Volume 1 — Miles's Pennsylvania Reports

THIS was an action on the case to March term 1833, No. 431. There was an award of arbitrators in favour of the plaintiff for 230 dollars 83 cents. The defendant appealed ; and on the trial before the jury examined witnesses who had not been called before the arbitrators. There was a verdict for the plaintiff for 82 dollars 87 cents, upon which judgment was entered.

THIS was a rule on the plaintiff to show cause why a certain judgment with costs in the court of common pleas of December term 1834, No. 267, in favour of the defendant, against the plaintiff, should not be set off against the judgment and costs in this case. The judgment in this court was entered on an award of arbitrators on the 27th of September 1834, for 212 dollars 1 cent, in an action to September term 1834, No. 511.

THIS action was originally instituted by capias to December terra 1826. October 8th, 1828; judgment was entered for the plaintiff de bonis ; amount to be settled by attorneys. June 3d, 1829 ; the amount of the judgment was settled at 3858 dollars 20 cents, subject to defendant’s discharge under the insolvent laws. A fieri facias issued on this judgment to September term 1829, and was returned nulla bona.

<p> Rule to show cause why an exoneretur should not be entered on the bailpiece. </p> <p>Where the prothonotary enters “judgment nisi” on a verdict,it is not a judgment on which the defendant’s discharge under the insolvent law will operate.</p> <p>' Such discharge does not apply to a cause of action founded on a tort, unless judgment has been rendered against the defendant previous to his discharge.</p> <p>After verdict, no rule or application for leave to enter judgment is necessary; hut after the lapse of the period granted for a motion for new trial, or in arrest of judgment, should no such motion be made or pending, the prevailing party, on payment of the jury fee, is entitled to have judgment marked by the prothonotary absolutely.</p>

THIS cause was tried before Stroud, J. A verdict was found for the defendant with a certificate that the plaintiff was indebted to the defendant in the sum of 779 dollars and II cents. On the trial, the defendant, who liad appealed from an award of arbitrators, offered in evidence certain documents.

THIS cause was referred, under the act of the 20th of March 1810, to James Harper, S. M. Solomon and Abraham Okie. The rule was entered by the plains iff on the 8th clay of November 1834. At (he day appointed for the mee!mg of the arbitrators, December 4th, 1S34, two of them, air Solomon and Mr Okie, met and were duly qualified, and the parties being piescm, they adjourned on account of the absence of Sir iltirper.

THIS was a special verdict of a jury. It is deemed unnecessary to state it at length, as sufficient appears in the opinion of the court to present the point decided.

THIS was a rule to show cause why a sheriff’s sale of a lot of ground on the south side of Haydock street, in the Northern Liberties, between Front and Canal streels, containing in front eighty feet, and in depth sixty-seven feet, more or less, should not be set aside, 1 Broicne’s Rep. 187 ;-4 Yeales 203; 2 Penns. Rep. 240; 2 Venir. 352 ; 2 Yeales 466 ; 2 Binn. 218. 9 Serg. & Rawle 156; Purd. Dig. 292.

THIS was an action brought by the plaintiff as surviving partner of the firm of Blount & Jackson, against the defendant, as an attorney at law, for negligence. The declaration is in assumpsit, founded on a retainer by Blount & Jackson of the defendant to bring, prosecute and conduct an action of trespass on the case, &c., on their behalf, against Snowden & Wagner of the city of Philadelphia.

THIS was an action on a promissory note, drawn by George Emerick, in favour of, and indorsed by the defendant, dated August 18lh, 1832, for 548 dollars 42 cents, at sixty days, duly protested at maturity for non payment.

THIS was an action on the case to recover damages for the loss of a horse, occasioned by the negligence of the defendant, tried before Stroud, J. Upon the trial the following facts appeared. The defendant was a practising physician. On the day the injury occurred, while making a professional visit, he left his horse and gig in a lane about ten yards from the door of the house in which his patient was.

THOMAS Macquart having died intestate, letters of administration of his personal estate were granted to his widow, Antoinette Macquart, one of the above named defendants, who gave bond in the usual form, dated July 12th, 1826, in the.penal sum of 2000 dollars, with Stephen Gerin and Henry Ducommun, the other defendants, as her sureties.

THIS case was argued by Jones, for plaintiff; and Purdon, for defendant; and the opinion of the Court, which, being full, renders any further statement of the case unnecessary, was delivered by

<p>THIS was a summons in partition. The writ was duly served, and so returned. The defendant appeared. The plaintiff bad not filed a declaration.</p> <p>moved for a judgment quod partitio fiat, under the act of the 7th of April 1807, sect. 1, which provides, that, “upon appearance of the parties, or on default being made, the court shall proceed to examine the plaintiff’s title and quantity of his part or purpart, and accordingly as they shall find his right or purpart tobe, they shall give judgment,” &c. He contended that this clause vested in the court the power to proceed as is done in chancery.</p>

THIS was an action on the case, brought by Josiah C. Skinner, administrator of the goods, &e., of his deceased wife, Charlotte Skinner, against Thomas Bradford, Jan., surviving trustee under the will of James Darrach deceased.

IN this case a writ of replevin had issued to replevy certain goods therein named. There were other writs of replevin against the defendant. These writs were delivered to Benjamin Duncan, sheriff, and security in due form tendered him.

THE facts of this case were these, viz.: On the 7th of May 1823, the plaintiff obtained judgment in this case, and on the same day sued out a fieri facias, which was indorsed, real debt 300 dollars, with certain interest, and costs 12 dollars 18 cents. The sheriff made return to this writ that he had levied on certain personal property, and sold the same for 125 dollars 64 cents.

THE decision in this case was upon the following facts, viz.: George Pepper issued a capias against William Taylor, on the 8th of April 1834, returnable to the May return day of March term 1834. Taylor obtained a discharge under the insolvent laws on the 16th of ApriL 1834, before which day, however, he had been arrested, and given bail to the sheriff, the present defendant, Doores, having executed the bond.

THE first count in the declaration filed was special, and was in these words : “For that whereas heretofore, to wit on the 24ih day of February, Á.

ON the 18th of July 1835, a writ of domestic attachment was obtained in this case, upon the following' affidavit: — “James Wray, one of the above named plaintiffs, being duly sworn, says, that Henry Gilmore, the defendant-above named, is now justly and truly indebted to the said plaintiffs in the sum of 148 dollars 18 cents, for goods, wares and merchandize sold and delivered by them to the said defendant, and at his special instance and request.

THIS was a summons returnable to August return day of June term 183.5, The sheriff’s return was, “summoned, by serving a copy of this writ on the rector of the church personally.” The case came up on a rule to show cause why the service of the writ should not be set aside. The defendants were a corporation, under a charter of the state of New Jersey, the town of Swedesborough being in that state. contended, 1.

THIS was an action of debt upon a judgment obtained in the circuit court of the United Slates in Maryland.

