 656: though the law is otherwise on an express covenant for quiet enjoyment. Platt on Cov. 459. And the reason for the distinction is, that the covenant in law expires with the term. Dy. 257, A. But in this case there is no evidence of any agreement for an express covenant for quiet enjoyment; nor anything from which such an agreement can be fairly inferred. On the contrary, the strong presumption is, that the intestate, for the trifling rent of twenty or twenty-five dollars, would not have agreed to give an express covenant for the quiet enjoyment of premises worth, according to the evidence, two hundred dollars a year, clear of the rent and taxes, and upon which, in case of his death, his estate might be made responsible in damages for an amount greatly exceeding the rent. If, as the authorities show, the plaintiff could not have maintained covenant, if the intestate had executed the lease according to the terms of the agreement, it does not seem reasonable that in an action for its breach he should be allowed to recover as damages, the value of the contract as found by the jury.</p> <p>“ In point of fact, the plaintiff is in no worse position than he would have been if the lease had been executed; it would have become valueless, on the death of the tenant, for life. Why, then, in an action for the breach of the agreement to execute the lease, should the plaintiff recover damages.for the loss of the bargain, when he could maintain no action for the recovery of damages on the implied covenants of warranty and for quiet enjoyment, if the lease had been executed and delivered in the lifetime of the intestate ? Surely the law will not tolerate such an incongruity; and for the failure to execute the lease, the plaintiff can only recover the actual loss or consideration paid.</p> <p>“It is therefore ordered that the verdict of the jury be modified and reduced to the amount paid by plaintiff for the interest or unexpired term of Patrick Trainer, in the premises, with interest thereon to the date of the verdict, amounting to forty-nine dollars and seventy-two cents, ($49.72) and that judgment be entered for the plaintiff, on the verdict so modified, to wit: for the sum of forty-nine dollars and seventy-two cents, non obstante veredicto.</p> <p>“ To which opinion of the court upon the point reserved, the counsel for the plaintiff except, and at their instance this bill of exception is sealed.”</p> <p>The following are the errors assigned:</p> <p>1. The court erred in modifying and reducing the amount of the verdict from $540 to $49.72.</p> <p>2. The court erred in rendering judgment on the point reserved, for only $49.72; whereas, it should have been entered for the whole amount of the verdict.</p>

<p>Error to the Court of Common Pleas of Warren county.</p> <p>Francis Mickle, on the 17th day of December, 1849, leased, from Frederick Miles, a farm and a quantity of personal property, in consideration for which, said Mickle was to pay said Miles, $481.66, Dec. 1, 1850 — $495, Dec. 1, 1851 — and $495, Dec. 1,1852. On the 25th day of October, 1850, Mickle leased the same property, with some reservations, to one Walker Northrop, who took possession, and continued the same to the termination of the lease, paying rent to Mickle. Francis Mickle died in July, 1852, and letters of administration were granted to Holcomb, October, 9, 1852. At the time of Mickle’s death, $100 of the amount due December 1, 1851, was unpaid. November 25th, 1852, Miles issued a landlord’s warrant, and dis-trained a portion of the property in dispute in this ease, being a quantity of butter in the cellar of the- house where Northrop resided, and afterwards directed the same to be sold, and became the purchaser of sufficient to satisfy the rent due as aforesaid. John Pierce, the co-defendant, was the constable who made the sale. Holcomb forbid the sale. On the 7th December, 1852, Miles issued another warrant for the' amount due December 1, 1852, to wit, $495, and other property on the premises leased, was taken and sold by direction of Miles, for $495, and costs of proceedings on the landlord’s warrant.</p> <p>To recover damages for the property thus taken and sold, this suit was instituted.</p> <p>The following points were presented by plaintiff, requesting the court to charge thereon:</p> <p>• 1. The lease between Frederick Miles and Francis Mickle, gave defendant no right to distrain and sell the property in question.</p> <p>2. Defendant had no right to distrain and sell under the landlord and tenant law, for rent accruing after the decease of the tenant Mickle.</p> <p>3. Defendant had no right to distrain and sell, after the death of the tenant, for rent due before his death.</p> <p>6. The measure of damages is the value of the property taken by defendant from plaintiff.</p> <p>The court, M'Oalmont, P., charged the jury as follows:</p> <p>“ In this case it is admitted, that there was rent due Miles at the death of Mickle, for which Miles distrained, after the decease of the tenant, Mickle, and, also, that a yearly payment became due in December, 1852, after the decease of the tenant, for which Miles also distrained the property in the possession of the under-tenant, Northrop, on the premises. It is admitted that the proceedings of distrainment were regularly pursued, but it is contended that, according to the tenor of the lease between Miles and Mickle, there could be no right of distress, and that the defendants were trespassers. For the plaintiff, the case of the Commonwealth v. Qontner, 6 Harris, has been cited, and for the defendant, the case of N&wman v. Anderson, 5 Bosanquet & Puller, and some other authorities.</p> <p>“ It may, perhaps, be regarded as a dictum in the case of the Qommomvealth v. Qontner, ‘ that if a lease so mixes the real and personal property together, that it cannot be determined how much of what is called the rent is to be paid for the chattels, and how much is the profit of the land, 'there can be no distress for the non-payment of it,’ but if so, it seems to be a profound dictum, and is entitled to great respect. I am not certain that it is not so unqualified and broad as to cover this case, and that I ought so to declare; but I am convinced, by the argument and the authorities cited by the defendant’s counsel, that it does not express the rule of law as applied to a lease of this kind. I accordingly instruct you, that as for the rent that fell due upon the lease given in evidence, Miles, the defendant, had a right to dis-train the property in the possession of the tenant, on the premises. I cannot distinguish this from a case where ready furnished lodgings are let, or a brewery with the utensils; the rent issues out of the land, and must be so regarded; but the fact that some personal property is leased with the land, does not, I think, take away the. right of distress. In two cases which have come before me, I have taken the law from the case in 6 Harris; but the number of leases of the kind in question, the understanding of the profession, and the authorities to which we have been referred, have induced me to hesitate and change my opinion, and there will probably be no better opportunity than the present to have this question finally settled in this State, if there be still room for doubt. It is unnecessary to give an opinion upon the other points, but as it is wished to review the whole case we will pass upon them.</p> <p>“ That part relating to the 4th and 5th points of plaintiff, omitted.</p> <p>“ 2. In considering the question of damages, it is important to determine even if Miles had not the right to distrain, what amount of rent he would have been entitled to from the administrator, in preference to the other creditors of the estate, in case of its insolvency. And, first, he would have been entitled to the rent due at the death of Mickle, not exceeding one year’s rent. Second — When the administrator took possession, and continued on under the terms of the lease, the profits of the land could only be regarded as assets of the estate, after deducting sufficient for the payment of the rent. It was the duty of the administrator to pay the landlord out of the profits of the leasehold, and I am not certain that the administrator would not have been liable, de bonis propriis, for non-payment of it.</p> <p>“ Had the distress been unlawful, the jury would have allowed the plaintiff such damages as would compensate him for the injury done to him by the unlawful taking. In estimating the damages, it would be right for the jury to take into consideration, in assessing the amount, the rent which was paid by the distress. 2 Greenleaf’s Ev. sec. 266. The plaintiff’s counsel say not, because, in an action against the plaintiff for the rent, Miles could recover the whole if the distress was void. Hut we do not think so. If Miles chooses to submit it here to the jury, or allow the court to submit it to the jury, he could not afterwards claim it.</p> <p>“ The plaintiff, if entitled to recover, would be allowed the damages arising out of the wrongful act. In estimating them, it is right for the jury to take into consideration the benefit resulting to him from the transaction. If, a just debt is paid by the trespass, it is right to take it into consideration in mitigation of damages.</p> <p>“ In a ease where an execution has been issued and the money made by the sheriff, it is admitted that the plaintiff, if sued by the defendant, as a trespasser, could have the benefit of the debt paid by the sale in mitigation of the damages; but it is said there is a distinction between that case and this; there the debt is paid in contemplation of law, but here it has never been paid.</p> <p>“We can, however, see no real distinction between the cases, in each the plaintiff can recover the damages he has sustained immediately from the transaction; and, in estimating the damages, the immediate benefit resulting to him from the design of the trespasser, may be taken into account in mitigation of the damages.”</p> <p>The charge of the court was the error complained of.</p>

