Volume 1 — Rawle's Pennsylvania Reports

<p>This was an action of replevin brought in this court by Messrs. Bolin, Leach, and Gatewood, against Huffnagle, assignee of Messrs. Sperry and Stansbury, for a quantity of wines and raisins. The following case was stated for the opinion of the court:</p> <p>In September, 1822, the plaintiffs, in pursuance of an order from Messrs. Sperry and Stansbury, dated the 15th of July, 1832, shipped at Malaga in Spain, on board the brig Pleiades, then belonging to the - said Sperry and Stansbury, and commanded by Charles King, master, in their employment, certain 'Malaga wines and raisins, consigned to the said Sperry and Stansbury, merchánts, at Philadelphia. On the 31st of October, in the same year, before the said vessel arrived at Philadelphia, and before any intelligence was received of the said shipment, the said Sperry and Stanshjgry became insolvent, and executed a general assignment to the defendant, for the benefit of their creditors. On the 28th of November, in the same year, the said vessel arrived in the Delaware, and on that day was detained at Newcastle, in the state of Delaware, by the service of a writ of replevin, at the suit of the plaintiffs, of which the defendant and Sperry and Stansbury, had notice at Philadelphia; and the said Captain King was notified by R. Gatewood, one of thje plaintiffs, not to deliver the goods. It was then agreed, that the said wine and raisins should be sold under the direction of both parties, and the nett proceeds of sale deposited in bank to the credit of the respective attornies, to await the decision of the question, whether the said property and the proceeds thereof, belong to the said plaintiffs or to the said defendant? The nett proceeds of the said wine and raisins have accordingly been deposited in bank to the credit, &c.; and it is agreed that the court shall enter judgment for the party whom they shall consider to be entitled to the said proceeds.</p> <p>The order referred to in the case stated, was as follows:</p> <p>“ Philadelphia,,July, 15th, 1822.</p> <p> Malaga. </p> <p>Messrs. Bolin, Leach, and Gatewood.</p> <p>Gentlemen,</p> <p>Your Mr. Gatewood, we have had the pleasure to see, and received his assurance of your exertions to procure a freight for our brig, should she proceed to Malaga.</p> <p>■We should prefer a freight to any part of the United States, not farther east than New York, or south than Norfolk; but, if a good freight offers for New Orleans, we have no objections. If direct to Philadelphia, we have no objections, as we informed your partner, Mr. Gatewood, to receive on our account, to the extent of about three thousand dollars, in first quality dry Malaga wine, cask raisins, and bloom raisins, an equal proportion of each, for which we will accept your- draft in his favour at four months sight.</p> <p>We remain, &c.</p> <p>(Signed) Sperry and Stansbury.”</p> <p>The following, is an abstract of the bill of lading:</p> <p>“ S. S. Shipped by Bolin, Leach, and Gatewood, in and upon the Pleiades, Charles King, master, now in the mole of Malaga, bound to Philadelphia,</p> <p>50 qr. casks Malaga wine, &c. &c. to be delivered at the port of Philadelphia, unto Messrs. Sperry and Stansbury, or to their assignees, they paying freight for the said goods nothing, being the owners of the said vessel.</p> <p>Dated in Malaga, the 23d of September, 1822.</p> <p>, (Signed) Charles King.”</p> <p>Abstract of the Invoice.</p> <p>“ Invoice of raisins shipped on board the brig Pleiades, Charles King,master, bound to Philadelphia, by order of Horatio Sprague, esq., for account and risk of Messrs. Sperry and Stansbury of Philadelphia.</p> <p>S. S. 100 casks of sun raisins, &c. &c.</p> <p>(Signed) Malaga, September, 23d, 1822.</p> <p>Bolin, Leach, and Gatewood.</p>

This was a special action on til case, brought by the plaintiff in error against the defendant in error, in the District Court for the city and county of Philadelphia, to recover damages for an injury done to the plaintiff’s land by the erection of a dam on the land of the defendant.

<p>On a writ of error to the District Court for the city and county of Philadelphia, it appeared, that this was a scire facias, issued to the December Term, 1827, by the Commonwealth of Pennsylvania, against Timothy Matlack, late prothonotary of the said court, and William West and George Worrell, his sureties, on a judgment for four thousand five hundred dollars, obtained on the 16th of Fehruary, 1824, on the prothonotary’s official bond.</p> <p>A case, of which the following is the substance, was stated for the opinion of the court below, to be considered as a special verdict.</p> <p>Timothy Matlack was appointed prothonotary of the District Court for the city and county of Philadelphia, by a commission dated the 28th tif February, 1821, and on the 6th of March, 1821, entered into a bond to the Commonwealth, in the penal sum of four thousand five hundred dollars, with William West and George Worrell, as his sureties. The bond, after reciting the appointment and commission of Mr. Matlack, as prothonotary, contained a condition in these words:</p> <p>'“Now, the condition of the above obligation is such, that if the above bounden, Timothy Matlack, shall, and does well and truly and faithfully, in all things, execute and perform the duties of the said office according to law, and shall also, well and faithfully account for and pay over unto the state treasury, all public monies which shall come to his hands from time to time during his continuance in the said office, and also shall, when thereunto lawfully required, deliver up the records and other writings with the seal to the said office belonging, whole, safe and undefaced, to his lawful successor therein, then this obligation to be void, or else to be and remain in full force and virtue.”</p> <p>Between the 15th day of March, 1823, and the 4th day of October, 1826, both days inclusive, the said Timothy Matlach received from John Goodman, Esq., his successor in office, and Randall Hutchinson, Esq., also his successor in office, the sum of nine hundred and two dollars and fifty-eight cents, at the days and in the sums mentioned in a certain account, a copy of which was annexed to, and made part of the case.</p> <p>The said Timothy Matlach received more than fifteen hundred dollars per annum, during his continuance, in the said office.</p> <p>The Commonwealth claimed, under the acts of assembly in such ease made and provided, the sum of four hundred and fifty-one dollars and twenty-nine cents, being fifty per cent, on the said sum of nine hundred and two dollars, and fifty-eight cents.</p> <p>Judgment having been entered on the 16th day of February, 1824, for four thousand five hundred dollars on the said bond, this sure facias was issued to recover the amount claimed by the commonwealth.</p> <p>The writ of scire facias was returned “ served,” as to William West, and “ N. E. I.” as to the other defendants.</p> <p>Upon the case stated, the District Court rendered judgment in favour of the defendant; whereupon a writ of error was taken out by the Commonwealth.</p> <p>In this court two questions were argued:</p> <p>1. Is Timothy Matlach bound to pay the Commonwealth the amount claimed?</p> <p>2. If he is so bound, is William West, his surety, liable upon the bond?</p>

<p>IN ERROR.</p> <p>No wager concerning any human being, is recoverable in a Court of Justice.</p> <p>Therefore, a wager, whether or not Napoleon Bonaparte, would, within a specified time, be removed or escape from the island of St. Helena, was held to . be illegal and void.</p>

A verdict of the recognitors in this assize of nuisance, having been rendered in favour of the plaintiff below, the defendant in error—“Judgment nisi,” was entered thereon, on the 28th of January, 1826, and at half past twelve o’clock, in the morning of the 30th of the same month, the plaintiff issued a writ of execution in the following form, which was placed in the sheriff’s hands at four o’clock of the same morning: t( Northampton county, ss. “The Commonwealth of…

On the trial of this cause at the Circuit Court of Lehigh county, before the Chief Justice, on the 17th of JLpril last, it appeared that it was an action of assumpsit, brought by John Diechman, surviving administrator de bonis non cum testamento annexo of George Smull, deceased, against the Northampton Bank, for money had and received by the defendants to the use of the plaintiff.

<p>IN ERROR.</p> <p>A church, being in embarrassed circumstances, borrowed money of certain banks, for which two of its members gave notes drawn and indorsed by themselves. The banks having required further security, an agreement was entered into, by which, upon a third member of the congregation consenting to become an additional indorser upon the notes, thirty others bound themselves, in default of payment being made by the church,.to make good the deficiency, so that the drawers and indorsers of the notes should not suffer loss, provided the said drawers and indorsers should continue their names on the notes to the end of the time required for the payment of the debt, which it was stipulated should be paid off in ten years, by annual instalments of ten per cent.; and in case the church should make default in paying these instalments, the subscribers to the contract agreed, that the deficiencies should be divided among them in equal parts. The notes were regularly renewed, from time to time, until the death of the last indorser, which took place a few years after the date of the agreement. After his death, his executors were called upon by a committee of the church to renew the notes, which the banks would have permitted under the circumstances of the case. The executors, however, refused to renew, suffered the notes to be protested, and afterwards' paid them. After the lapse of several years, they brought this action against the defendant, as one of the thirty, who had signed the agreement of indemnity, to recover his proportion of the instalments of ten per cent, which had become due prior to the commencement of the action. Held, that they had substantially complied with the contract of their testator, and were entitled to recover.</p>

On a writ of error to the Court of Common Pleas of Philadelphia county, it appeared that the proceedings in this case arose under an act of assembly, passed the 25th day of March, 1825, entitled, “ A supplement to the act, entitled, an act for the sale of goods distrained for rent, and- to secure such goods to the persons distraining the same, for the better security of rents, and for other purposes therein mentioned,” the provisions of which are confined to the city and…

John To'rr and others, administrators .of Josiah Torr, appealed to this court, from a decree of the Orphans’ Court of Philadelphia county, in relation to their accounts.

<p>IN ERROR.</p> <p>A. and B., in contemplation of marriage, executed a deed, by which a large real estate, being the wife’s share and proportion of her late father’s real estate, was conveyed to trustees upon certain trusts for her benefit, and in reference to a considerable personal property, “being her sharcof the personal estate of her late father;” the husband covenanted, that all the purchases of real estate he might make, with the above mentioned personal property of the wife, which should come to his hands during the intended marriage, should be vested in the wife, subject to certain powers in the husband, and that if, at the time of her decease, he should-be in possession of any of the personal property of the wife, received from the estate of her late father, not contracted to be laid out in real estate, he would account to the trustees for the principal thereof: it being understood that he should not be accountable for the interest or rent of any such monies or estates as might come into his hands during their joint lives.</p> <p>On the day before the execution of the settlement, a part of the x’eal estate was sold; part of the purchase money was paid, and bonds given by the purchaser for the residue, which were paid off after the-marriage, but no alteX’ation was made in the deed in consequence of the sale.</p> <p>The husband, after the marriage, received considerable sums of money from the executors of the wife’s father, part of which consisted of interest which had become due to that estate after the date of the marriage settlement. Part of the wife’s personal estate was laid out by the husband in the purchase of vacant lots, which were conveyed as directed by the settlement, and he expended considerable sums of money in filling up those lots, and curbing and paving in front of them.</p> <p>After the wife’s death, the executors of the surviving trustee brought an action of covenant upon the settlement, against the husband, aud it was held,</p> <p>That the proceeds of the real estate sold before the execution of the settlement, did not pass to the trustees, in the place of the land itself.</p> <p>That the husband was not bound by his covenant, to account to the trastees for the px’oceeds of the sale.</p> <p>That he was not bound to account .for monies received from the executors of the wife’s father, in the shape of interest which had accrued subsequently to the date of the settlement; and that he was entitled to credit for the expense of filling up vacant lots purchased in pursuance of the settlement, and for curbing and paving in front of them.</p>

<p>Where, in a deed conveying land, and reserving a rent charge, the grantor covenants, upon the grantee paying, within seven years, a gross sum, together with all arrearages, &c„ to release and .discharge the rent, the grantee cannot, after the lapse of eighteen years from the time prescribed in the deed, call upon the grantor to perform his covenant.</p>

This was an ejectment for a lot of ground at the north-east corner of Walnut and Fifth Streets, in the city of Philadelphia, tried before Mr. Justice Rogers, and a special jury at Nisi Prius, on the 24th of November, 1827. The plaintiffs showed title in Caleb Pusey, and gave in evidence an exemplification of a deed from Caleb Pusey to Daniel Jones, which bore date 9th month 19th, 1690, was acknowledged in open court 10th month 2d, 1690, and was recorded 10th month 29th, 1690.

