Volume 1 — Watts's Pennsylvania Reports

<p>ERROR to the court of common pleas of Berks county.</p> <p>In this case, Jacob Gosler, whose father died intestate, had taken certain parts of the real estate of the intestate, Nos. 1, 4 and 6, according to a partition and valuation which had been made of it, under a writ issued for that purpose out of the orphan’s court of Berks county; and had entered into recognizance, to pay to the widow of the deceased the interest annually upon one third of the valuation money during her life, and to pay to the other children, four in number, their respective portions of two thirds of the valuation, in one year, with interest; and their proportion of the remaining third upon the death of the widow. He also, at the same time, gave his bonds to them for the payment of the first two thirds, which were to be paid with interest in one year. The father died on the 24th of January 1816. The lands taken by Jacob were decreed to him by the orphan’s court on the 7th day of Jan.uary 1817-; and on the 10th of the same month, he entered into the recognizance and gave his bonds.</p> <p>A suit was brought against Jacob, upon his recognizance, in the court of common pleas of Berks county, to August term 1822; and on the 12th of August 1822, judgment was obtained against him, in favour of the other children and heirs of his father, for the balance unpaid to them of their respective portions of the first two thirds of the valuation money. On the 25th of March 1823, Jacob had paid off all the bonds given, with the exception of the one which he had given to his brother John; upon which there remained a balance due of about 650 dollars, which John on that day, for a valuable consideration, assigned to Joseph Hoch, the defendant in error.</p> <p>At November term 1820 of the court of common pleas of Berks county, Jacob Gossler confessed a judgment to John V. Epler, for a penalty of 2000 dollars, to secure a debt which he owed to him ; and on the 11th of November 1822, in the same court, Peter Rodermel, another creditor of Jacob Gossler, obtained a judgment against him for 546 dollars and 10 cents, upon which an alias fieri facias was issued to April term 1824, and the parts Nos. 1 and 6 of the estate, late of the father of Jacob Gossler, which had been decreed to Jacob by the orphan’s court, were levied on as the estate of Jacob, and condemned ; and under a writ of venditioni exponas, issued to August term 1824, both parts were sold to Elizabeth Gossler, the widow; No. 1 at 681 dollars, and No. 6 at 6 dollars, subject to her annuity. The money arising from these sales was paid by her to Daniel Kerper, the sheriff and plaintiff in error, who still holds it to pay Conrad Shep, a creditor of the deceased.</p> <p>In the common pleas of Berks county, to November term 1824, a suit was brought against the administrators of the father of Jacob Gossler, upon a bond given by him to Conrad Shep, dated the 27th day of May 1813, in the sum of 200 pounds, conditioned for the payment of 100 pounds three years after its date, and on the 8th of November 1824, judgment was rendered in favour of Conrad Shep, for the amount of the bond.</p> <p>' Upon this statement of facts, contained in a case stated, and agreed to be considered in the nature of a special verdict, the court below rendered a-judgment in favour of Joseph Hoch, who was the plaintiff there, against the plaintiff in error.</p> <p>The following errors were assigned.</p> <p>1. By acts of intestacy before the 4th of April 1797, the debts of testators and intestates were charges on their real estates indefinitely.</p> <p>2. The change made by the act of the 4th of April 1797, was in favour of bona fide purchasers only, and does not embrace creditors.</p> <p>3. Jacob Gossler, under whom the plaintiff in error claims for the use of Conrad Shep, took the land in question -as heir, and not as purchaser, and as he held it under the charge and liable to the debts of his father, the plaintiff claims under said Gossler and stands in his shoes.</p>

<p>ERROR to Westmoreland county.</p> <p>This was an action of slander, in which Samuel Bushfield was plaintiff, and David Beirer was defendant. The words laid in the declaration to have been spoken were, “he was guilty with a woman, for he went into bed with Mrs Kislar, and stroked her, and he could prove it“ thereby meaning that he, the. said Samuel, had committed the crime of adultery with the wife of the said John Kislar.” It was no where stated that the plaintiff was a married man. The praecipe, by which the action originated, was dated the 2d July; the writ issued on the 4th July; and the words were laid to have been spoken on the 4th July. The cause was referred to arbitrators, who made an award for the plaintiff, upon which judgment'was entered; and to reverse which this writ of error was sued out, and the errors assigned were,</p> <p>1. That the words were not actionable.</p> <p>2. That they are charged to have been spoken since the commencement of the action.</p>

WRIT of error to Westmoreland county. This case originated on a writ of scire facias by the Westmoreland Bank of Pennsylvania against Robert Rainey, to revive a judgment against him. Held: and the damages assessed at the sum of 941 dollars and 89 cents; and on thelSth January 1823, judgment entered on the inquisition, as appears by the record and proceedings in No. 63, February term 1822, which are made-a' part of this statement.

This was an action of trespass quare clausum fregit, by Rachel Watson against John Shepherd. The only question was, whether the plaintiff had a right of way to a certain four feet alley. What gave rise to the question is fully stated in the opinion of the court.

<p>In an action brought in the common pleas to recover the price of carrying goods, the plaintiffs recovered a verdict and judgment for a sum less than 100 dollars, but which was reduced below that sum by a defence, on the ground of injury done to the goods carried; it was held, that the plaintiff was entitled to recover costs, although no affidavit was filed that his claim exceeded one hundred dollars.</p>

THIS was an appeal from the decision of the circuit court of Indiana county, which appropriated the proceeds of the sale of the real estate of the defendant in error. And the only question which arose was, whether tbe issuing of a fi. fa. and a levy upon a particular tract of land, preserved the lien of the judgment upon other lands beyond the period of five years, without-a scire facias.

Ejectment. Crawford White purchased the land in dispute at a treasurer’s sale for taxes in 1816, and then gave a bond for the surplus purchase money, beyond the amount necessary to pay the taxes and costs, and received his deed. The bond was mislaid by the treasurer, and not found until 1823, when he filed it in the proper office.

<p>ERROR to the common pleas of Alleghany county.</p> <p>This was a question of costs, and the facts which gave rise to it are fully stated in the opinion of the court.</p>

<p>Whenever a question of abandonment of title, consisting of an actual settlement, arises from a lapse of time les^ than seven years, accompanied by circumstances from which it might be inferred that the party intended to abandon, it is a mixed question of fact and law, to be submitted to the decision of the jury.</p> <p>But when .the question arises from mere lapse of time, it is a question of law, to be decided by the court, without regard to the intention of the party ; and if it exceeds seven years, it is a conclusive abandonment in law.</p>

William JVPIlheny sued William Adams and George JW’Bride before a justice of the peace, who rendered a judgment for the defendants, from which the plaintiffs appealed, and recovered in court an award for 13 dollars, upon which a judgment was rendered for that sum and costs; to reverse which, as to costs, this writ of error was sued out.

<p>FROM the common pleas of Alleghany county.</p> <p>This was an appeal from the decree of the common pleas, appropriating the proceeds of the sale of the real estate of Baldwin. A suit was brought to January term 1810, in the name of “ the Treasurer for the use of the commonwealth of Pennsylvania,” against Baldwin, in debt for 10,201 dollars. “ 5th April 1816, Mr Baldwin confesses judgment, sum to be liquidated by attorneys.” No liquidation was ever made. When this judgment was entered, the defendant was seised of certain lands, which subsequently, on the 19 th September 1816; he mortgaged to the Bank of Pennsylvania. Upon the sale of these lands, in 1830, the money was brought into court for appropriation, when the questions arose :</p> <p>1. Did the judgment ever operate as a lien ?</p> <p>2. If it did, is the lien lost by lapse of time ?</p> <p>3. If the "state be exempt from the operation of the acts respecting the revival 'of judgments, is a judgment in favour of the treasurer, who sues for the use of the state, also exempt?</p>

<p>ERROR to Fayette county.</p> <p>This was an action of ejectment by John Oliphant against William Ferren, to recover four hundred and six and a half acres of land. The plaintiff after he had given in evidence a warrant of the 5th April 1792 to David Dunbar, and a survey thereon, offered in evidence the following paper, signed by the secretary of the land office, and certified under the seal of the office.</p> <p>“ 1792, April 21.-9319.</p> <p>“ J. Nicholson, Esq. 7 warrants, amount 2600 acres, at 50s. per acre, £65.</p> <p>“ By sundry balances and interest on two tracts of land of 400 acres each, granted by warrant dated 7th September 1789, to Clement Bidwell and George Truder, said land found not vacant, .£92. 7s. Certificate delivered to Mr Bidwell for J. N., May 2,1799, fees 70s. um. pd.</p> <p>“ In testimony that the above is a true copy of an entry in a book marked No. 4, .old purchase blotter from the 1st of February 1792 to 31st December 1793, remaining in the office of the secretary of the land office, I have hereunto set my hand, and caused the seal of said office to be affixed this 21st day of May 1830.”</p> <p>Several other papers of the same character were offered at the same time, all of which were objected to by the defendant and rejected by the court; which was the subject of the only bill of exceptions argued here.</p>

PURSUANT to. a rule of the circuit court, the plaintiffs, having signed judgment for want of an affidavit of defence, for the penalty of a bond, with condition to pay 1302 dollars and 82 cents, on the 22d of January 1831, as well as the like sum for three successive years, but without having assigned breaches, had issued an execution, not only for the instalment due at the impetration of the writ, but for another grown due before the judgment.

THE relater, Thomas B. Davis, being brought before the court on habeas corpus, objected to the legality of his arrest on a capias ad satisfaciendum, returned for the cause of his detention, that it was made after the execution had been superseded by a writ of error.

This was an action of ejectment brought by Henry Snively against Stephen Luce, for a tract of land in Butler county; upon the trial of which the defendant, in order to maintain the issue on his part, offered in evidence certain depositions to prove, that John, Samuel, David, and Robert Cunningham, heirs at law of James Cunningham deceased, having been tenants in common of certain lands, including that in dispute, had, by parol, appointed four individuals to make a division…

<p>WRIT of error to tbe common pleas of Mercer county.</p> <p>This was an action of ejectment by Josiah Galbreath against Thomas Campbell, for four hundred acres of land, lying north and west of the river Alleghany and Conewango creek.</p> <p>The plaintiff gave in evidence a warrant to Josiah Galbreath, for four hundred acres, dated 31st March 1794, and a survey in pursuance thereof, made 26th October 1795, embracing the land in dispute : that an improvement and residence were made on. the land by George W. Fell, as early as the spring of 1798, but which were commenced more than two years after the 22d December 1795, when the hostility of the Indians ceased to prevent settlement. The plaintiff then offered to prove, that the warrant in the name of Josiah Galbreath, was taken out by Walker, Probst and Lodge, who put it into the hands of the surveyor, employed the chain carriers, and paid all the expenses of making the survey. The defendant objected to this evidence, and the objection was overruled and exception taken. The plaintiff then offered to prove the declarations of Lodge, 'made in 1797, and often after, that John Walker was a partner of his and Probst in this and other lands, and was the agent of the firm of Walker, Probst and Lodge, with authority to make contracts for the settlement and sale of the land.. This evidence was also objected to by the defendant; the objection was overruled, and exception taken. The plaintiff then offered in evidence an article of agreement between John Walker and William Fell, by which the title of Walker, Probst and Lodge was vested in the said William Fell; this evidence was also objected to ; the objection was overruled, and exception taken by the defendant. The plaintiff then further offered to prove the declarations of William Fell and George W. Fell, made at the time, that the settlement and improvement made by George W. Fell, was under his father, and in pursuance of the agreement with Walker. This evidence was also objected to by the defendant, and the objection was overruled, and exception taken.</p> <p>The defendant then proved that a settlement and improvement were made on another part of the land in dispute, in 1798 or 1799, but after the improvement of George W. Fell had commenced, by Alexander Hamilton, who sold his right to Thomas Campbell, the defendant, in the fall of 1799 or spring of 1800. Campbell took possession of the land, and continued the settlement and improvement. On the 26th January 1805, Campbell procured a vacating warrant to himself, for four hundred acres of land, interest from 1st April 1798, reciting the warrant to Josiah Galbreath, and vacating it for default of settlement; a survey was made in pursuance thereof of three hundred and eighty-four acres on the 8th March 1805, and a patent issued on the 26th August 1806, to Thomas Campbell. The defendant then gave evidence to prove, that no improvement or settlement of the land had ever been made by Josiah Galbreath. The defendant now called upon the plaintiff’s counsel to say for whose use this suit was brought. Mr Banks replied, that he appeared for George W. Fell; Mr Bredin replied that he appeared for the heirs of Lodge; and Mr Foster, who was also counsel for the plaintiff, declined to make any reply. The defendant’s counsel then-proposed to examine Mr Foster, for the purpose of showing, that no one was employed by Josiah Galbreath to bring the suit, and that such a person was not known to them. The plaintiffs objected to this evidence, and the objection was sustained for the following reason, assigned by the court. “ The evidence is immaterial, inasmuch as the counsel, throughout the trial, have said, that the suit is in the name of Josiah Galbreath, the warrantee, whom they consider as the trustee for those who have the real interest.” To this opinion exception was taken by the defendant.</p> <p>Some proof was then given by the plaintiff of angry threats made by Hamilton to Fell, in 1799; what he would to him, if he caught him on the land in dispute. The plaintiff requested the court to charge the jury on the following points :</p> <p>1. That the entry made by Thomas Campbell, and those under whom he claims, into the land granted by warrant, and surveyed to the plaintiff, was tortious, and not rightful, and that he can derive no benefit from this tortious act.</p> <p>2. That a vacating warrant, afterwards granted to Thomas Campbell, for this land, does not, by relation, make his entry rightful.</p> <p>3. That the entry and settlement of Thomas Campbell, and those under whom he claims, on the land surveyed to the plaintiffs in pursuance of his warrant, excuse any settlement on the part of said plaintiff, and do operate and inure to his use, as if made by himself, or those claiming under him.</p> <p>4. That Alexander Hamilton, (if the jury believe the evidence) having prevented those claiming under the plaintiff, by threats of violence, from making and continuing a settlement on the land, neither he, nor those claiming under him, can take advantage of the want of settlement.</p> <p>And the defendant requested the court to charge the jury,</p> <p>1. That in order to make the title of the plaintiff good, it was necessary for him to make, or cause a settlement to be made on the land, within two years after the pacification with the Indians, 22á December 1795.</p> <p>2. That in default of such settlement, the state had a right to issue a vacating warrant to another actual settler.</p> <p>3. That if the jury believe that George W. Fell entered on the land, for the purpose of making an actual settlement for the use of the warrant holders, after the entry of another adverse settler, yet if he did not remain for the time, and clear the quantity of land required by law, it is such a settlement as could be abandoned; and if he did not pursue his settlement with reasonable diligence, the party under whom the defendant claims in this case had a right to hold possession, complete his settlement, and take out a vacating warrant.</p> <p>4. That the testimony of 'Benjamin Stokeley does not show the interest in the warrant to be in Benjamin Lodge; and that any contract made by him, or any one under his authority, does not show and establish a contract under the warrant, and that a settlement made under such a contract, is not made under Josiah Galbreath, but adverse to him, and will not affect the right of the vacating warrant.</p> <p>5. That if the jury believe that Josiah Galbreath never paid the purchase money for the warrant, never received it from the land office, or had it in possession, or exercised any acts of ownership over it, he is not such an owner or trustee as can support an ejectment, and has not, and never had, any right either legal or equitable to the land.</p> <p>6. That if the jury believe that Josiah Galbreath is a mere fictitious person, this ejectment cannot be supported in his name.</p> <p>7. That if the jury believe that the settler entered and commenced his settlement with the view and intent to follow up his entry, by obtaining a vacating warrant, the warrant afterwards issued confirmed his original entry, and made it legal and valid.</p> <p>Shippen, President, was of opinion that the evidence contained in the several bills of exception should have been rejected, but the same having been received, except the last, by the associates, he was of opinion the plaintiff was entitled to recover, and so instructed the jury, who found a verdict accordingly. To which opinion exception was taken by the defendant.</p> <p>The opinions of the court, admitting and rejecting the evidence contained in the several bills of exception; and in the answers to the several points of the plaintiff and defendant, were assigned for errors, and argued by</p>