This action was brought against defendants, to recover certain penalties alleged to have beén incurred by them, for paying out notes of an amount less than five dollars, issued by banks of other States, contrary to the provisions of the 48th section of an Act of Assembly of this Commonwealth, entitled “ An Act regulating. Banks,” approved April 16,1850.

Error, to the Court of Common Pleas of Washington county, by both plaintiff and defendant. John Sergeant, the plaintiff below, was thrown from his horse on the 3d of June, 1850, and received by the fall an injury to his hip joint, from which he lost the use of his limb, and will probably be a cripple for life. The defendant, Dr. Fowler, was sent for, and, being absent, his son visited the party injured.

<p>1. A plea in abatement cannot be pleaded after a plea in bar.</p> <p>2. Where a suit has been brought on an official bond by one person, any other person aggrieved, who has a remedy on the same bond, may file his suggestion; and declare for such breaches as he thinks proper.</p> <p>3. Where an action is brought by one party oh an official bond, ponding an action on the same bond by another party, the former action may be pleaded in abatement of the latter, if pleaded in proper time, but not after a plea of non esi factum.</p> <p>4. An official bond of a justice of the peace, indorsed by the prothonotary “ approved,” and the approval signed with his name and official additon, is a record of the Court of Common Pleas, and is entitled to be read in evidence, without further proof.</p>

<p>Appeal from the decree of the Orphans’ Court of Indiana county.</p> <p>James M‘Kennan, by his will proved in 1845, appointed John Shryock, Leonard Shryock and James A. M‘Cahan, his executors. The Messrs. Shryock alone discharged the duties of executors until 1855, when they settled their account and were discharged. M‘0ahan then assumed the duties of executor. The appellant who is the widow of the testator, and entitled under the will to the annual interest of $10,000, petitioned the Orphans’ Court for a citation to M£Cahan, to require him to give security, and on default thereof to be discharged from office; and showed as a reason therefor that in November,.1855, he was indebted on his own account to Alexander White, in a sum exceeding $2000. At the same time Judge White was indebted to the estate of M'Kennan, deceased, in a large amount, and M£Cahan paid his debt to Alexander White, by a draft on Judge White for the amount, and Judge White thereupon was discharged from his liability to the estate of M£Kennan. In his partial account M£Gahan charges himself with $3000 received from Judge White.</p> <p>These facts-were undisputed by the executor, either by answer or proof; but relying exclusively on the fact that he was the owner of property, greater in value than the amount thus wasted or misapplied, the court refused to require him to give security, and from that order this appeal is taken by Julia Ann M£Kennan, widow of the testator.</p>

