Volume 1 — Watts & Sergeant's Pennsylvania Reports

This was an action of ejectment by the Trustees of the English Presbyterian Congregation of the Borough of York, against James Johnston, Samuel Small, Philip A. Small, Jacob Emmett, John Evans, William R. Morris, Rev. Benjamin I. Wallace, and Mrs. Sarah Franklin, to recover a church and two acres of land in the borough of York.

Michael Uhrich against William Stroh. This was an action of debt on a promissory note, dated 4th November 1833, for one hundred dollars.

John Wolaver against John Gamber. This was an action of assumpsit, in which the plaintiff declared for the price of coaling 2758 cords of wood for the defendant, at thirty-five cents a cord.

Joseph T. Ward against Peter S. Nieman. This was an action of ejectment for a tract of land. The plaintiff, to support the issue on his part, gave in evidence a warrant to Jacob Marks, dated 21st November 1837, a deed of the 4th December 1838, of Jacob Marks to Joseph T. Ward, the plaintiff, and a patent from the commonwealth dated 21st January 1839.

The administrators of Henry J. Beelin against John D. Creigh. This was a scire facias upon a mortgage given by John D. Creigh to Henry J. Beelin, to secure the payment of $2965.00, to which the defendant pleaded payment, with leave, &c., and gave the following evidence in support of his defence: 4th May 1833.

Eli Overdeer against Robert N. Lewis. This was an action of trespass. The facts appeared to be, that Joseph Lichty, being the owner of a house and lot, leased the same to Eli Overdeer for the term of one year, to end on the 1st April 1839. During the pendency of the lease, Lichty conveyed to the defendant, Robert N. Lewis.

Henry M. Bayard against Christian Shunk and Joseph Bouman. Special verdict. It is agreed by plaintiff and defendants, and by Samuel B. Hick-ox, as terre-tenant, that the following facts be stated as a special verdict for the opinion of the court, and either party shall have power to sue out a writ of error from the Supreme Court within ten days after judgment shall be rendered by the Court of Common Pleas.

The Bank of Pennsylvania against William Reed and James Thompson, surviving partners of William Reed & Co. The case and points are very fully stated in the opinion of the court. The cause was argued by

This was an action on the case for money had and received by John Mathiot and others, trustees of Levi Rutter under a writ of domestic attachment, against Jacob Gable; in which the following case was stated in the nature of a special verdict:—' On the 7th of June 1838, a note drawn by Levi Rutter, endorsed by Jacob Gable, the defendant, and discounted at the Lancaster Savings Institution, for the sum of $300, became due at the office of the said Institution, and was…

This was an action for money had and received by David Ferguson for the use of John Cochran against Thomas Finney, to which the defendant pleaded non assumpsit, non assumpsit infra sex annos, and payment with leave, &c. The suit was instituted on the 27th of March 1840.

Andrew G. Ege against Abraham Kauffman. This was an action on the case in which the plaintiff declared upon the following instrument: “ Rec’d, 19th Aug. 1839, of A. G. Ege, two horses, valued at one hundred and seventy-five dollars, for which I am to deliver to him at Big Pond Furnace six and three-fourths tons of good forge pig metal, at any time he may call. “ Abraham Kauffman.” E. Owen sworn. I called at the Big Pond Furnace about the middle of December, 1839.

A. J. Jones and J. Cameron & Co., against John Lehman and William Stroh. This was an action of assumpsit, in which the plaintiff filed the following statement.

This was an action of ejectment for a house and lot in Harrisburg, by John Smull against Andrew J. Jones, Theophilus Fenn, William E. Camp, and the Harrisburg Savings Institution. The title to the property,in controversy was in John Smull, the plaintiff.

Daniel Gross, executor of Alexander Gross, who was the guardian of the minor children of William Ogle, deceased, and now for the use of Jacob Steel, guardian of said minors, against George Stroop and Samuel Creigh. This was a scire facias against the plaintiffs in error, as absolute bail of John D. Creigh, in a judgment at the suit of the defendants in error.

APPEAL by Martin Shearer’s assignees from the decree of the Court of Common Pleas of York county, distributing the money arising from the sale of the real estate of Michael Smith. Jacob Barnitz claimed the money upon a judgment against Michael Smith for $800, entered on the 9th of April 1835. Upon this judgment executions issued, and the real estate of the defendant was levied and sold for $1000.

This action by George Hess for the use of Levi Hess against William Stroh, was founded upon the following instrument: “ Whereas George Hess and William Stroh have had disputes concerning a claim which George Hess made on William Stroh for having become liable for a debt due to George Hess by Jacob Houk on an account assigned over to said George Hess by John Ley; Now know all men by these presents, that said parties have compromised and settled the same; and it is hereby…

The Philadelphia Loan Company for the use of Nathan Nathans against Benjamin Pott, Charles W. Clemens, and Burd Patterson.

' George Bombaugh against Thomas Robinson. Scire facias sur recognizance. The plaintiff, George Bombaugh, obtained a judgment before a justice of the peace, against Ford & Whitterman, for $33.75, when Thomas Robinson became bound before the justice in a recognizance of $65, for the stay of execution for the defendants.

Elizabeth Stoever, widow of Tobias Stoever, deceased, against the administrators of Peter Leinaweaver, deceased, with notice to his heirs. To April Term, 1825, the plaintiff, Elizabeth Stoever, brought an action against Peter Leinaweaver to recover her dower in a certain brick house and lot of ground in Lebanon, and on the 16th of January 1828, recovered a judgment.

This was an action of ejectment by John Strauch and John Klingeman against George Shoemaker, to recover a tract of land in Norwegian township, containing 174 acres.

John Eberman against Philip Reitzel. This was an action on the case for money had and received. The defendant was a lottery broker in the city, of Lancaster, and as the plaintiff alleged, contracted to sell him the one-fourth of a ticket in the New York Consolidated Lottery, Extra Class, No. 37. The ticket was not delivered by the defendant to the plaintiff, and after the drawing the defendant received the proceeds of the prize which it drew, amounting to $5312.50.