<p> Rule to show cause why the alias fieri facias should not be set aside, </p> <p>Where a defendant has been surrendered by his special bail, and has given bond to take the benefit of the insolvent laws, the plaintiff may, nevertheless, issue a fieri facias, and levy on the defendant’s property.</p>

<p>THIS was an action of trespass vi et arniis, assault and battery, &c.</p> <p>on behalf of James Boyle, the guardian, obtained a rule to show cause why the summons should not be quashed. He had filed an affidavit of the said Boyle, stating that he did not authorize the suit; that he did not desire it to proceed in his name; that the minor had never informed him for what purpose it was broúght; that he knew nothing of it till inquired of by the defendant as to the cause of action ; and that he disclaimed all willingness and consent that the action should be carried on as above entitled, and desired that the summons might be quashed.</p> <p>On the return of the rale, on the 14th of December 1835, Brewster cited, 1 Phil. Ev. 49; Reeves’s Bom. Rel. 264, ch. 7; Cro. Jas. 640 ; Bigger v. Westles, 13 Serg. & Ramie 347.</p> <p>on behalf of the minor, opposed the rule. He pro-</p> <p>dueed a certificate from the clerk of the orphan’s court for this county, by which it appeared, that on the 24th of September 1835, the day on which this suit was commenced, upon the petition of Lawrence Hardy, a minor, above fourteen years of age, setting forth that he had been severely beaten and abused, and was desirous of instituting a suit for damages, but, had no guardian to take care of his person, he had made choice of James Boyle as guardian of his person, who was approved and appointed by the said orphan’s court.</p> <p>Authorities cited: Cro. Car. 161, 88; Hutton 32; 1 Bl. Com. 464 ; Cro. Jac. 640; Act of Assembly of 27th of March 1713, Purd. Dig. 669 ; 1 Dali. 136 ; Stiles’s Rep. 456 ; Bacon’s Jib., tit. Guardian, C, vol. 4 ; Hammond’s Dig. 313; 12 Mass. Rep. 16 ; Tidd’s Prac. 114.</p>

ON the 8th of November 1834, the plaintiff sued out a capias ad respondendum, returnable on the first Monday of December following, on which day, special bail was entered with the prolhonotary. March 13th, 1835, the plaintiff filed a statement of his cause of action, and on the same day entered a rule of reference under the compulsory arbitration act. It did not appear that arbitrators had been chosen.

THIS was an action of trover tried before Stroud, J. The verdict was for the plaintiff. The defendant moved for a new trial, which motion was argued by The facts are fully set forth in the opinions of the judges, which are placed in the order best calculated to present the history of the case.

THE facts were these. On the 12th of June 1835, a capias ad respondendum was issued in this case, returnable on the first Monday of July following. Upon this the defendant was arrested, and gave bail to the sheriff. On the 30th of June, the plaintiff filed his declaration, being assumpsit on a promissory note, a copy of which was filed at the same time. July 25th, on motion, judgment was entered for the plaintiff, for want of an affidavit of defence.

IN this case the plaintiff entered a rule of reference under the compulsory arbitration act of 1810; and having complied with the requisitions of the act in regard to notice to the adverse party, three arbitrators were duly chosen, and a day appointed for their meeting.

THIS was a rule to show cause why William M’Kinney and others, heirs of William Day, should not be permitted to appear and take defence in the name of the administratrix. produced a certified copy of the will of Jane Bowie, showing that Jane Day, in her individual right, was interested in the fund claimed from the estate of William Day ; and certain depositions, alleging that William M’Kinney and the other persons mentioned in the role, were the heirs of William Day, and had…

<p>THIS was on action of assumpsit. In 1821 the defendant wars In Scotland, and had some conversation with the plaintiff, which resulted in establishing the relation of principal and factor between them. On the 2d of October 1821, when defendant had returned to Philadelphia, a written correspondence commenced by a letter from the plaintiff, dated at Dundee, enclosing an invoice of a shipment of dry goods by the ship Tuscarora, and giving some general instructions. The correspondence was continued, and further shipments made. Some sales were effected, and bills of exchange remitted to Scotland. On the 27th of March 1822, the plaintiff wrote to the defendant as follows :</p> <p>“ If any of my goods are unsaleable with you, you may send a few bales to Baltimore or any of the neighbouring cities, if you think it advisable, taking care to put them in safe hands.”</p> <p>Under this authority, the defendant, on the 24th of September 1822, sent, on consignment, to James Young, at Boston, ten bales of linen goods belonging to the plaintiff.</p> <p>In July 1823, Young stopped payment, having paid over none of the proceeds of the sales of the goods thus consigned to him.</p> <p>The correspondence between the defendant and Young, was given in evidence.</p> <p>The defendant wrote no letter whatever to the plaintiff, from the time of the consignment to Young, until the 7th of May 1824, nine months after Young’s insolvency was known to defendant, except a letter of introduction of his nephew, David Arrott, in the summer of 1823, but which gave no information upon this subject. On the 7th of May 1824, the defendant, by letter, informed the plaintiff of the difficulties in regard to the Boston consignment. On the 21st of June 1824, the plaintiff, acknowledging the receipt of the letter of the 7th of May 1824, stated that he held the defendant responsible for the debt made in Boston. The defendant gave in evidence the deposition of David Arrott, taken on the 3d of October 1828, as follows:</p> <p>“ In the month of July 1823, he sailed for Europe from Philadelphia. For six years previously, he had lived with defendant, as his desk, and was intimately acquainted with his concerns. lie knew of several consignments to the defendant by the plaintiff, in the spring of 1822, and that defendant sent a part of said goods to Boston, and consigned them to James Young at that place for sale, the market being bad for the goods at Philadelphia. He sent at the same time to Young some of the goods of lhe plaintiff, and some goods which had been consigned to the defendant by David Lumgair. Deponent further sailh, that for a short time previous to his departure far Europe, as before stated, the defendant was constantly expecting to receive accounts of sales, and a remittance from James Young. On the day of deponent’s departure, or tfie day before, defendant received an account of sales, but no remittance. That the defendant gave this deponent particular instructions to see the plaintiff, and to inform him of the state of his consignment particularly, and of the sales which had been made at Boston, and gave deponent a short letter of introduction to the plaintiff, and a recommendation to Mr Brown, of deponent’s house, at New Orleans, which was just then established. That shortly after the deponent’s arrival in England, he went to Scotland, and in August or September 1823, he visited the plaintiff, at Dundee, and made him particularly acquainted with the state of his consignment, and of the sales made at Boston. The plaintiff inquired of deponent what prices the goods brought at Boston, and the deponent informed him. A good deal of conversation took place between the plaintiff and the deponent, but the plaintiff made no complaint or objection to the defendant’s having sent the goods to Boston for sale, nor to any other particular of the defendant’s conduct in the management of the business. That the deponent shortly after -went to England, and whilst there, he received a letter from the plaintiff inquiring of him, if he had heard from his uncle, the defendant, which letter the deponent answered, and in that letter, or verbally in a visit which he shortly afterwards made to Scotland again, he informed the plaintiff that he feared something had happened at Boston, as he heard incidentally, from a friend at New York, that his uncle liad passed hastily through that place, on his way to Boston.</p> <p>“ Cross-examined. The goods were sent to Boston in 1822. Mr Arrott received no regular account of sales until the sales were about to be closed. Deponent thinks he was advised of sales, as they were made, by letter, but no regular account current was forwarded until the close. When the deponent was at Dundee, he had no copy of account of sales from Young, and, of course, showed none to plaintiff. Deponent cannot say how many packages of goods had been sent, or how many he informed plaintiff had been sent. Deponent has not the letter from plaintiff to him. It is now in New Orleans, if in existence. Deponent sailed for Europe on the 20th of July 1823. About the time deponent went to Europe, he had established himself in business, and had left the defendant’s counting-house.”</p> <p>There was much evidence given by the defendant to prove, that immediately upon his hearing of Young’s failure, he had taken energetic, vigorous and prudent measures to secure the debt, but without success.</p> <p>The view taken by the court of the case, renders a further reference to this part of the testimony unnecessay, except so far as to state, that in 1826, long after plaintiff had given'notice to defendant of his holding defendant responsible for this debt, Young’s friends in Boston offered to the defendant, in full satisfaction of the whole debt of 1887 dollars 70 cents, the sum of 600 dollars, which, for want of authority so to compromise, the defendant declined.</p> <p>The facts in relation to a loss sustained on sales made by the defendant to John Folwell, as well as all additional matters essential to a ready comprehension of the important parts of the cause, are sufficiently given in the opinion of the court. The verdict was for the defendant, and the plaintiff moved for a new trial.</p> <p>in support of a a new trial. He cited : Harvey». Turner, 4 Rawle 231; I Cowen 661; 3 Johnson's Cases 36 ; 1 Livermore on Agency 368, 390; 4 Wash. C. C, Rep. 551 ; 3 Crunch 415 ; 1 Gall. 360; Paley on Agency 37; 2 Camp. 546 ; 3 Camp. 291 ; 1 Wash. C. C. Rep. 394, 445 ; 1 Camp. 411 ; 3 Wash. C. C. Rep. 151.</p> <p>who cited: 14 Serg. & Rawle 30; 12 Johns, Rep. 300, 306; 3 Cowen 283, 284; 2 Keble 78! ; 7 Bing. 101 ; 20 Eng. C. L. Rep. 62, 63 ; 3Af Aiolp. 767; 23 Eng. C. L. Rep. 182; 2 Kent's Comm. 297; 2 Russell 385; 3 Cond. Chan. Rep. 164 ; Wilks's Rep. 400; 2 Dali 60 ; 3 Maulé & Selw. 575 ; 1 Wash. C. a Rep. 445, 394 ; 6 Cowen 181 ; 6 Serg. & Rawle 290; 3 Buis. 95 ; 3 Term Rep. 56, 64; 5 M. & S. 63; 10 Eng. C. L. Rep. 145; 15 Serg. & Rawle 139, 140; Mechanics Bank v. JEnrp, 4 Rawle 384, 393 ; 15 Serg. & Rawle 29 ; I Rawle 130; Paley on Agency 38, 33 ; I Payne's Rep. 285 ; 2 Molloy 328, b. 3, eh. 8, sect. 4.</p>