<p>This was an ejectment originally brought in the Court of Common Pleas of Lehigh county to December Term, 1825, and removed by Habeas Corpus cum causa, to the Circuit Court of the same county, where it was tried on the 16th of April, 1823, before the Chief Justice.</p> <p>The plaintiff, on the trial of the cause, claimed the land in controversy as devisee under the will of George Smull, deceased, and gave in evidence the said will, dated August 3rd, 1815, and proved October 12th, 1815.</p> <p>The defendants set up the following title in themselves:—George Smull, being indebted at the time of his death to Jacob Schrieber, an amicable action in debt was entered in the Court of Common Pleas of Lehigh county, in which said Schrieber was plaintiff, and Peter Smull, executor of the last will, of the said George Smull, deceased, was defendant to December Term, 1817. Judgment by confession was entered in this suit on January 9th, 1818, for the plaintiff, in the sum of eight hundred and sixty-threp dollars seventy-two cents, with costs, &c. A Fieri Facias was issued on this judgment to JLugust Term, 1818, and the sheriff levied upon two tracts of woodland as the property late of George Smull, deceased. One of these tracts, supposed to contain seventeen acres eighty perches, comprised the land for which this ejectment was brought. The property levied on being woodland and so returned by the sheriff, no inquisition was held upon it, and a Venditioni Exponas to November Term, ISIS, was issued, upon which a sale was made by the sheriff, which was set aside by the court. The entry on the docket was as follows: “ December 1st, 1818. On motion, sale and execution in the above case, set aside.” An Mias Venditioni Ex-ponas was then issued to February Term, 1819, in virtue of which the sheriff again sold the said tract of woodland, containing about seventeen acres eighty perches, to Jacob Schrieber, plaintiff in the suit, for ten hundred and eighty-five dollars.</p> <p>On the 2nd of February, 1819, a rule was obtained to show cause why this sale should not be set aside, in relation to which, on same day, an entry was made in the docket in these words: “ Rule discharged, and defendants to have two months to pay the debt, interest, and costs; and if paid, sheriff to return Venditioni Exponas unsold for want of buyers; otherwise sale confirmed, and sheriff to deliver the deed accordingly.” The sheriff, on the 3rd of February, 1819, executed a deed for the said seventeen acres eighty perches, and acknowledged it on the same day in open court, hut retained the same until the two months had expired, when the defendants in Schrieber v. Smull’s executors, not having complied with the above order or decree of court, he delivered it to the purchaser, Schrieber. The Mias Venditioni Exponas was returned November 27th, 1827, long after the sheriff had gone out of office. Jacob Schrieber and wife conveyed part of this land to Jacob Mickley, one of the defendants in the present cause, and the remainder to Henry Byle, the other defendant. The deeds by which these conveyances were made, were both dated on the 3rd of June, 1820, and were duly recorded.</p> <p>The jury, under the direction of the Chief Justice, found a verdict for the plaintiff, and the defendants’ counsel moved for a new trial, which having been refused, an appeal was entered to the court in bank, where the cause was argued by Stroud for the appellants and Brooke and J. M. Porter for the appellees upon several points, only one of which, however, is noticed in the opinion of the court, which was delivered by -</p>

<p>The plaintiff, Robert Jldams, brought this action against the Insurance Company of Pennsylvania, on a policy of insurance dated September 2d, 1822, on the freight of the brig Shamrock, valued at four thousand dollars, on a voyage at and from Gibraltar to Bourdeaux, at and from thence back to Philadelphia, at a premium- of two per cent.</p> <p>The plaintiff was the owner of the Shamrock, which he sent to Gibraltar in the spring of 1822, with a cargo belonging to himself, to be sold at that place. The letter of instructions dated May 9th, 1822, to the master, R. Pickle, was to the following effect: “Whither your course may be directed from Gibraltar, will depend on advices from my friends Doioling and Sons of Bourdeaux. I have directed them, if brandies are low, to purchase four hundred pipes for your return cargo. If high, you are to shape your course to St. Petersburgh, and bring home hemp and iron. If you can get goods on freight, not to interfere with my goods, do so. If no advices are received from Doioling and Sons, 1 leave the course to you,” &c. Many letters from the plaintiff to Dowling and Sons, and to the master, and some from Dowling and Sons to the master, were read in evidence. The plaintiff at first directed Dowling and Sons to purchase for him four hundred pipes of brandy, if they could be had for two hundred and fifty francs. In consequence, however, of the low price of brandies here, and the quantity in the market, he, in a letter to Captain Pickle, limited him to two hundred and forty francs, and stated that he would prefer having not more than one hundred pipes put on board on his own account, wishing the vessel to be loaded with brandy or other goods on freight. A letter to the same effect was written by the plaintiff to Dowling and Sons. Brandy fell at Bourdeaux to two hundred and thirty francs. No cargo was ever purchased.</p> <p>The Shamrock sailed from Gibraltar for Bourdeaux on the 28th of June, without a cargo, but having on board twenty thousand dollars in specie, to purchase a cargo. On the 7th of July, she was lost near JLvciro in Portugal. One keg of specie, containing four thousand dollars, was lost, and the remainder saved. The voyage was broken up, and the plaintiff claimed for a total loss of the freight insured. The jury found a verdict in his favour, subject to the opinion of the court upon the whole evidence; if the opinion of the court should be with the plaintiff, judgment to be entered for the plaintiff; if with the defendants, judgment to be entered for the defendants.</p>

<p>IN ERROR.</p> <p>Parol evidence is riot admissible .to prove the reservation of a right of way, which is not reserved by or noticed in the deed.</p>

<p>On the trial of -this cause at Nisi Prius, a verdict was rendered for the plaintiff, for three hundred and eighty-nine dollars sixty-four cents, subject to the opinion of the court upon his right to recover, upon the whole evidence; from which-it appeared that Nathan Tho-. mas, the defendant’s testator, departed this life having made his last will and testament bearing date the 3d of November, 1804, wherein he devised as follows:— ■</p> <p>First. “ My will is, that the plantation and tract of land which I now possess in the township of Blochley, and county aforesaid, with the appurtenances thereunto belonging, bé sold two years after my decease, or at any time within the said term, if my executors shall conceive it most advisable for the benefit of the same, and when sold arid the money collected, my will is that all, myjust debts be paid, and also all the just debts of my son Lewis Thomas, which he may have contracted until the date of this my will, but none that he may contract after this date. My will further is, that my beloved wife Sarah Thomas, shall have arid enjoy all and singular my monies, goods, chattels, rights, credits, effects, and all. my estate, real, personal, and mixed,- whatsoever and wheresoever, during her natural life, and. at the decease of my said wife, the onri moiety or half part of the said estate which may be left at her own disposal; and the other moiety or half part of the said, estate, to be put out to interest for thé usé and benefit of my,son Lewis, and for him to receive the interest of the same annually during his- natural life, and, at his decease, the'principal and interest of -the same to be at his own disposal. And, lastly, I do hereby nominate and appoint- my beloved wife Sarah Thomas, executrix, and my beloved, friend Thomas Thomas, to be my. executor of this mj1- last will and testament, hereby revoking,” &c. . . -</p> <p>Sarah Thomas survived the testator, and died intestate. Lewis Thomas survived his father and mother -arid died intestate, leaving the plaintiff his only child. . ■</p> <p>• ■ The -defendant, who was.sued as surviving executor of Nathan Thomas, also administered to the estate of Lewis Thomas, on’ the 19th of September., 1827. This action was brought by the plaintiff to recover the balance of the estate of his grandfather, according to the account .filed by the defendant, as executor of that estate.</p> <p>The defendant contested the plaintiff’s right to recover, in behalf of the creditors of Lewis Thomas.</p>

From the record of this case, returned on a writ of error to the District Court for the city and county of Philadelphia, it appeared, that in the court below, it was an action of assumpsit for money had and received, brought by the plaintiff in' error, John Floyd, against the defendant in error, Jtquilla Ft.

<p>IN ERROR.</p> <p>The plaintiff being the defendants’ supercargo, sold their goods on credit at a foreign port, and procured from a house at that port advances, on an assignment of the debts due from the purchasers of the cargo. These advances he remitted to his shippers in a return cargo. 'In his account sales of the outward cargo rendered to one of the shippers, he did not mention the names of the purchasers, but'concluded it with “errors, omissions, and outstanding debts excepted.” In that rendered to the other shipper he mentioned' the names of the purchasers, and concluded the account with “ errors and omissions excepted.”' The purchasers having become insolvent, the foreign house which had made the advances, attached the plain tiff’s property and recovered the amount-of their advances, and the plaintiff brought suit against the consignors for reimbursement. Held, that he was entitled to recover.</p>

This cáse came before the court on a writ of error to the District Court for the city and county of Philadelphia, in which judgment was rendered for the defendant, upon a case stated in the nature .of a special verdict. . . ' • -

<p>IN ERROR.</p> <p>The act of March 27th; 1713, for the limitation, of actions, is not a bar to the recovery of rent reserved by indenture.</p> <p>In an action of debt for rent reserved by indenture, the plaintiff may state in his declaration the substance of the demise, and'is not bound to declare upon the deed; and, if to such a declaration the defendant pleads Nil habuit in teriementis, actio non accrevit, infra sex annos, or any plea which is prima facie a good plea, no estoppel appearing on the record, the plaintiff may reply, that the lease was by indenture, and such'a replication will not be a departure. •.</p> <p>Under the plea of Nil debet to a declaration stating a demise generally, the defendant may give the statute of limitations in evidence. {Semble,}.</p>

<p>This- was a writ of error to the Court of Quarter Sessions of the county of Philadelphia, in which the plaintiff in error, Henry Simmons, was found guilty and sentenced upon an indictment for fornication and bastardy. The indictment set forth that Simmons, “ on the first March, in the year of oür Lord one thousand eight hundred and twenty-eight, at the county aforesaid, &c., did commit fornication with a certain Caroline Black, and a bastard child on the . body of her, the said Caroline, then and there did beget,” &c.</p> <p>Three errors were assigned in the judgment of the court of Quarter Sessions, of which the two following'only are material, viz.</p> <p>1. That the indictment stated no day of the month on which the offence, therein set forth, was committed.</p> <p>2. That it did not state the sex of the child.</p>

<p>IN ERROR.</p> <p>The officer who executes a warrant for the collection of militia: filies, is not bound to know that the person pn whom he is directed' fb execute it, is an exempt. ■ . .</p> <p>If the minutes of the proceeding's of a Court of-Appeals are lost, the substance of their contents may be proved.' Consequently, a warrant proved to have been copied from the return of a Court of Appeals and compared with it, is competent evidence, to be left to the jury.</p> <p>To show that a Court of Appeals was regularly constituted, it is necessary to produce the commission of the officer, by whose order it was constituted and those of the officers who composed it.</p>

<p>■ This case, which was an action brought by the defendants in error, .Jane Wright and others, who were stated in the -writ to be '.he infant children of John Wright, deceased, and who sued by their guardian, against William Lee, the plaintiff in error, had been before this court at a former term; when the judgment of the'District Court was reversed, and a venire facias de novo awarded. Sep 14 Serg. & Rawle, 105.</p> <p>' When the trial again came .on in the District:Court, the plaintiffs below moved to file two additional counts to the declaration,-which originally was for money had- and received.</p> <p>The first of these counts stated, that the defendant below was possessed of sundry goods and chattels of the value of two thousand dollars, which were by him held in trust for the sole use and benefit of the plaintiffs; and that he was bound justly and truly to administer and keep the same, arid' faithfully to. apply them to the Bole use and benefit of the plaintiffs. In consideration whereof, ‘,he defendant assumed and promised to keep, administer, and apply them -.as aforesaid. Nevertheless, he did' not truly arid faith- ■ illy administer and apply them as aforesaid; but on, &c., did apply, and convert the said goods and chattels, and the proceeds thereof, to his .own use and' benefit, and hath refused to make any conpensation.</p> <p>The second count stated, that the defendant below, held a certain bonl and warrant dated, &c.,. for. two thousand dollars, the sairie being the consideration money for the purchase made by William Cháíe of the defendant, of certain goods and chattels held by the defendant, for the úse and benefit of the plaintiffs. In consideration whereof, he assumed and-promised to hold the bond for the exclusive vise of the plaintiffs, and apply the money to their use and none other. Nevertheless, the defendant caused judgment to be entered and execution to be issued, and levied on the said goods and chattels,and delivered up'to the said William Chase half of the goods for the said Chase’s own proper use, and not for the use of the plaintiffs,, and .look possession of the other half to his own use; and hath refused, to make any compensation.</p> <p>'-The defendant .objected'to'the . -filing of these additional counts'; but the court permitted them to be-filed, which was now assigned for .error. . • '</p> <p>Several other points arising upon the' record, were made in this court, and argued by P. S. Browne, for the plaintiff in error, ánd hy-J.'P. Norris, jr.,. and 'Rawle, for the defendants in error,, some of which will be found in- the former report of this cáse. Those which had not been already decided, are fully stated in the opinion of the court, which was delivered by . "•■ '.</p>

<p>IN ERROR.</p> <p>An entry, made by a clerk in a book of a bank, of a deposit made by_a customer, immediately before an entry made by him-of the same deposit in the customer’s batik book, and supported by the oath of the clerk, is evidence to go to the jury, together with the customer’s book and the' testimony of the clerk. ’ -</p>