This was an action of partition by William H. Patterson, Robert Patterson, Andrew Patterson, and John Patterson, devisees of John Patterson, deceased, against Benjamin Law, in which the plaintiffs claimed to recover equal partition between them and the defendant of a tract of land in Milford township, and of a house and lot in the borough of Mifflin town. The whole case, and all the points raised in it, are fully stated in the opinion of the court.

Casper Sherk and Anna his wife against Daniel Stine, administrator of Samuel Sherk. This was an issue directed by the Orphan’s Court to try the right of the plaintiffs to certain moneys, the proceeds of the estate of Samuel Sherk deceased. Lebanon County, ss.

<p>ERROR to the Common Pleas of Dauphin county.</p> <p>John M. Ekel against John Snevily. This was an action on the case in assumpsit, in which the plaintiff thus declared:</p> <p>John Snevily was summoned to answer John M. Ekel, of a plea of trespass on the case upon promises, &c. For that whereas one John Smull on the 5th of January 1838, in the county aforesaid, made his promissory note in writing and thereby promised to pay the defendant or order, at the office of Discount and Deposit Bank of Pennsylvania, at Harrisburg, $151.50, at sixty days after the date thereof, which period has now elapsed, ana the said defendant then and there endorsed the said note, and delivered the same to John Ekel who then and there endorsed the said note and delivered it to the said plaintiff, and the said John Smull did not pay the amount of the said note, although the same was duly presented and shown on the day when it became due to and at the office of Discount and Deposit Bank of Pennsylvania, at Harrisburg aforesaid, for payment thereof, and payment of the said sum of money therein specified was then and there duly required according to the tenor and effect of the said promissory note, but that neither the said office of Discount and Deposit Bank of Pennsylvania, at Harrisburg, nor the said John Smull, nor any person or persons on behalf of the said John Smull, did, or would then and there, or at any time before or afterwards, pay the said sum of money therein specified, or any part thereof, but wholly neglected and refused so to do, of all which the defendant had then and there due notice.</p> <p>Plaintiff offered in evidence the note of which the following is a copy:</p> <p>“ $151 50-100.</p> <p>“ Sixty days after date I promise to pay John Snevily or order, at the office of Discount and Deposit Bank of Pennsylvania, at Harrisburg, one hundred and fifty-one dollars 50-100, for value received, without defalcation.”</p> <p>“ John Shull.”</p> <p>“Harrisburg, January 5, 1838.”</p> <p>(Endorsed on back.)</p> <p>“ I transfer the within note to John Ekel, and guarantee the payment of the same.”</p> <p>“ John Snevily.”</p> <p>(Further endorsed.) “ John Ekel.”</p> <p>Defendant objected to the note being read to the jury. That this is an action on the guaranty, the written engagement; and not being an endorsement in blank, J. M. Ekel could not bring a suit in his own name.</p> <p>The court overruled the objection, and admitted the note in evidence. The counsel for the defendant excepted.</p> <p>The court charged the jury that the plaintiff was entitled to recover.</p>

<p>ERROR to the Common Pleas of York county.</p> <p>Elizabeth King against Jacob King and George Cown, executors of Philip J. King, deceased.</p> <p>This was an action for a legacy, in which the following case was considered in the nature of a special verdict.</p> <p>Philip J. King, the elder, made his will in writing,' dated 29th November 1791, which was duly proved, and letters testamentary granted thereon to Philip J. King, Jr. In said will is this provision:</p> <p>“ Item: I give and bequeath to my beloved wife, Catharine, the yearly interest of six hundred pounds, to be paid to her yearly, and every year during her widowhood, and no longer, which sum of £600 I order my. executors from time to time to put to interest fo,r the purpose aforesaid. And after my wife’s decease, or widowhood, I give and bequeath the said principal sum to my children, hereafter named, or their heirs, to be divided among them, share and share alike.”</p> <p>Afterwards, in said will, he names nine children, one of whom is Henry King, the father of -the plaintiff. Henry King died the 15th of February 1817. Catharine, the widow of said Philip Jacob King, died the 7th of February 1826. The ■ executor, Philip Jacob King, is also dead. And the defendants hold the share of said Henry King for the right owners.' The administrators of Henry King, claiming the same as a vested legacy to said Henry King, and his children claiming in opposition. If the plaintiff is entitled io recover, judgment to be given for plaintiff for .one-third of one-ninth of said sum of £600, with interest from said widow’s death; otherwise judgment for defendants.</p> <p>The court below (Durkee, President) rendered a judgment for defendants.</p>

Peter Clauser died in 1823, intestate, and letters of administration issued to Peter Sheradin, who settled his account in the Orphans’ Court in 1826, in which he charges himself with the inventory, and credits payments, leaving a balance of $370 in the hands of the accountant.