<p>THIS was an action of slander, tried before Jones, J. The verdict was for tlie plaintiff, and the defendant moved for a new trial. The rule was argued at length by</p> <p>Authorities cited on the argument, were; Underwood v. Parke, 2 Strange 1200; Starkie on Slander 326; Kennedy v. Gregory, 1 Minn. 87; Morris v. Duane, 1 Binn. 90, note; Smith v, Bticeeker, 4 Rawle 295 ; Rules D. C., No. 36 ; Graham on New Trials; 3 Starkie’s Ev. {Metcalf) 1460; 2 Saunders’s PI. and Ev. 387, and cases therein cited; Leicester t>, Walter, 2 Camp. 251 ; Waithman v. Weaver, U. & R. 10, per Abbot, C. J.</p>

THE facts of the case were these. The only count in the declaration was indebitatus assumpsit for money had and received by the defendant for the plaintiff’s use. The evidence received on the trial was, that Job Butcher, the plaintiff’s testator, by indenture dated in August 178?, conveyed a lot of ground to Adam Metts in fee, reserving thereout, a rent charge of 12 dollars 48 cents, payable annually by Adam Metis, his heirs and assigns, for ever.

THIS case came up for trial by inspection of the record, upon the plaintiff’s replication of mil tiel record. The pleadings, so far as it is necessary to state them in order to comprehend the point decided, consisted : 1.

<p> Trial by inspection. </p> <p>To fix the special hail to the action, the capias ad, satisfaciendum against the original defendant, must be issued and delivered to the sheriff, four days, exclusive of Sunday, before the return day of such writ.</p>

THIS was a writ of replevin issued at the instance of English against Dalbrow under the following circumstances : SummcdU obtained judgment against, the defendant, Dalbrow, and issued a fieri facias, which was levied upon a light wagon in his possession.

THIS was a rule on the plaintiff to show cause why the fieri facias issued in this case should not be set aside. On the 11th of August 1835, the plaintiff indorsed a promissory note for 217 dollars 22 cents, payable six months after date, for the accommodation of the defendants, by whom it was immediately delivered to a third person, in discharge of a debt contracted by the defendants.

THIS was an action against the drawer of a promissory note, brought to the February return day of December term 1835. Within two weeks after the return of the original process, the plaintiff filed in the office of the prolhonotary. a copy of the note, under the 2d section of the act of the 28th of March 1835. On the 19th day of February 1836, the defendant filed an affidavit of defence.

THIS was an action of partition in which Dennis Sweeny was the plaintiff, and Owen Meany and others were the defendants. It was brought to have parted and divided between the parties, “ a certain full, equal and undivided moiety or half part” of certain real estate described in the writ; and the declaration followed the writ.

<p> Rule to show cause why the plaintiff should not pay double costs on the appeal. </p> <p>In replevin, where the defendu\t his hvowed tV rent m nrrear. evA the^e has been an award of arbitrators, uruhn sm- < -t 3"10, in lavour oí the avowant, the plaintiff, on appeal, is not compelled to pay double costs.</p>

THIS was an action on the case brought by Anthony M’Coy against John P. Kennedy, J. Biggs and Anthony Kennedy Col-boun, executors of the last will and testament of Anthony Kennedy deceased, who was then acting executor of Andrew Kennedy deceased.

