Volume 1 — Pennsylvania State Reports

<p>This was an appeal taken by Joseph S'.-.Morrison and George F. Steele, from the decree of the Court of Common Pleas of Bedford county, in the matter of the appropriation of the moneys raised from a judicial sale, made by the sheriff, of the real estate of David Loy.</p> <p>Joseph S. Morrison obtained a judgment against David Loy and Martin Loy, which was entered to November term, 1839, No. 26. Upon this judgment a fi. fa. was issued to November term, 1839, No. 17, and a levy made on the personal property of the defendant to a large amount. To sell the property so levied upon and left by the sheriff in the possession of the defendant, a ven. ex. was issued to April term, 1840, No. 16, which was returned by the sheriff "not executed by order of plaintiff.” To revive this judgment, a scire facias issued to April term, 1843, No. 19, and on the 1st of February, 1843, judgment was entered for $1255 84. On the judgment so revived, a fi. fa. was issued to August term, 1842, No. 182, and returned " tarde venit.” Al. fi. fa. to November term, 1843, No. 1, and levy made on the personal property of Martin Loy. Martin Loy applied to the court to set aside this execution and levy under it, and to open the judgment on the ground that he was a surety in the judgment, and discharged from all responsibilily to Morrison, the plaintiff, he having issued an execution on the original judgment, and levied on the personal property of the principal to an amount sufficient to pay and satisfy the said judgment. The court below set aside the execution, and opened the judgment to enable Martin Loy to make this defence.</p> <p>On the 9th of April, 1841, George F. Steele, one of the appellants, entered up two judgments against David Loy and John Patterson, who were partners in the iron business for $826 each, to April term, 1841, Nos. 96 and 97. On the first of these judgments, viz., No. 96, a fi. fa. was issued to August term, 1842, No. 32, which was returned, levied on " one hundred tons of pig metal and ten tons of stoves.” A ven. ex. to November term, 1842, No. 92, was issued and returned, "property advertised and sale stayed by order of plaintiff.” It appeared, however, from the testimony of the sheriff, who was examined as a wdtness before the auditor appointed to' malee distribution, &c., that the return to the above ven. ex. was' made by mistake; that George F. Steele never authorized him directly or indirectly to stay any execution issued at his suit, against Loy and Patterson. An alias ven. ex. wras then issued to April term, 1843, and returned, "not sold for want of bidders.” A plur. ven. ex. then issued to August term, 1843, No. 192, which was returned, "properly advertised, and on day of sale could not be found.”</p> <p>On the second judgment of George F. Steele, viz., No. 97, of April term, 1841, a fi. fa. was issued to November term, 1842, which was levied upon "fifty tons of pig metal and ten tons of stoves,” and returned, " sale stayed by order of plaintiff.” This return was also made by mistake, as appeared from the testimony of the sheriff, to which reference has been already made. A ven. ex. and an alias ven. ex. were also issued, and returned as in the first judgment. To April term, 1841, No. 101, David Puderbaugh entered up a judgment against David Loy & Co., for $641 69 ; and to the same term, No. 102, a judgment against David Loy for $299 92. Upon these judgments writs of fi. fa. were issued to April term, 1842, and returned, “ stayed by order of plaintiff.” Alias wi’its of fi. fa. were then issued to August term, 1842, and returned “ levied on one hundred tons of pig metal and ten tons of stoves.” To sell the property so levied upon, writs of ven. ex. were issued to November term, 1842, and returned, “ sale stayed by order of plaintiff.”</p> <p>It appeared that part of the property levied upon by the sheriff under the executions of the appellants was afterwards levied upon and sold at the suit of other judgment creditors, but much the greater part of it was disposed of and used by the defendants in the executions.</p> <p>It appeared from the record that the real estate of David Loy was sold by the sheriff,under judicial process issued upon the followingjudgments.</p> <p> </p> <p>June 7th, 1844. An auditor was appointed to make distribution and report the facts to the court. .On the 22d of July, 1844, the auditor filed his report.</p> <p>According to this report the money made by the sheriff out of the1 land, levied upon and sold under the first judgment, above stated, was - . - - - - $5690 00 And under the second judgment, above stated, $2290 00 $7980 00 From which was deducted the fees and costs of sale, amounting to- - - - - - - - 110 70f Balance for distribution. $7869 29|</p> <p>In appropriating this balance, the auditor says in his report, “ That the first judgment to be paid, is that of</p> <p> </p> <p>The balance of the money, after deducting the amount of the above judgments, interest and costs, was appropriated by the auditor to the payment of nine other judgments, all of which were obtained and entered subsequently to the date of the judgment last above stated, to the exclusion of the judgments of Morrison, Steele, and Puderbaugh, the appellants.</p> <p>On the 7th of October, 1844, the following exceptions were filed to the report of the auditor.</p> <p>In the matter of the distribution of the money arising from the sale of David Loy’s real estate.</p> <p>1. The auditor erred in his report, that judgment No. 96, April term, 1841, George F. Steele v. David Loy and John Patterson, should not be paid out of said money.</p> <p>2. Also, that judgment No. 97, April term, 1841, George F. Steele v. David Loy and John Patterson, should not be paid out of said money.</p> <p>3. Also, that judgment No. 101, April term, 1841, David Puderbaugh v. D. Loy & Co., should not be paid out of said money.</p> <p>4. Also, that judgment No. 102, April term, 1841, David Puderbaugh v. D. Loy, should not be paid out of said money.</p> <p>5. The auditor erred in not allowing the payment of the judgment of Joseph S. Morrison v. David Loy and Martin Loy, of April term, 1843, No. 19. Original judgment entered 21st October, 1839.</p> <p>A motion was also made in the court below, by the counsel of George F. Steele, for a rule to show cause why the sheriff should not be permitted to amend his return, so as to conform to the facts, on writs Nos. 65 and 92, of November term, 1842, George F. Steele v. David Loy and John Patterson.</p> <p>The court denied the motion, and on the 29th of April, 1845, confirmed the auditor’s report, and ordered and decreed that the money should be distributed in conformity with the report. • <</p> <p>From this decree an appeal was taken to this court by Joseph S. Morrison and George F. Steele respectively; and the following errors assigned.</p> <p> On the part of Momson. </p> <p>The court erred in confirming the report of. the auditor, and in decreeing the payment of the money in question to the judgments mentioned in the report; all of which, except that of James Agnew, bears, date subsequently to the 21st of October, 1839, and to the 23d of November, 1840, to the exclusion of the judgment of the said Joseph S. Morrison v. David Loy and Martin Loy, which was originally entered on the said 21st of October, 1839, and revived by judgment On a scire facias to November term, 1843, No. 19, on the 25th of January, 1843, for $1255 84, with interest from the last-mentioned date.</p> <p> Oh the part of Steele. </p> <p>1. The court erred in refusing the motion for a rule to show cause why the sheriff should not amend his return, to conform to the facts on writs Nos. 65 and 92, Nov. 7, 1842, George F. Steele v. David Loy and John Patterson.</p> <p>2. The court erred in confirming the auditor’s report, and in decreeing the payment of the money in question to the judgments mentioned in the report, to the exclusion of the judgments of George F. Steele v. David Loy and John Patterson.</p>

<p>This was an appeal by Job Mann, from a decree of the Court of Common Pleas of Bedford county, in the matter of the appropriation of the money produced by a sale of the real estate of George Loose, made by the sheriff by" virtue of judicial process sued out of the court aforesaid.</p> <p>The following exceptions were filed:</p> <p>1. The court erred in making the rule to show cause absolute, and in directing the money made by the sheriff to be applied, first, to the satisfaction of the judgment of Swope and King, and the balance to the judgment of A. W. Kinney for the use of Job Mann.</p> <p>2. The judgment of A. W. Kinney for the use of Job Mann, was entitled to the money.</p> <p>The questions involved in this case, the material facts of which are fully stated in the opinion of the court, were argued by</p>

<p>Upon error to the Common Pleas of Berks, the case was thus: Killmer, the defendant in error, brought an action of debt against the plaintiffs in error, on the following note or bill single, signed and sealed by them, to wit:—</p> <p>“ On the 1st day of April, 1842, 'we promise jointly and severally to pay unto Nicholas Killmer, or to his heirs or assigns, the sum of five hundred dollars, without defalcation for value received. The condition thereof to be part payment of the purchase money, which we are to pay for the farm bought of said Killmer this day. Should we, however, not comply with the conditions of the agreement of said purchase, dated this day, then Hie said sum shall be tire assessed and liquidated sum of damages due said Killmer for our non-performance, and shall be collected as other debts of similar amounts.</p> <p>“ Witness our hands and seals this 14th day of October, 1841.”</p> <p>By the article of agreement referred to in this note, the plaintiff below had agreed to convey to the defendants below, a tract of land in Lebanon county, containing one hundred and twenty-five acres and fifty-nine perches, for $87 per acre, which the defendants below promised to pay on the 1st day of April, 1842, when they were to have their deed.</p> <p>Prior to the 22d day of February, 1842, the defendants gave a written notice to tire plaintiff as follows:—</p> <p>« You are hereby notified, that the farm or plantation of land, situate in Lebanon township, Lebanon county, adjoining lands of George Eckert, Henry Shaffer and others, containing about one hundred and twenty-five acres and fifty-nine perches, which by our article of agreement made, dated 14th day of October, 1841, has been sold to us, will . not be taken, nor .will the agreement be complied with; you will therefore be hereby notified, that I declare the agreement void, and throw the said farm upon your hands, and give notice to govern yourself accordingly. (Signed,) Stoffel Bene,</p> <p>“■To Mr. Nicholas Killmer. Benjamin Kurtz.”</p> <p>The plaintiff proved that this notice was served upon him before the 22d of February, 1842; that the names-were signed by the scrivener who wrote the notice by order of Baney alone; that afterwards, when it was shown to Kurtz, and he was asked whether or not he had signed it, he said he had not; that upon being asked, whether he would take the land, he replied, he could not; that he was then informed, that if he would not take it, plaintiff would sell the farm again, and that whatever it fell short of the price, they would have to make up, and that thereupon Kurtz said, you cannot recover more than the $500.</p> <p>On the 22d day of February, 1842, the plaintiff sold the farm to Henry and Gabriel Deppen for $83 per acre, and stipulated to make a deed to them for. the same, on the 2d day of April, 1842.</p> <p>Plaintiff below did not tender a deed on the 1st of April, 1842, to defendants, nor did they ever tender the purchase money to plaintiff.</p> <p>The , cause being at issue, came on for trial before Banks, president, on the 17th day of October, 1844, who, at the close of the evidence, after referring to the facts, charged the jury as follows :■—</p> <p>“ The agreement between the plaintiff and the defendants was entirely executory. No money was paid, nor was possession delivered. This note was given, as appears on its face and by its terms, as assessed and liquidated damages. It is made so by the parties. This parties may do for themselves, and thus withdraw the duty of ascertaining the amount of damages from the consideration of a court and jury altogether. This, when fairly done, and is clearly so intended and agreed by the parties, is binding upon them.'</p> <p>“ It appears by the evidence, if you believe it, that Baney wrote to the plaintiff, that he had abandoned’ the contract, and had this served by the constable ■ of the township upon the plaintiff; and that Kurtz said, he had bought the land for Baney, and that he could not take it. When he was told that they would have to make up the loss upon a second sale, he made no objections to a second sale, but said the plaintiff could recover only the $500.- That Baney said if he was not ready to pay the money on the 1st of April, he would be ready to pay the $500. In view of this state of facts, was it incumbent upon the plaintiff to tender a deed for the land? Was he not relieved from doing this by the conduct of Baney and Kurtz ? These acts of theirs might disarm him, and induce him to make a second sale. If they did lead to that result, or had a direct tendency to lead to it, can they now complain that a deed was not tendered ? When the plaintiff had been informed by both, that they would not- take the land, to what good purpose would a deed have been tendered. If their conduct amounted to a determination on their part, not to taire the land, and of this had given notice to the plaintiff, it would then be unnecessary for the plaintiff to tender them a deed. Nor was he bound to wait longer, and perhaps lose an opportunity of making an advantageous sale to another. If they had changed their minds, and had been willing to take the land and comply with the contract, they should have given timely notice of this change of purpose to the plaintiff. A. man may waive the performance of any thing which is to be done for his benefit. He may abandon a contract, and when he does so, clearly and unequivocally, the other is not bound to do any thing in execution of it.- He may, without more, resort to his action for the breach, as soon as the time for performance has elapsed.</p> <p>“ In this case the defendants may have preferred paying the $500 to taking tire land, and paying the stipulated price for it. Of the propriety of this course they had the right to judge for themselves. If they thought proper to do so, the plaintiff, on being notified of their intention to do so, might take them at their word, and at the proper time demand the damages stipulated between them.</p> <p>“If you believe that the second sale by the plaintiff was in consequence of what was said and' done by Kurtz and Baney, it proves no defence for them in this action. If they wrote, said, or did 'nothing, which could lead the plaintiff to make this second sale, then it would be a good and ample defence for them.</p> <p>“This action is not brought to compel a specific execution of the contract of sale. It is brought to recover the damages stipulated between the parties in case of a breach of tire terms of their agreement. Has there been a breach of the contract by the defendants ? If you believe that Kurtz and Baney informed the plaintiff that they would not take the land, tiren the plaintiff is entitled to recover this $500 claimed in this suit, although he did not tender them a deed for the land. John Banks, [Seal.]”</p> <p>To this charge the defendant’s counsel excepted. The jury returned a verdict in favour of the plaintiff for $576 41; and the defendants having removed the record to this court, assigned for error,</p> <p>That the court erred in their charge to the jury, and especially in telling them, “if you, believe that the second-sale by the plaintiff was in consequence of what was said and done by Kurtz and Baney, it proves no defence for them in this actionalso in instructing the jury that it was unnecessary for the plaintiff to tender á deed to Kurtz and Baney, and that the plaintiff was entitled to recover although he again sold the land prior to the first of April, 1842. -</p>

In the court below the Bank of Penn Township brought suit against George D. B. Keim, upon k promissory note, dated the 7th of March, 1842, drawn by him in favour of Parker, Keim, and Shewell, or order, for the payment of $1314, at sixty days, and by them endorsed, and discounted by the bank for tire endorsers. The note was regularly protested for non-payment when it became due.

<p>By the record of the Court of Common Pleas of Berks County, which was removed to this court by writ of error, it appeared, that Jacob S. Seibert, the plaintiff in error, commenced this action against Jacob Kline, the defendant in error, before a justice of the peace, in which judgment was given by the justice in favour of the plaintiff. The defendant appealed to the Court of Common Pleas.</p> <p>The proceedings before the justice, as well as all the material facts and circumstances in this case, are fully stated in the opinion of this court.</p> <p>The following error was assigned:</p> <p>The court erred in entering judgment on the verdict without costs, since the appeal from the justice; and that the plaintiff should pay the defendant’s bill of costs which may have accrued since the appeal from the judgment of the justice. The court ought to have entered judgment on the verdict in favour of the plaintiff with full costs, and ought not to have received parol evidence of what took place before the .justice. • i .</p>

This was a writ of error to the Court of Common Pleas of Berks county, to remove the record of an action brought by Kissinger and Adams, the defendants in error, against Sheerer and Albright, the plaintiffs in error, to recover damages for injury done to plaintiffs’ boat and cargo.

<p>An acknowledgment by a witness, in his deposition, that a release had been delivered to him before he was sworn, does not remove a well-founded objection to his competency.</p> <p>Where it appears, from the face of the deposition taken by the defendant, that the release was in the hands of the witness, and that he desired it should be filed of record, and the certificate of the justice showed that the deposition was taken in the presence of the plaintiffs attorney, who made no objection, but allowed the witness to be examined and he cross-examined him ; it was held too late' to insist, at the trial of the cause on more formal proof, that the release had been tendered to witness before he was sworn.</p> <p>In a suit against the owner of a wagon to recover damages for an alleged non-delivery by his carter of certain wadding to W. & R., after the carter had proved that the wadding was consigned to C. & J. R., to whom he had delivered it; it was held, that C. R., one of the firm, to corroborate the carter’s testimony, might prove that the plaintiff was indebted to him and his partner, and that he had promised to send them ■wadding for the amount due them, about the time it was delivered to them. There is no rule which prevents a party from giving additional, confirmatory, cumulative, and corroborative evidence of facts previously proved, or which tends to strengthen, add force or probability to such evidence.</p>

In Error. Writ of error to the Court of Common Pleas of Berks county, to remove the record of an action of debt, brought by Riah Gilson, the defendant in error, who was the plaintiff below, against Jonathan L. Reber and Peter L. Kershner, administrators of John Rick, deceased, on a bond given by John Rick, the intestate, in his lifetime, to Gilson.