<p>ERROR to the Common Pleas of Dauphin county.</p> <p>Robert Stewart against George W. Layng. This was an action on the case in which the court below thus stated the facts and charged the jury:</p> <p>Parsons, President.—This is an action of assumpsit, brought by the plaintiff against the defendant, for carrying between 55 and 60 hundred weight of goods from Harrisburg to Indiana, Indiana county, in this state, at the price and sum of $2.25 per 100 pounds. It appears from the evidence in the cause, that a quantity of goods were shipped from Philadelphia to this place, by David Ralston, to the care of the defendant, who keeps a warehouse, and is engaged in the forwai’ding business; that about the time the goods arrived here, Ralston appeared and paid the freight to this place; that he left these goods here, and instructed Mr Layng not to forward the goods, that he would send teams for them, and that the goods should be kept in store till he ordered them. Some of the goods were directed to J. & T. S. Mitchell, and some to Samuel Todd, and they were in the charge or under the care of Ralston. Under these circumstances, the plaintiff entered into a parol contract with the defendant to carry a load of these goods, directed to the persons above named, at the rate of $2.25 per hundred, at the instance and by the request of the defendant. At the time the contract was made, Mr Layng did not state that he was contracting for any other person, nor did he disclose, from the evidence in the cause, that he was acting as agent of any other person, nor did he allege but that he was contracting for himself. The goods were loaded upon plaintiff’s wagon; after he had loaded them, a bill of lading was made out and given to the plaintiff. By that bill, he was to deliver those goods, designated is the same, to the persons named in the bill as to whom they were so directed, on their paying the freight at $2.25 per hundred weight. On this state of facts alone, by the plaintiff accepting that bill under those specific terms in the bill, he was bound to look to the consignee, the persons to whom the goods were directed, or hold on to the goods until his freight was paid; he had a lien upon the goods, and it was a part of the contract contained in the bill, which we construe as the last and whole contract between the parties, that he would deliver them only on the carriage being paid for; and if the case stood upon those facts and that contract alone, we should feel compelled to instruct you, as matter of law, that the plaintiff could not recover; for the. contract of the parties, when expressed, is the law of the case, and all are bound by it. He should, under the situation of the parties as they then were, have retained the goods till his freight was paid, or deliver them and sue the owner for his pay. But there is another fact which I have mentioned, and others proved by the plaintiff, which place the case upon another principle.</p> <p>It seems that Ralston had the charge of the goods, and was the owner, or part owner, and agent of the real owners, and specially instructed Mr Layng not to forward the goods from his warehouse by any conveyance, without special directions from Ralston, on the allegation that he was about to send his teams for them, and did send his teams for them while Stewart was carrying them out to their destined places, and on that account the owners or receivers of the goods refused to pay the plaintiff when he delivered them. When they refused to pay the carriage, the plaintiff might have retained the goods till the carriage was paid, but he was not bound to do so. He did, if the evidence is believed, deliver the goods.</p> <p>As the law in the case, we-instruct this jury, if they believe that Ralston had the charge of the goods, to convey them from Philadelphia to Indiana, and left the goods in charge of the defendant in Harrisburg, with express instructions that he should not send them, or forward them by any teams but his own, or by the order of Ralston; and in violation of those instructions, he did forward them; and without the consent of Ralston, or by his order, did contract with the plaintiff, as testified to by John Barnett ; notwithstanding Stewart accepted the bill of lading, the plaintiff is entitled to your verdict, if you believe he carried the goods and delivered them at the place and to the persons directed.</p> <p>Mr Layng had no right under the facts above stated to have sent the goods in the manner he did. Having chosen to violate these instructions, and if he did, and Ralston, or those who received the goods, refused to pay the freight, and not choosing to retain them by virtue of his lien, he can never resort, under such circumstances, to the defendant for his pay. The facts are for your determination, from the evidence before you.</p> <p>But in order to defeat the plaintiffs right thus to recover, the defendant alleges that Ralston was not the owner of the goods, and Mitchell and Todd were the real owners; and that Ralston was only the agent of the owners; and after Ralston had given to Layng those instructions, the true owners of the goods came here, and countermanded the instructions given by Ralston to Layng, and they directed him to send them by the first teams, or by the plaintiff, or any other teamster; and that in pursuance of such instructions, Layng did send these goods to the real owners, under the contract made with the plaintiff. Now, if the jury should believe that such are the facts, and that it was in pursuance of, and under the directions from, the real owners, he forwarded the goods by the plaintiff to them, under these circumstances, the plaintiff ought to have retained the goods until he got his pay from the owners; or, if he delivered them, his legal remedy is against them, and not the defendant.</p> <p>This is a matter of fact for you to determine. Does the evidence in the case convince your minds that the goods were sent under the instructions of the real owners ? Has it been proved who were the owners, or that they gave any such directions to Layng? Did they ever countermand or revoke the authority which they had given to Ralston? These are questions which the jury must decide from the evidence presented before them on this occasion. They are facts which the defendant must clearly establish to your satisfaction. Has he done so?</p> <p>There is another position assumed by the plaintiff’s counsel from the evidence, and which arises in the cause, which is this: that after the goods had been sent by the plaintiff’s team, Ralston came here with his teams for the goods, and disapproved of the act of Layng in sending the goods by plaintiff, and denied his right so to do, alleging that he came with his own teams for them, and wanted loading back; that under these circumstances, Layng offered to furnish him with loading back which was destined to the same county, to which Ralston replied that he would take them, but it should be at the risk of Layng, who forwarded them, and that he should receive pay therefor from the persons who were to receive the goods, and that the defendant should settle with the plaintiff for his carriage of the goods that had been in the charge of Ralston.</p> <p>Now, if you believe that such a contract was entered into by Layng, and under these circumstances he so agreed, then he is bound by that agreement, and this action is well brought against Layng for the carriage; and the plaintiff would, under such circumstances, be entitled to your verdict. It is for you to decide that question; we leave this question to you without comment.</p> <p>You have heard the testimony of Joshua Fackler upon this subject; the court will read it to you. Does that evidence, combined with the other facts in the cause bearing upon that point, convince your minds that such was the promise and understanding of Layng ? If so, he is bound by it, and it would not be unjust that he should pay it. We leave the matter with you to determine. If you find for the plaintiff, he is entitled to interest on the same, from the time this suit was brought.</p> <p>Errors assigned:</p> <p>1. In stating to the jury that Layng, in making the contract for hauling the goods, did not disclose that he was acting as agent for any other person, nor did he allege but that he was contracting for himself.</p> <p>2. In stating to the jury that Ralston was the owner or part owner of the goods.</p> <p>3. In stating to the jury, as a fact proved, that the owners of the goods refused to pay for the carriage of the goods, because Ralston had especially instructed Mr Layng not to forward the goods from his warehouse, by any conveyance without- especial instructions from Ralston, &c.,</p> <p>4. Also, that when the owners of the goods refused to pay the carriage, the plaintiff was not bound to retain the goods till the carriage of them was paid.</p> <p>5. Also, to that part of the charge, wherein the court instruct the jury that the instructions of Ralston to Layng, in relation to the goods, affected and controlled the contract between Stewart and Layng for the carriage of the goods.</p>

This was an action by the Commonwealth for the use of the Juniata Bank against John Beale, administrator of William Beale, deceased, and was founded upon the official bond of Thomas Beale, late sheriff of Mifflin county, for whom the said William Beale, deceased, was a surety.

