Volume 1 — Sergeant & Rawle's Pennsylvania Reports

<p>THE court sat at Harrisburg to determine this case, in pursuance of an act of assembly, passed on the 28th March, 1814.</p> <p>Shepherd and Dorr anee claimed 12,328 acres and 15 perches of land in Claverack, one of the seventeen townships of Luzerne county, by virtue of two certificates from the commissioners of the commonwealth, one issued in favour of Shepherd for an undivided moiety of the whole, dated January 2d, 1807, and signed by Thomas Cooper and John M. Taylor: the other in favour of Dorrance for the remaining moiety, dated January 1st, 1808, and signed by John M. Taylor and Alexander Scott. Annexed to the certificates was a draught of the survey made by George Haines, surveyor of the commissioners. These certificates were issued in pursuance of the act entitled “ an act for offering compensation “ to the Pennsylvania claimants of) certain lands within the “ seventeen townships in the county of Luzerne, &c.,” passed April 4th, 1799, or one of the supplements thereto. By the 5th section of this act the commissioners are directed, . . “ to ascertain all the rights,or lots within the said seventeen “townships, which were occupied or acquired by Connecti- “ cut claimants who -were actually settlers there at or before “ the time of the decree at Trenton, and -which rights or lots “ -were particularly assigned to the said settlers prior to the “ said decree, agreeably to the regulations then in force among “ them, and to divide the rights or lots into four classes, to “ be distinguished in the manner herein before-mentioned, “ according to their respective value, taking into considera- “ tion both the quality and situation, and to make out a cer- “ tificate thereof with a draft of the survey thereto annexed, “ and in case the said original settlers, their heirs or assigns, “ shall make application to the land office at any time before “ the 1st day of January, 1801, and agree to pay to the com- “ monwealth by eight equal annual instalments at the rate of “ two dollars per acre, for lands of the first class; at the rate “ of one dollar twenty cents per acre, for lands of the second “ class ; at the rate of fifty cents per acre, for lands of the “ third class ; and at the rate of eight and one-third cents per “ acre, for lands of the fourth class, with interest upon each “ instalment till the same be paid; thereupon patents for “ lands so certified shall be issued from the proper office, “ paying the legal fees for such patents, and also the survey- “ ing fees.” The time for making applications to the commissioners was enlarged by a supplement to this act. John Shepherd’s application was entered November 12th, 1800, and Benjamin Dorr anee’s June 9th, 1807. The commissioners certified in the words of the act, that “the land was occu- “ pied and acquired by a Connecticut claimant, an actual set- “ tier there, before the decree of Trenton, and was particu- “ larly assigned to such actual settler prior to the said decree, “ agreeably to the resolutions then in force among such set- “ tiers.” Shepherd and Dorrance having as they alleged complied on their part with everything required bylaw, demanded a patent, agreeably to the certificate and survey returned by the commissioners.</p> <p>On the- 15th March, 1809, a patent was accordingly prepared and signed by Andrew Ellicott, secretary of the land office, but the seal of the commonwealth was not affixed. On the 4th April, 1809, a resolution of the legislature required the governor to direct the Attorney General to appear in behalf of the state, in case an application should be made to the Supreme Court for a mandamus to the secretary of the commonwealth, in the case of the application for a patent for the mammoth farm in Claverach.</p> <p>. On the 25th May, 1810, a rule was granted by the Supreme Court at Lancaster on N. B. Boileau secretary of the commonwealth, to shew cause why a mandamus should not issue, commanding him to affix the seal to a patent for the mammoth farm in Claverach, one of the seventeen townships in the county of Luzerne.</p> <p>On the 28th May, 1810, Mr. Boileau made a return to the rule, assigning his reasons against issuing the mandamus. On the 2d April, 1811, another resolution of the legislature directed the Judges of the Supreme Court to form an issue, to try the legality of the certificates granted to Shepherd and Dorrance, and the whole merits at Philadelphia, with power to decree as to right and justice might appertain. By an act of assembly passed on the 24th March, 1812, the above-mentioned issue was directed to be tried at Lancaster.</p> <p>These measures having failed to bring the case to a decision, on the 28th March, 1814, an act of assembly was passed directing the Judges of the Supreme Court, or any two of them, to meet at Harrisburg, and “ hear and determine. all “ matters and things touching the legality of certain certifi- “ cates granted to' John Shepherd and Benjamin Dorrance, “ and their right to twelve thousand three hundred and twenty-eight acres of land, or any part thereof, in Claverach, one “ of the seventeen townships in the county of Luzerne,” and to “ decree and determine in said case as law and justice may “ require, which decree shall be final.”</p> <p>For the Commonwealth, it was objected that the patent ought not to issue,</p> <p>1. - Because the certificates given to Shepherd and Dorrance were illegal. The law requires the certificate to be signed by the commissioners, or a majorityof them. The. certificate of Shepherd is signed by Thomas Cooper as one of the commissioners. Thomas Cooper was appointed commissioner on the 22d April, 1801. On. the 1st August, 1804, he was appointed president of the fourth judicial district, and on the March, 1806, he.was appointed president of the eighth judicial district, and continued such till after signing the certificate. The two offices were incompatible, and by accepting that of judge he virtually resigned the office of commissioner. By the Constitution of Pennsylvania, art. 5. sect. 2., it is provided that the Judges of the Supreme Court and. Presidents of the several. Courts of Common Pleas, “ shall “ not hold any other office of profit under this commonwealth.” This was an office of profit. The commissioners were entitled to three dollars and fifty cents for every day they acted. It is admitted that Mr. Cooper received no pay-after the- 1st August, 1804; but this can make no difference in the principle. They cited 4 Inst. 100, 310. 5 Bac. ab. (Wilson’s Ed.) 205, (K.) 3 Burr. 1615. 6 Bac. ab. 380. Hillhouse v. Chester (a) 4 Ball. 229. The certificate to Borrance is signed by Alexander Scott, who was appointed, commissioner on the 1st June, 1807, in the room of Thomas. Cooper. Scott was interested, and therefore could not lawfully act as a commissioner, in respect to this land. It is through Scott that Shepherd and Borrance derive their title. It appears from the statement of the commissioners that, Peter Ilogeboom was the owner of the whole township of Claverack, under the state of Connecticut, He, by deed dated August 8th, 1794, in consideration of 2000 dollars, conveyed the whole township of Claverack to Alexander Scott, Ebenezer Bowman, Rosewell Welles, and Elihu Chaúncey Goodrich as tenants in common, with a clause of warranty' against the grantor , and his heirs, and all persons claiming - under the state of .Connecticut,-or the Susquehanna Company. By deed dated March 22d, 1796, Alexander Scott, in consideration of 2000 dollars, conveyed to' William Hull his undivided fourth part of the township of Claverack, excepting 1300 acres which Scott held Under the state of Pennsylvania, with-warranty against the grantor and his wife and their heirs',- and all persons claiming under them. Thése conveyances' amount to' a warranty or 'covenant that the Connecticut title under Hogeboom was good. Besides when Scott signed this" certificate he obtained a right to release his 1300 acres to the state -and Claim' compensation from them.</p> <p>2. The commissioners should have given separate ceríificates of the several tracts in Claverack township. By the 5th section of the act of 4th April, 1799, it is the duty of the commissioners “ to ascertain all’the rights or lots” within the seventeen townships. The word right means a tract not than 300 acres,-nor more than 600 acres: and has been generally so understood ever since the formation of the Susquehanna Company in 1754. Share and right were considered synonimous. In the rules and regulations of the Susquehanna Company, (19th May and 27th July, 1762) rights are mentioned as containing 640 acres, p. 25, 26. A right in broken or mountainous land attached to a toxvnship, 600 acres, p. 49. By a vote April 17th, 1763, eight townships were laid off into rights or shares of 400 acres eách, p. 30. Franklin, clerk of the Susquehanna Company, certifies August 6th, 1803, that a. right in Claverack, was 600 acres, p. 110. A half right is mentioned by the commissioners in one instance to be 320 acres in- Claverack.- The confirming act of March 28th, 1787, mentions rights or lots of about 300 acres each. All the acts on the same, subject use words of similar import. Act of Assembly, 6th April, 1802, 9th April, 1807. It never could have been intended that so large a tract of country should be. included in one certificate and survey, and obtained by . paying the fees of a single patent. The dividing it into small , tracts of 3 or 400 acres was the only practicable mode of classing and valuing the land.</p> <p>3. Five islands, containing 130 acres and 80 perches, are included in the patent; but to these islands Shepherd and Dorrance have no right. There is no survey of the islands, nor .are they included in the books of the Susquehanna Company. Claverack township was bounded by the river, and. included no islands.</p> <p>. 4. The lands included in.the survey were not settled prior to.-the decree of Trenton (December, 1782,) which is absolutely necessary under the act of 4th April, 1799, to enable the commissioners to certify. The township of Claverack■■ was not .finally established, nor settled till after the decree of. Trenton. .At that time no such township existed, according to the-rules and regulations of the Susquehanna Company-There was no. settlement of twenty men before 1785. We have a certificate given December 6th, 1785, by ZebulonBuU ler and Obadiah Gore commissioners of the Susquehanna Company, that' Jeremiah Hogeboom and' Captain Solomon Strong are. entitled to the township -of Claverack, provided they settle it before the 1 st May, 1786/ and also a deposition of Jacob Bowman and John Stroup, taken before T. Cooper in October, 1784, which speaks of a.settlement in 1784v5, and 6, and of a settlement previous to 1786. Shepherd and Dorrance were not such settlers as are acknowledged by the laws of Pennsylvania; they could not be so of 12,000 acres: yet the certificates of the commissioners state that they were so. They cited Minutes of the Susquehanna Company, May 17th, 1786, p. 47. Min. of the Council of Censors, 9th September, 1784. Journals of Congress, 23d January, 1784, 24th April, 1784, 21st September, 1785.</p> <p>5. A patent cannot issue on the draft returned in this case. It is not mentioned in what part of Claverack. the land lies. There are no marked lines or boundaries. There was not in fact any survey made by the commissioners under the act of 1799:. It is impossible that this draft should be any other' than a copy of an old survey made twenty years before, because the courses and distances agree precisely, and the quantity stated in both, is “ upwards o'f 12,000 acres.” The commissioners had no power to survey, except on an actual survey with sworn chain carriers, markers, and surveyors. Act of 4th April, 1799, sect. 9. If the commissioners have exceeded or departed from their authority, their proceedings are void. They possessed special powers which must be construed strictly. Nor has this Court the power, under the' act authorising their jurisdiction, to supply their omissions,- or correct their errors, by ordering a new survey or otherwise.</p> <p>For Shepherd and Dor ranee, it was answered that this Court was not to take up the title on original grounds; they were bound by the certificates of the commissioners, which established, the rights of the parties, if they were given according to law. The commissioners were appointed by the commonwealth, and the commonwealth is bound by their acts, as to all matters submitted to their jurisdiction. They acted judicially: they received evidence, written and parol: and their decree is conclusive. That it was so intended is manifest from the circumstance that the Connecticut settler was required, by the act of 6th April, 1802, to surrender up his documents and papers into the hands of the commissioners, before he could obtain a certificate. It is objected,</p> <p>1. That Mr. Cooper's trust as commissioner was vacated previous to signing the certificate. This question must be decided by the Constitution of Pennsylvania and the acts passed under it, and not by cases under the common law of England. The trust of commissioner was not an office of profit to Mr. Cooper j he received no profit from it after being appointed judge. Nor indeed is such a trust as that of commissioner, an office within the meaning of the Constitution.' If it were, then by article 2, sect. 8, of the Constitution, the appointment to it should have been made by the Governor; for that directs that “the Governor shall appoint “ all officers whose. offices are established by this Constitu- “ tion, or shall be established by law, and whose appoint-' “ ments are not herein otherwise provided for.” But these commissioners were originally named in the act of assembly. In the senate of this state a decision has taken place, fully establishing this distinction. By art. 1, sect. 18, of the Constitution of Pennsylvania it is declared, that “ no member of- “ Congress, or other person holding any office, (except of at- • “ torney at law and in the militia), under the United States “ or this commonwealth, shall be a member of either house, “ during his continuance in Congress or in office.” Charles. Biddle, one. of our state senators, executed a commission from the President of the United States' to sign treasury notes; and it was decided by the senate that it was not incompatible. But, at all events, the commonwealth ought not to make this. objection, because it was the commonwealth that made the appointment; and if Mr. Cooper's office was vacated, another person ought to have been appointed.' Mr. Cooper's'acts as commissioner, while a judge, have been recognised in other ', cases. As to Scott,he had no interest: he made no general warranty: the deed is studiously contrived to avoid it.' Even . if he, had an interest, he was appointed by the commonwealth, and we were compelled to come before him. As to his 1300 acres held under Pennsylvania, the right to that, was not in the least affected by certifying in favour of a Connecticut. title; because his remedy against the commonwealth remained.</p> <p>2. There is nothing .in the act of assembly'limiting the num-/ ber of acres for which certificates may be granted. In many instances patents have issued on certificates for more than 600 acres. By the act of 19th March, 1810, no surveys are to be certified for more than 400 acres to any one person, nor more than 400 acres to be included in one patent, in Bedford and Ulster townships. This shews that large surveys and patents had been usual. The state cannot be injured except by the loss of patenting fees: and these fees we offered to pay in the same manner as if certificates had been issued for each tract of 400 acres. The valuation and classing of a large tract is as easy as a small one. And there has in this case been a valuation of each lot or right separately, though they are not set forth in the certificate: the commissioners returned a paper to the land office shewing the particulars.</p> <p>3. The islands are within the act of assembly, because they are included in the township of Claverack. The contents of each island are mentioned in the return of survey, though the courses and distances are not given. If the surveyor appointed by the commonwealth did not return the courses and distances it is not our fault. It has not been shewn that the islands were not granted according to the rules and regulations of the Susquehanna Company.</p> <p>• 4. It is objected that Claverack township was not settled prior to the decree of Trenton. Whether it was or not is not now the question; the commissioners have certified that it was, and that is conclusive, unless fraud be shewn. But Claverack was surveyed, and called, and known by that name, on the 4th June, 1778. This Court is not to regard the minute book or journals of the commissioners; they received evidence which does not there appear. Nor is it true that there were no settlers in Claverack until 1784, 5, and 6. The deposition taken before Mr. Cooper, mentions settlers prior to, and during the years 1784, 5, and 6. Dor ranee's application, however, was subsequent to the act of 9th April, 1807, which directed the commissioners to dispense with the necessity of a settlement prior to the decree of Trenton; and therefore his certificate is clear of this objection.</p> <p>5. We have the return of a survey adopted by the commissioners ; which is certainly prima facie evidence and stands uncontradicted. It is not, as has been alleged, a copy of the original Connecticut survey of Claverack made on the 4th June, 1778. yhat survey has no courses or distances on the river; but our’s has. • We have also field notes, shewing each day’s work ; and each lot is laid down besides the outlines. It is true that in the patent which has been made out, but not sealed, there is a mistake in one line, in inserting 133 .perches in place of 1333. ■ The draft is right; and it was a mere clerical mistake in making out the patent.'</p>