<p>THIS case was tried before Jones, J. The nan. in assumpsit stated that the plaintiff, being the holder of a promissory note, dated Philadelphia, September 7, 1832, drawn by Joseph N. Goodrich in favour of and indorsed by Jacob Coats, for 105 dollars, payable thirty days after date, deposited it with the defendants for the purpose of having its amount collected, and that it might be proceeded in according to law, and in case of non payment by the drawer, that due notice might be promptly given to the indorser, averring that the defendants received the rióte and undertook to use all due diligence, care and attention, for the purpose of collecting it from the drawer and indorser, and in case it should not be paid at maturity by the drawer, undertook to give immediate notice to the indorser; averring also that on the 10th of October 1832 the note became due, and payment having been demanded of the drawer, by whom it was not paid, the defendants did not give or cause to be given immediate notice of non payment to the indorser, but wholly neglected, &c., whereby the indorser was discharged, &c., and the amount wholly lost 10 the plaintiff, who was obliged to pay the costs of an unsuccessful action in this court against the indorser.</p> <p>The action was for the recovery of the amount of the note with interest, and the expenses of prosecuting the unsuccessful action against the indorser.</p> <p>The plaintiff examined as witnesses Jacob Coats, Abraham Coats, Leonard Englebert and George Shars wood, Esq. The defendants read the depositions of Harriet Gouiran and Michael Gouiran, and examined James S. Farmer. Upon the testimony it appeared that the note in question was one given in renewal of a former note for the same amount, drawn and indorsed by the same parties, dated July 6, 1832, which being payable sixty days after date, fell due on the day of the date of the note in question. Jacob Coats, the in-dorser, was a justice of the peace, who lived in Third street near Tammany street. Joseph N. Goodrich, the drawer, was a tenant of his, who gave him the former note for the amount of certain rent for which he had been pressing him. Mr Jacob Coats gave the note to,his son, Abraham Coats, of the firm of Coats & Moore, jewellers, on the south side of Chestnut street, the first door above Sixth street, in order that the son might dispose of it. Abraham Coats sold it to Leonard Englebert, a broker, who bought it as agent for the plaintiff, Bellemire. Mr Englebert handed the note to Michael Gouiran, a jeweller in Chestnut street near Fourth street, who, as a friend of Mr Englebert, received it for the purpose of depositing it in bank for collection. Mr Gouiran kept an account in the Bank of Pennsylvania, and one in the Bank of the United States. He indorsed this first note and deposited it for collection in the Batik of Pennsylvania. On its maturity, not being paid within bank hours, the note was banded in the usual manner to the notary of the bank. The clerk of the notary presented it for payment at the store of the drawer, and was informed that he was out and had left no directions for its payment. The clerk, not knowing the indorser Coats, or his place of residence, called at the store of Michael Gouiran, the last indorser, by whom the note had been deposited in the bank. He there found Mrs Gouiran, the wife of Mr Gouiran, who was in the habit of attending his store. He handed her the notice of non payment, directed to her husband, and inquired of her for the address of Mr Coats, or where to leave the notice for Mr Coats. (It did not appear whether or not he mentioned the first name of Mr Coals.) She replied, In Chestnut street the first door above Sixth. The clerk went to the place thus designated, and seeing the name of Coats & Moore, went in and left the notice with a boy in the store, desiring him to hand it to Mr Coats.</p> <p>Oh the same evening, Mr Gouiran received the notice which had been left with his wife. Before that, she had told him that the notary’s clerk had been there and had asked for Mr Coats, and that she had directed him to the corner of Sixth and Chestnut streets. He was aware that the notary’s visit had reference to this note, and was at the same time aware that the name on the note was the name of the elder Mr Coats, the father of the young man at the corner of Sixth and Chestnut streets. After this, Mr Gouiran took the original note out of the Bank of Pennsylvania. It was renewed by the parties who gave the note now in question in lieu of it. The same broker, Mr Englebert, procured this second note from the drawer, got Mr Coats’s (senior) indorsement of it, and took it to Mr Gouiran, requesting him to deposit it in bank for collection, as before. Mr Gouiran did so, except that in this instance he deposited it in the Bank of the United States, instead of in the Bank of Pennsylvania. On the day of its maturity it lay over; and after bank hours, was handed in the usual manner to the notary, who happened to be the same person who was notary of the Bank of Pennsylvania. The note in question was handed to the same clerk to whom the former note had been delivered. Nobody had ever remonstrated with him as to the former notice, or the place of leaving it. When he received the note in question from the Bank of the United States, the same course was pursued with it as had been pursued with respect to the former note, except, that there was no repetition of the inquiry which had been made of Mrs Gouiran, in respect to the former one. After demand of and non payment by the drawer, the notice of non payment was left as before at the store of Mr Gouiran with Mrs Gouiran, and at Coats & Moore’s in Chestnut street above Sixth. No remonstrance or objection was afterwards made either to the notary or his clerk, nor to the Bank of the United States or its officers. The day after the note fell due, it was taken out of bank by Mr Gouiran, who, a day or two after it fell due, handed it to Mr Engle-bert, who, on the next day or the day after, called on Mr Coats the father, who refused to pay it on the ground of not having received due notice of non payment, but stated that there was a distress on the goods of the drawer, and if it produced money enough to pay the whole rent, including the amount of the note in question. the note should be paid out of the proceeds. The distress did not produce enough to pay the rent accrued after the rent for which the note was given. The drawer being insolvent, the present plaintiff sued the indorser Jacob Coats, and obtained an award of arbitrators for the amount of the note with interest. The defendant appealed, and upon the trial in court obtained a verdict in his favour, which the court refused to set aside, and upon which final judgment was afterwards entered for the defendant, who recovered his costs from the plaintiff. The witnesses, Mr and Mrs Gouiran, were not examined in the case against Coats. The plaintiff never gave to the Bank of the United States any notice of the institution or pendency of his suit against Coats, of which it did not appear that they had any knowledge, until the 16th of April 1834, which was some time after its final termination.</p> <p>In the course of the trial of the present case, it appeared that the Philadelphia Directory for the year 1831, contained the name and residence of Jacob Coats, justice of the peace, the indorser of the note in question, but did not contain the name or address of his son Abraham Coats, of the house of Coats & Moore, at whose store the notices were left as above mentioned.</p> <p>James S. Farmer, notary’s clerk, in his cross examination, testified as follows :</p> <p>“ When we receive a note for protest, and do not know where one of the parties lives, we inquire of the last indorser, because we always suppose he can give the best direction.</p> <p>***** “ Our first inquiry always is from the last in-dorser ; and when he does not know where a party lives, we look into the Directory. I do not look into the Directory when I know positively where a party lives, or am directed positively where to leave the notice. Had Mrs Gouiran told me she did not know where Mr Coats resided, I would have inquired elsewhere, or would have looked into the Directory. The Directory cannot be depended upon.” Being re-examined, he said, “An interleaved directory at the Bank of the United States is full of manuscript corrections. Acted eighteen years as the clerk of the notary. Nobody but myself acted during the whole of that time in serving notices, except perhaps for a day or two when I was sick.”</p> <p>Question by defendant’s counsel, — “ Was there any instance of irregularity or complaint other than the one in question, as to the service of notices during that period 1” Objected to by plaintiff’s counsel. Court sustain the objection. Defendants except</p> <p>Witness added : “ When we are directed to a particular place, we ascertain, by the direction, if the parly lives there.” * * * *</p> <p>* * * “According to the practice and usage of the business, the name of Coats & Moore, above (he door was a sufficient identification of the Mr Coats to whom I was directed.”</p> <p>He also testified, that notices in the city are never sealed ; the notices left at Mr Gcuimn’s, and at Coats & Moore’s, were partly written and partly printed, and were closed, but not sealed.</p> <p>The court charged the jury as follows:</p> <p>“ It would seem that Mr Gouiran acted gratuitously, as an agent to collect this note, and so did the Bank of the United States. The bank knew nobody but Gouiran. There is no evidence that either the bank or Gouiran received any compensation. It was probably otherwise with Engleberl, who was a broker. In the absence of testimony on this head, we must take the agency to have been gratuitous both as to the bank and as to Mr Gouiran.</p> <p>“ If you believe that Gouiran, knowing all that had taken place in respect to the delivery of notice as to the second note now in question, did, on the day after its maturity, take it out of the bank without any objection, I think that the plaintiff ought not to recover. The bank was authorized to take the directions of Gouiran, whom alone they knew as the holder of the note, and if he neglected to correct the error, but on the contrary, with knowledge of what had occurred, took it out of bank without objection, these facts would furnish a defence to the charge of negligence.</p> <p>“ But there is another position on which the defence takes stronger ground.</p> <p>“ If the bank undertook the collection of this note gratuitously, I think that they complied with their duty in delivering it to the notary to do what was usual in such cases. The defendants are not his sureties, and he, and not they, would be liable, if there were any negligence. In such cases, the agency of a notary is necessary, or at all events is proper. A certain number of notaries only are commissioned, and if they were all incompetent as officers, still the bank would have to choose among them. The notary is a public officer, who gives an official bond with sureties. He is not here, it is true, a judicial officer. On the other hand he is not perhaps, strictly or precisely speaking, in all respects a ministerial officer. His duties in some matters are more easily to be defined than in others. This matter of giving notices of the non payment of dishonoured notes, certainly falls within tire scope of his official duties, and he receives a compensation for his services in performing them. I have come to the conclusion, that if there was any neglect as to giving or not giving notice, the notary, and not the bank is the party liable.”</p> <p>Plaintiff excepts to the charge.</p> <p>Verdict for plaintiff for the amount of the note and Ínteres!, and the costs of the suit against Coats.</p> <p>The defendant moved and assigned the following reasons for a new trial.</p> <p>“ 1st. The verdict was against law and the charge of the court, because : 1. if the notice was not delivered, or was misdelivered, through neglect of the notary or his clerk, the notary, and not the defendants, was the party liable. 2. It was a defence to the charge of negligence on the part of the notary or of his clerk, that the latter acted conformably to directions given by the wife of the holder of the note, who, after full knowledge of what she had done, took the note out of bank the day after it fell due, without objecting to any thing that had occurred.</p> <p>“2d. The verdict was against law and evidence on the two points specified under the first reason, and also on the point of the effect of the indorser’s renewal of the former note, as a ratification of what had been done in respect to notice of its non payment.</p> <p>“ 3d. The court erred in refusing to permit the witness, Farmer, to testify whether, during the eighteen years in which he liad served notices for the same notary, there had occurred any other instance of irregularity or complaint than the one in question.”</p> <p>By agreement, “ the case was argued on (he questions arising upon the exception to evidence, and upon that part of the charge in which the jury were instructed that if there was neglect, the notary, and not the defendants, is the party liable.</p> <p>“Should the court be of opinion that the evidence was rightly overruled, and that the charge was incorrect in point of law, the verdict is not to be set aside, but the defendants are to have the benefit of an exception to such opinion of the court, as if it had been delivered in charge to the jury or the point had been reserved upon the trial.</p> <p>“ Should the court be of opinion that the charge was incorrect in point, of law, but the evidence improperly ovemtledy t.be verdict is to be set aside and a new trial awarded.</p> <p>“ Should the court be of opinion that the charge was correct in point of law, the verdict is to be set aside as having been rendered by mistake, and a verdict to be entered for the defendants, with liberty to the plaintiff to except, &c., as if the jury had found a verdict in conformity with the charge.”</p> <p>cited : Purd. Dig. 659 ; Brown v. The Philadelphia Bank, 6 Serg. & Rawle 486; 20 Johns. Rep. 383; 18 Johns. Rep. 239, 240 ; Mechanics Bank v. Earp, 4 Rawle 384.</p> <p>cited : 17Mass. Rep. 489; Nichols «.Webb, 8 Wheat. 331; 5 II. & J. 489; Jacobs's Law Did., til. Notary ; 2 Johns. Rep. 204, 206 ; 2 Watts's Rep. 141 ; 7 Wend. 160; 3 Cowen 662 ; 9 Wend. 48 ; 11 Wend. 273 ; 1 Wend. 219 ; 1 Peters's S. C. Rep. 31; 12 Mod. 488 ; 1 Salk. 18; 1 Lord Raym. 655 ; Cameron v. Reynolds, Cowp. 403; Vanwart v. Woolley, 10 Eng. Comm. L. Rep. 145; 2 II. & J. 393; 3 Wash. C. C. Rep. 338, 503 ; 1 Rawle 31; 6 Conn. Rep. 528.</p>