<p>THIS was a writ of error to the Court of Common Pleas of Mifflin county, where judgment was rendered in favour of the commonwealth for Jane Reed against Abner Reed, James Thompson, James Milliken, and Joseph Milliken who survived Foster Milliken, in an action of debt on the recognizance of Foster Mil-liken," late sheriff of Mifflin county, and the defendants, for the faithful performance of his duties as sheriff.</p> <p>The plaintiff claimed the amount, with interest, due upon a legacy given to her by the will of her late husband, Alexander Reed, from the moneys coming into the hands of the sheriff on a sale of the land of the testator by execution.</p> <p>The bequests in the will of Alexander Reed were as follows:</p> <p>Item 2. I give and bequeath to my wife Jane the ten shares of stock which I hold in the Juniata Bank of Pennsylvania during her natural life; she to receive the interest as it may become due during that time, and the stock, at her death, to return to my estate.</p> <p>Item 3. Gives to Abner and John Reed his ten shares of stock in the Centre Bank, they to pay any instalments then due.</p> <p>Item 4. Gives to his sister Mary a bed and bedding — his wife to have the first choice of a bed and bedding.</p> <p>Item 5. I give and bequeath to my beloved wife Jane the one-half of all the rest and residue of my personal and moveable estate: in this bequest is to be included the price of the bed and bedding of which she is to have the first choice.</p> <p>Item 6. I give and devise to my brothers, Abner and John Reed, and their heirs and assigns, as tenants-in-common, all and singular my lands and tenements, with the appurtenances, they paying equally thereout the following, to wit:</p> <p>1. To my wife Jane, the sum of $130 yearly and every year during her natural life.</p> <p>2. To my brother, Andrew Reed, the sum of $2400, to be paid him as follows, to wit: $1000 at the time of my decease; $500 at the expiration of three years after my decease; $200 at the expiration of five years after my decease; and the sum of $700 at the decease of my wife Jane.</p> <p>3. To my brother Thomas Reed $1333, as follows, to wit: $266.67 one year after my decease; $266.67 two years after my decease; $266.67 four years after my decease; and $533.33 at the death of my wife Jane.</p> <p>4. To my sister Sarah Heely the sum of $133.33, as follows, to wit: $50 in one year after my decease, and the residue in six years after my decease.</p> <p>5. To my sister Mary, wife of John Thompson, the sum of $666.67, as follows, to wit: $266.67 at my decease; $266 three years after my decease; and $133.33 five years after my decease.</p> <p>6. To my sister Jane the sum of $800 whenever she shall call upon them for the same.</p> <p>Which said several sums I bequeath to my said wife, brothers, and sisters, to be paid as aforementioned by my brothers Abner and John, out of the land and personal property devised and bequeathed to them.</p> <p>Item 7. I will, devise, and bequeath to my brothers, John and Abner Reed, all the other half of my personal and moveable property, and all the rest and residue of my real and personal property to them, their heirs, and assigns for ever.</p> <p>Item 8. I will, devise, bequeath, and direct, that in case any of the legatees, or devisees, hereinbefore mentioned, should die in my lifetime, or before they receive their respective legacies and devises, the same shall go, and be vested, and descend according to the last will and testament of such legatee or devisee, or according to the law of the land, in the same manner as if they had survived me and received their legacies and devises in their lifetimes, respectively.</p> <p>Item 9. Appoints Abner Reed and S. W. Taylor executors..</p> <p>To April Term, 1829, a suit was brought by Andrew Reed against Abner Reed, with notice to Abner Reed and $. W. Taylor, executors of Alexander Reed, deceased; and on the 21st of January 1829, judgment rendered for plaintiff for $2746.82, to be made out of the land. A fi. fa., issued to November Term, 1829, which was levied on land, and inquisition held and property condemned. On a venditioni exponas it was sold for $4050 on the 15th of March 1830, and the sheriff executed and acknowledged his deed for one-third of 350 acres of land, the property of Alexander Reed, deceased, subject to the widow’s annuity. Of this money the plaintiff claimed the arrears of her annuity, due at the time of the sheriff’s sale, with interest on the same from the time they respectively became due, and also from the time of sale.</p> <p>It appeared that the widow had brought suit against the executors and terre-tenants, from time to time, to recover her arrears. On one of these, brought to August Term, 1825, she recovered judgment, on the 8th of November 1828, for the amount due to her to the 21st of November 1824, with interest, amounting to $1438.72. On this judgment b, fieri facias was taken out, in 1829, and levied on real estate, and inquisition was held and the land condemned. Another suit was brought to January 1827, and others to January 1829 and January 1831, not proceeded in; several payments being made.</p> <p>The plaintiff called a witness, who proved a demand on behalf of the plaintiff, and refusal of payment; but the time was not specified. '</p> <p>The defendants offered to prove that the widow had received the money from the bank for the stock, the interest only of which was bequeathed to her; thereby converting the stock into money, contrary to the will, for which she is chargeable. This was done on the 6th of January 1838. This offer being objected to, the court rejected and sealed a bill of exceptions.</p> <p>The court charged as follows:</p> <p>Burnside, President.—This cause was before us on a former occasion, and taken to the Supreme Court and reversed. With the lights and authorities we then had, we held that all the legacies chargeable on the same land should abate pro rata. In this it would seem we erred, and the Supreme Court held the law to be that as the widow takes the legacy in lieu of dower, she is a purchaser, and takes her bequest without any abatement. This decision of the cause does not satisfy the defendant, and he asks us to instruct you,—1st, That the plaintiff in this cause, by bringing suit for her legacy, due since the sheriff’s sale, has elected to treat the land sold as subject to her legacy in the hands of the purchaser at the sheriff’s sale, and she therefore has no right to receive any part of the fund at such sale; and 2d, That if the widow claims and receives the amount due her out of the sheriff’s sale, under the will out of the fund raised at such sale, she therefore elects to treat the sale as devesting her of her lien, under the will of Alexander Reed, upon the land sold, as she cannot resort to both; and if she receives her money out of the fund raised at sheriff’s sale, the purchaser holds the land discharged of her lien; and lastly, that the plaintiff has no right to recover in this suit.</p> <p>The plaintiff’s counsel request us to instruct otherwise.</p> <p>You will observe from the evidence, that there is no lien or incumbrance shown on the estate of Alexander Reed in his lifetime; that the land was sold on a judgment against the executors for one of the legacies charged upon it; and that the sheriff’s administrator took refunding receipts for all the money paid. We treat it as if it was here in court for distribution. Under the decision of the Supreme Court in this very case, the widow was to be the first paid, and that without any deduction; all the other legatees were to abate—they are entitled to the balance. We instruct you that she is entitled to recover; and as the sheriff either used the money, or took refunding receipts which must pay interest, that she is entitled to interest. It is not necessary to decide further; but it is our opinion that the purchaser at sheriff’s sale took the estate subject to her legacy, which was given in lieu of dower, and that it remains a charge on the land for all payments becoming due after the sale. The first payment of $130 will be due one year after the sale; and no interest is to be charged until the lapse of one year after the death of Alexander Reed.</p> <p>To this opinion of the court the defendant’s counsel excepted.</p> <p>Errors assigned:</p> <p>1. The court erred in overruling the objections to the admission of the will in evidence as contained in the first bill of exceptions.</p> <p>2. The court erred in rejecting the testimony as contained in defendant’s second bill of exceptions.</p> <p>3. The court erred in their charge, by instructing the jury, 1st, that the plaintiff was entitled to recover. 2d, that as the sheriff either used the money, or took refunding receipts that must pay interest, that she (the plaintiff) was entitled to interest; and 3d, that it was not necessary to decide further, but that it was the opinion of the court, that the purchaser at sheriff’s sale took the estate subject to her (the plaintiff’s) legacy, which was given in lieu of dower; and that it remains a charge on the land for all payments becoming due after the sale.</p>