In Error. THIS was a writ of error to the Common Pleas of Westmoreland county. The defendant in error brought an action of covenant before a justice of the peace to recover damages not exceeding one hundred dollars, for a breach of contract under seal, and obtained judgment for $81 50 damages, and $6 53 costs.

THIS was a habeas corpus issued from the Common Pleas of Allegheny county, and brought before this Court by agreement of the parties.

In Error. ERROR to the Common Pleas of Somerset county. The defendant in error, the plaintiff below, brought an action on the case against Kimmei and Ogle, which was referred, by consent of parties; to three men, “ on whose decision, or a cc majority of them, judgment to be entered by the prothono- “ taryE A report was made in favour of the plaintiff, from which one of the defendants appealed.

In Error. THIS was a writ of error to the Common Pleas of Butler county, on which a bill of exceptions was returned together with the record. William Kerr, who sued for the use of James Kerr, brought an action of covenant against Johnson on certain articles of agreement dated the 27th April, 1807, by which William Kerr leased to Johnson a tract of land for two years from the 1st April, 1807.

In Error. ERROR to the Common Pleas of Westmoreland county. This case came before the Court below by appeal from the judgment of a justice of the peace, in an amicable action in the name of Greenawalt as plaintiff, against Br-enneman as defendant.

In Error. THIS was a writ of error to the Common Pleas of Mercer county, to remove the record of the proceedings in an ejectment, with which a bill of exceptions was returned. The material exception was, that the Court below had permitted parol evidence to be given on the part of the plaintiff that a certain John Walker was the agent of Probst and-Lodge, when it appeared that a contract in writing existed in relation to the said agency.

In Error. IN the Court of Common Pleas of Erie county the case was as follows : O'-liar a brought his action of assumpsit against Miles, on three bills of exchange drawn by Miles, on Alexander Scott, late of Lancaster comity, deceased, Scott accepted the bills, and they were afterwards protested for non-payment.

In Error THIS was a writ of error to the Common Pleas of Armstrong county.

In Error. THIS was a writ of error to the Common Pleas of Washington county. It was an action of assumpsit for money had and received, brought by the defendant in error, the plaintiff below, against Dorsey, to recover the amount of the purchase money paid for a tract of land, on the ground that the consideration had failed, the title of the defendant proving to be defective.

In Error. THIS was an amicable action for money had and received, in the Common Pleas of Mercer county, in which the following case was stated for the opinion of that Court, and judgment given for the defendant. It was brought up to this Court by writ of error, pursuant to an agreement of the parties.

<p>In Error.</p> <p>ERROR to the Common Pleas of Westmoreland county.</p> <p>Robert Long brought an action of debt in the court below against the executor of John Long deceased, to which the pleas were non est factum and payment. The action was founded on an instrument of writing, signed by John Long, . dated November 13th, 1797, promising to pay to Robert Long, or order, 31/. 15s. 8d. nine months after date. The seal was made.by the flourish of a pen, and there were no subscribing Fwitnesses. A witness on behalf of the plaintiff swore that he had frequently seen the testator write, that he was well acquainted with his handwriting, and that he verily believed the signature was his handwriting.</p> <p>To support the second plea the defendant gave in evidence a note of settlement between Robert Long and John Longt dated August 20th, 1799, and signed by John Long, stating 57/. 12s. Hi/., with lawful interest, to be due to Robert Long, with a receipt thereon indorsed, of a payment of 80 dollars, part thereof, in 1804. The plaintiff read a deposition 'of John Sturgess, stating that John Long, in the year 1804, had acknowledged that he owed money to the plaintiff.</p> <p>The Court below charged the jury that it appeared, that the signature was the handwriting of the deceased; but it did not appear, either from the face of the writing itself, or by any testimony, that it was sealed and delivered as- a deed. That it would be extremely dangerous to consider eveiy instrument as a deed to which a mere [Z. Z.] is attached, without any proof. Not having any evidence on this point, they were of opinion, that they plaintiff had not supported the first issue. As to the second, the only evidence of payment arose from the note of a subsequent settlement between the parties. This affords a strong presumption that the fust note, the one in question, had been taken into view and discharged. To rebut this presumption the testimony of John Sturgess has been adduced; but when the time of the conversation in 1804, without any reference to any particular note, is considered, it is entitled to small weight. We’ think, on the whole, that the verdict ought to be for the defendant. To this opinion the plaintiff excepted, and the Court sealed a bill of exceptions'.</p> <p>cited 5 Bac. Ab. 159. Obligation, C. note. Jones v. Logwood (a).</p>

In Error. THIS was a writ of error to the Common Pleas of Armstrong county, upon which the record was returned, together with a bill of exceptions. The suit below was an ejectment brought by the plaintiff, Toung, against the defendant, for 4091 acres of land lying north and west of the river Ohio, &c. The plaintiff gave in evidence a warrant in his name, dated 1st March, 1794, for 400 acres, and a survey of 4091 acres pursuant thereto, on the 8th March, 1794.

In Error. THIS was a writ of error to the Common Pleas of Armstrong county. Thé case came into the Court below by appeal from, the judgment of a justice of the peace. A declaration was filed in assumpsit, to which the defendant, Sloan, pleaded an award of arbitrators in his favour, in a former suit, in the same Court at March Term 1811, for the same cause of action, in which the same parties were plaintiff and defendant, and that it had not been reversed on appeal.

<p>In Error.</p> <p>THIS was a writ of error to the Common Pleas of Westmoreland county.</p> <p>It was an ejectment brought by the plaintiff below against the defendant, Smith, in which a verdict was taken for the plaintiff, subject to the opinion of the Court on the following facts.</p> <p>John Proctor was the owner of a tract of lan'd not patented or surveyed, of which the land for which this action was brought, is a part. On or before the spring of 1783 he agreed with Andrew Mitchell, who was the father of Elizabeth Patton one of the lessors of the plaintiff, to sell him one hundred acres at the price of sixty pounds. No memorandum in writing of the contract signed by the parties or their agents exists, or can .be found. The part so sold was surveyed by the deputy surveyor for the district, at the request of Mitchell and Proctor. Nine pounds were paid by Mitchell in his life time to Proctor, iri part of the purchase money; and Mitchell took peaceable possession of the part so sold in the spring of 1783, built a cabin, and resided there till his decease. He cleared and put under fence two or three acres, sowed them with grass seed, and planted some apple and peach trees. In the fall of the same year he had another field cleared on the premises, and rails made ready for a fence.</p> <p>On the 4th February, 1784, Mitchell made his will, devising the premises to his wife, Mary, (the daughter of the said Proctor) for life, with remainder to his only child Elizabeth, wife of Patton, in fee ; and made his wife and Proctor his executors. When the will was read to Mitchell he observed that a conveyance had not been made to him for the land by Proctor, and asked Proctor whether it would make any odds. Proctor answered that it should not; that he ('Mitchell) left plenty to pay him the balance owing for it, and that he would convey it agreeably to the directions of the will. The testae ] * for died next day; leaving, besides his widow, Mary Mitchell, who was the daughter of Proctor, his child Elizabeth, one of the lessors of the plaintiff, then not a year old.</p> <p>An appraisement of the goods and chattels of Mitchell, amounting to 84/. 9s. 6d.. dated the 21st Aprils 1784, was filed in the register’s office. Mitchell owed no debts except the 51/. due for the 100 acres.- Proctor was the acting executor and .'settled his accounts as such on the 2d February, 1791, leaving a balance of 105/. l6s. 3id. due by him exclusive' of the third part belonging to the widow. Mitchell owned another plantation at the time of his decease, of the yearly value of 13/. Proctor took upon himself the care of the last mentioned plantation, and received the profits of it, until the year 1791, amounting to 130/. in the whole. On the 3d May, 1791, a guardian was appointed for Elizabeth. A note or bill, signed by George Smith, the defendant, for 15/. payable to Elizabeth on her coming of age, Was delivered by Proctor to her guardian, and alleged to be a compensation for the improvements made by Mitchell on the premises. This note was never paid, and was offered to be given up by the plaintiffs to the defendant immediately after the trial.</p> <p>Proctor, by deed dated 23d April, 1784, conveyed the premises to his daughter Mary Mitchell in fee. Mary shortly after the decease of Mitchell removed with her infant daughter to the dwelling house of her father Proctor, and abode there until her marriage with George Smithy the defendant, in the spring of 1785. George and Mary, shortly after their intermarriage, took possession of the premises in question. Mary died in 1790, leaving two daughters, the issue of the second marriage. Subsequent to this marriage, notice of the survey for Mitchell was communicated by the district surveyor to George Smith, who objected to a return being made in the name of Mitchell. Proctor afterwards directed the surveyor to make a return for George Smith. A receipt was given on the 26th March, 1785, by Proctor to George Smith for 60/.; but Proctor, in his testimony taken on commission, denied-the actual receipt of the money. George-Smith paid to the late receiver general 21/. 12s. 3d. for 124 acres .(of which the premises are a part), on the 1st April, 1796.</p> <p>Proctor was in embarrassed circumstances, and it does not appear that he ever claimed any balance as being due to him on the contract with Mitchell, since the decease c&. Mitchell.' Proctor left the state in 1793 or 1794, in debt to Elizabeth, for the rents he had received of Mitchell’s other plantation. ^or those rents, or for the personal property left by Mitchell, Proctor rendered no account to her guardian in her minority, or to the lessor of the plaintiff since ; and no payment or satisfaction whatsoever has been received from Proctor for the same. After the marriage of George and Mary, he built a new house on the premises, raised higher the cabin which had been put up by Mitchell in his life time, and covered it with a shingle roof. He also erected a bank barn, cleared from fifteen to twenty acres of meadow, and about fifty acres of arable land, on the premises.</p> <p>It was agreed between the parties, that the verdict should be taken, subject to the opinion of the Court on the following points:</p> <p>1. Whether from the facts before stated, the act of as'sembly, passed the 21st March, 1772, be a bar to the present action ?</p> <p>2. In case the Court should be of opinion, that the said act is not a bar, whether a previous tender of the balance appearing to be due to the said John Proctor, on the contract with the said Andrew, was requisite to support the present ejectment.</p> <p>cited 1 Smith’s Laws, 389 to 398. Sugd. 78 to 81. Vern. 198, Bell v. Andrews (a). He contended that this land was intended as a provision to Proctor’s daughter, the wife of Mitchell, and that the plaintiff ought not to recover the whole, when her mother left two Other children. On the second point he cited 2 Wash. Rep. 94, 103.</p> <p>contended that the first point was too well settled to be now questioned. 2. That this was no marriage settlement, but a sale. They cited Billington v. Welsh (b).</p>

THIS was a habeas corpus directed to the defendant, who was captain in the second United States’ regiment, to bring up the body of Louis Menges. The return stated, that Menges was held as a soldier, enlisted in the army of the United States, and was a deserter. It was admitted in the argument, that Menges had enlisted, had received part of the bounty money, and had taken the oath and signed the enlistment paper in the year 1812.