<p>Appeal from the decree of the Orphans’ Court of Somerset county.</p> <p>Bernard Connelly died testate, appointing George Chorpenning and M. A. Sanner, his executors. While acting as executors, Chorpenning and Sanner executed a letter of attorney as executors aforesaid, to E. M. Connelly to collect, recover, receive and receipt of, and from Edward Connelly, of Utica, in the State of Ohio, all such sums of money as may be due from said Edward Connelly, to the estate of Bernard Connelly, deceased. This power was dated 15th May, 1850. On the 13th of June, 1850, said E. M. Connelly, by virtue of the authority given him, by said executors, collected, received and receipted for $1370.28, from Edward Connelly. On the 20th of July, 1850, Sanner, as acting executor, filed his account, in which he did not charge himself with the money received by their agent. This account was confirmed and executors discharged with the usual order, on the 15th November, 1850.</p> <p>E. M. Connelly, who had been the agent of the executors as aforesaid, was then appointed administrator de bonis non cum testamento annexo. On the 26th June, 1852, he filed his account, in which there is no charge for the money collected from Edward Connelly, as agent of the former executors. He was also discharged with the usual order.</p> <p>Upon this state of facts, E. S. Connelly, a son of testate, filed his bill, setting forth that he was an heir-at-law of said estate, that M. A. Sanner, and George Chorpenning, within five years, had filed an account, in which they omitted and neglected to account for $1079, or thereabouts, money which they by their agent collected from Edward Connelly, prior to the filing of their account ; and praying for a review of their account.</p> <p>The executors by their answer filed, admit the facts alleged against them, but claimed to be protected because that their account had been confirmed, they discharged, and F. M. Connelly, who had been their agent, had been appointed administrator de honis non, and had the money in his hands, and that he was the proper person to be called upon to account for it.</p> <p>After hearing, the court below made .the following decree :</p> <p>“ The only point raised on this record, is to the responsibility of Sanner, to account for the moneys received by the agent in fact, under the power of attorney, from Edward Connelly. It is not charged in this bill that the agent paid over this amount to his principal, nor is that the ground on-which the counsel insist upon having the account opened. They say that the money was received by F. M. Connelly, before Sanner filed his account; that the payment to the agent was a payment to the principal, and never having accounted to the estate for the sum thus received by him, he cannot now be excused from so doing, by the fact that the agent became his successor in the administration.</p> <p>“We think that, as the agent had the moneys in his hands, when he was appointed the successor of the accountant, who was ordered to pay over all moneys in his hands to his successor, held by him as administrator, that it was not necessary for the accountant to receive the amount with one hand and return it with the other, so as to have a formal paying-over; that he was acting so much within the decree, in permitting the successor to retain it. The money then belonged to the agent, as administrator, and if Sanner had commenced an action at law, to recover the money from his successor, the -decree would have defeated him. Even if the agent was the debtor- to the estate in that sum when he took upon himself the duties of the administration, he was legally authorized to hold his moneys as against his principal ; and although, as is alleged; Sanner was charged with the sum when he filed his account, or any-time before his discharge, the appointment of the agent to the duties of the principal, discharged that accountability. The proceedings are, therefore, dismissed.”</p> <p>From which decree petitioner appealed, and assigned the same for error.</p>

<p>Appeal from the decree of the Orphans’ Court of Westmoreland county.</p> <p>This case presents the following facts, to wit: The real estate of James Christy, which passed into partition, was valued at $10,033.36, and was divided into five shares. Afterwards, James Christy, a son, and Robert Borland, who had been married to a deceased daughter, and guardian of his minor child, presented their petition to the said court, alleging that a tract of land which had been conveyed by James' Christy, Sr., to his son William, and not included in the above valuation, was given to him as an advancement.</p> <p>John Armstrong, Jr., Esq., was appointed by the Orphans’ Court, “ a commissioner, to take testimony in regard to the advancements made by the said James Christy, deceased, to his children, and report the same to the court, with his opinion on the same.”</p> <p>Commissioner’s opinion. — “Erom the testimony, as taken before the commissioner, it does not appear that James Christy, the deceased, had settled upon his son William any portion of his real estate which could be regarded as an advancement.</p> <p>“ It is true, the evidence shows, that' the said James did sell and convey unto the said William, a certain tract of land in Salem township, containing 180 acres and 120 perches, by deed, dated the 6th day of October, 183-7. But the consideration mentioned in said deed was, ‘ natural love and affection for the said William Christy,’ his son, and ‘services rendered’ by said William, and, also, in consideration of ‘five hundred dollars,’ which would make William a purchaser, for a valuable and good consideration; and the commissioner is of opinion that the parol testimony is not clear and strong enough to change it into a gift, and impress upon it the qualifications of an advancement.</p> <p>“ But this case assumes another aspect. Erom the testimony of Mrs. Christy, it appears that $2000 of the money paid sheriff Nicolls for the purchase of the farm which James Christy after-wards sold to William, came from Mr. Stewart, her father, and the grandfather of William, ($1500 in the' lifetime of the said Stewart, and $500 after his death;) that the land was purchased for William, but the deed was taken in the name of the father, William being a minor at the time ; that William gave his bond for $500, the money-consideration in the deed, which he afterwards paid ; and that in buying the land from sheriff Nicolls, and conveying it to William, Ire was only carrying out her father’s intentions and hers, in regard to the money received from her father. From this it would appear that the land conveyed to William, (except 40 acres, amounting to $500, which was paid by William,) was not the estate of James Christy, the father, but was the estate of Mr. Stewart, the grandfather of the said William, and, therefore, could not be considered as an advancement made by the father.</p> <p>“ In Lentz v. Hertzog, 4 Wharton, Rep. 523, the Supreme Court say, that 1 a gift proceeding from other than the father, is placed by law on the same ground as a fortune acquired by the skill and industry of the child, and this, it is not pretended he is bound to bring into hotchpot.’</p> <p>“ The commissioner is, therefore, of opinion, that whether this land be regarded as the estate of the father, or of the grandfather, it cannot, in either case, be considered as an advancement : and, such being the case, the said William was not bound to bring this land into hotchpot before he could claim a share out of his father’s estate.”</p> <p>The evidence upon which the claim of advancement was made, is recapitulated in the opinion of the Supreme Court. The Orphans’ Court reversed this opinion of the commissioner, and adjudged that the land granted to William was an advancement, except $500 paid him.</p> <p>From this decree of the court, William Christy appeals, and assigns the same for error.</p>