Robert R. Church against James Davis, administrator, with notice to the directors of the Poor and Housé of Employment of Cumberland county. Scire facias sur mechanic’s lien. The original claim filed was as follows: - Robert R. Church v. James Davis. To the prothonotary of the Court of Common Pleas of Cumberland county.

<p>ERROR to the Common Pleas of Berks county.</p> <p>Peter Addams and Elijah Deckert, administrators of John Addams, deceased, against Jacob W. Seitzinger.</p> <p>This was an action of assumpsit on a note, to which the defendant pleaded non assumpsit infra sex annos.</p> <p>The plaintiff gave in evidence the following note:</p> <p>“ On demand I promise to pay John Addams or order, six hundred dollars, without defalcation, for value received. Reading, Sept. 4, 1827.</p> <p>Jacob W. Seitzinger.”</p> <p>And proved that said John Addams died in November 1832. That the following endorsements or entries on the back of said promissory note, áre in the handwriting of said John Addams;</p> <p>“Interest paid up, February 17th, 1829,</p> <p>Jno. Addams.”</p> <p>“ Received three hundred and fifty dollars on the within note at different times, January 31st, 1829.</p> <p>Jno. Addams.”</p> <p>The plaintiffs then offered to read the said entries or endorsements in evidence, to take the case out of the statute of limitations ; defendant objected to the evidence; the court sustained the objection, and overruled the testimony; to which decision of the court the plaintiffs excepted.</p> <p>Error assigned:</p> <p>The court erred in rejecting the entries or endorsements on the . back of the note, and in deciding that the same did not take the case out of the statute of limitations.</p>

ERROR, to the Common Pleas of Schuylkill county. This was an ejectment by Isaac Hiester against Samuel Laird to recover 407 acres and 157 perches of land in Rush township. The facts of this case and the points raised, are so clearly stated in the opinion of the court, that they need not be repeated. The cause was argued by

Hopkins Boone for the use of George W. Toland and William Magoffin against William Porter. Scire facias quare executio non. This cause was argued by

The court below (Parsons, President) instructed the jury, that the facts of the case constituted in law such a reducing to possession by the husband of his wife’s choses in action, as barred the plaintiffs’ recovery in this action.

William Okison and John Flickinger being the parties in interest in two suits pending in court, entered into the following agreement: Robert Barr ) v. > John Campbell.) & William Okison ] v. I T. l John Flickinger.J In the Common Pleas of Huntingdon county. “ We, the undersigned, parties to the within suits, this day agree to refer the within suits to Judge Junkins, Major John Zimmerman, of perry and MiJchael Bushyj of Juniata county, to meet at the house of Nicholas Ickes,…

Michael Strein against George Zeigler’s executors. This was an appeal from the judgment of a justice of the peace; and the following case stated, was agreed on by the parties concerned.

The Commonwealth against William Laub, James Bell, Jr., David M’Creary, John L. Fuller, John Gilbert, John B. M’Pherson, and Daniel M. Smyser. The declaration was in common form in debt upon the bond hereafter mentioned, dated the 9th day of January 1834; defendants pleaded nil debent, payment, and non est factum, on which issues were joined.