<p>In Error.</p> <p>This was a writ of error to the Common Pleas of Berks county. The action below was brought by Hoefer against Phillips for slander, and in the declaration the slanderous words were laid in three counts.</p> <p>The first count charged, that “ Whereas the said Daniel Hoefer now is, and for divers years now last past hath been a farmer, and hath for all the said time used and exercised the art, trade, and business of a farmer, without any falsity, trick, or deceit, and always well and faithfully observing and keeping up his credit and days of payment of all sums of money contracted by him in his said business with all his contracts, and hath thereby, for all the time aforesaid, quietly and honestly sought and got his livelihood and faculty of living, by means whereby, &c. Yet the said Peter Phillips, well knowing all and singular the premises aforesaid, but greatly envying the happy state and condition of the said Daniel Hoefer, and contriving and maliciously intending to hurt, injure, degrade and damnify the said Daniel Hcefer in his good name, fame, reputation, and credit in his business aforesaid; and to cause him, the said Daniel, to be reputed to be a person of no credit, and unable to pay his just and true debts, on the day of October, in the year of our Lord one thousand eight hundred and forty-three, at in the county aforesaid, in a certain discourse which he, Peter Phillips, then and there had with divers worthy citizens of this commonwealth, of and concerning the said Daniel Hoefer, in his business.aforesaid, as well as credit; he, the said Peter Phillips, then and there falsely and maliciously said and proclaimed openly, and loudly published these false, feigned, scandalous, and opprobrious German words following, of the said Daniel Hoefer, in his business and credit aforesaid, in the presence and hearing of those citizens, to wit: — £ Der Schrief Icomt anes van denen tag raff, und verkauft dem Daniel Hcefer si sack — er het de letzte woche schon komme solle, oder yezt-korrft er f those German words meaning, when translated into the English language, (The sheriff is coming up one of these days, and will- sell Daniel Hcefer’s goods or things — he was to have come last week already, but now he will come) — meaning that the sheriff would sell out Daniel Hcefer; that he was to have done so the week before, but that he would certainly now come for the purpose of selling him, the said Daniel Hoefer, out.” The second' count charged, that The said Peter Phillips then and there falsely and maliciously said and proclaimed openly, and loudly published these other false, feigned, scandalous, and opprobrious German words following, of the said Daniel Hcefer to the said Rebecca Borky, in the presence and hearing of those citizens, they, the said citizens well understanding, to wit: — Hat ier noch eiwas an den Daniel Hoefer zu foiterm — wen dier hat, so misset ihr anpacken schonst grieg dir nix — der Schrieff ferkaufl ihne aus’ — they, the said citizens, well understanding the false and scandalous German words, &c. Those German words, being translated into the English language, meaning and purporting as follows — Have you any claims against Daniel Hcefer yet (at this time) ? if you have you must attack him, or you w'ill get nothing; the sheriff will sell him out, (meaning that if they had any claim against Daniel Hcefer they must sue him, the said Daniel Hoefer, or they would get nothing; that the said Daniel Hcefer would be sold out by the sheriff.)”</p> <p>% The third count charged, that “The said Phillips then and there falsely and maliciously said, proclaimed openly and loudly, and"published these other false, feigned, scandalous, and opprobrious German words following, of the said Daniel Hoefer to the said Henry Weber, in the presence and hearing of divers good citizens of this commonwealth, to wit: — Wan du den Daniel Hcefer nicht pushe dust far dem Stephen und Heinrich Kauffman ihr geld den verluhrest duest, der Schrieff JcomH dns von dieser tage heude oder morgen, und verkauft dem Daniel Hcefer sein sack.’ These false, feigned, and scandalous German words being translated into the English language, have the same meaning and purport as follows, to wit: — If you don’t proceed against Daniel Hcefer for Stephen and Henry Kauffman’s money, you will lose the same. The sheriff will come one of these days — to-day or to-morrow — and sell Daniel Hcefer’s property, (meaning that if he, the said Henry Weber, did not sue him, the said Daniel Hcefer, meaning for the moneys due Stephen and Henry Kauffman, which the said Henry Weber was appointed to collect) — he (Henry Weber meaning) would lose the same. That the sheriff would come one of these days — to-day or to-morrow — for the purpose of selling him (the said Daniel Hoefer meaning) out; by means of speaking and publishing of which said several false, feigned, scandalous and opprobrious words, he, the said Daniel Hcefer, is not only much hurt and prejudiced in his good name, fame, credit, &c.; that they, the said Henry Weber and Jacob Yoder, Israel Miller, Jacob Haas, and Elizabeth Stout, for the recovery of the several sums due to them, impleaded the said Daniel Hcefer and sued and prosecuted him, and put him to great expenses, to wit, at the county aforesaid; and also divers other persons to whom the said Daniel Hcefer was indebted in divers and sundry great sums of money at the time of the speaking of the said words, have on that occasion, on a sudden and in an untimely manner, prosecuted and sued the said Daniel Hcefer, at law, for the recovery and obtaining of their respective debts then due to them respectively as aforesaid; insomuch, &c.</p> <p>The charge of the court below to the jury, which contains a full statement of the facts, was delivered by Banks, president:</p> <p>“This is an action of slander; the plaintiff is a farmer, living upon rented lands; he has proved that the defendant said he was not able to pay his debts, that he owed more than he was worth, and that those whom he owed had better push him, or they would lose by him; it is also proved, that in consequence of these words of the defendant, the plaintiff was sued by several persons, and thus was harassed and put to cost. It does not appear that the plaintiff was unable to pay his debts; there is no evidence that any creditor suffered any loss by him. It is said by the plaintiff that these statements thus made by the defendant were false, and that he knew them to be so when he made them, and that they were made maliciously, and with a design to injure him. Whether the facts proved satisfy you that these things are so or not, is for you to decide from the evidence. Whether, if you believe all these things to be.true, it is actionable, is a question of law which the court will determine; the facts you will decide for yourselves, without being bound in any way by what I may have said in relation to them. The law looks upon credit with care and tenderness, as essential to trade and business generally. Formerly words imputing want of credit, to be actionable, must have imputed bankruptcy. This restricted this kind of verbal slander to words spoken against merchants. This notion was very soon exploded, and this narrow doctrine abandoned for one that was more just and sensible, and was declared to extend to imputations against the credit of persons engaged in any business. This rule now applies not only'to merchants, but also to-persons engaged in all trades and mechanical pirrsuits. Why should it not apply to farmers and husbandmen? credit is important to them; their sensibility on this point is as tender as is that of any other class in the community; their sense of honour is as bright and correct on the question of credit as any. men’s. Why then is it not to be equally cared for, respected, and protected ? I imagine that no satisfactory reason could be given for an invidious distinction against the husbandman. The loss of credit bears as injuriously upon him as upon any man. His means of living and the subsistence of his family are as much endangered by its loss as are those of any class of our labouring community; his business and his occupation is an important branch of industry. The larger portion of our people is engaged in active agriculture; is not character and credit as dear to this class as it is to merchants, tradesmen, or mechanics ? The malignity which wantonly assails the one, is as culpable as that which ássails the other; why then should not the same rule apply to all ? There is no substantial difference, and there should be no distinction in the rule of security and protection. In Starkie on Slander, at p. 119, we have an authority to the very point now at issue. There we have the case of a defendant who said of a husbandman, ‘He owes more than he is worth; he is a runaway.’ These words were held to be actionable. The counsel have not taken the trouble to prepare any authorities on either side. I have, therefore, been obliged to cast around for such authorities as came within my reach in the hurry of the trial. I adopt this as law in this case, and will apply it in the following form and terms :</p> <p>11 If you believe that the defendant made it his business to slander the credit of the plaintiff; that his object in so doing was to injure him; that this was his purpose; that the charges were false, and that he knew them to be so at the time he gave utterance to them; that he made them maliciously, and that in consequence of them being so made, the plaintiff was sued and put to trouble and costs, then, and in that case only are the words proven to have been spoken by the defendant of the plaintiff actionable, and then and in that case only will you render a verdict for the plaintiff for such sum in damages, as you think right under all the circumstances of the case.”</p> <p>The jury found a general verdict for the plaintiff, and assessed the damages at $45; and the defendant, having taken a bill of exceptions to the charge, removed the record to this court and assigned the following errors:</p> <p>1. The court erred in charging the jury that the plaintiff was entitled to recover.</p> <p>2. The court erred in declaring the law to be, that the words spoken and laid were actionable, and that this suit could be maintained.</p>

This was an action of debt brought by the plaintiffs in error in the court below, to August term, 1832, to recover the amount of four joint and several bonds, dated September 15th, 1814, conditioned for the payment of ¿£1200 each, with interest from the 1st of April, 1814, and payable 1st of April, 1816, 1817, 1818, and 1819, respectively, executed by John Mengel, Henry Mengel, and Francis Mengel, to John Jones and John Welsh, executors of John Evans, late of Lancaster…

This was an appeal from the decree of the Orphans’ Court of Berks ' county, confirming the report of auditors on the administration account of Jacob Shilling, executor of Valentine Straub, deceased. From the proceedings accompanying the record, it appeared that several questions of fact were warmly contested before the auditors, which were chiefly decided by them in favour of the appellee.

Abraham Hoch, in and by his last will and testament, constituted and appointed John Beidler and Jacob Shilling, guardians of his daughter, Mary Ann Hoch.

<p>Appeal by Hiram B. Swar, for the use of Levi Kline, from the decree of the Court of Common Pleas of Lebanon county, in the matter of the appropriation of the money arising from a judicial sale of the real estate of Adam Miller, junior.</p> <p>The material facts in this case are fully stated in the opinion of this Court.</p> <p>On the appeal to this court, the following error was assigned:</p> <p>The court erred in decreeing the money in court to be paid to Philip Shower, and in not decreeing it to the j udgment of Hiram B. Swar.</p>

<p>From the proceedings returned to this court, by certiorari directed to the Quarter Sessions of Lebanon county, it appeared that a petition, signed by sundry citizens of Bethel township, setting forth that “ the petitioners laboured under great inconvenience, by reason of said township being too large to afford the inhabitants of said township the advantages for which those political divisions have been constituted by the laws of this commonwealth, and praying the court to appoint three commissioners (impartial men) to view and ascertain the division line to be established through said township, for the purpose of erecting a new township therefrom, commencing at a point on the Swatara township line, near Gray’s Mill, and running thence in a northeastern direction to the Shaefferstown and Fredericksburg road to a point, where it is intersected by the Jonestown and Rehrersburg, road; thence by Jacob Fisher and Philip Bensing’s, including the farms of the said Fisher and Bensing in said new township to be erected; the part in which Fredericksburg is situated to retain Hie original name; thence on the line last specified to the Berks county line, according to the act of the General Assembly of April 15, 1834, for erecting new townships, Sec.”</p> <p>That, thereupon, the court appointed three commissioners or viewers, and made an order that they, or any two of them, ££ shall malm apian of the township of Bethel, being the township proposed to be divided, and the division line, (commencing and ending as stated in'the petition,) and make a report of their proceedings to the next Court of Quarter Sessions.” To this order the commissioners appointed by the court, after stating that they had been appointed, by the annexed order of court, to view and ascertain the division line to be established through the township of Bethel, in said county, for the purpose of erecting a new township, reported that they went upon the ground, and then and there did survey and run said line as directed by said order, in the manner following, to wit, "Beginning at a point on the line of Swatara township,” Sec., and terminating at ££ a point on the Berks county line,” as designated and proposed in the petition and order. A draft of the said township was annexed to their report, the concluding words of which are as follows: ‘■’■Jind that we are of opinion that said township ought to be divided, and a new township erected therefrom, according to the prayer of the petitioners.”</p> <p>To this report exceptions were filed, and the court granted a rule to showr cause why the proceedings should not be quashed. Upon the argument of this rule, the court dismissed the exceptions, confirmed the report of the commissioners, and ordered and decreed that all that part of the said township of Bethel, on the southern side of the line run. by the commissioners, and particularly set forth in their report, be erected into a new township, &c.</p> <p>• The following are the exceptions filed to the proceedings and report of the commissioner, in the court below.</p> <p>1. There is no authority in the Court of Quarter Sessions to entertain such petition as was presented in this case, or power to make such .an order as was issued on said petition.</p> <p>2. The petition asks three commissioners to be appointed to view and ascertain the division line to be established through said township, and does not ask for any inquiry into the necessity or expediency of dividing the said township of Bethel.</p> <p>. 3. The order of the court authorizes the commissioners only to malee a plot of the township of Bethel, the township proposed to be divided, and the division line, and does not authorize them to inquire into the necessity or expediency of dividing the aforesaid township of Bethel.</p> <p>4. That due notice was not given to the inhabitants of the township of Bethel who were opposed to the division, to enable them to attend and contest the division before the commissioners.</p> <p>5. That a majority of the inhabitants of the township of Bethel are opposed to the division of the said township, and there is no occasion for the division thereof.</p> <p>It was admitted that no notice of the timé and place of meeting, &c. of the commissioners was given to the inhabitants of the township of Bethel who were opposed to the division of said township, than such as appears on the record.</p> <p>The following are the material errors assigned in this court:</p> <p>1. The court erred in dismissing the exceptions and the rule to show cause why the proceedings should not be quashed; and in confirming the report of the commissioners, and in making the order and decree contained in the record.</p> <p>2. The court erred in refusing to quash the proceedings.</p>

Appeal. This was an appeal from the decree of the Court of Common Pleas of Lebanon county, confirming the report of an auditor distributing the balance of money in the hands of Isaac Brubaker and John Dohner, assignees of Joseph Dohner.

In Error. The defendant was indicted in the Quarter Sessions of Dauphin county, for that he did erect and build, set up, repair and maintain, a certain dam of the length of one hundred feet, of the breadth of twelve feet, and of the height of six feet, in the river Swatara, in the township of Lower Swatara, in the county aforesaid, and in that part of said river declared by an act of Assembly of the Commonwealth of Penn- ■ sylvania, a public stream and common highway within…

On the 16th day of April, 1845, two justices of the peace of Dauphin county issued their precept, reciting that Rody McGee, assignee of Rebecca H. Duncan, of Halifax township, in said county, on the day of ,18 , was quietly and peaceably possessed of a certain house and lot of ground, with the appurtenances, in said township ; and being so thereof possessed, the said Rebecca H. Duncan, on the same day and year, demised the said premises to a certain John Fessler, for and…

On a writ of error to the Court of Common Pleas of Dauphin county, it appeared,'that by virtue of certain proceedings under the 5th section of the act, entitled “ An act to supply the borough of Harrisburg with water,” a judgment for $1150 was entered to August term, 1843, No. 404, upon the records of said court, in favour of Robert I. Fleming, guardian of Henry Crangle, a minor son and devisee of Henry Crangle, deceased, the plaintiff in error, against the chief burgess,…

<p>Error to the Common Pleas of Potter county.</p> <p>- This was an action of ejectment brought by John King, plaintiff in error, who was plaintiff below, against John L. Cartee, defendant in error, and defendant below, for one acre and three-fifths of land, situate in Coudersport, in said county. The writ was issued on the 7th of March, 1843, and returned, served. On the trial of the cause in the court below, the plaintiff having given in evidence the writ of eject, ment and return, offered in evidence the exemplification of a judgment from the record of the Court of Common Pleas of Lycoming county, at the suit of John Keating against John L. Cartee and Leonard Taggart, entered originally of November term, 1824, against John L. Cartee, Joshua Jackson, and Leonard Taggart, for the sum of $100, upon a bond and warrant of attorney, entered November 20, 1824. A sci. fa. issued to revive this judgment on the 11th of March, 1829, and on the 7th of May, 1829, judgment was revived on motion of plaintiff’s attorney, against Cartee and Taggart, two of defendants. It was revived again by sci. fa. issued to September term, 1833, on the 5th of September, 1833, and again on the 11th of December, 1837, by sci. fa. to December term, 1837. These several writs of scire facias were issued to the sheriff of Lycoming county, and served by him personally on the defendants, residing in the county of Potter, which, in 1834, at the time of the entry of the original judgment, was annexed to Lycoming county for judicial purposes, but was subsequently annexed to McKean, by act of 7th of March, 1824, to take effect from the 1st of September, 1826. The judgment was again revived by amicable .scire facias on the 27th of December, 1839, by stipulation filed, executed by A. V. Parsons, Esq., as attorney of plaintiff, and H. M. Bliss, Esq., as attorney of defendants. Accompanying the stipulation there was also filed’a warrant of attorney from Taggart, one of the defendants, to Bliss, dated 24th December, 1829. The warrant of attorney and stipulation are in these words:</p> <p> </p> <p>H. M. Bliss, Esq.</p> <p>Sir, — You are requested to enter an appearance in the above case for the defendants, and consent to the revival of the above judgment, by an amicable sci. fa. for the amount of the principal and interest.</p> <p>LEONARD TAGGART.</p> <p>n j . nA.i n loon Couderspori, 24m Dec., 1839.</p> <p> </p> <p>It is agreed by the counsel of the plaintiff and defendants, that an amicable sci. fa. be entered in this case, and that the prothonotary en. ter judgment for the amount of debt, and the legal interest on the judgment. ■ A. V. Parsons, Plffs. atty.</p> <p>Dec. 27, 1839. H. M. Bliss, Atty. for defdts.</p> <p>Judgment was entered by the prothonotary against both defendants for $223 43, and a fieri facias issued to February term, 1840, directed to the sheriff of Lycoming county, by virtue of which a levy was made inter alia upon the land in dispute, which was returned with inquisition and condemnation. A venditioni exponas issued to May term, 1840, directed also to the sheriff of Lycoming, who, on the 13th of May, 1840, returned the property sold to Anson V. Parsons, for the sum of $145, which "was applied upon the judgment. This evidence ■was objected to by defendant’s counsel, because, 1. The judgment of 1824 was revived by sci. fa. against Taggart and Cartee, without any suggestion as to Jackson. 2. Because the revival of judgment by amicable sci. fa. in 1839 was without authority from John L. Cartee, and void as to him; and, 3. Because the revival of judgment by sci. fa. issued to the sheriff of Lycoming county, and served in Potter, and the levy and sale by the sheriff of Lycoming county of defendant’s property situate in Potter, were without authority of law, and void. The court overruled the 1st and 3d objections of defendant, and sustained the 2d, but admitted the evidence upon the ground that the judgment was valid against Taggart, and the sale would pass whatever interest Taggart might have in the property. Plaintiff then gave in evidence a deed from John Bennet, high-sheriff of Lycoming county, to Anson V. Parsons, for the land in controversy, dated 14th May, 1840, and an assignment of the sheriff’s deed on the back of it, from Anson V. Parsons to John King, the plaintiff, dated June 18,1840. Defendant gave no evidence. Plaintiff’s counsel then requested the court to charge the jury, that if they believed all the facts given in evidence in the cause, the plaintiff was entitled to recover. To this the court responded: “We answer in the negative, and say, the plaintiff is not entitled to recoverand in reply to points put by defendant’s counsel, say, 1st, That the judgment given in evidence is not a judgment against John L. Cartee, having been confessed by Bliss without authority from Car-tee ; and, 2d, That the plaintiff, having shown no title to the property in dispute in Leonard Taggart, he cannot recover, and the verdict of the jury must be for defendant.</p> <p>The counsel of plaintiff excepted to the answer of the court (M£Calmont, President) to the points submitted by defendant’s counsel, and also to the point of plaintiff’s counsel. The jury returned a verdict for the defendant in conformity with the directions of the court, when the plaintiff removed the record to this court by writ of error, and assigned the following errors:</p> <p>1st. The court erred in their charge to the jury on the point put by plaintiff’s counsel.</p> <p>2d. The court erred in their charge to the jury on the first point put by defendant’s counsel.</p> <p>3d. The court erred in their charge to the jury on the second point put by defendant’s counsel.</p>

Writ of error to Hie Quarter Sessions of Potter county. All that is material to the understanding of this case is contained in the opinion of this court, and in the argument of the counsel for the plaintiff in error.

In Error. Error to the Court of Common Pleas of Potter county. This was a scire facias to revive a judgment and quare executio non, issued at the suit of Ira Woodford, the defendant in error and plaintiff below, against John Tompkins and Cephas Nelson, the plaintiffs in error and defendants below.