<p>ERROR to the common pleas of Armstrong county.</p> <p>This was an action of ejectment by William Rush who survived Victor Dupont, assignee of Archibald M’Call against Margaret Barr, for a tract of land ; and the question of law which was presented, arose out of the following evidence.</p> <p>The plaintiff, to support the issue on his part, produced as a witness Hugh Wason, who being duly sworn testified as follows, to wit, “ in the last of October or 1st of November in the year 1795, William Wasoñ and myself came out and cut logs for a cabin; we hauled the timber early in the spring of 1796; there was a company of men came out past our improvement; Judge Barr and'Thomas Barr were along, they built a cabin, and we discharged them, and told them Billy Wason claimed on his improvement. They were a stronger party than us, and they were not willing to quit. My brother William Wason, went to the settlement and brought out his family, and left me to keep the house : we were out several weeks before the Barrs came out, and when we discharged them the logs were cut and the foundations laid: there were logs enough to build á cabin; there was a shed built when we first went out, which was not in the lines of the tract in dispute; we were on the tract when the Barrs came out, and we discharged them from making their improvement. In the summer of 1796, William Wason cleared from three-fourths to one acre, planted it in potatoes; he staid until harvest and then went into the settlement to take up our harvest; he came out with Mr M’Call in August, and we articled with him. In the fall of the same year.Thomas Herron came out and purchased from William Wason; during this time the Barrs never came to do any thing on the land ; vre had, before M’Call came, run out our lines to suit ourselves, without reference to the old lines. I moved out of this county in 1797 ; the Barrs never until then done any thing, but located the cabin. The logs for the cabin were cut principally on the tract in dispute; we paid no attention to lines; the others we" cut on the tract where Herron now lives. Herron moved his family on the tract; William Wason had left in the fall of 1796. My brother William Wason articled with M’Call for two tracts, neither of them is this one. I sold to Milligan. This tract is one and Herron's the other.”</p> <p>The plaintiff then, further in support of the issue on his part, offered in evidence a warrant of acceptance to Archibald M'Call the assignee of the plaintiff, for thirteen tracts of land on the west side of the Alleghany and Ohio rivers, and Conewango creek, of which the tract in dispute is one. Which testimony so offered, the defendant by his counsel did object to, and the court having sustained said objection rejected the testimony so offered; to which the plaintiff excepted.</p> <p>The plaintiff then gave the following evidence by John Cowan. “ In the month of March 1796, William Wason, with his wife and familjr, was living in a cabin erected on the land in dispute, and in the same spring cleared about one acre of the land and put it in corn. Wason remained on the land till the following harvest, and then brought out his father and mother, and put them into the cabin to keep the possession. When winter set in, they all returned to the settlement. The following year, perhaps, William Wason sold his right to Thomas Herron, who in the same year moved into Wason's■ cabin. Shortly after that, Herron told me that he had sold the same land to his brother-in-law Witherson, in order to hold it. Herron then moved off the land, and gave up the possession to a son of Witherson's, who continued to reside there on the land, in the same cabin, till the spring of 1798, when Thomas Barr and Robert M'Dowell went into an empty cabin, without a roof, which had been built on the same land and was known by the name of Barr's cabin. The day following that on which they came, I was at their, cabin, and either Barr or M'Dowell, in the presence of the other, told me that if they thought the father of Witherson would come on, they would proceed no further in making their improvements; but, after pausing a little, said they would go on with their improvement at any rate. They covered their cabin and moved into it. Both Barr and M'Dowell told me they'had bought the land from Herron and were to pay the same to Herron for it that he had paid to Wason. Herron told me the same thing. Witherson left the land when his uncle-sold it.”</p> <p>The plaintiff then offered a bond from William Wason to Archibald M'Call, dated the 11th of August 1796, conditioned for the settlement of the land in dispute; which, being objected to by the counsel for the defendant, the court overruled the objection, and admitted the evidence.</p> <p>The plaintiff then further gave in evidence, an agreement between William Wason and Thomas Herron, dated the 11th day of August 1796.</p> <p>An agreement between Thomas Herron of the one part, and Robert M'Dowell and Thomas Barr, of the other part, dated the 26th of May 1798.</p> <p>The plaintiff then called as a witness Benjamin Leisure, who testified as follows, viz. “I was present at the execution of an agreement between Thomas Barr and Robert M’Dowell, at the end of which, they entered into the before mentioned agreement; by which, as I understood from all the parties, that Barr and M’Dowell were to keep Herron clear of M’Call, and that they were to continue the the settlement Herron had bound himself to maintain. I first knew of Barr and M’Dowell’s improvements, in 1797. I came out in 1796 ; the cabin was fourteen or eighteen feet square. The promissory note, dated 26th May 1798, was given by Thomas Barr and Robert M’Dowell to Thomas Herron, at the time of making the agreement, as a payment of the purchase money of the land in dispute; and at the time the note was given, 1 signed my name thereto, as a witness; but I do not recollect whether the note was for part or in full of the purchase money.”</p> <p>The plaintiff then gave in evidence by George Ross, Esq. as follows : “ I went to make a survey for John Titus, I think it was in 1803, 1804 or 1805. Titus wanted me to run in on the land in dispute, to fill his survey, as he was the oldest settler. I went to run in the same land, but was discharged by Thomas Barr and Robert M’Dowell, who told me they claimed the laud under Archibald M’Call through William Wason and Thomas Herron. I then refused to go on the land in dispute.”</p> <p>It was then admitted that the title of Archibald M’Call was in the plaintiff.</p> <p>The plaintiff then gave in evidence the testimony of John Titus, as follows: “ I came to the country in March 1796, and saw a cabin erected on the land in dispute, in which William Wason was then living, with his family. In the same year, Archibald M’Call, and myself, went to the cabin ; M’Call and Wason then entered into an article for the land ; shortly after that, Thomas Herron called on me to witness that he had sold the land to a boy named William Witherson, who was present at the time, and that he had given up his right to the boy. Some time afterwards, perhaps a year, while Judge Ross and M’Dowell were surveying a tract of land belonging to me, Robert M’Dowell told me, in the presence of the judge, that he held the land under William Wason’s claim and Archibald M’ Call, and ordered them not to run into it. I asked M’Dowell if he held under his own settlement, and if he did, I would run into the land ; he said that he did not hold the land under his own settlement, but under that of William Wason.”</p> <p>The defendant, on his part, to sustain his issue, gave in evidence as follows:</p> <p>John M ’Dowell, sworn, saith, “ twelve of us came out in March 1796, and had built two or three cabins before we went to build Thomas Barr’s. On Monday we went to build his. I saw Wason’s improvement, it was burnt on Sunday, the day before Barr’s cabin was raised. We saw on that day William Wason, Hugh Wason arid others; Wason told me we were improving on his tract; he said there was about two hundred acres in each tract. We built the cabin, roofed it, and cut out a place for the door; we commenced deadening, I think it extended to half an acre; there was nothing done by Thomas Barr or M’Dowell in 1797; the day after we built Barr’s cabin we built mine; we came back in two or three days; William Wason then had a cabin on the land. In February 1798 they came out, and in May they had about eight acres cleared. My brother lived on it till his death. I don’t recollect what was done with the eight acres, there was corn raised on it that summer, about four acres. Robert M’Dowell’s improvement, when he died, was 30 acres. I think he died before the war. Thomas Barr and his wife lived with Robert M’Dowell, who left his property to his brothers’ and sisters’ children, mine and Thomas Barr’s. I have worked some on the place, and am working some now. I don’t recollect when Mrs Barr died. I don’t know if I raised grain every year, I have four or five years. I heard Barr say he would watch until they got out of possession, and he would take it. Witherson cleared about four acres. Wason had cleared three or four acres. Thomas Barr cleared the side joining me ; he claimed one half the tract. I am on one of the tracts claimed by M’Call. I know the lines around the tract, I carried the chain myself. Robert M’Dowell died in the fall of 1800.”</p> <p>James M’Dowell testified that Thomas Barr lived on the land about three years after Robert M’Dowell died; he was not living on it when it was sold by the sheriff, he had left it two or three years before the sale; it is three years since Margaret'Barr came on it; grain was raised all except one or two years; there was grain raised two or three years. Barr left it about Christmas or new year’s ; I don’t know if he put in a crop or not.</p> <p>The defendant then gave in evidence a patent to Robert M’Dow-ell for 429 acres and 38 perches, on warrant dated in 1803 ; also, record of judgment of June term 1797, an ejectment at the suit of Archibald M’Call v. Thomas Barr, for 400 acres of land in Buffalo township; also transcript of a judgment, William Wylie v. Thomas Barr,ji. fa. June term 1819, on which the light of Thomas Barr to his interest in the tract of land in dispute, is levied on ; venditioni exponas to September term 1819 returned—Sold to James Monteeth for 380 dollars. A deed from Philip Mechling, Esq. sheriff, to James Monteeth for the right, title and interest of Thomas Barr in the land in dispute, dated 22d September 1819.</p> <p>John Cowan, having been sworn, said, “ I cannot recollect how long it was that no person resided on the land in dispute, there was one year it was not occupied. We had it for pasture; the fields lay open and the neighbours’ cattle run into it.”</p> <p>The court below thus charged the jury :</p> <p>The plaintiff claims the tract of land in dispute by virtue of an alleged improvement and settlement thereon, commencing in the fall of 1795 by the entry thereon by William Wason for the purpose of acquiring the title under the act of assembly of 1792. It appears a number of logs for a cabin were then cut down by him, and that he returned early in the spring of 1796, had a cabin putup, in which himself with his wife and children resided until' harvest time, and in the intermediate time cleared and planted about three quarters of an acre of potatoes. It appears that be then moved into what was then called a settlement, as it may be inferred, to reap his fall grain there; and afterwards returned to the tract in dispute, where, it appears, he was on the 11th of August 1796, the date of a contract between him and Archibald M’Call. By this the settler recognized a right in A. M’Call to the land under a survey which had been made by the surveyor’s deputy, and an acceptance thereof by the surveyor-general, and agreed to purchase 125 acres of the tract for the sum-of one penny, and the further consideration of complying with the conditjon of settlement, improvement and residence required by the act of assembly, so that' a patent can be obtained for the whole tract, the purchase of which had been paid by A. M’Call. It further.appears that William Wason agreed to sell his interest in the tract and another adjoining it, the whole containing 250 acres, under his contract with A. M’Call, which Thomas Herron bound himself to fulfil, and upon which, within six months after, Wason was to make a sufficient title to him. Some time after this it would appear the parties went back to the settlement. Herron, it appears, returned to the tract the following spring and cleared about two or three acres, planted them with corn, and in the fall sowed them with wheat. How long he resided on the tract afterwards does not distinctly appear, but sometime after put the son of one Witherson in possession, who cleared three or four acres more and resided on the tract in the spring of 1798. Some of the witnesses believed seVen or eight acres in' all had been then cleared. This, considering the general situation of that quarter of the country, then, was a substantial improvement, entitled to respect and consideration.</p> <p>On the part of the defendant a claim is set up to the land under an improvement, commencing in the spring of 1796, by the raising of a cabin by Thomas Barr and Robert M’Dowell. It does not appear they did any other work until the spring of 1798 ; they seem to be fully conusant of the improvement of Wason, Herron and Witherson, and of the contract with Archibald M’Call. They afterwards claimed according to the lines of the survey which had been improperly made for him. They would not permit them to be infringed on by any of the neighbouring settlers. It was, therefore, probably an object to acquire whatever Archibald M’Call had, and, which was certainly of much greater consequence, the right of Herron, under his own and Wason’s improvement. This seems to have been brought about with considerable address. They take no assignment from Herron of his contract with Wason, which recognises that which had been entered into with Archibald M’Call. They execute a loose note, promising to maintain a settlement when they had begun there, unless prevented by law. They do not acknowledge any right in Herron. What suit could be maintained by Herron on such a vague instrument, I am at a loss to conceive. It is very possible that they then claimed adversely to Herron and Wason’s improvement; and if they could persuade Wason to give up to them, they proposed claiming under what they called their improvement in the spring of 1796, by raising a cabin, the first that had been raised on the land in question.</p> <p>They have taken possession of the whole, and carried on their improvements without interruption, or even notice by or on part of Archibald J\P Call, from 1798 until June 1817, a period of nineteen years. I feel much disposed, however, to get over this strong presumption of abandonment, but on further consideration I am of opinion it cannot be got over. It is strengthened by the trial, brought in 1817, resulting in a verdict and judgment for Thomas Barr. The present suit is delayed until March of the last year, -which is another instance of great neglect. Independent of these objections to the plaintiff’s right of action, I am of opinion that the act of limitation applies to this case, and operates as a bar to the plaintiff’s recovery.</p> <p>Errors assigned.</p> <p>1. The court erred in rejecting the warrant of acceptance to Archibald M’Call, the assignee of the plaintiff for thirteen tracts of land, of which that in dispute is one.</p> <p>2. The court erred in charging the jury that there was a strong presumption of abandonment by the plaintiff.</p> <p>3. The court erred in charging the jury that there the act of limitations operated as a bar to the plaintiff’s recovery.</p>

<p>ERROR to the common pleas of Butler county.</p> <p>This was an action of ejectment for a tract of land, in which Mam Mbert was plaintiff, and James Riddle was defendant.</p> <p>The plaintiff below claimed under a warrant, dated the 1st of March 1794, in the name of Robert Elder, which was said not to be the description of the land in dispute, but a survey was made by the deputy surveyor of the district, embracing the land in dispute, on the 28th of May 1795. This survey was never entered in a book kept by the deputy surveyor, but was returned into the surveyor-general’s office before the year 1804, though the time was not shown. Evidence was given also, on the part of the plaintiff below, on the trial, showing that all right or title which existed under this warrant and survey, to the land in dispute, was then vested in him.</p> <p>The defendant below claimed the land under an improvement, commenced in the winter of 1798 or 1799, by John Brown, by his building a cabin upon it. He, in the spring of 1799, relinquished it in favour of Andrew Gillilard, who moved upon the land at that time, with his family, making it the place of their abode and residence, and, at the same time, clearing, fencing, cultivating and raising grain thereon, and continuing to do so every year, until 1809, when he had about twenty acres cleared and fenced, upon which he had raised grain. At this time he sold about one hundred acres of the land to George Shannon; and continued to occupy the residue of it by tenants, to whom he leased it from time to time, by their residing upon it, and cultivating and raising grain upon it every succeeding year, with the exception of one year (about which the testimony of the respective parties was somewhat conflicting and contradictory), until the bringing of this action, which was in 1823. Shannon sold this one hundred acres to the plaintiff below, who afterwards bought the warrant of 1794.</p> <p>Andrew Gillilard, after having gotten a certificate from the deputy surveyor of the district in which the land lay that it was not appropriated under any warrant issued from the' land office, obtained a warrant for it, on the 26th of March 1818 ; and on the 18th of May following, a patent for it was granted to him. The defendant below, James Riddle, was the tenant of Andrew Gillilard, in the possession of the land at the time this action was commenced.</p> <p>It was testified by some of the witnesses, and perhaps contradicted by none, that Mary O’Hara, who was living upon the land as a tenant under Andrew Gillilard, left it some time in the spring of 1818, and that the house remained unoccupied during the summer of that year ; but some of the witnesses on the part of the defendant below testified, that the land was cropped by Riddle, as the tenant of Gillilard, and that he raised a crop of buckwheat upon it; while some of the witnesses on the part of the plaintiff below said, they had been on the land during that summer and fall following, passing through it occasionally, and occasionally passing by in sight of it, and could not recollect that they saw any grain, buckwheat or any other, raised on it that year—rather thought there was none. This was the only year in which it was denied that the land was not occupied and grain raised upon it by either Gillilard or his tenants. There was also some evidence given on the part of the plaintiff below, that he had, in the course of this year, entered upon the land, thrown down the back wall in a cabin and erected a chimney in it, that stood upon the land, and that he, at the time of doing so, said that he came in under his claim under the warrant of 1794, that he intended to rent the land, and after fastening up the door left it again.</p> <p>This statement contains, substantially, all the facts disclosed and evidence given upon the trial of the cause, which are in any way material to the final determination of the real matter in controversy between the parties.</p> <p>The following errors were assigned.</p> <p>1. That the court erred : in admitting in evidence the certificate of the land office.</p> <p>2. In admitting in evidence the record of the judgment and subsequent proceedings in the case of Pigon v. Adlurn, Nichols et al.</p> <p>3. That the court erred: in charging the jury, that it is unnecessary for a warrantee to show that he made such settlement, im•provement and residence as is required by the act of 1792, and within the specified time ; provided a person has settled without a vacating warrant, and made such settlement and improvement; because such settlement and improvement enure to the warrantee ; and that a trespasser cannot take advantage of any forfeiture of the warrantee, under the act of 1792.</p> <p>4. In charging the jury, that the act of the 14th of March 1816 is unconstitutional, and void.</p> <p>5. In charging the jury, that the purchase of the one hundred acres will not bar the recovery of the remainder of the tract.</p> <p>6. In charging the jury, that an actual settler cannot recover without a vacating warrant.</p> <p>7. In charging the jury, with regard to what constitutes such an entry as defeats the operation of the act of limitation, and in relation to the entry of Adam Albert.</p> <p>8. [Omitted, as not decided upon.]</p>

<p>In an action of debt’ against two or more, a confession of judgment by one defendant, accepted by the plaintiff, operates as a release of all the other defendants, against whom no judgment can afterwards be obtained in that-action or any other upon the same evidence of debt: and whether that evidence of debt be a joint, or a joint and several obligation does not alter the rule.</p> <p>In a joint action against two or more, a rule of reference cannot be taken as to one of the defendants, nor any less number than the whole, and must be served on all.</p>

James Wray sued William Franklin before a justice of the peace, who rendered a judgment for the plaintiff for 16 dollars and 50 cents, from which the defendant appealed to the common pleas, where the cause was arbitrated ; the defendant gave evidence which he had not given to the justice, and the plaintiff obtained an award for 18 cents and costs of suit. To reverse the judgment as to costs, this writ of error was sued out.