<p>On the return of a writ of error to the. District Court for thé city and county of Philadelphia, it appeared from the record, that this was an action of covenant brought by Redivood Fisher and others, devisees of Miers Fisher, deceased, who sued as assignees of Charles Hurst, to recover three years’ arrears of ground rent, reserved in a deed dated the 9th of March, 1785, executed by the said Charles Hurst to Charles TV. Peale, under whom the defendant below, Richard Streaper, derived title to the lot of ground out of which the ground rent issued.</p> <p>Qn the trial in the District Court, the jury by agreement of the parties, found a verdict for the plaintiffs for one hundred and seventy-two dollars, and fifty-four cents, subject to the opinion of the court upon the facts specially found by the jury. In substance they were as follows:—■</p> <p>' On the 9th of March, 1785, Charles Hurst conveyed to Charles TV. Peale a lot of ground in the city of Philadelphia, particularly describing it, subject to the yearly rent or sum of fifty-three dollars thirty-three cents, payable annually on the 9th of March, for ever; and Peale covenanted to pay the said rent. At July Term, 1787, thé executors of William Brownjohn obtained a judgment against Charles Hurst, on which several executions issued, and parts of the estate of Charles Hurst were sold. On an Alias Fieri Facias pro residuo, a levy was made,.among other things, on No; 20, (the. items levied upon having been numbered in.eonsequence of being numerous,) ‘.‘One yearly rent charge .of fifty-three dollars and thirty-three cents, issuing and payable out of a lot, (describing.it exactly,) in the possession of G. TV. Peale.” Several writs of Venditioni Exponas issued, upon one of which the property was struck off to Timothy Hurst;-but the sale was set aside. A Pluries Venditioni Exponas issued to March Term, 1799, commanding the sheriff to sell inter alia, No. 20, “ One yearly rent charge,” &c., describing it, as in the levy. To this writ the sheriff returned, that he had sold the foí Nó. 20, out of which the rent issued, to Anthony Morris and Miers Fisher, for five hundred dollars. On the 26th of March, 1799, the sheriff made a deed to the said Anthony Morris and Miers Fisher, in which he recited the Fieri Facias,-the levy and the several writs of Venditioni Exponas, and then proceeded to state, that in pursuance of the writ of Pluries Venditioni Exponas, he had sold to Anthony Morris and Miers Fisher, a lot of ground and stable thereon, No.. 20, containing twenty feet in breadth, on the west side of Third Street. He then conveyed to them the said lot, (describing-it particularly,) “together with all and singular the rights, liberties, privileges, hereditaments, and appurtenances whatsoever, to the said hereby granted premises .belonging, and the reversions and remainders, rents, issues, and profits thereof.”</p> <p>Anthony Morris afterwards conveyed his share to Miers Fisher.</p> <p>On the 7.th of October, 1808, Charles W. Peale sold the lot to John Cameron, subject to the ground rent. On the 30th of September, 1811, Cameron sold it to William H. Smith, subject'to the ground rent; and on the Í3th of February, 1817, Smith sold it to Richard Streaper, the defendant below, subject to the said ground rent of fifty-three dollars and-thirty-three cents, payable to Charles Hurst, his heirs and assigns.</p> <p>Two letters from Miers Fisher to Charles W. Peale, dated in 1812 and 1813, were produced, in which he stated, that the property had been advertised as a lot, &e., and notas a ground rent issuing out of a lot; and that he had purchased, supposing he was buying the lot itself, and not the rent charge. He then settled with the tenants for the rent in arrear, and received the rents from that time until his death in 1819. After his death, the defendant, who had until that period paid the rent, being induced to doubt Fisher's title to it, refused to make further payments. In the year 1823, the executors of Miers Fisher, under a clause in- his will empowering them to sell if necessary, brought an ejectment to recover the lot, or to enforce payment of the rent. To November Term, 1824, while the ejectment was pending, the plaintiffs, to whom this property was devised by Miers Fisher, brought this action.</p> <p>Upon the facts thus found by the jury, the District Court gave judgment for the plaintiffs below; upon which the defendant’s counsel excepted to their opinion, and removed the cause by writ of error to this court. ■'</p>

<p>Ill ERROR.</p> <p>If, on the trial of a Scire Facias against a garnishee in a foreign attachment, the . plaintiff read the answers of the defendant to the interrogatories exhibited to him on the part of the plaintiff, he .may, notwithstanding, contradict those answers, by showing that the defendant swore differently on another occasion. . ' " '■ ■</p> <p>Though an assignment be in its nature calculated to delay creditors, and therefore voidable, yet, if a creditor take a dividend under it, he cannot afterwards question its válidity. . . '</p> <p>The lapse of seventeen years, without.corroborating circumstances, is too short a time to raise a legal presumption, that the objects for which an assignment was made for the benefit of creditors, had either been accomplished or ában- ■ doned.</p>

<p>'IN ERROR.</p> <p>The'Secretary of tfie Union Canal Company of Pennsylvania¡ incorporated by the act of the 2d of April, 1811; was such an officer,' within the meaning of the supplemental act of the 29th of March, 1819,-as the Legislature intended should receive no salary until the .works were actually recommenced upon the canal. ' ' • .</p> <p>. Such an officer.can claim no compensation for services, upon a Quantum Meruit,</p> <p>The act of the 29th of March, 1819, does not violate the. 10th section of the 1st article of the Constitution of the United States.</p>

<p>HABEAS CORPUS.</p> <p>The sister of a minor is competent, under the act of assembly of the 29th of September, 1770, to assent, as his next friend, to binding him apprentice to her own husband.</p> <p>But such a transaction will be more strictly scanned, than where the binding is to a stranger; and if the contract be tainted with fraud or collusion, the apprentice will be discharged.</p> <p>He will not, however, be discharged of course, where the covenants appear to be reasonable and proper on the face of the indenture, especially where the application is not made till the apprentice has ceased to be a burden.</p>

<p>IN ERROR.</p> <p>In an action against the endorser of a promissory note, the drawer, to whom-the defendant has executed a release, is not incompetent as a witness for the defendant, on the ground of interest, though he has given to the endorser a judgment and mortgage, to secure him against the endorsement.</p> <p>But he is incompetent, (on the ground that a witness cannot impeach a writing he has given,) to pi'ove that the consideration of the note was usurious; that the endorser was in fact the lender, and that the security was put into a negotiable form, merely for the sake of convenience.</p>

<p>This was a writ of error to the Court of Common Pleas of Phila-. delphia county, where the defendant in error, who was plaintiff below, had obtained judgment for fifty-nine dollars and forty-four cents upon the following case stated:—■.</p> <p>“The ship Lancaster, from Liverpool, owned by the defendants,was entered at the custom house at Philadelphia, on the 17th of June, 1824, and commenced unloading on the 21st of the same month.The plaintiff was consignee of ten crates of Liverpool ware, part of the cargo of said vessel. All these crates were received by the plaintiff except one, which was known and designated as No. 2S.— For the. value of this crate, which the plaintiff never received, this action is brought.</p> <p>The ten crates, .consigned as above to the plainiiff, were entered by him at the custom house. As soon as the vessel was ready to unload, the plaintiff sent a porter.to' receive them, with a permit, and a list of the articles as specified in his invoice, and an authority to receive them and carry them to bis store. The porter delivered the permit to the inspector on board the ship, and asked for the plaintiff’s crates. On the 22d June, one or more crates mentioned in his list were received by the plaintiff, and one or more on the two following days. The porter did not attend on the wharf during the whole of those days, but called repeatedly each day, and inquired of the inspector for these crates,.and took them away as received. No. 28 was landed on the wharf on the 23d June, but was not received by the plaintiff or his porter, ;and it is unknown to the parties what became of it.</p> <p>In unloading a vessel, it is usual, as soon as articles of hulk,' such as crates, are brought upon deck, to pass .them over the side of the vessel and land them on the wharf. It is also the practice of the owners to station a clerk upon the wharf, who takes a memorandum of the goods which leave the wharf, and the day on which they are taken away, for the information of his employers, in a book called the cargo book.—The cargo of the Lancaster was, on this occasion, unloaded in the usual manner, but the cargo book contains no entry in regard to No. 28, except a memorandum from the bill of lading, made in the margin, as is usual before beginning to unload, but which has no reference to the actual receipt of the same by the consignee, or on his behalf.</p> <p>It is agreed that the value of the crate, No. 28, be assessed at fifty^one dollars and fifty-three cents, which includes its proportion of custom house duties and other expenses,, and that the cargo book, plaintiff’s invoice, and bill of lading, shall be in evidence.</p> <p>Upon these facts, if the court be of opinion that the duty of the defendants required them to see that the said crate, No, 2S, after being landed as aforesaid, was received by the plaintiff, their judgment is to be entered for the plaintiff in the sum of fifty-one dollars and fifty-three cents; but, if the court be of opinion that the duty of the defendants did riot so require, their judgment is to be entered for the defendants, and the costs are to abide the event of the suit. If is further agreed that the case thus stated be considered-as a special verdict and subject to a writ of error, and that all questions of law be decided under the issue on the present Narr;—< whether the evidence shows a case of negligence or conversion.”</p>

<p>Writ of error to the District Court for the city and county of Philadelphia. '</p>

<p>Time does not begin to run against a privilege reserved in a deed, until some default, negligence, or acquiescence is shown, or may be fairly presumed, in the party in whose favour such reservation is made.</p> <p>Therefore a reservation of a right for the grantor his heirs and assigns, to raise, swell and dam the water of a stream, from a dam intended to be built on his own land, provided the same is not raised or swelled so high as to injure and damage the mill granted by the deed, is not barred, forfeited, or lost by the lapse of thirty-two years, from the' time the right was reserved, to the time of building the dam, in pursuance of that right.</p> <p>An injury to the grantor’s mill-race, is an injury to his mill, for which he is entitled to damages.</p> <p>Though the words of the deed be “ a dam,” &c., yet the substance of the reservation is of a privilege to overflow the land, without injuring the grantor’s mill, and whether this be done by one dam or by more than one, is not essential.</p>

<p>A difference between the sheriff ?s deed,' and the’ levy, Venditioni Exponas, and conditions of sale, in stating the number of acres contained iú a tract .of land, is unimportant. ' 5</p> <p>Though the conditions of sale are not essential to support an ejectment by the-sheriff’s vendee, yet being part of the res geste', they are admissible in evidence.</p> <p>An ancient deed, which has not accompanied the possession, is not admissible in evidence .without proof of its execution.</p> <p>The record of a judgment, sheriff.’s sale thereon, sheriff’s deed, and mesne conveyances to the party offering them, are not evidence, where no interest in the land sold by the sheriff, is shown in the defendant in the judgment.</p> <p>A defendant whose property has been' sold' by the sheriff,' cannot defeat the purchaser in obtaining possession, by connecting himself with one who may have a good title. .</p> <p>A judgment was confessed before a justice of the peace on the 11th of Aiígúst, 1823, for a sum exceeding one hundred' dollars. A transcript of this judgment was filed in the Cohrt of Common Pleas, on the 20th of the same month. The plaintiff afterwards took out an execution from the justice, which was returned—“No goods could be found to satisfy the demand:” a certificate to which effect was carried to the prothonotary’s office, together with a precipe for a Fieri Facias, on the 7th of April, 1824. The prothonotary instead of filing this certificate with the transcript already filed, filed and docketed it as a new transcript, and marked the execution as having issued upon it. Held, that all these proceedings must be taken together, as constituting one whole, and that, therefore, they were regular. But if they were not so, they could not be inquired into collaterally, the remedy being, if any error actually existed, by motion to th,e Common Pleas, before the sheriff’s deed is acknowledged; and it malcesno difference whether the purchaser at sheriff’s sale is the plaintiff in the execution or a stranger.</p>

This was a writ of error to the Court of Common Pleas of .Northampton county, which was returned accompanied by several bills of exceptions to the opinion of a majority of the court below, both in the#admission of evidence, and in thdir instructions to the jury.

<p>EJECTMENT.</p> <p>A mortgagee is a purchaser within the intent of the Stat. 27 Eliz. ch. 4.</p> <p>In Pennsylvania a voluntary conveyance is not void against a subsequent purchaser by force of the Stat. 27 Eliz, ch. 4.</p> <p>Under the act of assembly of the 18th of March, tTT5, a voluntary deed, duly recorded, is as valid against a subsequent purchaser, as a deed for a valuable consideration, provided it be untainted by actual fraud.</p> <p>A feme covert is, in respect to her separate estate, to be deemed a feme sole only to the extent of the potver clearly given by the instrument by which the estate is settled, and has no right of disposition beyond it.</p> <p>A power to appoint by any writing in the nature of a will or other instrument, under hand and seal, executed in the.presence of two credible witnesses, is well executed by a mortgage, though it contain no reference to the power. ■</p>

<p>A prothonotary complies, substantially, with the directions of the act of assembly of the 24th of February, 1806, when, in entering judgment on a bond with warrant of attorney j upon the application of the party, he enters on his docket the names of the obligor and obligee, in the form of an action, as parties, the date of the bond and warrant of attorney, the penal sum, the real debt, the time of entering judgment, and the date of the judgment on the margin of the record.</p> <p>An omission' by the prothonotary to enter on the record a stay of execution provided for in the warrant of attorney, is not such a neglect of duty or mistake in the prothonotary, as will work.a forfeiture of his official bond, and make him liable to the party for the amount due upon his judgment.</p> <p>A prothonotary who wilfully neglects any duty, is liable upon Ins official bond to any one who may be thereby injured.</p>

<p>If an assignment be made for the benefit of such creditors as shall execute a release within a given time, one to whom a debt is actually due, and who releases within the time, but afterwards takes up notes drawn and endorsed by him for the accommodation of the assignor, is not, entitled to a dividend of his estate upon the notes thus taken up.</p>

The auditor having reported a balance of one thousand five hundred and thirty-seven dollars and thirty and a half cents against the guardian, he filed the following exceptions to the report: Exception 1st.—That the auditor has charged the said guardian with the sum of five hundred and ninety dollars and ninety cents, (less one hundred and ninety-six dollars and ninety-seven cents, set apart as the proportion of dower, payable to the widow of Thomas Hughes,) as the amount of…