In Error. THIS was a writ of error to the Common Pleas of Fayette county. ; The plaintiff, MiCormick junior, brought an ejectment againt the defendant to recover a tract of land in Fayette county;… Held: that a deed proved by the oath.of one witness before a justice, might go to the jury, although-the act of 1715, required proof by two witnesses. 1 Dall. 63. 93.

<p>In Error.</p> <p>THIS was a bill of exceptions to the opinion of the Court, brought up by writ of error from the Common Pleas of Westmoreland county, where the case was as follows:</p> <p>The plaintiff M'-Ferran and others, brought their action of ejectment against the defendants, for a tract of land in Westmoreland county. On the trial, the plaintiff gave in evidence a location, dated 3d April, 1769, in the name William, Finn ter, for 300 acres of land, and a survey and return of 284 acres pursuant thereto, by Alexander M1-Clean, deputy sur-' veyor, dated 6th June, 1770, in favour of Jonathan Smith, in right of William Hunter ; and a receipt given by Alexander Ml Clean to Jonathan Smith, for 4/. surveying fees, dated 27th May, 1772.</p> <p>The plaintiffs then offered in evidence a deed from William Hunter to Jonathan Smith, dated 22d May, 1772, purporting to be acknowledged before John Dickey, an associate judge of Bedford county, on the 30th November, 1809, and recorded the 22d May, 1810, in Westmoreland county. To which evidence the defendants objected, and it was overruled by the Court.</p> <p>The plaintiffs then offered in evidence a deed from Jonathan Smith to Samuel MiFerran, dated 10th January, 1776, having previously proved, by consent of the defendant, the death of Owen Williams, one of the subscribing witnesses to the said deed, and of the said Jonathan Smith, and the hand writing of Owen Williams; and also, that a certain Aaron Linn, made it his business, in 1809, to go into the county where the sale mentioned in said deed took place, and made every inquiry for the other subscribing witness, James Bray. That he heard, that a person of the name of James Bealty, had left that county many years before, and it was not known where he had gone ; that he was at the house of one MiMullen, where Bealty had lived, and showed the deed to him.</p> <p>The plaintiffs then offered in evidence the deposition of William Hunter, taken in pursuance of a rule of court, to prove, that his name was made use of in trust for Jonathan Smith, and that he, himself, never had any interest in the land; and also, that a conveyance made by the deponent to Robert Smith, (under whom the defendants claim), dated 15th July, 1790, was without consideration, and in consequence of the said Robert telling him, that the former deed to Jonathan Smith, (whose right the deponent supposed to be vested in said Robert), was lost, and a new deed was necessary in order to enable him to procure a patent.</p> <p>The defendants objected to this deposition, and to support their objection, produced and read, among other things, a deed, dated 15th July, 1790, from William Hunter to Robert Smith; upon which ground the court over-ruled the deposition. . - .</p> <p>The plaintiffs then offered in evidence the above-mentioned deed from Jonathan Smith to Samuel M'-Ferran; but it was objected to, and over-ruled by the court.</p> <p>took three exceptions to the decision of the court below. 1. The rejection of the deed from William Hunter to Jonathan Smith. The acknowledgment before an associate judge of Bedford county was valid. By the act of the 3d April, 1791, sect. 10, associate judges may take acknowledgments as effectually as judges of the Supreme Court, or presidents of the Courts of Common Pleas. In M'Keen v. De Lancey's Lessee (a), it was determined by the Supreme Court of the United States that an acknowledgment of a deed dated the 7th December, 1772, before a judge of the Supreme Court of this state, was good. 2. The deed from Jonathan Smith to Samuel M'Ferran was improperly rejected. We proved Williams to be dead, and that the other subscribing witness was not to be heard of 3. The deposition of William Hunter ought to have been received in evidence. He was a competent witness, having made only a special warranty; as was decided by this Court in Mackey v. Work(b). The rule that a man shall not invalidate his own deed, is confined to commercial instruments. Pleasants v. Pemberton(c), Baring v. Shippen(d).</p> <p>1. An associate judge of Bedford county could not legally take the acknowledgment of the deed in question. By the act of 28th May, 1715, deeds may be acknowledged before one of the justices of the peace of the proper county or city where the lands lie, which has not been done in this case. The act of 18th March, 1775, directs that all deeds made thereafter shall be acknowledged before a judge of the Supreme Court, or one of the justices of the Common Pleas of the county where the lands lie; but this also does not apply to the present case, because the deed was made before the passage of that act; and although prior to that law an acknowledgment before a judge of the Supreme Court might be good by custom, yet after that act, such acknowledgment of a deed made before the act would be bad. 2. It did not appear to the court below that the living witness could not be found. 3. Hunter's deposition was not admissible, because his evidence went to destroy his own deed. Ewing v. Barton, 2 Wash. Rep. 63.</p>

In Error. ERROR to the Common Pleas of Huntingdon county. This was an ejectment for a tract of land, which the lessee of Thomas Duncan, claimed under an application of November 4th, 1766, No. 1812, by Lawrence Peterson, for 300 acres of land, including Turkey Hill.

In Error. THE defendants were indicted in the Court of Quarter Sessions of Cumberland county, for a forcible entry and detainer.

In Error. 'THIS was a writ of error to the Common Pleas of Huntingdon county, where the action was ejectment. The land for which the action was brought, was formerly the property of George Cluggage, and lay in the county of Bedford. Cluggage mortgaged it on the 17th of March, 1786, to the trustees of the general loan office of this state.

<p>In ejectment, the plaintiff claimed under án application of A, entered in 1767, under which a survey was made* but never returned. The defendant claimed under a warrant to B, issued and returned in • 17C6,.and undertook to shew that A’s application had been surveyed in a different place. For this purpose he gave in evidence a return of survey by the deputy surveyor, in 1807, who was sworn* and proved that he had directed C to make the survey. C was sworn and stated that he had received a letter from the deputy surveyor, directing him to make the survey, which letter was offered in evidence. The defendant stated, in his opening, that he should prove that the plaintiffs were present anti consented to the survey. Held, that the letter was evidence to shew that C acted by authority, but that the plaintiffs might take the court’s opinion as to its having any effect upon their claim, unless their assent was proved.</p> <p>When one derives title under a warrant or application, lie is estopped from carrying his title back further than the time fixed by the warrant or application for the commencement of the calculation of interest.</p>

<p>In Error.</p> <p>THIS was a writ of error to the Court of Oyer and Terminer of Cumberland county.</p> <p>The plaintiff in error had been convicted of voluntary manslaughter, and had been sentenced to undergo an imprisonment at hard labour and solitary confinement, in the gaol and penitentiary house of Philadelphia, for the space of ten years, and for one year, part of said time, to be placed and kept in the solitary cells thereof, on low and coarse diet, &c.</p> <p>that the court below had no power to order his confinement in the solitary cells, on low and coarse diet, for the crime of voluntary manslaughter.</p>

In Error. THIS was a certiorari to the Quarter Sessions of Franklin county* to remove the proceedings on a petition to vacate an old private road, and to lay out a new one.