<p>1. When a trustee renders professional services in compelling a guardian to perform his duty, he is entitled to such reasonable compensation as he would have paid, had he been obliged to employ counsel.</p> <p>2. For any extra services rendered by trustees, they are entitled to extra compensation, beyond the ordinary allowance for receipts and disbursements.</p> <p>3. A trustee is not chargeable with interest on a fund decreed to be paid to him by the Orphans’ Court, until it passes out of the jurisdiction of that court.</p> <p>4. The judgment of the Orphans’ Court, confirming the account of an executor, cannot be overhauled collaterally, and is conclusive in another court.</p> <p>5. A trustee to invest moneys, ought not to be allowed commissions on each temporary loan he may see proper to make, unless the circumstances of the case, and interests of the cestui que trust indicate this course of procedure.</p> <p>6. It is the duty of trustees under a marriage settlement, for the sole and separate use of the wife, to protect the estate from both her husband and herself</p> <p>7. When trustees have acted in good faith, and voluntarily come into court with their account, the costs must be paid out of the trust fund, and not by the trustees.</p>

<p>Error to the Court of Common Pleas of Fayette county.</p> <p>The plaintiff in error was defendant below.</p> <p>Samuel Page and Mary Shank were married in April, 1817, and in July following, the wife gave birth to Mary, now wife of William Dennison, the present defendant in error. Samuel Page disclaimed being the father of the child, at the time of its birth, and in a few days it was removed to its grandfather’s, and reared by him, and was never recognized by Page as his child. Samuel and Mary Page had other children. Subsequent to the decease of Samuel, these other children commenced proceedings in the Orphans’ Court of Eayette county, for a partition of his real estate. Mary Dennison was not included in the proceedings, and aslced the court to be made a party to the proceedings. This the plaintiffs’ in error objected to, and gave for reason that she was not the legitimate child of Samuel Page, and the Orphans’ Court sent this issue to the Common Pleas, to determine whether the said Mary Dennison was the legitimate child and heir-at-law of the said Samuel Page. On the trial of this issue, the plaintiff in error offered to prove, by Mary Page, widow of Samuel Page, and mother of Mary Dennison, that she, the said Mary Dennison, was begotten by a man by the name of Rist, before her marriage with Samuel Page, and born about three months after said marriage, and that her deceased husband, Samuel Page, was not the father of said Mary Dennison. To this testimony defendant in error objected, and the court, Gilmore, P., sustained the objection, and overruled the evidence; which is the error complained of here, and raises the only point in the case.</p>

Error, to the Court of Common Pleas of Qrawford county. This was an application by Mrs. Richards for a divorce a mensa et thoro and allowance of alimony. The parties were married on the 18th of April, 1850, and lived together till the 24th of April, 1854, when the wife left the husband’s habitation without his consent, taking with her their infant, about two months old.

This was an amicable submission, in writing, to arbitration. The submission provided that the arbitrators “shall make a statement of the matters and amounts between the parties on the principle of partnership.” The arbitrators did not make the statement contemplated by the submission, but W. A. Williams, one of the arbitrators, made a statement as the arbitration proceeded. The closing entry wras made on the day the award was made.

John Fullwood was an inn-keeper in Greensburgh, and indebted to Alexander Guffey and others, so as to render him unable to pay all his creditors. This was in 1851. The plaintiff, Guffey, sent his son, in the fall of-that year, up to Greensburgh, to see Borland, and tell him that he had heard that he was about to buy, or had bought, Fullwood out, and that he wanted him to save his debt of one or two hundred dollars.

<p>Error to the Court of Common Pleas of Greene county.</p> <p>This was an action of ejectment for sixty-seven acres of land, —a gore — in Wayne township: but the opinion in this court being entirely on the subject of practice, the facts are omitted, tbe opinion being sufficiently explanatory of itself.</p>

This was an action of debt by Thomas Bail, against Samuel Smouse, upon agreement in writing. Tbe facts of tbe case were as follows: Bail sold his blacksmith shop, tools, lease, &c., to Smouse, for $150.

This action was brought by Nathaniel Paul, against David Kennedy, and Spicer Roberts, (who were executors of David Kennedy, deceased, for an alleged breach of contract.