THIS was an action of debt; upon bond with condition that Richard Tichenor, one of the defendants, during his continuance in the office of deputy sheriff, should, without delay, serve and execute all writs and processes which came to his hands; and should, without delay, pay over all moneys that came to his hands, and should execute, perform and fulfil all trusts, obligations and duties to the office of deputy sheriff appertaining, and should keep harmless the plaintiff',…

<p>THIS was a case stated for the opinion of the court in the nature of a special verdict, in the words following, to wit:</p> <p>“ Sarah Forde, late of the city of Philadelphia, widow, died, having made her last will and testament, date;! the 10th of July 1830, and which was proven September 14th, 1834, whereof ¡-he constituted the defendants, Charles Keen and Aaron Kille executors {prout copy of said wall).</p> <p>“ Plaintiff issued a writ of foreign attachment against John B. Forde and Standish Forde, October 1st, 1832. December 1832, No. 207 (prout record of attachment and return).</p> <p>“ Scire facias issued September 26th, 1833, against the defendants, as garnishees, (prout the writ, return thereto and record) and interrogatories were filed and the defendants’ answers made (prout the same).</p> <p>“The administration account of the defendants was filed October 18th, 1833; referred to auditors, and subsequently settled {prout the same in the answers of the defendants).</p> <p>“Aaron Kille, one the defendants, died on the day of 1834.</p> <p>“ The question submitted for the opinion of the court is, whether the estate, goods, rights, chattels, credits and effects, or any of them, in the hands of said defendants, under the said will of Sarah Forde, were, at the time of issuing the attachment, properly attachable. Judgment to be given accordingly.”</p> <p>The following is a copy of the will referred to in the case stated, viz.:</p> <p>“ Be it remembered that I, Sarah Forde, of the city of Philadelphia, widow, &c. hereby make my last will and testament in the manner following ; that is to say,</p> <p>“ First, I will that all my just debts and funeral expenses be duly paid and satisfied.</p> <p>“ Item, I give and bequeath to my daughter, Ann Forde, a legacy or sum of 3000 dollars.</p> <p>“ Item, all the rest, residue, reversion and remainder of my estate, real and personal, whatsoever and wheresoever, I give, devise and bequeath in the manner following, that is to say : one full, equal, undivided sixth part thereof unto my daughter Eleanor Hansell, her heirs, executors and administrators for ever. One other sixth part thereof to my son Standish Forde, Ms heirs, executors and administrators for ever. One other sixth part thereof to my daughter Margaret Smith, her heirs, executors and administrators for ever. One other sixth part thereof to my son John Forde, his heirs, executors and administrators for ever. One oilier sixth part thereof to my daughter Ann Forde, her heirs, executors and administrators for ever; and the remaining one-sixth part thereof to my executors hereinafter named, in trust, for the use of my daughter Mary Poor and her heirs,</p> <p>“Item, I nominate and appoint my friends Charles Keen, of the county of Philadelphia, and Aaron Kille, of the city of Philadelphia, executors of this my last will and testament; and for the better division of my estate among my residuary devisees and legatees, I authorize and empower them, my said executors, to sell and dispose of my real estate, and to grant and convey the same to the purchaser or purchasers thereof, his, her or their heirs and assigns for ever, any thing hereinbefore contained to the contrary notwithstanding.</p> <p>“ Provided always, and it is my mind and will, that in the distribution of my estate my son Standish Forde shall be charged with a note given to the Insurance company of indorsed and</p> <p>paid by rnc for 616 dollars, with interest from the 26th day of May 1827, and with another note given to me for 755 dollars, with interest from ilie'-date of this my will, and deducted from his part and share of and in my said estate.</p> <p>“Lastly. [A revocation of all former wills.]”</p> <p>“ (Dated July 10th, 1830. Proved September 14th, 1832. Same day executors qualified.)”</p> <p>The writ of attachment -was,</p> <p>“Thomas Shewell a. Standish Forde and John B. Forde, To December term 1832, No. 207. Foreign attachment case. Bail 19,000 dollars. Exit 1st of October.”</p> <p>Writ indorsed — “Attach all and singular the messuages, lands, tenements and hereditaments, goods, chattels, rights, credits, effects, and estate real and personal, whatsoever, and wheresoever lying, and being in your bailiwick, of the defendants, and especially those which are devised to the said defendants by Sarah Forde, late of the city of Philadelphia deceased, widow, as appears by her last will and testament, dated July 10th, 1832, duly proved on the 14th of September, A. D. 1832, and remaining on file in the office of the register of wills at Philadelphia; and summon as garnishees Charles Keen and Aaron Kille, executors of said last will and testament, or any other person or persons in whose hands the same you shall find.”</p> <p>Return of sheriff to this writ. “'October 1st, 1832, Attached as within commanded all and singular the lands, messuages and tenements of the defendants in the county of Philadelphia, and left a copy of attachment at the office of the recorder of deeds for the city and county of Philadelphia, and further attached all the goods, chattels, rights, estate, credits and efleets of the defendants in the hands of Charles Keen and Aaron Idle, executors of the last will and testament of Sarah Forde deceased, and summoned them as garnishees.”</p> <p>June 22d, 1833, narr. filed; and same day, on motion of J. Miles, for plaintiff, judgment for the plaintiff sec. reg.</p> <p>Same v. Same. To September term 1833, No. 203. Writ of inquiry of damages. Return by sheriff that inquest, &c., assessed the damages of plaintiff at 11,573 dollars 39 cents.</p> <p>The scire facias against the garnishees was,</p> <p>“Shewell v. Keen and Kille, executors of Sarah Forde deceased, garnishees of Standish Forde and John B. Forde. To December term 1833, No. 116. Scire facias against garnishees. Return of sheriff — ! made known”</p> <p>March , 1834, plaintiff files “interrogatories to be put to the defendants, garnishees, &c.</p> <p>“1. Do you know the aboye named John lftR|j^?£<Jj£jSfcl¡sh Forde! How long have you known of thenvf f</p> <p>“'2. Had you, or either of you, on the 1 si day of D. 1832, the date of the service of the foreign ajtfigkSent m this cafe; or have you or either of you since that time |atl, in vmji^pp^ssipn, keeping, care, control, management or direcytoi^étfy^goocls, wrtres, merchandize, moneys, property, credits, rights oteeii&e^^f'any kind or description, or any legacies, moneys, property or things devised, belonging, coming or appertaining to the said John B. Forde and Standish Forde, or either of them, or to which they are or were in any manner entitled, and which of them 1 If yea, state how much. Annex a proper account or exhibit to your answer hereto, and answer fully and at large.</p> <p>“3. Had you, or either of you, on the said 1st of October, A. D. 1832, or have you or either of you since, as executors of Sarah Forde deceased, received or had possession of any property, moneys, effects or things, or had any control over the same, which, by virtue of the last will and testament of said Sarah Forde deceased, belonged to the said John B. Forde and Standish Forde, or either of them, and which of them, or to which they were in any manner entitled, or had any interest therein 1 Answer fully, and at large; and if affirmatively, annex statements or exhibits of amounts and facts in full.</p> <p>“4. Are all the debts due by the estate of Sarah Forde deceased, of whose last will and testament you are the executors, fully paid and discharged'? Has the general account of your administration of said estate been duly settled and confirmed 1 Annex copies of the same, and answer fully and at large.</p> <p>“ 5. Do you know of any other matter or thing material to the plaintiff in this case 1 Answer fully.”</p> <p>April 7th, 1834. The defendants’ answers to the interrogatories filed in the above case by the plaintiff:</p> <p>“ 1. That they have been partially acquainted with John B. Forde and Standish Forde for several years, but the precise period they are unable to state.</p> <p>“2. That in their individual capacities they had not, nor had either of them, any, either on the 1st of October or since.</p> <p>“3. Yea, that they, as executors of Sarah Forde deceased, had, on the 1st day of October 1832, and since, the possession and control of the property and effects left by her, in which the said John B. Forde and Standish Forde were interested, they being each entitled under the will to one-sixth part of the residue and remainder of the estate, after the payment of debts and funeral expenses and certain legacies, two notes due by Standish Forde to the estate, amounting to 1406 dollars and 23 cents, with interest on them, to be deducted from Standish Forde’s share. The statement annexed, marked A, shows the property belonging to said estate on hand on the 1st of January 1834, when distribution was made to the other legatees ; and the following property and effects were retained in their hands as executors as and for the shares of the said John B. Forde and Standish Forde, viz., a bond and mortgage given by Samuel Stevenson to the said executors for 1000 dollars, a bond and mortgage given by Adam Hoffman to the said executors for 400 dollars, seven shares of Commercial Bank stock, four shares of Farmers and Mechanics Bank stock, two shares of Mechanics Bank stock, and 1165 dollars 62 cents in money.</p> <p>“ 4. Yea, that all the debts due by the estate, so far as they have come to their knowledge, are paid and discharged. That their accounts as executors of said estate have been duly settled, and confirmed copies of said accounts are annexed, marked B.</p> <p>“5. That they know nothing further material to the plaintiff in this cause, except that in December 1832 they received from F. W. Hubbell, Esq., as attorney of Robert Sihreshley, a notice that the said John B. Forde did, on the 12th day of December 1832, assign</p> <p>all his interest in the estate of the said Sarah Forde to Robert B. Sthreshley.”</p> <p>“ Exhibits referred to in the Answers.</p> <p>A.</p> <p>Property on hand January 1st, 1834, belonging to the estate of Sarah Forde, attached, viz.</p> <p> </p> <p> </p> <p>October 18th, 1833, Orphan’s Court of Philadelphia. The account of C. Keen and A. Kille, executors of Sarah Forde deceased, was presented, and referred to auditors. The accountants charge themselves, inter alia, with the following items :</p> <p>April 12th, 1833, sale of real estate by Wolbert:</p> <p>A. Hoffman, ------ $1,200 00</p> <p>Samuel Stevenson, - 1,750 00</p> <p>The following personal estate on hand : Seventy-five shares of Commercial Bank stock at $70, 5,250 00</p> <p>Forty-one shares of Farmers and Mechanics Bank at $71, ......... 2,911 00</p> <p>Fourteen shares of Mechanics Bank at $59, - - 826 00</p> <p>G. K. Budd’s bond and mortgage, principal and interest, ......... 2,516 67</p> <p>Baptist, Church, do.. 709 22</p> <p>S. Stevenson, do. 1,023 67</p> <p>A. Hoffman, do. - - - - - 613 70</p> <p>The auditors reported the balance for distribution (including the above items) to be 18,801 dollars and 31 cents, which report was confirmed.”</p> <p>It appeared by this account that the executors, under the power in the will, had sold the real estate of the decedent, and had brought it into general account.</p> <p>This case was argued at length by</p> <p>and</p> <p>Cited during the argument: nets of 1705, 28th of September 1789, 2d of March 1723, Purd. Dig., tit. Attachment; act of 21st of March 1772, Purd. Dig., tit. Legacies; Petersd. Ab., tit. For. Attachment, and notes; Sergeant on Attachment 86, 193 ; Pris. Lond. 267; M’Comb is. Duueh, 2 Dali. 73 ; Pringle «. Black’s Executors, 2 Dali. 97; Bank of North America v. M’Call, 4 Binn. 372 ; Ross v. M’Kinsey, 2 Ratele 227; Wike v. Lightner, I Rawle 289; Rev. Laws JV. Jersey 50, sect. 3; Barnes v. Treat, 7 Mass. 271 ; Picquet v. Twan, 4 Mason 443, 463; Taylor». Woodward, 4 Hoisted 115; Thorn is. Wright, Ibid., note; Chamberlain v. Chamberlain, 1 Ca. in Chan, 256 ; Clark v. Herring, 5 Binn. 33 ; 2 Watts 61 to 65 ; Act of 22d of May 1722 ; 1 Co wen’s Rep. 32 ; 2 Bac. Ab. 259; 1 Rolle’s Ab. 551.</p>