<p>It is not an objection to the validity of a county treasurer’s official bond, that a certificate of his appointment was not filed of record in the office of the recorder of deeds; nor that it was given to the commissioners of the county by their official title, instead of the county by its corporate name, nor that it was given to the county, instead of the Commonwealth; nor that the treasurer had not filed, in the commissioner’s office, a certificate by the auditor-general and state treasurer, that he had settled and paid his account wife the Commonwealth, of the preceding year.</p>

This was an appeal by Reuben Park and others from the decree of the Orphans’ Court of Bradford county; and the only question that arose in the case was, whether certain legacies charged upon the real estate of Daniel Park, deceased, in his last will and testament, were payable to the legatees immediately or not until they, respectively, attained the age of twenty-one years. The Orphans’ Court decreed, that they were payable as soon as practicable after the testator’s death.

The land of Gorslin was sold on a ven. ex., and the proceeds of sale being ruled into court, an auditor was appointed to report liens, and to distribute the fund.

This was a feigned issue, in the court below, to determine whether a certain sum of money in the hands of the sheriff, made from the sale of the goods, &c., of Henry M. Naglee, upon a ven. ex., sued out by William L. Post, should be applied towards satisfaction of that execution, or towards satisfaction of an alias fi. fa. against the said Henry, sued out by John Naglee and son.

<p>Error to the Common Pleas of Bradford county.</p> <p>This case came before the court below, on an appeal from the judgment of a justice of the peace. The action was originally brought by the plaintiff in error to recover $65, the price of an ark sold by Decker and De Long to Hiram Baker, upon the order of James H. Phinney, to whom the defendant, George Tracey, became bound as the bail of Baker.</p> <p>On the trial of the cause below, it appeared that Phinney had transferred his claim to Hanson, and, at the time the transfer was made, Hanson released Phinney from all liability. The transfer and release were executed on the 2d day of June, 1842, the day of the trial before the justice of the peace.</p> <p>After the defendant had closed his evidence, the plaintiff offered James H. Phinney as a witness to sustain the action, whom the court rejected, after an objection by the defendant’s attorney, which formed the only point for the decision of this court.</p>

<p>Under a deed of conveyance of lands to husband and wife in fee, they hold not in moieties, hut in entireties; each has an entirety of interest with the right of survivorship, so that neither can convey any part thereof without the consent of the other.</p> <p>In such case, the husband may maintain, in his own name, am, action of trespass quare clausum fregit, for cutting down and carrying away timber.</p>

<p>Error to the Common Pleas of Tioga county.</p> <p>This was a proceeding in the court below, upon a recognisance taken under the 117th section of the act of 1836, relating to executions.</p> <p>The facts of the case were as follows: One John Starkweather being indebted to Daniel'Kelsey, gave him a single bill, with warrant of attorney, in the following form:</p> <p>“For value received, I promise to pay Daniel Kelsey, or bearer, the sum of $157 89, in manner following: $81 59 by the first day of June next, with interest, and $76 30 by the first December, 1838, with, interest; and thereby authorize any attorney of any court of record in Pennsylvania to confess judgment against me for said sum, with costs of suit, with release of errors, with stay of execution until said payments become due, and with waiver of the right of inquisition on real estate. Witness my hand and seal the 28th October, 1837.</p> <p>“ John Starkweather.”</p> <p>On this single bill, on the 31st October, 1837, judgment was entered for plaintiff, (Kelsey,) waiving right of inquisition. This entry being made upon the record, the attorney, who confessed the judgment, retained the bill and "warrant in-his own possession. At tire time this judgment was entered, Starkweather was, and for twenty years before had been, in possession of a tract of land, of which he was the first improver. He had commenced a bona fide settlement upon it in 1817, and continued the same uninterruptedly. On the 22d August, 1838, Kelsey issued a fi. fa. upon his judgment, which was returned, “ stayed by order of plaintiff.” November 23,1838, al. fi. fa. returned, “levied on personal property.” July 14, 1840, ven. ex. returned, “levy stricken off by agreement.” January 20, 1841, al. fi. fa. returned, “levied on land,” part of the land levied on being that in dispute. March 10, 1841, ven. ex. returned by sheriff, “land sold to Daniel Kelsey for $300,” and Kelsey received the sheriff’s deed for his purchase, dated 17th June, 1841.</p> <p>Pending these proceedings by Kelsey, Starkweather, in 1840, leased this land to Sterry Kimball for six years, and Kimball took possession. On the 26th February, 1841, Starkweather conveyed all his right, title, and interest in the land in question to James Kimball, who took out a warrant, survey, and patent on Starkweather’s improvement, from the commonwealth, for one hundred and seventy-nine acres and one hundred and twenty-five perches.</p> <p>Sterry Kimball refusing to surrender possession of the land to Kelsey after his purchase of it, at sheriff’s sale, he instituted proceedings before two justices to obtain possession under the provisions of the act relating to executions. Sterry Kimball made oath, that as to one hundred and ninety-seven acres he held under James Kimball, and James Kimball entered into the recognisance required under the 117th section of that act.</p> <p>This recognisance being certified in the Court of Common Pleas, an issue in ejectment was joined between Daniel Kelsey, plaintiff, and James Kimball, defendant. On the trial of this issue, the plaintiff offered in evidence the alias fi. fa. of January 20,1841, to show a levy on the land in question, and the sheriff’s deed to him for the same land, to the admission of both of which the defendant objected, but the court, overruling his objections, admitted the evidence, and their admissions were the subjects of the defendant’s first and second bills of exceptions.</p> <p>The defendant, to maintain the issue on his part, made an offer of evidence, which is recited at length in the opinion of this court, the rejection of which, by the court below, constituted his third bill of exceptions.</p> <p>The court (Conyngham, President) charged the jury. The defendant contends that plaintiff cannot recover because the waiver of inquisition remained with the attorney who confessed the judgment, and has never been filed in the prothonotary’s office, and therefore that the sale is void. To this we say, that the mere non-filing of this waiver, a note of the fact of its existence being made on the record, and again noted on the fi. fa. when delivered to the sheriff, cannot at this time avail the defendant, and we refuse, therefore, to charge you as requested by the defendant.</p> <p>The defendant also asks, that upon the whole case, the court charge the jury that the plaintiff cannot recover. The court refuse so to charge, but charge you under the general undisputed fact in the cause, that the plaintiff is entitled to recover.</p> <p>To this charge the defendant excepted.</p>

This suit originated before a justice of the peace. On the 24th March, 1838, there was a final hearing before the justice, who gave judgment for the plaintiff, for $32 25. From this judgment, Bogart, the defendant, immediately appealed, and entered bail before the justice to prosecute his appeal with effect.

<p>In Error.</p> <p>Error to tbe Common Pleas of Tioga county.</p> <p>This was an action of trespass brought by Petitiah P._ Story, the defendant in error, who was plaintiff below, against Andrew Briggs, William Rose, Peter B.acker, and Bhel Baldwin, the plaintiffs in error, who were defendants below, to recover damages for talcing and selling a span of horses claimed to be the property of the plaintiff.</p> <p>On the trial of the cause in the court below, the plaintiff, who had a saw-mill, and was engaged in stocking it, after he had proved property in the horses, and the taking of them by the defendants, rested.</p> <p>The defendants then gave in evidence the record of a judgment, on the docket of John N. Frost, a justice of the peace, in favour of William Rose, one of the defendants, against Elijah Cummings, entered July 26, 1841, for $30 and costs; also executions issued thereon, directed to the constable of Lawrence township; a levy on the horses in controversy ; a receipt bond (as it was called) given by Story and Cummings to Andrew Briggs, the constable, for the delivery of the horses, and a return-of the sale of the horses, to Buel Baldwin, on the 30th of April, 1842, for $40. This they followed up by evidence, that in the fall of 1842, the horses, by the direction of Story and Cummings, had been assessed in the name of the latter. They also gave in evidence declarations of Story, intended to show, that he had sold the horses to Cummings. To rebut this evidence, the plaintiff proved that he had sold the horses to Cummings; that Cummings was to work for him by the month, until he had paid for them, at $20 per month, but that the horses were to remain the property of Story, the plaintiff, until they were paid for, and were to be kept at his barn, on the premises where he resided. There was also evidence given to show, that after this contract was entered into between Story and Cummings, a contract was made by Cummings and a certain Elias Daily, with Story, to haul logs for him, at one shilling a piece, from the foot of his roll-way to his saw-mill, and that they had drawn about three hundred logs; that they also, subsequently, made a contract with Story to stock his saw-mill at 20s. per thousand feet, to settle at the end of every month, and upon every settlement so to be made, part of the amount of money earned by and coming to Cummings, was to be applied towards payment of the horses. The horses were valued at $110; and although the evidence showed that a portion of the price of the horses had been paid by the work, labour, and services of Cummings, it did not distinctly appear how much had been paid. It was, however, clearly established, that Cummings used the horses in the business of Story, on the premises occupied by him, and kept them at his stable or barn from the time the contract was made up to the time of the sale, with the exception of a short time that they were kept at the stable of Daily, by his permission, granted at the request of Story.</p> <p>The evidence having been closed, the counsel for the defendants requested the court to charge the jury on the following points:</p> <p>1. “That under the evidence in this cause the plaintiff had not such possession of the horses, at the time of the levy and sale, as would enable him to maintain this action of trespass.</p> <p>2. « That the contract of sale of the horses, from Story to Cummings, as given in evidence on part of plaintiff, although good between the parties, (Story and Cummings,) was fraudulent and void as against the creditors of Cummings.</p> <p>3. “ That, from all the evidence in this cause, defendants are entitled to a verdict.”</p> <p>The plaintiff’s counsel also submitted to the court the following propositions, on which they requested the jury might be instructed:</p> <p>1. “That if the jury believe, from the evidence, that by the terms of the contract between Story and Cummings, the horses, for which this suit is brought, were to remain the property of Story with a qualified delivery to Cummings, and to remain on the premises of Story until Cummings should pay one hundred dollars in drawing logs at $20 per month; then the said contract, until the performance of its condition by Cummings, would not vest such an interest in Cummings as to subject it to levy and sale as his property.</p> <p>2. “That the subsequent contract,.as testified by Elias Daily, entered into by Cummings and Daily, to stock the mill at $2 50 per thousand, and to deliver logs from the foot of the roll-way at Is. per log, in the absence of any agreement on the part of Story to relinquish his right of ownership in the horses, would not defeat the recovery of the plaintiff in this suit.”</p> <p>The court, (Conyngham, President,) after presenting the case to the jury, as -a question of fact, depending upon the nature of the parol contract, charged, in answer to the points propounded, as follows:</p> <p>“ We cannot charge you as réquested in the third point of the d efendants.</p> <p>“We decline also to charge you as requested in the first and second point of defendants. These points involve the decision of facts which we cannot make; but upon your decision of the facts, if you find the bargain to be of the character which defendants contend for before you, then these points would be truly stated. The plaintiff also asks us to charge you on two points. In relation to the first point, we say to you, that you are to judge from the whole evidence, and if you find the contract as stated here, and that it remained unperformed on the part of Cummings, the conclusion of law therein stated is correct. In relation to the second point; the mere change of the kind of work to be done, or mode of paying for the horses, they still continuing to be employed in the work and business of Story, would not alter the effect of the contract; and this point may be considered correctly stated. The cause must turn, as we have already .stated to you, upon the character of the original contract, unless some other arrangement was made previous to? the levy and sale, varying the contingent or conditional character of the original contract, if you so find it to have been. The question of fact is, then, whether at any time there was an absolute sale of the property to and taking possession by Cummings, Story merely reserving a lien for the price;'if it were so, then the defendants are entitled to your verdict, but if there was merely a conditional sale, and qualified delivery of possession to be used in the work of Story, and this continued and unperformed to the time of sale, plaintiff would be entitled to recover.</p> <p>If you do find for the plaintiff, he is entitled to recover, as the ordinary measure of damages, the value of the property taken and interest thereon, and such further amount as, under all the circumstances of the cáse, as argued by the counsel before you, you may think him entitled to demand, if any.</p> <p>The defendant’s counsel excepted to the charge of the court, who sealed a bill of exceptions.</p> <p>The jury found a verdict for the plaintiff, whereupon the defendants took a writ of error and assigned the following errors in this court:</p> <p>1. The court erred in their answer to the first, second, and third points put by defendant’s counsel.</p> <p>2. The do urt erred in their charge to the jury, on the first and second points submitted by plaintiff’s counsel.</p> <p>3. The court erred in that part of their general charge to the jury in which the jury are instructed as to the measure of damages they might give the plaintiff.</p>

In Error. Error to the Court of Common Pleas of Tioga county. In the court below, this was an appeal by Philip Taylor, the defendant below, from the judgment of a justice of the peace,' on a scire facias issued at the suit of Joel Parkhurst, the plaintiff below, on a judgment obtained before the same justice in his favour, against the said Philip Taylor. The material facts in the case are fully stated in,the opinion of this court.

<p>A. having purchased from a vendee of the sheriff a life-estate in certain lands, confessed a judgment to B., which was duly entered. He then became the purchaser in fee, from a different vendor, of one-half of the land whereon his life-estate was secured, and confessed a judgment to C., which was duly'entered.. Subsequently all his right, title, and interest in this land was sold upon execution, at sheriff’s sale, and in distributing the proceeds of that sale, it was held by this court—</p> <p>1. That A. having become the owner of one-half of the land, which he had purchased in fee by a subsequent, separate, and independent contract from that by which he acquired his life-estate in the same land, the judgment in favour of B. did not attach upon A.’s fee in the land in preference to the judgment of C.</p> <p>3. That B.’s judgment was to be regarded as a lien on the life-estate only, and was to be paid as such.</p> <p>3. That in' estimating the value of the life-estate in the part of the land sold, there was no objection in this case to the adoption of the rule which prevails in England, to estimate the value of the life-estate at .one-third of the value of the fee-simple estate which includes it.</p> <p>4. That A.’s life-estate in the one-half of the land of which he was not the owner of the fee, did not pass by the sheriff’s sale of áll A.’s right, title, and interest in that land, and could not so pass in consequence of the provisions of the sixth, seventh, and eighth sections of thp act of 13th October, 1840, relating to Orphans’ Courts, &c.</p>

<p>Error to the Common Pleas of Luzerne county.</p> <p>The questions involved in this case will be understood from the statement of the facts presented by Mr. Justice Burnside, in delivering the opinion of the court. The following draft exhibits the situation of the property,</p> <p> </p> <p>and may assist in acquiring an understanding of the case. It will also show the position of the coal mine referred to, in the opinion of the court, which was situated west of said lots, and was accessible from the public road only by passing over the seventy-five acres.</p> <p>The court below (Conyngham, President) charged the jury, 1st, That the plaintiff could not, under the testimony of Dunning, extend his claim beyond the limits fixed in his deed. That all previous verbal arrangements were merged in the deed of 31st 'May, 1838. 2d, That the memorandum of 1840 could have no effect against the defendants, it being simply a declaration of his subsequent to the date of the conveyance under which- defendants claimed. And, 3d, that under the wording of the lease, it was for the jury to find whether Wheeler, the tenant under the words of the lease, had the actual occupation of the woodland when the trees were felled. That having the admitted possession of the cleared land, if he had possession of the unimproved land also, the plaintiff could not in this action recover.</p> <p>The charge of the court on the aboye points was assigned for error.</p> <p>The errors assigned are fully stated in the opinion of this court.</p>

In Error. This was a writ of attachment, in execution, issued on a judgment, in favour of Amos Keeler, surviving partner of the late firm of Keeler & Freeman against John P. Farnum, with a clause of scire facias to George F. Knapp, as garnishee. Interrogatories having been filed by the plaintiff, and a rule obtained upon the garnishee, to answer, he filed his answers. A rule was subsequently granted on the garnishee to plead, who pleaded accordingly.

<p>Where there is a judgment against two joint defendants, which remains unsatisfied until one of them die, his personal property is discharged from execution; but the plaintiffs may have execution of the land and tenements of such deceased party, if any he had, which were bound by the judgment at the time it was obtained.</p> <p>In such case a writ of scire facias is erroneous,"which calls upon the administrator of the deceased party in the judgment to show cause, why the plaintiffs should not have execution against the “ goods and effects," lands and tenements of the said deceased, in his hands: the words “ goods and ffects" should have been omitted, and the directions of the writ confined to the lands and tenements of the said deceased, which were held and owned by him, at the time of the rendition of the judgment.</p>

<p>Though the legislature may not arbitrarily divest the title of an owner and vest it in another, a statute may constitutionally give legal effect to a naked moral obligation to convey, by transferring the title to one who has paid for it either directly to the prior owner, or in discharge of his debts.</p> <p>A statute which confirmed a shoritf’s conveyance of land, part of which was out of his bailiwick, therefore held to be constitutional.</p>

In Error. Error to the Court of Common Pleas of Northumberland county. This was an action of trespass, brought by Charles Gearhart, the plaintiff in error, who was plaintiff below, against George A. Dixon, Peter Haughawout, Joseph Patton, William D. Gearhart, Joseph Reader, and Robert Scott, to recover damages for taking and selling a plough, the property of the plaintiff.

<p>Where there is no patent ambiguity in the description of a boundary, it is the province of the jury to determine how far it is answered by the monuments on the ground, aná to judge between discrepancies in the calls.</p> <p>Hence it was held, that the description in a grant, calling for the mouth of Lodgé’s run as the place of beginning, thence by several courses and distances “to a stone bridge over the run, it being in the main road at twelve perches north-east of a certain corner mentioned in a deed, &c., thence down along the said run on the southwardly side thereof to Ü19 place of beginning, the said' described run to be the boundary,” was proper to be applied by the jury, and not the court, to evidence, that there was at the date of the deed a wooden bridge, and not a stone one, over the main branch, which was usually called Lodge’s run; and that there was a stone bridge over a gut or small branch of it, at the specified distance from the particular corner tree.</p>

Error, to the Common Pleas of Susquehanna county. This was an action by Titus Smith, Jun., against Harvey H. Travis, for a malicious prosecution.