<p>ERROR to Warren county.</p> <p>This was an action of assumpsit, brought by the defendant in error, against the plaintiff in error, in the court below. The declaration contained íavo counts, one for the price of a wagon sold and delivered, and the other for the hire of a wagon. The facts from the evidence appeared to be, that Kinnear was indebted to Dunham, and agreed to deliver him a wagon, at a certain price, which exceeded considerably the amount of the debt owing by Kinnear to Dunham. The debt was to be deducted out of the price of the wagon. The wagon Avas brought to Dunham, when the parties settled and adjusted their accounts, which had arisen between them anterior to that date, but disagreeing about the time at which Dun-ham should pay to Kinnear the balance of the price of the wagon, after deducting the balance which was coming to Dunham; on the settlement of their accounts, they agreed to record the contract for the sale of the wagon, and that Kinnear should give Dunham his note for the payment of this balance, three days after that date with interest, which was accordingly given. The wagon, by agreement between them at the same time, Avas left in the possession of Dun-ham upon loan for a short time. A few weeks afterwards, Kinnear sent for the wagon, but, being abroad on use,, it was not obtained. Shortly after this, Kinnear sold it to a third person, to whom he gave an order upon Dunham for it. The order was presented to Dunham, but he refused to deliver the wagon, saying that he would not give it up to either him or Kinnear, until he was paid the debt which Kinnear owed him. Kinnear then demanded the wagon in person himself, but Dunham still refused to let him have it, until he paid the debt. Kinnear told him that he would make him pay hire for every day he detained it. After this, Dunham sent the wagon into Warren county, in which Kinnear resided, as he said, for a load of shingles. It, however,- was left -there, and Dunham, shortly afterwards, went to the place where it was left, and removed it some distance off into the woods, to prevent Kinnear from finding it, as he alleged. A certain Alexander Thompson had a judgment against Kinnear, before Samuel M’Gee, a justice of Warren county, amounting with interest and costs to about 15 dollars. M’Gee, the justice, sent word to Thompson to direct an execution to be issued, or he thought he would lose his money. About this time Dunham came to the house of Thompson, and said, as Thompson understood him, that he was going to Kinnear’s for money. Thompson told Dunham of his judgment againt Kinnear, and said he would write to have an execution issued upon it; Dunham then agreed to buy the judgment of Thompson, who gave Dunham an authority to issue the execution, and a receipt for the amount of the judgment, upon Dunham’s promise to pay it. Dunham did not disclose to Thompson. any thing about the wagon.</p> <p>After this, Dunham caused an execution to be sued out upon the judgment, which he put into the hands of a constable, whom he took to the wagon, about ten miles from Kinnear’s residence, and directed him to levy upon it, as Kinnear’s property. The constable, after being indemnified by Dunham, did so. He then advertised the wagon for sale, as required by law, and sold it to Dunham, for 21 dollars, he being the highest bidder. Dunham produced Thompson’s receipt for the debt and interest due on the judgment, and after deducting the amount of it from the amount of sale, paid the difference to the constable, and the amount of the debt and interest he paid to Thompson.</p> <p>Kinnear’s note to Dunham was given on the 17th of October 1828, for the payment of 18 dollars and 20 cents, three days after that date with interest: and at the same time the wagon was loaned by Kinnear to Dunham. The wagon was sold by the constable on the 14th of January following, and was proved to be worth 45 dollars; and that the usual hire given for such a wagon was 50 cents per day.</p> <p>It was also proved that Dunham said at different times to different, persons that he would pay Kinnear whatever the wagon was fairly worth, if he would call and settle with him, notwithstanding the sale by the constable. This proof was made on the part of Kinnear, the defendant in error.</p> <p>Upon this state of facts the court below charged the jury, that “ the plaintiff’s claim was for the hire of a wagon, and for the price and value of the same wagon. The defendant, in defence, showed he bought the same at constable’s sale, under an execution, at the suit of ,fl. Thompson: and one question raised, for the decision of the jury, is, Was that sale and purchase by the defendant fraudulent, if the jury should be satisfied that it was an actual fraud, practised by the unfair management of defendant on the plaintiff, it is void; and if so, the money which the defendant paid to the constable or A. Thompson, is not to be taken into consideration as a set-off, as clamed by defendant. Defendant has also shown a note of 18 dollars and 20 cents against plaintiff, and this being undisputed, is allowed as a credit to defendant. But plaintiff claims SO cents a day for the hire of a wagon from the time defendant obtained it from plaintiff on the 16th of October 1828, until the sale of it on the 20th of January 1829; and also the value of the wagon at the time of sale. For the jury to allow both would be unreasonable; as it would allow plaintiff to claim for the same wagon so largely beyond its value. Although SO cents a day might be a fair rate of hire per day for a few days or a week, yet it would seem unreasonable for plaintiff to claim that rate per day, if he claim for several months. No man hires a wagon at that rate per day to keep it for months. J do not say that plaintiff may not recover for a short period in addition to the value of the wagon. The subject of the sale of the wagon by the constable, in Warren county, by defendant’s procurement, when it had been left in his possession in Crawford county, and all the various circumstances, are before the jury for their decision; whether it is an actual fraud and a void sale, and if so, they will judge on the proof what ought to be allowed for the wagon after making the deduction of the note in evidence</p> <p>After the delivery of this charge to the jury, they returned a verdict in favour of the plaintiff below for 58 dollars damages, besides costs of suit; upon which the court rendered a judgment.</p> <p>The errors in the charge of the court below are, that the court told the jury that if they should believe that the plaintiff in error was guilty of an actual fraud in procuring a sale to be made of the wagon by the constable, that the sale was void, and that they ought not to allow him as a set-off the money that he paid to Thompson for the judgment against the defendant in error,mor yet the money that was paid to the constable.</p> <p>Again, that although the court below toíd the jury that “ no man hired a wagon at the rate of -50 cents a day for months,” yet .the president of the court qualified it by saying, “ I do not say that plaintiff may not recover for a short period in addition to the value of the wagon.”</p>

<p>When money is made by the sheriff, and brought into court for appropriation, and facts are disputed, it is competent for the court to direct an issue in which the truth of those facts may be ascertained by a jury, and such issue may be put into any form by which the object may be more readily attained.</p> <p>A mortgage or judgment may be given to secure a creditor for a debt due, for responsibilities which are contingent, or for future advances.</p> <p>The validity of an execution, like that of a judgment, cannot be inquired into collaterally.</p> <p>A defendant in an execution, the proceeds of whose property is in court for appropriation, may be examined as a witness on the trial of a feigned issue, to ascertain facts in relation to it, his interest, as regards the plaintiff and the defendant in such issue, being equal.</p>

<p>WRIT of eryor to Crawford county.</p> <p>This was an action of debt on a note by the Erie Bank against John Gibson, William Foster and William Magaw. After the note became due, William Foster wrote to the bank thus:</p> <p>“ Meadville, October 15th, 1829.</p> <p>“ Mr Rufus S. Reed,</p> <p>“ Some weeks ago Mr Magaw received a letter from Mr M. Sparren, giving a statement of the amount due the Erie Bank on the note of John Gibson, for which he and myself are security. We have used every endeavour to get Gibson to pay it off, but without effect, unless he has done it lately. We have not seen him for a week or two, as he now lives at Coneaut lake. I saw Mr Magaw yesterday, and he desired that I should write to you on the subject. We see no way of securing ourselves from Gibson, unless suit be brought against all of us, and when judgment is obtained we will direct the sheriff to make as much of the money from him as we can; the balance we will of course have to pay. If any other course is pursued, we would lose the whole of it. The money originally Avas certainly for Gibson's use.”</p> <p>To which the cashier of the bank replied thus:</p> <p>“ Erie Bank, 2d November 1829.</p> <p>“ Mr William Foster,</p> <p>“ Dear sir,—Mr Reed put into my hands yours of the 15th ultimo, wherein you say you see no way of securing yourselves from John Gibson, unless suit be brought against all of you; but, my dear sir, when you put your name, as well as Mr Magaw, to that paper, you knew, or ought to have known what you were doing. We did not lend the money with the expectation of bringing suit; and when your and Magaw’s names were to the note, we felt satisfied you would not suffer a suit, nor dreamed of such means to get the money back. I hope you will see this in its proper light, and pay as fast as possible; say send us the half now, and the other half in sixty days.”</p> <p>The following testimony was given by J. S. Riddle, Esq.</p> <p>“ Some time about the 1st of March 1830, Mr Harriot was in Meadville, and requested me to take the note in suit for collection. I told him I wished first to see Magaw on the subject. I accordingly-called on Mr Magaw, and told him I had been requested to collect the note ; and asked him if he meant to contest it. He replied that he supposed they were bound, and must pay it. I observed to him that if there was to be any controversy about it, I did not wish to be concerned against him. He gave me to understand that he would not go to the additional expense of litigating it. I then asked him if he had any objection to my taking the note for collection, and he said he had not. I then went back to Mr Harriot and gave him my receipt for the note for collection.</p> <p>“ On the same day, or a few days afterwards, I saw Mr Foster in town, and mentioned to him that the note had been left with me. He complained of the .conduct of John Gibson in not having paid the note, but added there was no necessity of having a .suit about it. It was proposed that a judgment bond should be given by him, Gibson and Magaw, and he agreed that I should draw one, which he would sign, and leave with me to get the signatures of Gibson and Magaw. Before I had time to go to my office to draw one, he told me he was desirous of going out home, but would be in town in a few days again, and would then sign the bond, and that in the mean time I might have an opportunity of seeing Gibson in town, and of getting his name to it.</p> <p>“ At this time he did not allege that there had been negligence on the part of the bank in bringing suit, nor that he considered himself exonerated, until he came to town again some days afterwards.' He then declined giving judgment, alleging that the bank should have proceeded earlier. The suit was brought to the then next term.”</p> <p>The court were requested to instruct the jury upon the following points.</p> <p>1. That the mere omission by a creditor to bring suit against the principal debtor does not discharge the surety.</p> <p>2. That the letter of William Foster to Mr Reed did not contain that positive request to bring suit, and was not accompanied by any such declaration that otherwise the sureties would consider themselves discharged, which was necessary in law to exonerate them.</p> <p>3. That if John Gibson was insolvent at the time the letter was written, the bank was under no obligations to. proceed against him.</p> <p>The court below was of opinion, that the omission of the bank to sue the principal, as requested by the letter of William Foster, one of the sureties, was a good defence against the plaintiff’s action, and so instructed the jury, who found a verdict for the defendant. And the opinion was assigned for error.</p>

<p>ERROR to Fayette county.</p> <p>This was an action of assumpsit by Joshua Dawson against Vincent Owens, for money had and received, and for goods sold and delivered. Pleas, non assumpsit, and payment with leave, &c.</p> <p>It appeared that a certain John Lang had been indebted, by note, to Dawson, in the sum of 450 dollars; that Dcrnson had given Owens an order on Lang for 300 dollars, which was to be a credit on Lang’s note, which was then delivered to Owens. Owens received from Lang, on the order, 177 dollars and 79 cents, and afterwards recovered against him 60 dollars. It was alleged by Dawson that the whole amount of the order wras not owing by him to Owens ; and to prove the issue on his part, the plaintiff below offered in evidence a bill in chancery, filed in the superior court of chancery in Winchester, Virginia,by John Gordon and Frederick Light, against Joshua Dawson, Vincent Owens and John Lang. The defendant objected to the reading of the said bill. The court admitted the evidence; and the defendant excepted.</p> <p>In the proceedings in chancery, the subpoena was served on Lang, and on William or Vincent Owens. Lang alone answers. The decree, and the rest of the record, excepting the bill, was admitted by consent, or, all the facts stated in it were admitted. The bill alleges the receipt of 100 dollars by Owens, from Lang, “ which sum of 100 dollars, the plaintiffs believe, is as much as said Owens is entitled to.”</p> <p>The admission of the bill in chancery was the only error assigned.</p>

<p>A defendant in ejectment will not be permitted to avail himself of a breach of Contract, in relation to the land in controversy, by one under whom he claims, in order -to exclude evidence which, if the contract had been complied with, would have been competent.</p> <p>The declarations of one under whom a party in ejectment claims may be given in evidence against him, if such declarations were made during the time the .witness was the occupier of the land.</p>

<p>A citizen of the district of Columbia removed into Pennsylvania to reside, and brought with her a slave, who in consideration of manumission, with the consent of her mother, hound herself by indenture to serve for seven years. Held: That such indenture, having been executed in Pennsylvania, is void, and the slave is entitled to her liberty.</p>

<p>An indenture executed in Pennsylvania, by a slave from the District of Columbia,. by which he bound himself to ser.ve for seven years in consideration of manumission, is void; although made in pursuance of a parol agreement entered into in the District of Columbia.</p>

This, was an action for a legacy by Robert Allison and wife against Thomas Greemoood and Jasper Lyon, executors of Thomas Lyon deceased, and Joseph Aikin, terre tenant, with notice to John Lyon, the devisee.

<p>Declarations of a testator, made contemporaneously with his will, are competent evidence to establish a trust in him to whom an absolute estate is devised, when followed by evidence that such devise was obtained by the fraudulent procurement of the devisee.</p> <p>If .a testator be induced to make a devise, by the promise of the devisee that it should be applied to the benefit of another, a trust is thereby created, which may be established by parol evidence; and this is not contrary to the statute of wills.</p> <p>If a compromise of a doubtful right be obtained from a plaintiff through the misrepresentation of a witness, and in consequence of the influence of his testimony, and the persuasion of arbitrators, to whom the same had been referred: it is not binding, if the defendant knew of such misrepresentation, and availed himself unduly of its influence.</p>

This was an action of ejectment in the name of The Methodist Church of the city of Pittsburgh, against Stephen Remington, Charles Avery, Thomas Robinson, Charles Craig, Patrick Leonard, John Phillips, Edward Moore, Andrew Applegate, John Bissell, Robert White and George Brown, for parts of lots Nos. 469 and 470, in the city of Pittsburgh, and also for an acre of land in the Northern Liberties of Pittsburgh.

The suit was commenced by Eliza C. Reutter, the defendant in error in that court, to October term 1821, against George K. Nutz and Mary his wife, late Mary Reutter, administratrix of Michael Reutter, deceased, to recover a distributary share of the personal estate of the deceased, which she claimed as one of his children under the intestate laws of this state. Pending this suit, Mary the wife of Nutz and administratrix of Michael Reutter, on the 27th of July 1832, died.

This was an action of debt on a bond, dated 1st April 1820, brought in the name of John Fullmer, assignee of George Withers, against Ezekiel Jltkinson, and the defence was a failure of consideration.

<p>Upon tbe receipt, by a plaintiff in a judgment, from the sheriff, of more money out of the proceeds of the sale of real estate than he is entitled to, an action can not be maintained in the name of the defendant whose property was sold to recover it back, although brought for the use of another creditor, who would be entitled to receive it from the sheriff. The action should be in the name of the sheriff. Whether such action could be maintained in the name of a creditor entitled to the money {Quaere) .</p>

Bradford, president. In an action for money had and received by Daniel Hart against George Yunt, the defendant called a witness to prove that he had met the parties at their request, and examined their papers; that he had made a list .of receipts for money which they both admitted to be right as credits in their settlement.

This is an appeal from a decree of the orphan’s court of the county of Lancaster, confirming a sale made of the real estate of John Hess deceased, by his administrators, for the purpose of paying his debts; in pursuance of a decree previously made by the same court.

In 1810, Frederick Stoever was discharged as an insovent debtor, and Michael Steckbeck, Leonard Immell and Jlnthony Kelker were appointed his assignees.

WRIT of error to the special court of Dauphin county. This was a case of appropriation of money, made upon a judgment and execution, at the suit of Jane Kean, administratrix with the will annexed of John Kean, Esq., against George Fisher, in which the following facts gave rise to the questions discussed and determined. John Hamilton died in 1793 or 1794, possessed of considerable real estate in Dauphin county, leaving six children, of whom the plaintiff was one.

This case originated in a petition of Barbara Light to be divorced a vinculo matrimonii entered into with her husband, Martin Light. The causes set out were adultery by the husband, and cruel and barbarous treatment of the petitioner, such as to force her to leave his house. The facts having been traversed, a declaration was filed; to which the respondent pleaded not guilty.

<p>The decision of the common pleas confirming a sheriff’s sale, and ordering the acknowledgement of the deed to the purchaser, is not the subject of a writ of error.</p>

WRIT of error to the district court of the city and county of Lancaster. Bradford, president. This was. an action of debt by Abraham Long against Benjamin Long, with notice to Conrad Zeigler terre tenant, which arose out of the following facts. Harman Long died seised of a large real estate, leaving a paper which purported to be his will, and about the validity of which his heirs at law disputed.

FROM the district court of Lancaster county. In the court below, this was an action on the case, for money had and received, by Jacob F. Marclay and Ann his wife, against Thomas Lyon’s executor. Elizabeth Lyon had an illegitimate child, for which Robert Hamilton was indicted, convicted and sentenced. He gave a bond to the mother, conditioned for the payment of that part of the money which, by the terms of the sentence, was payable to her.

Ejectment by Jane Kean against George Fisher. Upon the trial of this cause, the defendant offered in evidence a deed from the plaintiff to him for the land in dispute. The defendant’s counsel objected to its admission, on the ground that it had never been delivered; and gave evidence to the court to establish that fact; upon which evidence the deed was rejected.

WRIT of error to the common pleas of Lebanon county. This was an action of debt by Robert Geddis and Samuel Carper surviving John Wolfersberger, against Jonas Hawk surviving executor of Michael Hawk who was a joint and several obligor with Adam Hawk.

WRIT of error to the district court of Lancaster county. Hays, president. Ejectment by The Commissioners of Lancaster County against George Stauffer, for a house and lot in the city of Lancaster. George Stauffer had been a collector of county tax for the city of Lancaster, for the years 1824, 1825 and 1826.

<p>ERROR to the district court of Lancaster county.</p> <p>This was an action for money had and received by Christian Longenecker for the use of Samuel Bossier against Conrad Zeigler, and arose out of these facts. John Esterlee had borrowed from Conrad Zeigler 1200 dollars, and gave him his bond for it with Christian Longenecker as surety. A judgment had been obtained on this bond, and subsequently several years’ interest was paid to the plaintiff; afterwards, the real estate of Longenecker was sold by the sheriff from whom Zeigler received the whole amount of his judgment. This suit was brought to recover the amount improperly received by Zeigler in the name of Longenecker for the use of Bossier, who was a judgment creditor of Longenecker, and who would have received the money if Zeigler had not taken more than he was entitled to. Two questions arose: whether the money could be recovered back in this form of action; and, whether the action was rightly brought in the name of Longenecker. The court below was of opinion, that the action could not be maintained in the name of the present plaintiff and rendered a judgment accordingly.</p>

Bradford, President. Jacob Sommer executed a judgment bond to his father, Leonard Sommer, for 2088 dollars and 38 cents, which was entered of record. The creditors of Jacob Sommer alleged, that this judgment was fraudulent as against them, and at their instance it was-opened so as to let them into a defence.