Wood for use against Jacob Libhart. This was an action of assumpsit by the plaintiff, who was a servant on board a packet-boat on the canal, commanded by the defendant, to recover his wages for seven months’ service. Upon the plea of payment, the defence was, that during the period for which the plaintiff was employed, he committed a larceny of a passenger’s trunk on board of the boat, for which he was arrested and convicted.

John Metzgar against Michael Stover. This was an action on the case, in which the plaintiff’ declared for money laid out and expended for the use of the defendant. On the trial of the cause, the plaintiff1 asked leave to file the following special count, which was' objected to by the defendant, but allowed by the court, who sealed a bill of exception thereto, at,the instance of the defendant*: John Metzgar ) v. > Michael Stover. ) York county ss.

John Kissinger .against Jacob Hoffman. This was an action of assumpsit, founded upon a promissory note of Jacob Hoffman to John Kissinger, for $400, dated 17th of August 1839, at ninety days. There were several bills of exception to evidence taken upon the trial, but they gave rise to no principle which was. peculiar to this case, except one which sufficiently appears in the opinion of the court. The cause was argued by

Samuel Carlisle against Henry Hockenbury, David W. Huling, and others. This was an action of ejectment for a tract of land.

This was an action of ejectment by Charles O’Donnell against John Lynch and John Gingrich'for a tract of land.

This was an action on the case by James B. Hutchinson against James Gordon. The defendant pleaded non assumpsit. The facts were that the defendant, being a farmer, applied at the store of the plaintiff for the hauling of gobds from Lewistown to Bellefonte, upon his return from the former place, where he was going with a load of iron. He received an order and 'loaded the goods. On the way the head came put of a hogshead of molasses, and it was wholly lost.

A petition was presented by George Baird and others to the Court of Common Pleas, praying the discharge of William Johnson, trustee of Elizabeth Baird under the will of Rachel Stewart, which was as follows: “In the name of God. Amen.

APPEAL by James Patterson one of the heirs of John Patterson, deceased, from the decree of the Orphans’ Court of York county settling the administration account of William Reed one of the administrators of John Patterson, deceased. Upon the death of John Patterson administration pendente lite upon his estate was granted to Moses Rankin and Samuel Bacon, who on the 14th of September 1817 settled an account, exhibiting a balance in their hands of $2,939.64.

<p>The debts of a decedent cease to be a lien after the lapse of seven years from his death, after which the lands of which he died seised cannot be made liable for their payment.</p> <p>It is not a good cause to set aside an execution because it was levied upon lands foT which the defendant had no title; or because the lien of the judgment had been lost from lapse of time.</p>

<p>ERROR to the Common Pleas of Cumberland county.</p> <p>This was an action of ejectment for a tract of land by Clemens M’Farlane against Willis Foulk and Henry Burkholder.</p> <p>Both parties claimed under Willis Foulk, who was the original owner of the land. The plaintiff gave in evidence the record of a judgment at the suit of Johnston Moore against Willis Foulk: No. 104, January Term 1813, regularly revived up to the 12th of April 1837. Fieri facias, No. 16, April Term 1839, levied on the land in dispute, which was sold on a venditioni exponas to August Term 1839, to Clemens M’Farlane, who received the sheriff's deed therefor.</p> <p>The defendants, then, to maintain the issue on their part, gave in evidence a judgment at the suit of the Middletown Bank, No. 120, April Term 1834; an alias fieri facias No. 70, August Term 1836, levied on the land in dispute: venditioni exponas, No. 27, April Term 1837; upon which the land was sold .to Henry L. Burkholder, the defendant, who received the sheriff’s deed therefor. The proceeds of this sale, amounting to $335, were brought into court for appropriation; and after paying a prior judgment, $200 was appropriated to Johnston Moore’s judgment, which was paid over to his attorney, leaving a balance of the judgment still due and unpaid.</p> <p>To rebut the effect of this testimony, the plaintiff then called witnesses to prove that the first sale of the property to Henry L. Burkholder, was effected by reason of a fraudulent conspiracy between him and Willis Foulk, to prevent purchasers from attending the sale, or bidding for the property; and before the plaintiffs had concluded their testimony on this point, the defendants’ counsel proposed to suspend any further inquiry on this point, and rest the case upon the following ground: “ that Johnston Moore, the plaintiff in the judgment on which the second sale was made, is estopped from denying the validity of the first sale, on the ground that he claimed and received a large proportion of his judgment out of the proceeds of the sale to Burkholder. That Johnston Moore, having repugnant rights, his election to claim one, estops him from proceeding in the other, and that the purchaser under the last sale is equally estopped with him.”</p> <p>The Court below thus answered the point:</p> <p>Hepbxjrn, President.—“ If the whole of these proceedings had been fair and honest, this would undoubtedly be the case; but if they were fraudulent, and consequently void, they were void as to everybody not implicated in it: and Johnston Moore, as well as any one else, had a right to treat it as such, and to proceed against the property in the hands of the defendants. The defendants’ point is answered in the negative.”</p>

The real estate of Joseph M’Cleary was sold upon a judgment and execution at the suit of Blythe and Johnston. It was admitted, when this matter was submitted to the court, that the plaintiffs were entitled to the moneys raised on their execution, unless the judgment of John M’Cleary v. Joseph M’Cleary, of August Term 1832, No. 65, had been revived so as to continue its original lien.

. Absalom Ligget against Harris, Rorer -& Co'. This action originated before a justice, from whose judgment it was brought into court by appeal, where the plaintiff treated it as an action of assumpsit, and in his declaration, containing three counts, charged the defendants with work, labour, care and diligence, with a quantum meruit, and with goods - sold and delivered.

John Johnston, for the use of Jacob Rehum, against John Snevily. Appeal from the judgment of a justice.

George Mitchell against Charles Bratton and James Bratton. This was an action of ejectment for a tract of land, in which the plaintiff gave in evidence: 20th of November 1793, warrant to Frederick Lazarus, 400 acres adjoining land this day granted to William Cook, Derry township. 15th of May 1794, survey 390 acres 154 perches. Offered—unseated land book, sale book. Charles Ritz, Esq., sworn. I am the county treasurer; these are office books.