<p>On a writ of error to the District Court of York county, this appeared to be an' amicable action for money had ánd received by Michael Dowdel', Esq., sheriff of the county, for the use of John Hartman, the plaintiff.</p> <p>The following case (to be considered as a special verdict,) was stated for the opinion of the court below, on which judgment was rendered for the defendant.</p> <p>Case.</p> <p><{ On the first day of January, 1816, -Rudolph Spangler died, leaving among other children, Margaret, intermarried with John Hawk, and. leaving real estate, which was sold by William - Johnson and Barnet Spangler, administrators of the said Rudolph Spangler, deceased, (the heirs having refused to take the samé at the valuation agreeably to the provisions of the act of assembly,) on gales; after which the said John Hawk and his said wife Margaret, executed to John Hartman, the plaintiff, the annexed power of attorney on the day of its date, and for the consideration therein mentioned. And on the 1st day of January, 1820, the said John Hawk, deceased, and after his death, to wit, on the 31st day of January, 1823, there came to the hands of,the said William Johnson and Barnet Spangler, of the proceeds of the sale of the said real estate to be paid to the. said Margaret or such other person as was entitled to receive the same in her right, (as her'share in the hands of the said administrators,) the sum of ninety dollars, to recover which, a suit was brought in the Common Pleas of York county, by the said Margaret Hawk against the said William Johnson and Barnet Spangler; and on the 8th • day of JLugu'st, 1826, judgment was duly rendered in the said suit, for the plaintiff, for one hundred and nine dollars, being the amount of principal and interest; on which judgment, the.plaintiff issued a Fieri Facias, which \yas executed by the defendant as sheriff of the county of York, and on which he raised and has in his hands, to be paid to such person as may be entitled to receive the same, one hundred and fourteen dollars, which he refuses to pay over, the same being claimed by Margaret Hawk in her own right, and also by the said John Hart'man, by virtue of the annexed power of attorney. If the said power of attorney be sufficient to entitle the said John Hartman to the money in question, then judgment to be entered for the plaintiff for the said sum of one hundred and fourteen dollars, otherwise for the defendant.” • •</p> <p>The power of attorney referred to was as follows:</p> <p>“ Know all men by these presents, that we, John Hawk and Margaret, his wife, late Margaret Spangler, one of the heirs of Budolph Spangler, deceased, have made, constituted, and appointed, ana, by these presents, do make, constitute, and appoint, and in our place and stead, do place and depute our trusty friend, John Hartman, of the borough of York, tailor, our true and lawful at-' torney for us, and, in our names, for his use, to ask, demand, sue for and 'recover, and receive of and from Barnet Spangler and William Johnson, administrators of all and singular, the goods and chattels, lands and tenements, of the said Budolph Spangler, deceased, all such sum and sums of money, legacies, debts and duties Whatsoever, which now are due or hereafter to become due, out of and from the real and personal estate of the said deceased, until such time or times as he will be fully paid and satisfied, for the sum of seven hundred and forty-one dollars and eighty-one cents,for which sum he hath obligatipns, and the further sum of two hundred dollars which we are in due him, with lawful interest on the latter sum, if so much is or shall be coming to us out of the said deceased’s estate, and to have, use, and take all lawful ways and means, in our name or otherwise,.for the recovery thereof, by attachment, arrest, distress, or otherwise, and to agree and compound for the same, and acquittances or other sufficient discharges for. the same for us, and in our names to make, seal, and deliver, and to do all other lawful acts and things as fully in every respect as we ourselves could do if personally present, and attorneys one or more under him,for the purposes aforesaid to make, and at his pleasure to revoke, ratifying, and' allowing all and whatsoever our said attorney, shall in our names do or cause to be done in and about the premises by virtue'of these presents, and as soon as our ¿ttorney shall have received his just claims, to account with us for the same and irrevocable until that time.”</p>

Appeal by the defendant from the decision of Rogers, J., holding a Circuit Court for Berks county. Action of assumpsit. Plea non assumpsit. The suit was. to recover the alleged amount of militia fines in the hands of the defendant, as late deputy marshal.

<p>IX ERROR.</p> <p>A writ of error does not lie tó the Circuit Court.</p>

<p>. Appeal from the decision of the Circuit Court of Dauphin county.</p> <p>The accounts of the defendant’s, intestate, John- Passmore, who had been prothonotary of the Supreme Court for the Lancaster district, and of the Court of Common Pleas of Lancaster county, and clerk of the Orphans’ Court, Quarter Sessions, and Oyer and Terminer, in and for the county of Lancaster, having'been settled on the 18th of May, 1824, by the auditor general and state treasurer, who found a balance against him of eight thousand one hundred and ninety-nine dollars.and thirteen "and three quarter cents; he, on the 28th of July, 1824, entered an appeal to the Court of Common Pleas of Dauphin county, under the 11th section of the act entitled, “ an act to amend and consolidate the several acts relating to the public monies, and for other purposes,”- passed on the 30th of March, 1S11.</p> <p>On the 7th of April, 1S29, a verdict passed against the defendant in the Circuit Court for two thousand eight hundred and nineteen dollars and" sixty-seven cents.</p> <p>On the trial, it appeared, that John Passmore had been appointed prothonotary of the Suprémé Court for the Lancaster district and of the Court of Common Pleas for the county of Lancaster, and also clerk of the Orphans’ Court, and courts of Quarter Sessions and Oyer and Terminer, of the same county, on the 3d of January, 1S09. He continued to hold the office of clerk of the Orphans’ Court until the 6th of February, 1816, of prothonotary of the Supreme Court and clerk of the courts of Oyer and Terminer and Quarter Sessions, until the 4th of March, ÍS17, and of prothonotary of .the Court of Common Pleas until the 10th of Jpprilj ISIS. _ • • •</p> <p>_ Henry Beigart, was sheriff of Lancaster county from 'October, 1812, till October, 1815; and George Hambright was sheriff of the said county from October 1S15, till October, 1818.</p> <p>Among the items- contained in the account settled by the auditor general and .state treasurer, were- the following:' viz. -</p> <p>“ For amount of fees collected for Henry Beigart, formerly sheriff of Lancaster county,' - - #1,967,-87</p> <p>■ “For fees collected for George Hambright,late sheriff of Lancaster county, - #2,201,34</p> <p>These fees were received by John Passmore, in the course'of his business and during his continuance in office, for sheriffs Beigart and Hambright. During their continuance in office they had also received fees for Mr. Passmore. A considerable time after Mr. Passmore had gone out of office, he Settled .with these gentlemen, and then, and not until then, they respectively agreed, that these sums should be credited in his a'ccount against them. If appeared from Mr. Passmore’s return to the auditor general, which was read in' evidence on the trial, by the counsel for the common-ivealth, that he had repeatedly urged settlements at an earlier period tvith Mr. Beigart and Mr. Hambright, but could not accomplish his purpose on account of 'their embarrassments.</p> <p>The question for the decision of the court was, whether the two sums above staled, were taxable? The decision of the Circuit Court being against the defendant, he entered this appeal, because the judge instructed the jury that the plaintiff was entitled to a verdict for one half of the amount of those sums, when he ought to have instructed them that they were not liable to taxation.,</p>

<p>Appeal from the Court of Common Pleas of Dauphin county, under the act of assembly of the 16th of Jlpril,. 1827, “ relative to the distribution of money arising from sheriffs’ and coroners’ sales, &c.” (Pamp. L. p. 471.)</p> <p>From the record, the substance of the case appeared to be thus; Shuey, the testator, gave legacies to sundry legatees, among tho rest to Otty and wife, the appellants, all charged upon a tract of land. Otty and wife, to enforce payment of their legacy, having brought a suit against the executor, and obtained a judgment and sundry executions, procured the land to be sold by the sheriff; but as the money, when brought into court, was not enough to pay all the legaciés, Otty and wife claimed a preference and to have satisfaction in full of their judgment. The other legatees insisted upon a pro rata dividend among all. It appeared that an issue was directed or agreed upbn to' try the matter in dispute, and a verdict and judgment given against the preference asked for by Otty and wife. But they claimed interest on their dividend, alleging interest to be a legal consequence of the judgment in their favour. It was denied by the court below, and thereupon this appeal was taken.</p>

This ease came before the court oh a writ of error to the Court of Common Pleas of Lancaster county, in which it was a Scire Facias upon a judgment issued by the plaintiffs in error, The Bank of Pennsylvania> for the use of Jacob Echelman and Benjamin Ver'nor, against Jacob Winger and, Peter Reidebaugh, with notice to Catherine and Elizabeth Stoolfoos, As it appeared from the record, the case was thus:—Jacob Echelman, on the 9th of Jlpril, 1822, obtained a judgment against…

<p>APPEAL.</p> <p>It is competent to prove by the oath of arbitrators, that certain matters were not examined or acted upon by them, and that consequently, they had made a mistake in their awai’d.</p> <p>The plea of payment, with leave, &c., does not admit the truth of all the averments in the narr. or statement. It admits nothing but the execution of the instrument on which the suit is founded, and what is admitted by the general issue in every- action. It is a special or a general defence, as the no.tice given under it makes it one or the other.</p> <p>Where the plaintiff removed the cause to the Circuit Court, and recovered less than one hundred dollars, and offered no evidence to prove a demand exceeding five hundred dollars, and it was apparent that under the circumstances of the. case none could be offered, the court ordered the plaintiff to pay the costs. - • •</p>

On the return of a writ of error to the District Court for the city ■and countyof Lancaster, it appeared from, the three bills of exceptions which came up with the record, that this was an action of debt on a recognisance, brought in the name of the Commonwealth, for the use of Jacob Mishey, Samuel JBasler, Michael Brenneman, jr., and Thomas Eagar, assignees of Christian tongenecher, jr., administrator of Feronica Longenecher, deceásed, late wife of said Christian, and who…

This was a proceeding under the act of 6 th of April, 1802, by David Cooke against George Éeinhart, Henry Cassel and Abraham Cassel, to recover possession of a tract of land, &c. in Donegal township, sold by the sheriff on an execution against Henry Cassel. The purchaser was John Roberts, who by deed, bearing date 25th of August, 1821, conveyed the premises to the complainant.

<p>IN ERROR.</p> <p>No writ'of error lies to the opening of a judgment by the court below. It is a matter depending on the sound discretion of that court, who are not prevent- . ed by lapse of time, from affording relief.. . .</p>

<p>On the trial of this ejectment, before his Honour Judge-SMira, at a Circuit Court held for Schuy lkill county, the plaintiffs, Richard Rickert and John Reed, after having shown title to the premises in controversy in Jacob Boyer and David Shubert, and a deed, bearing date the 3d of Jipril, 1815, from Boyer dnd Shubert and their respective wives, conveying the premises in fee simple to John Hughes, for the consideration of seven hundred and seventy-five pounds, gave in evidence the, following agreement:-?—</p> <p>- *‘Agreement made this 27th day of May, in the year of our Lord, 1815, between Jeremiah Reed of Manheim township, Schuylkill county, of the one part; and John Hughes, of the township of Schuylkill, county aforesaid, of the other part, witnesseth that the said Jeremiah Reed doth agree, and by these presents has agreed-with the said John Hughes, to go his bail in a certain bond, payable to Jacob Boyer ', of Montgomery county, and David Shubert, of the county of Lehigh, in the sum of eight hundred pounds, payable on the 10th day oí Jipril, A. D. 1817; together with three years interest;- on the same; upon which bond the said John Hughes is to receive a title fora certain tract of land, situate on the old Sunbury road—it being formerly Melcher Shubert’s plantation, now in the possession of John Deatrich, on the following conditions, that is to say: That the said John Hughes is to deliver the said title into the possession of the said Jeremiah Reed, as a pledge for his services for going the said bail, .and nothing else; the said title to remain in the hands of the- said Jeremiah Reed, until the said bond is paid, or other security, for the payment of the same, such as shall be deemed sufficient by any three disinterested and reasonable freeholders, and no longer: and it is further agreed, that if the said Jeremiah Reed is compelled to pay the said bond when due, the said John Hughes is to pay the damage the said Reed sustains by the payment thereof: and it is further agreed, that if the said Reed detains the said title longer than the said Hughes offers to comply with the said agreement, then, in that case, the said Jeremiah Reed is to pay all the damage the said Hughes sustains by the said detainer. In witness,” &c.</p> <p>To July Term, 1817, Jacob Boyer and David Shubert brought suit against John Hughes and Jeremiah Reed, upon the bond mentioned in the article of agreement, on which they obtained judgment. Jeremiah Reed having died, a Scire Facias issued against his executors. Judgment was rendered in the Scire Facias; on -which execution’ issued, and a levy was made on the land in dispute, which was condemned. To. a Rlúries Venditioni Exponas, the sheriff returned,-that it remained unsold for want of buyers. - A judgment was likewise obtained by Richard Rickert against Jeremiah Reed for one hundred and twelve dollars, upon which- sundry executions were issued,-under which the land now in dispute', was sold by the sheriff to Richard Rickert and John- Reed, the present plaintiffs, for four hundred dollars, who received' the sheriff’s deed for the siame. The plaintiffs also proved, that the debt, interest, and costs, due in the suit brought on the bond for eight hundred pounds, given by John Hughes and Jeremiah'Reed to Jacob Boyer and David Shubert, mentioned in the-agreement, had been satisfied out of the estate of Jeremiah Reed. ■ '</p> <p>The defendant,'among other things, proved, that there was, on the 8th of February, 1829, due to Elizabeth Hughes, the wife of the said John Hughes, from Jeremiah Reed, as executor of the will of the-said Elizabeth’s father, the sum .of four hundred and seventeen pounds three shillings and four-pence, with interest from the 1st of November, 1818,. , , ...</p> <p>His Honour was requested by the defendant’s counsel to charge the jury upon several, .points which they submitted to him, all of which presented the same question, viz. Whether-by virtue of the agreement of the 27th of March, 1815, Jeremiah Reed had such an interest in the land in dispute, as made it liable to be levied on and sold for his debts ?.</p> <p>The opinionof the judge was in favour of the plaintiffs, for whom the jury found a verdict, with this.condition, “ That if the,defendant shall pay to-’ the executors of Jeremiah Reed, deceased, the sum of fifteen hundred dollars, on or before the 30th day of October, 1829, and- pay the costs of this suit, the verdict and judgment be taken off, andjudgment.be entered for the defendant.”</p> <p>■ A motion, made by the defendants counsel, for a new trial, and in arrest'of judgment, having been overruled, an appeal was entered.</p>