THIS cause was tried before Pettit, President, and the verdict was for the plaintiff. The defendant obtained this rule to show cause why a new trial should not be granted, and assigned reasons hereinafter stated. in support of the rule, cited, Herrick«. Whitney, 15 Johns. Rep. 240; Dickinson®. Prentice, 4 Esp. Rep. 32 ; Chandler v. Vilett, 2 Saund.

<p> Rule to show cause why a non suit should not he taken off. </p> <p>Where A, an agent, whose principal B is unknown at the time of the transaction, deals with and makes a contract of sale in his own name with C; in an action by C against B on such contract, A is not. a competent witness for the plaintiff to prove the agency and the contract, without a release from C.</p>

THIS was an action on the case tried before Stroud, J., in which the plaintiff declared, that on the 3d of May 1834, he was sued by the administrator of one John Miller deceased, before the defendant, a justice of the peace for the county of Philadelphia, for a debt, &c. ; that on the 10th of May 1834, the defendant, ns justice of the peace, rendered a judgment against him for 16 dollars 96 cents ; that from this judgment he intended to appeal to the court, of common pleas,…

THIS cause was t ried before Jones, J. It was a scire facias upon a mechanic’s lien. The plaintiff opened his case upon a general ■assumpsit for work and labour done and materials furnished in the building of a house for the defendant. The amount of his claim was stated to be 1119 dollars 13 cents. Several witnesses were called to prove the quantity, quality and worth of the work and materials.

THE following case was stated for the opinion of the court in the nature of a special verdict. “ Anthony Kreider died in August 1826, intestate, seised of certain real estate. He left a widow, the plaintiff', and two minor children, (by a former wife) Frederick and Henry Kreider. Henry Kreider, the defendant, became the guardian of said minors by appointment of the orphan’s court.

THIS was an action of replevin, tried before Jones, J. On the trial the following facts appeared. * On the 13th of March 1833, Cyprian Poulallier, marble mason, assigned to Louis Francois Bianjot all the marble, sawed and unsaved, marble mantel pieces, &e.; also the tools, fixtures, and other personal properly then in the shop and yards occupied by him, near Pine street in south Seventh street, upon trust, to sell the property so assigned, and with the proceeds thereof to…

THIS was an action of trover brought to recover damages for the conversion of a quantity of wheat and rye, and wheat and rye straw. The plaintiff entered into possession of a certain farm in Philadelphia county, the property of the defendant, in the spring of 1831, and left the premises in the fall of 1833. He received a winter crop, which was in the ground when he entered.

