Volume 1 — Penrose & Watts's Pennsylvania Reports

<p>IX error.</p> <p>Error to the court of common pleas of Cambria county.</p> <p>This was an ejectment brought in the court below by the executors of Hr. Smith to recover from John Smay, the defendant, part of a tract of two hundred acres of land in Cambria county. To support their claim, the plaintiffs gave in evidence,</p> <p>1st. A warrant to William Smith, H. D. dated 7th April, 1792, for one hundred acres near the 13 th mile tree on the road from Erankstown, including the Dollar Camp.</p> <p>2d. A warrant to Rebecca Blodget, (a daughter of Dr. Smith,) dated 21st December, 1792, for three hundred acres adjoining lands, warranted to William Smith, D. D. at a place called the Dollar Camp.</p> <p>The plaintiff's then offered the deposition of Thomas Vickroy, which went to shew, that in 1794 he went and saw the outlines of the survey, as made by William O'Keefe, deputy surveyor, in 1808, and many other surveys for Dr. Smith, as run by P. Cassidy. That' Pickroy himself at the instance of Dr. Smith, at different times run the division lines, and particularly run and marked all the lines of the said survey of O'Keefe, (a draft of which, shewing the courses and distances and corners he annexed to his deposition,) that having completed all the work, he in 1808, gave his field notes and draft to Mr. O'Keefe, who returned the surveys for Dr. Smith. That the said survey included the thirteenth mile tree on a road from Frankstown to Conemaugh, and the Dollar Camp,'a place só called, and well known.</p> <p>A cross examination of the deponent was attached to the depo-. sition. The defendant objected to its admission. That it was not proved that P. Cassidy was an assistant of G. Woods the deputy surveyor. That it was not proved that Thomas Vichroy was an assistant of G. Woods. That he was not an assistant of O'Keefe. That the land was not in G. Woods' district. That Vichroy did not return with his deposition a draft of all the work done by P. Cassidy and himself. And that if Vichroy had no authority to make the survey- it was useless to prove the existence of the lines on the ground. Which objections were overruled by the court, and a bill of exceptions sealed.</p> <p>Other witnesses were then produced on the part of plaintiffs, who proved that they had examined the lines on the ground, and found the survey accurately made, and the defendant living within it.</p> <p>The plaintiff then offered a certified copy of the survey by William O'Keefe.</p> <p>To which it was objected, that the certificate at the foot of the draft returned, stated the above to be a copy of a survey made in 1794, by G. Woods, &c. and examined and resurveyed in 1808, by William O'Keefe, deputy surveyor — and that part of the certificate which states what G. Woods did, is no evidence of the fact; and in support of their objection produced a witness who swore, that he had seen and conversed with William O’Keefe, on the morning of the trial, and that he lived within a mile and a quarter of the town. Whereupon the court rejected the draft. The plaintiffs,,after giving in evidence the will of Dr. Smith, dated 10th July, 1802, rented.</p> <p>The defendant produced no other testimony than to show that the “ Dollar Camp,” was without the lines claimed by the plaintiffs, and relied on the defectiveness of the defendant’s title lo prevení a recovery.</p> <p>The opinion of the court was reduced to writing, and filedof record.</p> <p>1st. That the deposition of Vicheroy was erroneously admitted, because it referred to a draft which had been in his possession, and did not account for the loss of it; and although he did swear the copy annexed was true, that that was not sufficient. Lessee if Packer v. Gonsolees, 1 Serg. dp Razóle, 52(5. 13 Serg. SgRazule, 113.</p> <p>2d. That the warrant to Dr. Smith is but descriptive' to a common intent, and the title would only attach from the actual survey, but if it were descriptive, the holder is postponed by laches. Hunter's Lessee v. Meason, etal, 4 Yeates, 108. 3 Yeates, 25. 7 Sergr Sf Razóle, 185,. 191.. • 4¿Úift,.58. 3 Yantes,. 283. 2 Yeates, 148,</p> <p>3d. As the plaintiffs have no official survey they cannot recover. 2 Yeates, 148. 3 Bin. 103.</p> <p>4th. That the defendant could not be affected with notice unless there was an official survey. An illegal survey is not notice. 7 Serg. Sf Rawle, ,191. 2 Bin. 105 — 7. Smith’s Ex’r v. Keehan, MS. case.</p> <p>The warrants were, descriptive, as appears by the finding of the jury — they had both been placed in the hands of P. Cassidy, an assistant of the deputy surveyor, Thomas Vickroy also had run lines, and made a draft, which he gave to O’Keefe, the deputy surveyor, who returned the survey into the office.</p>

<p>IN ERROR.</p> <p>Writ .of error to the common pleas of Westmoreland county.</p>

<p>Upon an appeal from the judgment of a justice of the peace by the plaintiff, the bail entered into a recognizance, which was taken by the justice in these words, “ J. W. bound in a sum to cover all costs,” which was held to be void; and upon which there could be no recovery on a scire facias against the bail.</p>

This record was returned with a writ of error which issued to the Court of Common Pleas of Beaver county, where it was an action of slander brought by John Harvey the plaintiff in error, against John Boies the defendant in error, for speaking the following words — “ John Harvey swore a lie before the sessions, and I can prove it by twenty people:” — which the court below (Si-ialer President) charged the jury were not actionable, and the plaintiff therefore could not recover…

<p>The prothonotary of the Court of Common Pleas, has no power to administer the oath required to obtain a writ of error.</p>

<p>A Justice of the Peace, being a judicial officer, must have his court or place of administering justice: and in order to the validity of an amicable judgment upon his docket, the party confessing the same must be before him and at his office.</p>

IN ERROR. This writ of error was issued to the court of common pleas of Beaver county, upon the return On the 28th July, 1827, the justice rendered judgment for the plaintiff for eighty-three dollars and sixty-two and a half cents debt, and sixteen dollars and thirty-seven and a half cents interest, making one hundred dollars: from which judgment the defendant appealed.

<p>A. brings an action Of assumpsit before a justice of the peace against B. and recovers a judgment for a certain sum, from which B; appeals: the cause being afterwards tried in the condition pleas, a verdict and judgment was rendered, in favour of A. for the same sum* Held that A. was entitled to recover his costs since the appeal*</p>

Writ of error to- the court of common pleas of Indiana county: the plaintiff in error'was the plaintiff below.

<p>Declarations- of a grantor made subsequently to the execution of a deed, can not be given in évidence to invalidate that deed.</p> <p>But when the question to be determined by the jury, is whether the grantor' was sane or ináane, at and about the time the' deed was executed, it is competent to give in evidence his declarations made soon after the exeeu-tion-of the deed, for the purpose of proving imbecility of mind.</p> <p>A man’s neighbourhood is co-extensive with: his intercourse among his fellow citizens. One witness, therefore, testified that he knew the general character of another witness, whose character was in issue, but hte did not know his character in his immediate neighbourhood. It iscom'petent to ask the witness whether he would believe him1 on his oath.</p> <p>A deed procured by actual fraud, is void,, and cannot be confirmed by subsequent acts or declarations of the grantor.</p> <p>■ A delivery is essential to the proper and legal execution' of a deed', and. that delivery may be to the party,- to one authorized by the party to receive it,- or to a stranger for the use of the party; but the placing a deed on record by the grantor,-is not an absolute delivery,- but only evidence of it, of which the jury may judge.</p> <p>The court sustained the challenge of a juror, on' tlie ground that he. was subpdánaed Us1 a witness to impeach the Credit of another important witness, who was to give evidenee'in the caüsfe.in which-he was called as,a juror; which was- held to be no error.</p>

This was an .appeal from the decision of Huston, J. at a circuit court, held for Westmoreland county. Held: and the same condemned: whereupon to November term, 1818, a venditioni exponas issued, and the land was sold to Simon Drum, the other defendant, for six hundred and fifty dollars, who on the 17th February, 1819,. received the sheriff’s deed therefor.

This was an ejectment originally brought, in the court of common pleas of Westmoreland county, and removed by habeas corpus cum causa, to the circuit court of the same county, where it was tried before Huston, Justice.

The defendants intestate, Family, was one of the sureties of Richard Bean, in a bond to the commonwealth, in the sum of four thousand dollars, dated 8th February, 1819, conditioned that the said Bea?i., who had been commissioned .Brigade Inspector of the sixteenth division Pennsylvania militia, by commission dated I5th October, 1818, should faithfully execute the duties of said office, and among other duties, “ should from time to time, well and truly account for all moneys…

in Error. Writ of error to the court of common pleas of Franklin county.

<p>•IN ERROR.</p> <p>This was a writ of error to the common pleas of Perry county.</p> <p>had a judgment against Hopple, upon the docket of justice Utter: an execution was issued, and put into the hands Pfoutz, the defendant in error, then constable of the township, who made a levy upon the personal property of Hopple, after which he received a written notice from justice Utter, directing him to restore the property levied to Iiopple, and return his execution, which he did. Shuman and Furst then sued him for so doing, and claimed the amount of the property so levied; the cause came into the common pleas by appeal, where a verdict and judgment was rendered for the defendant, upon the charge of the court to the jury, “ that the order of the justice to the constable, and the acceptance of the return by him, in the absence of fraud, did acquit the defendant from legal liability.”</p> <p>Two errors were assigned in-this court:</p> <p>1st. The court errred in their charge to the jury.</p> <p>2d. An execution issued for more costs than were recoverable by the defendant in-the court below.</p> <p>A certiorari is not a supercedeas to an execution unless bail is given by the plaintiff, which was not done in this case, nor even then, if a levy has been made before the issuing of the certiorari. The debt of the plaintiffs, Shuman and Furst, was then secured by a legal proceeding, to wit, the levy upon personal property; and the justice had no legal authority to take away from them that security. And if the order of the justice to the constable was without authority, it does not exonerate him from liability. Boyer v. Potts. 14 Serg. Ramie, 157. Purd. Dig. 455. 12th sec. of the act of 20 th March, 1810.</p> <p>2d. The execution issued for the costs of the original suit of Shuman and Furst against Hopple, for which there was no judgment in this suit, which was manifest error.</p> <p>The case of Sherby against Fisher, decided by this court at the last term, and not yet reported, determines this case, that the order of the justice is a justification of the constable.</p> <p>The writ of error does not bring up the execution, unless specially mentioned in the writ; but, at all events, this court will not hear the first motion to correct an error in the taxtion of costs; the motion must be first made in the common pleas.</p>

IN ERROR. The facts of this case were presented to the court of Common pleas of Cumberland county, in the shape of a special verdict, which was removed to this court by the defendant below by a writ of error. Robert Miller, assigneee off • Lyon and Webster, v. John Clippinger, Esq. high sheriff of the county of Cumberland.

<p>A precisely descriptive warrant must be followed up witíi reasoñabíe attention, in order to give title from its date. So of a vague warrant, from the „ time of survey.</p> <p>If an owner of a vague or removed warrant, has suffered it to remain unreturned for more than twenty-one years, and during that time has exercised no act of ownership upon the land, the state or any person has a right to consider it as derelict, and-whoever purchases and pays for the land1, under such circumstances, has a good title.</p> <p>Query. — Whether the law is not the same in some cases, as to precisely descriptive warrants.</p>

IN ERROR. Writ of error to the court of common pleas of Franklin county, in an action for money had and received, brought by the plaintiffs in error, Polly Hege, Susan Hege, and Nancy Hege, by their guardian, Jacob Zent, against Peter Hege; Jacob Hege and Philip Tritt, the defendants in error.

Iff ERROR.. This was a writ of error to the common pleas of Franklin county, upon the return of which, the record exhibited an action of debt, brought by the defendant in error, Catharine Stillinger, against the plaintiff in error, Jeremiah Snyder, upon his official bond, given as sheriff of Franklin county — A declaration in debt was filed, and the following breach of the condition of the bond was assigned: “ That Simon Eckert, on the 18th April, 1820, in the court of…

<p>Judicial sales of land, divest all liens, whether general or specific'.</p> <p>When a legacy is charged upon land, the sheriff’s vendee takes the land, discharged from the lien of the legacy. And a purchaser of land, sold by an administrator, by an order of the Orphans’ Court, takes the land discharged of the lien of a legacy.</p> <p>To recover a legacy charged upon land, the most approved form, is to bring the suit against the executors and the terre-tenants of the land generally by name.</p> <p>If the terre-tenants have not all been summoned, the plaintiff may pray a writ to summon the person alleged to be terre-tenant; and sby this- means he'may be made a party in the same manner as if he had been summoned or-returned by the sheriff, as terre-tenant of the land.</p> <p>When a testator, by his will, blends his real and personal estate, he thereby charges his land with the payment of legacies.</p>

<p>IN ERROR.</p> <p>Writ of error to the court of common pleas of Perry county.</p> <p>This case, the facts of which are fully stated by judge Smith, who delivered the opinion of the court, was argued by</p> <p>who cited Dearth, et ais v. Laughlin, 16 Serg. Sf Rawle, 296. Landis v. Sheaffer, 4 Serg. fy Rawle, 196. Flick et al v. Boucher, 16 Serg. Sf Rawle, 373. Purdan, 20. and Lentz v. Strok, 6 Serg. Sf Rawle, 40. And by</p> <p>who referred to Flick, etal ,v. Boucher, 16 Serg. Sf Rawle, 373.</p>

<p>A debt due to one, who is an applicant for the insolvent laws of Maryland* ' and for whom a provisional trustee has been there appointed, is not subject to a foreign attachment in Pennsylvania, it being in gremio legis.</p> <p>A foreign attachment will lie .in Pennsylvania, at .the suit of a citizen of another state.</p> <p>Quere — Whether a foreign attachment abates by the death of the defendant, after interlocutory and before final judgment.</p>

This was an appeal from the decree of the court of common pleas of Cumberland countv, distributing the proceeds of the sale of the real estate of George Kline, Sen. deceased, made on execution by the sheriff of that county, and upon a rule, brought into court by him for distribution on the 15th May, 1828. The appellants claimed the money upon a judgment entered against George Kline, Sen. in November, 1808.

IN error. Error to the court of common pleas of Cumberland county. This case, the facts of which are sufficiently stated in the opinion of the court, was argued by who cited Yea. v. Fouraher, 2 Bur. Rep. 1099. Wisier’s Ex’rs v. Gray’s Adm’rs, 5 Bin. 583. Sluby v. Chomplin, 4 John. R. 461. Morns’ Lessee v. Vanderin, 1 Dali. 65. Miles v. Moodie, 3 Serg. who referred to Fries v. Boiselet, 9 Serg. ¿c Ramie, 129. Eckert v. Wilson, 12 Serg. dy Razde, 393.