<p>In Error.</p> <p>THIS was an ejectment in the Common Pleas of Cumberland county, for six-sevenths of a tract of land, which the plaintiffs claimed to hold in common with the defendant, as .heirs of their father, the Rev. John Hoge, who was devisee of his father John Hoge, the elder. On the trial in the court below, the following special verdict was found.</p> <p>“ The jury find, that John Hoge the first; and grandfather “ of the plaintiffs and of the defendant, was seised in his de- “ mesne as of fee, in his lifetime, of, and in the premises “ mentioned in the writ and statement in this cause, and being “ so seised, made his last will and testament, on the 27th day “of September, 1748, (prout will) and on.the 29th of the “same month made a codicil in writing to the said will, “ which will and codicil are duly attested, agreeably to law, .“ (prout codicil). That John Hoge the second, and father “ of the plaintiffs and of the defendant, and one of the devi- “ sees in the said will mentioned, was the oldest son of the “ said John Hoge the testator, who died seised of the lands “ in the writ in this cause mentioned, some time in the year “ 1748. That the said John Hoge the second, and devisee “ in the said will mentioned, entered upon the premises to “him devised, and improved .the same, agreeably to the “ terms of the said will; and that John Hoge the seeond, and “ the devisee had issue the plaintiffs and John L. Hoge the “ defendant his oldest son. That the said John L. Hoge the “ eldest son of the devisee, was bom after the making of the “ said last will and codicil, and after the death of the testa- “ tor, and before the suffering of the common recovery by “ the said John Hoge the second, and the devisee under the “will; and that on the 12th day of• January^ 1799, in due “ form of law, a common recovery was suffered by the said “ John Hoge the second, and devisee in the said will, in the “ Court of Common Pleas of Cumberland county, and that “ the deed to lead the uses of the said recovery was to the “ use of the said John Hoge, the recoveror in fee. And that 14 the said John Hoge the second, afterwards made his last 44 will and testament in writing, duly proved, &c. and added 44 two codicils thereto, duly proved, &c. That the said John 44 Hoge the second, died and left children the said John L. •“ Hoge, the defendant, and the plaintiffs. • But whether the “■plaintiffs are entitled to recover, the jury are ignorant, &c.”</p> <p>The question arose upon the will of John Hoge the grandfather, the material part of which was as follows: 44 As 44 touching such worldly estate wherewith it hath pleased 44 God to bless me in this life, I give, bequeath, and dispose “ of the same in the following manner and form. Imprimis, 141 give and bequeath to my son, John Hoge, one hundred and 44 thirty-seven acres of my land, adjoining James Silver’s line, <4 leading across, running a parallel line with James Silver’s 44 and my line, provided he, my son John, lives and improves 44 upon said land, and enjoy it, and if my son shall leave a son 44 of a legitimate issue, that said son shall enjoy the aforesaid 44 land- at his father’s decease; and that my son John shall 44 have no power to sell or dispose of said land by seal. Item, I 44 give and bequeath to my sons, Jonathan, David, and Benja44 min, all my other real estate, to be equally divided amongst 44 them, and Jonathan to have his part next the creek, inclos44 ing the lower spring, and David to have his part in the 44 upper side of my land, and Benjamin to have his part 44 where my dwelling-house stands, and if either of my sons, 44 (viz.) John, Jonathan, David, or Benjamin, shall happen 44 to die, leaving no issue, that then the surviving persons, or 44 their issue, shall have their equal parts of the deceased’s “part.”</p> <p>The testator left a widow and four daughters, to whom he gave small legacies, to be paid out of his personal estate; but not connected with the devise of the land to his sons.</p> <p>The will and codicils of John Hoge the second, made no disposition of the land in question.</p> <p>Judgment was given for the defendant, in the court below, on which the plaintiffs brought their writ of error.</p> <p>The case was argued in this court at the last Term, and held over for advisement.</p> <p>It might fairly be contended, that John Hoge the second, took a fee simple by the devise, on account of the condition prescribed, of his improving the land; but our construction of the will is, that he took an estate in tail.-male, with remainder to himself in tail-general, — remainder to his surviving brothers, or their issue, in tail-general.</p> <p>It does not appear with certainty, what was the testator’s intent as to the estate which his son John should take, for none is expressly limited to him; but if the devise to him had been for life, and from other parts of the will it were clearly to be seen, that ,the testator meant to create an estate-tail, the particular would be made to yield to the general intent. The restriction from selling is applicable to an estate-tail as well as to one for life ; and whatever may have been the design of the testator as to the first devisee, he evidently wished the land to descend in the male line. He had no particular son of John the second in view, for none was born till after the death of John the first.</p> <p>Where the will speaks of a dying without having issue, an indefinite failure of issue is intended, for on that event it limits the estate over to the survivors or their issue. He cited Dodson v. Grew.(a) James' Claim.(b) Wilde's Case.(c) By field's Case.(d) Anonymous.(e) Robinson v. Robinson.(f) Langly v. Baldwin.(g) Dubber v. Trollope.(h)</p> <p>The devise to John the second is for life expressly; for the estate is given over to another at his decease. John the third took a contingent remainder in fee simple. No formal words are necessary, in a will, for passing a fee; the word u estate” is sufficient, and where after an estate for life a remainder over is limited by general expressions, it will be construed a fee. The devise here to John the third, is that he should enjoy the land at his father’s decease, and “ freely to be possessed and “ enjoyed,” will carry a fee.</p> <p>The words in the will, “ if either of my sons shall happen “ to die leaving no issue,” mean issue living at the time of the death; for the testator- gave Jonathan, David, and Ben-j dikin' “ all his ofhér real estate, fp be equally? divided,” by which they took in fee simple. -The rule in Shelly’s case, on which the argument for the plaintiffs rests, was drawn from feudal principles ; it has been much- narrowed of late, and it is held npt to apply to the word- sons of children. There is no need- of implying an estate-tail in John the second,, in order to provide for his heirs, for there is'an-express devisé to his son, and an express estate for life is not to be' altered; by implication, except where it becomes necessary, in order to carry into effect- a manifest general intent. The will contains a prohibition of John the second- selling, which would have been defeated- by his having an estate-tail.</p> <p>If, however, the Court shall be of opinion, that the testator had in view an- indefinite- failure of issue, then I contend that John the second took an estate for life, with remainder in tail to John the third, remainder in tail to John the second. If this construction be just, John the second’s" Vested-remainder opened on the birth of a son, and let in the remainder to him, which vested as soon as there was a person in esse who came within the description. He cited Richardson et ux. v. Noyes et al.(a) Luddington v. Kime.(b). Gilbert on Devises, 19. Streatfield v. Streatfield.(c). Tanner v. Wire.(d) Loveacres ex dim. Mudge v. Blight et ux.(e) Countess of Bridgewater v. Duke of Bolton.(f) Rive ex dim. Urry et al. v. Harvey.(g) Ibbetson v. Beckrwith.(h) Barry v. Edgeworth.(i) Frogmorton ex dim. Wriglit v. Wright et al.(j) Kennon v. M'Roberts and wife.(k) Davies v. Miller.(l) Winchester's lessee v. Tilghman.(m) Watson v. Poxvell.(n) French et al. v. M'Ilhenny.(o) Hughes v. Sayer.(p) Fosdick et al. v. Cornell.(q) Jackson v. Blanchan.(r) Lessee of Findlay v. Riddle.(s). 4 Dall. App. 21. 4 Cruise, 344. 1 Fearne, 278, 4th ed. Parefoy v. Rogers.(t) Robinson v. Robinson.(u)</p> <p>The will is capable of three constructions, any one of which, if adopted, will support the claim of the defendant.</p> <p>1. The first is, that an estate for life was limited to John Hoge the second, and a contingent remainder in fee to John ■Hoge the third, with an executory devise to the brothers of John the second, on his death, without leaving issue at thfftime of his death.</p> <p>• 2. To John Hoge the second for life, with contingent re- - mainder in-tail to John the third, with an estate-tail expectant in John the second. r</p> <p>3. To John the second for life, — then over to his brothers under a contingency with a double aspect, that , is, to the son, or if no son and John the second died without issue living at the time of his death, to .the surviving brothers by. way of contingent remainder; and in that case John the third would take an estate-tail, because -.John the second could not die without issue, so long as John the third had issue.</p> <p>By the direct devise, John the second had not even a freehold, but only a bare right to occupy personally, without power to sell, and the testator plainly, shewed his intent, that John the second should have no power to bar his son. The rule in Shelly’s case is never used to discover the intent,, but when that appears, the rule is to be applied. It is, however, never to be. applied, unless the whole inheritable blood to all ages be taken in. That is not the case in the will before the court, for it contains no limitation to any particular class or description of the heirs of John the second, as heirs. It has been contended, that there is such a limitation to the heirs of his body arising by implication, on account of the devise over in case, of either of the sons dying and leaving no issue; but the testator must- have intended, leaving no issue at the time of the death. In common understanding dying -without issue means issue living at the death, and any words, which show that to have been the intent of the testator, are sufficient thus to restrict the meaning of the expres-. sian.. He could not . have intended an indefinite failure, of issue, for the words in question relate to all the sons, and three of them clearly took fees, which would not have been determined by a failure of issue at any other time, but that of the first taker’s death..</p> <p>In the construction- of wills, technical words are to be allowed their proper meaning, but if there are no technical words, the intent must he the sole guide. In this will there certainly are no words which, ex vi termini, would give John the second, an estate tail, and if he takes such an estate, it must be by implication, and in order to effectuate the general intent.. But the testator clearly meant, that hi's son should: have no power to alien, which he must have had if he had been tenant 'in tail. Further, a prior estate tail is never to, be raised by implication, when the ultimate estate is for life, and the brothers must'have taken for life in the “ deceased’s “ part,” if he had died without issue, for there were no words. to give them a fee, and they could not take in tail, because they were to take distributively. Besides the ground of implication fails in this case. It is contended, that John Hoge the second, took an estate tail on account of the devise to his “ son,” but that devise was meant to carry the estate to all the sons in succession, and where the sons take in tail male successively:, the father takes only for life. This construction is not to be prevented by the authority of Robinson v. Robinson, for that case established no general rule, but depended on its own particular circumstances, as-has often been-declared by Lord Mansfeld, and many other judges. In that case too, Lord Mansfeld was influenced by events which took place after the making of the will. He was anxious to' preserve the estate in the family, which could not have been done, without giving an estate tail to the first taker. He re-' lied on the following authorities :</p> <p>Bale v. Coleman.(a) Hargrave’s Law Tracts, from page 489 to 578. 1 Fearne, 295, 296. Ray v. Ray.(b) Jackson v. Blanshan.(c) 2 Fearne, 358. 360. Reeve v. Winnington.(d) 3 Com. Dig. Devise, N. 6. 4 Bac. 265. Legacies & Devises, D. Lethicullier v. Tracy.(e) Leonard v. Earl of Sussex.(f) Doe ex dim. Long v. Laming.(g) Bagshaw v. Spencer.(h) Hargrave’s Law Tracts, 557. 1 Fearne 135, 136. 138. Lambert’s lessee v. Pain.(i) Pigot on Recoveries, 60. 3 Wood. 328. Taylor ex dim. Atkyns v. Horde et al.(j) Goodtitle ex dim. Bridges et al. v. Duke of Chan-dos.(a) 2 Black. Com. 172. Tucker’s note. 1 Fearne, 297. 299. Plunket v. Holmes.(b) Grayson v. Atkinson.(c) Jackson v. Merrill.(d) Pettywood v. Cook.(e) Bamfield v. Popham.(f) Smith et ux. v. Chapman et al.(g) Target et al. v. Gaunt et al.(h) 4 Cruise title Devise, ch. 11, sec. 1. 2 Saund. 388, notes. Gulliver ex dim. Corrie v. Ashby et al.(i) 2 Black. Com. 110. 155.</p> <p>I agree, that the intent of the testator should prevail in the construction of wills, but if there are two intents, which aré inconsistent with each other, the least important must give way. The whole will is to be taken together, and the general design carried into effect, though it may destroy some particular one.</p> <p>'My construction of this will is, that John the second, took in tail-male, remainder to himself in tail-general, and that he and his brothers took cross remainders in fee simple, in the estates respectively devised to each.</p> <p>The land devised to John the second, was unimproved wood land, taken off from the large tract on which the testator lived. It was given to John, subject to the expense of improving. The improvement which he was to make must have been that of clearing, and cutting down the wood, which would be waste, and a forfeiture, if done by a mere tenant for life. Besides, if he had gone to ‘the expense of cleai-ing, he might have been a loser in case his estate lasted but for life. A devise of land charged with the payment of a sum in gross passes a fee ; and by parity of reason, if the will had stopped here, John the second would- have taken a fee. But it- proceeds, and provides, that if John the second have a son, he shall enjoy the land at his father’s decease; which gives an estate in tail-male to John the second, as the devise over in case he should'die without leaving issue, gives him one in tail-female.-</p> <p>.That John the second took in tail; appears also from this, that no son of his is so designated as to take by purchase; the expression of the will is, “ a son of a legitimate issue,” which' applies, .^s well to the plaintiffs, as to the defendant, and each of the other sons had as good a right to take, immediately on' the death of John the second, as John the third had, unless the)’' were to come in successively by descent.</p> <p>In answer to the objection, that the estate of John the second, was not to be sold, he said an estate tail cannot be sold by ordinary conveyance, and if it was the testator’s meaning, that this should not be thus sold, his intent would be answered by considering it as an estate tail. If he meant to give an estate tail, and to restrict the tenant from suffering a common recovery, his intent was void, as being contrary to the established rules of law.</p> <p>He relied upon Robinson v. Robinson,(a) and cited 4 Cruise title, 38, ch. 9, sec. 4, and ch. 11, sec. 49, and chap. 12. sec. 20.</p>

<p>Although a mistake in drawing articles of agreement may be proved by parol evidence, yet, in an action of covenant, upon written articles, the plaintiff is not at liberty to prove by parol evidence, an agreement different irom that on which he declares.</p> <p>AsellsB 400 acres of land, and binds himself to procure a patent for the same, on the paymeut of the last instalment. B sells to C a part of the said land, and covenants to procure the patent on the reasonable requestofC,and by the same instrument empowers 0 to procure the patent from A, for which he is to be allowed a valuable consideration. B cannot support an action of covenant against G for not procuring the patent.</p>

<p>■ Where A by a deed re-, citing ati original survey and patent, in which the land was described by courses and distances, and was said to contain 200 acres, and also reciting several conveyances by which the title was derived to him, granted, bargained, sold and conveyed all the said tract of laud, without mention of quantity, and all his right and title thereto, to B, for the entire Sum of 500/., and there turns out to be a deficiency of 32 acres" and 107 perches, in an action for the purchase money, B is not entitled to a deduction for the deficiency, unless there appear to have been, fraud or deception in the sale.</p>

<p>THIS cause was tried in the Circuit Court for Cumberland county, in May, 1808, before the late Judge Smith There was a verdict for the plaintiff, and a motion by the defendant for a new trial, which was over-ruled. The defendant appealed from the judge’s decision, and thus the cause was brought before this Court.</p> <p>The land in controversy, consisting of between two and three acres, was part of a large quantity belonging to John Chambers deceased, who made his will in the year 1756, and devised all his land to his sons Randle, William, (the defendant) and John (under whom the plaintiff claimed) in fee simple, as follows. To his son John, he gave his “ grist mill “ and appurtenances, and also, 50 acres of the most adjacent “ woodland thereunto next adjoining.” To Randle, he gave “ all that improvement, late Andrew Patton's, and all that “ meadow, commonly called the upper meadow, to complete “ on both sides of the spi-ing 200 acres, &c.” And to William^ he gave “ all the rest and residue of his land.”</p> <p>The principal question on the trial was, whether the land in dispute, passed by the devise to John Chambers, son of the testator. The defendent insisted that it did not; and he also gave parol evidence of, and relied on' a partition made as long ago as the year 1768, between John and William, by which this land was excluded from the part devised to John-He gave evidence also, of long possession in himself. This was opposed by strong contradictory evidence on the part of the plaintiff; particularly by the proof of arbitration bonds having been executed by the defendant, and a certain Robert Callender, in July, 1772, reciting that the lands had not been divided. It was contended on the part of the plaintiff, that by the devise of 50 acres, 53 acres passed, according to the custom of the country, by which an allowance of 6 per cent, is made for roads, &c.; that the plaintiff would not have quite so much as 53 acres, including the land claimed by him ; and that, at all events, this small piece of land adjoining the mill, was necessary for its enjoyment and passed as appurtenant to it. The judge was of opinion, that 53 acres passed by the devise of 50 acres, and laid considerable weight on that circumstance. He inclined to the opinion, that the land in dispute was appurtenant to the mill, and upon the whole submitted it to the jury, whether it passed or not by the devise to John, son of the testator. Another ground on which the new trial was contended for, was, that the brother-in-law of the lessor of the plaintiff, conversed with one of the jury concerning the cause, before and after he was sworn.</p> <p>after insisting, that on the facts as proved, the plaintiff ought not to have recovered, contended, 1. that the judge misdirected the jury on the law. A devise of “ a mill with the appurtenances,” only conveys a right to as much land as was necessary for the purposes of enjoying the mill, and had been commonly used as an appurtenant to it. It was wrong to leave it to the jury to decide, whether the land passed by the will, unless they should be of opinion from the evidence, that it had been so used by the testator. The land in dispute could not pass as an allowance of 6 per cent.; because the bequest is of “ 50 acres of wood- “ land adjoiningwhereas, the land in question is cleared land. Nor, when 50 acres are devised in any case, does it mean 50 acres with allowance. Grants by patent expressly include the allowance, but it is not so in a conveyance where it it not expressed.</p> <p>2. There ought to be a new trial, on. account of the interference of the defendant’s brother-in-law with the jury. One of the jury declared, that he derived more information from him, than from the court or jury. There was gross misbehaviour in the jury in suffering him to come among them.</p> <p>dwelt on the facts of the case, and also contended, that the devise of a mill would give a convenient quantity of land adjoining; as a devise of a house or messuage, carries with it a garden, pipes or conduits, and lands used with it; particularly if, as in this case, the word appurtenances is added. He cited 2 Bac. Ab. 397, (Grant) and the cases there cited. Cro. Eliz. 89. Cro. Jac. 121. 3 Wils. 141. 2 W. Black. 726. 1148. 2 Sound. 401. 8 Johns. 59. Co. Lit. 5, a. 56, a. b. Here the jury viewed the ground, and could best judge what ground was necessary to the mill; and the law and fact are mixed together. Under this will, made more than 60 years ago, the allowance of 6 per cent, would pass, by which the plaintiff would be entitled to 53 acres, whereas he gets not quite 53 acres, including the land in dispute. At the time of making this will, all grants and sales were with allowance; and grants, devises, &c. are to be construed according to the usual measure of the country, and not by statute measure, 6 Co. 67. 8 Mod. 276. Sugd. 203. — They are also to be expounded according to the understanding of the country at the time they are made, Arab. 288.</p> <p>2. The plaintiff was not guilty of any misbehaviour, and ought not to be affected by the misconduct of another. The court will not grant a new trial except for misbehaviour of a party. Grovenor v. Fenwick.(a) Nor though affidavit be made that one of the witnesses declared, he had got a guinea forswearing. George v. Pearce.(b) No verdict would stand if the interference of strangers may avoid it. Artful persons will employ persons to speak to the jury, for the purpose of avoiding the verdict if it should go against them.</p>