<p> IN ERROR-. </p> <p>An agent of a corporation, who has received money for its use,, cannot, in an action for money had and received, brought against him by the corporation, ■ prove, by way of set-off, that he has paid the debts of the, corporation, without showing a Special authority for that purpose. And it is not enough .to prove, that the defendant acted for the treasurer, without showing some resolution. of the board, giving the treasurer a right to delegate his power tp the defendant. - ' '</p>

<p>'IN ERROR.</p> <p>Where it did not appear how long the defendant in an ejectment had been in possession of the land in dispute, a lessee of the plaintiff, under an old lease, who.had pi'ob'ably been ouf of possession twenty years "or more, and against whom no suit had been brought, was held, in the absence of further evidence to. presume liability for mesne profits, not to b.e incompetent- as a witness for the plaintiff, on the ground of-interest.</p> <p>Though the acts of a deputy surveyor, done for the benefit of A., cannot be given in evidence by him, in support of his own claim, without producing the authority under which the deputy acted, yet the unauthorized act of .the deputy,- done, or attempted by the procurement of A, may be given in evidence by B. to show the invalidity of A’s. title.</p> <p>Where a book, purporting to be a book of a deputy surveyor, containing his field notes of a resurvey, had been frequently in evidence before the court, and three times in the very cause under trial, without any question, and- no proof of hand-writing was called for, but it was objected to.on other grounds, held,_ that it was not error to permit, it to be read to the. jury, without proof that it wás the book of the deputy surveyor, or of his hand-Writing. -</p>

<p>Writ of error to the Court of Common Pleas of Dauphin county.</p> <p>The Philadelphia Bank was plaintiff belo.w, and;-sued on the following note, endorsed by Kapp, and discounted by the bank:—</p> <p>“Harrisburg, December 12th, 1814.—Sixty days after date, I promise to pay to Michael Kapp,-ox order, at the Office of Discount and Deposite, Harrisburg, without defalcation, fifteen hundred dollars, for value received.</p> <p> u Samuel Laird.” </p> <p>1 It was in evidence, that Fahnestock, the president, on the day of payment, the 13th of February, 1815, after the board of directors had broken up, seeing Kapp, told him that the note was not renewed; that he, Kapp, had betterrenew.it, or the note would be under protest; to ¡which Kapp answered,.that he would endorse no more for Laird. ' It also appeared, that Carson, a clerk in the bank, ■ on the same 13th of February, after bank .hours, by directiomof the cashier, took-the note to Kapp tó' demand payment, or a renewal, when he replied, that he would do nothing in it; that afterwards, on .the same day, Carson carrie'd the note to a notary public, who then protested it.. The notary neither gave nor sent any notice to Kapp: but, the rtext day, the 14th, the same clerk, by the direction of the cashier, went to Kapp, and told him the note was protested, and requested him tp pay it off, or have.it renewed. Before the note became due, Laird, the drawer, had died, and administrators of his estate had been, appointed. ,</p> <p>On the trial, the plaintiff below requested the court to charge the . jury as follows:—- •</p> <p>“ 1. That, when' the note is payable at a particular place, such as a bank,' and on a particular day, and the endorsee was there until the'bank closed, at the usual.hour of closing the bank, on the day it fell due, ready to receive payment, no further demand on the pro-miser is necessary to charge, the endorser. , '</p> <p>“2. That there,is no particular form of notice, to the endorser of a note, prescribed by law; it is enough if-under all circumstances it puts him on inquiry; and this-may be as well a verbal as a written notice; and this notice may be given by any person authorized to give such notice; and that the agency of a notary public is not necessary to give such notice, nor is it his duty to do so.</p> <p>“ 3. That a protest of a promissory note, or inland bill of exchange, and notice thereof, are not necessary to charge the endorser ■—This doctrine only applies to foreign bills of exchange.</p> <p>“4. Here the defendant lived in the town’where the bank was held; no written notice was necessary; verbal notice in this case was more regular.</p> <p>“ 5. That the act of assembly, incorporating the Philadelphia Bank, and which places notes,' or bills discounted at that bank, on the footing of foreign bills of exchange, applies only to the case of defalcation,, and- does not alter the nature of the promissory note, so as-to require a protest, as in case of á foreign bill of exchange.</p> <p>“ 6. -That this suit is founded on a promissory note, payable at the Office of Discount and Deposite at Harrisburg, where both the drawer and endorser lived—and verbal notice was given by John Carson, a clerk in the bank; after the bank closed, on the same day the note fell due, by presenting the same to the endorser, Michael Kapp, the defendant in this cause, that the note was not paid; and a request to pay the same, or renew it with another note, was made, which was sufficient to charge the endorser without protesting the note, or producing a copy of a protest of the same note to the endorser. . ‘</p> <p>“ 7. That it having been proved in this cause by the notary public, that the note was regularly protested on the day it fell due, and after the hour of closing the hank, notice: of which protest was given to the defendant on the next'day, by a regular-clerk of the Office of Discount and Deposite, this is sufficient notice in lav;,-to charge the endorser, without producing the protest to him.”'</p> <p>The court, in their charge to the jury, among other things, stated, “ That demand o.f payment of a note at the Office of-Discount . and Deposite, is sufficient, if the note is drawn payable at the said office, for in such cases, the payment of the note at the Office of Discount and Deposite, is part of the contract. .But where no time and place, are fixed for the payment of a note, then theré must be a demand on the drawer.</p> <p>“If-the Office, of Discount and Deposite was the owner of the note, and held the -note on the day, and at the place mentioned in it for payment, and was ready to receive the. money, notice to the .drawer to pay it was not necessary, nor was a demánd on the administrators of Mr. Laird, (who died before the note fell due,) necessary: a notice, by the clerk of the Office of Discount and Deposite, sent for the purpo-se, to the endorser, of the default of payment by the drawer, is good notice if it be given in due and proper time.</p> <p>f‘ Verbal notice is sufficient—a written notice is not necessary.' No form of notice to th,e’endorser is prescribed by law. All that is necessary is, that he should have such notice, either verbal or written, given in time, as will inform him, of the default of payment by the maker or drawer, so as to put him on an inquiry, and prepare him to pay it, or defend himself. .</p> <p>“No protest was - necessary,; and notice of a.protest was not required or necessary to be given to Michael Kapp. It is sufficient if the endorser receives notice in a reasonable time, of the non-payment of the note by the drawer. The provision in the third section, article tenth, of the act incorporating the Philadelphia Bank, 4 Smith, 153,153, which places notes discounted by the bank, ‘ on the same footing with foreign bills of exchange,’ is for the purpose of preventing a defalcation or set-off by the drawer against the endorsee, of such equitable matters and circumstances to -which the note was subject in "the hands of the- endorser. 3 -Dali. 363. A protest is not essentially necessary to enable the endorsee of-a note to recover; but is indispensably-requisite in the case of a foreign bill of ex- ■ change. . -</p> <p>“ It is contended. by the defendant’s counsel, ‘ that there is no evidence that Mr: Laird, or his administrators, had not. funds in the Office of Discount and Deposite, to meet the payment of the note.’ There is evidence of a protest of the note; and this protest ns,prima facie evidence of the fact that there were no funds there: if there were funds there, it lies on the defendant to show the fact.</p> <p>“And although'this protest is stated to be made at the request of the Office of Discount and Deposite,’- this does not render the protest void; for it is. not necessary that it should be stated, that it was made at the.request of the Philadelphia Bank. Nor does the delay in bringing suit, for two years, in law, discharge the endorser.</p> <p>“Did Michael Kapp receive notice on” the 13th oí-February, .1815, that the note was -not paid? This is a fact for the jury to ascertain from the evidence. If Michael Kapp did not receive such notice on. that day, he would be discharged from his liability as endorser. If.'.he did receive such notice on that day, he will be liable for the- payment of; the ■ note. As- he lived in the same town-with.the other parties, notice .ought to have been given on the same day, the 13th of February, 1815; for the earliest, notice ought to be given. Notice given on the .next day is not sufficient.”</p> <p>The counsel for the plaintiff excepted to the charge of the court on the seventh' point,.and the residue.of the charge.was excepted to by the counsel for the defendant. The-verdiqt was for thd plaintiff, and the defendant took a writ of error.</p> <p>’ The following errors were assigned in this court:—■</p> <p>“1. That the court "erred,-in law, in charging the-jury on. the plaintiff's points, Nos.' 1, 2, 3,4, 5, and 6.</p> <p>“ 2.' The court gave it as the law,, that no protest was necessary to eharge’the endorser, and create a liability in him to pay,' •</p> <p>“3. That there was no demand of payment of the note made of the payer, Samuel Laird, or of his representatives, when the note fell due; -and, no notice of a demand of, and non-payment by the payer, given to the endorser, as required by law;, and, that the statements filed in the cause, set out no cause of action.</p> <p>“ 4. That the court erred in their general charge to' the jury, in stating, that demand of payment-of a note, at the Office of Discount and Deposite, is sufficient) if the note is drawn payable at the said office: that if the Office of Discount and Deposite was the owner of the note, and held the note on the day, anti at the place mentioned in it for payment, and was ready to receive the . money ? notice to the drawer to pay it was1 not necessary; nor was a demand on the administrators of. Mr. Laird,(who died before the note fell due,) necessary; and, that a 'notice by the clerk of the Office of Discount and Deposite, sent for the purpose to the endorser; of the default of. payment by the drawer, is good notice, if it be given in due and proper time: That no protest.was necessary; and notice of a protest was not required; or nécessary to be given'to Michael Kapp; and it is sufficient if the endorser r'ecei'ves notice in a reasonable time of'the non-payment of the note by the drawer. And that the proyision in the third section,, article tenth, of the act incorporating the Philadelphia Bank, 4 Smith, 152,' 153, which places notes . discounted by the bank, fon the same footing with foreign bills of exchange/ is for the purpose of preventing a defalcation, or set-off by the drawer against the endorsee, of "such equitable matters-and circumstances to which the note was subject in the hands of the endorser,” &c. -. .</p>

This was an appeal by the defendant from a decision of Tod, J., at the Circuit Court in Dauphin county, setting aside, on motion of the plaintiff, a rule of reference and an award of arbitrators. The action was by summons in debt on bond, not exceeding five thousand dollars.

<p>IN ERROR.</p> <p>It is the duty of the court to answer fully the points upon which they are requested by counsel to charge the jury. But it is not necessary that they should answer the propositions submitted, in the very words of the propositions. It is enough if the answers be sufficiently full to be understood.</p> <p>Nor is it necessary, where the same proposition is repeated, though in different words, to answer every repetition of it. One full answer is enough.</p> <p>To the following propositions:—-l.- That a conveyance, .made with á view to defeat creditors, is fraudulent and void; 2. That a debtor cannot give his property to his children to the injury of his creditors.; 3. That a debtor cannot provide for the maintenance of himself and his wife out of his property to the injury of his creditors; and every instrument of writing, or conveyance, for such purpose, is void as to creditors; 4. That if the jury were of opinion, that the debtor had conveyed his property to,his children for the purpose of preventing his' creditors from levying upon it, the conveyance is fraudulent and void as to creditors; 5. That if the conveyance of the debtor to his children was, in the opinion of the jury, for the purpose of preventing his creditors from levying on the premises, the plaintiff (who was a purchaser under a judgment against the debtor, and brought ejectment to recover the premises,) was entitled to recover in this suit—it is not sufficient to answer, “ That no act whatever, done to-defraud a creditor, or creditors, shall be of any effect against such creditor or creditors.”</p> <p>If a deed be made by a parent to his children, on condition, that the grantees shall support .the grantor for life, the consideration is a good and honest one between the parties themselves;, but, if it be made with a view to hinder or defeat creditors, it is fraudulent and void as respects them.</p>