<p>IN ERROR,</p> <p>Writ of error to a special court pf common pleas of Franklin county,</p> <p>This suit was an action of indebitatus assumpsit, brought by tlie plaintiffs for money paid, laid out and expended, by the plaintiff’s ' testator for the defendant’s int,estafe,</p> <p>Parker Campbell, the testator, on the 25th d,ay of May, 1805, contracted with the Washington College, for the purchase of five thousand acres of land, in Beaver county, for which he agreed to pay four dollars per acre. By the agreement, interest at three per cent per annum on the purchase money, was to be paid for eight years; when so much of it as remained unpaid, was to bear interest at six per cent, the interest to be paid semi-annually, and the principal was to be paid in equal payments, at intervals of three years, after the expiration of eight years.</p> <p>No deed was executed by the College to Mr. Campbell, but the College retained the legal title as a security for the payment of the purchase money. On the 1st of October, 1819, it appeared by a settlement then had with the College, that Mr. Campbell had paid the interest up to that time, amounting to fifteen thousand dollars, and the sum of four thousand four hundred and twenty-nine dollars and forty-two cents, which was credited on account of the principal by the College,</p> <p>In the year 1824, Mr, Campbell having failed to make further payments, the College brought ejectments to recover the lands sold, obtained judgments by arbitration, and possession under them. The whole negociation with the College was in the name of Mr. Campbell, and Mr. Colhoun, who was the father-in-law of Mr. Campbell, was not known in the contract by the College; but to prove his connection with it, and make him liable for a portion of the purchase money paid, letters from him to Mr. Campbell, dated in 1805, 1806, 1807, 1813, and on the 8th of June, 1814, were given in evidence, in which, Mr. Colhoun admitted that he was interested in the purchase; spoke of Mr. Campbell calling on Mr. Reed for one half of the interest on the purchase money; called it his part of the interest, and informed Mr Campbell that he had a number of advertisements printed for the sale of “our Academy lands,” and would distribute them.</p> <p>The defendants, who conceded, that at one time there had been a contract of some sort between the parties, for the purchase of these lands, relied on evidence to show that it was abandoned, and with this view, offered in evidence six letters, dated respectively the 19th September, 1814, 5th September, 1815, 11th December, 1816, 5th November, 1819, and 27th May, 1820, from Mr. Campbell to Mr. Colhoun, and in which no allusion was made to the purchase of the college lands. To this evidence the plaintiffs objected; but it was received by the court, who signed a bill of exceptions, which was assigned for error here.</p> <p>The circumstances of the parties, the embarrassments of Campbell, in part growing out of this contract with the College, and the affluence of Colhoun were relied upon by the defendants to fortify the defence on this point, and much evidence was given, which it is not necessary to the proper understanding of the case here to detail.</p> <p>' Parker Campbell survived Mr. Colhoun some' years, and died in July 1824; and this suit was brought on the 6th February, 1827.</p> <p>The plaintiff’s counsel (among other points,) requested the court to charge the jury. “That John Colhoun’s administrators and estate are liable to Parker Campbell’s executors for the one half of all money he may have paid on the contract with the Washington Academy; and are not confined, if otherwise entitled to recover, to the excess of payment beyond the half that Parker Campbell was bound to pay.”</p> <p>On this point the court charged the jury — “That three per cent; per annum became due, and was payable semi-annually, and after eight years six per cent. The College had a right to demand this sum at the periods stipulated. If there was a contract between Messrs. Campbell and Colhoun, by which each had an equal interest, and each was bound to make equal payments under the contract with the College; then, any sum paid from time to time in discharge of the accruing interest, by any one of the parties, beyond his proportion, was paid for the other, and the law would raise a promise to repay, but any sum paid by either, beyond the interest, that is in discharge of the principal, would be a payment on his own account, provided such payment did not exceed his proportion of the purchase money; and being a payment-on his own account of his own debt, the law would raise no promise on the part of the other to repay it.”</p> <p>This part of the charge was assigned for error here.</p> <p>- The court, in answer to a point put by the defendant’s counsel, as to the statute of limitations, which was relied- on in defence; charged the jury, that” if Messrs Campbell and Colhoun had a joint interest in the purchase, and Mr. Campbell acted as the agent, and in trust for Mr. Colhoun, and went on from time to time paying his money on the contract, as contended by the plaintiffs, in contemplation of carrying the contract into effect, and, in this way, paid more than his proportion of the the instalments annually due, being under a legal obligation to do so, he would also have the implied assent of Mr. Colhoun.” “ The contract was a continuing one —the trust was to exist throughout the whole concern, ’and when the contract should' be consummated, the separate rights of each would be ascertained. While it continued, each might act for thé other — intermediate settlements were not contemplated. It would, therefore, under such circumstances, be in fraud of the statute of limitations to account each payment a separate act, and liable to its operation.</p> <p>The verdict was for the defendants.</p> <p>1st. As to the bill of exceptions. — The six letters dated after 1814, (admitted in evidence,) showed no connection with, or allusion to the contract in question, and were relied on to show that it was abandoned. They were wholly irrelevant, and testimony of a dangerous character. It is put in the power of a party to select such as suited his own purpose, and suppress the residue of the correspondence; the whole of which he cannot be forced to. exhibit, and any part of which he may destroy.</p> <p>2d. As to the charge of the court. — Colhoun was not a contracting party with the College, and to it he never owed any liability; his liability was to Campbell.</p> <p>If the court below were right, then Campbell could not have called on Colhoun fo pay, till he had paid his full half, which, as the principal was not all to be paid for seventeen years, Campbell could not have recourse to Colhoun until that time. • This view is inconsistent with the letters of Colhoun, and the nature of the transaction. He recognized his liability to pay his portion of the money as the contract progressed.</p> <p>But suppose one half of the purchase money to have been paid, and the College had taken back but half the land; Colhoun could not recover any part of the land, because, the remedy must be reciprocal; and if Campbell cannot sue when he has paid but the one half of the purchase money, Colhoun could not, in the case supposed, recover any portion of the land. Here, the contract with the College was rescinded, and the liability of the parties to each other for money paid on the contract, while it subsisted, attached.</p> <p>In the case of co-sureties, the one can only recover for what he pays beyond his proportion, because if the payment be less, the liability of the co-surety remains; but if the principal contract is at an end, then the surety can call on his co-surety for contribution, although he has paid less than his proportion of the entire sum of the contract.</p> <p>1st. The case on the part of the plaintiffs was exceedingly obscure. The precise terms and nature of the contract upon which they relied, did not appear. They inferred its existence, by inference from the expressions used in letters prior to the year 1814. The defendants, admitting that a contract of some sort, in reference to these College lands, had once existed, relied on many circumstances to establish the. fact that it had been abandoned.' The letters, dated after that period, from Mr. Campbell to Mr. Colhoun, proved that a correspondence had been continued between them, and that Mr. Campbell• did not, in it, refer to this contract, and insist on the liability of Mr. Colhoun to him: although the contract then become more interesting: as the rate of interest then increased, and Mr. Campbell after that time became embarrassed. In a case of circumstances, which, on the part of the plaintiff, as well on the part of the defendant this was; the existence of this- correspondence, and the silence of Mr. Campbell, as regards the contract were powerful circumstances to show that the contract no longer subsisted.- But if these letters proved any thing, however slight, in reference to the defence, it Was proper' to1 permit them to go to the jury; particularly as both parties were dead, and the transaction involved was an ancient One.- It was for' the jury to say if any letters had been withheld.</p> <p>2d. The jury gave a general verdict for the defendants,- Which could only he on the ground that the contract alleged, had been rescinded.</p> <p>And, if the coürt did err' in their charge to the jury, on this point, it was without any prejudice to the plaintiff, as the jury decided on another ground.</p> <p>This is not the case where the court cannot ascertain the point upon which the verdict was given; here it may be readily separated and distinctly ascertained/</p> <p>’ The nature of the contract was wholly a matter of conjecture.</p> <p>If it were between Campbell and Colhoun,- after Campbell bought, it Was a sale to Calhoun by Compbell, and'should have been declared upon by the plaintiff as such. And in case the land had been lost by the default of Colhoun, if Campbell had -paid his full proportion of the purchase money, his remedy would have been on the specific contract, and a general action of assumpsit for money paid to the use of Colhoun,- is not the remedy.</p> <p>The action here is founded on the idea that the purchase had been made by Campbell for' both.-</p> <p>This difficulty as to the nature of the contract lays at the door of the plaintiff, who lay by so long without attempting to enforce any liability on the defendant, and although, as respects a creditor it is enough to know,- and establish a partnership by reputation; yet as between the parties, on a question of liability,- one partner' must establish the contract distinctly.</p> <p>The charge of the court below was-, that the plaintiff might calf on the defendant for contribution for a payment of more than his proportion of the interest.</p> <p>This would stop in 1813, when the principal Was due; and any' payment by the plaintiff- after that, was- less- than his proportion of principal and interest. This he was hound to pay, and he could therefore cast no liability on the defendant by paying this.</p> <p>As between partners and co-sureties the law is well settled. One partner or surety cannot sustain an action agáiíist his cofiartner or co-surety for the payment of his proportion of the debt, t is for the excess beyond this only that a right of action exists. Gozo. 113-14. 1 Madox Chan. 191. Ex part» Crisp. 1 Atkins 134-5. Sozcyer v. Lyon, 10 John. R. 32.</p> <p>But here, the contract was not rescinded by the recoveries in the ejectments instituted by the College; nor are the defendants affected by any negociation with the College, which is without their privity. The vendor, who obtains possession by ejectment for default of his vendee, does not hold as of his former estate, nor is the contract rescinded by such recovery. Martin v. Youst, 3 Serg. <$• Ramie, 432. Marlin v. Willing, 7 Serg. fy Ramie, 297. The vendor holds possession as a security in such case, and as to the vendee, chancery relieves against the lapse of time, especially where a large , part of the purchase money has been paid. The question as to mhat time the vendee shall be allowed, after the vendor has taken possession on liis default, lo redeem, has not been settled; but it is clear that in such, case the contract is not rescinded.</p> <p>The contract between Colhoun and Campbell, upon which we based the liability of the former, was involved in no doubt or obscurity. It was fully made out by the letters of Mr. Colhoun, which the plaintiff’s gave in evidence, and which, ■containing admissions against his interest, are the strongest possible evidence on this point.</p> <p>The letters which did not refer to this transaction, but to the affairs of the family, ought not to have been received in evidence..</p> <p>The presumption of abandonment of the contract would have been as well sustained by the fact of no letters being given in evidence, as by these letters. It is because they contain no evidence that they were received. The law of evidence would not permit conversations between parties, in which nothing was said about the transaction in issue to be proved.</p> <p>The evidence here was of no better character: and their introduction brought before the jury little extrinsic circumstances, which ought not to have reached the jury at all.</p> <p>It is not only liable to these objections, but those already urged on account of the danger of tolerating this kind of evidence.</p> <p>2d. It is against all equity, that Campbell, in a case of this sort, should not have a right to recover a proportion of any sum which he had paid. If it be conceded that he was entitled to recover for interest paid, as the court below charged the jury, on the same principle, he should be entitled for his payment of principal.</p> <p>Campbell was the only party known to the College in the contract, so that one half of every dollar paid by him was for the use of Colhoun, who was thus unknown to the vendor.</p> <p>Where one of two sureties pays the one third of the whole debt, and the principal pays the balance, the surety could most certainly call on his co-surety for contribution. So if one of two partners, pays one fourth of a debt due by the firm, upon a compromise of the whole demand, it is equal clear that he may have contribution from his co-partncr. It is only where the liability remains, that the surety, or partner cannot be reimbursed for any payment less than the half of the debt; and when the hooks speak of half of the whole debt, they mean the half of the whole debt demandahle. The case in 10 John, went upon a different principle. There the liability remained, and the-defendant’s land was subjected to it. Now, by the recovery of the land in ejectment by the College, all the right of the College to call on Campbell or Colhoun, is gone: although it be true that the vendor in such case* ■holds as a trustee for the vendee, who may redeem.</p> <p>It is impossible to ascertain on what point the jury found, or that they- were uninfluenced in their finding by the charge of the court on this point. When the court told the jury that as-to the-principal we had no right to recover, it may have induced the jury to believe that we had no right to recover on account of interest: and the-court will not sustain the judgment upon a conjecture that the jury found on another point, because by possibility they may have so found.</p>

IN ERROR. Writ of error to the court of common pleas of Cumberland county. This was a scire facias upon a' recognizance of special bail, to which the defendant pleaded “ mil tiel record,” and the court below gave judgment for the defendant, in which the plaintiff novr alleged error. • * The following is the entry of the recognizance on which this scire facias was issued. John Moore I 'v. > James A. Mitchell. ) No. 28, August term, 1824.