<p>In Error.</p> <p>THIS was a writ of error to the Common Pleas of Adams county, to bring up the record and proceedings in an action of homine replegiando.</p>

<p>In Error.</p> <p>ERROR to the Common Pleas of Franklin county.</p> <p>This was an action brought by Charles Campbell, the plaintiff below, .against John Brown, the defendant, for money lent, and money paid for his use, and for money had and received by the defendant for the use of the plaintiff. The defendant pleaded non assumpsit, and the act of limitations, and thereupon, issues were joined.</p> <p>The plaintiff gave evidence to prove that his agent, William Findley, had paid a sum of money belonging to him, to Andrew Kennedy and Company, of Philadelphia, for the use, and on account of the defendant. . -</p> <p>The defendant contended, and' offered evidence to prove, that he had remitted to the said William Findley, then in the city of Philadelphia, several orders drawn on the said Findley, to the amount of the sum paid to Andrew Kennedy and Company, and that the money paid to Kennedy and Company arose from those orders.</p> <p>In order to avoid the effect of the act of limitations, the plaintiff gave in evidence a letter of the defendant to him, in which he denied that he was ever responsible to the plaintiff, but referred to a third person whom he represented to be liable, and of whom he offered to assist the plaintiff with evidence to recover.</p> <p>The evidence being closed, the counsel for the defendant prayed the court to direct the jury, that the plaintiff had failed in supporting the issues. The 'court refused to give such direction, but charged the jury to the following effect.</p> <p>Hamilton, President. If the defendant applied to Wil-' Ham Findley to pay the money of the plaintiff, or of others, which was expected to come into his hands, to Andrew Kennedy and Company.■, for the defendant’s use, and'afterwards, in consequence of such application, thé very money of the plaintiff actually came to the handsofthe said Kennedy and' Company, and was applied to the defendant’s use, to which the defendant assented, by availing himself of the credit given for the payment of the said money, and adjusted the account accordingly, it is a good consideration for an assumpsit to the plaintiff, although at the time when the account wasso settled, it may have been supposed by the defendant that the credit had arisen from other sources and from orders' to-which he had a claim and right of property himself.</p> <p>The slightest acknowledgment of the debt by thedefendant is sufficient to take the case out of the statute of limitations. Thus if a letter be written by the defendant, saying:, “ I am ready to account, but nothing is due to you;” or if the defendant say, “ if he has any demand against me, it shall be “ settled ;” and even an ambiguous expression in a letter, neither expressly admitting nor denying the demand, may be left to the jury to be considered whether it amounts to an acknowledgment. The Court have great hesitation and doubt on the present occasion, but submit the defendant’s letter to the jury, that they may determine whether or not it contains an acknowledgment; in order that the plaintiff, if entitled, may not lose his claim, and that the defendant, at the same time, may have the benefit of an appeal to another tribunal, if necessary.</p> <p>If the jury shall be of opinion, that the money came to the use of the defendant, and that he is liable on the principle before stated, but that he held the same under a mistaken belief that it was his own, whether the plaintiff shall have interest, will be the subject of equitable consideration. At all events, no interest should be allowed until after demand was made by the plaintiff.</p> <p>The court sealed a bill of exceptions, which was now argued by</p> <p>They cited Vienne v. M'Carty(a), Rapalje v. Emory(b), Lady Windsor’s Case(c), Pond v. Underwood(d), Day v. Murray(e), Jones v. Moore(f), Jacobs v. Adams(g).</p> <p>cited Bull N. P. 316, Marine Insurance Company v. Young(h), Sluby v. Champlin(i), (k), Smith v. Porter(l), 2 Wms. Saund. 64, note A, 12 Vin. 192. Quintock v. England(m), Smith v. Ludlow(n), Dean v. Pitts(o).</p>

In Error. ERROR to the Common Pleas of Huntingdon county. This was an action on a promissory note of Thomas Cromwell^ the testator of the plaintiffs in error, dated “ Philadel- ^ phia, 14th March, 1806,” for 3090 dollars and 77 cents, payable to the order of Eves and Wistar, upon demand, “ with- “ out defalcation, for value received.” At what time the note was indorsed by Eves and Wistar to Arrott, the plaintiff below, does not appear; but on the 6th May, 1807, Arrott wrote…

THIS was a motion for a rule to shew cause why a mandamus should not be issued against the judges of the Court of Common Pleas of Cumberland county, commanding them to proceed to the examination of Alexander Brackenridge, and if found competent, to admit him to practise as an attorney of their court. . p f ^ * 1 T The motion was founded on a petition, setting forth the following facts: ( ’ The relator had applied for admission as an attorney of the Court of Common Pleas,…

In Error. MPRlDE on the 29th November, 1809, brought an action on a promissory note against Stewart, in the District Court of the city and county of Philadelphia.

In Error. THIS was an ejectment in the Common Pleas of Chester county, where a case was stated for the opinion of the court, upon which judgment was to be rendered as upon a' special verdict. Held: for technical reasons, that an award did not affect the title to real estate ; because it could not be thereby passed. But the law is now altered.

THE defendant had been indicted for a nuisance, and at the trial a verdict of guilty was taken, subject to the opinion of the court in bank, upon the following question: Whether an auctioneer has a legal right to deposit goods to be exposed to sale at public auction, in the public street, .on the footway and cartway, opposite to his own store, and the adjoining houses ; there to remain during the sale, and for a reasonable time before and afterwards.

THIS was . an action of ejectment in which a case was stated for the opinion of the court, in substance as follows : William Shippen, formerly of the city of Philadelphia, doctor of medicine, died seised in fee of a part of the-premises for which this ejectment was brought, having previously made his will, whereby he devised the same in fee, inter alia, to his grandson Thomas Lee Shippen, who was the son of the testator’s son Thomas L. Shippen.

THIS was an action on the case for disturbing the plaintiff in his right of way, and for stopping his water course. The cause was tried at Nisi Prius, before Tilghman C. J. in February, 1814, when a verdict was' found for the plaintiff, subject to the opinion of the court in bank, upon the following facts.

In Error. ERROR to the Common Pleas of Philadelphia county. took three exceptions to the proceedings of arbitrators in this cause, and referred to the 9th, 10th, and 25th sections of the act of assembly of the 20th March, 1810, 5 Smith’s Laws, 134.

<p>In an action of trespass, an alderman, or justice of the peace, may for damages without (lt< intervention of referees, if neither of the parties requestthatthey may be appointed.</p>

THIS was an action for work and labour done as a physician. The defendant pleaded non assumpsit infra sex anuos, and actio non accrevit infra sex annos.

<p>CERTIORARI to the Mayor’s Court of the city of Philadelphia. ;</p> <p>The circumstances of this case are so fully explained in the opinion of the Chief Justice, that any detail of them here would be superfluous.</p>

APPEAL by John Hall, administrator of David Calf laghan deceased, from the settlement of his administration account by the Orphan’s Court of Philadelphia county.

THIS was a habeas corpus to bring before the Court, the body of Augustus Stephenson, a black boy. It appeared, that on the 17th of November, 1814, the boy, then fourteen years of age, was bound before alderman Bar-tram, with the consent of his father, to one Dujfee, for seven years, as a waiter. The indenture was signed by both father and son. On the 12th of the following December, it was assigned by Dujfee to Vanlear, before the same alderman, for a valuable consideration.

THIS case came before the Court on the return to a mandamus, which had been directed to the defendants, commanding them to restore the plaintiff to his standing as a trustee and member of the corporation, or show cause to the contrary. The facts, and the material part of the return, are stated in the opinions of the Court. cited Rex v. Town of Liverpool, (a) and 2 Esp. N. P. 324.

On the 4th of November, 1812, a paper was exhibited to the register of wills, &c. of Northampton county, for probate, as the last will and testament of Jacob Arndt, late of the borough of Easton, deceased, against which a caveat was entered by George W. Arndt, C. Lambert, and John Arndt, who at the same time filed in the office of the register, another paper which they alleged to be the last will and testament of the said Arndt, dated March 6th, 1803.' By the will of 1803,…

THE plaintiff brought an action of trespass vi et armis, for an assault and battery against the defendant, and laid his damages at 2000 dollars.

<p>If an instrument of writing be slated in a bill of exceptions to have been offered in evidence at the trial, and no objection appears to have been made to the proof of its execution, it is to be presumed to have been either duly proved or admitted.</p> <p>If a man devise his real estate to trustees to raise a sum of money, which when raised, they are to put out at interest, for the sole and separate use ofhis daughter, a feme covert, who is to receive the interest annually, and whose receipt is to •bea discharge; she may release her interest, though no express power of appointment be given in the will.</p> <p>It is not necessary, that the wife should be separately examined in such a case,because her interest is personal.</p> <p>A release to, the trustees, executors, and residuary devisees is good4</p>

THIS was an action of covenant upon .two policies of insurance; one dated October 11th, 1810, on 832 bags of ginger, valued at 6500 dollars, on board the ship Union, at and from… Held: that the detention of an English ship by a king’s vessel,- until intelligence was received of an hostile embargo being laid in the port of her destination, in consequence of which the voyage was broken up, and she returned to the port of departure, was not a loss within the policy.

<p>In Error.</p> <p>THIS was a writ of error to the District Court of the city and county of Philadelphia.</p> <p>brought an action of assumpsit, against William Charles the defendant, for work and labour done, money paid, goods sold, &c.; and at the trial offered the deposition of Joseph Osborn, to prove that the defendant, then in jail in New Tork at the suit of the plaintiff, had acknowledged himself to be indebted to him in the sum of 600 dollars, and had entered into a written agreement in-relation thereto under seal, to which Osborn was a subscribing witness. The counsel for the defendant objected to this deposition, but the court permitted it to be read. The plaintiff then offered in evidence the agreement, which was substantially as follows: — After reciting that Charles was indebted to Scott in the sum of 6Q0 dollars, it was agreed that Charles “for securing to the said Scott, the said sum of “ 600 dollars,” should deposit in the hands of Osborn 35 copperplate engravings, which should be re-delivered to the said Charles in case he paid the debt in two years; or if he paid a part of the debt, a number of the engravings, proportioned to the sum paid, was to be re-delivered. It was further agreed that if the debt were not paid in two years, Scott should be entitled to receive the engravings for his own use and benefit. No part of the money was paid within the time, in consequence of which, at the expiration of two years, Scott exposed the engravings to sale at public auction in New York; having previously given Charles notice of his intention to do so, and of the time and place of sale. The proceeds of sale were less than 600 dollars, and this suit was brought to recover the difference between that sum and what the plates sold for. The defendant’s counsel also objected to this agreement being read in evidence, but the court admitted it, “ so far as “ to ascertain the amount of the original cause of action.” A bill of exceptions was tendered and sealed as to both points.</p> <p>contended, that the deposition of Osborn ought not to have been admitted, because it went to prove the execution of a sealed instrument, in which the simple contract debt was merged, and which was not the foundation of the present suit: That the agreement was inadmissible, because a specialty cannot be introduced to support an action of assumpsit. That the plaintiff in error, by accepting an instrument under seal, had rendered the simple contract void, and ought to have brought his action upon the agreement itself. In support of these positions they cited, January v. Goodman,(a) 1 Chitty on Pleadings, 86. 88. 95. 299. Cusson v. Monteir,(b) Bulstrode v. Gilbert.(c)</p> <p>answered that the property mentioned in the agreement was intended and accepted, not in satisfaction, but merely as a pledge or collateral security; the simple contract was thercfore not merged; and that as the instrument was offered at trial, not as constituting the ground of the action, but simply to ascertain the amount of the debt, it was clearly admissible. Thomas v. Terry,(a) South Sea Company v. Dunscomb,(b) 1 Gould’s Esp. part 1. 189, 190. D’Utricht v. Melchior,(c) Beach v. Lea,(d) Howel v. Price,(e) Co. Litt. 209. b. Fermor v. Moses,(f) 1 Bay. 66. 1 Chitty on Pleadings, 97. 2 Comyn on Cont. 561, 2, 3. 1 Powel on Cont. 217. 423. 425. Brook, pl. 68.</p>

In Error. CALEB BALDWIN,, the plaintiff below, brought an action on the case, in the Court of Common Pleas of Chester county, against James Downing, the defendant, for disturbing himwith force and arms, &c. in the exercise of his right to a water course through the defendant’s lands.