<p>Writ of error .to the District Court for the .city and county of ■Lancaster, in which .the plaintiffs in-error, David Myers and Henry Myers, assignees of Peter Myers, brought an action of trespass, vi et armis quare clausum fregit, against the defendant in error, William White, Esq., high sheriff of the county of Lancaster,</p> <p>From the record it "appeared, that Peter Myers, the assignor, on the 1st of Jlpril, 1822, executed a mortgage to Jacob Gray-bill and Jacob Johns, to secure the payment of 4,500 dollars, which was recorded on- the tenth of the same, month. No proceeding was had upon it until the 8th of January,, 1825, when a' Scire Facias was issued, to which defence was taken; and on the 21st of March, 1825, an award of arbitrators was entered in favour of the plaintiffs. No appeal having been" entered, a Scire 'Facias issued on the 19th of Jlpril, 1825, returnable to Jlugust Term, by virtue of which, the mortgaged .premises were sold on the 18th of May, 1825. In- the.mean timé, viz.- on the 15th of January, 1825, Peter Myers assignéd all his property, real, personal, and mixed, for the benefit of all his- creditors, except Gray bill and! Johns, the mortgagees. The trust was accepted by "the assignees, and the assignment recorded on the day of its date. Upon" the Levari Facias, issued by the mortgágees, their counsel endorsed, a direction to the sheriff “ to levy and sell the mortgaged premises, together with the grain growing thereon.” Upon the day of sale, the assignees were present, on the premises; and gave public written notice of the assignment; in which they stated, that they had let the'plantation, &c." assigned to them for the term of one, year from the 1st of Jlpril, theft last past, for rent taken in advance, and claimed to hold the said rent, and. also, the grain in the ground, as personal estate, agreeably to the true intent and meaning of the said deed. Notwithstanding this notice, the sheriff; who was indemnified, sold the grain with the mortgaged premises, and for this injury the present action was brought. One. of the plaintiffs, as assignee of Peter Myers, received the balance which remained in the sheriff’s hands, after payment of the mortgage.</p> <p>On the trial, seven legal propositions ivere submitted to the court for their opinion,, by the counsel for the plaintiffs, and'nine by the counsel" for the defendant, all of which, however, may be resolved into three questions. , •</p> <p>1. Whether or not, the sheriff was justified by his writ, in selling the grain growing on the mortgaged premises?</p> <p>2. Whether or not, the: plaintiffs were estopped from contesting the validity of the sale, in consequence of one of them having received from the sheriff the balance, of the money in his hands ?</p> <p>3. Whether or not, an action of trespass guare clausum fregit, could be maintained by the plaintiffs against, the sheriff, upon the facts proved in this case"?</p> <p>Under the direction of the court, the jury returned a verdict for the- defendant-, and judgment having been rendered upon it, the plaintiffs removed the record by writ of error.</p>

<p>IN'ERROR.</p> <p>The confirmation of an administration account, like any other decree of the Orphans’Court, cannot be re-examined but fay way of review.</p> <p>But the parties may so modify the balance as to render it necessary to unravel the account, to give effect to their agreement. ■</p> <p>A release by the persons beneficially interested to one administrator, of every thing but certain parts of the estate in the hands of the other administrator, which are specially excepted, is valid, and is to be carried into effect according to the intention of the parties; and it is competent to the parties interested, to give extrinsic evidence in relation to the- parts excepted, notwithstanding the confirmation of the administration account.</p>

<p>Writ of error to the Court of Common Pleas of Lancaster county. ■' ' '</p> <p>The trial in the court below was between Daniel Eeitenbach, plaintiff, and Peter Eeitenbach, defendant. It was to test the validity of a judgment entered on a bond'and warrant of attorney, which Peter, when he was about to become insolvent, had given to Daniel, his son. This judgment having been opened on the application of Peter’s'creditors, who carried on the defence in Peter’s name, and who alleged fraud between the father and son; they proved by a witness, some declarations by Peter, made in Daniel’s ' presence and hearing, and without any contradiction by Daniel, that the judgment was given to keep the creditors off; that no one could push, and that it toould be a scare-crow. The creditors next proposed to prove, by the same witness, other declarations by Peter, that the sole' purpose of the bond was to keejp off creditors, and that it was without consideration.. But these declarations not appearing to have beén.made in the presence of 'Daniel, and not being proved to have been assented to by him, were, therefore, objected to on the part of Daniel, and overruled by the court; which formed the ground of the first, bill of exceptions. 2. The creditors then offered to prove, that- on a sale by the sheriff of the goods of Peter, the father, Daniel, the son, claimed, and retained as his own property,' a- number of articles which had been levied on. This was objected to, and overruled-by the court, find a second bill of exceptions thereupon taken.</p>

<p>Error to Lancaster county.</p>

<p>Error to the Court of Common Pleas of Lancaster county.</p> <p>The plaintiff in error was plaintiff below. The cause came into the Court of Common Pleas on an appeal by the defendant from the judgment of a justice; and the declaration was for goods, chattels, and merchandise, sold and delivered. The allegations of error, material to be stated, were, 1st, That when the plaintiff offered, to .prove, by John Evans, “ That on the 8th of June, 1807, in pursuance of an order from James Caldwell, he delivered to Robert Thompson, the defendant’s testator, three hundred bushels of wheat that was stored in his store-house, the property of James Caldwell, the plaintiff, and that the price of wheat- was then, one dollar and four cents a bushel; and also, that the defendant admitted the plainr tiff’s account to be correct and right:” the court overruled the evidence which-had been objected -to, on the ground, that it presented a totally different'cause of action from the one.decided by the justice. A balance only of forty dollars and interest, were claimed to be due on the sale of the wheat. ■ .</p> <p>• 2d; The plaintiff then offered, in connexion with the proposed testimony of John■ Evans, the docket of the justice, now in the hands of his administrator, to show; that the return.of the justice upon the transcript, is not in conformity with the docket, and that stating the demand in the said transcript to be for a chair, is a mistake, as no sueh.de'mand is stated in .the docket. And, in connexion with that' evidence,- he also Offered' the affidavits of the plaintiff, and of Boughman, the administrator of the justice, to establish the mistaké, and then applied for permission to' amend the transcript of the justice by thfe. docket. All these matters were rejected by the court, and bills of exceptions taken thereupon. Among other things, it was alleged by the counsel for the defendant, that the docket entry itself, had been altered. The original transcript was as follows:— •</p> <p>“James Caldive.ll, Esq. v. Andrew</p> <p>T/iompson, Executor of James</p> <p>Thompson, deceased.</p> <p>Summons, on demánd not exceeding one hundred dollars; debt by book account for a chair, sixty-four dollars and fifty cents. The defendant appeared July 27th, 1816. The constable not having notified the plaintiff^ continued to July 27th. At 2 o’clock the said da}?, the plaintiff appeared. On hearing, judgment for the plaintiff for sixty-four dollars and fifty cents, by default, the defendant not appearing, with costs of suit; Judy 27th,'A; D. 1816; justice’s fees sixty-two and a half cents, constable’s seventy-five cents. ” ■ . .</p> <p>The justice added to the original transcript as follows:—“Mistake; defendant’s testator’s name is Robert instead1 of James, and is so stated on my docket,”</p>

<p>Appeal from the Circuit Court, held by Gibson, C. J., in Mifflin . county.</p> <p>The original action was an ejectment in the' Court of Common Pleas of Mifflin county for a tract of land in Lark township, containing two hundred and five acres, or thereabouts, brought by Jllexander Innis and Rebecca, his wife, and James M‘Kennan and Margery, his wife, against John Campbell and David W. Huling.</p> <p>The evidence given on the trial was long, and somewhat complicated. It is sufficient, in order to understand the decision of the court, to state, that the plaintiffs asserted a legal title to the premises, founded partly on a chain' of conveyances, and partly on au undisturbed possession of twenty-four years before the action was brought, and of twenty-nine years before the trial. One k'dk in the chain of title was a deed, dated August 15th, 1805, from Andrew Wallace and Eleanor, his wife, to James Wallace; the execution of which was certified by the President of the court for the first circuit, Warren county, in the state of Ohio, to have been proved .before him by the oaths of’ the two subscribing witnesses. The certificate was signed by the judge, and a scroll for a seal was annexed.</p> <p>On the 7th of January, 1814, articles of agreement, under seal, were executed between Thomas Jackson under whom the plain-' tiffs claimed,.and John Cummin, by which the former “ bargained and sold”, to the latter the land in question, at twenty dollars per acre; the said Cummin to take the land at what the draft calls for, and to pay one half of the whole amount of the land on the 1st of April following, and to give bond with good security for the payment of the balance, to be paid annually in instalments of four hundred dollars each. The vendor to deliver to the vendee íC a clear patent on the 1st day of April, 1815;” on which day the first payment of four hundred dollars was to be made. The first payment was punctually made; the subsequent instalments were not paid, nor tendered, nor were any bonds tendered.</p> <p>The jury found a verdict for the plaintiffs, to be released on payment of two thousand five hundred and sixty-nine dollars and seventy cents, the full amount of the balance of purchase money and interest.</p> <p>Á motion for a new trial was made on the part of the defendants, and several points made. The motion was overruled, and the defendants appealed to the Supreme Court; where the cause was argued by Potter and Hale, for the appellants, and .by Blythe and Blanchard, for the appellees.</p>

<p>This cause was tried before Tod, J. at the Circuit Court of Northumberland county in Jlpril, 1828, when a verdict was rendered for the plaintiff. A motion, made on behalf of the defendant for a new trial having been overruled, this appeal was entered.</p> <p>The action was covenant, brought by Jacob Seitzinger, administrator of Daniel Strohecker, for the use of Daniel Drinkel, administrator of John Garner, against Marlin Weaver, administrator de bonis non, cum testamento annexo, of Thomas Grant, whose executors had been discharged,from their officé. The declaration was upon articles of agreement, dated the 26 th of Jlpril, 1815, by which the said Thomas Grant agreed to sell to the said Daniel Strohecker, a certain tract of land, and contained a proferí of the agreement. Thé plea was non est factum,.' The instrument having been lost, the plaintiff was permitted on the trial, though opposed by the defendant’s counsel, to prove its contents. It appeared, that by the terms of the agreement, five hundred dollars of the purchase money were to be paid in three weeks from its date; half the residue, in the following October, and the other half on the first of the following April. It contained no covenants except those which'might ax’ise from the words .“grant, bargain, and sell.” On the' agreernent was the following endorsement:—■ •</p> <p>“ I do agree to convey tó D. Strohecker the within described tract of land in fee simple. 13th of May, 1815.” Signed Enoch Smith.</p> <p>Thomas Grant, after, having received from Daniel Strohecker four hundred and ninety dollars of the purchase money, died, without haying executed a conveyance. He left a will, hy which he empowered ‘ his executors to sell his real estate for the payment of his debts and the education of his children. Daniel ’Strohecker took no measui’es to have the title perfected; but, on the 14th of June; 1816, the executors of Grant executed a deed, with genei’al warranty for the premises contracted for, to John Gar ver, the father-in-law, and. John Strohecker, the father of Daniel, who paid the residue of the purchase money. A partition' of the land was afterwards made between John Garv.er and John Strohecker. To April Term, 1820, an ejéetrhent was brought by Rebecca Stedman against John Johnson and Daniel Strohecker, to recover a part of the tract above-mentioned. It appeared, that on the 15lh of March, 1792, William C'oo/eand Thomas Grant.had contracted, by articles of agreement, to convey a tract of laiid to James Stedman; but the evidence did not show in what manner Rebecca’s title, was connected with this agreement. On the 23d of January, 1822, she had judgment for eighty-nine acres and Seventy-nine perches, of which possession was delivex’ed to her on an Habere Facias Possessionem. In the mean time, John Garver died) and on the 29th of April, .1820, his heirs conveyed that portion of the land, which in the partition had been allotted to him, and which included the land afterwards recovered by Rebecca Stedman, to George Kre«xer, who retained part o.f the pui’ehase'money to await the.event of the ejectment brought by Rebecca Stedman. A suit was aftei'wards commenced -by Kremer against the, executors of Thomas Grant, in which a judgment was confessed on certain terms of compromise between the parties, in full satisfaction of damages on the warranty. . ■ ■■ "</p> <p>The following were the x’easons filed in the Circuit Court for a new trial:—: ’ . ' , - . -</p> <p>, . “1. Because the court admitted evidence of the existence and loss of the article of agreement declared on, upon the plea non est factum, the declaration containing a proferí:</p> <p>“2. Because the court admitted the deed of the executors in evidence, no connexion having been.shown before or after the ad- . mission, between Daniel Strohecker and the grantees in the said deed. ' ■ ' -</p> <p>“ 3. Because the estate of Thomas Grant could be made liable in no other way upon the agreement, than by proceeding to prove the contract under the act of assembly providing for the .proof of contracts made by decedents. • ' ' ■</p> <p>“ 4. Because the plaintiffs showed no breach of the acts in the articles in the lifetime of Thomas Grant, or afterwards, and' did ' not show any act of Thomas Grant encumbering the estate.”</p> <p>And because the court erred in their charge to. the'jury in the following particulars:— . ;</p> <p>“ 1.' In leaving it to the jury to infer, that the eviction of part of the land by Rebecca Stedman, was founded on-the agreement' between Tilomas Grant and James Stedman, the evidence being , contrary.</p> <p>“2. In stating to the jury, that the words 1 grant, bargain, and sell,’ in the articles declared on, were sufficient to sustain this action.</p> <p>“ 3. In stating, that the article of agreement was not merged in the subsequent deed by the executors,</p> <p>“4. In stating, that this action could be sustained for the use of Seitzinger, administrator of Garver, when there was no evidence whatever of any connexion between the said Garver and Daniel Strohecker. • '</p> <p>“ 5. In stating, that on the evidence exhibited, the arrangement made by the executors of T. Grant with George Kremer, and the confession of judgment to Kremer in satisfaction of- the warranty, amounted to nothing. ■</p> <p>“ 6. In stating, that the article declared on, was a deed within the provisions of the act of assembly, and not .merely an executory contract. . - . .</p> <p>“7. In instructing.the jury,'that the measure of damages was the purchase money of the land, with interest on the same from the time of eviction.,</p> <p>“ 8. In saying the plaintiffs could recover in this- action,—and because the verdict was against law and evidence.” '</p>