<p>in error.</p> <p>Writ of error to the court of common pleas of Adams county.</p> <p>The case was ail action of ejectment, brought by the plaintiff in error, who was plaintiff below, to recover a tract of land; and both plaintiff and defendant made title under John Ross, deceased, in whom it was admitted it was originally vested.</p> <p>The plaintiff claimed by virtue of a sheriff’s deed, which was made to him upon a judgment obtained at the suit of Isaac Boyers and Abraham Boyers, against Sample Ross and Samuel Ross, executors of John Ross, deceased, with notice to the tenants in possession.</p> <p>The proceedings in that suit were material to his title, and so far as they are so, are here given at length.</p> <p> Docket entry, </p> <p>Isaac Boyer, and Abraham Boyer, "1 v. > Sample Ross and Samuel Ross, executors of the testament and last will of John Ross, deceased, with notice to Anthony Deardorff, David Ross, and others, tenants in possession of the real estate of said John ■Ross, deceased.</p> <p>No. 135, April term, 1828, Summons debt £1510 05.</p> <p>Sheriff Gilbert returns served on Anthony Deardorff, David Ross, &c. Narr. filed. Defendant pleads payment, with leave, &c. Replication non solvit. Issue, &c.</p> <p>April 28th, 1826, Samuel Ross, one of the defendants, agrees that judgment be entered against the executors and devisees in this suit. Judgment according to agreement.</p> <p>And now, 28th August, 1826, verdict for the plaintiff for fifteen hundred and ten pounds and five shillings, to be released on payment of three hundred and seventy-one dollars and fifty-four cents. — Judgment»</p> <p>Declaration, filed' April term, 1823»</p> <p>Adams County, ss. — Sample Ross and Samuel Ross,, both late of the county aforesaid, yeomen, executors of the last will and testament of John Ross, late of the county aforesaid deceased, were summoned to answer Abraham Boyer and Isaac Bayer of a plea that they render to them the sum of one thousand five hundred and ten pounds five shillings, equal to four thousand and twenty-seven dollars and thirty-three cents, lawful money of Pennsylvania, which to them they owe and unjustly detain, &c»</p> <p>And whereupon, the said Abraham and Isaac, by George Srnney, their attorney, complain that, whereas the said John Ross, in his life time, that is to say, on the fifteenth day of June, in the year of our Lord one thousand seven hundred and ninety, by his certain writing obligatory, to the court here shown, acknowledged himself to be bound unto the said Abraham and Isaac, in the aforesaid sum of one thousand five hundred and ten pounds, five shillings, to be paid to the said Abraham and Isaac, when he the said John should be (hereunto afterwards requested; and whereas the said John, at and immediately before the signing and sealing of the aforesaid writing obligatory, was seized in his demesne as of fee, of and in a certain tract of land, situate in Franklin township, in the then county of York, now Adams, and state of Pennsylvania, adjoining lands of William Shalcely and Robert Shakely, the heirs of Samuel Russell, deceased, the heirs of Moses Jenkins, deceased, and others. And whereas the said John, afterwards, to wit, on the sixth day of January, in the year of our Lord one thousand eight-hundred and five, made his last will and testament in writing, and constituted the said Sample Ross and Samuel Ross, the executors thereof; which said last will and testament was duly proved and recorded, according to law; by which said last will and testament, the said John Ross devised the tract of land aforesaid to the said Sample Ross and Samuel Ross, to be sold, and the proceeds thereof to be applied to the payment of his debts, and certain legacies in the said will and testament specified, and died seized thereof — which said tract of land was not sold by the said Sample Ross and Samuel Ross, agreeably to the provisions of the said last will and testament, but still remains subject to the lien of- the debts of the said John Ross; and subject to the payment of the said sum of one thousand five hundred and ten pounds five shillings, mentioned in the aforesaid writing obligatory, to the said Abraham Boyer and Isaac Boyer. Nevertheless, the said John Ross, in his life time, and the said Sample Ross and Samuel Ross,, since the death of the said John Ross, although often requested, have not paid the aforesaid sum of one thousand five hundred and ten pounds, five shillings, to the said Abraham Boyer and Isaac Boyer, but have hitherto refused, and still do refuse, to pay the same to them; to the damage of the said Abraham Boyer and Isaac Boyer, five thousand dollars, and therefore they bring this suit, &c.</p> <p>Upon the judgment so obtained, in this action, the land in question was levied and sold to the plaintiff; and on the 26th May, 1827, a sheriff’s deed was made to him.</p> <p>The defendant, Anthony Deardorff, claimed title under a judgment obtained at the suit of Tobias Kepner, guardian of Bitiinger, against Samuel Ross, and another, on the 10th of April, 1820, upon which the land was sold, on the 25th of November, 1822, to the defendant; and on the 16th January, 1823,. a sheriff’s deed was made to him.</p> <p>Samuel Ross was one of the five sons and daughters of John Ross, deceased, and one of the executors named in his will.</p> <p>In the will of John Ross, which was proved on the- Gth April, 1805, he directed that his real estate, of which the land in dispute was a part,, should be sold by his executors, that they should pay his debts, and distribute the residue of the proceeds among his children equally.</p> <p>On the 26th of February, 1813, William Baxter, who was mar- ' ried to a daughter of John Ross, deceased, and his wife, and John Ross, the son, released to Samuel Ross their respective interests under the will.</p> <p>, In the same year, David Ross and Samuel made a division of the land which had been of John Ross; and David agreed to take the portion divided off to him, on account of his interest under his father’s will. After the divison, which was by parole and in pais, David built a tenant house, on his part, and enjoyed it separately.</p> <p>To show that the interest of Sample Ross, the remaining legatee, under the will of John Ross, had been also vested in Samuel Ross, the defendant gave in evidence a judgment which had been obtained against Sample Ross, on the 15th August, 1808, at the suit of W. Ilosack, administrator of Brown; and a levy, and judicial ■ sale of the interest of Sample in the land of his father, to Samuel Ross; and a sheriff’s deed of the same to Samuel, dated the 3d day of October, 1809. Samuel had improved the land, and the houses built upon it; and expended considerable sums of money in these improvements, after he obtained the releases of his brothers and , sisters.</p> <p>In answer to points put by the counsel of the plaintiff, the court below charged the jury- — that by the act of the 4th, April, 1797, no debt, unless secured by mortgage, judgment, recognizance, or other record, shall remain a lien on the lands of decedents for a 'longer period than seven years from the decease, unless action be commenced within that period; or, if such debt be not due within seven years, unless a written statement of the debt be filed of record in the prothonotary’s office within such period.</p> <p>That John Ross died before the Qth of April, 1805, and that no suit was brought upon the bond from John Ross to Isaac and Abraham Boyer, or any description of it filed in the prothonotary’s office, within seven years after the death of John Ross; and that consequently as against a bona fide purchaser, which Anthony Deardorff was, the lien of that debt was gone before suit was brought.</p> <p>And that Anthony Deardorff was not estopped by the pleadings and proceedings in the suit, which was brought on that bond, in 1823, from denying the existence of that lien, and controverting its effect in tins action.</p> <p>The errors assigned were to the charge of the court on these two points.</p> <p>1st. Contended that under the will of John Ross, James Ross and Sample Ross, the executors become invested with an estate in his lands devised in trust for the uses of the will, and that the power to sell never having been executed by them, and the entire title never having been acquired from all the cestique trusts the entire estate had never been so vested in them as to warrant the application of the limitation of the act of 1797, which was made for the benefit of the bona fide purchaser. Where trustees have an' estate vested in them, a purchase by them of part of the interest of cestique trust does not vest in them such an interest in the trust fond as that a sale on a judgment, obtained against them, would transfer the title clear of the trust.</p> <p>Here one of the trusts of the will was the payment of the debts of the testator, of which the debt under which the plaintiff claimed was one. To have the effect contended for, the purchase by the trustee must be of the entire interest. In case of a-partial purchase the tnist'remains, and the purchaser at sheriff’s sale, under the judgment against the trustee, would take subject to the trust.</p> <p>It is obvious that nothing less than an agreement of the parties in interest could extinguish the trust; a partial agreement could not have this effect.</p> <p>Here the lapse of time did not run against the trust, and Deardorff comes m with full notice. He claims under a judgment against Samuel Ross; and one of the muniments of his title is the will of John Ross, which gave him notice of the trust, and which imposed upon the executors the duty of paying the debts of the testator. The title which Deardorff bought was an equitable title, and he must take'it with all the circumstances of the equity: anda paramount incumbrancer is not defeated.</p> <p>Any'other, doctrine would establish a rambling and licentious equity, to depend on the circumstances of each case.</p> <p>The judgment against Sample Ross, and the sale upon it of his interest in the land devised .to Samuel Ross, vested no .title in Samuel.</p> <p>He was a legatee under the will of John Ross, and took no interest in the land upon which that legacy was charged, which was the subject of a judicial sale. Allison Ex’r of Henderson, v. Wilson’s Ex’rs. 13 Serg. Rawle, 330.</p> <p>2d. But Deardorff has, had his day of grace, and it has gone to judgment. In the suit brought on the bond of Boyer and Boyer he ■appeared and made defence. In the declaration the plaintiff set forth certain facts, among them those which constituted a lien. The plaintiff in that casehad a right to call -in the terre-tenants, ■and save the expense of a subsequent investigation.</p> <p>It is not competent for a party after trial and judgment, to allege •that he might have put in another plea which would have answered his purpose better. If he might have put in the plea that is enough; lie is concluded by the trial and judgment as to every fact alleged, and not denied by him. Nor docs it lay in the mouth of the defendant to say, that there was no trial on the point, as to the lien of the debt, alleged by the plaintiffs in that suit. It was a matter of no importance to the terre-tenants whether the debt was due by John Ross; the lien of the debt, on their land was the only question of interest to them. 1 Phil, E. 140. 243. 238.</p> <p>In ejectment the irregularity of the proceedings in a scire facias sur mortgage, as that the judgment was entered on one nihil, cannot be inquired into. Allison v. Rankin, 7 Serg. Rawle, 260. So in a scire facias against an heir and ter re-tenant, what might have been pleaded is concluded by the verdict and judgment. Coyle el ais v. Reynold,’s Ex’r 7 Serg. ¿f Rawle, 328. White v. Ward et al, 9 John. R. 232. JYace et al, v. Ilollenbach, 1 Serg. fy Rawle, 548. Bender v. Fromberger, 4 Dali, 436.</p> <p>The mode of proceeding adopted by the plaintiffs in the suit upon, the bond was perfectly regular. They first took judgment against the defendants, the executors of John Ross, and then went to trial with the terre-tenants.</p> <p>Such is the mode in the case of á scire facias on a mortgage or recognizance: judgment is taken against the cognizors or mortgagors, and then the plaintiff goes to trial as to the terretenants.</p> <p>1st. Samuel Ross was executor, and also seized of the legal estate in the land in question, under the will of his father. The. interest of the legatees become vested in him by purchase, and the execution of the power, under the will, was thereby dispensed with, and the devise became absolute. The court here told Mr. Carothers that he need not labour this point.</p> <p>2d. As to the lien of the debt to Boyer and Boyer, it was gone. The debt had stood from 1793 to 1823, and if there was a lien, as against Samuel Ross, it was discharged by the sheriff sale, under which Deardorff became the owner of the land. Commonwealth for the use of Guernsey v. Alexander, 14 Serg. Sp Rawle, 257. M‘Lanahan v. MLaniahm, ante. p. 96.</p> <p>It is not conceded that Deardorff had notice of the debt, but in Bombay v. Boyer, 14 Serg. 41 Rawle, 253, it was decided that express notice of a judgment does not avoid the limitation of its lien to five years. This principle is equally applicable to the act of 1797, as to the lien of debts of decedents.</p> <p>But if actual notice had been given by Boyer, it would not be enough,forthe act of assembly requires the notice to be of record: and none other will suffice to preserve the lien of the debt under that act.</p> <p>. The lien was clearly gone, nor is there any virtue in the proceedings in the suit upon the debt to preserve it. That proceeding was an anomaly. In Pennsylvania there is'no such thing as an action of debt with a notice to the tenants of land, against which a lien is asserted. In England the heir is not bound unless the ancestor bound him, but in Pennsylvania lands are subject to the payment of debts, and are bound in the hands of the heir, independent of any contract to that effect. It is not in such case affected directly but collaterally.</p> <p>The principles, therefore, which prevail in England on this subject, are wholly inapplicable here. The form of action is without any precedent, and no good can result from adopting it.</p> <p>The whole proceeding on this point was a nullity, and altogether immaterial.</p> <p>A party is never concluded by an immaterial averment or issue.</p> <p>An estoppel must be clearly shewn. This record does not show it clearly. The plea put in was “ payment,” suppose it to have been put in by Deardcfrff, it would not admit the trial of the question of lien. It would not in the case of a scire facias on a recognizance or mortgage. In Magauran v. Patterson, 6 Serg. 4* Rawle, 278. it is said a verdict is conclusive as to the fact found, or passed Upon. Where it is a man’s duty to plead he may be bound. But the application of this principle to this case would be unjust.</p> <p>The record of a proceeding, between landlord and tenant, is not conclusive in ejectment. Galbraith v. Black, 4 Serg. ¿p Rawle, 212. Hess v. Heebie, ibid. 246.</p> <p>The action was on a bond, with a collateral condition to perform Covenants, anda general judgment was confessed by one of two executors.</p> <p>The amount of the damages were not ascertained, and until that was done, the terre-tenants were not bound to answer. A jury in court, or inquest on a writ, was the proper tribunal for this inquiry. The jury then tried nothing but this preliminary issue, to which the terre-tenants, could not be parties. Reigart et al v. Ellmaker, 6 Serg. Sf Ramie, 45-6. Kean v. Ellmaker, 7 Serg. cj’ Ramie, 1 — 3.</p> <p>The verdict is general, and if it were between the plaintiffs and terre-tenants, it would bind them personally, which cannot be.</p> <p>The plea put in was “ by the defendant,” and not by the terretenant, and he can in no way be affected by it</p>

<p>Upon the allegation of forgery, it is not-neeessarv to produce, aS Witnesses, all the persons in whose possession the forged paper had been, in order to identify it — its identity isa matter of fact for the jury.</p> <p>A Comparison of hand-writing, is admissible in evidence in civilcaseS incorrbboration1 of a belief of a witness, founded' upon- actual knowledge.</p> <p>The testimony of an exfiert, who speaks alone from iiis knowledge and skill in hand-writing,- is- not competent to establish a forgery.</p> <p>When’the court of Common Pleas, erroneously permit' evidence to be given-to the jury, no such evidence beiug.afterwards given, this court will'not reverse the judgment.</p> <p>If an'executor,-upon- the settlement of afi account of his testator,, allows-a credit for a cheek, this is not such an-administration of this part of the assets-as will preclude an administrator de bonis non,, from- sustaining an action to recover the amount of the check, which lie proved to be a forgery.</p> <p>A promise laid' in one count,-as having b'een made to the testator in his lifetime; and in another, as having been made to his administrators after his death, is not such a misjoinder of counts,as will be fatal to a general verdict and judgment.</p> <p>Wherever .the funds to which the money and1 the Costs are to be' applied, or out of which the costs are to be paid, are the same, and- the money when recovered- would be assets, then the counts may be joined.</p>

This was an appeal from the decree of the Orphans’ Court of Lancaster county, passing and confirming the administration account of Samuel,- administrator of James Morrison, deceased. James Morrison, died in December, 1810, seized of a large real, and possessed of considerable personal estate.

IN JüRROR. Writ of error, to the court of Common Pleas of Lancaster county. ■ j This was a feigtjed issue, directed by that court, and joined between the defendants in error, who were the plaintiffs below, (and for whom the verdict past,) and the plaintiffs in error, who were the defendants below.

This was an appeal from the. decree of the Grcuit Court, confirming the decree of the Orphans’ Court, of Lancaster county,' in the matter of the guardianship account of Benjamin Konigmdcher, the appellant, as guardian of Jacob Kinimel, the appellee, charging the guardian with the amount of a bond given by John Weidman, to the guardian, on account of money due the' ward, and ‘which was lost by the insolvency of Weidman.

IN ERROR. Writ of error to the District Court for the city and county of Lancaster. In that court it was an action of debt brought on the 22d day of January, 1821, by the defendant in error who was plaintiff below, against the plaintiff in error who was defendant below, upon the following paper: “ Friend John Wilson, I was at your house this-day to see if you icould let me have one hundred and fifty-four dollars, I owe it to Thomas Coates, he will call to-morrow.

IN EKROK,- In error to the District Court for- the city and county of Lancaster.

IN ERROR. In error to the District Court for the city and county of Lancaster.

<p>This was an appeal taken by Abraham Royer, John Stultzfus áñd Peter Eckert, from the decree of the Court of Common Pleas of Lancaster county, in the matter of the distribution of the money raised by the sale of the real estate of James Plamilton, deceased, by the sheriff —</p> <p>On the 2d of September, 1825, the sheriff was ruled to pay the money into court, and notice to J. Hopkins, Esq., at bar, was noted on the record. On the 9th September, 1825, he paid seven thousand seven hundred and thirty-five dollars and twenty-five! cents, the nett proceeds, into court. On the 30th September, 1825, a rule was taken to show cause why the judgment oi Susannah EU-maker, should not be paid out of these proceeds, and on the 29th December, 1825, a similar rule was taken in behalf of Hamilton, Potter', Ramsey and Clark, other judgment creditors of J. Hamilton, deceased. On the 13th of March, 1827, these rules were argued; and on the 1st May,-1827, the court decreed, that “the judgments obtained by Tate and wife, No. 7, to April term, 1817; Joshua Potter, to April term, 1821; William Ramsey, to the same term; Grayson, assignee, &c. to January term, 1818, and Susannah Ellmaker, to Au* gustterm, 1824,” are entitled to be paid as judgment's on specialties out of the proceeds of the sale of the real estate of James Hamilton. Those obtained by Tate and wife, No. 8, April term, 1817; Jane M. Tate, to August term, 1824; by Clark and wife, to April term, 1823, “are entitled to be paid as judgments on simple contract debts only.” The court added. “We cannot recognize John_ Stultzfus, Peter Eckert and Abraham Royer, as specialty creditors. There was no debt due to them at the time of J. Hamilton’s death. Their remedy is confined to the covenant of warrantee in the deed, and the claim must be made out judicially before it can be enforced.”</p> <p>From this decree an appeal to the Supreme Court, was taken by the present appellants, and on the 6th of June, 1827, this appeal was dismissed. On the 26th June, 1-827, Hopkins, moved the Court of Common Pleas, on the petition of the appellants, “ That the court proceed to make a final distribution of the proceeds of the real estate of the said James Hamilton, agreeably to the 14th section of the act of the 19th April, 1794, and that if it should appear, that any incertitude, as to the question of any other claims exists, that the court direct issues to ascertain them.” On the 30th June, 1827, that court made the following decree:</p> <p>“The court having decided on the 1st May, 1827, that the judgments obtained by Tate and wife, to April term, 1817, No. 7; of Joshua Potter, to April term, 1821, No. 440; of William Ramsey, to-April term, 1821, No. 441; of Grayson, assignee of John Whitacre,executor of Stephen Wray, to January term, 1818, No. 52; Susannah Ellmaker, to August term, 1824, No. 28, are entitled to be paid as-judgments on specialties out of the proceeds of sale of the real estate of James Hamilton; and that John Stultzfus, Peter Eckert and Abraham Royer, could not he recognized as specialty creditors; no-questions on those points are now open for discussion. Under that decision, the prothonotary should pay the amounts due on those judgments, and if not paid after this declaration of the court, payment will he enforced by attachment. The court will proceed on a proper application, by those who claim any part of the balance to make a final distribution of it agreeably to law, and, when such claims are made; if any facts connected with such distribution, should be disputed, the court will direct an issue, if the party ask-ing it, he legally entitled thereto.”</p> <p>Same day (30th June,) appeal was taken by James Hopkins, attorney of Abraham Royer, and others, and this affidavit made, viz;- “ James Hopkins, being duly affirmed according to law, saith, that this appeal is not taken for the purpose of delay, andfurther saith not.” On-the 23d of July, 1827, bail on the appeal was entered.</p> <p>now moved-the court to dismiss the appeal.</p> <p>1. Because the affidavit made to; obtain the appeal, is not that' required by law,.and the security required by the act of assembly,, was not entered.</p> <p>2. No decision was made after the 1st day of May, 1827, from-which an appeal could he taken.</p> <p>They referred to Pamphlet laws 471, act of the lQth of April, 1827. PurcL dig. 613, act of 27th March, 1813.</p> <p>contended that the first decree of the 1st May,. 1827, from which the appeal was taken, which was dismissed by the Supreme Court, was hut interlocutory; and that the decree made on the 30th June, 1827, from which this appeal was taken, was the final decree. A decree is only final when the court dispose of the whole subject matter in dispute. Under the act of assembly authorising this proceeding, no bail is required to obtain an appeal. The appeal is effectual without hail, although without it, there is no supersedeas. Magil v. Caufman, 4 Serg. Sf Rawle, 318. The affidavit is stronger than that required by the act, and is well taken by the attorney of the appellants.</p>