In Error. ON the 4th May, 1812, Ralston obtained a judgment before Richard Renshaw, Esq. an alderman of the city, against Miller-, and on the 12th of the same month an appeal was ■entered to the Common Pleas of Philadelphia county. said that the day was not material. now shewed for error that the promise laid in the declaration was after the appeal was entered; to wit, on the Ist June, 1812.

HABEAS CORPUS to produce the body of Florimond Dusar. A foreign attachment had been instituted in the Supreme Court of the state of Delaware, returnable to April Term, 1811, by Mark Richards against Dusar, in which James Riddle became bail. On the 14th April, 1814, judgment was entered against the defendant, who was now in the custody of Riddle, upon a bail piece, dated the 29th March, 1815.

<p>In Pennsylvania a mortgage may be released by an instrument not under seal.</p> <p>A mortgagee signed in the presence of two witnesses a paper expressed thus: “This is to certify, that I have a bond and mortgage from A, which I intend to give up to them, as I never intend to demand it from them, nor any part of the interest due, or to become due at any time.” This paper to ■which no seal was affixed, he delivered to the mortgagor, who ■was the husband of his daughter, but kept possession of the bond and mortgage; and died without having demanded either principal or interest. Held-, That this was an absolute and immediate release of the debt, and an advancement to the daughter.</p>

TESTATUM venditioni exponas to Delaware county. Isaac Smallwood obtained a judgment, and took out execution against the executofis of Isaac Lloyd, by virtue of which a levy was made on a grist mill and saw mill. The property was not condemned, but was delivered by the sheriff to the plaintiff, under the act of assembly of If05, to be held by him until out of the rents and profits, his debt and costs should be satisfied.

DEBT on recognisance. The defendant had been indicted in the Mayor’s Court for receiving stolen goods, knowing them to have been stolen. The indictment was removed to this Court lay certiorari, returnable to March Term, 1813.

In Error. EVERY thing necessary to the elucidation of this case, is, embraced in the opinion of the Chief Justice. A further report cif it would therefore be superfluous.

<p>If the drawer of a promissory note he known by the indorser to have been insolvent when the note was made, and when it became due, the indorser is nevertheless entitled to notice of nonpayment by the drawer. But if the indorser has accepted from the drawer, a general assignment of his estate and effects, notice jis not necessary.</p>

THE following case was stated for the opinion of the court. “ On the 26th day of July, 1796, the defendant being indebted to the United States, for duties on certain goods by “ him imported into the United States, gave his bonds of that “ date ; one of them conditioned for the payment of 24*3 dol- “ lars 44 cents, and the other for the payment of 24*3 dollars; “ in both of which the plaintiff was surety; and the same not “ being paid when due, they were put in suit, and…

THE questions involved in this case arose from an indictment against the defendant, for keeping a disorderly house.

THIS case, .which came before the court on a motion by the defendant for a new trial, was an indictment against Franklin Eyre, containing two counts. The first charged him with an assault and battery upon Joseph Grice, Esq., as-a justice of the peace in the execution of his office : The second, with an assault and battery upon Grice, without regard to his official character.

<p>UPON the application of Abraham Pollinger, a habeas corpus was issued on the 14th February, 1815, to major T. ,y. Robinson, of the 4th United States rifle regiment, commanding him to produce the body' of Jonas Roop, before Judge Brackenridge at his chambers in Carlisle, Cumberland county.</p> <p>The following return was made to the writ.</p> <p>“I have before the honourable Judge the body of Jonas' “ Roop, and say that he is a soldier duly enlisted in the ser- “ vice of the United States, agreeably to the act of congress. “ That I do not at present restrain him of his liberty, but at “ the end of four days from his enlistment I will restrain him “ of his liberty, and claim him as a soldier legally enlisted, “ unless within the four days he should re-consider, and “ withdraw his enlistment.”</p> <p>The enlistment was dated the 14th February, 1815, and was to continue five years.</p> <p>The affidavit of Pollinger stated, that Roop was his apprentice, bound by indenture to serve him for a term, then not expired; that he was confined and restrained of his liberty by major Robinson, and that such confinement and restraint were not (to the best of the deponent’s knowledge) for any criminal, or supposed criminal matter.</p> <p>An affidavit of Hoop was also read, shewing that he had enlisted voluntarily; that he had received two-thirds of the bounty, and that he had seen the residue tendered to his master. It appeared likewise, that he was satisfied with his situation, and did not wish to leave the army.</p> <p>The act of congress under which the enlistment was made, was that of the 10th December, 1814, entitled, “ An act “ making further provision for filling the ranks of the army “ of the United States.”</p> <p>The first section of this law authorises recruiting officers to enlist into the army of the United States',, any free, able-bodied, white man, between the ages of eighteen and fifty years ; which enlistment is declared to be binding on all persons under the age of twenty-one years, as well on those of full age, under certain qualifications mentioned in the next succeeding section.</p> <p>The second section forbids the recruiting officer to deliver to a recruit under the age of twenty-one years, enlisted under this law, any bounty or clothing, or in any manner to restrain him of his liberty, until after the expiration of four days from the time of his enlistment, and declares, that it shall be lawful for the recruit, at any time during the said four days, to reconsider and withdraw his enlistment, and that thereupon he shall be discharged and exonerated from the same.</p> <p>The third section repeals so much of the fifth section of the act of the 20th January, 1813, entitled, “ An act supple- “ mentary to the act entitled, An act for the more perfect “ organisation of the army of the United States,” as requires the consent in writing of the parent, guardian, or master, to authorise the enlistment of persons under the age of twenty-one years, and directs that in case of the enlistment of any person held to service as an apprentice, under the provisions of this act, whenever such person at the time of his enlistment, shall be held by his indenture to serve for any term between two and three years, his master shall be entitled to receive one-half of the bounty; where held to serve between one and two years, the master shall be entitled to receive one-third of the bounty ; and where held to serve one year or less, the master shall be entitled to receive one-fourth of the bounty.</p> <p>The hearing was adjourned by judge Brackenridge to the court in bank, where it this day took place ; major Robinson having engaged that the prisoner should be forthcoming to abide the order of the court.</p> <p>in an elaborate argument, denied that the law under which the enlistment was made, was constitutional; but as the court declined expressing an opinion on the topics urged by him, a report of it is thought unnecessary. He contended also, that the court had a right, either under the 13th section of the habeas corpus act of 1785, Pur don, 205, or at common law, to deliver the apprentice to his master. Commonwealth v. Rhoda Nutt, 1 Browne's Rep. 143.</p> <p>said, that it was not necessary for the court to consider the validity of the act of congress, and they would not undertake gratuitously to decide a question of such importance. He insisted that this was not a case within the habeas corpus act. It was a contest, he said, between the officer and the master about property, and the master had his remedy by action against any person who seduced or harboured his apprentice. He might likewise have a warrant to arrest the apprentice under the act of 1770. Purdon, 4. The act of 1785 was passed for the better securing of personal liberty, and preventing wrongful imprisonment. The 13th section, under which the present application is made, requires an affidavit of the person confined or restrained, or that of some person in his behalf, and the court is only authorised to bail, remand or discharge the prisoner. None of these things the court is now called upon to do, since the apprentice is under no restraint, and wishes to remain in the army. Of course, therefore, they cannot interfere under the act of assembly.</p> <p>Mr. Ingersoll denied that at common law, a habeas corpus would lie in Pennsylvania. He cited in the course of the argument, 1 Leach, 242. 2 Bl. Com. 131. 133. 138. Parl. Deb. Vol. 5, 223. (1757). 3 Bac. Ab. Flab. Corp. 438. (Guil. ed.)</p>

<p>Ajudge at JVisi Pnus, is not authorised to order a non-suit for the non-production of papers, under the act of 27th February, 1798. The order must he made by the court in bank.</p>

THIS was an action on the case, in the nature of a writ of conspiracy, for maliciously and without probable cause, procuring writs to be sued out, by virtue of which the plaintiff was arrested, and held to bail in several suits.

A CAPIAS was issued in this case against the defendant, and bail demanded in 26,000 dollars. He now moved to abate the writ, alleging that he was a freeholder, and exempted from arrest in civil suits by the act of the 20th March, 1724, 5. • ■ , .

IN this case Sergeant for the plaintiff moved to dismiss certain exceptions to a report of referees, because they were not accompanied by an affidavit. said that there was no rule of this court requiring an affidavit. referred to the rule of the Court of Common Pleas of February, 1789, No. 23, p. 53, and said, that the practice of this court had uniformly been according to that rule.

A HABEAS CORPUS was directed to Abraham Kendig to bring up the body of Jane Bantham, whom he claimed aa. his indented apprentice. The whole case is comprised in the opinion of the court, which was delivered by the Chief Justice.

THE jury empanneled in this cause, which was an action for freight and demurrage, found a verdict in these words : — “ We find for the plaintiff, and are of opinion, that “ the plaintiff has already received out of property of the de- fendant, payment in full for the amount of freight to which he is entitled.” on the ground that the finding was too uncertain to admit of a judgment being entered upon it.

<p>In Error,</p> <p>THIS cause' was brought up from the District Court of the city and county of Philadelphia, by writ of error.</p> <p>. In the court below an action of replevin was brought to December, 1808, by John Vanarsdall against William Diving, John Cook, Rebecca Cook, and Peter Winn. The pleadings, shortly stated, stood thus :</p> <p>“ September 27th, 1809, defendants William Ewing, John Cook, and Rebecca Cook, avow for rent in arrear. Peter a Winn makes cognisance.” “ Rep. no rent in arrear.” “ May 7th, 1810, plaintiff adds the plea of non demiserunt “ and eviction.” “ September 19th, 1811, defendants reply, “ no eviction.”</p> <p>At the trial, the defendants produced a lease from William Ewing to Vanarsdall, and relied on that alone to support the issues. The president of the court, however, charged the jury, that the issues must be proved as joined: That therefore, the avowry being by three of. the' defendants, proof of rent due to one, was not sufficient to maintain the issues on their part.</p> <p>The jury found a verdict for the plaintiff, and the record was now returned, with a bill of exceptions to the opinion of the court.</p> <p>The case depends upon the nature of an avowry in replevin, and the mode of pleading practised in our courts. An avowry it is true, is in the nature of a declaration, to set' forth the defendant’s claim; but it is not nefcessary that it should be as precise and formal as a declaration in debt, as appears from the authorities referred to by Bacon. In one case a man avowed in the name of himself and his wife, for a rent charge belonging to the wife, which was in arrear before the marriage, and it was adjudged a good avowry, although the rent could not be in arrear to him and his wife,_ the marriage having not then taken place. In another case, where the defendant made cognisance as bailiff to A,.administrator of B, and it appeared that A had a right, but not as administrator, the cognisance was admitted to stand as bailiff to A, and the rest was considered surplusage. 6 Bac. Ab. 77. Avowry, K. A short entry of a plea may be filled up in any manner not inconsistent with the entry. If the avowry in this case had been drawn in form, there would have been a profert of the lease from Ewing to Vanarsdall; and Ewing being entitled to the rent, he alone must be regarded as the avowant, and the two Cooks must be considered as having made cognisance as his bailiffs. The precise abstract meaning of the words, is not to govern, in the construction of a plea of this kind, but if the whole matter set forth, amounts to an avowry, or to a cognisance, the court will construe it accordingly, so as to do justice between the parties. As to the nature and form of avowries, the counsel cited, 1 Jacob’s Law Dict. Avowry. 1 Chitty on Pleading, 531. 2 Do. 508. 512. 1 Saunders, 347, C. note 4. Cro. Jac. 282. 373. Bulst. 135. Comb. 27. 3 Dy. 256, b. 6 Bac. Ab. 81. 83. Replevin and Avowry, K.</p> <p>The plea of wore demiserunt, must be referred to the avowry; and if the avowry sets forth the lease, as it would were it formally drawn, the plea refers to the lease. The use of the plural instead of the singular number is immaterial.</p> <p>Issues were joined, 1. On the avowry. 2. On the cognisance. 3. On the plea of non demiserunt. 4. On eviction.</p> <p>The avowry was by Ewing and the two Cooks jointly. It is true it was entered shortly, but it Was perfectly intelligible, and must be supposed to contain, every thing necessary to be inserted, were it drawn at length. An avowry is in fact a declaration, by which the avowant’s claim is shown. Here the avowry was by three, and from the evidence it appeared, that rent was due to one only. It will hardly be pretended that fin action of debt for rent, by Ewing and the two Cooks, could be supported by such testimony. . Upon the same prinple, an avowry cannot be sustained. Salk. 390.</p> <p>The cognisance by Winn, as bailiff of Ewing and the Cooks, shows that they were aware of the distinction, and that they intended.to-claim the rent aS due to themselves. The plea of non demiserunt brought the demise by the three avowants, directly in question; it embraced them all,; and a demise by one only having been proved, the court below was plainly right in charging the jury, that the evidence did not support, the issues. Carth. 74. 76, c. 25, a.</p>