<p>Appeal from the decree of the Court of Common Pleas of Allegheny county.</p> <p>In 1853, Seaife, Atkinson & Okely, made a general assignment for the benefit of creditors. November 11, 1854, the assignee filed his account, which was confirmed and referred to an auditor, to make distribution of the fund amongst creditors.</p> <p>Long before the assignment, the assignors had purchased real estate from Jane Sample and J. W. Biddle, giving separate mortgages to each, to secure portions- of the purchase-money. Afterwards, and before the assignment, they gave a mortgage on the same property to J. & D. E. Park. After the assignment, the Messrs. Park issued a scire facias upon their mortgage, obtained judgment, issued execution, sold the premises, and became the purchasers at the sheriff’s sale. Subsequently, they (being at the time owners of the land, subject to the payment of the encumbrances held by Sample and Biddle,) paid their several claims, took .assignments, and brought forward these mortgages as claims against the assets in the hands of the assignee. The auditor allowed-the claim, and the court confirmed the report of which appellants complain.</p>

The plaintiffs in error were defendants below. The plaintiff below, Mrs. Elizabeth D. Stevenson, was the assignee of a mortgage given by defendants below, on the property of the wife, to secure the debt of the husband, in which was contained a proviso, that in case of a specified default, a scire facias might at once issue for the recovery of the whole debt due and to become due, and the costs of collection.

<p>Error to tbe Court of Common Pleas of Westmoreland county.</p> <p>This was an action to determine the ownership of the personal estate of Henry Jack, deceased. Henry Jack, by will, dated May 7, 1829, devised all his property, or estate, whether real, personal, or mixed, to his brothers, “ Matthew, William and Wilson Jack, as joint tenants, and to the survivors and survivor of them and the heirs of the said survivor; to be assignable by my said brothers, or their survivors, at any time, or in any manner, they think proper; provided the said brothers, or their survivors, shall all, or both, if one be dead, assent to such assignment; but the survivor of them may assign and convey, or devise, at his pleasure,” with some restrictions as to certain persons.</p>

<p>Error to the Court of Common Pleas of Westmoreland county.</p> <p>In 1838 or 1839, Thomas Wible entered into a contract with Abraham Horbach, for the purchase of the land in dispute, and, on the 31st of March, 1842, obtained a deed from him. Thomas Wible died intestate in the year 1850, his wife died in 1852, and his son William, under whom defendants claimed, in 1853. Thomas Wible left a widow and issue four children, to wit : Henry, Mrs. Rue, Mrs. Rice, and William, all of whom, except William, had left home for many years before the father’s death. William always resided with his father and mother, and worked for them till he moved on the land in dispute. At the time Thomas Wible purchased the Horbach farm, (the one in dispute,) he resided on a farm he owned in Unity Township, about six miles from the Horbach place, and William resided on the same farm with his family.</p> <p>It was admitted in the court below, in all stages of the cause, that Thomas Wible had bought the land in dispute for his son William; that he intended William should have it after his death, and that he had signified this to a great many people, no doubt, at different times. But, along with the admission, it was asserted, and shown, that it was also the intention of Thomas Wible to remain the owner till his death; that he went into the possession himself about a year after he had put William on it; that he continued in possession until his death; that during this time, the old man, as well as William, made improvements, each paying one-half for the new house, and each paying for his own kitchen. And, when they built the new house, each made windows in his own end of it to suit himself, and not like to one another. William took the proceeds of the farm, and paid the taxes; it was assessed in the name of William. After the death of Thomas Wible, his son Henry presented a petition to the Orphans’ Court for the partition or valuation of the land, and an inquest was awarded on the 17th February, 1851, and the land appraised at $34.75 per acre. At May term, William Wible presented to the court his affidavit, in which he asserted his claim to the land, under a parol gift from his father, denying that Thomas Wible died seised. To determine the right, the Orphans’ Court ordered that an amicable action of ejectment be entered, in which Henry Wible and others should be plaintiffs, and William Wible defendant. This issue was tried, and determined in favor of the defendant, William Wible. The plaintiffs’ counsel, inter alia, requested the court to charge :</p> <p>“ 3. That William Wible, not having continued in the exclusive possession, after the alleged gift of Hie land to him, leaves the case within the Statute of Frauds, ajfe the plaintiffs are entitled to recover.</p> <p>“ 4. That in this case the improvements can be compensated in damages, if their value exceeds the' annual value of the land; and, therefore, the plaintiffs are entitled to recover.</p> <p>“ 5. That all the evidence in this case, supposing it true, fails to create in the defendants such an equity as would take the case out of the Statute of Frauds, and the plaintiffs are entitled to recover.”</p> <p>To which the court, Buffington, P., answered as follows :</p> <p>“ 3.. This point is answered in the affirmative, as all the evidence shows a joint possession for some eight or nine years before the old man’s death, an expenditure of money by both in improvements, and dying in possession by the father.</p> <p>'“4. This point is answered in the affirmative, that the improvements may be compensated, if they are not already, out of the profits of the land.</p> <p>“ 5. This point is answered in the affirmative. Taking all the . facts given in evidence to be true, and proved to the satisfaction of the jury, it is the opinion of the court that they do not present such a case as avoids the operation of the Statute of Frauds, or that a chancellor would decree a conveyance ; and, for these reasons, the plaintiffs are entitled to recover.”</p> <p>The foregoing answers were the errors complained of.</p>

Ejectment for five acres of land in Coneaut township, Erie county. Plea “ not guilty,” and verdict for defendant. On the trial, the plaintiff showed title in the land. The land in controversy was claimed to be on the north end of land before conveyed by plaintiff to defendant. It had never been cleared and cultivated. Sugar maples on it had been tapped, and the sap boiled a.t another place for several years, by permission from the plaintiff.