<p>Appeal from the Circuit Court of Huntingdon county, held by Smith, J., August 18th, 1828.</p> <p>The action removed from the Court of Common Pleas, wg.s an ejectment for a tract of' land in Springfield township, brought by Elizabeth Ripple, and Catharine Ripple, and the overseers of the poor of Shirley township against Peter Ripple, John Cook, and Charles M'-Gee. The two women were idiot's, the daughters of Philip Ripple, and were supported by the township. Their father being desirous of purchasing the tract of land in question, wrote a letter, .dated February 8th, 1813, directed to his brothers-in:law, John Shaver and Peter Shaver, sons of Nicholas Shaver, who had been owner of the property, intimating his desire to make the purchase, and authorizing his son John, the bearer of the letter, to. conclude the bargain; but, before the return of the son, the father sickened and died. His will bore date February 15th, 1813, and appeared to have been proved on the twenty-third, of the same month, in the County Court of Jefferson count}', Virginia, where the testator resided. The probate was certified by the clerk of the court, under his official seal, and the presiding justice of the same court, certified under his hand and seal,- that the individual was clerk of the said court, apd that his attestation was in due form of law.</p> <p>The .will, so far as it is material to. the present case, was in these words:—“First. It is my will, and I desire' that the articles of agreement that I entered into with George Reynolds, sen. on the 8th day of February, 1813, for the premises I live on, and the other articles therein mentioned, shall be complied with by my executors hereinafter mentioned.</p> <p>11 Item. And if my son John should have articled for-the land that belonged to my father-in-law, according to a letter I wrote to the executors of his estate, it is my will, that the title is to be made in manner and form as follows, that is, if he has articled for the two places I wrote to them I wished to purchase, the tract on which my father-in-law lives; it is my will that the title should be made to my sons John and Philip; the title for óne-foúrth part of the said tract, at thé upper end, is to be made to my son John, his heirs, and assigns for eyer, and the other three parts is- to be made to my son Philip, his,heirs and assigns, for ever. And my son John is to pay two hundred and eighty pounds towards the said lands; and, my son Philip is to keep and provide for my beloved wife, and my two eldest daughters, Catharine and Elizabeth, during their natural lives. And my son John is to have my wife’s share of her father’s moveable estate, to be paid-in part of the two hundred and eighty pounds that he is to pay towards the said land'. It is my will, that if my son John has articled for the other .place, directed in my letter, the title for the said lands is to be made to my sons Peter and Lewis, them, and their heirs,‘and assigns, for ever. And the said Peter and Lewis is to pay my youngest daughter, Susanna, eighteen pounds every year, until she arrives to the'age of eighteen years; my sons Peter and Lewis is to pay three hundred pounds to her, her heirs, and assigns; and, if the last-mentioned tract -should not be purchased, the money- left of my estate, after paying for the first-mentioned tract, is to be equally divided between my sons Peter and Lewis, and my .daughter Susanna;- and if neither of the tracts are not purchased by my son, according to my letter, the articles first-zhentioned between me and Reynolds, is to be null and void; and the place whereon I now live, is to.be held by my beloved wife and children until my youngest arrives to her lawful age, and then it is my will, that it shall be sold by my executors, and divided as follows, in the znanner and proportions I had ■ allotted the lands to be divided: the tract on which my father-in-law lived was supposed to contain two hundred, and sixty .acres, at eighteen dollars per acre, and the other place, was supposed to contain the same number of acres, at ten dollars per acre; and if my son should have made the purchase herein mentioned, it is my will, that all my moveable property shall -be sold, excepting, &e., and the money arising from the sale of my moveable property, is to pay my debts, and the residue, if any, after my debts are paid, is to be appropriated to the paying for the lands herein mentioned. It is lhy will, and also my meaning, that the’plaee whereon I now'live, is to be held under the above .conditions, (that is'to say,)-that my son Philip is to work the land, and pay a rent of one-third, for the use of my beloved wife and three daughtei’s herein named. It is my will, that Martin Beltmire and George Reynolds, jr, be my executors,” &c. •</p> <p>An article of agreement, dated February ,-1813, between Peter Shaver and John Shaver of the onespart, and Philip Ripple of the other; (not signed,) for the sale of- the premises in question, was next given in evidence, though objected to by the defendants’ coun- . sel. After the death "of old-Philip Ripple, an agreement for the sale of the place was entered into between P. and J. Shav.er, as administrators of Nicholas Shaver, and Martin Bellmire and -George Reynolds, executors of Philip Ripple, dated March 3d, 1813, the reading of which was objected to by the defendants, but admitted by the court;. The purchase money was .paid by the executors of Philip Ripple to the -administrators o'f Nicholas Shaver, whose heirs afterwards, in' pursuance of the last-mentioned agreement, executed á deed for the premises to Philip Ripple, the devisee. Philip Ripple leased the property to Peter Ripple, who was “ to keep the two girls, Catharine and Elizabeth Ripple.” Oh the 4th of March, ' 1830, judgment was obtained by one John Bd.rker against Philip Ripple,, son of the testator; and, on the 30th of May, in the same year, Cook and M‘Gee also obtained judgments against him, on which they proceeded to execution and sale, became the purchasers, and received a.deed-poll from the sheriff. . Notice was publicly given at the time of the sale, and previously .to it, that the land was liable to the maintenance of the two females. '• The manner in which- notice was given, is stated' by the Chief'Justice, in, giving the opinion of the court, and, therefore, néed not'be repeated here.</p> <p>Several exceptions were taken to the charge of His Honour, as well as to the admission of certain parts of the evidence. The jury found a verdict for. the plaintiffs, u to be released on the'payment of six‘hundred and-forty-one dollars and ninety-nine, cents, already expended in- the support of Catharine and Elizabeth Ripple, and on the maintenance and support .of the said Catharine and Elizabeth by the defendants, John Cook and Charles</p>

Xn the Court of Common Fleas, the plaintiffs, Foster Milliken and David Milliken, trading under the firm of Foster Milliken “27th of March, 1819.—Received of Dr. John Watson, four hundred dollars, in .part of a judgment Foster Milliken fy Co, v. John Brown fy, Co: ,! ' “David Milliken.” clMay 4th, 1819.— Received, by the hands oí.Christian Haldeman, from Dr. John Watson, sixteen hundred dollars, a balance of two thousand dollars, his part of a judgment Foster Milliken Co.…

Jacob Smith took defence for so much thereof as was included in a survey made for him on the 24th of July, 1807, under a warrant dated February 23d, 1807. The plaintiff’s title was set up as follows: On the 1st of February, 1794, William Barton, Esq., their ancestor, took out a number of descriptive warrants, all of that date.

<p>APPEAL.</p> <p>Parol evidence of declarations, made by a purchaser at sheriff’s sale, that-her was bidding for another, is admissible to establish a trust for thé person for whom the purchaser declared he was bidding.</p> <p>A tender of money in behalf of an infant, made by his uncle, the father being dead, but the mother living, held to be good, although the uncle had not then been appointed guardian.</p> <p>A tender, partly in silver coin, and'partly in bank notes, offered to be converted into silver, bat the opposite party refusing to accept any money, held to be good.</p> <p>The words “ any earthly projmrty,” in a will, if they appear from the context not to have been intended to include -real estate, will be confined to personal property.</p> <p>If a naked power to sell be given to executors, the land in the mean time descends to the heir, and an ejectment may be brought for it in his name.</p> <p>A lease, unfairly obtained from a party in possession of the land, will not prevent the lessee from contesting the title of the lessor.</p>

The facts of this case are so fully set forth in the opinion of the court, delivered'by Smith, J., that it is unnecessary to give any other statement of them.

<p>On an .appeal from the Circuit Court of Mifflin county, it appeared that this was an amicable ejectment' for a lot of ground in Lewistown, (entered originally in the Court of Common Pleas of Mifflin county, and on the same'day certified into the Circuit Court,) by Samuel M‘Clay against E. L. Benedict.</p> <p>The following is an extract from the record of the Circuit Court:;—‘ “And now, 31st December, 1828, Hale appears for D. Hi Hulings, the landlord, and pleads not guilty, and entérs a rule of arbitration. Due notice to the plaintiff. D. II. Hulings, landlord and party in interest, appears according to law, on the 16th of January, 1829. Plaintiff not appearing, and clerk of the Circuit Court acts in place of absent party, when D. Stuart, Henry Kulp, and Samuel Smith, are chosen arbitrators; and clerk fixes the 10th of February, 1829, to meet at Mrs. Elliott’s. 11th of February, 1829, the plaintiff, SamuelM‘Clay, comes and discontinues this suit. Witness his hand and seal.</p> <p> “ Samuel M‘Clay.” </p> <p>“ And now, to wit: 13th of February, 1829, report of arbitrators is filed awarding in favour of the defendant, and that the plaintiff has no cause of action. And now, at a Circuit Court, the 18th of Jlpril, 1829, on motion of Hall, for the plaintiff, to set aside the report of” the arbitrators; after argument, award of arbitrators and proceedings set aside, Whereupon D. H. Hulings, the landlord of E. L. Benedict, the defendant in this case, appeals from the judgment of the Circuit Court in setting aside the award of arbitrators, and setting aside the proceedings.”</p>