EJECTMENT. The following case was submitted to the court. “ On the “ 22d day of May, 1787, Christian Wirts being seised in his “ demesne as of fee of the premises in the declaration men- “ tioned, granted the same to Philip 'Wager and Hannah his “ wife, and to the children and heirs of the said Hannah, and “ the heirs and assigns of such children ; Habendum to the “ said Philip Wager and Hannah his wife, and to the chil- “ dren and heirs of the said Hannah, to and for the…

<p>The “ two reputable citizens,” directed by the lOtli section of the act of 11th April, 1799, to be returned by the assessoi of each ward or township, to the county commissioners* in order that they may choose one of them collector of taxes, must be resident 'within the ward or township for which they are returned, and possess a freehold therein.</p> <p>If the assessor return two persons, one of whom is qualified, and the other is not, the commissioners are not bound to appoint either.</p> <p>If the 'assessorreturn persons who are not legally qualifie d for the office of collector of taxes, the commissioners may appoint another person to that office; but the person so appointed, must possess the same qualifications which are required by the act, for those to be returned by the assessor.</p> <p>An information in the nature of a quo "warranto, although a criminal proceeding in form, is in substance but a civil one; and is therefore not within the prohibition of the 10th section of the 9tn article of the constitution of Pennsylvania.</p> <p>Every citizen who pays taxes, has such an interest as will authorise an information, in the nature of a quo imrrantOy to he filed at his suggestion, to inquire by what authority the collector exercises his office.</p> <p>A collector, who is in arrear for the collections of former years, and has not given security for the payment of those arrears, is, for that reason alone, disqualified for the office.</p>

THE record in this cause was removed from the May- or’s Court of the city of Philadelphia by certiorari. The case was shortly this : — An order was made by two aldermen of the city of Philadelphia for the removal of Catharine Paid, a pauper, and her three children, Robert, Rachael, and Jane, to Bucks county.

HABEAS CORPUS to the keeper of the prison of Phi~ ladelphia. Peter Morris had entered as seaman on board the Danish 'ship Resolution at Liverpool, to perform a voyage from that port to Philadelphia, and back to any port in Europe. On his arrival in Philadelphia he deserted.

In Error. UPON a writ of error to the Common Pleas of Bucks county, a bill of exceptions to the admission of testimony, and another to the charge of the court, were returned with the record, and presented the following case: James Hutton brought an action in the court below, against Robert Coe, jun. surviving partner of the late firm of Robert Coe & Son, and declared for money paid by him for the use of the firm, and money received by them for his use.

THIS cause had been submitted to arbitration under the ■act of assembly of the 20th March, 1810. The award of the arbitrators was left with the prothonotary of this court, at his house, out of office hours, on the evening of the 1st August, 1814. On the following morning it was filed in the office, and entered on the docket. ■On Monday, the 22d August, the defendant appealed.

<p>An action of assumpsit on a warranty upon the sale of a horse, is within the jurisdiction of a justice of the peace, under the act of 1st March, 1745; and if the plaintiff brings his action in the Common Pleas, and recovers less than 201. he is not entitled to costs.</p> <p>Biiackeniiidge J. diss. Juries cannoV .give costs where the law • denies them.</p>

In Error. THIS was a writ of error to the Common Pleas of York county, upon which a bill of exceptions was returned with the record. Held: except the single case of a gift in frankmarriagé : and even as to that, we have only the dictum of Lord Coke, who says, some persons thought differently.

In Error. ERROR to the Common Pleas of York county. moved to quash the writ of error, because no judgment was rendered by the court below. alleged as the ground of the writ, that the court below ordered a juror to be discharged, because the plaintiff had not evidence to prove a writing; the subscribing witnesses not being produced.

In Error. ERROR to the Common Pleas of Dauphin county. The record in this case contained the charge of the president of the court of Common Pleas of Dauphin cóunty, which was reduced to writing, and filed at the request of Bassler the defendant below, according to the act of assembly of the 24th February, 1806. now moved for a mandamus, commanding the president of the court of Common Pleas, “ to return the evidence given in this cause, “ on which his opinion was founded.”…

<p>In Error.</p> <p>ERROR to the Common Pleas of Lancaster county.</p> <p>Vanlear the plaintiff below, brought an action of debt against Frey, to January Term, 1814. The writ was a summons in debt not exceeding 1000 dollars. The suit was arbitrated by the plaintiff; and the arbitrators returned the following minutes of their proceedings indorsed on the rule.</p> <p>“ Four of the arbitrators within mentioned, to wit: George P. Freyer, William Ferree, Jacob Duchman, and Henry Diffenbach, met at the time and place in the within order mentioned, viz. 19th August, 1814, and Michael Coble not attending, the ,within named parties mutually agreed, and chose John Burk in his stead and place; and after hearing the par- . ties, their proofs and allegations, for want of evidence, postponed to Thursday the 1st of September next, at 2 o’clock in the afternoon. September the 1st, said arbitrators met, and adjourned to Thursday the 15th inst. at 2 o’clock in the afternoon.</p> <p>“ October 21st, 1814, the within named arbitrators met, (and John Burk substituted for Michael Coble,) have met a third time without having or receiving any further evidence, but one witness, (ex parte); after hearing the parties at the first time, to the best pf our judgment, do find for the plaintiff the sum of five hundred sixty-eight dollars and seventy-five cents, and costs of suit. Witness our hands and seals the day and year aforesaid.”</p> <p>Upon this award judgment was entered.</p> <p>The following exceptions were now taken to the proceedings below.</p> <p>1. That there was no declaration or statement filed.</p> <p>2. That the arbitrators heard a witness in the absence of the defendant, at a time to which they had not adjourned, without notice to the defendant.</p> <p>3. The writ should, have stated the cause of action, such as debt by bond, note, or otherwise.</p>

<p>In Error.</p> <p>THIS was a writ of error to the Common Pleas of Schuylkill county, on which a bill of exceptions was returned with the record.</p> <p>John Myer, deceased, having purchased a tract of land of the plaintiff, and received a deed of conveyance for the same, with a covenant of special warranty, executed a mortgage of the laud so purchased and conveyed, for securing the payment of part of the purchase money. The plaintiff issued a scire facias,on the mortgage, and on the trial the defendant, pursuant to notice in writing according to a rule of court, offered to give evidence, that part of the mortgaged premises had been evicted by a title paramount to that of the plaintiff. This evidence was objected to by the plaintiff, but admitted by the court, who sealed a bill of exceptions.</p> <p>contended, 1. That the mortgagor was estopped from controverting his own title, upon .the same ground that a lessee shall not dispute the title of the lessor, 2 Bl. Rep. 1259, nor the lessor his right to demise, 4 Burr. 2209. In Galloway v. Ogle(a) it is said by Yeates J. that, the tenant shall not dispute the title of the landlord, nor the mortgagor, the title of the mortgagee. They cited 3 Com. Dig. Estoppel, 4. 269. Trevivian v. Lawrence.(b) Hermitage v. Tomkins.(c) Willes, 9. 10 Vin. 435. pl. 18, 19. ib. 431. pi. 5, 6. 8. Co. Litt. 352, note. 2 Fonb. 468. 6 Johns. 34. 7 Johns. 150. 186. 4 Johns. 221.</p> <p>2. The deed of conveyance from the plaintiff to the defendant contains a recital of the whole title, with a clause of warranty against himself and his heirs only. This embraces all that the plaintiff intended to make himself responsible for, or that the defendant looked to in the contract: and to make the plaintiff liable beyond it, confounds all distinction > between general and special warranty, and would be a violation' of the agreement of the parties. It is the established law, that the vendee cannot recover his money in law or equity if evicted by title, to which the covenants in his deed do not extend. Sugden, 313. And that when the conveyance is executed, the purchaser has no relief, although the money is only secured, ib. 315. The law might be different if the contract were only executory, and the deed not executed. In Bree v. Holbeck,(a) it was decided, that an action for money had and received, would not lie to recover back a sum of money paid in consideration of an assignment of a mortgage, which afterwards turned out to be a forgery. The reason given is, that the assignor not having covenanted for the goodness of the title, but only that neither he nor his testator had encumbered the estate, it was incumbent on the assignee to look to the goodness of it. This reasoning applies with equal force to the case where the contract has been fully executed, and the money secured, though not actually paid. 1 Fonbl. Eq. 363,4, 5. The evidence was introduced on a notice that it would be given in order to reduce the plaintiff’s claim, which is a confession that part was due: but the jury have found for the defendant.</p> <p>1. The doctrine of estoppels is odious even at common law: but it is not applicable in our courts, because we are allowed to go into the equity of the case. Chancery will relieve against estoppels when they shut out the truth. 2 Fonbl. 470. Bunb. 11. 2. The plea in this case is payment withleave, &c.: the same plea being allowed in Pennsylvania in proceedings on a mortgage as in proceedings on a bond. A mortgage is now considered only as a pledge for money: and the suit upon it is for the recovery of a debt, just as in the case of a bond. Hence the act of assembly of 1705, allows, in a scire facias, “ any lawful plea in avoidance of the deed or debt.” The law and practice in Pennsylvania are perfectly settled in favour of a defence such as we contend for: and the opinions of elementary writers to the contrary are not to be regarded, further than they are supported by adjudged cases. In 2 Cas. in Ch. 19, an anonymous case in ,1774, A sold to B with covenants only against himself ,and all claiming under him, and B .gave security for the purchase money. Before payment the land was evicted by tide paramount. B filed a bill in equity and obtained relief from the payment of the purchase money. In Tourville v. Naish,(a) the purchaser paid part and gave bond for the residue. Before the bond was paid an incumbrance in equity was notified to the purchaser. It was held that the purchaser should be relieved to the amount of the incumbrance.' In an anonymous case in 1687, 2 Freem. 106, it is said by Lord Commissioner Rawlinson,' that there was a distinction between money paid and money not paid. In the former case the purchaser is not relieved :• in the latter he is. There is a settled distinction between recovering back money and resisting the payment of it. Notice that the evidence was intended to reduce the plaintiff’s demand is no .admission of any part being due: it may be reduced to nothing. Besides, for aught that appears, there might have been proof of direct payment. 2 Wms. 219. Hick v. Phillips.(b) Powel on mortgages, 13. 170. 1 Dall. 142. 2 Binn. 93. Hollingsworth v. Ogle.(c)</p> <p>Reply. The defence is in contradiction to the agreement of the. parties, which was, that the plaintiff should warrant against himself and his heirs only. The-purchaser often pays a less price where the warranty is but special. The anonymous, case in 2 Cas. in Ch. 19. is not. worthy of much consideration. It is not clearly stated, nor does there appear to have been much argument or reflection. Neither is much weight to be attached to the dictum in 2 Freem. 106. The case in 3 Wms. 307, does not support the principle contended for. It was between the equitable, incumbrance, and the purchaser: nor does it appear who made the Encumbrance or what was the contract between the vendor and vendee. But the case of Bree v. Holbeck,(d) is decisive .in our favour. It,is true, equity will not interfere, in certain , cases, to compel execution. of contracts where the consideration has failed :. but .that is another principle. -The party is there left to his contract at daw; equity will not give. extraordinary relief. Our mortgage act gives permission to plead payment, satisfaction, or any thing which may legally avoid the deed: but not to let in a defence like the present. Supposing the case of a bond: it is doubtful whether such a defence could be admitted. But if it could, the case of a mortgage is different: because, the judgment on the mortgage is restricted to the mortgaged land: but judgment on a bond affects the person and general property of the defendant. As to the practice or understanding in Pennsylvania, it is denied that there is any such as has been stated. It is admitted, that cases of fraud or unfairness are exceptions: but where they do not exist, the deed of conveyance is to decide, conclusively, the interest of the parties:</p>

In Error. ERROR to the Common Pleas oí'Lancaster county. The plaintiff brought an action against the defendant to recover damages for the continuance of a nuisance. On the trial the plaintiff gave in evidence, the record of a recovery • : in a former action, brought by him against the defendant for the erection of the nuisance, and contended, that it was conclusive evidence of the cause of action contained therein.