<p>Error to the Common Pleas of Susquehanna county.</p> <p>This was an action of trespass; the facts involved in which are so folly set forth in the opinion delivered by Mr. Justice Rogers, that it is unnecessary to make any other or additional statement of them here. The charge of the court below was excepted to by both parties. In this court the following errors were assigned by the plaintiff in error.</p> <p>1. The court erred in charging the jury, that a purchaser at constable’s or sheriff’s sale, who has notice that the officer has no right to sell the property, is liable to the owner in trespass.</p> <p>2. Also, in charging the jury that if the constable sold the wheat, or some part of it, which was in a barn apart from the other, without levy or advertisement, he would be liable therefor to the owner.</p> <p>3. And also, in charging the jury ££ that if the horses were removed from the possession of William Taylor, under the arrangement made with David Taylor, and were in the actual, visible, and exclusive possession of the plaintiff, (Jones Taylor,) when seized by the constable, the plaintiff is entitled to recover for them,” inasmuch as the evidence in the case did not require said instruction, and not raising the point.</p> <p>4. There is no finding by the jury as to two of tire defendants, neither for nor against them, neither is there any judgment rendered as to them.</p>

<p>Error to the Common Pleas of Susquehanna county.</p> <p>This case was before this court at July term, 1842, and in the report of it, contained in 3 Watts &Serg. 544, may be found all its leading facts. What new evidence was adduced on the second trial, together with those particular portions of the charge of the court below, upon points proposed by the defendant, Mr. Case, whieh were made the subject of exceptions here, and tire errors assigned, are so fully referred to in the opinion of this court as to render any farther report of those matters unnecessary.</p>

<p>Error to the Common Pleas of Columbia county.</p> <p>This was an action on the case, brought by Collier against Petrikin, Madden & Co., for work, labour, and services, money loaned, &c. The summons was returned “ served” upon Petrikin, and nihil as to the other defendants.</p> <p>The facts were, that in and previous to the year 1839, the defendant Petrikin, and one Madden with another, were associated together as partners in a contract for the construction of certain locks, &c., upon the Tide Water Canal, under the firm of Petrikin, Madden & Co. Collier was in their employ. The work of the partnership being finished, on the 25th December, 1839, they drew from the Canal Company their final estimate. On the 28th December, 1839, Madden, for 'the firm, gave to Collier a due bill in this form:</p> <p>"December 28th, 1839, due Nathaniel Collier a balance on settlement, for work, four hundred and eighty-eight dollars and eighty-six cents; and one hundred and sixty-eight dollars on due bill.</p> <p>$488 86 Petrikin, Madden & Co.” 168 00 $656 86</p> <p>Upon the trial, a number of points were made by the counsel of the plaintiff, and of the defendant, which are sufficiently set forth in the answers of the court, contained in the following charge to the jury by President Anthony.</p> <p>“ When a partnership is established, any one of the partners has a right to bind his copartners by due bill for work done, or for money lent for the use of the partnership concern; and if you believe the evidence in the cause, Collier was in the employ of the firm and worked for them on the section. A note or due bill signed by one partner in the name of the firm, is prima facie evidence that it was given for the debt of the firm; so that in the present case if you believe the partnership is proved, and that the note was given by the firm, or one of its partners, for the debt of the firm, your verdict, should be for the plaintiff.</p> <p>“ But it is alleged by the counsel for the defendant, that the partnership ceased previous to the date of the due bill, and that James Madden had no authority to bind David Petrikin on the 28th December, 1839. To this proposition the court cannot assent; for if the jury believe Nathan Collier worked on the Section No. 4, or Lock No. 2, during the existence of the partnership, he must have had actual notice of the dissolution of the partnership before he could be affected thereby. If he were a creditor of the firm, the partners would be liable on the due bill signed in the name of the firm, without notice to him of its dissolution.</p> <p>■ “ The counsel for both parties have requested the court to instruct the jury on a number of points subscribed by them, which the court wall cheerfully answer, and the law as applicable to the case is laid down as the court understands it; and although you are the exclusive judges of the facts, you will take the law from the court.</p> <p>“ To the 1st point made by the plaintiff, the court answer: That if the jury believe the partnership is made out as'alleged in the declaration, and if the jury are satisfied that the due bill, given in evidence, vras signed by James Madden in the name of the firm, while the connection subsisted between the partners, before a final settlement took place, or before Nathan Collier had any actual notice of the dissolution of the firm, then the plaintiff ought to recover the amount of the due bill with interest, after deducting the credit endorsed thereon.</p> <p>“To the 2d point, the court answer: That if the jury believe that James Madden signed the due bill after the dissolution of the firm, in the name of the firm, yet if the jury believe that the due bill was given for a partnership transaction during the existence of the partnership, the plaintiff is entitled to recover.</p> <p>“ To the 3d point, the court answer: That if money was loaned to James Madden on account of the firm during its existence, and he applied it to his own private and separate use, without the knowledge of Nathan Collier, the other partners in the joint contract would be responsible for the money as wrell as James Madden, and that covin, fraud or collusion must be shown on the part of Collier in order to prevent his recovery of the firm.</p> <p>“ To the 4th point, the court answer in the affirmative.</p> <p>To the 1st point made by the defendant, the court answer: That contractors on a canal are not to be considered as partners in trade, further than for the purposes of performing the contract and conducting it to completion, but so far as relates to a joint contract, the con- ■ tractors are liable as partners in trade,-for funds provided and workmen employed to carry on the work, unless there is an express agreement to the contrary, and that agreement'isJrnown to the person who furnishes the funds or does the work for thh joint contractors.</p> <p>"To the 2d point, the court answer: That after the work is finished, one joint contractor cannot create a new liability on the part of another joint contractor, but he would have a- right to give a due bill in the name of the firm, for work and labour done or for money borrowed before the work was finished to carry on- and-complete the joint contract, and for such due bill the members of the firm or joint contractors would be responsible. z</p> <p>“ To the 3d point, the court answer: If the jury believe that the due bill given in evidence was made after the canal sections were finished, it would furnish evidence to charge the. defendant, unless the due bill was given after a settlement took place between the joint contractors, and the connection between them was dissolved, and the plaintiff had notice of such dissolution before he took the due bill. The due bill is primfi facie evidence that it was given for the debt of the firm, and unless the plaintiff had notice oí its dissolution before he took it, it is binding upon the defendant. The court know of no evidence that the plaintiff knew of the dissolution; if the. jury can find any such evidence they will consider it.</p> <p>"To the 4th point, the court answer: That if the jury believe the consideration of that part of the due bill of December 28th, 1839, which mentions the $168 00 on due bill, was for work done or for money lent by Nathan Collier to carry on the joint Contract, then the evidence is sufficient to charge the defendant with the $168 00.”</p> <p>The jury found a verdict for plaintiff, on which judgment, and in this court, the plaintiff, in error assigned for error the whole of the first paragraph of the charge above -given; the whole of the second paragraph ; the answers to the points of'the plaintiffs below, and the answers to the point of the defendant below.</p>

<p>Tins'.was an appeal from a decree of the Common Pleas of Lycoming county, distributing the proceeds of the sale of the real estate of J. A. Shulze, in which Augustus ^E.'Shulze was the appellant and George Tormbe and others were the appellees.</p> <p>J. A. Shulze, being much indebted, and judgment to a considerable amount having been alrea4y obtained against him, on the 25th April, 1844, confessed a judgment, No. 312, April term, 1844, to his son, the appellant, for |8119 07. On the 27th of the- same month, George Tormbe obtained a judgment. On the same day F. C. Campbell. On the 29th, Abraham. Lawshe, and on that day and' soon afterwards, many others obtained judgment against J.~A. Shulze. By the sales of real and personal estate of Mr. Shulze,_the judgment prior to his son’s having been satisfied, and there being in court a large sum of money, the produce of these sales, not sufficient^ however, to satisfy the claims of the son and of the subsequent creditors, these creditors agreed together to contest the validity of the judgment confessed to the appellant, and signed, an instrument by Which they agreed to pay, pro rata, all the expenses and costs of the necessary legal proceedings. The applica tion for a feigned issue to try the validity of this judgment was signed by Abraham Lawshe alone, and the issue itself was made up between him as plaintiff and Augustus E. Shulze as defendant. This issue resulted in a verdict for the plaintiff.</p> <p>After this verdict and judgment thereon, upon the distribution of the money in court, Augustus E. Shulze claimed the amount of his judgment against his father, No. 312, April term, 1844, except so far as related to the judgment of Abraham Lawshe. This claim the court below disregarded, and proceeded to distribute the moneys among the subsequent judgment creditors, and decreed accordingly. From this decree Augustus E. Shulze appealed, and in this court made the following assignment of error.</p> <p>The court erred in deciding “ that the verdict and judgment in the feigned issue, directed by the 'court to try the validity of the judgment of Augustus E. Shulze v. J. A. Shulze, was conclusive to postpone said judgment as to other judgment creditors, and prevent it from receiving any part of the money in court for distribution,” and in decreeing that said proceeds of sale be distributed among the other junior judgment creditors of J. A. Shulze.</p>

This was an appeal by Dunham from the judgment of a justice of the peace, before whom Rogers brought suit against Dunham for the value of certain lumber, sold and appropriated to the use of the defendant. The evidence upon the trial below, somewhat curtailed, was this. On the part of the plaintiff, Robert Spencer testified as follows: — “ Plaintiff delivered ash plank at Bronson’s shop. They were worked up in the shop. I suppose Dunham had the handles made out of theni.

<p>In Error.</p> <p>Error to the Common Pleas of Union county.</p> <p>The plaintiffs below, Hart, Cummings, and Hart, obtained judgment against the defendants below, Charles Pellman and Daniel Beckley, to August term, 1842, entered up September 5th, 1842. The present suit was an attachment in nature of an execution on the said judgment against the said defendants, with summons to Samuel H. Knight, garnishee, to November term, 1842, issued and served September 20th, 1842. On the 2d August, 1842, Samuel H. Knight and his wife gave their joint and several -single bill to Daniel Beckley for $311, payable in one year. August 3d, 1842, $52 were paid on said bill, and the balance remained unpaid at the service of the attachment. On the 5th September, 1842, by endorsement on said bill, (reciting for a valuable consideration,) Daniel Beckley assigned the same to his sister Mary Beckley, under his hand, and delivered the same to her. There were no subscribing witnesses to the assignment. The consideration alleged on the trial was a debt due to his sister, , and evidence was given of work and services ¡performed by her for him, as also some evidence of indebtedness to her as executor of his father’s estate. It was further proved that Beckley had the bill in his possession at a meeting of his creditors on the day the attachment was served; that to compromise with them, and prevent them compelling him to take the benefit of the bankrupt act, he offered it to them;'that the creditors refused to take the bill because the sheriff had attached it; that Beckley on that occasion said he had assigned the bill to- his sister, but that she agreed to let him. use it, if he could, in making such a compromise with his creditors. No compromise was effected.</p> <p>On this statement of facts the counsel for the plaintiffs requested tire court to charge the jury—</p> <p>That if the jury believe that the attachment was served upon Knight on the 20th September, 1842, before he had any notice of the assignment to Mary Beckley, the plaintiffs are entitled to recover.</p> <p>To which the court answered—</p> <p>Had Knight paid the amount due on this note when it was attached, or confessed judgment on it, or judgment been taken against him by rule of court, for want of an appearance or otherwise, without any previous notice of the assignment to Mary Beckley, he might have been discharged from the payment of it to her; but as it was not, and is not paid yet, and before payment or judgment against him he has notice of the transfer, we are of opinion that the principle contended for by the plaintiffs in this proposition does not apply; we, therefore*, refuse to give the instruction, and leave the cause with you for your decision on tlie questions of fact raised by the evidence.</p> <p>The counsel for the defendants also requested the court to charge the jury upon the following points:</p> <p>1st. If the jury believe from the evidence that Daniel Beckley was indebted to his sister Mary, and that on the 5th September, 1842, he assigned and delivered the single bill, now in controversy, to her, towards payment on what he was indebted to her, then plaintiff cannot recover.</p> <p>2d. If they should believe from the evidence that after the said single bill was assigned and delivered by the said Daniel to his sister Mary, some of his creditors threatened to force him into the bankrupt act, and that he got the said single bill upon condition that he should return it to her again, in case he could make no arrangements with his creditors not to force him into the bankrupt act, and that no arrangement was made with his creditors, and that he accordingly returned it to her; then the plaintiffs are not entitled to recover, even if the jury should believe plaintiffs’ attachment was served while Daniel Beckley had the single bill in his possession for the purposes aforesaid. *</p> <p>3d. That if Daniel Beckley was indebted to his sister Mary, he had a legal right to pay her by assigning obligations to her, although he was at the time in insolvent circumstances.</p> <p>To the first point the court answered — as a general principle this is correct; and referred to the general charge.</p> <p>To the second and thud points, the court answered as requested.</p> <p>The charge of the court below is omitted, as the substantial parts sufficiently appear in the points submitted and answered.</p> <p>The jury found for the defendants, whereupon the plaintiffs took this writ of error and assigned the following errors:</p> <p>1st. The court erred in their answer to plaintiff’s point.</p> <p>2d. The court erred in their answer to defendant’s first, second, and third points.</p> <p>3d. The court erred in their charge to the jury by saying, “ that on the issue by the evidence, the questions for decision are, was the transfer to Mary Beckley a bona fide transaction made as alleged by the defendant for the payment of a debt due by Daniel Beckley ? 2d. If this be so, did Daniel Beckley again become the owner of the note ?” and in all the other parts of the charge relating to these two questions.</p>

<p>A. became the owner of a large real estate, consisting of divers tracts, lots, and parcels of land lying in two different counties, given to him by the will of his father, subject to the payment of the testator’s debts and various legacies bequeathed by him to his daughters, grandchildren, and great-grandchildren. The legacy to one of his daughters was an annuity of $200, during her life; and most of the grandchildren and great-grandchildren being minors, the legacies to such were made payable on their attaining full age, or getting married. The whole of the estate being thus encumbered, the owner executed mortgages on different portions thereof; to different persons, at different times, to secure the payment of debts contracted by him, and gave judgments also in the Court of Common Pleas of each county where the estate lay, at different times, to different persons, for various sums of money. The whole estate, lying in both counties, was sold under judicial process, at the instance of various creditors of the son, and thereby converted into money, which was brought into court for distribution and apportionment amongst the different claimants.</p> <p>First. Ordered that the debts of the testator and the legacies, so far as they had become payable at the time of the judicial sale, or their cash value capable of being ascertained, should be paid in full out of the moneys arising from those portions of the estate-fest encumbered, which would otherwise have been applicable to the payment of such encumbrances.</p> <p>Secondly. As to the annuity given to the daughter, becoming payable subsequently to the judicial sale, and the legacies payable to the legatees upon their attaining full age, or getting married, where neither event had happened at the time of the sale, and their cash value, therefore, incapable of being ascertained; they must still remain a lien or charge upon the estate as before, and be paid out of it, in the hands of the purchasers, according to the inverse order of time, in which the encumbrances or liens, for which it was sold, were created by the son on the different constituent portions thereof; that is, the part last encumbered by the son must be resorted to first, and if not sufficient to pay, then the other portions thereof in the hire, inverse order, until the annuity, as long as it shall endure, and the legacies, shall be paid off</p> <p>Thirdly. The liens and encumbrances created by the son in favour of his creditors on the different parts of the estate, must be paid out of the moneys arising from the sales, according to the order of time in which they were created: that is, all the moneys arising from the sales of the part first encumbered, must be applied to the payment of such encumbrance first, and so on until the moneys arising from the sales shall be exhausted, leaving, however, at the last, a sufficient sum to pay the testator’s debts, and the legacies which had become payable, or the cash value whereof had become capable of being ascertained at the time of the judicial sale.</p> <p>Fourthly. The principle laid down in Nailor v. Stanley, 10 Serg. & Rawle, 450, is reestablished; and the converse of it, winch was adopted by a majority of the court in the case of the Presbyterian Corporation a. Wallace and others, 3 Rawle, 109, is overruled. And the case of Donley v. Hays, 17 Serg. & Rawle, 400, if not overruled, would seem to be somewhat shaken at least.</p> <p>The costs in each particular case must be paid out of the moneys applicable to the payment of the debt, and the interest thereon claimed.</p> <p>The costs incurred by forming and trying issues, including charges made by printers for advertising rules, and the charge of a commissioner for reporting the facts,- &c., must be apportioned amongst the several creditors, and they are to contribute to the payment thereof in proportion.</p> <p>• [The Reporter regrets, that the limits of a report would not warrant him in publishing the able arguments of the counsel in this case. - The length of the arguments, which could not be condensed without doing injustice to the learned gentlemen, and which were kindly furnished at the request of the Reporter who was necessarily absent, alone precludes their insertion here.] •</p>

In Error. Error to the Common Pleas of Union county. William Donaldson and Anna'Maria, his wife, against the West Branch Bank and the Bank of Pennsylvania.

<p>It is not error to admit in evidence, in an action of ejectment, a draft of an unofficial survey, showing the location and boundaries of the land; on the contrary, it has ever been held admissible for such purpose, as it always tends to render the testimony more intelligible than it would be without it.</p> <p>A verdict and judgment in an action of trespass vi et armis, under the pleas of non cul. and liberum tenementum, are admissible on the trial in an ejectment between the same parties and for the same land.</p> <p>The taking out a warrant for unimproved land, surveying the same, and returning it into the land office, invests the owner, according to the law of Pennsylvania, with the legal title thereto, and, in contemplation of law, refers the possession to the title; and if another, without claim or colour of title, enters upon the land, clears, fences, and cultivates certain portions thereof, and designates the extent of his boundaries, the law regards him a disseisor of the owner, whom the law considered as actually seised at the time; and he acquires such right as to entitle him to hold it against all mm, but the owner thereof; and if he continues in the actual, adverse, notorious possession for a period of twenty-one years, he thereby acquires a title to the same against the legal owner, not only to the cleared and cultivated portions, but to the extent of his boundaries, under the statute of limitations.</p> <p>Residence of the party making the wrongful entry into the land of another, has never been held or deemed necessary to constitute a disseisin ; and the owner may be as completely evicted and removed from his possession of the land by clearing, fencing, and cultivating it, without as with the wrongdoer’s residence thereon at the time; and more especially may this be done where the land is in a wild and unimproved state.</p> <p>A wrongdoer or disseisor may recover in an action of ejectment against a subsequent intruder, without an actual adverse possession for twenty-one years. The court, therefore, erred in their instruction to the jury, that twenty-one years’ actual, adverse, notorious possession was necessary to the plaintiffs’ riglit of recovery against the defendant, who came into possession without claim or colour of title, subsequent to the entry of the plaintiffs. ></p>

In Error. Error to the Common Pleas of Bradford county. This was an action of trespass quare clausum fregit, which originated before a justice of the peace, and was brought by Julius S. Holden, the plaintiff in error, against Francis Cole, Israel Smith, Daniel Cole, George Coolbaugh, Marvin Thayer, Nelson D. Warford, William Coolbaugh, and William Cowell, the defendants in error, to recover damages for breaking and entering the close of the plaintiff, pulling down his fence,…

<p>The act of Assembly of the 31st of March, 1836, entitled “An act in relation to Duquesne Way, in the city of Pittsburgh,” is constitutional.</p> <p>When private property is taken for public use, it is not necessaiy that the compensation to the owner required by the Constitution should be actually ascertained and paid before the property is appropriated, but it is sufficient if an adequate remedy is provided, by which he can obtain compensation without any unreasonable -delay. The act of the 31st March, 1836, “in relation to Duquesne Way,” gives to the owner of a lot m Penn-street, to which land bounded by the Alleghany river is appurtenant, and to whom the right of landing on said river belongs, an adequate remedy for the appropriation by the city of Pittsburgh of said land and right of landing by the opening of Duquesne Way.</p> <p>When such owner was a member of the city councils that authorized the opening of the said way, petitioned them for that purpose, was a member of the committee to which - the petition was referred, participated in all the proceedings that resulted in the opening, and stood silently by while the city was malting large expenditures and valuable improvements to both the street and landing, he has neither a legal nor equitable right to set up his title against the city.</p> <p>When a private person sutlers some extraordinary damage beyond other citizens by a public nuisance, he shall have a private satisfaction by action, even if his special damage be merely consequential.</p>

<p>The court may amend its record by transferring the proceedings to the proper suit when by mistake they have been filed in a suit to which they do not belong.</p>

In Error. This was an amicable action of debt, in which the plaintiff in error was plaintiff, and a case was stated in the nature of a special verdict for the opinion of the District Court of. Alleghany counly, from which it came up on a writ of error.