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This action was instituted by the entry of the following agreement between the parties.</p> <p>Lydia Massey and others. > Neil Crosby and Patrick Crosby. )</p> <p>Amicable action in trespass on case‘</p> <p>We, the defendants above named, hereby authorize and require -the prothonotary of the court of Common Pleas] of Schuylkill county, to enter up the above stated amicable action of trespass on the case to July term, 1827, and we agree that the same proceedings be had thereon, as though we had been regularly summoned.</p> <p>In witness whereof, we have hereunto set our hands, the fourteenth day of June, 1827.</p> <p> Neil Crosby, </p> <p> Patrick Crosby, </p> <p>I agree to the entering up of the above amicable action on the terms above mentioned.</p> <p> Jno. Bannan, </p> <p>Att’y for Plaintiffs.</p> <p>This agreement being entered on the record to July term, 1827, a declaration for use and occupation of a saw-mill, was filed on the 28th, September, 1827, and, on the same day, a judgment by default of appearance, was signed by the plaintiff On the 26th February, 1828, a writ of inquiry of damages was issued, by which the damages were assessed at three hundred and twenty-five dollars. On the 31st March, 1828, Mr. Loeser appeared for the defendants, and obtained a rule to shew cause why the judgment and inquisition should not be set aside. In October, 1828, upon hearing the testimony, the court discharged the rule, and entered judgment on the inquisition.</p> <p>The substance of the testimony was, that the next day after the judgment was entered, Mr. Bannan, the plaintiff’s attorney, gave notice to the defendants that judgment had been entered, at which they expressed their surprise, and said that Mr. Loeser had been employed by them to make defence: The next day Mr. Loeser called on Mr. Bannan, and requested him to open the judgment, which he refused to do, but told Mr, Loeser he might ask the court to set it aside. At the next court after this conversation, Mr. Loeser said to Mr. Bannan, that he was prepared to make a motion to have the judgment opened, but he had concluded that he would not, as his clients would derive an advantage from the judgment, in another action which was pending, in which his clients were interested.</p> <p>Errors assigned, i. The court erred in rendering judgment against the defendants by default, after they had both appeared in their proper persons.</p> <p>2. The court erred in refusing to set aside the judgment and inquisition.</p> <p>3. The court erred in rendering final judgment on the inquisition.</p> <p>4. The interlocutory judgment entered on the 28th September, 1827, is uncertain and void, and is no foundation for a writ of inquiry of damages.</p> <p>This is a judgment by default of appearance, entered in vacation on the same day the declaration was filed, when there was, in fact, an appearance by the defendants. The agreement by which the action was instituted was an appearance, and the defendants were entitled to notice of any further proceeding,</p> <p>The agreement amounts to nothing rnore than a waiver of the writ of summons, whereby that expense might be saved, the words are “ and we agree that the sameproceedings be hadthere.on, as though we had been regularly summoned.”</p> <p>The judgment was not void, and if it is irregular, the party must take the earliest opportunity to have the error corrected. Here the defendants knew of the judgment the next day after it was entered; at the next) term their attorney refused to make the application to have the judgment opened, and did not make it until after two terms had elapsed, and the plaintiffs had been put to the expense of executing a writ of inquiry of damages. This is an acquiescence which concludes the defendants. 1 Penn. Prac. 92. Morriton v. Wetherill, 8 Serg. Rawle, 502. Tidd’s Prac. 434, 507. 2 Arch. Prac. 201. Cochran v. Parker, 6 Serg. Sf Rawle, 549.</p> <p>The judgment being erroneous, the attorney of the party had no power to release the errors: and much less should his loose declarations be so construed as to conclude the defendants. By a rule of the court of Schuylkill county, “ no parol agreement between attorneys is binding.”</p> <p>The judgment by default was interlocutory, upon which no writ of error would lie, until the writ of inquiry was executed; the defendants, therefore, have taken-the earliest opportunity, and the mode pointed out by law to correct an erroneous judgment: they have not acquiesced. In the case of Ranch v. Becker, 12 Serg. <Sf Rawle, 412, this court reversed the judgment entered upon an award of arbitrators, although the party had entered bail for the stay of execution.</p>

<p>Error to Lebanon county.</p> <p>This was an action on the case brought by David Beashore, against Marlin Wengert and Abraham Wengert, executors of Ludwig Zearing, deceased, for maliciously suing out a capias ad respondendum against him, and requiring bail without probable cause of action.</p> <p>The facts of the case were these:' Ludwig Zearing, in his lifetime, to wit, in 1817 held David Beashore’s bond for three -hundred and ninety-six dollars, and upon his death, it came into the hands of the defendants Martin Wengert and Abraham Wengert, his executors, who to April term, 1824, brought suit upon the said bond by issuing a capias ad respondendum, and required bail in live hundred dollars; the same day it issued, the defendant Beashore, was taken by the sheriff, and not being able to get bail, he was imprisoned. A rule of reference was entered by the defendant, and arbitrators were chosen, who met on the 12th April, 1824, the defendant then proved the consideration of the bond, and that it had failed; the arbitrators reported no cause of action. Upon the report being filed, the plaintiffs Martin and Abraham Wengert, by advice of their counsel, refused to discharge the defendant Beashore, from custody. No appeal was entered by the plaintiffs’, and after the twenty days had elapsed, the defendant was discharged on habeas corpus, and brought the present suit to recover damages.</p> <p>The following points were put to the court by the defendants, upon which they requested them to charge the jury:</p> <p>1. That this action cannot be supported by the plaintiff, in its present form.</p> <p>2. That no action for a malicious prosecution can be maintained against executors.</p> <p>3. That the plaintiff has misconcieved his remedy; that if any injury has been sustained by him, he ought to have sought redress, by an action for false imprisonment against the defendants in their individual capacity, and that no action can be maintained by the plain tiff against the defendants in their representative capacity, as the executors of the said Ludwig Zearing, deceased, for the supposed injury set forth in the declaration.</p> <p>4. That the plaintiff, before he can recover in this action, must prove malice in the defendants, and want of probable cause at the time suit was brought.</p> <p>5. That when a plaintiff sues out a writ, such as in the present case, founded on the bond or writing obligatory of the defendants, no action for a malicious prosecution can be supported; for the want of probable cause, does not, nor cannot exist.</p> <p>6. That defendants having called upon counsel, and issued the writ in pursuance of his directions, and acting as executors of Ludwig Zearing, excludes in law, every presumption of malice in the defendants.</p> <p>7. The want of probable cause alone, and the defendants having failed to recover in the suit which they brought against David Beashore, are not circumstances sufficient in themselves to warrant the jury in finding a verdict in favour of the plaintiffs; unless the defendants knew the want of probable cause at the time they brought their suit. That the jury cannot infer malice in the defendants from the circumstance of their failing to recover in their suit on the bond against David Seashore.</p> <p>To which the court answered:</p> <p>1. This action can be supported and maintained by the plaintiff in its present form, the styling of the defendants executors is merely a personal description.</p> <p>2. It cannot be maintained against them as executors.</p> <p>3. This suit is not against them as executors, in their representative character; and they are answerable in this suit, in their individual capacity, notwithstanding they are styled executors, and the plaintiff has not. misconcieved his remedy.</p> <p>4. The jury must be satisfied, from all the circumstances given in evidence, that the suit against the present plaintiff was brought maliciously, and without probable cause; malice and want of probable cause both are necessary, and must be shown, in order to •maintain an action for a malicious prosecution, either of a civil proceeding or criminal prosecution. Express malice is not required to be proved; malice may be implied. For if the plaintiffs case proves that the proceedings against him were groundless, and that the defendants knew it; then malice will be implied. Holding to bail where' the plaintiff has no cause of action, and knows that he has no cause of action, if done for the purpose of vexation, entitles theparty aggrieved to an action for a malicious prosecution.</p> <p>■ 5. Want of probable cause may exist where a suit is brought on a bond. The circumstance of a suit being founded on a bond or writing obligatory, is no bar to an action for a malicious prosecution.</p> <p>6. If upon a fair representation of facts to the counsel, by the defendants, he advised the bringing of a suit upon the bond, and guided by that advice, they brought suit on that bond, the law will not impute malice to the defendants; for the clients ought not to suffer by the honest mistake of their counsel, if they innocently acted by his advice. But if they did not make a fair representation of facts to their counsel, and knew the proceedings on the bond were groundless, the law will impute malice to the defendants. Whether the suit was brought maliciously and for the purpose of oppressing the defendant, is a conclusion of fact to be drawn by the jury from all the circumstances of the case. It does not follow from the plaintiffs failure to recover in the action on the bond, that the suit was brought with a view to vex, and improperly injure the defendant in the case.</p> <p>7. The want of probable cause alone, and the defendants having failed to recover in the suit which they brought against David Beashore, are not circumstances in themselves sufficient to warrant the jury in finding a verdict in favour of the plaintiff, unless the defendants knew the want of probable cause at the time when they brought their suit. The jury cannot infer malice in the defendants, from the circumstance of their failing to recover in their suit on the bond.</p> <p>The charge of the court was assigned as error;»</p>

<p>IN ERROR.</p> <p>Error to tbe Court of Common Pleas of the county of Dauphin.</p> <p>This was a scire facias at the suit of the Commonwealth of Pennsylvania, for the use of John Mien, one of the heirs and legal representatives of Joseph Allen, deceased, against Ann Finney, Thomas Finney and William Finney, administrators of Samuel Finney, deceased, bail of James Allen, issued upon a recognizance entered into by Samuel Finney, as tbe surety of James Allen, to obtain the stay of execution under the act of assembly, upon a judgment in favour of the plaintiff against the said James Allen and Christian Forney. This judgment was obtained on a recognizance given by James Allen, with the said Forney as his security, in the Orphans’ Court, upon taking the real estate of his father, Joseph Alie??, deceased, at the appraisement. The recognizance, on which this 'scire facias issued, was entered into by James Allen, the defendant, on the 3d of January, 1S20; and the plaintiff in the judgment, to December term, 1820, issued an execution thereon, which was levied on the land of James Allen, and that was sold for three thousand and fifty dollars, which was brought into court, and auditors appointed to ascertain the debts due by Joseph Allen, deceased. These auditors reported the debts due by the estate of Joseph Allen, deceased, which amounted to the sum of seven hundred and twenty-eight dollars and twenty-five cents; and also, that by an agreement of the surviving heirs and legatees (of whom the plaintiff John was one,) of the said deceased, in writing, it was stipulated that the executors of the said deceased should pay the debts of Tristram Allen, one of the sons of Joseph, who died in his fathers lifetime, out of tbe estate of the said Joseph, and that considering the debts of Tristram, under this agreement, as the debts of Joseph, they reported those debts. They amounted to the sum of two thousand four hundred and fifty dollars ; and among them there was a judgment in favour of Samuel Finney, the defendant’s intestate, for one hundred and thirty-six dollars and sixty-eight cents. The report on the 24th March, 1823, was confirmed by the court, and a decree made that the money should be paid over according to the report.</p> <p>This scire facias was brought to April term, 1823, and a verdict under a charge of the court favourable to the plaintiff, which was excepted to, having passed for the plaintiff, error was brought by the defendant.</p> <p>argued, that the application of the proceeds of the sale of the real estate of James Allen, to the payment of the debts of Tristram, (which were no lien on the fund,) by the agreement of the plaintiff, instead of applying them to pay his judgment against James, which was a lien, discharged the liability of the defendant on his recognizance upon that judgment.</p> <p>Any act of the obligee which affects the surety will discharge him. Commonwealth v. Miller. 8 Serg. Rawle, 452. Diermond v. Robison, 2 Yeates, 324. Here the means of satisfaction were in the hands of the plaintiff, he parted with them, and cannot now resort to the surety. Ludlow v. Simond, 2 Caines Cases in Error, 29. 30. By any act which changes the situation of the surety he is discharged. Rathbonev. Warren, 10 Johns. Rep. 588. 590. 3 Wils. 539. Phillips v. Thompson, 2 John Ch Rep. 418. Bellas v. Haasf 16 Serg. & Rawle, 252.</p>

<p>A practice in the court of Quarter Sessions of appointing twelve freeholders as reviewers of a road, from which the parties in interest shall strike •six, the remaining six being the reviewers, is contrary .to the express provision of the law, and erroneous. But when the petitioners for the review pray for the appointment oitwelve, and then refuse to strike, because some of the persons appointed are exceptionable, it is not error in the court of Quarter Sessions to refuse to appoint others in .the place of those four, and-confirm the view.</p>

<p>A bond, -with a -warrant of attorney to confess judgment, authorizes the entry of but one judgment: the entry of a second, upon the same warrant, is wholly irregular."</p> <p>It is competent for a terre-tenant, who is brought in by scire facias to revive a judgment, to show that the original judgment was entered without authority, was fraudulent, or otherwise wholly irregular.</p>

The defendant,. George B. Porter, Esq. was prothonotary of the county of Lancaster,' from April, 1818, until February, 1821, when he resigned, and during that time,, it, was admitted he received fifteen hundred dollars per annum.