In Equity. — Bill for an injunction against respondents to prevent their using their railroad across the common , in Allegheny city.

<p>1. When the law authorizes a road to be made, it authorizes the taking of the land needed for the purpose, though it should not expressly say so.</p> <p>2. When a law authorizes the erection of a bridge, it authorized the taking of land for its abutments, when compensation is provided for, without express terms to that effect.</p> <p>3. The necessary incidents of an authority expressly granted, need not be themselves expressed.</p>

In Equity. — The bill of Philip Mechling, and others, was presented to the Supreme Court at Pittsburgh, on the 5th of Nov., A. D., 1856, praying for a preliminary injunction to restrain the Kittanning Bridge Company from obstructing Water and Market streets, in the Borough of Kittanning, and also to restrain said company from obstructing an ancient public road or highway, leading from the mouth of Market street in said borough, down the bank of the Allegheny river, and…

<p>Ooram: Woodward, J., sitting at Nisi Prius.</p> <p>This was an action brought by James C. Wheeden in the Supreme Court of Pennsylvania against the Camden and Amboy Railroad and Transportation Company — a corporation created by the laws of the State of New Jersey, and located and doing business in said States. Some of the members of the corporation were citizens of Pennsylvania, and it had an office in said State.</p> <p>Defendants filed their petition under the Act of 1789, setting forth that the plaintiff was a citizen of Pennsylvania, and that the defendant was a citizen of New Jersey, and moved the court to remove the record of this case into the Circuit Court of the United States for the Eastern District of Pennsylvania. An answer was filed by the plaintiff, and counter affidavits by the defendants. The facts very fully appear in the opinion of the court.</p>

E'rror. to the Court of Common Pleas of Fayette county. Uriah Springer purchased the land in controversy, at commissioner’s sale for taxes, in the county of Fayette, made in June, 1832. It was called the William Arr tract. Mr. Springer transferred this tract to James Piper, Esq., for ¡¡>8.65, by assignment, on the back of the commissioner’s deed.

Appeal by Robert 0. Walker, administrator of the estate of John Walker, Sr., deceased, from the decree of the Orphans’ Court of Allegheny county. On the first day, of November, A. D. 1856, Robert 0. Walker, duly appointed administrator of John Walker, Senior, made application by petition to the. Orphans’ Court of Allegheny county, for authority to sell the real estate of John Walker, Sr., for the payment-of debts.

<p>Error to the Common Pleas of Allegheny county.</p> <p>William Ward obtained judgment before Alderman Heisley, of Pittsburgh, against Michael Messiek, as principal, and Jackson Jeffrey, as bail, for $20 debt, and costs, for house rent. Jeffrey appealed to the Common Pleas. By consent of attorneys, in open court, the matter was referred to arbitrators, on whose report, judgment to be entered by the prothonotary. The words, “without exception or appeal,” were in the submission, as first written, but afterwards erased therefrom. The arbitrators awarded fof plaintiff, and Jeffrey appealed therefrom. On motion, and after rule to show cause granted, the court set aside the appeal, and entered judgment on the award, for the following reasons, given by the court, M‘Olure, J.:</p> <p>“ This reference was not under the compulsory arbitration law, where the right of appeal is reserved in all cases; nor is the award, under a voluntary submission at common law; but it is made under the act of assembly, entitled, ‘ Of Voluntary Arbitrations.’ Brightly, 42. The reference was under sec. 3, by consent to a rule of court for referring. In the reference, the words, ‘without exception or appeal,’ were expunged by con sent of counsel. The award has the effect of a special verdict. Section 3. The act provides that the losing party may except, for certain enumerated causes, and for none other. Here, no exceptions have arisen, and none were made. The act confers no power of appeal, nor can any striking out of words, or altering the ordinary phraseology of a submission confer it. You may waive your right of exception, but you cannot create a legal right to appeal. We are governed in all things by the statutes.”</p> <p>The decision of the court was assigned for error.</p>

The plaintiffs in error were defendants below. This was an action of debt commenced before Wm. Symmes, Esq., on the 6th June, 1856, by the burgess and town council of the borough of Birmingham, against David Chess, Robert Wilson and Thompson Hull, to recover $6 license on three one-horse carts, and penalty of $5, for violation of the hereinafter recited ordinance of said borough.

<p>Error, to the Common Pleas of Orawford county.</p> <p>Edward Herrington brought an action of debt against Hiram Steele, before a justice of the peace, and the case was afterwards carried by appeal to the Common Pleas. Plaintiff entered a rule of reference under the Compulsory Act, and served copy on defendant’s attorney, providing for the choosing of arbitrators, on the 23d of August, 1856, at 1 o’clock, p. m. At the time appointed, defendant or his attorney not appearing, arbitrators Were chosen according to the following entry .on the back of the rule, signed by plaintiff’s attorney and the prothonotary:</p> <p>“And now, to wit, August 23,1856, past 1 o’clock, p. M., and not 2 p. M., plaintiff by his attorney present, and the defendant not appearing by self or attorney, due proof of the service of within rule on S. N. Pettis, attorney for defendant, having been made, the prothonotary appearing for defendant, fixes the number of arbitrators at three, and nominates for him, and agrees with the attorney for plaintiff, on Bailey Courtney, T. J. Limber and Thomas Clempson, as arbitrators in this case; and the prothonotary fixes the day of trial Tuesday, the 9th day of September next, at 1 o’clock, p. M. of said day, at the court house in Meadville.”</p> <p>Due notice of the time and place of meeting of the arbitrators was served on defendant personally, on the 26th of August. September 9th, arbitrators met and rendered award for plaintiff, setting forth that “ the defendant neither by self nor attorney Was present.” To this award, defendant’s attorney filed exceptions, alleging: 1. The arbitrators were illegally Appointed. 2. Want of sufficient notice. 3. General errors. The court dismissed the exceptions, and confirmed the award.</p>