<p>Appeal.</p> <p>Appeal from the Orphans’ Court of Alleghany county.</p> <p>John McMasters, appellant, against Robert Carothers, guardian of Thomas Chalfant, Jun., appellee.</p> <p>Thomas Chalfant died intestate, leaving issue two children, viz., Thomas Chalfant, Jun., and Jane, intermarried with Dr. Gore.</p> <p>The real estate of intestate consisted of two tracts of land, situate in Alleghany County, containing in all about two hundred and sixty acres.</p> <p>Dr. Gore and wife, by deed dated January 4th, 1844, conveyed all their interest in the said lands, being one half thereof, to John McMasters, the appellant.</p> <p>During the life of intestate, he permitted his brother, Ananias Chalfant, to take possession of a lot of ground attached to, and considered a part of, one of the tracts, who, in 1819, built a house upon it, and has ever since continued to reside in it.</p> <p>On the petition of Robert Carothers, guardian of Thomas Chalfant, Jun., on the 27th of November, 1844, the Orphans’ Court of Alleghany county awarded an inquest to make partition and valuation, &c., of the real estate of intestate; and on the 20th of November, 1844, a return of the inquest was made, dividing the lands into four parts. The lot in possession of Ananias Chalfant was included in one of the purparts. The jury of inquest was summoned by a constable, who was directed by the deputy-sheriff to call at the office of Mr. M., where blank notices for the jurors had been left, whicl^Mr. M. would fill and give to him to serve. It did not appear that Mr. M. had received from any one the names of jurors to be inserted in the blank notices.</p> <p>The Orphans’ Court decreed a confirmation of the inquisition, whereupon this appeal was taken. Several errors were assigned by appellant’s counsel, of which the principal are as follows:</p> <p>1. The intestate did not die seised and possessed of the lands of which partition was made by the inquest.</p> <p>2. The jury undertook to adjudge a question of title to part of the lands, although Ananias Chalfant, who claims said part, has claimed, improved, and occupied the same for twenty-four years past.</p> <p>3. The jury was improperly selected and chosen ; the deputy sheriff could not lawfully authorize any one to select them.</p>

<p>Appeal,</p> <p>This was an appeal from the decree of the Orphans’ Court of Alleghany county by Eli Frew, guardian of the minor children of William Miller, deceased.</p> <p>The facts of the case are these:</p> <p>William Miller, the father of said minors, died seised of a tract of land containing about twelve acres, situate near the city of Pittsburgh, on the Washington turnpike-road. At the time of his decease there was on the premises a good stone dwelling-house, forty-eight feet long and twenty feet wide, two stories high; also a stone back-building sufficiently large for a dining-room and kitchen, the whole well furnished. There was also a good bam and other necessary improvements on the tract. The late guardian, James Kearnes, to make the house suitable for a tavern, erected an addition to it sufficiently large to make another dining-room and some chambers. ■ He himself kept it as a public house from the fall of 1835 until the spring of 1839. In his guardianship account he claimed a credit of $474 85, the cost of erecting this new building. The account was referred to auditors, who-struck from the account this credit; to this the attorney for accountant excepted, the court sustained the exception, set aside the report of the auditors, and reinstated the credit. To this decree of the court, Frew, the present guardian, excepted and entered this appeal.</p>

<p>A husband’s disclaimer of conversion to his own use at the time of reducing his wife’s chose in action to possession, may be established by his subsequent admissions proved by the testimony of witnesses; hut the admissions must appear to have been deliberate, positive, precise, clear, and consistent. Held, therefore, that a husband’s declaration that he has certain money of his wife’s; that he would pay it back to her, and that it should not be said he has any of her money; or that he wanted only the use of it for the present, and that it would go to her children, or that they should have it — are insufficient to establish her right of survivorship.</p>

In .Error. Error to the Court of Common Pleas of Alleghany county. The plaintiff in error was the defendant below. The case was brought to the Court of Common Pleas on appeal by defendant, from the judgment of Joseph Shaw, Esq., a justice of the peace.

In Error. Error to the District Court of Alleghany county. The plaintiffs in error were plaintiffs below. The action was trespass quare clausum fregit. The facts of the case are these: At the time that Pittsburgh was laid out by the agents of the Messrs. Penn, the proprietary ground on the south side of the Monongahela river was also divided into farms and lots, and a draft thereof reported to the Messrs. Penn.

<p>S. L., after directing in his will that all his just debts and funeral expenses should be paid, devised to his wife, during her life, “ the one-third part of the clear annual income of his estate, whether the same be more or less, or increased or diminished during her life.” Held, that the widow took the one-third of the balance of rents after poyment of the debts out of the same.</p>

<p>Permission to file during a trial a paper affecting' the event of the matter in issue, is error, for which judgment will be reversed, if exception be taken when it is offered, or when it is sanctioned by the charge of the court.</p> <p>A written statement made at the trial by the defendant in slander, disclaiming any malevolent intentions towards the plaintiff, cannot be given in evidence on the trial, nor sent out with the jury, although allowed by the plaintiff to be given in evidence.</p>

In Error. Error to the District Court of Alleghany county. This was an action on the case in assumpsit, brought by Thomas O’Neill, the defendant in error, who was the plaintiff below, against the Mayor, Aldermen, and Citizens of Pittsburgh, the defendants below, to recover $250, or thereabouts, for work and labour done, and materials furnished, agreeably to a contract between the parties for paving the top of the basin connected with the new waterworks of said city.

<p>In Error.</p> <p>Error to the District Court of Alleghany county.</p> <p>Garrett Moore, the defendant in error and plaintiff below, brought an action of ejectment against Samuel Black, Reuben Rigley, Rebecca Moore, and Frederick Ramsey, the plaintiffs in error and defendants below, to recover the one half of a tract of two hundred and thirty-five acres of land situate in West Deer township, Alleghany county. The facts necessary to elucidate the points decided are the following:</p> <p>It appeared in evidence that the title to this land had issued from the Commonwealth to William Van Phal, to whom a patent was given in 1786.</p> <p>In 1809 or 1810, Garrett Moore, the plaintiff, took possession' of the land, cleared from three to five acres, enclosed it together with several additional acres, on which he had girdled the timber, and raised grain on the cleared land for one' or two years. After this, and before Garrett left the premises, his brother Joseph Moore entered, erected a cabin, moved into it with his family, and continued to reside on and improve the land until his death, which occurred in 1829. After his death, his heirs, and those claiming under them, continued to hold and cultivate the land until the time this suit was instituted, at which time the defendants were living on the tract.</p> <p>The defendants contended that as Joseph Moore and those claiming under him were the real occupants of the land for more than twenty-one years, they alone are entitled to the whole tract.</p> <p>The plaintiff founded his claim upon the fact that he made the first improvement upon the land, and upon an alleged parol contract or lease made between himself and his brother Joseph Moore, by which said Joseph entered upon the land and agreed to reside thereon and hold the adverse possession for twenty-one years, unléss disturbed or removed by the holder of the legal title, but if not disturbed and the title became perfected by the statute of limitations, then, to wit, at the end of twenty-one years from the entry by Garrett, the land was to be equally divided between them, share and share alike.</p> <p>To prove this alleged parol agreement, the plaintiffs offered to read the deposition of John Anderson. This was objected to by defendant’s. counsel, because it did not appear that the deposition was taken between the hours named in the rule, nor in pursuance of it. The plaintiff, Garrett Moore, was then sworn on his voir dire, and stated, that he served the subpoena upon John Anderson, to bring him before the justice of the peace for the purpose of taking his deposition; that he served but one subpcena; that he was present when the deposition •was taken by the justice, and that it was taken between five and six o’clock, p. m. of the day mentioned in the rule; that no person attended on the part of the defendants during the day on which the deposition was taken.</p> <p>On this, the court annulled the objection and admitted the deposition to be read-in evidence, which proved the contract as stated above. To this the defendants took exception, and a bill was sealed by the court.</p> <p>The court charged the jury as follows: — “The first question for attention is that which arises under the statute of frauds and perjuries. The contract between Garrett and Joseph Moore being by parol, — is it therefore void by the statute of frauds and perjuries ? The statute renders void every transfer by parol of any interest in land greater than a lease for three years, and would apply to such a claim as the plaintiff had to the land in question at the time of the alleged contract between him and Joseph. If the plaintiff is now claiming to recover upon that contract alone, without any other right or claim, then, unless he could show that the parol sale of the lease was accompanied by visible and exclusive possession under such sale, together with the payment of the consideration agreed upon, or the making of valuable improvements by the vendee, his case would come within the provisions of the statute. But Garrett did not purchase nor lease the land from Joseph, and therefore the application of the 'statute is not readily perceived.</p> <p>“The parol contract is not the inception of Garrett’s claim, nor does he present it for that purpose, but for the purpose of showing the terms on which Joseph entered and held, and for whose benefit the adverse title became perfected. Nor-is Joseph claiming an equitable right, nor demanding the specific performance of a parol contract. He is asking for a legal right, if any thing, and to be restored to that possession which he alleges he held before Joseph entered, and to that title which he asserts Joseph agreed to preserve and perfect for their joint benefit. The statute of frauds and perjuries, therefore, presents no obstacle to the plaintiff's recovery.</p> <p>“2d. The next question presented by the defence is, what is the effect of the statute of limitations upon the plaintiff’s claim ? In order to give a title by the statute of limitations, there must have been a continuous, notorious, and adverse possession for twenty-one years. There must be no holding under the plaintiff. If the defendants have obtained possession of the plaintiff, or by his consent, they will not be protected by the statute, or if they acknowledge that they were holding the possession of the land for the owner or owners thereof, it cannot be deemed adverse, and consequently the statute will form no bar to a recovery of the land. Again, it is decided that the statute of limitations does not begin to run until there has been a right of action in the plaintiff against the person in possession, although he may have declared his possession to be adverse.</p> <p>“ That Joseph Moore and those holding under him had the possession of the land more than twenty-one years, there is no doubt. The only question is, was it an adverse possession ? This is a question of fact for the jury to decide.</p> <p>“ But again,, the contract (if it existed) stipulated that Garrett was to have the one half after or when the title of himself and Joseph was perfected by the statute of limitations against the owner of the legal title. This being the case, the statute as between Garrett and Joseph would not begin to run until twenty-one years after Garrett took adverse possession ; for, by the terms of the agreement, Joseph was to retain possession until that time would elapse, and consequently Garrett had no right of action against Joseph, until, by the terms of the contract, he, Joseph, could claim the possession.</p> <p>“ Garrett’s entry was in 1809 or 1810, and his right of action did not accrue till 1830 or ’31; since that time, twenty-one years have not elapsed, and the statute of limitations would form no bar to the plaintiff’s recovery.”</p> <p>To this charge, the counsel for both plaintiff and defendant excepted. The jury rendered a verdict in favour of the plaintiff for the undivided half of two third parts of the tract in dispute, with six cents damages and six cents costs, and for Samuel Black, as to the remaining third ; whereupon the defendants removed the record to this court and assigned the following errors.</p> <p>1. The court erred in admitting the deposition of John Anderson; it not appearing by the certificate of the justice, nor by any competent testimony, that' it was taken within the hours named in the notice annexed to the rule.</p> <p>2. The court erred in admitting the cross-examination of James McClelland, as to declarations of Garrett Moore, in regard to certain things not referred to, nor testified about in the examination in chief.</p> <p>3. The court misled the jury, in charging them, that alter Garrett Moore had cleared from two to five acres, and before he left the premises, his brother Joseph entered, &c., and that that fact (amongst others) was abundantly shown by the testimony, when, in fact, the evidence was, to say the least of it, doubtful, whether Garrett, when he discovered, the tract did not belong-to Dorsey before Joseph entered, had not abandoned his improvement, &e.</p> <p>4. The court misled the jury in stating the testimony of plaintiff’s principal witness, Robert Thompson', and in construing the same; the court saying, in reference to that testimony, that it was not till the end of. twenty-one year’s, &c., that the property was to be divided between Garrett and Joseph, &c. &c.</p> <p>5. The court erred in charging the jury “ that the application of the statute of frauds to tire present case could not readily be perceived; and that the statute of frauds and -peijuries presented no obstacle to the plaintiff’s recovery.”</p> <p>6. The court erred in entering judgment,on the verdict as rendered.</p> <p>7. The court erred in charging the jury “ that the statute of limitations would form no bar to the plaintiff’s recovery in this case.”</p>

<p>In Error.</p> <p>Error to the District Court of Alleghany county.</p> <p>This was an action of covenant, instituted by the President, Directors, and Company of the Bank of the United States, for the use of the President, Directors, and Company of the Bank of the United States of Pennsylvania, now for the use of James Dundass, Mordecai D. Lewis, Robert L. Pitfield, Samuel W. Jones, and Robert Howell, the defendant in error, who was plaintiff below, against James B. Irwin, the plaintiff in error, who was defendant below, to recover certain arrearages of ground-rent. The defendant pleaded covenants performed absque hoc, payment, with leave, &c.</p> <p>At the trial in the court below, the plaintiff gave in evidence a deed from James Robinson and wife, dated January 24,1807, to William Nixon, his heirs and assigns for 'ever, a certain lot or piece of ground situated in the borough of Pittsburgh “to have and to hold, by this perpetual lease, from the date thereof to the end of the world, yielding and paying the yearly rent of $60.”</p> <p>The death of James Robinson was admitted to have occurred on the 16th of August, 1814, and that William Robinson was his heir at law.</p> <p>The plaintiff then gave in evidence a deed from Morgan Neville, sheriff of Alleghany county, to the" Bank of the United States, dated November 6, 1822, for the ground-rent.</p> <p>■ Also, the acknowledgment and record of a deed, dated August 16, 1827, from William Lecky, sheriff, to Samuel Kingston, for tire lot or piece of ground, sold as the property of Nixon’s heirs, subject to the payment of the annual ground-rent of $60.</p> <p>Also, a deed from Samuel Kingston and wife to John Murphy, for the aforesaid lot, subject, nevertheless, to the payment of the aforesaid annual rent.</p> <p>And also, a deed from John Murphy to James B. Irwin, dated July 1, 1836, for the same lot, subject to the payment of the annual ground-rent as aforesaid.</p> <p>The plaintiff claimed rent from the 1st July, 1836, to the institution qf the suit.</p> <p>The plaintiff having rested, the defendant offered to prove, “ that prior to Samuel Kingston’s purchase of the lot of ground at sheriff’s sale, he had bought it at a treasurer’s sale, as unseated land, and held it thereby discharged of the ground-rent.” He also offered in evidence a deed from William Blair, treasurer of Alleghany county, to Samuel Kingston, dated June 14, 1824, for the lot of ground aforesaid, together with the assessment lists, surplus bond, and other records of the commissioners and treasurer’s offices, pertinent (as alleged) to this sale.</p> <p>To the admission of the evidence so offered by the defendant, the counsel of the plaintiff objected, for the following reasons:</p> <p>1. That defendant cannot show such a defence under the present pleadings.</p> <p>2. Defendant, having accepted a transfer of the lease under which Nixon entered, cannot contest'the title of the lessor or grantor.</p> <p>3. The relation of landlord and tenant subsisting and being created by defendant’s own voluntary act, he is estopped from contesting the title of the landlord.</p> <p>4. That the defendant is estopped, unless he first pleads a disclaimer specially, or enters such a plea as xyill estop him from 'claiming under the lease at a future period.</p> <p>5. The. lessee having covenanted to pay the taxes on the property leased, neither he nor his assigns can set up a title hostile to the lease, derived from the neglect of'any one claiming under the lease to discharge the taxes.</p> <p>The court sustained tire objections, and overruled the evidence, and sealed a bill of exceptions.</p> <p>The defendant then renewed his offer, connected with proof that the bank (plaintiff) received the proceeds of the surplus bond.</p> <p>Plaintiff continued the objections, and' averred that defendant was estopped, unless he disclaimed holding under plaintiff on record.</p> <p>The court sustained the objection, and sealed a bill of exceptions.</p> <p>The defendant removed the record to this court by writ of error, and assigned the rejection of the evidence offered by him in the court below for error.</p>

<p>Certiorari.</p> <p>The record of the proceedings in this case was brought up by certiorari to the Court of Quarter Sessions of Alleghany county.</p> <p>The facts of the case, and the errors assigned in this court, are fully stated and referred to in the opinion of this court.</p>

<p>Certiorari.</p> <p>Certiorari to the Court of Quarter Sessions of Alleghany county.</p> <p>In this case, the petitioners prayed for a public road to be laid out from the present township road, at or near the dwelling-house of John Keating, to intersect Coal street, at the property of James Gray.</p> <p>On the 1st of October, 1843, viewers were appointed, who, on the 28th of the same month, reported a road, agreeably to the prayer of the petitioners. This report was approved by the court; but, on remonstrance being made, on the 8th of January, 1844, proceedings were quashed.</p> <p>On certiorari of the proceedings, the Supreme Court awarded a writ of procedendo ; in obedience to which, the Court of Quarter Sessions, on the 21st of October, 1844, approved the report of the viewers, and ordered the road to he laid out ffty feet in width, except the first three courses and distances, which were ordered to be thirty feet in width. Under this order, the supervisor immediately proceeded to open the road. On the 25th of November, in answer to the petition of John D. Davis, the court granted a rule to show cause why proceedings should not be set aside, and in the mean time the further execution of the order for opening the road stayed; which rule was, on the 1st December, made absolute.</p> <p>The party who took this writ of certiorari, assigned the following errors:—</p> <p>1. The court erred in granting the rule of the 25th of November, 1844, on the petition of John D. Davis, and in making said rule absolute.</p> <p>2. The court erred in staying proceedings on the order to open the road, the road having been regularly confirmed, and the order for opening the same having been issued at the next term after the said road was confirmed and the width fixed.</p> <p>3. The court erred in interfering with said road, the same having been regularly approved and confirmed, and said court having no further jurisdiction over the same.</p>