<p>Appeal, -by the defendant, from the Circuit Court of Lebanon county.</p> <p>An action of debt on bond was brought' by Jacob Frantz for theuse of John Garberich, against Philip Brown. The plaintiff gave in evidence the bond of Philip Brown to Jacob Frantz, for eight hundred dollars, upon which suit was brought, dated tbe 29 th March,. 1819, payable on the first of May, 1823, with the equitable assignment thereon, to John Garberich, dated fifteenth April, 1820. The defendant then read a notice of the special matter, upon which he intended to rely as a defence, which was in substance this.-</p> <p>That on the 10th of October, 1818, an article of agreement was entered into, between.Frantz and Brown, by which Frantz sold a tract of land to Brown, .for two thousand two hundred pounds; seven hundred pounds whereof was to be paid upon the execution of the contract, and three hundred pounds a year- thereafter, till the whole should be paid: that bonds were given by Brown to Frantz, for the said annual payments, upon one of which-this suit is brought. That about eight days after the bonds were- executed and delivered to Frantz; he bought a tract of land and mills from Adam, Brechibill, for ten thousand six hundred and sixty-six dollars and sixty-seven cents; four thousand two hundred and sixty-six dollars, and sixty-seven cents of which he paid in hand, and agreed to give sixteen bonds, with security, for four hundred dollars each, payable annually,- for the residue. That on the 6th April, 1-819, Frantz called on Brown to become his security, in the sixteen bonds to Brechibill,- for four hundred dollars each, which Brown at first refused to do; but upon its being agreed by Frantz, that if Brown would sign, as his security,- the bonds to Brechibill, the bonds which he, Brown, had given to Frantz on the 29th March, 1819, for the land purchased, should be his security: that if Brown was at any time obliged to pay any of the bonds given by them to Brechibill, that so much should be deducted out of his bonds to Frantz, and that Brown should not be called upon to pay his bonds to Frantz, until Franlz had paid his bonds to Brechibill; on these conditions Brown signed the bonds, as security of Frantz to Brechibill. That Frantz became unable to pay his bonds to Brechibill, and that Brown was obliged to pay them, and had’paid the first eight bonds in full, and the ninth in part.- That Frantz became insolvent on or before the 10th April, 1821, and that Brown will be obliged to pay all the bonds to Brechibill; as they become due.</p> <p>The defendant háyifig given in evidence, the agreement between Frantz and Brechtbitt, as mentioned in the notice of special matter, and the deed in pursuance thereof, dated 6th April, 1819; oflered in evidence three bonds of the same date, Jacob Franlz and Philip Brown, to Adam Brechibill, for four hundred dollars each, payable on the 1st of May, 1825, 1826 and 1827, together with the parol agreement between Franlz and Brown, as set out in the notice of special matter;</p> <p>This was objected to by the plaintiff, who in support of his objection showed, that this suit was brought on the 10th November, 1824. The evidence was rejected by the court.</p> <p>The defendant then offered in evidence, the prior bonds, Jacob Frantz and Philip Brown, to Adam Brechibill, four in number; the first payable on the first day of May, 1820, and the last on the first day of May, 1823. Objected to by the plaintiff, inasmuch as these bonds had been credited in a former suit, Jacob Frantz, for the use of Philip Stine, v. Philip Brown; and offered a credit for the amount found by the jury, in said suit, as over paid by the defendant, to wit: two hundred and two dollars and thirty-eight cents — the defendant then agreed that the former trial shall settle the amount over paid on the three first bonds.</p> <p>The defendant then offered in evidence the bond of Jacob Frantz and Philip Brown, to Adam Brechibill, payable on the first day of May, 1824, with proof, that it was paid on the day it fell due, or before: objected to by the plaintiff, on the ground, that notice of the assignment of tbe bond, upon which the present suit is brought, was brought home to Philip Brown, before the bond offered in evidence became due, or was paid; and gave in evidence a suit brought by the plaintiff, against the defendant, in Dauphin county, to recover the amount of the present bond, the 26th day of January, 1824, process served and bail given, and discontinued on the 9th day of November, 1824, the day before this suit was brought. Objections overruled, and evidence admitted; excepted to by the plaintiff</p> <p>John Harrison was then called by the defendant. I Was one of Jacob Frantz’s assignees; assignee deed, dated the 10th day of April, 1821; sold his goods, January, 1822; I have always understood he was poor; we were not able to pay his debts; I don’t know what his circumstances were in 1824.</p> <p>Jacob Frantz was called by the defendant: I did not pay the bond of 1824, which Brown and I gave to Adam Brechtbill: I was not able to pay it then, nor am I now.</p> <p>A verdict was rendered for the plaintiff, for three hundred and fifty-one dollars and fifty-eight cents.</p> <p>The plaintiff prayed the court to grant a new trial for three reasons, the first of which is alone material.</p> <p>Because the court erred in receiving in evidence the bond of Jacob Frantz, and Philip Brown, to Adam Brechtbill, dated 6th April, 1819, for four hundred dollars, payable 1st May, 1824, and in deciding that the same was a legal defalcation against John Garbesich, for whose use this suit was brought.</p> <p>The defendant prayed the court to grant a new trial, and assigned four reasons therefor, all of which amounted to but one.</p> <p>Because the court rejected the evidence of the payment of the bonds of Frantz and Brown, to Brechtbill, payable 1st May, 1825, 1826,1827, 1828, and part of the oneof'1829, together with parol evidence of the agreement between Frantz and Brown, at the time they were executed.</p> <p>The court overruled both the motion of the plaintiff, and of the defendant: and entered judgment upon the verdict, from' which decision both parties appealed.</p> <p>In this court the cause was aTgued by</p> <p>For the plaintiff, it was contended, that the court was right in rejecting the evidence of the parol agreement between Frantz and Brown: a contract cannot rest partly in writing and partly in parol, such evidence was rejected in Davis v. Barr, 9 Serg.. Rawle, 141. It is against the legal effect of the instrument; and the assignee not having reason to suspect its existence, is not bound to enquire for it from the obligor. An agreement not to enter up a bond, was held not to bind, even tbe original parties. Undoubtedly the assignor could- not have released after the assignment, in consideration of this previous liability; and what can not be done directly, cannot be done indirectly. Andrews v. Beeker, 1 Johns. Cas. 411. Little-field v. Story, 3 Johns:Rep. 425. Wardell v.Eden, 2 Johns. Cas. 121. Raymond v. Squire, 11 Johns. Rep. 47. Bates v. JV. F. Ins. Co. 3 Johns. Cas. 238.. Want of notice to the assignee is material; for after that,, the interest of the assignor is'divested, even as regards the obligor, and all relation between the original parties ceases. Nothing but defalcation or an equity arising out of the concoction of the debt can be urged against an assignee. Davis v. Barr, 9 Serg. Sf Rawle, 14]. Turlin v. Bonson, 1 Peer Williams, 495. Cook V. Ambrose, Addis. Rep. 323. We are purchasers for a valuable consideration, without notice of this germ of incipient equity.</p> <p>There was error in admitting the evidence of set off of the amount of the bond of 1824, and in charging the jury that they were bound to allow it.. Jenkins v.. Brewster, 14 Mass. 291. Jones v. Witter, 13 Mass. 305.</p> <p>The counsel for defendant were requested by the court, to confine their argument to the point on which the defendant appealed.</p> <p>The evidence of the agreement between Frantz and Brown, should have been received for the purpose of raising an equitable defence, independent of defalcation, 1 Madd. Chan. 154, an assignee takes subject to every equity, Wheeler v. Hughes, 1 Dal. 23. Run-dell v. Ettwein,-2 Yeates 23. Mann v. Dung an, 11 Serg. Sf Rawle, 75. Every defence must be let in; Solomon v. Kimmel, 5 Bin. 234. Bury V. Hartman, 4 Serg. Sf Rawle, 175. Qochenaurv. Cooper, 8 Serg. Sf Rawle, 203. Morrison v. Moreland, 15 Serg. Rawle, 61. Roasset v. The Ins. Co. of North Amer. 1 Bin. 433. The defalcation act expressly authorises the giving of a bargain in evidence, to show the amount actually and equitably due. . Here there is certainly an available equity between the original parties, which is sanctioned by all the authorities, as being also available against the assignee</p>

' It was an action of assumpsit for money had and received. Issues were joined upon the pleas of wow assumpsit and payment. It appeared upon the trial of the cause, that Leonard Immel, the surviving trustee of Frederick Stoever, an insolvent .debtor, had not given bond for the faithful discharge of the duties of trustee, before he brought this suit against the administrators of Tobias Stoever, deceased.

Writ of error to the Common Pleas of Berks county.. The facts of this case were these: Caspar Gable, the father of the plaintiffs, sold a tract of land to William Bain, the defendant by articles of agreement: a part of the purchase money Was to be paid at a future day, when Gable was'to convey to Hain the land clear of incumbrances. Gable died before the deed was made, or purchase money tendered.

Writ of error to the Common Pleas of Berks county. . This was an action of debt upon an insolvent bond, brought by Samuel Heihier, for the use of Freytag and Kampman, against Jacob Bast, John Wanner, and Samuel Fegelly.

This case came up by appeal from the decree of the court of Common Pleas of Berks county, distributing the proceeds of the sale by the sheriff, of the… Held: and the same condemned. Scire facias to January term, 1829, and judgment thereon. The commissioners reported that a balance of five hundred and ninety-one dollars and eighty-five cents, which remained after the payment of prior liens, should be divided rateably between these two judgments. To which Jacob Hawk excepted.

<p>Appear by the plaintiff from the decision of Huston, 3. at a Cir«cuit court held in Lebanon county.</p> <p>Henry Herr, the defendant’s testator, had been the guardian of ■Michael Bowman., the plaintiff) and died without having settled a •guardianship-account of the estate of his ward which had come to fifis hands.</p> <p>The plaintiff Michael Bowman, after he arrived at full age, ibrought this suit against the representatives of Henry Herr, his late guardian, and claimed t-o recover upon a declaration for money had ¡and received for his use. ■</p> <p>Upon the trial of the cause, the plaintiff offered evidence of the receipt of money by the defendant’s testator, as the guardian of the plaintiff: to which the defendant objected, on the ground that the •plaintiff could not support his action, without showing that previously to the institution of it, the guardian or his representatives had settled a guardianship account in the Orphans court. This objection having been sustained by the court, the plaintifftook a nonsuit, which he afterwards moved the court to take off) and which being refused, he entered this appeal.</p> <p>In this court the cause was argued by</p>

IN ERROR. Writ of error to the District Court for the city and county of Lancaster.

<p>IN ERROR.</p> <p>Error to the District Court for the city and county of Lancaster.</p> <p>On the trial of this cause, the defendant, who is also the defendant in error, for the purpose of proving a payment of one hundred and twenty dollars to the plaintiffs, examined a witness of the name of Jeffries Marsh, who in his examination in chief, testified to the fact of the payment. For the purpose of destroying the testimony of the witness, the plaintiffs interrogated him, on his cross examination, as to a conversation which had taken place between him and a certain Wallace Boyd. The witness stated the conversation, by which it appeared, that he had not told to Boyd, in that conversation, ail that he related in court. Whereupon the plaintiff’s counsel asked him the following question : “ Why did you not tell the whole truth to Wallace Boyd 1” To which he replied as follows : “ I was not on my oath, and I was not bound to confess to Wallace Boyd. The reason I kept it back was, I was living in Wm. MKim’s house as tenant, and if I had told it, he would have thrown-me out neck and heels. If I had begun that kind of talk, he would have knocked my brains out; you would not have been troubled with judge and jury. As Soon as he did know it, he took out a landlord’s warrant.” After the defendant had gone through his testimony in chief and rested, the plaintiff called Wallace Boyd for the purpose, among other things, of contradicting the statement made by Jeffries Marsh, of the conversation which he alledged he had had with William Boyd. The defendant then offered to prove by Boyd, that MKim was a quarrelsome and dangerous man to those he had a prejudice against; to this testimony, which was received by the court, the plaintiff excepted. The plaintiff also objected to the admission of a deposition in evidence, on the ground that Joel C. Bailey, the person before whom it was taken, w>as not a justice of the peace. On the objection being made, the defendant read in evidence a commission from the Governor, bearing date the 28th March, 1821. The plaintiff then offered to prove “that since the date of the commission the said Bailey removed from the county of Chester.” (in which he had been commissioned, and where the deposition had been taken,) “ to the city of Philadelphia, that he rented' a tavern in the city, and kept a tavern there for eighteen months, and afterwards returned to reside in Chester county; that during his residence in Philadelphia, another justice was appointed in his stead, in the district where Bailey had been a justice.” The court refused to receive this testimony, and admitted the deposition, and sealed a second bill of exception. The plaintiffs, who were present when the deposition was taken, but objected to its being taken, on the ground that Bailey had no authority to take it, and took no part in taking it, objected to the admission in evidence of this question, and answer in the deposition. Question by defendant, “ did captain M‘Kim tell you that he had received one hundred dollars of me in Wilmington and Brandywine money.” Answer “yes.” The court overruled the objection and the bill thereupon sealed constituted the third bill of exceptions. The plaintiffs in error, who were also plaintiffs below, now assigned error in- each •of these bills of exception.</p> <p>The plaintiffs did not attempt to disprove the reason why the witness had not told Boyd the whole truth, the evidence given by them went to impair his testimony on other grounds. The testimony then as to the character of M‘ICim, was not in contradiction to any evidence given by the plaintiffs, but wholly irrelevant, and introduced to fortify a witness, who as to this point had not been attacked; and this too in violation of the well established rule, that the character of the party in a civil suit cannot be given in evidence. Anderson v. Long, 10 Serg. Rawle, 60. JVash v. Gilkeson, 5 Sefg. Rawle, 352.</p> <p>Second bill of exception.- The commission of a justice of the peace is vacated by his removal out of the county, (within which he is' commissioned;) animo residendi. The county bounds the jurisdiction of a justice, the district for which he is commissioned is his residence. Respublica s. M‘Clean,- 4 Yea-tes: 399.- Commonwealth v.-Sheriffof Northumberland, 4 Serg: Rawle, 275. It was proper to prove that the justice had by removal vacated his commission, and had consequently no power to administer the oath- to the witness. Qsb-urn v.- Ross, 8 Bin. 539. The deposition could only be taken by a person having- t-hat power.* Keller v. Nutz, 5 Serg. Sf Rawle, 246.</p> <p>The defendant is not helped by the* distinction between officers' defacto and dejiire. There catinotbea justice of the peace de facto,he exists dejure, or not at all. An officer de facto comes in by colour of right, in which Cáse' his office' is vacated on a quo warranto: A bare swearing in and acting does not make a man an officer defacto,-■ and unless there is some form of election, he is a mere usurper. Rex v. Lisle, 2 Strange, 1090. Andrews, 16-3.* Baird v. Bank of Washington, 11 Serg. Sf'Rawle, 411. If a justice resigns he ceases' to be a justice, and any act done by him after such resignation,would be the act of a mere usurper! His removal from his proper' county has the same effect, it vacátés his office defacto and de jure;' after this he could not be sued for any act done as an officer, for which otherwise he would have been officially responsible; nob would the individual who made a deposition beforé him, be indictable for perjury in case the deposition was false.- Public policy too,requires, that in this'country, where officers are continually changing by election ob appointment, that théir power should cease as to all the World, when they go out of office.</p> <p>As to the third bill of exception, he contended that where the party refuses' to take any part in taking a deposition, he must be: considered as absent, an'd in that case, if a leading question be put and answered, and received in evidence it would be error.</p> <p>were desired by the court to confine their argument to the 2nd bill of exceptions. Whether the justice of the peace, before whom the deposition was taken had de jure a right to exercise the powers of that office, was not open for enquiry in a collateral proceeding.-■ It was- enough to show, as was done by producing his commission, that he acted by colour of office, in the district for which he had been appointed. Indeed as to third persons; it is enough to proye that he acted as a public officer, without producing his appointment. Porters. Luther, 3 Johns. R. 431. He is an officer defacto, and that is all we were required to show, and where such officer claims to exercise his office, his right cannot be brought into question in a proceeding to which he is not a party. Commonwealths. Fowler, 10 Mass. R. 290. In all collateral controversies, in which the officer de facto js not a party, his acts are conclusive as to his authority. Parker V. Luff-borough, 10 Serg. Sf Ramie, 249. Baird v. Bank of Washington, 11 Serg. Sf Ramie, 411. Riddle v. County of Bedford,! Serg.Sf Ramie, 386. The attempt in a collateral way to enquire on the part of third persons into the complicated question, as to the right particularly of a judicial officer to exercise his office, must be always abortive as it respects the officer, who would not be bound by a proceeding in which he is no party, and productive of an obstruction of justice, as it regards others, who are usually ignorant of the precise circumstances in regard to the authority claimed and exercised. The cases relied on by the plaintiffs in error, are cases in which the officer was himself a party, instituted for the very purpose of enquiring into the authority by which he claimed the office, and in some of these cases the distinction is taken between such direct enquiry, and where it is made in a collateral proceeding. In the former the right may be enquired into, in the latter it cannot.</p> <p>The question put to the witness as to the reason why he had withheld the whole truth from Boyd, was a pertinent question, and the answer of the witness was uncontradicted, and should never have been permitted to be made the ground of an attack upon the plaintiff, calculated to have an influence upon the jury, wholly distinct from the object professed. Starkie Ev„ 4 pt. 366. Neither- reputation of character nor facts establishing character are proper for enquiry, even although the character of the party is incidentally in issue, by charging a fraud upon him. Phil. Ev. 139. Were it otherwise, an endless enquiry would be opened. If the party could get a witness to say his adversary was a quarrelsome man, he may, to corroborate his witness, according to the doctrine established by the court below, go into proof that he is quarrelsome, and then an interminable investigation is open as to circumstances of provocation, the measure of revenge, or the nature of transactions involving the acts ofhis whole life, and leading off from the issue between the parties.</p> <p>Second bill of exception. There was no attempt on the part of the defendants to prove that the justice was an acting justice of the peace, but he relied on his commission to establish, that de jure he was such justice.- If it had been proved that he acted as a justice, the case might fall within the principle of some of the cases cited, giving to his acts the character of those of an officer de fado.' But that point is not presented, but the enquiry is, whether an individual, who does a' single act as a judicial officer, shall be considered as having full power to do that act, without any right on the part of those who are effected by it, to enquire into his authority. It is an important right to have witnesses examined in open court, in the presence of the court and jury; but to permit a deposition to be taken by a person who is without power to administer an oath, and as a consequence, that the witness shall not-be responsible for false swearing in faking that oath, is a monstrous .violation of the wholesome principles of the common law.</p> <p>The cases relied on by the defendants in error, are cases of ministerial officers, whose authority had been conferred, but some requisites omitted: as to third persons, their acts are not open to enquiry. But in no case has it been held, that it may not be shown that a person claiming to exercise a judicial office has no authority to do so; and that the fact of his acting, is conclusive upon third persons as to Ins right to act. 4 Starkie Ev. 4 pt. 1135.</p> <p>On the third bill of exceptions, he referred to Withers v. Gillespy, 7 Serg. Razóle, 10. Sheeler v. Speer, 3 Bin. 132. Strickler v. Tod, 10 Serg. ¿f Razóle, 63.</p>