The Allegheny Yalley Railroad Company, by their solicitors, petitioned the Quarter Sessions on the 19th of September, 1853, for the appointment of viewers to view, vacate, and supply so much of the public road leading from Kittanning to the Riskiminetas river as lies between Kittanning and Appleby Manor. Same day viewers were appointed and ordered to report to the present sessions.

J. M. Couch and J. M. Orr were indebted to James Woods in the sum of $825; to secure the payment of which they made and delivered to him their three promissory notes, dated respec.tively the 20th November, 1849 : the first for $125, payable 1st • of April, 1850 ; the second for $100, payable the 1st of June, .1850; and the third for $100, payable the 1st of September, 1850.

<p>1. The condition annexed to a recovery in an ejectment for purchase-money, is, that upon the performance of the condition, the recovery shall be released, and not the title to the land.</p> <p>2. In an ejectment to enforce the payment of an instalment of the purchase-money, where a conditional recovery is had, and the money paid in accordance with the finding, the title still remains in the plaintiff, as a security for the payment of the unpaid instalment.</p> <p>3. Where a conditional recovery in ejectment comprises the whole of the purchase-money, upon its payment the court will, by virtue of its equity powers, interpose and compel the plaintiff to convey the title in fee, according to the contract.</p> <p>4. A conditional recovery in ejectment for the payment of one instalment of the purchase-money of real estate, is no bar to an action on a future instalment.</p>

<p>1. The Supreme Oourt have jurisdiction to review a proceeding for contempt in the Common Pleas.</p> <p>2. Every fact found by a court, in a proceeding f<?r contempt, is to be taken as true, and every intendment is to be made in favor of its record, if it appears within the jurisdiction of the court.</p> <p>3. A failure on the part of a witness to appear before an examiner, in obedience to a subpama, is not a contempt of court, but a contempt of the process of the law, for which the examiner is entrusted by the law with the power to punish.</p> <p>4. A witness, in contempt for not obeying a subpoena, can only be punished by fine.</p> <p>5. A lawyer, in contempt of the process of the law,'by neglecting'to appear before an examiner to testify, cannot be punished by suspending him from his professional functions.</p>

The plaintiff in error was defendant below. This was a scire facias sur recognizance in foreign attachment.

<p>1. At common law, the bond of a married woman, either with or without a warrant of attorney to confess judgment thereon, was absolutely void.</p> <p>2. The Act of 11th April, 1848, does not remove the disability of the wife, resulting from the marriage contract, to bind herself by bond.</p> <p>3. The provision in the Married Woman’s Act of 11th April, 1848, that it shall not be construed to protect her property from liability for debts contracted by herself, has reference only to debts contracted before her marriage.</p> <p>‘ 4. A debt contracted by a feme covert, for necessaries for the maintenance of her family, is valid; but a bond given, in satisfaction for such a debt, is not.</p> <p>5. The bond of a feme covert is not aided by her written consent, endorsed on the bond, and acknowledged before a judge of the Court of Common Pleas.</p>

<p>1. Previously to the Act of 1848, the receipt by the husband of the wife’s dioses in action, was presumed to be a reduction of them to his own possession, unless countervailed by proof of a “ positive, precise, clear, and consistent" intention to the contrary at the time of so doing.</p> <p>2. If the husband received the wife’s money before the Act of 1848, it cannot now be recovered from the husband’s estate, upon a contract afterwards made with the wife.</p> <p>3. A contract by the husband with his wife, to repay her money he had received from her before the xYct of 1848, is void for want of parties as well as consideration.</p> <p>4. A receipt of the wife's money by the husband, since the Act of 1848, is presumed to have been for her.</p> <p>5. So complete is the wife’s control over her money, since the Act of 1848, that she may loan it to her husband, and his estate would be compelled to repay it.</p> <p>6. Since the Act of 1848, if the husband, by the wife’s direction, expends her money in a particular manner, for her benefit and the comfort of her family, she can neither legally nor equitably recover it from his estate.</p>

The plaintiff in error was defendant below. The plaintiff below is an insurance company, chartered by and under the laws of the State of Ohio, located and doing business at Painesville, in the county of Lake, in said State. C. S. French was employed by the company as its agent to travel, solicit, and take applications for insurance of property to be insured, in the State of Ohio, and in Erie county, Pennsylvania, in the summer and fall of 1850.