This was an action of debt commenced in the Common Pleas of York county by Philip A. Small and Samuel Small, against York county. It is founded upon a bond alleged to have been executed by the commissioners of York county, on the 15th day of October 1838, in favour of Philip A. Small and Samuel Small, in the sum of $3420, conditioned for the payment of $1710, with interest from the date, within one year thereafter.

Alexander Patterson against Andrew J. Jones. This was an action of ejectment for a lot of ground, and was brought to compel the payment of the two last instalments mentioned in the following agreement: Articles of agreement made and concluded upon this 17th day of September 1835, by and between Alexander Patterson, of Lancaster county, of the one part, and John Smull, of Harrisburg, of the other part, witnesseth that the said Alexander Patterson shall and will, on or before…

Robert Dougherty and Robert Mehaffy against Daniel Taylor. This was an action of ejectment, in which the plaintiffs gave in evidence a warrant to Henry Kepple dated 12th of May 1773, for 300 acres of land: a survey thereon of 117 acres, regularly returned, being the land in dispute: a patent to Robert M’Clay dated 2d of May 1833, and a regular chain of title from M’Clay to the plaintiffs.

Levi Reynolds against James Devinney. This was an action of ejectment for three hundred acres of land. The plaintiff gave in evidence a warrant to John House!, dated 21st of January 1794, and a survey made and returned thereon 16th of May 1794; and then offered a book containing a list of unseated land in Mifflin county, for the years 1814, ’15 and ’16. D. R. Reynolds sworn.

Abraham Levan against Joseph Frahn and Edward Anderson. This was an action of assumpsit, in which the plaintiff declared against the defendants jointly: for goods sold and delivered: the same with a quantum valebant.- and for money had and received. The cause was referred to arbitrators, who made a report in favour of the plaintiff, and from which Anderson, one of the defendants, appealed: the other did not.

Samuel Bitzer and James H. Devor, against Christian Shunk and Joseph Bauman, trading under the firm of Shunk & Bauman. Amicable action entered in the Common Pleas of Dauphin county.

Elijah Leonard against Andrew Parker, executor of Andrew Leonard, deceased.

Jacob Zimmerman against The Union-Canal Company. At January sessions 1840, the plaintiff presented his petition to the court setting forth that he was seised of a tract of 140 acres of land, &c., in Anville township, Lebanon county, which had been injured by the erection of a dam, constructed by the defendants for their works, whereby the water was swelled upon the plaintiff’s land, and a fording adjoining the same, which he was accustomed and entitled to use, was injured.

■This was an action of debt upon a book account by Andrew Parker & John Milliken, administrators of Thomas Harris, deceased, against Evan Van Swearingen. The defendant pleaded non assumpsit, non assumpsit infra sex annos, and payment, &c. The plaintiffs produced the books of their intestate and called John Milliken sworn.

Ann Lindsay, administratrix of Thomas Lindsay, deceased, against William M’Clelland, Jas. Reeside, and Samuel R. Slay-maker. The facts of this case, which involved any principle, are sufficiently stated in the opinion of the court.

This was an action of debt brought in the name of the commonwealth by William Shissler and his wife, administratrix of William Warner, deceased, against David Shultz, administrator of John Wampler deceased, upon a recognizance entered into in the Orphans’ Court of York county, by John Wampler as a surety with Michael Bablitz, for Charles Warner, who, as the eldest son and heir at law of his father, Charles Warner, then deceased, had taken the real estate of his father at a…

Samuel Heffner against Elizabeth Fox and Samuel Morris. Ejectment for a house and lot in Pottsville. George Rahn testified. I sold a house as the property of Samuel Heffner, while I was sheriff. These are my conditions of sale, and made on the 21st of March 1834—sold to Burd Patterson for Mary Patterson for $200. Before the deed was made, I received a letter from B. Patterson requesting the deed to be made to Samuel Morris, dated 2d of April 1834.

<p>Upon a motion to quash an appeal from the judgment of a justice of the peace on the ground of a defective recognizance, the appellant should be permitted to amend it, and thus perfect the appeal.</p>

<p>A voluntary surrender of himself by one who has given bond to take the benefit of the insolvent laws, will not relieve his bail from the obligation contained in his bond.</p>

<p>The delivery of possession of part of the property in compliance with a parol contract for the sale of-land, is not such an execution of it as will take it out of the operation of the statute of frauds and perjuries.</p>

<p>Loose declarations of a parent that he intended an existing debt should be an advancement, not substantiated by writing, not made to the child nor assented to by him, nor accompanied by any act, are not sufficient to destroy a debt secured by a legal instrument in full force, and change it into a gift by way of advancement, whether offered by the son to defeat the recovery of the debt, or by the representatives of the father against the son to defeat his claim for a distributive share.</p>

Patterson’s executors against Okison and Yoher. This was an action of trespass quare clausum, fregit. The question was one of title. The only point of law deemed of any importance in the cause arose upon an offer in evidence by the plaintiff of a deed of Anthony Gray and wife to Robert Edmiston, in the body of which were these words: “ For a valuable consideration, we the subscribers have bargained and sold,” &c. The objection to it was that it contained no consideration.

WRIT of error to the Common Pleas of Perry county.- Stewart Kennedy, Harvey Segraves, and Henry D. Maxwell, brought an ejectment in Perry county against Jacob Loy, John Koch, and James Everhart, for 75 acres of land.

This was an action of replevin in the court below, in which John Coover was plaintiff, and Shouffler and Lobach defendants. The following are the facts of the case: Joseph Lobach, the defendant, distrained the goods and chattels in the declaration mentioned by virtue of a warrant of distress from Valentine Shouffler and Magdalena his wife in right of his said wife, who was formerly the widow of John Starr of said county, dated the 20th day of April 1839.