<p> Rule to show cause why a venire facias de novo should not be awarded. </p> <p>Where a verdict was rendered for the plaintiff, but judgment was arrested at the same term, on account of the insufficiency of the verdict, which appears of record, a venire facias dé novo will be awarded. But if the term has been allowed to elapse after the arrest of judgment, and the cause has not been continued by a curia ad. vult, the action will be discontinued and the defendant be without day in court.</p>

THIS cause was tried before Stroud, J. It was an action of debt against a constable (Sayres) and his sureties, on his official obligation, dated the 27th of March 1834, and given under the act of assembly of the 29th of March 1824. Purd. Dig. 510, edit, of 1830.

THIS was a summons issued on the 19th of August 1835, and served on the defendant the same day, in the city of Philadelphia. The present motion was, on behalf of the defendant, made on the return day, that the process be quashed upon the ground of the defendant’s privilege as a suitor attending the taking of depositions in this city, under a rule of court in a cause between the same parties in the court of common pleas of Schuylkill county.

THIS case was argued by Ilaly, for tlie plaintiff; and Hopkins, for the defendant. The facts fully appear in the opinion of the Court, which was delivered by

THIS was a judgment entered on a bond executed by Thomas W. Dyott, in which Joseph R. Ingersoll, Henry D. Gilpin, John Goodman and Samuel Chew were the obligees, dated the 2d day of February 1836, for the sum of 500,000 dollars : conditioned for the payment and discharge of all and every the promissory notes of the said Thomas W. Dyott, made payable at his banking house, in the city of Philadelphia, according to the tenor and effect thereof; and also for the paying over all…

THE following case was stated, in the nature of a special verdict, for the opinion of the court, viz. : “ Susanna Stuckert died in 1832, leaving a will dated 18th March 1831, and proved 5th September 1832 (prout same), whereby she devised, among other things, as follows: “ ‘ Item, all the rest, residue, reversion and remainder of my estate, real, personal and mixed whatsoever, and of the estate, real and personal of my late husband the said John Stuckert, devised subject to…

THIS an action of replevin. It came before the court on the following fads and pleadings, viz.: Charles Haight, on the 3d of June 1823, demised the property on the north east corner of Spruce and Seventh streets to Alfred Drake, for six years, at a rent of 286 dollars, payable quarterly. A. Drake had the privilege of renewing the lease for six years at the end of ¡he term.

<p> Rule to show cause why proceedings on a scire facias on a mechanic's claim should not be stayed. </p> <p>Where during the pendency of a scire facias on a mechanic’s claim for work or materials which has been arbitrated, and there is an appeal from the arvard, the property has been sold on an older lien, and the proceeds have been absorbed by prior lien creditors, further proceedings will be stayed on the scire facias.</p> <p>In such case the court cannot aid either party in recovering costs on the scire facias, by permitting him to go on to trial.</p>

THIS was an action of debt, brought to the January return day of December term 1835, by James A. Bayard against Mary Gillasspy executrix of the late George Gillasspy deceased.

PETER Leibert and John Leibert, under the firm of P. and J. Leibert, against John Hocker and Christopher Hocker, executors of Christopher Mason deceased, were the parties in this case. The suit was brought on certain promissory notes, of which Christopher Mason, in his lifetime, was the indorser. Copies of the notes were filed by the plaintiffs in due time.

IX this case T. I. Wharton moved the court for leave to take out execution on the judgment entered in this case, under the following circumstances: On the 28th of March 1836, William F. Krumbhaar and Lewis Krumbhaar, Jun. executed their bond to the plaintiff in the penal sum of 13,22.5 dollars, and reciting that, the obligors had drawn four certain promissory notes in favour of the obligee, bearing date the 21 st day of March A.D. 1836: one of them payable in sixty days for…

THIS case was tried before Jones, J. During the trial, one of the counsel for the plaintiff stated, that when the case was before arbitrators, under the act of 1810, (from whose award this appeal was taken) they had found for the plaintiff. The verdict was for the plaintiff, and the defendant moved for a new trial on this ground.

<p>THE sheriff had sold the property of the defendant under a fien facias. The landlord liad made a claim for rent due him for the house, in which were the goods levied on and sold, under the act of 21st of March 1772, section 4. The proceeds of sale were insufficient to pay the sheriff^ costs, and the claim for rent, in full. The sheriff bad retained his costs and paid the balance of the proceeds to the landlord, who thereupon obtained a rale on the sheriff to pay the sum into court which he had retained for his costs. Upon this rule came up the question, whether, by the act referred to, the sheriff was not deprived of costs in favour of the landlord.</p> <p>contended, that by the language of the act, viz. “ the said sheriff shall pay such rent if so much shall be in his hands, and apply the overplus thereof, if any, towards satisfying the debt and costs in such execution mentioned,” the sheriff’s costs must be postponed until the claim of rent is wholly satisfied.</p>

ON the 15th day of August 1831, the defendant gave to the plaintiff n bond fo> 1 20 dollars, conditioned for the payment of 60 dollars with imeiest honi that day. A warrant of attorney to confess judgniohi arrouij unied the bond. On the same day judgment was emeied in tliH coiut.

THIS was a suit brought by Henry Elias (indorsee) against Teili & Edgar on a promissory note dated June 13, 1829, drawn by defendants in favour of David Dillinger, at four months, and by the latter indorsed to the plaintiff The note was duly protested for non payment. Pleas, non assumpserunt and payment.

THIS was an action on the case tried before Jones, J., to recover the price of a quantity of lumber delivered by the plaintiff to William P, Jones, upon an order in the following- words : “ August 13, 1834. “Mr A.Cochraiiy — Please to let the bearer, Mr William P. Jones, have lumber for the completion of the houses belonging to the Mr Armstrongs, and I will see you paid between this and the close of the year. Yours, S. II.

yAeCAPIAS ad respondendum was issued in this case on the 7th of March 1836, returnable on (he first Monday of April, which was the 4th. On the -13th. of April special bail was put in, to which the plaintiff excepted on the 27th of the same month. Two days after-wards,notice was given that the bail would justify on the next day at an hour named.

THIS was an action brought to March term 1835, and the narr. was filed four days after the return day in May. The cause was tried on the 13th of May 1838.

M’CALL obtained a rule to show cause why the sheriff’s sale of lauds in this case should not be set aside for irregularity in the process of execution. He said the first process issued upon the judgment in this case was a writ of venditioni exponas, and that was not issued till more than a year and a day after the rendition of the judgment, without any revival.

<p> Rule to show cause why a new trial should not be granted. </p> <p>Where A recovers in ejectment against B, who was the tenant in possession at the time of the institution of the suit, but. who nevertheless before judgment aliens to C, and A brings trespass for -mesne profits against C, the record of the recovery in ejectment against B is conclusive evidence of the plaintiff’s title to the land, so as to enable him to maintain his action.</p>

IN this case a judgment was entered for the plaintiff for want of an affidavit of defence under the 2d section of the act of the 28th of March 1835, and the plaintiff issued execution thereon. Within the time allowed by the practice for pleading freehold, or entering bail for stay of execution under the act of the 21st of March 1806, the defendant obtained a rule to show- cause why the execution should not be set aside on pleading Iris freehold for that purpose.

A SUMMONS was issued in this ease, returnable on (he first Monday of May 1838. On the 9th of May the plaintiff'filed a paper, of which the following is a transcript. “ $5000.

THIS was an action of assumpsit brought by Abraham Okie against Asa Spencer, upon a promissory note drawn by Oliver Spencer in favour of Asa Spencer, and by him indorsed. The note came to the hands of D. Williamson, and was in bis hands the day it fell due. Afterwards it was indorsed by D. Williamson, and came to the hands of the plaintiff. The defendant pleaded specially several pleas. To one of the pleas, viz., the third, the plaintiff demurred.