<p>In Error.</p> <p>An amicable action of debt was entered, in which the defendant in error was the plaintiff* below; and a case stated in the nature of a special verdict, for the opinion of the District Court of Alleghany county, from which it came up on a writ of error. It was as follows :</p> <p>The plaintiff is an incorporated company, deriving its charter under an act of the legislature of this state, passed the 4th day of April, a. d. 1844, (prout the said act,) made a part of this case.</p> <p>The said company were duly organized within a short period after its creation, and .proceeded to issue policies of insurance, in conformity with the provisions of said act, to about four hundred and seventy-five applicants, and for an amount exceeding the sum of $1,100,000.</p> <p>The defendants, on the 5th day of April, a. d. 1845, became members of said company, by effecting an insurance therein for the term of five years from that date upon their machinery and stock in trade, as tobacconists, in the sum of $2,500, upon deposit of their promisspry note (payable to the said company or its treasurer, in such portions, and at such times, as the directors thereof might, agreeably to their act of incorporation, require) for the sum of $200, being the amount determined by said directors; and upon the payment of five per cent, of the said amount thereupon, in conformity with the charter and by-laws of the said company. On the 10th day of April, 1845, a fire occurred in the city of Pittsburgh, which resulted in the destruction of property insured by said company to the amount of $72,000, and upwards (as ascertained by the directors thereof) and exceeding in value the whole amount of the premium notes and other resources of the company, together with the additional sum of one dollar on every one hundred dollars insured by them, at the time of said fire or afterwards.</p> <p>On the 15th of the same month of April, the directors of the said company, at a special meeting convened in reference to that calamity, and with a view to the losses sustained thereby, directed a call upon the members thereof for the sum of twenty per cent, on the amount of the premium notes by them respectively given, payable in thirty days thereafter to the treasurer of the company, of which notice was duly given, in pursuance of the act of Assembly and by-laws of said company.</p> <p>Afterwards, to wit, on the 9th of June, 1845, the directors of the company, having been duly notified of the losses sustained by the members thereof, by the said fire of the 10th of April, upon property insured therein, and having duly ascertained the same, and moreover that the whole of the deposit notes and other resources of said company would not be sufficient to pay said losses, did, in conformity with the terms of their charter, assess on the members thereof the whole amount of the unpaid balance of their respective notes; and in addition thereto, the sum of one dollar on every hundred dollars, by them respectively insured, to be paid to the treasurer of the company on or before the 10th of July then next ensuing, whereof due public notice was also given in the manner prescribed by the charter and by-laws of the company.</p> <p>The defendants paid the amount of the first, or twenty per cent, assessment, but denying their liability under the subsequent call, refused to pay either the balance of their deposit note, or the one per cent, additional, assessed and required as aforesaid, and this suit is brought for the recovery thereof.</p> <p>The court were of opinion, that the plaintiff was entitled to recover the whole unpaid balances of the deposit note of the defendants, together with the additional sum of one per cent, on'the amount of their insurance in the company, and accordingly rendered judgment on the special verdict for the plaintiff, which the defendants now assign for error here.</p>

In Error. Error to the Court of Common Pleas of Alleghany county. In the court below this was a scire facias to revive judgment, &c., in which Enoch Wright, for the use of Michael Ensley, the plaintiff in error, was the plaintiff, and William W. Knepper, Leopold Sahl, and William Leckey, were the defendants.

In Error. Error to the District Court of Alleghany county. Jacob McClelland and David McClelland, partners under the firm of J. & D. McClelland, who are the plaintiffs in error, were the defendants below, and John D. Mahon for use of James B. Irwin, the plaintiff. Mutual accounts existed between the parties. The account of John D. Mahon was for professional services rendered from time to time for the defendants.

In Error. Error to the District Court of Alleghany county. The plaintiff in error was the plaintiff below, and on the trial below, gave in evidence, that Butler his assignor and Campbell the defendant were part owners of a steamboat. That an action was brought by said Butler and Campbell against the sheriff of Alleghany county, for taking and detaining the boat.

Appeal. This was an appeal from a decree of the Orphans’ Court of Alleghany county, in the matter of the estate of John Woods.

In Error. Error to the District Court of Alleghany county. The defendants in error were plaintiffs below, in an action on the case against the plaintiff in error, who was defendant-below, in which the plaintiff claimed, in right of his wife, Julia Richardson, to recover a. distributive share of the personal estate of Juliet Logan, deceased.

<p>In Error.</p> <p>This was a writ of error to the District Court of Alleghany county. Andrew McClure, the plaintiff in error, was plaintiff below, and Francis McClure, the defendant.</p> <p>In the court below, this was an ejectment for about one hundred acres of land in Mifflin township, Alleghany county. The following are the facts of the case:—</p> <p>Francis McClure, the father of the parties to this action, was seised in fee of a large tract of land in Mifflin township, Alleghany county, of which the one hundred acres, for which this suit was instituted, was a part. Previous to 1820, a fulling-mill had been erected on the land, but, at that time, it was old and not in good order.</p> <p>Andrew McClure, the plaintiff, who had learned the fulling business, was employed at a factory in Steubenville, Ohio, where he received for his services an annual salary of about $900.</p> <p>In 1820, Judge McClure went to Steubenville, and persuaded his son, the plaintiff, to leave his employment there and remove to Alleghany county, to pursue his business in the fulling-mill above mentioned. To induce the son to do this, the father stated to him, that ££ he could and would do more for him than strangers were able or willing to do.”</p> <p>In 1821, the plaintiff erected an expensive fulling-mill on the site before occupied by the old mill. With his family, he lived in the new mill, and attended to the fulling business on his own account. After-wards he erected a large frame house, for a carding machine, &c., and dwelling-house, and made other improvements connected with the mills. ,</p> <p>Plaintiff lived at the mills, and pursued his occupation of a fuller until 1827, when he removed to a farm which he had purchased in their viéinity, having leased them for four years to a tenant, who paid him a yearly rent. He did not afterwards, at any time, reside at the mills. Lines were marked, distinguishing the one hundred acres on which the mills were built from the adjoining lands of Judge McClure. Plaintiff did not cultivate the land, but obtained some timber from it, to be used in building and repairing the mills, and for fuel.</p> <p>Judge McClure repeatedly pointed out the lines of the tract, and declared that he intended it for his son Andrew; that he would give it to him; but that he would hold all his property in his own hands until his death. In conversation, he frequently called the land Andrew's tract.</p> <p>About the year 1834, Judge McClure became displeased with the conduct of his son Andrew. In 1842, he leased the mills to a tenant, and previously to that time had exercised rights of ownership over them. Andrew threatened to bring an action of ejectment against his father, but was prevailed upon, by a mutual friend, to forbear.</p> <p>In April, 1843, Judge McClure died, having by his will devised the tract of land, with the improvements, to his son Francis, the defendant in this ejectment.</p> <p>The counsel for defendant requested the charge of the court on the "following points:—</p> <p>1. That although there may be such a thing as a sale to a child by parol, or a gift rendered valid by improvements, yet such a case requires much stronger and clearer evidence than would be necessary to establish a similar transaction between strangers, which can be referred to nothing else than a contract. Eckert v. Mace, (in note,) 3 Penna. Rep. 365.</p> <p>2. Even between strangers, possession must be taken in pursuance of the contract; this notorious and solemn act of investiture, (Parker v. Wells, Wharton, 162,) being a matter in pais, is deemed the only-effectual check on false swearing. It must be such a possession as characterizes and identifies the particular gift or contract set up. Robertson v. Robertson, 9 Watts, 92 ; McKee v. Phillips, 9 Watts, 86 ; Groucher v. Martin, 9 Watts, 109.</p> <p>3. The possession taken must not only be in pursuance of the contract or gift, but must be of the whole lands; taking possession of a part will not be sufficient. The possession taken must be co-extensive with the alleged gift or contract, otherwise it does not identify and verify the same. The jury have no power to enlarge or narrow down the limits of such gift or contract; such a compromise would be to malee a gift or contract, not to find one, as proved by testimony or carried into execution by the parties. 1 Watts & Serg. 383.</p> <p>4. The burden of showing the extent and value of alleged improvements, and that they were made at his expense, rests with the plaintiff.</p> <p>5. If the benefit done to the plaintiff from the possession of the land has exceeded his expenditures in improvements, the gift will not be enforced, even though it be clearly made out, and may have been accompanied with improvements. 2 Wharton, 387.</p> <p>■ 6. A promise, express or implied, to make a testamentary provision, is revocable at the will of the father. 3 Penna. Rep. 354.</p> <p>The president charged the jury as follows:</p> <p>“ It will not be necessary here to state what proof a chancellor would require in order to enforce the execution of a parol contract for the sale of a tract of land, as the plaintiff does not allege that he bought the land and paid for it under a contract to purchase it; • but that his father made a gift of it to him.</p> <p>“1. In order to establish such a gift, it is not sufficient to show that the father promised to give, or intended to give it to him at his death, or at any future time, or held out expectation to his son that he would give him certain land in his will. A gift is something given. The plaintiff must prove clearly and distinctly, beyond doubt or cavil, that the land was actually given and delivered to him by his parent, as a gift irrevocable. The precise boundaries and conditions of the gift should be described. The mere calling the land Andy’s, in conversation with a third person, is but slight, and almost no evidence at all of actual gift, or an intention to part with the present ownership of, and power over, the property. Eckert v. Mace, 3 Penna, Rep. 365.</p> <p>“ 2. There must not only be an actual delivery in preesenti to the donee of this precise land, but the plaintiff must show clearly, and beyond, doubt, .an expenditure in improvements made with his own money, of which it would be fraud in the donor to deprive him.</p> <p>“ 3. If a son make improvements on a tract of land belonging to his father, in the expectation that the father will devise it to him ; or on the faith of a promise from the father that he will give it to him in his will; that is not such a case as can be excepted from the statute of frauds and perjurie's.</p> <p>“The jury are referred to the points of law made by defendant’s counsel, all of which I answer in the affirmative, and instruct the jury that they contain a correct statement of the laws as applicable to this case. If the plaintiff has been remunerated by the use of the property (before his father resumed possession) for any expenditure of money or labour on the mills, he cannot recover. Unless the plaintiff has made out a clear case, showing that the resumption of the property by his father was a fraud upon the rights of the plaintiff, the statute of frauds must prevail; it must not be set aside for doubtful equity.”</p> <p>The counsel of the plaintiff excepted to the charge.</p> <p>The juiy rendered a verdict for the defendant; whereupon the plaintiff removed the record to this court, and assigned the following errors:</p> <p>1. The court erred in charging the jury, that “ the mere calling the land Andy’s, in conversation with third persons, is but a slight, and almost no evidence at all of actual gift, or an intention to part with the present ownership of, and power over, the property.”</p> <p>2. In charging the jury, “ that the plaintiff was bound to show clearly an expenditure in improvement with his own money,” the court should have stated to the jury that there was such proof before them, and n'ot left the jury to suppose that no such testimony had been introduced on the trial.</p> <p>3. In charging the jury, that if a son make improvements on a tract of land, on the faith of a promise from his father that he will give it to him in his will, that is not such a case as can be excepted from the statute.</p> <p>4. In suggesting to the jury, that there was no evidence of a present gift, and in stating that it was nothing else than a promise to leave the land to plaintiff by his will, or a declaration of what disposition he intended to make of his property, to take place after his death.</p> <p>• 5. That the plaintiff had been amply remunerated by the use of the property for any expenditure of money or labour on the mills.</p> <p>6. In charging the jury as requested by defendant’s counsel in his points; and that plaintiff was not entitled to recover the part of the property on which he had made improvements, unless he was entitled to recover the whole.</p>

<p>A debt in suit may be attached in execution.</p>

In Error. Error to the District Court of Alleghany county. In the court below, Lot E. Brewster, the defendant in error, was the plaintiff, and George Watson and Sarah Ann his wife, late Sarah Ann Hubley, the defendants.

<p>A judgment for residue of purchase money, entered up a day after the vendor had conveyed the legal title, does not exclude a prior judgment against the vendee.</p>

<p>Affidavit to ground an appeal from an award of arbitrators, in Westmoreland county, held good, though sworn to before an alderman in Pittsburgh, by one who styled himself the appellant’s agent.</p> <p>An appellant’s direction to detain the costs paid on the appeal, is a nullity, and does not prejudice the appellant’s right.</p>

<p>The return of “levied” on personal property is not conclusive evidence of satisfaction.</p> <p>A judgment creditor is not precluded by that return from coming on the proceeds of the debtor’s land in court for distribution, where the property had been restored to the debtor on a forthcoming bond, but not delivered back to the sheriff.</p>

<p>Error to the Court of Common Pleas of Westmoreland county.</p> <p>This action was against Alexander as endorser of certain notes drawn by his brother, and the facts, to avoid the statute of limitations, were, that defendant was the president, and also attorney, of the bank, and as such, received them for collection, in 1822, but failed to recover the money; also, his statement, in the same year, of his indebtedness thereon. There was another point taken as to a reference, but the facts sufficiently appear in the judge’s opinion here.</p> <p>The court charged, in answer to the fourth point, that though there was no fraudulent concealment, but full disclosure by defendant to the bank within a reasonable time of the maturity of the notes, and the bank neglected suing within six years, they were not barred; and that the fact of defendant being president and counsel, until within a short time of the commencement of this suit, was a sufficient answer, under the decision of the Supreme Court, though they were of a different opinion previously thereto. To the .fifth, that for the same reason, a neglect to sue himself as endorser was a bar to the statute. To the sixth, that being president and counsel turned him into a trustee, and avoided the statute.</p>

<p>In Error.</p> <p>Error to the Common Pleas of Warren county.</p> <p>This was an appeal by the plaintiff from the judgment of a justice of the peace, in which he filed a statement on the following promissory note, which had leen transferred to him ly the payee:</p> <p>“For value received, I promise to pay H. R. Bates, or bearer, fifty-five dollars, to be paid in hay, to be delivered at H. R. Bates’ barn in Youngsville, by the first of February next. Price per ton six dollar’s.</p> <p>“ William Sturdevant.”</p> <p>“ Brokenstraw, July 27, 1843.”</p> <p>To which the defendant put in a plea in abatement, setting forth in substance, “ that before the issuing of the said writ in this suit, to wit, on the 7th day of August, a. d. 1843, a certain writ was issued out of the Court of Common Pleas, of the county of Warren, called an alias attachment of execution with scire facias, and notice to him, the said William Sturdevant, by which said writ the sheriff of said county was commanded to attach Henry R. Bates by all and singular his goods and chattels, rights and credits, in whose hands and possession soever the same might be found in his bailiwick. That the proceedings commenced as aforesaid by the said alias attachment of execution were pending before and at the time of the commencement of this suit, and from thence and hitherto, and still are pending in the said Court of Common Pleas of said county of Warren. And the said defendant further in fact says, that all and every of the causes and rights of action contained and specified in the writ, and declaration in this suit, are the said identical causes and rights of action existing at the time of the issuing and serving the said alias attachment of execution as above mentioned, and no other, and this the said defendant is ready to verify; whereupon he prays judgment of the said writ in this suit, and that the same may be quashed.”</p> <p>To this plea in abatement the plaintiff replied that he, the said plaintiff, “by reason of anything by the said defendant in that plea alleged, ought not to be barred from having and maintaining his aforesaid action thereof against the said defendant, because he, the said plaintiff, says, that at the time of the serving of the writ of alias attachment of execution in the said plea of abatement mentioned, upon Henry R. Bates, the payer of the note, originally, upon which this suit is founded, and upon William Sturdevant, the defendant herein, the said Henry R. Bates, at the time of the said service of the said writ, had no interest in the said note, but that the interest of the said Bates, at the time aforesaid, was totally and entirely divested.”.</p> <p>To which replication the defendant demurred, and joinder, &c.</p> <p>The court rendered judgment for the defendant, on the demurrer, which was assigned for error here.</p>

In Error. ■ Error to the District Court of Crawford county. The plaintiff brought his action in assumpsit, to recover from the defendants a certain amount of money, arising out of a canal contract, on the Erie Extension, which he had transferred to them.

In Error. Error to the Court of Common Pleas of Greene county.