<p>MOTION to quash a writ of certiorari.</p> <p>This writ of certiorari issued to the judges of the court of quarter sessions of Dauphin county, to remove the record and proceedings which had been instituted there by Archibald M’Allister, to recover damages which he had sustained, by reason of the construction of the Pennsylvania canal. After the proceedings were confirmed by the court below, and before this writ issued, M’Allister died, which was the ground of the motion to quash.</p>

<p>A judgment against the husband of an heir at law is a lien against his life estate, and upon a sale made by the' administrator of the ancestor of the whole estate, by virtue of the intestate laws, such judgment creditor is entitled to be paid the amount of his judgment, when the proceeds due and payable to such husband are sufficient for that purpose.</p>

<p>Where the condition of a recognizance was, that the principal would “ do and perform all the things required by law of him as guardian as aforesaid, and shall faithfully account with said minor, and pay over all such sums of money as may come to his hands according to the direction of the court." Held : on a scire facias against the surety on this recognizance, that ho could not be charged with the money reported to be due by his principal to the ward, by referees chosen, without the knowledge or consent of the surety, by the principal and the guardian who succeeded him.</p>

<p>One who attends to the trial of a cause, not as a party,' but upon notice by the defendant, because of a iiabiiity, tbe amount of which will be affected by the verdict and judgment, may give evidence to lessen or defeat a recovery ; if he neglect to give such evidence, he will not be permitted afterwards to give it in- an action directly against himself, by the defendant in the first suit.</p> <p>When the rules of court require a defendant to give notice to the plaintiff of special matter, which he intends to rely upon as a defence, and such notice ia not given, the evidence should be rejected.</p> <p>An action on a bond of indemnity, given by one to two, when one has alone been damnified, is rightly brought in the name of both the obligees for the use of the one; and declaration is not vitiated by a particular relation of the use, nor by the conclusion that the refusal of the defendant to pay was to- the damage of one.</p>

This was an action of partition by John J\l. Keim against Samuel P. Wetherill, John P. Wetherill, Charles Wetherill, William Wetherill, and Rebecca Gumbes, to have partition of several tracts of land, adjoining each other, containing four hundred acres. Judgment quod partitio fiat, was entered, and a writ de partitione facienda was issued.

<p>APPEAL from the circuit court of Dauphin county, held by Justice Rogers.</p> <p>This ,was an action of ejectment for an island at the junction of the Susquehanna and Juniata rivers, by Stephen Duncan against Rebecca Duncan.</p> <p>The plaintiff, in order to support his title, gave, in evidence the will of the honourable Thomas Duncan, containing this clause: “ my island, bought of John Reed, at the mouth of the Juniata, I desire to be appraised by three persons, to be selected, by my executors, and if my. son Stephen will accept the same at the valuation, then it is to be conveyed to him in fee simple, he securing the purchase money by mortgage on the premises, which purchase money is to be considered as part of my estate; if he refuses to take it, then it is to be sold by my executors.” He then gave in evidence, the appointment of the appraisers; their valuation of the property; and his acceptance of the same at the valuation ; and then offered in evidence a conveyance from Martha Duncan, executrix, Edward J. Stiles and John I). Mahon, executors of Thomas Duncan, esquire, deceased, to Stephen Duncan. This conveyance was signed by the grantors, and opposite the name of each, there was an horizontal slit in the parchment on which it was written, and a blue ribbon was drawn through, extending along all the names. The acknowledgement by John D. Ma-hon and Edward J. Stiles, was made before a justice of the peace, and that of Martha Duncan was made before the Chief Justice, and the certificate of each, in the body of it, purported to be under their hands and seals, but the seals were such as those opposite the names of the grantors. The ribbon was not attached to the parchment otherwise than that it passed through the slits in the parchment.</p> <p>The defendant objected to this conveyance, on the ground that it was not sealed and that the certificate of the justice of the peace and that of the chief justice were not under seal. These objections were sustained by the court, and the plaintiff took a nonsuit, which he afterwards moved the court to take off, and assigned these reasons :</p> <p>1. The court erred in rejecting the conveyance offered in evidence.</p> <p>2. The plaintiff should have been permitted to maintain his action upon the evidence given, without the conveyance.</p> <p>The court overruled the motion, and the defendant appealed. The same reasons were assigned in this court.</p>

<p>APPEAL from the circuit court of Lancaster county, held by Chief Justice Gibson.</p> <p>This was an action of ejectment for two tracts of land, by John Mercer, surviving executor of James Mercer deceased : against Jane Watson; David Watson and Esther Watson, Jinn Watson, Samuel P. Watson and Jane J. Watson, by their guardian Jane Watson. Both parties claimed title under Samuel Patterson deceased, who died intestate, leaving issue five children, John, Margaret, Samuel, Joseph and Sarah. In 1784, by proceedings in partition, the land was confirmed to James Mercer and Margaret his wife, in right of the said Margaret, who was one of the heirs of Samuel Patterson deceased. On the 30th of May 1785, James Mercer and Margaret his wife conveyed to Nathan Thompson, who, by deed of the same date, reconveyed to James Mercer. The will of James Mercer, proved the 10th of December 1804, vested his title in the plaintiff, John Mercer, his executor.</p> <p>Sarah Patterson, one of the daughters of Samuel Patterson, deceased, was married to David Watson, and died, leaving issue one son, Samuel Watson, who also died, leaving the defendants, his widow and children. The defendants gave in evidence, the record of an action of ejectment for the land in dispute, brought to February term 1802, by the lessee of David Watson and wife, against James Mercer, demise laid on 'the 1st of February 1802, ouster the same day, which abated by trie death of James Mercer in 1804. Another ejectment for the same land to February term 1805, by the same plaintiff against the same defendant; demise laid in 1804, verdict and judgment for the plaintiff, removed to the supreme court, and the judgment affirmed in 1808. Ejectment to January term 1818, by John, and Margaret Mercer against Samuel P. Watson, for the same land, and the respective parties claimed under the same title as the parties in the former ejectment; verdict and judgment for the plaintiffs, removed by writ of error to the supreme court, and the judgment reversed. Also, to August term 1809, record of an action for mesne profits, by Watson and wife against Bailey and others; verdict and judgment in 1813, for 1200 dollars damages.</p> <p>Upon the judgment in ejectment, by Watson and wife against Mercer, brought to February term 1805, an habere facias possessionem issued to March term 1809, and the plaintiffs were then put into possession.</p> <p>The present action of ejectment was brought to June term 1829, the prcecipe dated the 6th of May 1829. All these ejectments arose out of the defective acknowledgement by the wife, of the deed from James Mercer and Margaret his wife, to Nathan Thompson. And this ejectment was brought in consequence of the passage of the act of the 3d of April 1826, confirming deeds by femes covert.</p> <p>After the testimony was closed, the counsel for the defendants prayed the court to charge the jury on the following points of law, and to file their charge of record.</p> <p>1. That on the death of Margaret Mercer, the wife of James Mercer, seised in fee of the lands in dispute in this cause, intestate, her husband, continuing to hold and possess them after her death and claiming to devise them as his own, was a tenant at sufferance, and his continuing in possession of them was not adverse or hostile to the true owners or the heirs at law of his wife.</p> <p>2. That upon the death of Margaret Mercer, intestate and without issue, and the ejectment sued on the 4th day of February 1802, by her sister, Sarah Watson, her sole heir at law, and David Watson, her husband, against James Mercer, for the recovery of the real estate, of which the said Margaret Mercer died seised in fee, and which the said James held and withheld from her heir at law the said Sarah, the said James Mercer became a tort feasor and trespasser from the time he withheld the said fee simple estate from the said Sarah and her husband, and became responsible to them for damages for so withholding the said estate from the said David Watson and wife, in the right of the said Sarah, from the death of the said Margaret Mercer, and the descent cast, unless the plaintiff can show other title for so withholding and retaining the said possession, than that of the deeds of 30th of May 1785, by James Mercer and Margaret his wife to Nathan Thompson, and from said Thompson to James Mercer, given in evidence in this cause.</p> <p>8. That the alleged deed of 30th of May 1785, executed by James Mercer and Margaret his wife to Nathan Thompson, not being executed and acknowledged conformably to the act of assembly, passed the 24th'of February 1770, “ establishing a mode by which husband and wife may hereafter convey the estate of the wife,” was, at the time of its execution and acknowledgement, no deed in law, but an absolute nullity, so far as it pretended to convey, or in any way affect the real estate of the said Margaret contained in it.</p> <p>4. That as John Mercer, the present plaintiff, and the other defendants in the ejectment sued against them on the 4th of February 1805, in the common pleas of Lancaster county, for the recovery of the lands now in dispute in this ejectment, by David Watson and Sarah his wife, gave in evidence the deed of the 30th of May 1785, given in evidence in this cause, and insisted on it on the trial and appeal taken in that cause to be a bar to the said ejectment, by vesting the estate in Nathan Thompson, which his conveyance, given in evidence, vested in James Mercer, and tolled and defeated the descent of the said estate to Sarah Watson, on which points so raised and filed of record by the defendants, the supreme court, on the 31st of December 1808, decided, that the said deeds did not bar the said ejectment, and that the plaintiffs, as heirs at law, do recover the real estate of the said Margaret from the said defendants, which judgment given in evidence in this cause, is conclusive evidence that the said deed of the 30th of May 1785, was absolutely void, as the deed of the said Margaret Mercer, to convey her estate, or to prevent the descent thereof to her heir at law, the said Sarah Watson.</p> <p>5. That it appears from the record given in evidence in this cause, that the lessee of David Watson and Sarah his wife, after the recovery stated in the fourth point above, on the day of 1809, brought an action of trespass for the mesne profits against the said John Mercer the present plaintiff, Francis Bailey, John Messencope, and Joseph Lefevre, to August term 1809, No. 1, in the common pleas of Lancaster county, in which they recovered by a verdict of a jury, and the judgment of the court, 1200 dollars, showing that their possession of the lands so recovered, and the profits received was wrongful, and themselves trespassers in occupying the lands so recovered under the deed and will shown in evidence in this cause by the plaintiff.</p> <p>6. That the said Sarah ■ Watson died intestate, and her real estate, the lands now in dispute, descended to Samuel P. Watson, her only child and heir at law, before the 2d of December 1817, against whom John Mercer and Margaret Mercer brought an ejectment to January term 1818, No. 54, in the common pleas of Lancaster county, for the lands now in dispute, which being put to issue, came to trial, when the plaintiffs gave in evidence the deed of 30th of May 1785, to support the said ejectment, when the defendant requested the court to give it in charge to the jury, “that the deed of 30th of May ,1785, from James Mercer and Margaret his wife, to Nathan Thompson, prout said deed given in evidence by plaintiff to sustain bis said suit, is not duly acknowledged to convey the estate of inheritance of Margaret Mercer so as to destroy the descent of the estate to the defendant her heir at law.” Whereupon the court charged the jury that the said deed so acknowledged was sufficient to convey the said inheritance, and bar the descent thereof to the defendant as the heir of the said Margaret, on which charge a verdict and judgment being rendered in favour of the plaintiff, and a writ of error prosecuted by the defendant Samuel Watson, to the supreme court to May term, 1819, and on argument, “the said court reversed the judgment of the court of common pleas in this action.” The said judgment of the supreme court being given on the very deed of 30th of May 1785, was conclusive evidence that the said deed was inoperative and void to convey the estate of the said Margaret Mercer, and that the descents of the estate of the. said Margaret Mercer, on her death, to her sister Sarah Watson, and on her death to her son Samuel P. Watson, were valid and legal.</p> <p>7. That the two judgments of the supreme court, given in evidence in this cause on the 31st of December 1808, and on the 3d of June 1820, on the very point of the deed of the 30th of May 1785, being by each of the records specifically presented to the said court for their judgment, and that the said judgments having not only decided that the said deed was inoperative and void to show title in the defendants in the first and the plaintiffs in the second ejectment, and in no way impeded the descent, under the intestate laws, of the estate of Margaret Mercer to her heir at law, but that the said heir was entitled to recover thereby, the said two judgments are conclusive evidence that the said deed of the 30th of May 1785, so far as the same related to the said Margaret Mercer, Was null and void, and never after could become a legal instrument, after her death, and the treble descent, to Sarah Watson, and from her son Samuel P. Watson, and from Samuel P. Watson to his children, under the said judgment and the intestate laws before the 3d of April 1826.</p> <p>8. Whether, under the two judgments in the two ejectments, John and Margaret Mercer becoming voluntarily nonsuit in the ejectment to January term 1818, No. 55, on the 12th of March 1821, did not amount to an acquiescence in the previous judgment, a voluntary submission to them and an equitable and legal relinquishment of the claim to the lands in dispute; and whether under the evidence given of the ejectment in 1802, and its result, and of the ejectments in which the two judgments were rendered against the deed of the 30th of May 1785, and in favour of the heir and the three descents cast before the 3d of April 1826, and the above nonsuit, when they had the power to try and would not, be cause for a perpetual injunction in chancery against further proceeding upon said deed, and whether the same would not a fortiori be a bar under the statute of the 13 th of April 1807, the said records showing that the specific mode in which they were presented to the supreme court was a demurrer to all intents and purposes and equivalent thereto, taken on the deed of the 30th of May 1785, in Pennsylvania, and if not, please to state the operation of these records and judgments and nonsuit and three descents, in equity and law in this cause.</p> <p>9. That this cause is barred by the statute of limitations, by the suit brought on the 4th of February 1802, by the suit brought on the 4th of February 1805, and the proceedings and judgment rendered therein, and the habere facias possessionem and fi. fi. issued and execured thereupon; also, by the action of trespass for mesne profits and the recovery therein, prout said records respectively given in evidence in this cause and peaceable possession and quiet and undisturbed enjoyment of the lands for which this suit is brought, until it was brought on the 6th of May 1829; the recovery of the 31st of December 1808, and its execution, extinguishing the tortious possession from the death of Margaret Mercer and the action of trespass compensating for the lawless intrusion, prout the record thereof, making the possession continuous and co-extensive with the title, under the descents and the adjudications given in evidence.</p> <p>10. That the act of assembly of the 3d of April 1826, read and relied on by plaintiff according to its just and true construction, was designed for the protection of purchases made bona fide and for full value, only, and not to interfere in favour of volunteers, to subvert rights previously acquired by three descents and corroborated by the strongest equities and the highest legal decisions.</p> <p>11. That if the said act of 2d of April 1826, entitled a supplement to an act for the better confirmation of the estates of persons holding and claiming under femes covert, and for establishing a mode in which husband and wife may hereafter convey their estates, so far as the same operates upon the right and title acquired by the defendant’s ancestors, by the decision of the supreme court, on the 31st of December 1808, in the suit then pending, and given in evidence in this cause; and again, in their decision on the 3d of June 1820, in the suit given in evidence in this cause; and also by the nonsuit given in evidence in another ejectment, given in evidence ; and also by the ejectment brought on the 4th of February 1802, and given in evidence in this cause ; and also by the three descents proved and given in evidence in this cause, is, if the said act was intended to operate on such rights so validated, descended and confirmed, unconstitutional and void.</p> <p>12. What is the operation of the act of the 3d of April 1826, upon the land sold and shown by the deeds given in evidence in this cause, if the same is holden to have a retrospection in giving efficacy to the deed of the 30th of May 1785, given in evidence in this cause 1</p> <p>Whereupon the court charged the jury as follows, viz.—</p> <p>Samuel Patterson owned the land in 1785, when he died. He left three sons and two daughters. The sons died without children, so that the whole estate came to the two daughters. Sarah married David Watson and Margaret married James Mercer. In 1785 Margaret, intending to give her land to her husband, joined with him in a conveyance to Nathan Thompson, who conveyed back to James Mercer. James Mercer and Margaret his wife had no children, and on her death, if the estate had continued to belong to her, it would have gone to the defendants, who are the children of her sister Sarah, and her heirs at law. The defendants, therefore, contend, that the conveyance to Nathan Thompson was void, for a defect in the certificate of acknowledgement. That has been decided against the defendants by the supreme court; and this court and you are bound by the decision. It has been determined by the supreme court, that the act of assembly of 1826 cured the original defect. This can be overruled only by the supreme court of the United States. They can succeed, therefore, only by some other title. They claim a title by the statute of limitations. They claim to have been in the adverse possession' of the premises from the death of James Mercer, in 1804, on the ground that the possession of the plaintiff, his executor, was their possession. If the deed from Mercer and wife to Thompson, and his conveyance to Mercer the husband, was good, and passed the estate to James Mercer (and the defendants stand in-no need of the statute of limitations if they did not) this is strange doctrine. But even if these deeds were a nullity, yet the possession of the executors of James Mercer after the expiration of the estate of his wife, would not be under the defendants, but adverse to them. The possession of the executors contained no recognition of the defendant’s title, but was inconsistent with it. But it is said, that the statute never was intended to validate the deed after the statute had run. The statute, however, could not run, if the possession of the executors, after the death of James Mercer, were not the possession of the defendants. It seems to me, that the possession of the executors was adverse, because they denied the title of Sarah Watson or her children. They held the land in trust for the uses declared in the will; that is, to sell it, and divide the price among James Mercer’s devisees. This is a fact for you. But the intent of the statute was to make the conveyance good by relation from its date. It could be good in no other way; for if it were, the estate would vest for the first time in 1826, when the confirming law was passed. The statute of limitations, therefore, will not avail the defendants.</p> <p>The former proceedings have been relied onas givingthe defendants-a title; that is, the verdict obtained by them, a nonsuit suffered by the plaintiff) and the several descents that have taken place of the property. I see nothing in all these to stand in the way of the plaintiff’s rights.. I dissent from Mr Hopkins’s points, and cannot instruct you according to his request.</p> <p>The jury found a verdict for the plaintiff) with six cents damages and six cents costs.</p> <p>The defendants moved the court for a new trial on the following reasons filed; and the motion being overruled by the court, they appealed to the supreme court for the same reasons, viz.—</p> <p>1. The honourable court misdirected the jury on each and every of the points propounded to him, and on which he charged the jury.</p> <p>2. The cause is barred by the statute of limitations.</p> <p>3. This cause, under the evidence given in it, would have been perpetually enjoined, and any proceedings upon it by the plaintiff; and the honourable judge, exercising in this ejectment all the powers of chancery, through the medium of the jury, ought to have charged the jury, the suit was on equitable grounds barred and that they ought to find for the defendants.</p> <p>3. This cause was barred under the act of 1st of April 1807 ; the question propounded to the court of common pleas to charge the jury upon, and the charge upon it, and the verdict and judgment rendered upon it, being in law and equity equivalent to, and the same as a demurrer; and the verdict and judgment equivalent to a special verdict, and the same a,s a special verdict, and the judgment of the supreme court, reversing the said judgment, on the 3d day of June 1820,. and awarding no venire facias de novo.</p> <p>5. The two judgments rendered by the supreme court, on the 31st of December 1808, and on the 3d of June 1820, conclusively establish, that the deed of 30th of May 1785, was no deed, but a mere nullity, which never afterwards was susceptible of confirmation by any act of the legislature.</p> <p>6. The act of 3d of April 1826, was never intended to, nor does it in expression, operate upon this cause ; and if it did, it is unconstitutional and void.</p> <p>7. The defence given in evidence in this cause, and made a part of the record, makes a case, which is under the conclusive protection of the constitution of the state of Pennsylvania, and of the constitution of the United States, and placed beyond the power of the state legislature ; and if the act of 3d of April 1826, was in intention or expression operative on this defence (which we deny) the said act is unconstitutional and void.</p> <p>8. The verdict in this cause is illegal, and directly contrary to the evidence in finding for the whole lands in the statement, except that contained in the parts sold, when they showed title to part only, and in not finding and specifying the quantity the plaintiff showed he had title to (supposing—though not admitting—for the sake of raising the objection), by the evidence he gave.</p>

<p>A stage coach passing upon a public highway, is protected by an act of congress from wilful and wanton obstruction or delay; but in every other respect they are on a footing with all other carriages.</p> <p>A traveller may use the middle or either side of a public road at his pleasure, and without being bound to turn aside for another travelling in the same direction, provided there be convenient room to pass on the one hand or on the other.</p> <p>Parol proof of a particular custom should not be suffered to control the general law of the land.</p>

<p>The admission of irrelevant testimony by the circuit court is no cause for a new trial, unless it appears to have done an injury to the party.</p> <p>Administrators who enter into a joint and several administration bond, and file a joint inventory, are jointly and severally liable for the whole amount of the personal property of the intestate.</p> <p>Interest beyond the penalty of a bond may be recovered in a court of law in the shape of damages.</p>

These were two actions of assumpsit for money had and received, in which the facts were the same, and which were stated and agreed to be taken in the nature of a special verdict. In the first, Levi Bull and Molton C. Rogers, trustees of Coleman Jacobs, were plaintiffs; and Levi Bull, Wittiam Coleman and Molton C. Rogers were defendants.