THIS was a foreign attachment issued in case returnable to June term 1836. The facts as they appeared on the hearing of this rule were as follows. The Piscataqua bank, plaintiffs, is a corporation of the state of New Hampshire, and its bankinghouse is located at Portsmouth in that state.

<p>THIS was a scire facias on a recognizance of special bail. It was issued to the July return day of June term 1836, being the 4th day of July.</p> <p>The sheriff made return “ scire feci.”</p> <p>All the proper steps in the original action had been duly taken.</p> <p>On a day subsequent to the quarto die post, the defendant in the scire facias obtained a rule to show cause why that writ should not be quashed, upon the ground, that, under the act establishing this court, passed on the 28th of March 1835, it had improvidenily issued.</p> <p>cited the proviso of the 1st section of the act, as follows: “ It shall be the duty of the court to make such rules and regulations respecting proceedings against bail, as will prevent bail from being fixed in any case sooner than if the proviso relative to return clays had not been enacted.”</p> <p>referred to the rule of court of the 7th of November 1835, as follows:</p> <p>“Whereas by the act of assembly establishing this court, passed on the 28th day of March 1835, the first Monday in each and every month is made a return day for certain kinds of process, and by the same act it is declared to be the duty of the court to make such rules and regulations respecting proceedings against bail as will prevent bail from being fixed in any case sooner than if such monthly return days had not been directed. It is ordered, that where relief is asked by the defendant in a suit on a bail bond given to the sheriff, if the writ in the original action was made returnable to the first return day of any term, such term shall be counted as one of the three terms to be regarded by the court according to the practice in such cases, but if the writ in the original action was made returnable to the second or third return day of any term, then such term shall not be so counted.”</p>

BILISfJEJIRS, for the defendant, on filing the defendant’s affidavit of a just defence, and that the plaintiff resided out of the state, moved for a rule on the plaintiff to give security for costs, under the 26th rule of the court, which prescribes, that “in all cases where the plaintiff resides out of the state, in qui tarn actions, in suits on administration and office bonds, or when the plaintiff, after suit brought, has taken the benefit of the insolvent laws, the…

THIS was an action of partition instituted by Vidal and others against Girard and others, to have parted and divided certain real estate according to the acts of assembly. Purd. Dig., tit. Partition. Several of the parties were married women, who (with their husbands) appeared to the action by attorney.

IN this case the plaintiff filed, in due time, under the act of 1835, a copy of the instrument, on which the action was alleged to be brought, and there being no affidavit of defence, took a judgment under the 2d section of the said act. The defendant obtained a rule to show cause why the judgment should hot be set aside. The instrument, a copy of which was filed, was in the following words: “ Philadelphia, February 18th, 1836.

THIS was an action of scire facias against the sheriff and las sureties on their official recognizance. The cause of action was, that the sheriff had taken insufficient pledges in replevin.

THIS was an action of covenant brought by “ William S. Hansell and wife and others, devisees of Standish Forde deceased,” against “ William Nelson, assignee of John Greer and George Houser.” The plaintiffs in due time filed a copy of the instrument of writing upon which he alleged suit was brought, which was a deed dated'January 31st, 1797, from Standish Forde to John Greer and George Houser in fee of a lot of ground in Penn Township, in which the grantor reserved an annual…

A SUMMONS had issued in this case, returnable to December term 1835. The return of the sheriff was “summoned.” The defendant did not appear, and judgment was rendered against him for want of an appearance. A writ of inquiry for the assessment, of the plaintiff’s damages was issued on the 1st day of June 1836, returnable to the first Monday of June, which was the 6th.

THIS was a scire facias on a mechanic’s claim. The plaintiff had duly filed a copy of the claim. The defendant filed an affidavit of defence, which was in these words : “ that he has a just and true defence to the whole amount claimed by the plaintiff in the above suit. The deponent never contracted with the plaintiff in any way whatever, and he firmly believes that the claim against him is wholly unauthorized by law.” contended, that the affidavit was defective.

THE money arising from a sheriff’s sale under an execution issued in this case, having been brought into court, a subsequent execution creditor (the property sold being personal estate) claimed a right to the whole, on the ground that the plaintiff had, by directions to the sheriff and other acts, lost his lien and should be postponed.

THIS was an action brought by Henry Pratt against the defendants, in which a case was stated for the opinion of the court in the nature of a special verdict, in substance as follows : On the 4th of April 1821, Henry Pratt executed an indenture of lease to Eli Thomas and Jacob Leidy, in pursuance of which they entered on the demised premises, and were possessed thereof at the time of their assignment.

[THE decision in this case was made under the act of the 4th of April 1798, Puri. Dig., tit. Judgments. So much only of the opinion of the court is reported, as is applicable to the act of March 26th, 1827. Pamph. Laws 129.]

THIS was an action of trover for certain archives and documents. Held: is such as would be given to any citizen, and asks for him no diplomatic privilege. Another strong evidence of the sense of our government was to be found in the fact, that it had not interfered by its legal officer to vindicate its own law and the law of nations, alleged to have been violated in the person of Mr Barrozo.

<p> Rule to show cause why the execution should not be set aside. </p> <p>A writ of error, unaccompanied by tico sureties on the recognizance of bail at the time of issuing such writ, is not a supersedeas of an execution issued on the judgment in the court below. No practice to the contrary can rentier nugatory the plain positive provisions of a statute.</p>

THIS was a writ of foreign attachment. The sheriff’s return to the writ was, “ attached forty-four casks of cheese, and summoned T. P. Stanton & Co. as garnishees.” The plaintiff applied for and obtained an order of sale of the property as being perishable, and on the 13th of May 1829 the proceeds were paid into court. Judgment was entered on the 12th of December 1829, according to the act of assembly.

THE facts of this case were, that, a capias in case at the suit of the present plaintiff, James Finney, issued against one Thomas M’Mams on the 1st of June 1830, returnable to June term 1830, No. 425. The bail demanded was 200 dollars.

THIS was a summons in partition returnable to March term 1831, to have parted and divided between the plaintiff’s and defendants certain real estate in Kensington, Philadelphia county. The sheriff’s return was, “summoned.” Before further proceedings in the action,⅛ P. Jl.

IN tliis case an alias pluries capias ad satisfaciendum had issued on the 9th of November, returnable the first Monday in December 1832, on which the defendant was arrested the same day, and gave bond, in the usual form, to appear at the court of common pleas, and take the benefit of the insolvent laws.

THIS cause was tried before Coxe, J. on the 27th of February 1832, and ihe jury found the following special verdict, viz. : “That the plaintiffs deposited for collection with the defendants, Wihiam Stuckerl’s note for 119 dollars 50 cents, at 60 days. On the 6th of March 182G it became clue, and was protested by Mr Lohra, a notary public, for non payment.

THIS was a summons in partition to have parted and divided between the parties certain real estate described in the writ. Judgment quod parlitio fiat was duly rendered, and a breve de partilione faciendo, was issued, to which the return was, that the property could not be divided without prejudice to and spoiling the whole, and affixing a valuation.

THIS was an action of ejectment on a mortgage, given by George Helmbold to George Ludwick.

THIS was an action on the case brought to March term 1830, No. 182, by Anthony Shermer against Joseph Rusting and eighteen other persons. The plaintiff entered a rule of reference under the act of 1810; arbitrators were duly appointed, and they made an award in favour of the defendants. The plaintiff appealed. On the trial of the cause (before Pettit, J.), which occupied twenty-one days, the verdict was for the defendants.

IN this case the parties had filed an agreement in writing submitting “ all matters in variance in the above case to the decision of James Caldwell, Joseph Randall, and Albert G. Pearson, the award of whom, or a majority of whom, to be final and conclusive, and neither subject to appeal, exception or stay of execution.” There was an award for the plaintiff. The defendant filed exceptions.

ON the 5th of November 1834, the defendant arrived in Philadelphia from New York, with his wife, and M. and Madame Garriere, her parents, and baggage. The defendant was an entire stranger.