<p>In Error.</p> <p>Error to the Court of Common Pleas of Mercer county.</p> <p>This was an amicable action of ejectment for one hundred and ninety-six acres of land, more or less, entered in the Court of Common Pleas of Mercer county, in the name of the defendants in error, against the plaintiffs in error.</p> <p>The plaintiffs in this case claimed to recover one undivided fourth part of the land in dispute, as heirs of Adam Magee, deceased, who was the brother of the plaintiffs.</p> <p>The defendants claimed seven undivided eleventh parts of the said land, and entered a disclaimer, as to four undivided eleventh parts of. the same.</p> <p>The facts of this case will be found fully and distinctly stated in the charge of the court below (Breden, President) to the jury. At the close of the evidence, the counsel of the plaintiff’s requested the court to charge the jury as follows:</p> <p>1. If die jury believe that Adam Magee had a contract in writing, by which he was to have the land for $800; that he had paid $200 thereof, and that John Magee availed himself of that contract and payment; the plaintiffs are entitled to recover one-fourth part of the land in this suit.</p> <p>2. Taking all the evidence of the defendants as true, it does not show that kind of title in Alexander Magee, of which his brothers and sisters can avail themselves; and the title proved by them is void by the statute of frauds and peijuries.</p> <p>The following are the material parts of the charge:</p> <p>This action of ejectment is brought to recover the undivided fourth part of about two hundred and fifty-three acres of land. The plaintiffs are admitted to be the brother and sisters of Adam Magee, deceased, and sole heirs of John Magee, deceased, by his first wife. The defendants are also admitted to be the children of John Magee, by his second wife. The plaintiffs claim to recover the land in dispute as the heirs of Adam Magee, deceased. The defendants claim as the heirs of John Magee, deceased, and contend that Adam Magee had no interest or title to the land in dispute. The evidence is, that. Adam Magee in the spring of 1826, by articles of bargain and sale which are lost, purchased the land in dispute for $800, and paid to Williams on his purchase $208. Adam Magee died in the fall of 1824; his father, John Magee, concluded ’that he would go on and pay for the land, and save the money paid by Adam on the contract. Williams received from him, in payment of the balance of the purchase money, one hundred and fifty acres of land on Shenango; and he paid also in money $100. On the part of the defendants, there is in evidence a patent from the Commonwealth of Pennsylvania, to John Magee, for two hundred and fifty-three acres eighty-five perches of land, dated 8th April, 1833. There are also witnesses to prove that Magee sold to Alexander Magee (his son by the second wife) what was supposed to be sixteen acres, and had got a brown mare from Alexander in part pay. Some improvements were made on it before Alexander Magee took sick. Nathaniel Rogers said that Alexander took possession of eight acres; some cleared when he purchased, and that he cleared after the purchase about three-fourths of an acre. The old man said he did not know the quantity until it would be measured ; said he had sold it to Alexander, and that Alexander had given him the brown mare and some young cattle — all paid but a trifle on the last piece purchase. Cleared some of it; cut some brush; was along one of the boundaries; Thomas Boozle bounds it on the east; Daniel Rolinson on the south; John Magee on the west, and Rosanna Dillon on the north. On the part of the plaintiffs, James Gleen, a witness examined, states the sale was the spring before Alexander’s death. About three-fourths of an acre cleared; some brush cut off; ten or fifteen brush heaps made on it.' Alexander was of age a few days before his death; worked on the farm; was a carpenter by trade, and in the habit of working for himself; two mares, worth about $40 each. The land worth from $8 to $10 or $12 per acre.</p> <p>The court in theft charge to the jury answered the points submitted by the plaintiff in the affirmative, which was assigned for error in this court.</p>

This was an appeal by Hance, who was the administrator of W. J. Richards, from the decree of the Court of Common Pleas of Venango county, distributing the proceeds of the sale of the real estate of William S. Smullen. The opinion of the, court below, which contains a full statement of the facts, was delivered by Church, President.

<p>In Error.</p> <p>Error to the Court of Common Pleas of Clarion county.</p> <p>This was an action of trespass quare clausum fregit, brought by the defendant in error against the plaintiff in error, to recover damages for breaking and entering the close of the plaintiff) and cutting down, &c. certain timber trees, stated in the declaration. The defendant pleaded not guilty, and liberum tenementum.</p> <p>The facts of the case, as stated in the charge of the court below (McCallmont, President) to the jury, and which are material to elucidate the points made on the argument and decided here, are these :</p> <p>“James McGinnis commenced an improvement and settlement on a wild tract of land in 1807, which was supposed at the time, to be vacant, and defined his boundaries by what was called and known as the Franklin College Survey, No. 817, on the north, by the Jenkin, and the Ingersoll and Dallas surveys on the west and south, and by a line of a survey made by one Parker, and other warranted land, on the east. It appeared, that the controversy in this case grew out of a mistake made by the surveyor in locating the Franklin College warrant, No. 829-, or rather in making out the draft by reversing one of the courses. The work ,on the ground could not be discovered, as it did not correspond wfith the survey as returned to the land office; and not having been returned at the same time with the surveys on the other warrants, an opinion prevailed, that if located at all, it was at some other place; and that the land between the survey made on the warrant No. 817 and the Jenkin warrants, was vacant. This vacancy, as it was then called, James McGinnis continued to improve, and l^ept part of his family residing upon it until 1815. Part of the land was cleared, and amongst other improvements was a sugar camp, which they occu-' pied on the part now in dispute. James McGinnis, by virtue of his improvement and settlement, if the land belonged to the Commonwealth, had a right, on paying the purchase money, to a warrant for four hundred acres. But in 1815, he sold and conveyed one hundred and nineteen acres thereof to his son James J. McGinnis for $50, and applied for a warrant for the residue, about three hundred acres. James J. McGinnis entered upon the land so sold to him by his father, and held by the lines of his father’s warrant on the one side, and by the line of an adjoining survey on the other. He continued to occupy the land by these lines, either by himself or others under him, and to cultivate the cleared part thereof, till the period of the statute of limitations had elapsed. It also appeared, that in 1840 the location of the college tract, No. 829, was discovered, and was found to include the land now in controversy, and the principal part of the land in the survey of James McGinnis under his warrant.”</p> <p>At the close of the evidence, a number of points were submitted by the counsel of each party, upon which the court was requested to instruct the jury. The charge was excepted to by the defendant, and the answers of the court to the following points (the 6th and 7th) submitted by the counsel of the defendant, were assigned for error here.</p> <p>6th point. That a non-resident disseisor, who has been in the peaceable adverse and continuous occupancy by cultivation of land, must be limited in his claim to the land occupied for twenty-one years; and that an entry by the owner upon a portion of the land not occupied by cultivation, does not amount to trespass.</p> <p>In answer to this point, the court said, that they could not discover « any material difference between a resident and non-resident occupier of a tract ofland for twenty-one years. If a person enters under colour of title, claims and cultivates part of the land, pays taxes for the whole tract, and continues his cultivation and payment of taxes without intermission for twenty-one years, why should he not have a title to the whole tract by the statute of limitations as certain as if he had resided during the said time on the land. We, therefore, think, that if a person enter into the actual possession by cultivation of a tract of land adverse to the owner, or the person who has the legal title clears and cultivates part of the land, occupies the residue, and claims to the extent of the boundary of the tract, and continually exercises acts of ownership over it; the right of the owner after twenty-one years would be barred, and his entry on a portion of the land not occupied by cultivation after the twenty-one years would be trespass. To acquire and preserve a title by actual settlement, a personal residence on the land is necessary, because the law requires it. But to acquire a title by the statute of limitations, residence is not necessary to make an adverse possession within the statute of limitations; the possession may be adverse by enclosing and cultivating land. Johnston v. Irwin, 3 Serg. & Rawle, 291.”</p> <p>7th. That if, therefore, plaintiff had produced evidence of his cultivation of a portion of the land in dispute for twenty-one years by himself, or others for or under him; the circumstance of his residing on other land from 1815 or 1816 till the present time, makes him a nonresident, and would entitle him (if to any thing) to the land actually enclosed and cultivated, and nothing more.</p> <p>Answer. — “The residence or non-residence of the plaintiff would certainly make no difference, if other persons were cultivating it under or for him; whether there was residence or cultivation, or both, are facts for the jury. If there were cultivation and residence, the title could only be c.o-extensive with the land actually occupied and used, and the "boundaries defined by the plaintiff and those under whom he claims, by cultivation or otherwise.”</p>

<p>An endorsement by a partner of his separate accommodation note with the name of bis firm, is a sufficient indication of the nature of the transaction to make it the duty of the bank which discounts it to inquire into his authority to use the.firm name for tile occasion, unless there are circumstances from which the authority can be implied.</p> <p>H., a partner in the firm of H. & E., drew his separate promissory note in favour of J. O. & Co., procured their endorsement of it, added the endorsement of his own firm, and had it discounted. Held, that as the transaction was not within the scope of the partnership business, and as the firm had not been in the practice of endorsing the paper of H. or J. C, & Co., and had not specially sanctioned the endorsement in the particular instance, the bank’s endorsee could not recover on it.</p> <p>But held that the bank placing the proceeds to the credit of H.’s separate account, was not a circumstance to aflfect the bank with notice.</p>

<p>A. being indebted to B., on the 3d day of November, 1842, gave his judgment bond without stay of execution to B. for the amount of such indebtedness. B., on the 23d day of November, 1842, entered up a judgment thereon ; and on the same day, A. presented his petition to the District Court of the United States, for the benefit of the bankrupt law; whereupon, the court appointed the 26th day of December following, for the hearing of A. and his creditors. But in the mean time, to wit, on the 9th day of December, 1842, B. issued an attachment execution on his judgment, under which the sheriff attached various debts due and owing to A.</p> <p>Held, that on a case stated containing these facts, the attachment was good; and that the assignment took effect only from the date of the decree, and had no relation back to the presentation of the petition. But had the question been submitted to a jury, and had it been shown, that the debtor, at the time he gave the judgment, was unable to pay his debts and go on with his business; the jury might probably have inferred, that the judgment was given in contemplation of bankruptcy and for the purpose of giving a preference to the plaintiff therein over his other creditors, so as to have rendered it void under the express provisions of the bankrupt law, in which case the attachment execution would have been set aside.</p>

<p>Where in an action on contract the jury is sworn tam ad triandum quam ad inquirendum, it is their duty,if they find for'the plaintiff) to assess entire damages against the defendants, and it is error to receive a separate verdict against each defendant.</p>

This was an action of debt, to recover the penalty of «650 for marrying the minor daughter of the plaintiff, without the plaintiff’s consent. The daughter resided with the plaintiff. She had an estate of her own, of which, as well as of her person, one Mr. Miller -was appointed guardian by the Orphans’ Court of Washington county. The guardian paid the mother for the boarding of his ward, her daughter.

<p>1. Where a second note is given in satisfaction of a first, all the parties to the first note are discharged, and the remedy is on the second; but if time is only given, and one of the sureties in the first note (which in this case was joint) assented, and the other dissented, in a suit upon the first note, an award in favour of the dissenting surety, unappealed from, does not operate to the release and discharge of the other surety and the maker.</p> <p>2. One of the makers of a note, in whose favour an award unappealed from was made, who, at the time his deposition was taken, was a certificated bankrupt, and who had not a particle of interest in the event of the suit, but who, at the impetration of the writ and the award, was a party to the suit, is not a competent witness.</p>

In Error. Error to the Common Pleas of Fayette county. This was an action of ejectment for eighty acres of land, and was tried before a special court, Grier, President. Upon the trial, the plaintiff offered in evidence the deposition of one Robert Wilson, taken under a commission to Ohio.

In Error. Error to the Common Pleas of Erie county. This was an action on the case, brought by Samuel Ware against the executors of Isaac Kennedy, in which the plaintiff declared on an alleged agreement of the defendants’ testator to sell and convey to the plaintiff a tract of land, called the Lull and Farnham tract, in consideration of a judgment against one Calvin F. Avery, assigned by the plaintiff to defendants’ testator for $409, and breach of that agreement.

<p>In Error.</p> <p>Error to the Court of Common Pleas of Clarion county.</p> <p>This was an action of ejectment brought by Daniel Brenneman and others, heirs at law of John Brenneman, deceased, against Abraham Kifer, for a tract of land, containing one hundred and twenty acres, situate in Monroe township, Clarion county, late Armstrong. The plaintiffs claimed as the heirs at law of John Brenneman, who, it was admitted, died intestate and seised of the land in dispute.</p> <p>Christian Brenneman, who was administrator, and also an heir, presented his petition to the Orphans’ Court of Armstrong county, and obtained an order for the sale of the real estate of the decedent, for the payment of debts, &c. At the following term, he reported to the court, that he had sold the same to Samuel Wilson for the sum of $500. The sale was confirmed, and a deed executed and delivered by the administrator to the purchaser. The defendant was in possession, as the tenant of the purchaser, Samuel Wilson. At the trial, the plaintiffs contended that the sale to Wilson was fraudulent, in consequence of an agreement at the sale between him and'the administrator, that the land was to be purchased and held in partnership. To prove this agreement, Christian Brenneman, the administrator, was called as a witness. The counsel of the defendant objected, that the witness was not competent to contradict his return to the order of sale, and his deed to Samuel Wilson, the purchaser, containing a full recital of all the proceedings in the Orphans’ Court. It was also further objected, that if the admi. nistrator, who was offered as a witness, could not be compelled to account either to the estate, or to the purchaser for the price of the land, in the event of a recovery by the plaintiffs in this suit, he had a pecuniary interest in the event of the suit.</p> <p>The court overruled the objections, admitted the witness, and sealed a bill of exceptions. The jury found a verdict for the plaintiffs; whereupon, the defendant took a writ of error, and assigned the following error in this court: (</p> <p>The court erred in receiving the testimony of Christian Brenneman.</p>

<p>X. The purchase of a debt entitles the purchaser to all the additional securities for it, though they be not expressly named in the assignment of it.</p> <p>2. And if a security be not named in such an assignment, and neither fraud nor mistake is alleged; evidence is not admissible to alter the legal effect or construction of the assignment.</p> <p>3. It is not competent to prove by parol a levy made in writing, without first proving its loss.</p> <p>4. Proof of a levy is not inconsistent with a return of « stayed.”</p>

<p>1, It is immaterial whether a survey found in a book of original surveys of a deputy surveyor is in his own handwriting or not; being done under the authority of the officer, whether by his own hand or by that of another, it is his act.</p> <p>% The book of a deputy surveyor, in which a survey was entered, is not evidence, standing alone, that he was bound to return the survey. He was not bound to do so unless requested by payment of his fees; and, even if they were paid, the law will not tolerate unreasonable negligence in him for whom the survey was made, or in those claiming under him.</p> <p>3, It is error to instruct a jury, that land which had been patented for fifty years was to give way to a survey not returned.</p>

This was an action of ejectment brought against the defendants, to recover possession of four hundred and seven acres of-land in Columbus township, Warren county. The titles on which the plaintiffs and defendants respectively relied, are set forth in the opinion of this court.

<p>Where a sale was made, which was fraudulent under the statutes 13 and 27 Eliz., and the grantor remained in possession by his tenants, and during that possession the property was sold at sheriff’s sale as the property of the grantee: — Held, that the possession of the grantorljy his tenants was constructive notice to the purchaser at sheriff’s sale of the fraudulent transfer of the property by the grantor to the grantee. '</p>

The paper book in this case consisted only of the charge of President Bredin, in the court below; all that is material of which, together .with the statement of the facts, is contained in the opinion of this court.