<p>A bond given by executors, conditioned for the faithful discharge of their duties, in pursuance of an order of the orphan’s court, was sued by one legatee in the name of the Commonwealth for his own use, and a judgment was obtained by award of arbitrators for the amount of the penalty with the right to take out execution for the amount of his damages; these damages were paid by the defendant, and the legatee entered satisfaction on the judgment. Held, that such satisfaction extended only to the interest of tha.t legatee, and a scire facias may be issued upon the judgment to enable any other of the legatees to recover their legacy; and a legatee whose legacy did not become due until after the date of the judgment may also.maintain a scire facias upon it.</p> <p>Such a judgment is final and not interlocutory, and is a lien upon all the lands of the defendant in the county where it is rendered; but its lien is limited to five years by force of the act of 1798.</p> <p>Another legatee having sued the same bond and obtained judgment for the penalty with the right to take out execution for the amount of his legacy : it was held that although the first suit, if it had been pleaded, would have been a bar to the second; yet the circumstance, of its having been paid, and satisfaction entered upon the record, did not in any way affect the judgment in the first suit, or the right of any legatee or party in interest to maintain a scire facias upon it.</p> <p>After the lapse of five years from the rendition of the original judgment, lands which were originally bound by its lien are discharged.</p> <p>A scire facias which does not properly recite the original judgment, will not continue its lien, although after the five years have elapsed the court permit the scire facias to be amended so as to recite it properly.</p>

At January sessions 1830, George Beatty' and others presented their petitions to the court, praying the appointment of viewers to assess damages done to their lands by the construction of the Pennsylvania canal, in pursuance of the act of assembly of the 9th of April 1827; and the viewers were appointed.

<p>ERROR to tbe common pleas of Lancaster county.</p> <p>This was a feigned issue directed by the court of common pleas to try the validity of a mortgage by the President, Directors and Company for erecting a permanent bridge of the river Susquehannah at or near M’CalVs Ferry, to Jonas Preston and. Abraham Bailey.</p> <p>Daniel Gordon, the defendant in this issue, was a judgment creditor of the bridge company, and therefore interested to defeat the mortgage, by procuring a decision that it was invalid. His counsel, upon the trial of this issue, raised these points.</p> <p>1. That the law creating the corporation did not authorize the company to raise money by mortgaging its real estate, which depended upon the construction of that part of the act of incorporation which is in these words: “ and the said company is hereby authorized to purchase in fee, or for any less estate, all such lands, tenements and hereditaments, and estate real and personal, as shall be necessary and convenient for them in the prosecution of their worfcs ; and the same to sell and dispose of at their pleasure.”</p> <p>2. That the resolution of the directors, authorizing the execution of the mortgage, was not passed at a regular and legal meeting of the board; and that all the members, had not notice of it. The facts on this subject were, that the resolution was passed, and the mortgage executed, at a special meeting convened for the purpose, at which a quorum was present, but one or more of the members had not notice and did not attend.</p> <p>3. That the mortgage was given to secure a larger sum than was due. It was given for a larger sum than was due to Preston and Bailey ; but it was to secure other just debts of the company, although the trust was not mentioned.</p> <p>4. That the execution and acknowledgement of the mortgage was not legal. The facts were, that the mortgage was signed by all the directors present, and sealed with the seal of - the corporation, and acknowledged by them.</p> <p>5. That the mortgage was illegal, because the mortgagees were the president and treasurer of the company, and were present at the meeting of the board when the mortgage was authorized and executed. These facts were as stated.</p> <p>6. The plaintiff in error also assigned for error the admission in evidence by the court, of the declarations of Bailey, one of the mortgagees. The defendant’s counsélhad asked a witness to give evidence of the declaration of Bailey, which he did ; and the plaintiffs then asked the witness to state other parts of the same conversation : which was objected to, and the objection was overruled, and exception taken by the defendant.</p> <p>The cause was argued in this court by</p>

<p>ERROR to the common pleas of York county.</p> <p>This was an amicable action of debt by Christian Phaler against Joseph Morris, in which this special verdict .was found.</p> <p>On the 1st of November 1789, John Shafer made his will, by which he,-among other things, devised to his wife Christina a house and half lot in the borough of York, to enjoy the same during her widowhood ; and in case she should remain his widow during her life, then said house and lot to be sold after her death, and the one half of the money arising therefrom he bequeathed unto the heirs and assigns of his said wife. The said John afterwards died, and said will was duly proved and allowed.</p> <p>On the 23d of June 1830, the said Christina made her will, by which she directs her executors to sell her real estate and to pay one-fourth of the proceeds of such sale to Christian Phaler, the plaintiff in this suit. The said Christina afterwards died, and her said will was duly proved and allowed. At her death she left no real estate; nor had she any when she made her will. She left a small amount of personal estate, which was not sufficient to pay her debts. She died indebted to the plaintiff in the sum of fifty-five dollars.</p> <p>The defendant became the administrator with her will annexed, and administered her personal estate according to law, but nothing remains of it in his hands to be applied to' the debt due to the plaintiff, unless one half of the balance heretofore mentioned can be so applied.</p> <p>The defendant also became the administrator de bonis non with the will of said John Shafer annexed, and after the decease of said Christina, sold the house and half lot in which she had her widowhood, by the will of said John as aforesaid, and of the proceeds .thereof he now has in his hands a balance, after deducting the necessary expenses, of 406 dollars and 25 cents.</p> <p>The said Christina remained the widow of said John Shafer during her life.</p> <p>If the one half of the proceeds of said house and lot be not by law, under the will of said John, made subject to the debts of said Christina; and the plaintiff be entitled under the wills of said John and Christina to the one-fourth of the one half of said proceeds: theft judgmenfc to be given for the plaintiff in this case for 46 dollars and 54 cents.</p> <p>But if the same be subject to the debts of said Christina, then judgment to be given for plaintiff for 35 dollars and 63 cent's, otherwise judgment for defendant.</p> <p>The court below rendered a judgment for the plaintiff for 35 dollars and 63 cents.</p>

John Miller having been duly elected sheriff, on the 20th of October 1817 entered into bond and executed a recognizance according to law.

<p>A judgment the lien of which was preserved by execution and levy on land at the time of the passage of the acts of the 26th of March 1827 and the 23d of March 1829, is required by those acts to be revived within the term of one year from the date of the latter act; and if not revived in that time, the lien expires; and this, although execution was out upon it at the time, and a sale made of the land in six days only after the term in the act had expired.</p> <p>Where judgment is obtained against one who had taken the benefit of the insolvent laws, after his discharge, and a sale is made of land which was his when he was discharged, under such judgment the sale is only of what interest, if any, that remained in him, and the judgment creditor, and not his assignee or trustee, is entitled to the proceeds of the sale.</p>

Case of the road, in Bart and Strasburg townships, Lancaster county, leading from Bachman’s to Trout’s. In this case a petition was presented to the court at November sessions 1831, and a view granted; and return made by viewers to January session 1832: on the 16th of January, same year, “ read and approved nisi.’’ At the April sessions following, a petition was presented praying for a review, which was granted; and a report made to August session'following, on the first day…

<p>A decree for specific performance of an agreement respecting the purchase and sale of land, is of grace and not of right. It rests in the discretion of the chancellor, who would, for any thing inequitable, withhold his assistance and leave the parties to their legal remedies on the agreement. An ejectment may be sustained to enforce an equity, but only as a substitute for a bill, and subject to all those considerations by which a claim to have the land itself may be defeated.'</p> <p>The fiduciary relation which exists between an administrator and heir, makes them so far privies in representation, that the act of the administrator will bind the heir, as that of his trustee.</p> <p>An administrator necessarily succeeds to the decedent’s right to rescind a contract for the purchase and sale of land by recovering back the purchase money, or he may leave the heir to affirm it by insisting on a conveyance.</p> <p>Two persons entered into a parol agreement to purchase a tract of land, which was afterwards purchased, and a deed taken in the name of one of them: the other died; it was held that his administrator might maintain an action against the survivor to recover back the money advanoed by his intestate, on the ground that the contract was vitiated in the origin by the fraud of the defendant, the surviving party. But in such action the contract must be wholly disaffirmed. The measure of damages shall not be estimated from any profit which was made upon a subsequent sale of the land.</p> <p>Against a right of action, dependent on the existence of a secret fraud, the statute of limitation runs but from the period of discovery.</p> <p>Under the forty-second rule of the circuit court, if a witness resides more than forty miles from the court, his deposition may be read, although he has not been served with a subpcrina.</p> <p>Testimony taken in another state upon a j oint and several commission, may be read in evidence, although the commissioner named by the defendant did not attend at the execution of the commission.</p>

<p>WRIT of error to the court of common pleas of Lancaster county.</p> <p>To January term 1824, Jeremiah Brown obtained a judgment against Jonathan Webb for 512 dollars. Subsequently Jonathan Webb died intestate, seised of real estate, of which William Webb, Peter W. Webb and Rachel Webb, three of several children, were in possession, when this scire facias issued against them to show cause why they should not become parties to the said judgment, and why the plaintiff should not have execution of the lands of the decedent in their possession. The defendants plead payment, with leave, &c. Replication, non solvit, issue.</p> <p>T.he:defendants, after the jury was sworn, offered to plead specially, to'the jurisdiction of the court and to the sufficiency of the parties; but both ivere.rejected.by the court below because they were out of time. The .question turned alone upon whether the plaintiffs could recover at all upon a scire facias against the heirs, without joining the personal representatives. By the direction of the court below the plaintiff recovered, and the defendants sued out this writ of error.</p>

This was a case stated in the nature of a special verdict, in which David Hauser, administrator of Jacob Hauser deceased, was plaintiff below, and David Turner defendant. The following are the facts of the case.

<p>A record cannot be contradicted, and must be tried by itself when in'existence : to refer to a jury to decide the fact when a judgment was entered is error.</p>

<p>A statement in an action of assumpsit, which is defective for want of the date when the assumption was made, is cured by a verdict; so also where the consideration for the assumption is not stated.</p> <p>In an action of assumpsit, where the writ demanded a sum not exceeding 600 dollars, a verdict and judgment for 1300 dollars, made up of a principal less than 600 dollars and interest, is good.</p> <p>Upon a statement in an action of assumpsit, claiming 800 dollars, the plaintiff may recover 1300 dollars, if the excess above the 800 dollars be made up of interest.</p>

<p>ERROR to the district court of Lancaster county.</p> <p>This was an action of ejectment by Ephraim Malson and others, heirs at law of Thomas Malson deceased, against John Dritt and John Fry, for three islands in the Susquehannah river in Manor township, Lancaster county, containing altogether about sixty acres. During the progress of the trial many bills of exception to the admission of evidence were taken; but the court below being of opinion, that if all the plaintiffs’ evidence were true they-could not recover, that point alone was decided by this court. The evidence on that subject was, that Thomas Malson, the father of the plaintiffs, obtained the possession of the islands in dispute and had cultivated them for some years, when he was driven from them by the “ pumpkin flood” in 1784. Before he returned, Jacob Dritt, under whom the defendants claimed, had obtained the possession ; and when Malson came back, Dritt repelled him, and kept the possession by force. At several other times Malson attempted to get the possession again, but always failed. The defendants, and those under whom they claim, had been in possession for forty years before this suit was brought; and the proof was, that during all this time Malson, and his heirs after his death, were continually exerting themselves to re-oblain the possession.</p> <p>Upon this evidence as to the possession, the court below was of opinion, that the statute of limitations was a conclusive bar to the plaintiff’s recovery, and so instructed the jury, who found a verdict accordingly.</p>

<p>ERROR to the district court of York county.</p> <p>This was an action of debt upon an administration bond given by the defendant], John Evans, esquire, upon taking out letters of administration on the estate of F. M. Wadsworth, esquire, deceased. The suit was brought on the 3d of November 1831 ; and the breach of the condition of the bond alleged by the plaintiff was, the non-payment of a debt owing by the deceased, F. M. Wadsworth, esquire, to Thomas Relly, esquire.</p> <p>The plaintiff, to support the issue on his part, gave in evidence the record of a suit, No. 29, May term 1830, Relly v. Evans, Administrator of Wadsworth; report of arbitration tbereon for plaintiff for 100 dollars; appeal by plaintiff; 21 October 1831, case stated, and judgment for defendant; writ of error by plaintiff, and, 6 June 1832, judgment reversed, and judgment for plaintiff for 150 dollars. Also the-administration account of Evans, administrator of Wadsworth, settled 3 March 1831, showing a balance of 3675 dollars and 41 cents in the hands of accountant.</p> <p>The defendant then proved that he was advised by counsel to make defence in the case of Relly v. Evans, Administrator of Wads-worth; that it was litigated before arbitrators in the district and supreme court while the present suit was pending. To this evidence the plaintiffdemurred, and the defendant joined in thedemurrer, which gave rise to the question, whether the plaintiff was entitled to recover upon the evidence given in this suit. The district court wa3 of opinion, that the plaintiff was not entitled to recover; and gave judgment for the defendant, which was the subject of the assignment of error in this suit.</p>

Jacob Bright died seised of real estate, having made his will, by which he authorised his executor, John Hoff, to sell his said estate for certain purposes therein directed. The estate was sold, and John Hoff the executor took bonds and mortgage for the payment of part of the purchase money, and subsequently settled an account, charging himself with the said purchase money, by which there was found to be a balance in his hands of 13,195 dollars.