THIS was an appeal from the Orphan’s Court of Dauphin county. Held: occupied, and enjoyed by him, his heirs and assigns, “ upon his paying to the after-named persons, the after- “ named legacies, at the times hereinafter mentioned.”— [Here follow fifteen legacies of 50 pounds, each, to his nephews and nieces.] — •“ And further, it is my will, and I here- “ by order it, that at the end of one full…

THIS was an appeal from a decree of the Orphan’s Court of Dauphin county. On the petition of the defendant, that court made an order for the sale of the real estate of Hess, in payment of his debts : and a sale took place accordingly.

<p>A lessee may give parol evidence that the lessor undertook at the time of the execution of a written lease, to perform a covenant agreed to be inserted in the lease, but omitted.</p> <p>It is settled law that parol evidence is admissible in casos of fraud, and of plain mistake in drawing a writing.</p>

<p>An intestate left a widow, a father, a brother and .sister, and no children. On partition of his real estate by-authority of .the Orphan’s Court, the share assigned to the widow was thrice the value of that assigned to the father: but the rents were nearly equal. Thq_ partition wa3 set aside on account of its inequality.</p> <p>Qwei^,Whether the Orphan’s Court has power to make partition, where the intestate leaves a widow, a father, a brother and sister, and no children ?</p> <p>If it has, such partition would be binding on the reversionary interest of the , brother and sister.</p> <p>It is not right that persons connected by affinity to either party, should be placed on an inquest**.</p>

CERTIORARI. This case came again before the court, on a motion made by the plaintiff in error for a certiorari, upon a suggestion of diminution filed by his counsel: on which, after argument, the court delivered their opinion, as follows :

MANDAMUS. A rule had been formerly granted upon the defendant, who was secretary of the land office, to show cause why a mandamus should not issue in this case, and he had addressed a letter to the court, assigning the reasons why it ought not to issue,

In Error. ERROR to the Common Pleas of Dauphin county. This was an action on a promissory note given by Steigle-' man, the defendant below, to Jeffries, the plaintiff, for the contended, that the charge of the court was erroneous. It is fully settled that a party may maintain an action on a warranty of this kind, without a return of the property, unless there is an agreement to return it in a certain time. 2 Comyns on Cont. 263, 4, 5. 277. 279. 282.

CERTIORARI. This was a certiorari directed to Frederick Hubley and John Breitenbach, Esqs., two justices of the peace of Lebanon county, to remove the proceedings touching an inquisition of forcible entry and detainer. Upon this certiorari the following proceedings were returned. The Commonwealth J • v. > Adam Stoever. \ Forcible entry and detainer.

CERTIORARI. This was a certiorari to the Quarter Sessions of Lebanon county, to return the record in the case of the state road from Jones-town in Dauphin county to Orwigsburg, and thence by Solomon’s Gap to Wilkesbarre in Luzerne county, so far as the same is laid out in Lebanon county.

In Error. ERROR to the Common Pleas of Luzerne county. The defendants in error, the plaintiffs below, brought an action against Peter Gallagher and John Evans, before a justice of the peace, upon which judgment, by default, was entered for the plaintiffs for 96 dollars 54 cents.

<p>In Error.</p> <p>THIS ivas a writ of error to the Common Pleas of Northumberland county.</p> <p>It was an action brought in the name of the defendant in error, the plaintiff below, as successor to Jacob Rush, president of the Orphan’s Court, for the use of Semple and wife, against the defendants, Taggart and Murray, upon a recognisance entered into in the Orphan’s Court of Northumberland county. The declaration was in debt for 22717. 14s. 6d. and stated, that “ whereas the said Robert Taggart and Wil- “ Ham Murray, on the twenty-ninth day of January, 1796, at “ the county aforesaid, before the judges of the Orphan’s “ Court, then held at Sunbury, in and for the county afore- “ said, did acknowledge to owe, and bound themselves unto, “ the said Jacob Rush, then president of the said court and his “ successors, to pay to him and his said successors, the sum of “ two thousand two hundred and seventy-seven pounds, four- “ teen shillings, and six pence, when thereunto they should “ be required; nevertheless, the said Robert and William, or “ either of them, although required, the said sum of money “ have not paid j but the same to pay to the said Jacob Rush, “ then president of the said court and to his successors, or the “ said Thomas Cooper, Esq. since, or to either of them have “ altogether refused, and still refuse, to the damage of the “ said president last aforesaid, one thousand pounds, and “ therefore-he brings suit.” The defendants prayed oyer of the recognisance, &c. and pleaded nul tiel record. Issue being joined, the court below, after a hearing, decided, that there was such a record; but no judgment was entered.</p> <p>This case was argued in June, 1814, but the court on examining the record that had been sent up, perceived that it did not contain the record of the Orphan’s Court, on which the Court of Common Pleas had decided, on the issue of ml tiel record. They therefore directed a certiorari to be issued to certify it.</p> <p>jt now appeare(j? by the record of the Orphan’s Court, returned on the certiorari, that an inquisition had been held under an order of the Orphan’s Court for the purpose of making partition and appraisement of certain real estate among the heirs and representatives of Thomas Taggart, deceased. The jury in their inquisition appraised the property, and returned, that it could not be divided without injury to and spoiling the whole. The Orphan’s Court, on the prayer of Robert Taggart, the eldest son of the deceased, confirmed the inquisition and appraisement, and awarded the property to him according to the act of assembly: and directed the said Robert, together with a sufficient security, to enter into a recognisance to the president of that court, in double the sum of the valuation of the estate, conditioned for the payment of such shares, dividends, purparts, and sums of money as the court should awafd and distribute to, and amongst the heirs and legal representatives of the deceased. Then follows this entry: — “ And the said Robert Taggart “ and William, Murray do jointly and severally acknowledge “ themselves to be held, and firmly bound unto Jacob Rush, “ Esq., president of this court, and his successors in office, in “ the sum of two thousand three hundred and seventy-seven “■ pounds, fourteen shillings, and six pence, money aforesaid, “ which sum the said Robert willeth and granteth to be levied “ of the said tract of land and premises upon the conditions “ above mentioned.” The record went on to state that the court found the clear valuation money to be 11381. 17s. 3d. which they divided among the heirs, awarding to Christiana, wife of James. Semple, the sum of 126/. 10s. 9d. payable 28/. 2s. 4 \%d. in eight months, the like sum in sixteen months, the like sum in twenty-four months and at the widow’s death 42/. 3s. 71d. . '</p> <p>took the following exceptions.</p> <p>1. The breach is not well assigned in the declaration. It only alleges that the defendants did not pay the amount of the recognisance. Regularly the condition should have been set forth and the breach, shown to consist in its nonperformance.</p> <p>2. There is no proferí of the recognisance.</p> <p>3. There are variances between the declaration and the recognisance. The narr. is for 2277l. 14s. 6d.: the recognisance is for 2377/. 14s. 6d. A further and most material variance is, that Murray is not bound to any thing: it is binding only on Taggart: for it expressly stipulates, that the sum is to be “ levied of the said tract of land and premises, " upon the condition above mentioned.”</p> <p>4. There is no averment that Cooper was the successor of Rush as president of the Orphan’s Court. This was a material fact which we might have traversed.</p> <p>5. The recognisance was null and void : there was no authority to take the recognisance in the name of the president of the Orphan’s Court. The words of the act of 19th April, 1794, sect. 22, require that the child shall pay or “ give good “ security for the payment thereof, in some reasonable time “ not exceeding twelve months, as the Orphan’s Court shall “ limit and appoint.” It was said by C. J. M'Kean in Walton v. Willis,(a) that the court ought to take recognisances instead of bonds: but they cannot be taken in the name of the president of the court. The Orphan’s Court has no right to make him a trustee for the children, and perhaps subject him to costs in an action brought in his name. It does not appear that Judge Rush ever consented to this recognisance. They cited, 6 Com. Dig. 173. Record, (C) Chetly v. Wood.(b) Rann v. Green.(c) William v. Hoskins.(d)</p> <p>1. Oyer was not prayed of the condition of the recognisance, but only of the obligatory part. Therefore no breach need be assigned, but non-payment of the money.</p> <p>2. Profert of a recognisance is not necessary. Even if it were, it is dispensed with when oyer is prayed and the record is produced.</p> <p>3. The variance alleged in the sum, arose entirely from the mistake of the clerk. The court ordered the recognisance to be in double the amount of the shares of the several children : and the mistake happened in doubling the amount. But this variance cannot now be taken adyantage of. The plea of nul tiel record goes to the record set forth on oyer, which then forms part of the narr. Hardin’s Rep. (Kentucky) 501. 504. 3 Cranch, 234. Such variance must be taken advantage of by demurrer, or pleading; it cannot be taken advantage of as error. 5 Bac. Ab. 438, (Wilson's ed.) Pleas, &c. J. 3 Cranch, 229. 2 Binn. 76. Hardin, 507. The words “ to be levied on the said tract of land and premises,” should be rejected as surplusage: there are other words sufficiently binding on both recognisances.</p> <p>4. It was not necessary to make a distinct averment that Thomas Cooper was successor to Jacob Rush: At any rate it was only cause of demurrer.</p> <p>5. The act does not designate any person in whose name the security shall be taken: and the practice has been different in different counties. The mode adopted in this case was constantly pursued in Northumberland county till the year 1811, when it was altered. It answers every purpose of security intended by the act. But even if not taken, as it was intended by the act, it is good at common law. 2 Str. 1137. A bond is good at common law, though taken by a court without authority. Addison, 72.</p>

In Error. THE plaintiff, Jared Irwin, had been sheriff of the county of Northumberland for three years.

In Error. THIS was a writ of error to the Common Pleas of Luzerne county. . J It was an ejectment for a tract of land in the township of ¡ Claverack, in Luzerne county. In the court below the fol- j lowing facts were stated by referees, and submitted to that’ court for its opinion. !

In Error. THIS was an ejectment for lands in Mifflin county. The title of the parties is stated in the first volume of Binñey’s Reports, p. 247, and the opinion of this Court on a former writ of error, is given in the second volume of Binney’s Reports, p. 162. On the trial of this cause, the court below was requested to charge the jury on the following points : ■ 1.

<p>Where the original draft of a survey found among tlie papers of a deceased surveyor had no name inserted in it, a .deposition by a person who assisted in making the survey, that he believed a a copy of the said draft was a copy of a draft made for the defendant and delivered to him at the timeofsurvey, cannot be given in evidence by the defendant, without producing the draft given to him, or accounting for its non-production.</p> <p>Such deposition is not admissible to prove that the surveyor told the deponent at the time the survey was made, that the defendant lived on the land.</p> <p>Depositions before the Board of Property are not evidence in a trial at law, even between the same parties. But an cxpavte deposition used before then* by the adverse party is admissible, if produced to take from the weight of their decision, by showing the sort Of evidence on which they decided.</p> <p>Where a caveat had been entered, and continued, against a third person, having no title, but to whom a draft of survey had first been delivered, evidence may be given of his declarations, that he claimed the land, in order to account for the caveat.</p> <p>The plaintiff read in evidence a title deed reciting that possession of the land in dispute had been delivered to A. according to contract. Held, that to rebut the presumption of out-standing title he might shew that A. admitted he had sold to another who had sold to the plaintiff.</p> <p>After a person has parted with his interest, his declarations are not evidence' to impeach the title derived from him: though adduced to corroborate wluit lie had said before, or what was sworn by another witness.</p>

In Error. THIS was a A ejectment in the Common Pleas of Luzerne county, brought by Matthias Hollenback, the plaintiff below, against George Nace and Peter Shaffer, in which John Hollenback was admitted to defend as landlord.

In Error. THIS was a writ of error to the Common Pleas of Mifflin county.