<p>A deposition taken in the Register’s Court, upon hearing of any cause litigated in that court, but not decided, is not evidence upon the trial of an issue between the same parties, directed by that court, without proof that the deponent is dead, out of the jurisdiction of the Court, or unable to attend:</p> <p>Query. Whether the decision of the trying court upon the preliminary proof of the inability of the witness to attend is the subject of error?</p> <p>Query. Upon an issue druisavit vel non, are the declarations of a devisee, who is a party to the issue, evidence, where there are other ■devisees or legatees not parties?</p>

<p>A motion was made by Hopkins, to quash this appeal, on the ground that the cause was not in the' Circuit Court when the decree of that court was’made. Oh the 19th April, 1830', the’ Orphans’ Court made their decree in the case from which this appeal was’ taken, and a certiorari issued, tested the 15th day of March, 1830, and returnable the first Monday of September'then next;-and on the 3d of May,- 1830, the Circuit Court, upon argu* ment-, affirmed the decree of the Orphans’ Court, from which this appeal was’taken.</p> <p>He’ contended that the cause was not' in the Circuit Court béfore the return day of the- certiorari, and the decree- of that- court * was therefore without jurisdiction/ ■</p> <p>argued that the writ of cériior'afí was unnecessary: by the appeal the record was removed without it; but as the party had- voluntarily appeared before the return day of the writ', and the cause was then heard,’he could not now allege want of jurisdiction in the court.</p> <p>The court overruled the motion to quash,-for reasons' assignedjri the opinion of the court, and ordered the' appeal to be ar’gued. "</p> <p>The case was this: Christian Obliúger, seized of a large estate, made a- will, dated the 8tli of December, 1798, by which, after pro* viding that his burial charges and debts should be paid, he directed that his wife should keep in her possession his other estate for her subsistence and use, as she shall find it necessary’. That his son, John Obling&r, shoiild live i’n the large house, with his mother,- and work the plantation-for her. Of what he soived’and gathered in, two-thirds were to be his, and one-third part his mother’s: Then, after directing as to cider, fruit, flax, firewood, &c. to be furnished her, he says, such fee or rent shall continue three years; after that, the’ plantation was to be valued by a jury of twelve men. His son John was to have a right to take if according to the valuation: if he’ did not, another of his heirs was to have that pri* vilege. Three months after the’ valuation the money was to be paid to his executors, who were to give a de'ed’ to’ the purchaser.If none of the heirs took it, it was to be sold and the money thence arising to be divided among his heirs. But the sum of four hundred pounds, was to be charged on the said estate, and remain in the hands of the purchaser; the interest of which he gave to hiS wife, “ along with the lesser house for her to dwell in, as lóng ás ■ she lived, and all the household and kitchen furniture, to be used at her pleasure.” After her death, the four hundred pounds, and what was left of the household and kitchen furniture, were to be divided among his three eldest children or their heirs. He then proceeds: “and further touching th'e money arising out of my land and estate, I give and bequeath to my son, John Oblinger .first-and foremost, one’ thousand pounds, because he, is my only son, along with his share, which he shall have with my other children.” After giving to his son-in-law, Nicholas Ziller, one shilling, and to his sons-in-law George Feather and Peter Feather, and the son of Peter Feather, the sums received of him, he directs that Peter Feather's son, born of his daughter Mary, shall have, if he arrived “ at the age of twenty-one years, one hundred and fifty pounds, which his executors should retain in the sum of his plantation till he becomes of age.” But if he died before the age of twenty-one years, the money should be given to his other three children as a legacy, by his executors, to each fifty pounds. Further, he willed that his eldest daughter, after she had received her share for her and her heirs of his executors, might choose and appoint guardians for her and her heirs; and she should have a right to make use of said sums as need and her circumstances required, and demand it of her guardian. If his wife died before the expiration of the three years mentioned, his executors were to have what there was of the personal property appraised, and do as above mentioned with his plantation: “ but always that my son John Oblinger may keep my plantation at the appraisement, if he fulfils the said articles and payment.” After naming his executors, and revoking and annulling other wills, and dating the will, he added two other items, by which he bequeathed to his grandchild, Elizabeth Feather, one complete bed and bedstead, and directed, that after the decease of his wife, she should have the sum of fifty pounds, out of his estate; and then willed and ordered that his daughter Barbara should have the sum of fifty, pounds, after the decease of his wife; and declared it to he his full meaning and will that she should he considered, and be an heir as one of his four childen; hut to Nicholas Ziller he only bequeathed as above.</p> <p>After the death of testator, which happened before the 27th December, .1798, his personal estate was exhausted, and his real estate in two years after his death, was sold on executions, and the sum of seven hundred and fifty pounds only remained after the payment of his debts. This being brought into the Orphans’ Court, that Court on the 29th September, 1801, decreed the sum of four hundred pounds, bequeathed by the testators will to his widow, to be put out on real security, and the interest thereof to be paid to her during her life, and after her death, that the principal he paid, and distributed to and among the legal representatives of the testator, according to law, and the order of the court.</p> <p>This sum was loaned to John Bitzer, who gave his judgment bond for it: upon which judgment was entered to November term, 1801. On this judgment a scire facias issued in 1814, which was transferred from the Common Pleas to the District Court, to June term, 1820, and tried on the 9th September, 1824; and the money now in court was made on that judgment.</p> <p>The remaining sum of three hundred and fifty pounds was divided equally among the children, without regard to the legacy of one thousand pounds to John.</p> <p>The widow died in 1803. John Oblinger, Susanna intermarried with George Feather, and Barbara intermarried with Nicholas Ziller, were the “ three eldest children” of the testator, between whom be directed the four hundred pounds, after the death of his •wife, to be divided.</p> <p>Upon the trial of the scire facias, the defendants established the payment of one third of the four hundred pounds, her share, to Barbara Ziller, also of fifty pounds to John Oblinger, and sixty pounds to Susanna Feather, and the verdict was rendered for the balance of two shares. The defendants claimed a credit of fifty-.six pounds five shillings, paid on the 1st of June, 1806, to John Sheaffer, intermarried with Elizabeth Feather, on account of the legacy of fifty pounds bequeathed to her, but the receipt for this payment was overruled, and as to that sum, it was agreed by the counsel of the parties, to leave the question “ open for consideration on the final settlement of Christian Oblinger’s estate.”</p> <p>Susanna’s share, amounting to the sum of two hundred and eiglity-six dollars and fifty-six cents, was paid over to her by Mr. Buchanan, the counsel of the plaintiff in the scire facias. And the amount paid into the Orphans’ Court was the sum of two hundred and ninety-six dollars and seventy-five cents, the payment to Sheaf-fer, with its interest, and the amount of John’s share being three hundred and forty-five dollars and seventy-six and a half cents, supposing the fifty-six pounds five shillings to have been rightly paid.</p> <p>The executors of John Bitzer claimed to be paid the said sum of .two hundred and ninety-six dollars and seventy-five cents, on account of the payment to Sheaffer.</p> <p>John Oblinger, by his attorney John Feather, claimed to be paid •his share, three hundred and forty-five dollars and seventy-six and an half cents; also, the one half of the said sum of two hundred and ninety-six dollars, and seventy-five cents, and George Feather, in right of his wife, claimed the other half of that sum.</p> <p>David Rinehart claimed as a judgment and bond creditor, of John Oblinger, “who took the benefit of the'insolvent laws in the court •.of Common Pleas of Lancaster county, at August term, 1801,” to be paid the whole fund in court.</p> <p>David Rinehart’s judgment against John Oblinger, was entered on the 20th January, 1800, to November term, 1799. On the 24th September, 1800, on affidavit of the defendant, a rule to show cause why this judgment should not be opened, was taken, and on the 13th February, 1801, a rule to take depositions entered. This proceeding there rested, nothing further having been done upon the rule.</p> <p>Rinehart, also showed a bond given by John Oblinger to Charles Rinehart, on the 6.th June, 1798, for fifty pounds, assigned oh the 2d August, 1800, to him. Also, a judgment in favour of Mir chael Berndhe{sly against John Oblinger and David Rinehart, to May term, 1799, on a bond, dated 9th March, 1798, which was paid by the said Dftvid Rinehart.</p> <p>John Oblinger took the benefit of the insolvent laws, to August term, 1800, in the court of Common Pleas, and executed an assignment in trust for his creditors; the assignees never gave bond, and were dead at the time the decree of the Orphans’ Court was enter? ed in this case. Oblinger, after taking the benefit of the insolvent laws, removed to the state of Ohio.</p> <p>Motions, corresponding with these several claims, were entered in the Orphans’ Court.</p> <p>That court denied the motion made on behalf of Bitzer’s executors, (the payment to John Sheaffer being a mispayment,) and the motion in fa'vour of David Rinehart, and decreed that the share of John Oblinger should be paid to his assignees legally qualified to receive it, and that the. fund should be detained until the court of Common Pleas should make an appointment of assignees, and that the one half of the sum of two hundred and ninety-six dollars, and seventy-five pents, the sum reserved to await the question as to the payment to Sheaffer by Bitzer, should be paid to George Feather, in right of hi? wife, the assignees of John Oblinger Being entitled to the other half.</p> <p>From these decrees of the Orphans’ Court each party appealed to the Circuit Court, who on the 3d of May, 1830, affirmed the decrees of the Orphans’ Court; and from this decree of-the Circuit Court, John Feather, attorney in fact of John Oblinger, and George Feather, and Susanna his wife, appealed on 7lh May, 1830, to the Supreme.Court, for the following reasons, viz:</p> <p>1. Because the court refused to order to he paid out of court to John Feather, attorney in fact of John Oblinger, the sum of three hundred and forty-five dollars and seventy-six and an half cents; and also the sum of one hundred and forty-eight dollars and thirty-: seven and an half cents; and also because the court refused permission to the said John Feather, attorney in fact of George Feather and Susanna his wife, to take out of court the sum of one hundred and forty-eight dollars and thirty-seven and an half cents.</p> <p>2. Because the court decreed that the sum of three hundred and forty-five dollars and seventy-six and an half cents-should be paid out of court to the assignees of John Oblinger, if such assignees existed, and if such assignees did not exist, then to he paid out to such assignees as. the court of Common Pleas should or might appoint.</p> <p>3. Because John Feather, attorney in fact of John Oblinger, and of George Feather and wife, has in law and equity and justice, a right to take out of court the said sum of six hundred and forty-five dollars and fifty-one and an half cents, in favor .of his constituents, the said John Oblinger, and George Feather and wife, the legatees of Christian Oblinger, deceased.</p> <p>The whole fund in court was claimed as belonging to John under the bequest to him of one thousand pounds, by David Rinehart, on his judgment.</p> <p>He contended, that by a fair construction of the will, John was only entitled to one-third of the four hundred pounds, after the death of the widow, but that the decree of the Orphans’ Court of 1801, fixed the persons among whom the money was ultimately to be divided, and recognized the right of the three eldest children; and that this decree would, if any difficulty existed in the question, control the present distribution of the fund in court, as to this point.</p> <p>He took' two grounds in opposition to the claim of Rinehart, on his judgment.</p> <p>1st. That the interest of John Oblinger, under the will of his father, was an interest in a legacy only, upon which a judgment against him was no lien.</p> <p>2d. That the judgment of Rinehart was satisfied, in presumption of law, by lapse of time.</p> <p>1st. By the will the testator directed that his land should be sold or that John should be permitted to take it at an appraisment, but that his executors should execute a deed; ..and John was only to have a share of the value or price. This although a charge upon the land, was no interest in it, which could be'subjected to the lien of a judgment.</p> <p>2d. It was true that John Oblinger had taken the benefit of the insolvent laws, but this neither arrested the operation of the statute of limitations, nor prevented the effect of lapse of time. The operation of the statute of limitations was not suspended while the act of 13th'March, 1812, “for the relief of insolvent debtors residing in the city and county of Philadelphia, and their creditors,” was held by the courts of this State to be constitutional and valid, Hudson v. Carey, 11 Serg. &f Rawle, 10. Ingraham ón In, 214 — 215, a lapse of twenty years satisfies a judgment, and here more than twenty years elapsed from the death of the widow,.to the time when the claim was made on behalf of this judgment. The presumption too was fortified by the rule taken to show cause why the judgment should not be opened.</p> <p>The controversy was between John Oblinger and David Rinehart, and the Orphans’ Court hád no right to interpose the assignees of Oblinger, who had never qualified, who did not claim, and who in fact were dead, to arrest the fund from Oblinger.</p> <p>The benefit of the insolvent laws was taken by him in 1801, the assignees never qualified, and in law the debts then due were presumed to be satisfied, and this proceeding abandoned.</p> <p>Again, the Orphans’ Court has no jurisdiction but in cases of trust under the act of 1713, and cannot decree money to a stranger to that trust, and therefore cannot order the money of the heir to his creditor, either with or without an application. The remedy of Rinehart, if his judgment were not satisfied, was by foreign at- ■ tachment. He also referred to Read’s Dig. 177. Toller' on Ex. 235. Ross v. M‘Junlcin, 14 Serg. ¿p Ramie, 364. Kane v. Bloodgood, 7 Johns. Eh. Rep. 90-113.</p> <p>If under the.will John Oblinger was not entitled to the whole fund, then an average should take place among the legatees; and in that event Bitzer’s executors should be allowed to come in on account of the money paid to Sheaffer in right of his wife Elizabeth.</p> <p>But he contended that the legacy of one thousand pounds to John, was entitled to a preference. The testator had thought that he was wealthy, and his will was made under this impression; but it turned out that his estate was nearly insolvent, and the will can only be carried into effect ci pi-es, as near the intention of the testator as this change of circumstances will admit. It was not the intention of the testator to give his whole estate to his wife ; as there was not enough to pay all, her legacy should abate in proportion: nor will any fair construction of the will authorise the distribution ■ofthe fund to the three eldest children, to the exclusion of the other legatees. Under the circumstances of the fund, the true construction of the will would be to distribute the fund to the legatees pro rata. He contended that as it appeared by the will that the legatees, except John and Elizabeth, had been advanced in the life time of the testator : that as there was a deficiency of assets, these advancements should be taken into view, in regulating the proportions which each should receive out of the fund. .</p> <p>But the legacy to John was entitled to be preferred. The will ■is that the oldest son shall first réceive one thousand pounds; and the testator assigns the reason for this preference, “ because he is my only son.” Every expression in a will must, if possible, have effect given to it, and the only meaning of the words “ first and foremost,’” in the will is that John’s legacy is to be preferred.</p> <p>He contended that the interest which John took under the will was an interest in the realty, and subject to the lien of judgments against him. If John had taken the real estate at the appraisement under the will, he certainly would have taken it as land. The fund in court must be considered as if the intention of the testator had been carried into full effect. The sale by the sheriff prevented this being done literally, but where the act of the law ■encroaches upon the intention of the testator, the encroachment never goes beyond the necessity of the case. The four hundred pounds is expressly charged upon the land, and as it respects John’s interest, who was to have taken the land at the appraisement, it is land. That interest has been converted into money, but the nature of the fund remains unchanged. Diermond v. Robinson, 2 Yeates, 324.</p> <p>The judgment of Rinehart was entered before the sale by the sheriff; it was then a lien, and this sale has no other effect than to bring home the fund for distribution. Nichols v. Postlethwaite, 2 Dali. 131. Gausev. Wiley, 4 Serg. ¿f Razóle, 509. Reese v. Adams, 16 Serg. Sf Razóle, 40. Barnet v. Washabaugh, 16 Serg. Sy Razóle, 410.,_ Oity v.Shuey’s Ex’rs, 1 Razóle, 294.</p> <p>The circumstances of the case avoid the lapse of time, which is , insisted on as evidence of the satisfaction of the judgment. The rule taken by the defendant to show cause why the judgment shouid'not be opened is one circumstance, and his insolvency and removal from the State, another circumstance. And besides this the property in question was in action, and its reduction into possession depended upon a future contingency. - But by 'the act of assembly of 1729-30, Read’s Digest, 180, in case of insolvency debts are protected from the lapse of time. The right to the fund depended on the death of the widow, and the fund itself was not recovered until 1824, and was not brought into court for distribution until 1828. The suit for the recovery of the money, (the scire facias,) was prosecuted for the interest of all concerned. That was issued in 1814; from the death of the widow in 1803, until this time, the only delay occurred, and that is insufficient to warrant any presumption of payment. From that time the rights of all were actively pursued. Cope v. Humphreys, 14 Serg. Sf Razóle, 15.</p> <p>The court wore right in arresting the fund until trustees were appointed under the application and discharge of Oblinger. A. change of trustees of an insolvent has been allowed after the lapse of sixteen years, where the first trustees had never qualified. Gray v. Hill, 10 Serg. £$■ Razóle, 436. Until the trustees do qualify, the estate of the insolvent is in gramio legis.</p> <p>The decree of 1801, in no way concludes the inquiry now beforg the court, as by the terms of that decree the fund was to be brought into court for future distribution.</p> <p>The Orphans’ Court have no jurisdiction as to the judgment creditors of legatees, when the fund on which the legacies are a charge is brought into court for distribution. The Orphans’ Court, although it is a court of chancery, has its power limited by statutory provision, and cannot go beyond the statute.</p> <p>By the statutes its jurisdiction is confined to the estates of ■ dead men, and it can make no decree in favour of a creditor of a cestui que trust, who has a fund within its jurisdiction. It has the incidental power of appropriating money to liens on real estate of record, but it cannot go' further.- .Where the debtor denies the debt, it has no power by an adversary suit, to determine the question. It has no power to direct an issue, but in a question incidental to the estate of a decedent. ’ To suffer this court to direct issues in any other controversy would be to make it a court of chancery with general jurisdiction.</p> <p>The judge of the Orphans’ Court had no right to go out- of his proper forum to award the funds to assignees who had no existence, and to decide that the Common Pleas would create them. The creditors of Oblinger, whom the court undertook thus to protect, had no subsisting' claim. Direct - trusts, created by deed or will, as between cestui que trust and trustee, subsist unaffected by lapse of time. They are created by contract, and not by operation of law. All other trusts are affected by the statute of limitations, and lapse of time. And a stranger to the trust, who acquires an incidental right, as against the cestui que trust,- will be barred by the statute,-and his right effaced by time. Where the assignee does not act for a long time, the assignment is presumed to have been abandoned. Adlum v. Yard, 1 Rwwle, 163.</p> <p>The interest of Oblinger under the will, is an interest in personalty and not in the land. If he had taken it at the appraisement, he would have acquired an interest in the real estate; but until he did this, his only right was to a share of the proceeds of the sale of the land, which was never yet adjudged to be real.estate.</p> <p>The legacy to the wife of the testator was specific, and for that reason is not to abate- She was the chief object of the testator’s bounty, and her legacy was to be first invested. And by the plain terms of the will,- upon her death, the legacy thus invested was to be divided among the three oldest children of the testator. The construction of the will is derived from itself, and cannot be made to vary by circumstances occurring after the death of the testator, and which could not have been contemplated by him when he made the will.</p>