<p>' 1. A killing, to constitute murder in the first degree, without the specific intent to take life, must be clearly shown by the prosecution to have occurred in the performance of such acts as establish clearly an attempt to perpetrate arson, rape, robbery, or burglary.</p> <p>2. To constitute a burglarious entering of a house an attempt to commit a rape, the intent must be shown to have existed at the moment of entering.</p> <p>3. A prisoner is not to be affected by the act of another, unless a common purpose to do the act attempted was shown to exist between the two, for it is only in such cases that the act of one shall be deemed the act of all.</p> <p>4. Acts axe necessary to constitute an attempt, and an attempt to commit a rape is an ineffectual offer by force, to have carnal connection.</p> <p>5. To constitute murder in the first degree, where the killing happened in an attempt to perpetrate a rape, the attempt must be actual, not constructive.</p> <p>6. If the prisoner and his companions were intoxicated, and there was no wilful and deliberate intention to kill, but life was taken by a blow inflicted with air iron bar, suddenly caught up on a sudden quarrel, it was not murder in the first degree, unless the killing was in an attempt to commit a rape.</p> <p>7. If the facts which attend the killing do not constitute murder in the first degree, it is deemed to be murder in the second degree.</p> <p>8. Where a killing has been done, but not in the perpetration or attempt to perpetrate any of the felonies enumerated in the Act of 1794, there must have been a deliberate, settled purpose, a disposition of mind leading its victim into murder, all aware of its wicked pursuit and intent upon the result, to constitute it murder in the first degree.</p>

<p>Error, to the Court of Common Pleas of Westmoreland county.</p> <p>Ejectment by plaintiff in error, for forty acres of land in Franklin Township.</p> <p>This case was once before in this court, brought by the other party; a report of which will be found, ante, 150.</p> <p>The plaintiff in this case is the executor of Anthony Ament, deceased, to whom power was given in the will to sell. Ament claimed under Euphan Moorhead, the warrantee. On the 26th June, 1786, Euphan Moorhead obtained a warrant for three hundred acres, including an improvement interest from 1st of March, 1776, on which a survey was made on 24th of May, 1793, wrhich embraces the land in dispute. The title of Moorhead in 1830 was vested in Anthony Ament by purchase, who at that time took the possession and continued it till his death and by those claiming under him ever since. The landlord of the defendant owned a tract of land adjoining the Moorhead survey, called the breast-work farm, upon which his tenants lived for sixty or seventy years, between which tracts there was no interference, but bounded by each other. In 1788, Eli Coulter, the owner of the breast-work tract took out a warrant for forty acres, and had a survey made on it inside of the Moorhead survey, and along the line between the Moorhead and the breast-work survey. This survey was never returned. In 1799 or 1800, the tenants on the breast-work farm cleared over the line of the Moorhead survey about five acres, being an extension of the field on the breastwork place, and continued to occupy it as part of the field ever since. No part of the land in the survey on the forty acre warrant was ever fenced, except the five acres, nor was there any other improvements on it up to the time of the bringing of this suit, nor was there ever any residence on any part of it by the owner of the forty acre warrant or his tenants. In 1816, Moor-head leased his tract to Wigle, who made considerable improvements. This possession by Moorhead’s tenants was kept up till 1830, when he sold to Ament, by whom, and those claiming under him, possession has been kept up ever since.</p> <p>The defendant now claims not only the five acres cleared, but all the unimproved land on the Moorhead survey, which is embraced within the line run for the forty acre warrant, by virtue of the Statute of Limitations; and whether or not this defence will "avail him is the question in this case.</p> <p>On-the trial, plaintiff’s counsel requested the court to charge:</p> <p>“That the evidence in the case shows that the tenants of Moor-head entered on the tract of land embraced within his lines in 1816 or .1817, and continued to reside thereon till 1831), when he sold to Ament, and Ament and his heirs have, continued the possession since; that under these circumstances, the survey made by the owner of the breast-work tract, and extending his clearing over the line of the Moorhead survey to the extent of five acres in 1799, and such use of the woodland as he has proved j will not protect him a-s to any part of the land in dispute, except that which was cleared and cultivated by him for twenty-one years befqre suit brought, and the plaintiff is entitled to the residue'.”</p> <p>The court, Eüeeington, P., instructed the jury, inter alia, as follow's:—</p> <p>In answer to the point:</p> <p>“We decline to instruct the jury as requested in this point, and say to the jury, that if the defendant or those under whom he claims, entered on the land in dispute under a colorable title or under the warrant of 31st March, 1788, by clearing land amounting to some five acres, and used the residue of the land in dispute for timber, and cut and used it for fencing or other purposes, up to the boundaries of the land in dispute, and used and occupied it as farmers usually oceupy their woodland — and this possession of the clear land and use of the woodland was continued, and exclusive for twenty-one years — such possession would give title by the Statute of Limitations, notwithstanding there was no actual residence on the part in dispute; and it is immaterial whether the timber cut on the land in dispute was used on that land entirely, or partly there and partly on the residue of the land.”</p> <p>And in the general charge:</p> <p>“Where there is an actual, notorious and visible occupancy on the land in dispute by the younger claim, and thus displacing the constructive possession of the elder title, the question is, how far this actual possession extends. Is it confined to the parts actually fenced and cultivated, or does it extend to .the-limits of the color-able claim ? There being a notorious possession on part, so as to apprise the owner that he was disseised, it becomes then a question as to the extent of the actual possession on the one hand and the disseisin on the other. If the holder of the younger claim takes actual possession of a part of the interference under a color-able claim to the whole, and does claim to hold and possess the whole, and fences and cultivates a considerable portion, as in this case, five or six acres, and occupies and uses the wmodland as farmers usually do, by cutting timber for rails, fire-wood, buildings, &c., as needed, and continues thus to use, occupy and claim for a period of twenty-one years adversely to the owner, the court are of opinion that this is such an actual possession of the whole, as would displace the constructive possession of the owner, and would be available to protect the occupant under the statute.”</p> <p>Verdict for defendant.</p> <p>The answer to the point and part of the charge above given were the errors complained of.</p>