<p>ISSUE of devisavit vel non, on an instrument of writing, purporting to be the last will and testament of Tobias Stehman deceased. John .Hubley, a scrivener, was sent for to write the will of Tobias Stehman. He took down in writing what the testator dictated to be his will; and when it was all done he read it over to him, and it was approved. From this memorandum a formal will was drawn by John Hubley, and executed by Tobias Stehman in the- presence of witnesses, who subscribed it as such; but whep it was offered for probate, a caveat was entered, an issue joined, Which was tried, and a verdict and judgment rendered against the will, on the ground that it had not been read to the testator previously to its execution. The memorandum taken by John Hubley was then offered for probate, and its Validity was the subject of this issue.</p> <p>The following evidence was then given.</p> <p>This cause being at issue and the jury sworn, prout the record, the plaintiff to maintain the issue on his part, produced Frederick Fehl as a witness, who, being duly sworn according to law, testified as follows.</p> <p>“ I have been present in the year 1814, when the notes were drawing by Hubley—Nov. 1814, 14th of November 1814, drawn by John Hubley. I had orders to come to Tobias Stehman, the 13th, to come the next morning, which would be the 14th. I went, very early in the morning. I knocked at the chamber door, and he, Tobias Stehman asked me to come in. I went in; said he, You come very early. I said I had word to come very early. I asked him what was the mason for it. He told me he had a mind to make another will to-day. I asked him then what is the reason : he told me he does not like that will, he wanted to make a new one. I said, Mr Stehman, I would leave it by the old will; well, he again asked me if I would not draw the minutes in German. I said first and foremost, I cannot write a will; then he asked me to write the minutes in German; says he, Hubley will be here about two o’clock, and he had to pick the. notes and put them in English. Well, about that time the house was full of people, his own, and comers and goers, about breakfast time. Well, then he called for his wife to come into the room where he lay. She came in; then he said to her, to go into the room and tell the people to go out of the house and lock the door. Well, then she done so; she returned into the chamber room, and said they were all out, and locked the door. Well, then said he, Mammy, now take a sheet of paper and ink, and a feather, and set alongside a little table, and set it aside the bed. Well, says he, Frederick, take a chairand setdown, and mammy, said he, you take a chair and set alongside the bed. Well, then I asked him what I should set down first. Well, says he, I should set down one hundred acres in the Long lane, which I bought of Daniel Brenneman. When Ihad set down that, then he said, Have you set down that 1 I said I had. Well, then says he, I think there are thirty-five acres of woodland about á mile oif the one hundred acres. When I had set down, I asked him what wood; he said, I bought fifty-two acres of Samuel Simpson of Martick township; I should set down the fifth part of twenty-five acres. When I had set down that, he said, That is all the land my grandson shall have. Next, he was saying he had two hundred acres lying on the west side of the road leading from Millerstown to his mill, and from thence to Safe Harbour road. He meant to make four lots of the two hundred acres. Well, he said, there is a sawmill on one of the lots ; that same lot he thought Betsey, his daughter, should have; that was the east lot; and the next lot, north-west, towards the mill, should be Kitty’s. And for the other two lots adjoining lands of Jacob Fehl, there were two girls he had, Veronica and Peggy, they should cast lots for them. And the court should value these—-four or five men to value the lots—get it appraised. The highestlots they should make up, so that they should come equally in the money way ; they should come out equal. Next, he was'saying, he allowed there were three hundred acres on the east side of Millerstown road, where he resided. He allowed two hundred acres that his son Tobias should have, and the half of the house on the east side, and have to give out 2000 pounds to four of the sisters, and should have the whole team of horses. I think there were four horses, with the gears, wagon, cloth and hand-screw : he should have the apple mill and windmill, and blacksmith’s tools ; should have three steers, four cows, or three cows and two beds and bedsteads ; however, he said he should be furnished oif with every thing like his eldest son. Next, was the ten acres. I should set down ten acres adjoining lands of Kitty’s lot, which was erected on the ten acres a two story dwelling house : ■ this was lying on the west side of Millerstown road, leading to Safe Harbour, adjoining Conestoga. Then h.e, I think that time George Zeigler came there, we broke up and set it on aside; when he came, my mother had been very sick, about a mile from Stehman’s. I asked Stehman if I could not go to see my mother ; he said, Yes, you have time enough ; for Zeigler and he had something to talk about other things, and I might go. I went. I stayed at my mother’s till two o’clock, and then went to Mr Stehman’s. When I came there Mr Zeigler had been there yet. They wished to stay longer together. It was near three o’clock before Zeigler started. So he said, now I should begin at the will; Tobias .said this I should set down : ninety acres on the east side of Millerstown road ; about that time somebody knocked at the door, which was locked; Mrs Stehman went and looked; it was John Hubley; he came in ; as soon as he was in, Hubley said, Have you done any thing in the business ? I said, Yes, we had done a little; and I took it to him and told him, Here is the business we have done. He took it in his hand and looked over it; Hubley did. He then asked for a loose sheet of paper; Hubley did ; and laid the notes I had made, down ; some was right and some was not; and he made it in better style in English. He began at the place were I finished', about the mill. So he asked Stehman what was to be done with the mill; ninety acres were set down already. The mill, and all the implements belonging to it, and all that was in it, the ninety acres, the ten acres, and the mill, and the dwelling house, that is what I will keep till I die; and after my decease, or if I should die, my wife should have it as long as she lives; if she should die, his son Tobias should have all this if-he gets boys; and if he don’t get no boys, his eldest son’s son should have it—the' mill, one hundred acres and dwelling house. If that boy, Tobias, should die before he was twenty-one, his brother, Christy, was to have it; and if Christy should die under age, then John should have it; and if John should die under age, Jacob should have it: and if they should all die under age, the mill and- one hundred acres should be sold, and the money should be divided among his own children. That was the last; then it was read by Hubley—the minutes; when it was reading, his wife was by; says she, There is something forgot about the mill—if was not valued; she was saying about 2000 pounds; ’he did not give her an answer on that; so he was considering. He said, I don’t know how to do about that. Then I was saying to him, I heard Zeigler once saying Christy Rohrer would willingly give 5000 pounds for the mill, and fifty acres, and the dwelling house; then he began to laugh a little—to smile; then we were talking how the money would be at that time; it might be very scarce ; then he said it must be valued whoever gets it; it must be valued at the time he gets it; then Hubley lined it in the notes, that whoever gets it, it must be valued to ; it must be valued by men to be appointed by the court. Well, it was read over again by Hubley—the whole. Well, said Stehman, now it is right; and he told Mr Hubley to do it by to-morrow for him, according to law. Hubley made an excuse, said he could not to-morrow, he had some business on the turnpike. Well, Stehman told him to do it as soon as possible. Hubley promised he would. Then Hubley asked him who should be-the executors ; he fixed out his right hand, and pointed with his finger against me ; he said, Frederick Fehl should be one, and his son, Tobias, second, and Jacob Fehl the third ; so it was dark—almost dark. He called the wife to get a little water and wine ; we refused ; did not drink any, saying there was no need. We bid good night to him, shook hands and went off. Mr Hubley and I went away together.</p> <p>“ Stehman lived about a mile beyond Millerstown. He was at that time in good health. He thought himself to live at the mill. He was at that time confined to his bed by a sort of a fever—no pain.</p> <p>“As to memory and- understanding, I could see no odds, like as in the times when he was well and hearty.</p> <p>“ Mr Hubley read the minutes over twice ; he read it word for word like; he asked him sometimes, when it was a little queery—he asked him if he understood that, and he said Yes. I mean by queery some words which Mr Hubley thought he could not understand; he explained it to him, and he said he was satisfied.</p> <p>“ The last time he read it he explained some words he did not the first time ; he said it was all right after it was read the second time. I did not see him from that time till the 22d of November, he was then pretty weakly; he was very glad to see me ; glad. I came to see him ; he was well in his memory and understanding. He did not say any thing about these minutes. [Shown the notes.] -I think this is the very paper Hubley wrote; I did not see it since that day ; this is the paper he wrote in my presence and read to the old man, and when it was read, he said it was all right; I think it is the paper to the best of my knowledge.”</p> <p>Cross-examined. “ I and he married sisters; I cannot read English writing well; I did not read, the minutes that John Hubley wrote ; I never had them in my hand before to-day; I know it by the letters of his handwriting; I am not acquainted with the handwriting of Mr Hubley, but think this is the very writings he drew that day.” Asked, why % “I think so because I saw it that day when Hubley read it; that is all the reason I have for thinking'this is the paper; no mark on the paper by which I know it to be the paper ; did not take notice at the time of any marks. John Hubley put them in his pocket and took them away that day; from that time to this I have not seen them; I cannot read this handwriting at all; Mr Stehman agreed to them when read a second time. The substance that was communicated to Mr Hubley was the same with what was read, except the style was altered. The substance communicated to me, Hubley picked out the best of it, and asked Stehman if it was right, and he said Yes. Hubley spoke toffiim in the German, and he spoke German to Hubley and I also ; we all spoke German ; Mr Hubley read it in English to Mr Stehman the first and second time ; he explained the queery words in German ; Mr Stehman understood English, but could not read or write English ; the last time he read it slowly and carefully.”</p> <p>“ Mr Stehman died'25th or 26th of November 1814. Tobias, his eldest son, was then above age ; twenty-three or twenty-four ; always lived with his father ; he was very industrious ; his father had a great liking to him.”</p> <p>The counsel for the defendants admit that the notes now produced are in the handwriting of the late John Huhley, Esq.</p> <p>The plaintiffs then offered Jacob Fehl as a witness ; who being sworn according to law, testified as follows.</p> <p>“ I went to the doctor’s always when he (Mr Stehman) was sick. He was eleven or twelve weeks sick; he sent his daughter for me; I went there between, nine and ten o’clock; his wife gave me a wink that I should come to him—into the room to him ; I asked him how he was; said he was not quite well, but a great deal better than he had been. He said he- had made a will but it never should stand; that was the first will Gloninger had made; he said I should go to John Huhley, he should come out and draw me another will. I said, Tobias, I do not like tó do such business; he said I should go, and be afraid of nobody; I took his horse and went to Mr Huhley’s office; he was sitting there; I told him; he said he could not go to-day, he would try to get out the day after to-morrow; I must try to get somebody to do it in German, and that I must tell Tobias; he said he could write English or German. I told this to Mr Stehman; Mr Stehman called in Frederick Fehl’s son, and told him to tell his father to come over very early in the morning; I was with Mr Stehman till twelve o’clock in the night; he told me I should come out in the morning again ; Frederick Fehl would be there early; I went home; when I came out Frederick was drawing the writing in German; he was in bed, and his wife was sitting there; when Frederick heard somebody was coming, he took the papers up and stopped; the old man said I knew what they were doing; I went in; he had doné with the grandchildren; I said he might make his will as he liked. Frederick read it to me; then he said I will begin about the four hundred acres which the four daughters should have; then he was considering a little whether Betsey or Kitty should have the sawmill and the fifty acres. He said Betsey should have it; he said Kitty should have fifty acres of the land going down to the mill; as to Fanny and Peggy they were single, and if they married they should draw lots for the choice of the other two; then if they should not agree they should get five men to appraise it, if one should be of more value than the other; that they should have an equal share in money; then he was done with that, and he said he would go to the house where he lived; two hundred acres of land; he said Tobias should have them two hundred acres more or less; he should give three thousand pounds out to the girls; then Frederick stood up and said Hoi! Hoi! and he then said two thousand pounds; he said that should be among my four daughters, Betsey and Kitty and Fanny and Peggy; half of the house he lived in he made to his wife, and I don’t know what all, and horse and bridle; Tobias should feed it and haul the fire wood and make it fine for her, six barrels of cider, and she should go into the orchard and pick as many apples as she pleased, and the gardens and one thing and another, I cannot just name it all; he said if she cannot live with her son Tobias, she might rent it away if he did not use her like another; that was done; then he began about the ninety acres, and the mill, and the ten acres, and the new house; then as he was speaking about it who should come riding but George Zeigler; .he was speaking then and he said, This mill and the ten acres, and the ninety acres belongs to my wife, and she can move to the mill if I don’t come down or rent it out—she should do what she pleased wi,th it—she. was to have it as long as she was alive. If her son-in-law, Rohrer, used her well, she could stay there too if she-choose—a piece of it; if Tobias gets a boy before his mother died he should have the mill; if'he should not get a boy it should fall to John Stehman; and if that one should die under age it should fall to Christy; if he should die under age it should go to Johnny; if that one died under age-it should go to Jacob; then it should be appraised by five men to be ¿ppointed. If one'gets hold of the mill, they should have five men appointed by the court to appraise the mill, the ninety acres and the ten acres and the new dwelling house, and' that should be made into six shares, and every one was to have a share. His debts should be paid, and the over-plus to be divided among his own children and grandchildren in equal shares in money; the two single daughters were to be furnished like JDietricKs wife and Rohrer's wife, each 500 dollars, to be taken first out of the personal property. Then Zeigler was coming, and he said he would quit it a little, and I went away, my mother was sick. If Tobias was to have a son at any time during his life Tobias was to have it, and it was to be appraised by men; the court was to appoint the men if they could not agree. The day after Hubley was there I went there. He said he was glad Hubley was there, he was drawing the will in town; took the papers there. He said Hubley would be out again, but I should ride in and tell Mr Hubley to make his will ready, what he was writing, to make haste and make this thing ready, these papers that he took oflf ready; then he said I should tell Hubley to put the grain in it if he forgot it; Tobias, was to have it; I should tell Hubley so; I told Hubley; Hubley said he was very glad I had come, he said he had it in his minutes-that the girls should have 500 pounds every one out of the two hundred acres; then I rode home and told Tobias Hubley did not know rightly about; he said, The dumb old man, don’t he know, that the girls were to have 500 pounds each out of the two hundred acres. Then I went into Hubley and he brought me the paper, such a paper as this. He looked into it and said, Yes, the girls are to have 500 pounds a-piece. Mr Stehman told me to tell Hubley if he was done he should bring the will out; he gave it to me and I took it out; he said in the morning he would be out to read it to him if he was well enough, and I should tell Stehman so; I gave it to Stehman; he said I should call all the children in; I think this is the paper I gave to him, and he had this paper; all were there but Kitty, and he said, This is now my last will. Henry Rohrer was there, and he sent for Michael. Rathfon, and Henry Gall came in too; then he signed it, put ' his name down,- and said, Thank God I made my will; then Michael Rathfon and Henry Rohrer and Henry Gall, as witnesses. It was not read to him:—nobody there could read English. He thought it was all right; two weeks afterwards he died. Tobias was twenty-seven or twenty-eight or thirty when his father died ; he lived all along with his father; was-an industrious man.”</p> <p>Cross-examined. “ He did not give me a paper to carry to Mr Hubley. I do not remember it.”</p> <p>The plaintiff then produced Henry Gall as a witness, who, being duly sworn according to" law, testified as follows :</p> <p>“ I lived with Mr Tobias Stehman about sixteen years; young Tobias lived with him all the time. To the best of my knowledge he was twenty-eight or twenty-nine when his’father died. His son and all the tenants helped to put up the mill; worked at it. I was there when the old man signed the will; it was not read to him ; nobody could read it without the son could; signed by him and by me without being read to him. Tobias was always industrious, worked on steady from the time I was there. [Shown a writing.] This is my handwriting; Tobias declared this to be his will. Rathfon died and Rohrer is dead. He was of sound mind then. This is the paper that was not read to them.”</p> <p>The following deposition of John Hubley was then read.</p> <p>“ In pursuance of the hereto annexed rule of court, personally appeared before me Samuel Carpenter, one of the aldermen of the city of Lancaster, in the said county of Lancaster, John Hubley, Esq. who being duly sworn according to law, deposeth and saith, that he took the notes on the paper hereto attached, marked A, and that those notes were taken for the purpose of drawing the last will of Tobias Stehman by them; he saith, that he could not say whether they were taken in the said Stehman’s last sickness, but Stehman did not live long afterwards, but how long he could not tell; but that the said Stehman when the notes were taken, was then of sound mind, memory and understanding, to the best of his knowledge and belief; and that he corrected the said notes and read them over again ; he, Stehman, gave him, deponent, to understand that he was satisfied with the notes. That those notes which he read over to Stehman as aforesaid, meaning these notes hereto attached, marked A, are the same notes, and that he believes them to be the same as they were then. And deponent further saith, that there was a great deal of conversation at that time, and that deponent supposed that he would be able to write the will from those explanatory observations and the minutes taken by him, but that the deponent does not now recollect what those explanatory observations were ; that those explanatory observations were made at and after the notes were read to Stehman the second time.”</p> <p>Cross-examination. “ At the time of taking these minutes was it not understood, both by you and the testator, that they were not to be considered as his will, but a mere memorandum from which you were to draw an instrument of writing, afterwards to be executed by the testator as his will Í”</p> <p>Answer. “ It was so understood.”</p> <p>Question. “ Had not Frederick Fehl taken some notes in German in respect to the will of Tobias Stehman before you came to Mr Stehman’s 1” Answer. “Yes, Fehl had begun when I came, but had not proceeded far, but I had nothing to do with the notes taken by Fehl. Mr Stehman sat up in bed and took a snuff occasionally. • I did not conceive him to be so very ill. The query appearing in the notes was made the same time the notes were drawn to the best of my knowledge.” ■</p> <p>Question. “ If the query had been added at the same time, why was it put down at all 1” Answer. “ The query was merely put down to know how the 2000 pounds were to be distributed, that they were to be divided between four daughters.”</p> <p>Question. “Are you positive that the query attached to the notes was put down at the time of taking the notes 1” Answer. “ I am not positive.”</p> <p>Question. “ Might not that query have been added to those minutes after you came home 1” Answer. “ It might, but I think not, because I had bad ink at Stehman’s, and had good ink at home.” Question. “Did you not inquire of Jacob Fehl whether some money should not be paid out of the land given to John’s children 1” Answer. “ Jacob Fehl came to Lancaster after the minutes had been taken, and I made that inquiry of Jacob Fehl. To the best of my knowledge Jacob Fehl said he knew nothing about it, but that he would inquire of Tobias Stehman. Jacob Fehl afterwards came in, and brought a small paper which I did not understand, which was mislaid and not since found, and whether that was the answer of Stehman he could not tell; Stehman’s name was not to it. I cannot tell when the word No, in the query, was put there. I cannot tell whether the word No, was put to the query after the inquiry was made of Fehl or not. That the minutes were so dark in some places that he had to run his pen over them when he came home to make them plainer. I cannot tell what the meaning of the cross opposite the letter B is. I cannot tell whether that part with the cross was considered as part of the minutes or not. I afterwards drew an instrument' of writing, purporting to be the will of Tobias Stehman, and sent it out by Jacob Fehl, and told him to read it or have it read to Mr Stehman, and if the instrument was not right he should just let me know, that I would come out and make it right. The instrument of writing purporting to be the last will of Mr Stehman was drawn from the said minutes, and the explanatory observations made- at the time of taking the minutes. The said minutes were merely intended to assist my recollection. And the said instrument of writing was drawn from my recollection of the said minutes. My memory is very imperfect at present, but at the time of drawing the will my memory was tolerably good. I was then an old man.”</p> <p>The plaintiff then produced Motion C. Rogers as a witness, who, being duly sworn according to law, testified as follows.</p> <p>[Shown the minutes.] “I attended the taking the deposition of Mr Hubley, which has been read in evidence. There was a paper produced, but whether this is the paper I will not undertake to swear. I think the paper which was produced in the handwriting of Mr Hubley ; it was brought there*for the purpose of being proved as the last will and testament of Tobias Stehman. I don’t know where it was brought from, nor do I know who brought it. I don’t recollect any thing about it being said to be brought from the register’s office. [Opened and shown letter B.] I cross-examined Mr Hubley at that time. [Asked to turn to the part where B is referred to.] I have no recollection of any reference but what appears here in Mr Hubley’s deposition ; it appears from this that I cross-examined him ; I have no doubt that I cross-examined Mr Hubley, and put this question to him; but whether the instrument of writing was marked B by Mr Carpenter, or how the B came, or whether it was put upon that instrument [the minutes] I don’t know. What is on the face of the deposition was taken down in my presence. I have no doubt the deposition was taken down fairly and correctly at the time. 1 have no doubt there was a letter B on the instrument of writing at the time, or that it was placed there, and that on putting that question I had reference to it.” “ Have you any doubt but that the B placed on the minutes is the B referred to in the question and answer ?” Answer. “ If this paper was the paper that was there, I have no doubt that the B on the paper is the one referred to in my question, but I don’t know that this is the paper. I believe this is the paper that was there, I mean the minutes. My only reason for believing that it is the paper, is from what I see on the deposition of John Hubley, and from supposing that Mr Frazer would hardly bring any other paper to be proved. I never knew of any other paper drawn by Mr Hubley as the minutes of the will of Mr Stehman but that paper. I don’t know that that was drawn ; never knew any other exhibited or pretended to be the minutes of the will of Tobias Stehman but that one.”</p> <p>[Shown letter A.] “ Have you any doubt that that letter was put on the deposition at the time of the examination for the purpose of marking the paper of which Mr Hubley was speaking V’ Answer. “ I doubt it very much. I do not think it was. I have iio recollection of the paper being marked with the letter A, or any other letter. I judge of it merely from what appears upon that paper. It don’t look to me like a mode of authenticating any instrument. I don’t know whose letter it is. I don’t know whether it is the letter of Mr Hubley, or of the squire, orwhose writing it is. Indeed, I am not a good judge of handwriting. It don’t look like the writing of the squire. I have no. recollection whatever respecting it. I don’t recollect that it- was identified in any way. I have no doubt that the deposition and letter A were fairly and correctly done, but whether Mr Carpenter put the letter A on the instrument of writing, I have no recollection whatever. We all know how depositions are taken. Sometimes the reference is put before, and sometimes after. Mr Carpenter intended, I have no doubt to put the letter A, but whether he did or not I don’t know. If it had been there before, it would have been identified as well as if put there at that time.”