The suit was instituted by the following agreement. Simon Gratz, Joseph Gratz, and1 Jacob Gratz, Administrators of Michael Gratz, deceased, v. Levi Philips, Leah Philips and Beliah Cohen. j Amicable action in the ComHnon Pleas of Lancaster county, of January term, 1822. Case.

IN ERROR. Upon a writ of error to the Common Pleas of Lancaster county, the case was thus: Henry Brackbill, to April term, 1817, issued a scire facias to revive a judgment which he had obtained against Richard Johnston, the plaintiff in error, to January term, 1812.

<p>IK ERROR.'</p> <p>This was an ejectment brought in the District Court of York county, by the defendant in error, to recover from James Johnson, one hundred and ninety-six acres of land. The facts were as fob lows: James Sinclair, the father of Mary Matson,, died in 1807, seized in fee of two tracts ofland, one of one hundred and ninety-three acres; the other the land in dispute. He left seven children, (of whom the plaintiff is one,) and the children of a deceased child.In 1811, application was made to the Orphans’ Court to divide these two tracts, amongst the children of Sinclair, agreeably to the intestate laws, and in pursuance thereof the tract of one hundred and ninety-three acres, was valued at three thousand two hundred dollars, and was decreed by the said court to the eldest son; who gave security to the other heirs for their distributive shares. The tract of one hundred and ninety-six acres, the land in .dispute, was valued at one thousand one hundred and twenty-seven dollars, and was decreed to Adley Matson, who had intermarried with the plaintiff, he entering into a recognizance to secure to each heir one hundredandfortv dollars and fifty cents, the sum they were severally entitled to. In 1813, Shenherger obtained judgment against Adley Matson, on which the land decreed to him was sold by the sheriff to the defendant Johnson, for four hundred and fifty dollars, and a deed acknowledged January, 1816. At the time of the sale Johnson, the purchaser, held three judgments against Matson, amounting to six hundred and fifty dollars. Matson died in December, 1826. The court charged that the plaintiff was entitled to recover the -whole, tract and recommended a verdict accordingly.</p> <p>Verdict and judgment for the plaintiff'</p> <p>The Orphans’ Court had no power to concentrate the interest of the wife, but that interest remained in the land unaffected by the decree of the Orphans’ Court vesting the estate, of her father in her husband under the intestate law. The estate in one tract was decreed to him by the court, and it is only as to one-eighth part, (her proportion,) they take by descent, but of the other seven-eighths the husband was the purchaser when he entered into a recognizance to secure the shares of the other children. As to her interest in the other tract, that by the decree of the Orphans’ Court was converted into personalty. All these facts being set forth in the records of the court, through which the title to the land sold was made, the plaintiff in error who was the purchaser, was necessarily cognizant of them. The court below gave judgment against the defendant for the whole of the land purchased, which was more than the wife would be entitled to, out of all the real estate of her father, the larger portion of which had been converted into personalty, and the right thereto clearly vested in the husband. Kean v. Ridgeway, 16 Serg. Sf Rawle, 60. Sloolfoos v. Jenkins, 8 Serg. Sf Rawle, 175. Smith v. Scudder, 11 Serg. Sf Rawle, 325.</p> <p>Mary Matson, the plaintiff, claimed the whole tract, on the ground that her husband took in her right. The paying or securing to be paid, the shares of the other children, could not entitle him to the fee simple of the estate, fie was a trustee for the wife in whom the fee simple vested, and his interest was but a life estate. If then he be received as .a trustee to take the estate in trust for his wife, he would be a trustee to bind the same in fee simple by a recognizance in favour of the other heirs. That in this case Adley Matson took in right of his wife, and as it appeared of record, Johnson the purchaser at sheriff’s sale had notice of it. Blocker v. Carmonyf 1 Serg. Sf Rawle, 460. Foglesonger v. Somerville, 6 Serg. Sf Rawle, 167. Stoolfoos v. Jenkins, 8 Serg. Sf Rawle, 175.</p>

<p>IN ERROR,</p> <p>This case came before the court on a writ of error to. the District court of York county, where judgment had been rendered for the defendant in error, on the following facts:</p> <p>The father of the plaintiff by his will, proved in 1787, bequeathed to her certain sums of money, which he left as a charge on his real estate, (part whereof now belongs to the defendant,) and which were made payable to her at successive intervals of seven years, the last of which became due on the 7th March, 1827. In June, 1790, she married John Richwine, who afterwards in 179G, took the benefit of the insolvent laws, and assigned all his estate, real and personal, to trustees for the benefit of his creditors. The assignment embraced not only what was set out in the schedule annexed to his petition, but also all other estate that he was possessed of or entitled to, in right of his wife or otherwise. Tn 1822, Richwine died, at which time his trustees had received all the instalments due on the land, but that of March, 1827, to recover, which when it fell due suit was brought by his wife.</p> <p>The husband of the plaintiff having assigned under the insolvent laws, we contend that the legácy to the wife not reduced into possession surviyed to her. Hammond’s Eq. Dig- 203, §11. 2 Madox’s Chancery, 16. 'Hartman v. Doudel, 1 Ramie, 279. The assignment of an insolvent reserves a reversionary interest, and is not absolute but in the nature of a security. Choses in action of the wife not being reduced into possession in the life of the husband survive to her; and the assignment of them 'merely vests in the assignee, the same right the husband had and subject to the like contingency of surviving to the wife. Wé do not claim for the payments made before the husbands death.</p> <p>The''plaintiff below claimed thé payments made in the lifetime of the husband. ' The cases referred to in England are under the statute of bankruptcy, in a system sui generis. In the earlier cases they held, there, that bankruptcy took away survivorship, but this yvas afterwards doubted. There too the principle prevaifs, when chancery has possession of a fund, for that court to require a provision for the wife, when application is made for that fund. Here no such jurisdiction exists. But this assignment is under an act of assembly, which requires every possible interest to be assigned. The husband may assign a possibility for a valuable consideration and this excludes the right of survivorship. In the case of Hartman v. Doudel, the assignment was as a collateral security. That case decides that the husband may assign the choses in action of his wife for a valuable consideration and bar her right of survivor-ship, but that a voluntary assignment would not have that effect. Here, however, the assignment was absolute, and for the payment of debts, which is a valuable consideration, and not as a collateral security.</p> <p>The words of the assignment in this case, if they go beyond the law are inoperative. The act of assembly requires that he should assign his estate. What is his estate? His interest in this chose in action was a particular interest subject to the right of survivorship, and so it must be assigned An assignment is a strict legal right, and derives no aid in England from any principle in equity. The case comes precisely within the principle in Hartman v. Doudel. The assignment was collateral to the debt which remáinéd, and the creditors were not even parties to it. The right to imprison i* collateral to the debt. And where an assignment is collateral to the debt, the wife’s right of survivorship is not defeated. Hartman v. Doudel, 1 Raide, 279.</p>

<p>A. 8c Co. and B. & Co. contracted jointly to purchase from G. a quantity of wheat, for which they were to give the notes of certain banks, which were specified. A part oftlje wheat was delivered to A. &Co. and a part to B. & Co. without the knowledge of C., for which their respective receipts were taken. Afterwards A. & Co. gave drafts on E. at forty-five days, for the grain received by them; which the receipt stated would be considered as so much money, when paid. B & Co. also gave their draft at forty-five days onF. for the wheat they had received, in the acknowledgment of which it was set out, “ that when paid it would be in full.” On receiving these drafts, C. gave up the receipts which A. & Co. and B. & Co. had given for the grain.</p> <p>Held: That by the acceptance of these bills, the joint contract of the partner firms, was not merged in their separate responsibility.</p> <p>Each partner is separately the agent of the rest, with authority to pay the • whole or any part of the debts, and payment by him is essentially payment on joint account.</p>

<p>An agreement to forbear to sue for a reasonable time, is a consideration certain enough, upon which to sustain an action</p> <p>A judge cannot be required to give a legal construction to the words of a witness, and say whether in point of law they sust.ain the allegation in point of fact. The construction of written evidence is.for the court, and of parol evidence for the jury; and an admixture of parol with written evidence, draws the whole to the jury.</p> <p>■Whether a particular cause of action be proper for a statement, or whether the statement contains any cause of action; or whether a valid consideration be laid, are points that might be mooted on a motion in arrest of judgment: but they are matters with which the jury have nothing to do.</p> <p>A plaintiff who states his case more particularly than is necessary, is not bound to the strict proof of circumstances, merely because they have been unnecessarily set out.</p> <p>Municipal law is a matter of compact, and as such the construction of foreign statutes, as in the case of any other written compact, belongs to the court; and there is no distinction in this re.spect, between the written and unwritten law.</p>

<p>A- parol gift of a lot of ground by a father to his married daughter, accompanied by possession and valuable improvements made by the husband at his own expense, vests in him no estate in addition to the freehold which the law allows him in right of his wife.'</p> <p>It is competent to give evidence of what was said previously to the execution of a deed, in order to establish the feet that the grantee received the deed i:i trust for another.</p> <p>A certified copy of the docket entry of a suit cannot be received to establish the existence of a former suit pending for the same cause; and if received, the error will not be cured by the instruction of the court in their charge to the jury, to disregard it;</p>

<p>A judgment was obtained against a principal wlio gave absólütp bail to obtain1 a stay of execution; after which the absolute bail were sued and judgment obtained'against them'. Held: That one of two sureties in the original obligation who paid one half the debt, is entitled to an assignment of the judgments against the principal and the absolute bail,- to enable him to' indemnify himself for the amount thus -paid. _ _ _</p> <p>_ _ _ The order of-the court- of Common Pleas making such assignment,-is the' subject of a writ of error.-</p>

<p>The Court of Common Pleas may grant a new trial upon the terms, that the defendant shall pay all the costs which have accrued up to the time of trial; and may enforce that rule, by entering judgment upon the verdict against the party refusing to comply with it.</p> <p>But if the plaintiff acquiesces in the non-payment of the costs, by proceeding to take testimony on a commission to another State, or proceeds to enforce the payment of them by citation and attachment, he cannot afterwards have judgment by default of the payment of such costs.</p>

<p>An administration account stated and filed in tlie Register’s office, is not a compliance with a recognizance, conditioned for the settlement of an account; and upon a suit brought upon that recognizance, by one of the heirs of the estate, which the administrator represented, he is entitled to recover nominal damages, although the jury may believe that his interest in the estate had been paid to him:</p> <p>It is error to submit a motion of law to the jury.</p>

Writ of error to the court of Common Pleas of Centre county. This was an action of ejectment brought by Josiah M. Benner, against John Hall, Jr. to recover three lots of ground, a house, Black smith shop* tilt-hammer and water-right in the borough of Bellefonte. The defendants took defence for the black smith shop, tilt-hammer and water-right.

Writ of error to the Special Court of Mifflin county, {Reed, president.) This was an action of debt upon a bond brought by John Norton, who survived George Hanawalt against Charles Cox. The plaintiff Norton and Hanawalt were the administrators of Philip Powell, deceased, and as such, by an order of the Orphans’ Court, sold the real estate of the deceased to Charles Cox, the defendant below, and took his bonds for the purchase money, upon one of which this suit was' brought.