<p>Error, to the Common Pleas of Jefferson county.</p> <p>This was an action of ejectment for sixteen hundred acres of land, which was tried 16th September, 1841. The evidence in the court below was as follows:</p> <p>For the plaintiff:</p> <p>5th March, 1793, warrant to Robert Morris for one thousand acres in the new purchase, No. 3741, ¿£5 per hundred acres.</p> <p>26th August, 1820, survey for Hugh Brady, in right of Robert Morris, one thousand and thirty-four acres ninety-six perches. Accepted 20th February, 1821. October 7th, 1826, board of property decided in favour of Challes Sutherland for four hundred acres of this tract.</p> <p>‘5th March, 1793, warrant to Robert Morris for one thousand acres, new purchase, No. 3701.</p> <p>26th August, 1820, survey, one thousand and twenty-five acres one hundred and twelve perches, to A. W. Foster in right of Robert Morris; accepted the 30th January, 1822.</p> <p>13th June, 1804, will of Robert Morris devising the residue, after specified legacies, to his wife Mary Morris; proved 21'st March, 1806, Mary Morris sole executrix.</p> <p>24th October, 1824, will of Mary Morris, devising her property to Maria Nixon; proved the 8th July, 1827.</p> <p>23d January, 1839, deed of Henry Nixon and wife, to E. Heath, the plaintiff.</p> <p>Record of a commission of bankruptcy in the matter of Robert Morris, 28th July, 1801; commission to Joseph Hopkinson and others'.</p> <p>8th December, 1801, deed from commissioners to John S. Smith, John Craig, and Nathan Fields, trustees.</p> <p>17th September, 1830, proceedings and decfee vacating the commission of bankruptcy.</p> <p>Writ of ejectment read.</p> <p>For the defendants:</p> <p>The defendants offered in evidence a copy of the revival of a judgment in the Supreme Court of Pennsylvania, wherein Samuel Coats was plaintiff, and Thomas Ruston, Robert Morris, and John Nicholson were defendants, with a testatum fi. fa. regularly issued on said judgment, to the sheriff of Northumberland county, No. 25, September term,' 1802.</p> <p>Also, a copy of the original warrant for the lands in dispute, with an endorsement thereon in these words: — 1</p> <p>« By virtue of a writ of testatum fi. fa. to me directed, from the Supreme Court of Pennsylvania, I levied on this warrant as the property of Robert Morris, at the suit of Samuel Coats, and after giving due notice of the time of sale, sold it to Thomas Grant for the sum of $7 41.</p> <p>Henry Vanderslice, Sheriff.”</p> <p>To be followed by regular transfers of said -warrant to the present defendants; and that the defendants, and those under whom they claim, have had the possession of said warrants ever since; that those under whom the defendants claim, had the surveys on said warrants made for their own use and benefit, and paid the expense thereof, and took possession of one of the tracts eighteen years ago; and of the other some years since, and made valuable improvements thereon, and that the taxes thereon have been assessed to them since. For the purpose of showing that the defendants, and those under whom they claim, did not locate the warrants as the agents and for the use of Robert Morris, his heirs or devisees, but for their own use, and for the purpose of raising the presumption of an abandonment of said warrant by Robert Morris, his heirs and devisees. To this offer, the plaintiff objected, and the court admitting the evidence, the plaintiff excepted, &c.</p> <p>1797. Judgment in S. C. Penna. Debt $2519 79 and costs.</p> <p>1802. Test. fi. fa. to Northumberland, No. 25, September term. No return.</p> <p>5th March, 1793, warrant to Robert Morris for one thousand acres, No. 3741, and endorsement thereon as contained in defendants’ offer.</p> <p>Same date, warrant to Robert Morris for one thousand acres, No. 3701, and endorsement thereon as contained in defendants’ offer.</p> <p>No. 3701, directed to William P. Brady.</p> <p>No. 3741, directed to John Adlum, certified to Brady.</p> <p>12th June, 1815, will of Thomas Grant, proved 22d June, 1815. Appoints his wife Debora Grant, George Grant, and William Grant his executors.</p> <p>July, 1818, deed from Thomas Grant’s executors, to William P. Brady, for warrant No. 3701. No consideration.</p> <p>July, 1818, deed from the same, to the same, for No. 3741. No consideration.</p> <p>William P. Brady. — I made the survey on No. 3701, was not authorized by any public officer to malee it; I made the survey for myself; I was the owner of the warrant at the time; Mr. Taylor would not return the survey until he had examined the survey, to know whether it was right. I had parted with the warrants in the mean time. I took Mr. Taylor on the land, and showed him two lines; it rained hard, and I went to my lodgings. He had my drafts and field notes; I made the first examination between 1816 and 1820; about 1816 I run the whole of the lines; I owned the warrant at the time.</p> <p>7th April, 1819, exemplification of a deed, William P. Brady to A. W. Foster, for warrant No. 3701, from the recorder’s .office of Indiana county.</p> <p>31st March, 1821, receipt of A. Taylor for executing two warrants, granted to R. Morris $15.</p> <p>16th September, 1823, State Treasurer’s receipt $11 83, balance of purchase money, and $10 patent fees.</p> <p>16th September, 1823, patent to Alexander W. Foster, Jun., No. 3701, one thousand and twenty-five acres, one hundred and twelve perches.</p> <p>3d May, 1832, deed A. W. Foster to Alexander Smith, Moses, John and Samuel Knap, for No. 3701.</p> <p>12th October, 1819, deed William P. Brady to Hugh Brady, for No. 3741.</p> <p>7th September, 1836, article of agreement between Hugh Brady and Samuel and Joshua Knap.</p> <p>The defendants then proved the payment of the surveying fees on the warrant ■ by William P. Brady, and the return of the surveys. Several witnesses were called, who testified as to the valuable improvements made on the lands in controversy. The defendant then offered to prove that the warrants No. 3701, and 3741, together with many others in the name of John Nicholson and Robert Morris, were placed in the hands of William P. Brady, Esq., at that time deputy surveyor of district No. 5, by a certain Thomas Grant, who alleged that he was acting as agent for the owners of said warrants, and also as part owner of tire same warrants. That Robert Morris, in his statement on oath before the commissioners of bankruptcy, declared that he had transferred and sold his interest in these lands to John Nicholson, who, in 1797, conveyed the same to the Pennsylvania Population Company; that in 1802, Thomas Grant, the person who put said warrants in the hands of Mr. Brady for execution, came to the house of said William P. Brady in company with Henry Vanderslice, at that time sheriff of Northumberland county; and that the said Thomas Grant delivered the said warrants to the said sheriff for sale.</p> <p>To this offer the plaintiff objected, and the court, admitting the evidence, plaintiff excepted, &c.</p> <p>William P. Brady. — Thomas Grant, on the 16th day of March, 1793, gave me the warrants Nos. 3701, and 3741, received on the 5th March, 1793. On the 16th of March I received from Grant a number of warrants, in the name of John Nicholson and Robert Morris. All the warrants I received from John Nicholson and Robert Morris; but fifteen were handed me by John Musser; afterwards, the same summer, Thomas Grant said he was the agent for them; I understood him and Thomas Grant were to have the one-fourth for laying them; I executed a number of them; Grant found hands, pack-horses and provision; and after I surveyed them, I returned them; all the surveying fees I received on the Morris and Nicholson warrants, I received from Nicholson; never received any fees from Morris; I did not execute them all at that time. In 1796, 1 went back to Philadelphia ; made out returns for all but five or six; them I laid; Kinsua, Grant, Nicholson, or some of them, accepted the returns and paid the fees. Warrants, returns, &c., lay in my hands until Grant called with the sheriff to levy on them; Grant handed them to the sheriff Henry Vanderslice; he sold them at the public house of Adam Hocks, near Northumberland. I was present when Nicholson and Grant divided the lands I had returned and accepted; they drew lots; Musser’s and Grant’s fifteen lay north of Toby’s creek; the balance fell back to Nicholson, or who ever was the owner; they divided them in Nicholson’s office; got me to arrange the lands that were returned. These were the last of warrants left in my hands by Grant, and the fifteen by Musser. The division was made in 1794, or 1795 ; I never spoke to Morris about lands in my life, or he to me, except to acknowledge some deed before me. He never paid me any surveying fees for making surveys.</p> <p>After sale of the warrants, they were kept by the sheriff until paid for. Not long after the sale, they came back to me. I bought some of them; I kept them until I sold them to Foster and Hugh Brady. I had them in my hands before I got the conveyance from Grant’s executors; took them with me from this county; I got the conveyance ; I went out of the deputy’s office in 1798, in district No. 5; I was deputy in Northumberland county in 1802; after the sheriff’s sale I got the warrants from Grant.</p> <p>Certified copy of statements made on oath by Robert Morris to the commissioners of bankruptcy; and tax duplicates, showing the assessment of these lands to defendant, &c.</p> <p>The evidence being closed on both sides, the plaintiff requested the court to charge the jury:</p> <p>1. That the plaintiff has shown a good and legal title to the warrant and survey on the land in controversy.</p> <p>2. That at the time these warrants were surveyed, they were the' property of Mary Morris, the devisee of Robert Morris; and that the survey made in pursuance thereof inured to her benefit, and the said survey vested the seisin of the land in her and her devisee, Maria Nixon; and the deed from Henry Nixon and Maria his wife to plaintiff gave him the legal right to the land in controversy.</p> <p>3. There was no abandonment of these warrants, inasmuch as they remained in the hands of William P. Brady, where they were directed for execution until they were surveyed on the land in controversy.</p> <p>4. That the adverse claim of Grant and Brady to these warrants, if the jury believe they are adverse, against the right of Robert Morris and his devisee, could give no right in equity, unless they were purchased on the faith of an express disclaimer by Robert Morris, of which there is no evidence in the case.</p> <p>5. That the bankruptcy of Robert Morris rebuts all presumption of abandonment or sale, until the commission of bankruptcy was vacated.</p> <p>6. That the defendants, not having had the actual possession for twenty-one years, have no right against the warrant and survey of the plaintiff.</p> <p>7. That if the jury should believe that Robert Morris held these warrants in trust for himself and Nicholson, Grant, and Musser; yet the legal title would pass to the plaintiff, upon which he would be entitled to recover against the defendants.</p> <p>And the defendant requested the court to charge the jury:</p> <p>1. The court are requested to instruct the jury, that the holder of an indescriptive warrant is bound to use due diligence in having a survey made thereon and returned; and a neglect to have a survey made and returned for a period of twenty-one years is an abandonment of the right under the warrant.</p> <p>2. That making an application to the land-office, and-having an in-descriptive warrant issued, vests no title in the holders, until they procure a survey in pursuance of the same; and that a survey made on such warrant at the instance of third persons, without the direction and authority of the original holder, or his heirs or assigns, vests no title in them.'</p> <p>3. That the warrant under which the plaintiffs claim being indescriptive, and no survey having been made or returned for a period of twenty-one years, either by the holder or any person claiming under him, is in law an abandonment.</p> <p>4. That a survey made on -the warrant after this period, at the instance and at the expense of a third person for himself, not claiming in any way under the warrant, but adverse to him and his heirs, which has been returned in his name, and accepted in the land-office, and a patent issued thereon to him, vests, in the person who procured the survey and patent, a good title against the warrantee and all claiming under him.</p> <p>5. That a purvey made on an indescriptive warrant by a third person, adverse to the warrantee and without any arrangement, agreement or privity between him and the warrantee for that purpose, but in his own name and at his own expense, does not make him a trustee for the warrant holder.</p> <p>6. That if the jury believe that the survey in this case was not made by Robert Morris, or any person claiming under him, but by A. W. Foster, Esq., and Hugh Brady, who paid the surveying fees, and procured the survey and return to be made for themselves, claiming adversely to Robert Morris and his heirs, or without any privity between them and R. Morris, or any person claiming under them, that it vests in A. W. Foster, Esq., and Hugh Brady, and those claiming under them, a good title, and that the plaintiff is not entitled to recover.</p> <p>7. That procuring a survey to be made, and having the same returned, paying the expenses of the survey, making valuable improvements upon the land, and the payment of the taxes for a period of ten or fifteen years, raises the presumption of the transfer of the legal title, and vests in the occupant such title as will protect him in the possession. ■</p> <p>8. That if the jury believe, that -the lands or warrants in dispute form part of the lands and rights to lands which' Robert Morris declared on his oath, as transferred to Nicholson, the plaintiff cannot recover in the present suit.</p> <p>9. That the present defendant, by purchase of the legal title of tract No. 3701, will be protected from the claims of the assignee of the. original warrantee, who has taken no steps to perfect his inceptive title for a period of upwards of thirty years.</p> <p>The court below (McCalmont, President) charged the jury as follows:</p> <p>« This is an action of ejectment for two tracts of land, surveyed on warrants granted to Robert Morris, Nos. 3741 and 3701, dated 5th March, 1793, for 1000 acres each, in the new,purchase, on which surveys were made on the 26th August, 1820. No. 3701, was surveyed for Alex. W. Foster, in right of R. Morris; and 3741, for Hugh Brady, in right of R. Morris. These surveys were returned and accepted, the first on the 3d July, 1822, and the other on the 20th of February, 1820, or 1821. These warrants, surveys, and returns have been given in evidence by the plaintiff,' with the will of R. Morris and Mary Morris his wife, and a deed from Henry Nixon and Maria his wife, to E. Heath, the plaintiff for the lands in controversy; It is contended by the plaintiff that all acts done in pursuance of these warrants will be presumed to have been done for the warrantee, and will inure to the be. nefit of him and his devisees. In the absence of all evidence to rebut this presumption, it is so to be presumed; and the plaintiff has made out his case, and shown a good legal title. The defendant, however, has given evidence, which, if believed, prove that those warrants, not long after they were issued in the name of Robert Morris, and in the name of John Nicholson, were placed.in the hands of the deputy surveyor by Thomas Grant, who stated that he was agent for the owners, and had the direction or care of the location; part of the warrants under his care were located, and subsequently drawn between Morris and Nicholson, Grant and Nixon. The returns on the warrant in controversy and some of the others were not satisfactory, and still remained in the hands of the surveyor, Wm. P. Brady. In the month of August, 1802, they were taken out of his hands by Thomas Grant, and by him delivered to the sheriff of Northumberland county, by whom they were sold, as the property of Robert Morris and John Nicholson, to Thomas Grant, on the 30th of August, 1802, who subsequently placed them in the hands of Wm. P. Brady as his own property. The executors of Thos. Grant, in July, 1818, conveyed to Wm. P. Brady these warrants, by whom they were some time before located on the land in controversy; and the lines by which the land is claimed were marked on the ground. At the time he made the survey, he was not the deputy sur. veyor, nor had he any authority from him. The surveys were, however, afterwards examined and approved by the deputy surveyor, Mr. Taylor, and by him returned as surveyed, on the 26th of August, 1820. The surveying fees, and all expenses for making the surveys, were paid, or borne by or for the parties for whom the surveys were made, to wit, Hugh Brady and Alexander W. Fosterand a patent from the Commonwealth, for No. 3701, granted to Alexander W. Foster on the 16th of April, 1823, who paid the patent fees, the purchase, and the interest for the surplus land over one thousand acres included in the survey. Hugh Brady conveyed to the present defendants, by a deed or assignment in writing, dated the 7th of April, 1834; Alexander W. Foster, by a deed dated the 3d of May, 1832. It is not pretended that they had any right to levy or sell those warrants.; the sale was void, and gave no title, but the defendants were permitted to prove the sale and subsequent possession and location of the warrants, to show that from the 30th of August, 1802, they were claimed adversely to Robert Morris and his devisees for a period of almost thirty-seven years. We have no evidence that R. Morris, his devisees, or any person for them, have taken any steps to perfect a title in any land in pursuance of these warrants, except the declarations of Thomas Grant in 1793, when he placed the warrants in the hands of the deputy surveyor. Those declarations prove the warrants in question belonged to Morris and Nicholson. If so, the oath of Robert Morris is conclusive, that he had no interest in them at the time the commission of bankruptcy issued. If you believe that the defendants, and those under whom they claim, have had the possession of those f warrants, and have been exercising acts- of ownership over them, such as procuring the survey, return and acceptance, paying the fees, expenses, &e., adverse to the claim of R. Morris and his devisee, and not for them, you may and ought to presume a release or abandonment in favour of the defendants, even if the warrants were not held in partnership.</p> <p>“ We will read the points on which: we are requested to charge you by the counsel, and answer more particularly. The plaintiff’s first point is answered in the affirmative ; but if you believe the defendants have had possession of the warrant, and claim the same title adversely upwmrds of thirty-six years; and that during all this time the plaintiff, and' those under whom he claims, had not taken any steps to perfect his title, although given in evidence by the plaintiff, they are defend, ants’ title, and not plaintiff’s. Plaintiff’s 2d and 3d points are an. swered in the negative. If the owner of the warrant placed it in the hands of the surveyor, and proceeded no further, and it is claimed by another who procured a survey, and perfects his title after twenty-one years, an abandonment would be presumed, unless that presumption was rebutted by facts.</p> <p>“Plaintiff’s 4th point is answered in the affirmative, but alter twenty-one years, an abandonment would be presumed.</p> <p>“Plaintiff’s 5th point is answered in the negative — we have not been referred to any authority — we are not aware, however, that a commission of bankruptcy would suspend the operation of the statute of limitation, and if not, it will not rebut the presumption in this case.</p> <p>“ Plaintiff’s 6th point assumes the warrant to have been the plaintiff’s when the survey was made, and the survey to have been made for him. If this was the fact, defendants, not having had actual possession of the land twenty-one years, would have no title. The defendants, if we understand the case, claim adversely the warrant and survey, and land by virtue thereof.</p> <p>“Plaintiff’s 7th point is answered in the affirmative, providing the legal title still remained in Robert Morris, and was not conveyed, released or abandoned.</p> <p>“Defendants’ points read. The 1st, 2d, and 3d put by defendants’ counsel and answered in the negative. The 4th, 5th, 6th, 8th, and 9th are answered in the affirmative. The 7th point is answered in the negative. A shorter period than twenty-one years would not raise the presumption of the transfer of the legal title, the rational ground of presumption is the abandonment, and this will not be presumed under twenty-one years.”</p> <p>To this charge both plaintiff and defendants excepted.</p> <p>Verdict for the defendants.</p> <p>In this court the plaintiff in error made the following assignment of errors:</p> <p>1. The court erred in admitting the evidence in the first written proposition.</p> <p>2. In admitting the exemplification of the deed from Wm. P. Brady to A. W. Foster.</p> <p>3. In admitting the evidence of Wm. P. Brady, that he had run the lines of the survey before the deputy made, and without his authority.</p> <p>4. In admitting in evidence the second written proposition of defendant.</p> <p>5. In admitting the certified copy from the secretary of the Commonwealth, of extracts from the statement of Robert Morris to the commissioner of bankruptcy.</p> <p>6. In charging the jury, if they believe that the defendants, and those under whom they claim, have had the possession of those warrants, have been exercising acts of ownership over them, such as procuring a survey, return, and acceptance, paying the fees, expenses, &c., adverse to the claim of Robert Morris and his devisees, and not for them, they might and ought to presume a release or abandonment in the favour of defendants.</p> <p>7. They erred in their charge on the first, second, third, fourth, fifth, and sixth points of the plaintiff.</p> <p>General errors.</p>

Black issued a scire facias sur mortgage to secure eighteen promissory notes. Walthour, who defended as a purchaser at sheriff’s sale under her own judgment against Cover, proved that three of these notes were taken up and judgment notes substituted therefor, on some of which judgment was entered, the parties supposing the substituted notes were also secured by the mortgage. After notice of the fact of the substitution, the judgment was given to Walthour.

Error, to the Common Pleas of Washington county. This was a scire facias against bail oh appeal from arbitrators, setting forth judgment and breach of conditions of the bond.

<p>Error to the Common Pleas of Union county.</p> <p>This was an action against the drawer of a note to the order of John Gaddis and Son. The evidence showed, according to the finding of the jury, that the endorsement by John Gaddis and Son was made by an infant partner. The court decided, under these circumstances, the endorsement was void and passed no title.</p>

<p>Error to the Common Pleas of Clarion county.</p> <p>This was a sci. fa., on a mechanic’s lien, on which the only question here was the sufficiency of the description. The lien was filed against a tract of land in Clarion county, on the waters of the Clarion river, with one double saw-mill thereon situate on the east side of said river. The dimensions were then given, and also a dwelling-house. Said tract, &c., being bounded by (the boundaries were left blank,) containing-■ acres.</p> <p>The court charged this was sufficient.</p>

<p>Judgment for the defendant in an action by a guarantee on a note assigned to him, of which action the guarantor had notice, concludes him in an action on the guaranty; and without such notice, it is primd facie evidence that nothing was due.</p> <p>Where a guarantor who had not notice was sued on his guaranty of such a note, an award founded on a cross-demand in favour of the makers was not allowed to be rebutted as primá facie evidence, by proof of a Counter set-oif; and it was held that without proof that the cross-demand was unfounded, evidence of delay, or time given, by the guarantee, was immaterial.</p>

<p>The discharge of an insolvent can only be proved by the record, or by parol to supply a loss; but unless the existence of the record be first shown, other evidence is inadmis sible.</p>

Error, to the Common Pleas of Erie county. This was an action against one of several drawers of a note, whose defence was, that he was surety and time had been given. The former being proved, as evidence of the latter he proved that one Scribner, who was one of the principal debtors, had delivered to McCullough, who was also a debtor, an agreement for the purchase of land, and a note of a stranger on which there had been a partial payment, to be given to Miller.

<p>The bequest of a residue to a daughter, and, at her death within age, to the testator’s “nearest relations or connections, according to the laws of the Commonwealth,” does not include his widow.</p>

In Error. Error to the Court of Common Pleas of Westmoreland county. This was an action of covenant*brought by Joseph Hill, against Daniel Geiger, to recover the balance of purchase money alleged to be. due upon articles of agreement dated the 11th day of Máy, 1839, for a tract of land in Washington township, in the county of Westmoreland.

<p>The Pittsburgh Bank having the. first judgment against, and lien on, the real estate of Lewis Peterson, Peter Peterson, and Jamos T. Kincaid, took in execution atract of land, the individual property of Lewis Peterson, and sold it, whereby the judgment became satisfied. The Monongahela Navigation Company bad the second judgment against, and lien, in the order of time, on the real estate of the two Petersons, but not against Kincaid or his estate. William Speer next had a judgment against, and lien on, the real estate of the two Petersons, but not against XCincaid or his estate. After these judgments, William Taylor obtained three judgments against the Petersons and Kincaid, in which Thomas F. Dale became bail for stay of execution, and as such paid the three judgments, after other judgments had been obtained against the two Petersons and Kincaid, and among the number was the judgment in favour of Sylvanus Lathrop for §4000, upon which the real estate of James Peterson, Peter Peterson, and James T. Kincaid, was taken in execution and sold, as also under a prior levy under the judgment of the Pittsburgh Bank. Held, first, that the Monongahela Navigation Company were entitled to be subrogated to the rights of the Pittsburgh Bank, and to have their judgments satisfied out of the moneys arising from the sale; and next, that William Speer was, upon a like principle, entitled to receive the residue of the money towards payment of his judgment. Secondly, that Thomas F. Dale had no right to be subrogated to the rights of the bank, so as to recover any portion of the money in preference to judgment creditors of the Petersons and Kincaid, though said judgments might be subsequent in point of time to Taylor’s judgments.</p>