</p> <p>Question. “ Are these the same minutes which were used by Christian Rohrer on the trial of éjectment, Stehman v. Rohrer ?”</p> <p>The plaintiff again produced Frederick Fehl, who, being duly sworn, deposed as follows.</p> <p>“ I was present when the deposition of Mr Hubley was taken. I was subpoenaed by Squire Carpenter. It was allowed Mr Rogers had the minutes. These were there.” Is this the paper that was there 1 “ I was not so near. Mr Rogers had the papers in his hands, which it is allowed were the minutes; I cannot tell whether this was the paper or not. I was not near enough to be able to tell. I cannot tell where the paper was brought from ; Rogers brought it; he had it in his hands when 1 saw it. Mr Hubley spoke of this paper, or this one he drew. Mr Rogers examined him. I think I was there from three o’clock till dusk. I saw no paper there but the one. Rogers wanted to examine Mr Hubley before he was qualified; then Hubley said he must be qualified first. It was such a paper as this. There was an examination by Mr Rogers, why it, some of it, was written so small; he was asked why there were so many flashes in it, so many blots in it; he said the pen was so dull; was not good.”</p> <p>Cross-examined. “ Never saw these minutes before except at Stehman’s, unless at Squire Carpenter’s. I cannot tell whether the paper I saw at Squire Carpenter’s was the same I saw at Stehmaris, but by all the many examinations it must have been the same as that drawn at Stekman’s. I never had that paper in my hands; I never read it in my life; I could not read it if I were to try; I can write English in common ; it would take me some time to study over it; to the best of my knowledge the paper I saw at Carpenter’s was the same I saw at Stehman’s ; I think this is the paper I had yesterday morning.” The plaintiff then produced John Bachman as a witness, who, being duly affirmed according to law, deposed as follows.</p> <p>“I cannot recollect; I know it was taken out of the office frequently ; but don’t remember that it was taken out for the purpose of examining Mr Hubley. ■ Don’t recollect going down to Squire Carpenter’s with it; I might have gone, but don’t recollect it.”</p> <p>The counsel for the plaintiff then and there, further to maintain the issue on their part, offered to read the minutes taken by John Hubley, Esq. on the 14th of November 1814, prout the same. The counsel of the defendants objected thereto ; and the court, after argument, overruled their objection and admitted the said minutes to be read in evidence to the jury. To which opinion of the court the counsel for the defendants excepted.</p> <p>These minutes were then read.</p> <p>6)2000(333.6.8.</p> <p>18 6.</p> <p>20 2000.0. 0.</p> <p>18</p> <p>20</p> <p>18</p> <p>2 40.</p> <p>36.</p> <p>4.</p> <p>“ Tobias Stehman, ConestJL Bequeaths to Tobias Steman, Christian, John,. Jacob, the children of my son John, his plantation and tract of land which he bought of DanI Breneman, containing about 133. acres, to hold to them in fee, to be valued by 5. men to be appointed by the orphl* court at the valuation whereof if it can not be to be appr?. be divided into two three or four parts A by 5. men after death, marriage or removal from' the premises of widow subject to the widow (John) dower tr by thv. 9. Ü. the whole to be appraised & the eldest therein son to have his choice, then the next son & after him the young-a est with A 52! part of the 28. acres wood 11 to Tobias Steman his son</p> <p>“Bequeaths ¿fee-A his mansion bouse & the place thereto beadji?£ Jacob Bare & John Bare & others longing a contal abol 200. acres more or less, in fee—also 5. horses & the gears to them—two wagons, 2. plows, 2. harrows, 3. cows & 3. stears & 2. heiffers, 6. sheep—a bed and bed clothqs G. "shvicp for straw and the blacksmith tools—an apple mill—cutting box, wind mill— wagon a hand screw & wagon cloth liberty to saw his wood at the saw mill as much he wants k¿- ks-pl-sg. He is to grant a water right to the mill as far as it runs thro’ his lands help to repair the saw mill & race thereto in proportion as .he shall make use thereof—the right to the saw mill to be during his life—likewise 25. acres of the woodland jelr.mg which I bought of Jam3 Simpson in Martick township;—and values the same to him at £2000.—to be paid in pay-per years out ments of £SG0. ¿year £333. 6. 8. with interest—among the four daughters. married to Henry Dietrich married to Christian Rohrer</p> <p>“ Bequeaths to his 4. daughters, Elizab: Cath: Fronica, Mar-adjoin? Jacob Fehl & Tobias in Conestogoe garetta, 200. acres of land more or less a to be equally divided in my life time, or by 5. men to be appointed by the O. Cl with %Q 4. fifth parts of the 28. acres woodland whereof the above 25. acres are a part. Maria</p> <p>“ To a the widow of my deceased son John he gives the possession of her children’s part daring her widowhood & thereout she is to maintain them during their minority or so long as they live wi'th her. . & along the r£ leads to Millers Town & adjS the lands of Tobias</p> <p>. “ The-K Elizl to have her share includl the saw mill a —Catharine to her share joining big road lead| 6 ' to the mill & adjoining the lands given to Tobias.</p> <p>“ To the widow (CathA) of the testator he gives the new a dwell- & 10. acres of land left side of ing house A, & the mill with 90. acres of 1A along the A road knnriS from the mill to the long lane -& all the utensils tbcr-ai-s the miil dam &c. during her life—and also 2. front rooms in the present dwel| house one above & one below on the left side—room in the & garret cellar kitchen wash house & bake house A as much as she wants, saddle & bridle a riding horse A 3. cows 6. sheep—all to be kept by Tobias—during a bind fat as many he life time—A quarter of A beef—2. fat hogs, apples as n:v.rb she wants 6. barrels of cider, fire wood delivered to the house as much in as she has use for, ready split for use in the stove ■& fire place—10. bushels of potatoes—251b: hackled flax, all the linen in the house & the ready hackled flax, household good. & kitchen furniture as much she chooses—a house clock—& the linen and hackled flax.</p> <p>“ The mill & lands & house bequeathed to his widow after her his son in fee c? :r. if any he gets -f-death to go to the male heirs of ¿hi.:: Tobias A and & for want of male heirs it shall go to the males of John in fee—& to be valued by 5. men—------"'.hck-rS-t-: : JÍHLhN .....tAA. X u.. e_ at a valuation to be fixed either by self hereafter but if not done to be valued by 5. men & in parcels or or whole among them. y hick y & oak</p> <p>“ That T\hia/r leliver 2. cords of good a wood, & my son-in-law’s B. to deliver a^\fl of hickZ. wood each to the house ready cut & split for a s-Xive oXfire place. ' to lie parted & val J</p> <p>[ “ The mill house and lands of 100. acres are A yaln-od after the death of the widow by 5. men &c. but if no gi child| it shall go to all my childA & parted & apprl among them. . when married</p> <p>“ The 4- 2. unmarried girls A to be furnished with eattlo a horse & each that is a mare saddle & bridle 10. head of cattle A 4. cows 3. stears 3. heiwith &c. other -3. beds A & A household goods in the same as those 2. which married got. in part of his wife’s leg^y fers-</p> <p>Rohrers debt to be charged against him a agreeable to his bond “ Erors. 1"'* Cuui lClib "jl <JL his son Tobias & Jacob Fehl & Frederick.</p> <p><£ Wills made before to be revoked.</p> <p>££ Residue—amongst all 6. children.</p> <p>'££ Quere, is nothing to be paid out of the lands given to John’s children—No. £2000. to be divided among 4. daughters.</p> <p>“Nov. 14, 1814.</p> <p>“ Note—the widow (of John dece’d) to have possession of the lands given to his 4. G£ children to keep possession of the lands until A her death marriage or removal from it, and she must bring up & maintain them after which the appraisemt to take place.</p> <p>“ These are the notes referred to in my deposition taken in the Register’s court June 6th 1815.</p> <p>“ John Hublev.”</p> <p>The counsel for the plaintiff then, further to maintain the issue on their part, gave in evidence the record of a suit, John Bachman et al. v. Tobias Stehman et al., to April term 1815, No. 713, in the court of common pleas of Lancaster county; and further examined Frederick Fehl, who testified as follows:</p> <p>“ Tobias Stehman has three sons; Tobias Stehman the son I mean; he was single when his father died; his mother survived his father six weeks. Tobias the father had two daughters married at the time of his death; he furnished them off well, as I heard, in cows, steers, bed and desks, riding horses and saddle; the oldest got that; Rohrer’s wife did not get that, I think, but she might; Kitty got the same as Betsey, except horse and saddle.</p> <p>“ ¡x¡ In the share of two hundred acres, the daughters were to have it to them, their heirs and assigns.”</p> <p>Joseph Hubley sworn, shown writing—“ It is my father’s hand writing; it is his signature; it was in the year 1814or 1815, I think he was called on in June 1815 before that; I never knew him to go out but once; this handwriting is with different ink from the other; the date is my father’s handwriting, but it is in different ink.”</p> <p>Jacob Fehl again—“ 500 dollars each one basin cattle and goods, and beds and one thing and another, and every sort of household furniture; I understand the single ones were to have 500 dollars like the other two—when John was married he got the same.</p> <p><e X I swore that each of the single daughters were to have 500 dollars or the worth of it; nothing said about horses and cattle; he said each were to get 500 dollars in money. He said he had given his married daughters 500 dollars worth, and his son John; the single daughters were to receive the same the others had—500 dollars; 500 were mentioned, whether in money or not, I don’t know; they were each to have 500 dollars in furniture.”</p> <p>Henry Gall, plaintiff’s witness, being under cross-examination by the defendants, testified as follows—(shown a paper purporting to be the last will and testament of Tobias Stehman, dated 16th November 1814, prout the same)—“ This is my handwriting; Tobias declared this to be his will; Rathfon is dead and Rohrer is also dead, he was of sound mind then; this is the paper that was not read to him.”</p> <p>The plaintiff to maintain the issue on his part, then offered in evidence the record of an issue of devisavit vel non in the court of common pleas of Lancaster county to April term 1815, No. 713, in which John Bachman, &c. was plaintiff, and Tobias Stehman and others defendants. The counsel for the defendants objected to the admission of the said record in evidence: but after argument the court overruled their objection and admitted the same. To which opinion of the court the counsel for the defendant did then and there except and pray the court to seal this their bill of exceptions, which is done accordingly.</p> <p>Plaintiff’s points.</p> <p>• 1. That no formality is required to make a legal will where the subject matter of the will is put in writing and proved by two witnesses so to be by the direction of the testator, and the same is done in his lifetime; and therefore it is not necessary the writing should be signed by the testator, nor that it should be sealed, nor that there should be any subscribing witnesses to it; and that such writing would be good without any of those matters and all of them.</p> <p>2. That when a will contains several distinct devises and bequests, if any of them are found to be defective it will not defeat or in any way impair the others, which will remain good and lawful devises.</p> <p>3. That minutes or notes fairly taken in writing for the purpose of drawing the will of the person, which is prevented from being drawn into form and signed by the testator and witnesses, by the death of testator, or any other accidental cause; if the said notes or minutes are proved to be taken down from the testator and in his presence and declared to be all right by the testator, the said notes or minutes will be a good will.</p> <p>4. That if the jury believe the testimony of Frederick Fehl, Jacob Fehl and John Hubley, the minutes or notes taken from Tobias Stehman by John Hubley are sufficiently proved to be the same paper containing the minutes which is now before the jury.</p> <p>Defendant’s points.</p> <p>1. That the authentication of the miTiutes taken by John Hubley, Esq. and alleged by the plaintiff to be the last will and testament of Tobias Stehman deceased, by the requisite number of persons, is a mere abstract question of law to be decided by the court. The jury are therefore bound by the opinion of the court as to whether there has been the requisite proof in this case to establish those minutes as the last will of the alleged testator.</p> <p>2. In order to establish these minutes as the last will of Tobias Stehman, there must be proof by two witnesses that he knew their whole contents. In cases in which the testator has signed the instrument, and his signature is established by the testimony of two witnesses, such knowledge is presumed; but in this case, where the minutes were neither written nor signed by the testator, such knowledge must be clearly proved.</p> <p>3. That the proof of the execution of these minutes must be made by two witnesses, each of whom must separately depose to all facts necessary to complete the chain of evidence, so that no link in it may depend upon the credibility of but one. Each of the two witnesses in this case must make proof so complete in itself that if the act of assembly were out of the question, the case would be well made out by the evidence of either.</p> <p>4. That the two witnesses, to wit John Hubley and Frederick Fehl, who were present at the time when the instructions were given and the minutes were taken, must therefore correspond with each other as to every material particular, otherwise the minutes cannot be established; that therefore, as there is a variance between the minutes and the instructions as they are proved by Frederick Fehl in the following among other important particulars, these minutes cannot be established, to wit, by the minutes the mill, house and one hundred acres of land are devised to the widow of the alleged testator for life, remainder to the male heirs of his son Tobias in fee, and for want of such male'heirs “ it shall go to the males of John in fee,” to be valued amongst them in parcels or in whole by five men after the death of his widow, but if no grandchildren, it shall go to all my children and be parted and appraised among them. By the testimony of Frederick Fehl, the instructions of the alleged testator were, that the premises, after the death of his widow, should go to his son Tobias if he gets boys, and if he don’t get no boys, then to Tobias the eldest son of his son John, and if he should die before twenty-one, then to Christian the'second son of his son John, and so on in succession ; but whoever was to get the premises it should be appraised to him and the money divided into six shares among all his children and the children of his son John deceased. The testimony oí Jacob Fehl corresponds with that of Frederick, except that Jacob expressly mentions what the law would have implied, that it should go to Tobias Stehman the son of the alleged testator if he gets a boy before his mother’s death. ’</p> <p>5. That as John Hubley has sworn, that there was a great deal of conversation at the time he took the minutes, and he “ supposed he would be able to write the vfill from those explanatory observations and the minutes taken by him” and that it was understood both by him and the alleged testator, that these minutes were not to be considered as his will, but a mere memorandum from which be was to draw an instrument of writing, afterwards to be executed by the alleged testator as his will, and that the said minutes were merely intended to assist his recollection; the testimony of John Hubley is not sufficient, nor is he one sufficient witness, admitting all he has sworn to be true, to establish the minutes as a will.</p> <p>6. That the identity of the minutes must be established by two witnesses each of whom will swear, that they are the same which were read to the alleged testator. That Frederick Fehl who never had the minutes in his hands till this trial—who could not read them and who swears that there was no mark upon them by which he knew them, but still he thinks they are the same, is not a sufficient witness; that the deposition of John Hubley does not sufficiently establish their identity; and that proof that they were in the hands of John Hubley, and at the office of the magistrate when his deposition was taken, does not vary the case. .</p> <p>7. That a. material variance in any particular between’the instructions and the minutes, will destroy the whole of the minutes: that therefore if the the jury believe the testimony of Frederick and Jacob Fehl relative to the instructions given by the alleged testator concerning the mill, house and one hundred acres of land—their verdict should be rendered in favour of the' defendant.</p> <p>8. That the testimony given by Tobias Stehman, the plaintiff in</p> <p>this cause, is not sufficient in point of law to establish the minutes taken by John Hubley as the last will and testament of Tobias Stehman deceased. . •</p> <p>Charge of the court.</p> <p>This is an issue formed under the directions of the register’s court, to ascertain by the verdict of a-jury whether a certain-paper containing minutes and notes taken by the late John Hubley, Esq. on the 14th of November 1814, of certain instructions then given to him by Tobias Stehman, which paper is alleged by the plaintiff to be the last will and testament of his father Tobias Stehman, be his last will and testament, or hot.</p> <p>It appears that Tobias Stehman being desirous of making a new will, different from one he had already made, sent for Mr Hubley and gave him instructions as to the manner in which he wished to dispose of his estate. Previously to Mr Hubley'1 s arrival,1 Mr Frederick Fehl had taken some notes of his directions in- German—Mr Hubley testifies that he did not make use of these notes—but he took down the instructions of Mr Stehman—and he says that when the instructions were written down they were read over to him—-that Mr Stehman approved of the minutes made by Mr Hubley. Mr Frederick Fehl says they were read over to Mr Stehman and that he approved of them. The witnesses to these particulars and others which relate to the subject are Jacob Fehl, Frederick Fehl and John Hubley, Esq. You will pay particular attention to their evidence and the other testimony which has been offered, and give to all the testimony that weight to which you may think it entitled.</p> <p>Mr Hubley took the minutes home with him; he prepared a will in due form for execution which was sent out to Tobias Stehman, who executed it without reading it or having it read to him, and it is testified that he was incapable of reading it. This will so executed has been declared invalid. And it is contended by the plaintiff in this case, that the instructions taken down by Mr Hubley constitute the last will and testament of Tobias Stehman.</p> <p>The act of assembly respecting wills requires that all wills should be in writing and be proved by at least two credible witnesses. Written declarations of a man’s mind, as to the manner in which his estate shall go after his death, made animo testandi, that is with the intention of disposing by will, may amount to a will when duly proved. No formality is required to make a legal will where the subject matter of the will is put in writing, and proved by two witnesses to be by the direction of the testator, and the same is done in his life .time; and therefore it is not necessary that the writing should be signed by the testator, nor that it should be sealed, nor that there should be any subscribing witness to it; such writing may be good without being accompanied by either of these particulars.</p> <p>The law is, that where minutes or notes are fairly taken in writing for the purpose .of drawing the will of a person, which is prevented from being drawn into form and signed by the testator and witnesses, by the death of the testator, or any accidental cause, and if these notes or minutes are proved by two witnesses to be taken down from the testator and in his presence and declared to be all right by the testator, they will constitute a good will.</p> <p>And where a will contains several distinct devises and bequests, if any of them are found to be defective, it will not defeat or in any way impair the others, which will remain good and lawful devises.</p> <p>We are asked by the defendant’s counsel to instruct you that the anthentication of the minutes taken by Mr Hubley, by the requisite number of witnesses, is an abstract question of law to be decided by the court; that the jury are therefore bound by the opinion of the court as to whether there has been the requisite proof in this cause to establish those minutes, as the last will of the alleged testator.</p> <p>There is no doubt that the authentication of a will by the requisite number of witnesses is matter of law for the determination of the court;. and therefore where a will is drawn up and signed by the testator, and witnesses are' called in to attest it, it is for the court to determine whether it is authenticated by the requisite number of witnesses. '</p> <p>But in order to establish these minutes as the last will of Tobias Stehman, there must be proof by two witnesses that he knew their whole contents. In cases in which the testator has signed the instrument, and his signature is established by the testimony of two witnesses, such knowledge is presumed; but in a case of this kind, where the minutes were neither written nor signed by the testator, such knowledge must be clearly proved. And you are the judges to determine whether it has been so proved or not.</p> <p>The supreme court have decided that the execution of a will must be proved by two witnesses,.each of whom must separately depose to all facts necessary to complete the chain of evidence so that no link in it may depend upon the credibility of but one. Therefore to establish the minutes in this case, each of the two witnesses called to establish them must make proof complete in itself, so that if the act of assembly were out of the question the case would be well made out by the , evidence of either.</p> <p>The two witnesses who were.present at the time when the instructions were given and the minutes were taken must correspond with each other, as to every- material particular—and therefore a material variance between the minutes and the instructions will prevent the minutes from being established.</p> <p>So if Mr Hubley, depending upon his memory and supposing he would be able to write the will from his recollection of what was said by the testator, has omitted any matters which the testator intended to insert in his will, the minutes cannot be established as his will.</p> <p>The jury are the judges of the credibility of the witnesses and of the meaning to be attached to the expressions used by them in the course of their téstimony. The identity of the minutes must be established by two witnesses, and whether it has been established by Mr Hubley and Mr Frederick Fehl is for you tp determine.</p> <p>We are asked to say that if the jury believe the testimony of Frederick Fehl, Jacob Fehl and John Hubley, that the minutes or notes taken from Tobias Stehman by Mr Hubley are sufficiently proven to be the same papers containing the minutes which is now before the jury. Supposing all they say to be true as they have expressed it, the effect of what they have said is to be determined by the jury and they must judge, under all the evidence which has been adduced, whether the identity has been legally proved.</p> <p>Errors assigned.</p> <p>1. The court erred in admitting the defendant in error to give in evidence the minutes taken by John Hubley, Esq. on the 14th of November 1814 prout the same; to which opinion of the court the first bill of exceptions was taken.</p> <p>2. The court erred in admitting the record of an issue of devisavit vel non in the court of common pleas of Lancaster county to April term 1815, No. 713, and the caveat and proceedings of the register’s court; to which opinion of the court the second -bill of exceptions was taken.</p> <p>' 3. The court erred in not fully answering the first point of the plaintiff in error; and so far as iris answered, it is error.</p> <p>4. The court erred in their answer to the second point of the plaintiff in error in the following words: “ and you are the judges to determine whether it has been so proved or not.”</p> <p>5. The court erred in not having given a full answer to the fourth point of the plaintiff in error, and so far as they have answered it, there is error in their answer.</p> <p>6. The court erred in not fully answering the fifth point of the</p> <p>plaintiff in error, and so far as they have answered it, there is error in their answer. i .</p> <p>7. The court erred in not having fully answered the sixth point of the plaintiff in error, and so far as it is answered there is error in their answer.</p> <p>8. The court erred in not fully answering the seventh point of the plaintiff in error, and so far as answered there is error in their answer. '</p> <p>9. The court erred in not fully answering the eighth point of the plaintiff in error, and so far as answered there is error in their answer.</p> <p>10. The court erred in stating that “ the law is that where minutes or notes are taken in'writing for the purpose of drawing the will of a person, which is prevented from being drawn into form and signed by the testator and witnesses by the death of the testator or any other accidental cause, and if these notes or minutes are proved by two witnesses, to be taken down from the testator and in his presence and declared to be all right by the testator, they will constitute a good will.”</p> <p>11. The court erred in stating that “where a will contains several distinct devises and bequests, if any of them are found to be defective, it will not defeat or in any way impair the others, which will remain good and lawful devises.”</p> <p>12. The court érred in the last paragraph of their charge, which states, “we are asked to say that if the jury believe the testimony of Frederick Fehl, Jacob Fehl and John Hubley, that the minutes or notes taken from Tobias Stehman by Mr Hubley are sufficiently proven to be the same papers containing the minutes which is now before the jury. Supposing all they say to be true as they have expressed it, the effect of what they have said is to be determined by the jury, and they must judge under all the evidence which has been adduced, whether the identity has been legally proved.”</p>