Writ of error to Mifflin county. This was an action of debt brought by Stephen Doughman against Patrick MKennan and James Henderson on two bonds, one conditioned for the payment of fifty pounds on the 1st April, 1822, the other for the payment of sixty-two pounds ten shillings, on the 1st April, 1823. These bonds having been read to the jury the plain-tin rested.

Writ of error to the Common Pleas of Mifflin county. This suit was brought on the administration bond of the defen-' dant, Christian Sechrist, one of the administrators of Christian' Sechrist, Sr.- deceased, by Peter Sechrist, one of the heirs. \ The plaintiff gave in evidence the bond dated 10th May, 1797; the inventory amounting to seven hundred and forty-five pounds sixteen shillings and two pence, filed 15th August, 1797; an administration account of the defendant and…

This was a writ of error to the Common Pleas of Mifflin county. moved to quash, because the affidavit to ground the writ of error was made by the attorney, and not by the party, as required by the act of assembly; insisted that a majority of the precedents are in favour of the practice pursued in this particular instance.

This was an issue directed by the court, in pursuance of the act ,of assembly, to try the right to money in the hands of George M‘Culloch, Esquire, sheriff, which was made out of tbe sale of the real estate of Francis Sample, deceased.

<p>A creditor who has obtained judgment against the principal,, against the indorsers, and against the absolute bail of the principal, and has issued execution and levied upon the land of the principal or of the absolute bail, may, nevertheless have execution of the chattels of the endorsers. Nothing but actual satisfaction can prevent him.</p> <p>The bare seizing of land in execution to the value of the debt, is not a satisfaction.</p>

<p>Satisfactory proof of the loss of a written advertisement must be given, to lay a ground’ for the admission of the advertisement copied into the newspaper,</p> <p>A charter of incorporation cannot be declared void in a - collateral- suit, it can only be vacated by a scire facias to repeal it; or on a writ of quo' nvarranto,- at the suit of the commonwealth.</p> <p>An agreement between commissioners authorised to take subscriptions of stock, that a certain number of shares of fictitious stock shall be subscribed, iu order to enable them to obtain a charter,- is a fraud upon the bona fde subscribers, which will relieve them from any obligation to pay.</p> <p>A declaration made by a third person, in the presence of the commissioner, to one about to subscribe for stock, that he can pay his subscription in work, and this not objected to at the time by the commissioners, must be taken as his declaration; and there is no distinction between the commissioner and the corporation, in regard to this promise. :</p>

Writ of error to the special Court of Common Pleas of Hunting* don county. The only question of law which was argued in this court, grew out of the following facts. Alexander Dean was the surviving assignee of Benjamin Davidsmi, •an insolvent debtor, and as such, in his own name, issqed a scire facias on a mortgage, given by James Clark to the said Benjamin Davidson, obtained a judgment thereupon, and issued a Lev.

•Writ of error to the Common Pleas of Clearfield county. This was an action of ejectment brought by Robert Carson, the plaintiff in error, and plaintiff below, against Robert Dixon, Benja'min Carson and James Carson, ' The.case was.this: Robert Maxwell was,the agent of John Mitchellf with authority -to sell certain lands in Clearfield county, and being indebted to Robert Smiley, the plaintiff, he agreed to sell to him one hundred acres of the land, in consideration of the…

Writ of error to the Common Pleas of Centre county.- . This was an action of assumpsit brought by John JVelson, the defendant in error, against George B. Engle.

<p>A power of attorney, executed by an administrator, who does not therein style himself as such, by virtue of which a dispute is' settled between his intestate and a third person, by the attorney-in-fact, is competent evidence to go to the jury, with the* settlement and reléase, particularly if it did not appear that the administrator had any account in his own right to settle.</p> <p>An attorney-in-fact is a- competent witness to prove, that a settlement made with him for his principal, upon which he executed'a release to the partybwas obtained by a misrepresentation of the'trutli.</p>

<p>This was an appeal' fiy John Adams from the decree of the Court of Common Pleas of Huntingdon county, distributiiig the proceeds of the sale, by the sheriff, of the real estate of James Adams, deceased.</p> <p>James Adams, in his life time, being the owner of a tract of land, executed a mortgage upon it to John Adams, to secure the payment of a certain debt: he also became indebted to several other persons by specialties, and died. After his death the mortgage was put upon record, sued and judgment obtained thereon. The same land was then sold on an execution by the sheriff, and the money brought into court for appropriation: and the question presented to the court was, whether the unrecorded mortgage was entitled to a preference over the other debts of James Adams, deceased, which were secured by specialties.</p> <p>The court below made a decree, distributing the proceeds of the sale pro rata among all the specially creditors of the de.ceased, including the mortgagee; from which decision John Adams appealed.</p> <p>An unrecorded mortgage is good against the mortgagor, the recording act being only intended to protect subsequent judgment creditors and purchasers. A creditor of the mortgagor, unless he be a lien creditor, cannot take advantage of the want of recording of the mortgage, which the mortgagor himself could not take. Levinz v. Will, 1 Dali. 430. The mortgagee might have sustained an ejectment, and recovered the land itself. Smith v. Shaler, 12 Serg. Sf Razóle, 240. Having thus an equitable specific lien on the land, he is entitled to a preference over the specialty creditors.</p> <p>whom the court declined to hear,</p>

John MKee having deserted his wife and children, she made an application to a justice of the peace for relief, who issued a warrant against John MKee, commanding the constable to, take him, and bring him before him, that he might be bound over to appear at the next Court of Quarter Sessions, to answer the complaint of his wife.

)- This was an action of ejectment for one hundred and fifty acres of land brought by Andrew Bower and Susanna his wife, against John Senser and others.

. Error to the special Courjt of Common Pleas of Huntingdon county, (Reed, president.) In the court below this was an action of ejectment brought by Anthony Masterson against John Addleman, The plaintiffgave as evidence of his title — 18th May, 1784, war:, rant to Walter Hood, “for three hundred acres, on a creek running into the Warrior-mark run, in or about a mile from the mouth of said branch, and about two miles from the Warrior-mark, in the county of Bedford.”-! 9 th…

<p>Costs are not recoverable by either party in an action of partition.</p> <p>Costs are exclusively a matter of statutory creation.</p>

<p>In each of these casés a certiorari was issued, at the instance of the commonwealth, to the Court of Quarter Sessions of Union county, to remove the proceedings which had been instituted by the defendants severally, to recover damages for injury done to their property, by reason of the construction of the Pennsylvania canal.</p> <p>The same exceptions which were filed in the court below to the confirmation of the several reports, and there overruled, were re > lied upon here.</p> <p>1st. The application was not authorised by law, having been .made before the completion of the canal.</p> <p>2d. The work on the several sections stated in the petition, was not completed when the application was made; nor had the said sections .been taken off the hands of the contractors by the canal . commissioners. The contracts for making fence on said sections had not been complied with.</p> <p>3d. Reasonable notice of the time and place of meeting of the viewers, was not given to the nearest acting canal commissioner'.</p> <p>4th. The viewers did not ascertain the quantity, or ■ describe . the boundaries, of the land by them valued; nor the quality, nor duration of the estate and interest of the applicant to the same, .agreeably to the act of assembly.</p> <p>5th. The damages are exorbitant, and were assigned without any evidence produced before the viewers.</p> <p>There was added in Richter’s case, an .exception to the allowance of damages for injury done to a spring, by the backing of the water •of the creek upon it.</p> <p>And in Dew art’s case, there was this additional exception,' “that he had executed a release to the commonwealth of all damage, ¡previously to his application.”</p> <p>A statement of the whole case, of the several acts of assembly .in relation to it, and the positions taken on the one side and the ..other, are contained very fully in .the opinion of the court,' which ■was delivered .by</p>

Writ of error to the Common Pleas of Columbia county, where it was an action of trover, brought by Michael Smith against James Johnston. The case was this: Charles Clark being the owner - of a farm, had leased it to Michael Smith, the plaintiff in error, who was also the plaintiff below, for one year, which was to end on the 1st April, 1828. The terms of the lease were, that the tenant was to deliver a certain portion'of the grain to the landlord, in the bushel.

This was a scire facias to revive a judgment, to which the . defendant plead payment, with leave to give the special matter in evidence.

This was an appeal from the Circuit Court of Union county, held by justice Hustojt. The case is fully stated in the opinion of the court. To sustain the position, that an obligor, who stands by and sees his bond assigned to a third person, cannot afterwards avail himself of any defence, which then existed, cited Gordon v. The JV. Amer. Ins. Co. 1 Bin. 434. 5 Wils. Bac. Ah. 47-49. 3 Wils. Bac. Ah. 301.

<p>This was an appeal from the decree of the Court of Common Pleas of Northumberland county, distributing the proceeds of the sale by the sheriff of the real estate of Henry Donnel.</p> <p>On the 9th June, 1818, George Boyer obtained a judgment by default against Henry Donnel, in an action of debt, for two thousand dollars. On the 22d August, 1818, this entry was made upon the docket: “ On motion and affidavit filed, judgment opened, and defendant, Henry Donnel, let into a defence.” On the 23d January, 1819, “judgment by consent for the plaintiff, for one thousand-one hundred and thirty-one dollars and eleven cents.”</p> <p>On the 22d January, 1819, H. G. Steinbridge obtained a judgment against Henry Donnel, for one hundred and fifty-seven dollars- and sixty cents.</p> <p>The lien of each of the judgments was preserved from the time of their original entry, until the sale of the defendant’s real estate by the sheriff!</p> <p>The question in the court below was, whether the order of the court of the 22d August, 1819, opening the judgment of George Boyer, and letting the defendants into a defence, did not destroy the lien of the judgment; which was not again acquired until the 23d January, 1819, one day after Steinbridge obtained his judgment.</p> <p>The opinion of the court below was, that the judgment was opened .merely for the purpose of letting the defendant make defence, and that the lien remained: and therefore decreed in favour of George Boyer, from which decree Steinbridge appealed.</p> <p>In this court a ■ motion was made to quash the appeal, on the ground, that the .affidavit upon which it was founded, was made by the attorney, and not by the party.</p>

<p>IN ERROR.</p> <p>Writ of error to the Common Pleas of Beaver county.</p>

<p>IN ERROR,</p> <p>Error to the Court of Common Pleas of Butler county.</p> <p>This case was argued by</p>

<p>The sheriff is a competent witness to prove the words, “Proceedings stayed by plaintiff’s attorney,” which had been endorsed on a writ of liberari facias, and signed by the sheriff, and which were struck out or erased by a line run through them, though still legible, were his return to that writ, and that he had not struck them out.</p> <p>It is competent to prove, and that by the sheriff, that upon such writ of liberari facias, he did not deliver the land to the plaintiff; although it was set forth in the inquisition returned with the writ, that the sheriff and inquest had caused to be delievered the property extended, '“ until the debt and damages in the same writ mentioned, together with the interest, &c. be fully levied.”</p> <p>An inquest under a liberari facias can only determine the value of the land, the yearly rents and profits, and the term during which it shall be extended. The delivery of the land is the executive duty of the sheriff alone.</p>

IN ERROR. Error to the Court of Common Pleas of Butler county. This was an ejectment brought in the court below, by MCoy and wife, against Ephraim Turk, to recover a tract of two hundred acres ofland, in the first donation district of Butler county, No. 200. It was admitted on the trial, that there was a patent to Thomas Tull for the tract ofland for which the ejectment was brought, and also, that Mary M‘Coy was his sole heir.

<p>IN' ERROR</p> <p>Writ of error to the Court of Common Pleas of Mercer county.</p> <p>The action was ejectment to recover a tract of donation land, containing two hundred acres, No. 763, in district1 number 4. The plaintiff made title through Robert Parker, a lieutenant in the Pennsylvania line, and exhibited a patent to him for lot No. 763, 4th district, dated the 28th day of February 1794, the general draft of that district, in which his name appeared in that number, and also the comptroller’s list, in which No. 763, in the, 4th district, is set down opposite to his name as having been drawn by him. - '</p> <p>The defendants rested their title on a patent to Hinderliter, assignee of John Whiteman, for lot No. 763, in the 4th district, (being the same lot,) dated the 12th day of September, 1790. To defeat which, the plaintiff gave in evidence the following extract from the general draft of donation land in district number 9.</p> <p> </p> <p>They also gave in evidence a certified extract from the comptroller’s list, in which the name of John Whiteman, private, was inserted, and opposite to it two hundred acres, No. 1776, 9th district, and that this was the only entry on the said list in the name of John Whiteman.</p> <p>They also gave in evidence a patent to John Whiteman for lot No. 1776, 9th district, dated 18th April, 1787.</p> <p>The plaintiffs’ counsel requested the court to charge the jury: -</p> <p>“ 1st. That if the patent for the tract of land in dispute was made and delivered to Hinderliter, as assignee of Whiteman, it would vest no title in him, unless the number of this tract had been drawn from the wheel previously to either Whiteman pr Hinderliter, and that of this fact the jury must judge from the evidence given on the trial.</p> <p>“ 2d. That the patent to Hinderliter, which'-had been given in evidence, unless the name of Hinderliter or Whiteman was inserted in the general draft, and within the lot, must be postponed to the patent of the plaintiff; if the jury believe the name of Robert Parker was inserted in the general draft, and within the lot at the time it was drawn.”</p> <p>The court charged'the jury on the first point: that “ the granting of the patent is evidence of the drawing of the numbers.” And on the second point, that “ this omission by the officers of the State, would not vitiate a patent, if otherwise fairly obtained.”</p> <p>Several errors were assigned, which are substantially embraced in the points above stated, and the answers of the court thereto.</p> <p>That there was a difference between a patent granted by the States, and the king of England. The former gives no title, but is prima facie 'evidence of title, the latter vests title until it is vacated. The one can always be contested by any other claimant to the land, the other cannot. 2 Smith, 191. He cited the 12th, 13th and 14th'section of the act of 1785, 2 Smith, in relation to donation lands.</p> <p>The evidence given, negatived the idea of regularity in the first grant.</p> <p>A patent is only prima facie evidence of a regular title. It may be obtained by fraud, or issued by mistake; it is not conclusive. Renner v. Raker, 4 Bin. 218.</p> <p>The first patent was issued without observing the requirements of the act of assembly, and must be postponed to the subsequent regular title.</p> <p>■ The assignee of a patent is in no better equity than the assignor. Gonzalus v. Hoover, 6 Serg. Razóle, 118.</p> <p>The court did not answer the points fully: they did not tell the jury what the law would be, if the number in the patent had never been drawn. Vincent v. Huff, 4 Serg. Sp Razóle, 298. The court look the facts from the jury.</p> <p>The patent to Hinderliter was but prima facie. evidence of the facts recited;-and the presumption of regularity is removed by-proof that it had not issued according to law.</p> <p>It is the appropriation of the land by the legislature, and not the patent, which gives the title.</p> <p>The entry of the name in the general draft is made a record, in lieu of recording the patent.</p> <p>Of Hindeiiiter’s patent there was no notice .to Parker when he drew, in 1794, this number; and the former is guilty of that sort of laches which should postpone his claim.</p> <p>The patent is evidence per se until invalidated by conflicting evidence. Fraud is not to be presumed.</p> <p>The patent could not have issued, unless the number- which it calls for had been drawn; and so is the charge of the court. And if the number had been drawn, the omission on the part of the officers intrusted with the duty to insert the name in the number in the general draft, and the number opposite to the name on the comptroller’s list, would not vitiate the patent. The mistake of the officers could not affect the title, and therefore the first patent must prevail. No fraud was proved, and besides, the finding of the jury proves that Whitman and Whiteman were different persons.</p> <p>The law does not say that the connected draft shall be a record.</p> <p>These drawings for donation lands commenced in 1794, and continued untilT804.' If the plaintiff’s draft had been antecedent to the defendant’s patent, there might be some weight in their claim, but we are first in time, and therefore first in right.</p> <p>The court declined hearing Banks, for the plaintiff in error, in reply.</p>