<p>Error to the Court of Common Pleas of Centre county.</p>

<p>Appeal from the Circuit Court, sitting in Huntingdon county.</p> <p>John Crawford, brought an action of indebitatus assumpsit in1 the Common Pleas of Huntingdon county, against William Jackson, which was removed into the Circuit Court, and tried before . His Honour Judge, Smith, on the 22d of August, 1 '828. . .</p> <p>The.following evidence was given by the- plaintiff.</p> <p>JohnM‘Cahan,swoTa'.~ On the 13th of April, 1819, John Crawford called at my house; told me he was likely to get into a dispute with Mr. Beatty about whiskey he had sold to Beatty, said he was afraid he would have to sue him; said he was an old acquaintance.; did not like to sue him. I told him I would try and get the matter accommodated; I directed him to come back next day; I would send for Beatty, who lived four miles-out of town; I sent for Beatty, they both met the next day at my house; I took up .their accounts, heard each of their stories, and. struck a balance which they both appeared to be satisfied withy there was something said about the payment.' I took Crawford to the end of the house; I advised him, if he did not stand in need of the money, as I knew the .money was to come from Jackson to Beatty, to take an assignment of a judgment, that Jackson held against Gersham Lambert. I had been an arbitrator and knew the circumstance of the judgment; Crawford replied, lie- did not stand in need of the money, and we returned into the house. I mentioned the arrangement to Mr. Beatty, that I had proposed to Crawford; he was satisfied with it, and we all went to Jackson’s house together; before I left the house, I put two bonds in my pocket, (Beatty’s papers were all in my possession,) due by Jackson to Beatty; the arrangement was mentioned to Jackson; we all went together to theprothonotary’s office; Jackson, when there, asked for his bonds; I-took one out, on which he had made a partial payment, and made a calculation of the balance due; gave that one up to him, and endorsed a credit on the other, for the balance of Crawford’s account; then this endorsement was put on the record, and signed by Mr. Jackson. ■</p> <p> William Jackson . </p> <p>V.-</p> <p> Gersham Lambert. </p> <p>^0. %%, April, 1818. Summons debt by bond— Rule of reference;</p> <p>Report filed the 15th of August, 1818: find for the plaintiff four hundred and sixty-four dollars and seventy-six cents, interest from the 5th of August, 1818; plaintiff agrees to a stay of execution until the 1st of April, 18.19; judgment, plaintiff to pay all costs. Assignment.</p> <p>This judgment for the use of John Crawford, 14th of April, 1819.</p> <p>Test, William Steel.</p> <p>. Signed. William Jackson.</p> <p>The assignment is in Steel’s hand-writing. We then dispersed, and I heard no more of the matter for several months. Mr. Crawford came into my office, and said he had just heard that Lambert had assigned all his property to his children before this judgment, and was not worth any thing. I told him I was,a good deal surprised at it. In the evening I went down to Mr. Jackson’s, took him into a front room, and told him what Crawford had mentioned to me; he appeared to be surprised at the information too. I stated my opinion; that he was liable for the money to Crawford, and that he ought to adopt immediate measures to secure himself. Lambert lived about five miles below this place, and'I advised him to go to him, and try to get possession of some bonds he had on .people in Jersey. Jackson said if he would have to pay that money it would be an injury to him, as he had intended to pay Beatty in the spring, and he would not be able to do so. I adyised him to take legal adyice on the subject; and told him if he would come up on Monday morning, we would examine the deeds. I saw him on Monday; he had seen Mr. Smith in the meantime, and he then thought differently on the subject; my application to Crawford, was on Jackson’s account; it was a voluntary act of my own, and not of Mr. Crawford’s seeking; I do not recollect what conversation took, place at the time of the assignment; they were all my friends, and I wanted to have the matter settled all round without a law suit; Jackson demanded his bonds before he signed the assignment; Mr. Beatty, Mr. Crawford, Jackson, and myself, were all there at the time of the assignment; 1 was under the impression that he was liable, and he appeared to be so too; but, whether front my conversation or hot, I do not know.</p> <p>William E. Smith, Esq. sworn.—I issued this praecipe, (praecipe, for Fieri Facias JSfo. 83, January 7th, 1820, William Jackson v. Gersham Lambert, shown witness.) I was the attorney in the original suit; I never was the attorney of Mr. Crawford, and received no directions from Mr. Crawford;-! have no distinct recollection of the dire’ctions given by Mr. Jackson to me; the scire facias was not issued by me.</p> <p>Patrick Guin, sworn.—Gersham Lambert owed me a pretty large sum of money, and if I had not had his son bound for it, I Would have got nothing. I did not know at the time I lent him the money, that he had conveyed away his property. At the time of my judgment, he was hot worth any thing. In 1819, he had conveyed away his property; I issued a small execution against his personal property, but the- bank had issued on. the same day; I having the son, got a part of my money.</p> <p>Gersham and David Lambert are both dead-; I believe both Were insolvent.</p> <p>The plaintiff also gave in evidence several deeds and records, which are not now material, and rested. Whereupon the defendant, by his counsel, demurred to the evidence. The plaintiff’s counsel then asked the' court to require the defendant’s counsel to admit upon record; the inference, stated in the paper filed, marked A, previous to their joining in demurrer, which paper is in the following words:</p> <p> John Crawford </p> <p>v.</p> <p>William Jackson.)</p> <p>In the Circuit Court of Huntingdon county.</p> <p>In this case the defendant’s counsel, having demurred to the evidence of the plaintiff, the plaintiff’s counsel ask the court to require the defendant’s counsel to admit upon record, previous to their joining in the demurrer, the inference which may be drawn by the jury, from the circumstance of Beatty, Jackson, and Crawford, being all present when the assignment given in evidence was made; from- thé nature of the transaction itself; from William Jackson’s (the defendant’s) conduct, (as proved by John M'-Cahan) at the time he called upon him, to request him to take some steps to secure himself against Lambert’s insolvency; and from the circumstance of Mr. Jackson’s attorney, William R. Smith, issuing the execution on the assigned judgment, and having no direction or authority from Mr. Crawford to do so; that it was the understanding, and agreement of Crawford and Jackson, at the time of the assignment of the judgment againstLambert, that Jackson was to be liable to Crawford, if the judgment proved ineffectual, to collect the money from; and if the defendant’s counsel refuse to admit this inference, and if the court refuse to compel them to admit it, the plaintiff’s counsel refuse to join in demurrer.</p> <p>J. Geo. Miles, and John Blanchard,</p> <p>Attornies for the plaintiff.</p> <p>23d of Jlugust, 1828.</p> <p>After this paper had been filed by the plaintiff’s counsel, the court refused to require the defendant to admit on record the inference therein stated; and the plaintiff’s counsel refused to join in demurrer; whereupon the court instructed the jury, that the plaintiff, by refusing to join in demurrer, had withdrawn the evidence, and, that there was therefore no evidence before the court and jury.</p> <p>After the jury had given a verdict for the defendant, the plaintiff’s counsel moved the court for a new trial, for the following rear sons:</p> <p>1. Because the court erroneously withdrew the evidence, which was given in the cause, from the jury, and instructed them that there was no evidence before them on which they could decide.</p> <p>2. Because the court, erroneously compelled the plaintiff to submit to having the evidence withdrawn from the jury, or to join in the demurrer of the defendant, notwithstanding the plaintiff’s counsel asked the court to require the defendant’s counsel to admit the inference drawn, from the circumstances stated in the paper filed, marked A., (as per paper filed,) previous to their joining in the said demurrer.</p> <p>3. Because the court refused to require the defendant’s counsel to admit the inference, which the plaintiff’s counsel asked the court, (as per paper filed marked A.,) to require them to admit from the circumstantial evidence stated in that paper, previous to the plaintiff’s joining in the demurrer of the defendant to the evidence, and because the court withdrew the cause from the jury, on the plaintiff’s counsel refusing to join in the said demurrer, for the reasons stated in the said paper filed, marked A.</p> <p>4. Because the verdict is against law, and the justice of the cause.</p> <p>The motion for a new trial was overruled, from which decision the plaintiff appealed.</p>

<p>Error to the Court of Common Pleas of Huntingdon county.</p> <p>On the trial of an issue directed by the Register’s Court of Huntingdon county, to determine the validity of a paper, purporting to be the last will of Thomas M‘Ilroy, William, his son, who was named in it as one of the executors, and also, had a legacy bequeathed to him, was offered as a witness in support of the will. He had formally renounced the executorship, and had, by an instrument, reciting a consideration of one hundred and fifty dollars, released his interest as a legatee to William M‘ Williams, and Ann his wife, which Ann was one of the children of Thomas MlIlroy. The asserted consideration had not, however, been paid to William MlIlroy, but rested on a single bill given by William M‘ Williams for that amount, and was expressed “to be paid absolutely.” The court admitted the witness, and a'bill of exceptions was taken.</p>

Frederick Kessler, ’ brought an action of replevin against James M‘Conachy for one stove of the value of twenty-five dollars. The defendant avowed for rent in arrear. The plaintiff replied, 1. No rent in arrear: 2. Non demisit. 3. If-a lease, the tenant was evicted by the landlord before the expiration of the lease, 4. That the article replevied is the property of the plaintiff, and not of John Bomhaugh, the tenant. Several bills of exceptions were taken on the trial.

On a writ of' error to the Common Pleas of Tioga county* it appeared, that this' was an action of assumpsit, brought by George ParJeer and Samuel Pathbom, for the use of Samuel Rathbone, against William Willard, jun., on an order, of which the following is a copy: “ Commissioners’.

<p>On the return of the record of this case from the Court of Common Pleas of Mifflin county, it appeared that Thomas Todd, administrator-. of Thomas Beale, brought an action of debt on a judgment obtained by Thomas Beale and Elizabeth his wife, against David Gibson, the plaintiff in error, in which the following declaration was filed;—</p> <p>“ And whereupon the said Thomas Todd, administrator of Thomas Beale, as aforesaid, comes and complains of the said David Gibson for this, that heretofore, to wit, on the 8th day of February, in the year .1819, at the county of Mifflin,, in. the Court of Common Pleas of the said county, then and there' holden, the said Thomas Beale, and Elizabeth his wife, for a debt due to the said Thomas Beale in his own right, by -the consideration and judgment of said court, recovered against the said .David Gibson, the sum of one'hundred and seventeen dollars and thirty-two and a half cents, of debt, together with thirteen dollars and fifty-nine -cents of cost, in the whole one hundred and thirty dollars ninety-one and a half cents, besides the accruing costs above demanded, which in and by the said court, -were then and there adjudged to the said Thomas Beale, and Elizabeth his wife, for his damages which he had sustained, as well by reason of the nonperformance, by the said David Gibson, of certain promises, and undertakings, then lately made by the said David, to the said Thomas, as for his costs and charges,by him in that behalf about his cause expended, whereof the said David was convict, as by the record and proceedings thereof remaining in the court at Lewistown, No 43, November Term, 1818, more fully appears, which said judgment still remains in .full force and effect, not reversed, satisfied, or otherwise vacated, and the said Thomas Beale in his lifetime, or the said Elizabeth, or the said administrator since his death, hath not obtained any execution-of or upon the said judgment,' so rendered, as aforesaid. Whereby an action has accrued to the said Thomas Todd, administrator, as aforesaid, to demand, and have of.and from the said David Gibson,. the said: sum of one hundred arid thirty dollars ninety-one anda half cents, with interest and accruing costs; yet the said David Gibson, although often requested, hath not yet paid to the said Thomas Bealé, or Elizabeth his wife, in the lifetime of the said Thomas, or to, said Elizabeth, or to said administrator since his death, the said sum of one hundred and thirty dollars and ninety-one and a half cents, or any part thereof, but heretofore hath refused, and still' doth refuse, to render the same; whereby the said Thomas .Todd, administrator, as aforesaid, saith he hath damage ten dollars. ■ _ ' :•</p> <p>An additional count was afterwards filed as follows:— '</p> <p>And the said Thomas Todd, administrator, as aforesaid, avers that the said David Gibson, so being indebted as aforesaid,' to.the Said Thomas Beale, and Elizabeth his wife, for the amount of the judgment and costs, as,aforesaid, to wit, one hundred and thirty dollars and ninety-one and a half cents, and by virtue of said judgment, on the .8th day-of February, 1819, at the county of Mifflin, it, was then and there agreed, by and between the said David Gibson, and the said Thomas Beale, that whereas the said Thomas Beale, was indebted to the said David Gibson, as one of the administrators of Thomas Gibson, in á sum greater than the amount of the debt and costs so due, as aforesaid, .by- the said David to the said Thomas, and Elizabeth his wife, that-, the said David, should and' would allow a credit to the said Thomas, for'the aforesaid sum of .one hundred and thirty ddllars-and ninety-one and a half cents, for and toward the sum, due by' the said Thomas, to the said David, and one William Gibson, as administrators of Thomas Gibson, for the price of. a tract of land, sold to' said Thomas Beale, by the said David and William; whereby, and by reason of which premises, the said Thomas Beale, had. in his lifetime reduced-the said judgment, for one hundred and thirty dollars and ninety-one and a half cents, into possession; yet, nevertheless the said Thomas Todd, administrator, as aforesaid, avers that after the death of the said Thomas Beale, the said David Gibson, fraudulently intending to deceive, and injure the said Thomas Tódd, as administrator of the said Thomas Bealé, neglected and refuséd to give credit to the said Thomas Todd, as administrator of said Thomas Beale, for the said sum, of one hundred and thirty dollars and ninety-óne and a half cents, as aforesaid, on account of a certain debt due by said Thomas Beale, in his lifetime, to the said David Gibson, and one William Gibson, administrators of Thomas Gibson, in part of the price of a tract of land bought by the said Thomas Beale, in his lifetime, of the aforesaid David and William Gibson, as administrators of Thomas Gibson, as aforesaid, whereby and by reason of which premises, the said judgment, No 43,' of November Term, 1818, remains wholly due and unpaid, to wit, the sum of one hundred and thirty dollars and ninety-one and a half cents, with interest from the 8th of February, 1819, and .which said judgment still remains'in full'force,'not reversed, satisfied, or otherwise vacated; and the said Thomas, administrator, as aforesaid, avers that the.said Thomas Beale, in his lifetime, or said administrator since the death of said Thomas, hath not obtained execution-of the said judgment against the said David. Whereby an action' hath accrued to the said Thomas Todd, administrator, as aforesaid, to have and demand of and-from the said' David Gibson, the' said sum of one hundred and thirty dollar's and ninety-one and a half cents, with interest and accruing eosts; yet, nevertheless the said David Gibson; although often requested, hath not yet paid the same to the said. Thomas, in his lifetime, nor to, the said Thomas, administrator, since the'death of the.intestate, nor .in-any way sa-. tisfied the same-, but hitherto hath refused, and still doth refuse to pay the same, to the damage of the said, Thomas, administrator, as aforesaid, ten dollars, and for.this he brings suit, &e.</p> <p>The defendant demurred to the declaration,and assigned for causes of demurrer, “That in the first count it manifestly appears, that the suit upon which the judgment No. 43, in said declaration mentioned was obtained, was brought in the name’of Thomas Beale, in his lifetime, and Elizabeth his wife, and the said Elizabeth is still in full , life, and has-survived her said husband Thomas Beale; and that by the law of the land, the interest and property of said judgment, and all monies due thereon, be.came and aré .vested in the said Elizabeth. And also, that the allegations and averments in the second'count of sáid declaration, do not prove that the said Thomas-Beale, in his lifetime had reduced the said judgment, No. 43, to’his possession, but, on the contrary, the said, allegations and averment's, in the second cdunt-of said declaration'mentioned, show, if they show any thing, that the said judgment was'satisfied.”</p> <p><£ And also for that the said two counts are inconsistent, and set forth no legal causes whereby the said Thomas Todd, administrator of' Thomas Beale, deceased, is entitled to recover in his suit. And thatthe-said declaration is in other respects.uncertain, informal and insufficient, &c.” .</p> <p>The plaintiff filed a joinder in demurrer, in.these words:—</p> <p>££ And the said Thomas Todd, administrator of' Thomas Beale, comes into court, and avers that his intestate, the said Thomas Beale, died insolvent, not having sufficient assets real or personal, to pay and satisfy his just debts,, and the said plaintiff ’further says, that the matters and allegations as above set'.forth by him in' his. •said declaration, are good and sufficient in law to enable him to have and- maintain his aforesaid action- thereof against the said Bavid Gibson. And of this he prays the judgment of. the court, See,”</p>

. Writ of error to ,the Court of Common Pleas of Mifflin county, in an action of debt, brought by Mevay against Edmiston, to recover the penalty of fifty dollars for taking illegal fees as sheriff. The suit was commenced before a justice, who gave judgment for the plaintiff The defendant appealed, and entered a rule of reference in the Court of Common Pleas. The arbitrators- found in favour of the- defendant, and the court refuséd to set aside the reference and report.

<p>IN ERROR.</p> <p>A sheriff is answerable for the conduct of .his deputy in taking goods of another person than the defendant in execution.</p> <p>After evidence of a fraudulent" combination, the declarations of any one of the parties to it may be proved. ' .</p>