<p>A, after devising a tract of land to the children of his son John who was dead, and another to his son Tobias; devised one hundred acres to his widow for life, and after her death “ to the male heirs of Tobias, if any he gets, in fee,” and' “ for want of male heirs of Tobias, to go to the male heirs of his son John in fee ;” “ the said one hundred acres to be parted and valued after the death of the widow, by five men;” but if no grandchildren, to go to the devisor’s children and be divided among them. At the death of the widow, Tobias was single and without children, but afterwards inarried and had children. Held, that the limitations over after the death of the widow were concurrent contingent remainders, and for want of male heirs of Tobias at her death, vested irrevocably in the male heirs of John.</p> <p>■ A limitation is not to be deemed an executory devise if it may by any practicable construction be sustained as a contingent remainder.</p> <p>No presumption of an intent to die intestate as to any, part of the estate, is to be made, where the words of the testator will carry the whole.</p>

<p>ERROR to the common pleas of Huntingdon county.</p> <p>This was an ejectment by William Foster against Matthew Huston, for four hundred and four acres of land. Matthew Huston, the defendant, was the tenant of Mrs Cadwallader, in whom the original title had been. The plaintiff proved that Samuel Steel had been treasurer of Huntingdon county for the year 1820, and then offered in evidence a deed from him to the commissioners for the land in dispute, sold in that year for taxes. It was objected to:</p> <p>1. Because, under the acts of assembly, it required a specific case before they could purchase, and it lies upon them to show, that that case had occurred, before the deed could be received in evidence,</p> <p>2. Because, where a deed is made by the commissioners, it must be supported by proof of all the pre-requisites of the act of assembly; it is not embraced by the terms of the act of 1815; that act only applies to sales by the treasurer.</p> <p>3. The sale was not made on the day fixed by the act of assembly for that purpose. • ></p> <p>4. The deed was not sealed with the corporate seal of the county commissioners.</p> <p>The proof was then made that the sale was .adjourned from the day appointed by law, to the day on which it was sold. The deed was under the private seals of the commissioners.</p> <p>The objections were overruled, and exception taken by defendant. The court instructed the jury, that the plaintiff was éntitled to recover, who found a verdict accordingly.</p> <p>The admission of the evidence and instruction of the court were assigned for error.</p>

<p>ERROR to the common pleas of Mifflin county.</p> <p>This was a-scire facias upon a judgment obtained upon an administration bond, in which “ The Commonwealth, for escheat on information of Daniel Rodebaugh,” was plaintiff, and “ David Crawford and Joseph Douglass surviving obligors in a bond, with James Mackey and William Beale, Esq.” were defendants ; on the trial of which the following facts appeared in evidence.</p> <p>'Henry Doran, late of Mifflin county, died intestate, and as was alleged without any known kindred. Upon his death letters of administration were granted by the register of the county to David Crawford one of the plaintiffs in error, and .James Mackey since deceased, who gave an administration bond in the usual form, with Joseph Douglass the other plaintiff in error, and William Beale, as their sureties. No administration' account being settled in conformity to the condition of this bond, a suit was afterwards brought upon it against David Crawford and Joseph Douglass; James Maclcey and William Beale having both died in the mean time; to January term 1823, in the court of common pleas of Mifflin county, in which a cautionary judgment was obtained against them for the amount of the penalty of the bond.</p> <p>On the 9th of August 1821, the auditor-general of the state, upon the information of Daniel Rodebaugh, according to the directions of the first section of the act of assembly, entitled “ a supplement to an act entitled an act to declare and regulate escheats,” passed the 2d of April 1821, appointed James M’Dowell, Esq. of Mifflin county, his deputy, who issued his precept to the sheriff of the county, commanding him to summon and empannel twenty-four good and lawful men. of the same county, to come before the said deputy at the place and on the day therein mentioned ; to inquire whether the said Henry Doran had died without heirs or known kindred ; and whether he, at the time of his' death, was seised or possessed of any, and what estate, real or personal in the same county; and also in whose hands or possession the same was. In pursuance of this precept an inquisition was taken on the 28th of December 1821, which was certified, and transmitted by the deputy of the auditor-general into the office of the prothonotary of the common pleas of Mifflin county. The inquest found, that Henry Doran died on the 25th of November 1815, intestate, and without heirs or any known kindred ; and that he was possessed at the time of his death of personal estate in Mifflin county of the value of 1146 dollars and 99 cents, which had es-cheated to the commonwealth of Pennsylvania; and after enumerating or specifying of what it consisted, they also found that it had come'into the hands of David Crawford and James Mackey administrators of Henry Doran, and had been eloigned by them.</p> <p>At the time of taking this inquisition james Mackey was dead; and Mary Mackey, his widow, who was the executrix of his last will, joined David Crawford in giving a bond with security to the commonwealth, t.o appear at the next court of common pleas to be held for the county of Mifflin, to traverse the inquisition, and in case the same should be confirmed, to render to the commonwealth the estate found to have been in their hands or that of David Crawford and James Mackey. A certificate to this effect was given, and indorsed by the deputy of the auditor-general upon the inquisition when it was transmitted by him into the prothonotary’s office, and is in the following words: “ To Robert Craig, Esq. prothonotary, court of common pleas of Mifflin county ; I do hereby certify that the above inquisition, in pursuance of the annexed writ, was held, signed and sealed as set forth in the same, and that Mary Mackey and'David Crawford have given bond to traverse the inquisition. James McDowell, deputy auditor-general.”</p> <p>The following entries were made in the docket of the prothonotary of the court of common pleas .of Mifflin county, to wit:</p> <p>“ The Commonwealth of Pennsylvania v. Mary Mackey, Executrix of James Mackey deceased, January term 1822. No. 150. Writ of inquisition of escheat oh the estate of Henry Doran deceased, April term 1822. Bond of defendant filed, and the bail excepted to. Rule to justify by the court.</p> <p>“ Commonwealth of Pennsylvania v. David Crawford, No. 151, same term. Writ of inquisition of escheat on the estate of Henry Doran deceased. Bond of defendant filed, and the bail excepted to. Rule to justify by the court.”</p> <p>Here all further proceeding upon this inquisition closed.</p> <p>The counsel for defendants requested the court to charge the jury on the following points.</p> <p>1. That no damages can be recovered in this suit in the name of the Commonioealth ex relatione Daniel Rodebaugh ; as neither the informer nor the commonwealth, in case of escheated articles, have any remedy on the administration bond against the administrators of their bail; but must pursue the method pointed out by the act of assembly relative to escheats, to obtain possession of the escheated property.</p> <p>2. That in this case no writ of seizure issued on the inquisition of escheats, to seize the property of Doran in the hands of Crawford and Mackey, or to seize their own property, as directed by the act of assembly ; no damages can be recovered against Joseph Douglass, the bail in this case.</p> <p>3. That by return of the inquisition and the power given the commonwealth to issue a writ of seizure, to take into the custody of the law the property of Doran, or t.he property of Crawford and Mackey, it was imperative on the commonwealth to do so, and the neglect to issue this writ of seizure discharged Joseph Douglass, the bail.</p> <p>4. That the proceedings in suits No. 150 and No. 151 of January term 1822, preclude the maintenance of this suit until those proceedings are finally disposed of.</p> <p>5. That neither David Crawford nor Mary Mackey had legal notice of the time or place of holding the inquisition of escheat: the plaintiff cannot recover.</p> <p>6. That the finding of the inquisition is uncertain, arid suéh.a finding as no legal process could be Issued upon it.</p> <p>7. That the finding of the inquest was, that the property was eloigned; but they do not find by whom it was eloigned.</p> <p>8. That the scire facias in this case must issue at the instance of some person aggrieved, and that Daniel Rodebaugh has not so conducted the proceedings in this case as to enable him to maintain this suit.</p> <p>1. To the first point the court answers, that it is their opinion the bond given by the administrators and their bail does stand for the use •of all persons interested in the personal property to be administered; that the bond covers the right of the commonwealth when personal property has escheated, and when it,has been converted into money by administrators; and that when the inquest was found, and the property declared escheated, the commonwealth, on the relation of the informant, might proceed to recover the escheated personal property which was received by the administrators in due administration in this way.</p> <p>2 and 3. That in this case a writ of seizure was not necessary; nor can we instruct you that Douglass was discharged, because that writ did not issue ; nor was it imperative on the commonwealth to issue a writ of seizure when the property was legally in the possession of Mackey and Crawford in the course of administration.</p> <p>4. We do not think the proceedings on suits No. 150 and No. 151 of January term 1822, preclude the maintaining of this suit.</p> <p>5. The very suits, No. 150 and .No. 151, given in evidence by defendant, show, that they had notice of the inquest. The escheatorgeneral swears he believes Crawford was present; we have said and offered to admit evidence by defendant of any payment that may have been made by the administrators ; nay, we instruct you. to allow for administering the estate, although no inventory has ever been filed, nor administration account settled.</p> <p>6. We think the finding sufficiently certain to call upon the defendant to show what became of the estate.</p> <p>7. The finding was, that the sum of 1146 dollars and 99 cents was in the hands of the administrators, and has been by them eloigned. This we think is finding by whom eloigned.</p> <p>8. We think the scire. facias well issued. Rodebaugh might or might not be named in this case ; this suit we instruct you can be maintained. .The money goes into the state treasury. Rodebaugh, if he receives any of it, gives bond for it agreeably to law. We cannot instruct you as required.</p> <p>This opinion of the court was assigned for error.</p>

This was an action of slander by Peter Ruth and wife against Peter Kutz, in which the declaration contained two counts, laying these words, with the proper inuendoes, to have been spoken : “that Mrs Ruth one evening came to his bedside in her shift tail, and told him she thought she heard some one knock below, and if one of his boys had not coughed, he did not know what would have happened.” And in the second count these words: “ that Peter Smith kept house with awhore, and…

of Bradford county. This was an ejectment by John Mather against Benjamin Clark and terre tenants for a tract of land. On the 2d of October 1809 Thomas Overton conveyed the land to Benjamin Clark the defendant; and afterwards, on the 31st of October 1809, he executed a mortgage on the same land to George Fox, Joseph P. Morris and Jonathan Smith, to secure the payment of 2500 dollars.

<p>A covenant by a mortgagee that he will not proceed to collect the money secured by his mortgage by a kale of one of several tracts of land mortgaged, which had been separated and sold by the mortgagor to a third person, will not release other tracts from the lien of the mortgage, or discharge them from liability to pay.</p> <p>A formal release of one of several tracts of land from the lien of a mortgage, will ■not discharge the other lands from the incumbrance.</p> <p>A mortgagor, in the possession of the mortgaged lands, sold one tract, and gave a bond to the purchaser to indemnify him against the mortgage; the mortgage was afterwards sued, and judgment obtained against the terre tenant, without actual notice to the mortgagor, upon which the land was levied and sold : in an action upon the bond of indemnity it was held, that if the mortgagor had notice of the suit upon the mortgage he would have been concluded, and obliged to repay the purchase money to the plaintiff; if he had not notice of it, he might make the same defence in the suit upon the bond, that he might have made upon that on the mortgage.</p> <p>The possession of land is equivalent to the interest upon the purchase money; and in an action to recover back purchase money paid for land, interest is recoverable from the time of eviction, when that eviction proceeds from a prior incumbrance, and not paramount title.</p>

f ERROR to the common pleas of Juniata county. This was an action of ejectment by George Wilson against William, Campbell for a tract of land. The plaintiff claimed title under a warrant to Bartholomew Wistar, patent to Samuel Otis, and sale for taxes in 1820 to him. The defendant showed no title, but relied upon his possession. The question turned, upon the validity of the sale for taxes.

This was an action of debt for a legacy, by.Ruth Summerville for the use of Thomas Jackson, against Robert Wallace, administrator de bonis non with the will annexed of William Holliday deceased, with notice to William Holliday (the third), devisee of William Holliday (the second), who was the devisee of William Holliday (the second), and terre tenant. The pleas of defendants were nil debet and payment with leave, fyc.

James Silvergood and William Silvergood, defendants, obtained a judgment in their favour against Lewis Storrick and John Huggins, plaintiffs, before a justice of the peace; the judgment was removed into the common- pleas by certiorari, and reversed. Storrick and Huggins issued an execution out of the common pleas, for the costs which accrued before the justice and in court.

<p>In ejectment, a third person cannot object to the title of the plaintiff, founded on a; conveyance of the legal estate by a trustee, on the ground of its having been an abuse-of the trust.</p> <p>A treasurer’s sale for taxes of part of a tract of land, and a conveyance of that part, designating the quantity, but not the locality, is good; and an unrestricted choice of locality to the purchaser, is a necessary incident of the sale, and a consequence of a-reasonable interpretation of the statute.</p>