Ferdinand Ingle, for the use of Leah Ettinger, against George Homman. On the 24th of October 1818, a judgment was obtained by the plaintiff, against the defendant, before Christian Spayd, Esq., a justice of the peace of Dauphin county, residing in Middletown, for $36.60 debt, and 93 cents costs. In 1829 Christian Spayd was appointed post-master at Middletown, and thereby vacated his office of justice of the peace.

<p>APPEAL from the decree of the Common Pleas of Cumberland county.</p> <p>Upon a judgment ahd execution of Michael G. Beltzhoover against J. Waltman, Sen., and J. Waltman, Jr., the personal property of the defendants was levied and sold for $633.33, and upon a rule the money was brought into court for appropriation.</p> <p>Plies, Thudium & Co. leased their farm to Joseph Waltman, Sen., for the term of two years, ending 1st of April 1840, at a rent of $500 a year. Thomas Craighead became his bail for the payment of the rent. 14th of December 1839, Plies & Co. again leased the farm to both the Waltmans for the period of five years, commencing 1st of April 1840, at a rent of $600 a year. M. G. Beltzhoover became bail for the payment of the rent the first year of this lease. One half of this year’s rent was payable 1st of January 1841. Thejfieri facias issued 1st of October 1840, at which time upwards of $600 was due on the first lease. On the 5th of October 1840, the said landlords issued their warrant directed to the sheriff to distrain the property on the demised premises for balance of rent as aforesaid due on first lease, and at same time gave the sheriff notice to retain one year’s rent, due 1st of April 1840, out of the proceeds of the sale. This warrant and notice were given at the instance and request of Craighead, the surety. Waltman, Sen., was in possession of the demised premises during the period of the first lease and the second up to the time of sale, and Waltman, Jr., lived with him all the time, and they became joint lessees as before-stated. 16th of December 1840, the landlords gave sheriff notice to retain $300 for a half year’s rent on second lease. Beltzhoover made no objection to the payment of the $300 to the landlords on the second lease as claimed by them, but claimed the balance of the fund on his executions. Craighead claimed to have $500 of the fund applied to the rent due on the first lease in which he was surety, and which was one year’s rent due 1st of April 1840.</p> <p>The court decreed the $300 on the second lease to the landlords, and the balance of the fund to Beltzhoover on his executions.</p> <p>From this decree Thomas Craighead appealed.</p>

Hugg & Bell against David W. Huling. This was an action brought upon the acceptance of the following bill: “ Lewistown, Mifflin county, November 29th 1836. “ Sixty days after date pay to the order of Hugg & Bell nine hundred dollars for value received, without defalcation. « To D. W. Huling, Esq.” Jacob Forney’ Endorsed, “ Accepted, D. W. Huling.” 31st January 1837, protested for non-payment.

<p>One who purchases real estate which is encumbered by judgments, which he agrees to'pay out of the purchase money, and afterwards discovers another judgment which he did not agree to pay, may take an assignment of the judgments paid by him, in order to protect himself from the payment of the judgment which he did not agree to pay. And if the latter judgment creditor proceed to sell the estate by execution, and the money be brought into court for appropriation, the assignee of the first judgments will be entitled to the money.</p>

The Burgess and Town Council of the Borough of Lewistown, in the county of Mifflin, against Henry Wilson’s administratrix. This action was brought to recover the sum of $484.76, being the balance due by the defendant of a duplicate of school tax, delivered to him by the plaintiffs for collection. The plaintiffs offered in evidence the duplicate, to which the defendant objected, on the ground that the plaintiffs had not shown that the tax was legally assessed.

This was a writ of scire facias upon a recognizance, entered into by the defendant, John Withers, as bail for Augustus Withers and John Withers, Jr., to procure a stay of execution upon a judgment against them in favour of the plaintiffs, Joseph Livezey and Charles B. Kimball, for the sum of $204.41, with interest from the 10th of July 1839.

William Hurst, for the use of Joseph Reed, against George Fisher. It appeared that this suit was instituted on the 4th of November 1828, a narr. filed on the 5th of said month, and an appearance entered on the 26th of January 1829; that a judgment was entered for the want of an affidavit of defence, and on the same day a rule was granted to show cause why it should not be opened; and on the 19th of October 1829, the rule was made absolute and the judgment opened.

William Patterson, executor of Henry Cronister, against John Cronister. This was an action of debt upon a bond, dated the 10th of February 1816, for the payment of $20 on the 1st of April 1839.

<p>ERROR to the Common Pleas of Perry county.</p> <p>John Rice, administrator with the will annnexed, of Patrick Duffield deceased, against Joseph Bixler.</p> <p>This was an action of ejectment for twenty acres of land. Patrick Duffield in his lifetime was seised in fee of a tract of land, containing about 290 acres; which in 1820 he had surveyed and divided into two parts, the eastern and western part. This was done for the purpose of conveying the western part, which he supposed to contain 60 acres, to his son-in-law, Andrew M’Clure, which he did; but Andrew M’Clure, in 1824, reconveyed the same to Patrick Duffield, who in 1825 made his will, by which he directed his executors to sell the eastern part of his land, and out of the proceeds to pay his debts, &c. which then amounted to about $1000; as to the western half, he directed that it should be rented by his executors, during the lifetime of his wife (who was to have possession of the house and garden), and the proceeds applied to support his wife and son Robert; and, after the death of his wife, he directed that this part should also be sold, and the proceeds divided equally between his sons James and Robert, and his daughter, Mary Robinson. After the making of this will, in 1828, Patrick Duffield sold and conveyed, by courses and distances, the eastern part of his land to the defendant, Joseph Bixler, and out of the consideration money, the $1000 of debts were paid in his lifetime. He died in 1831, without altering his will, which was duly proved in the-register’s office, but no letters issued upon it to the executors named. It appealed that George Monroe, Esq. had made the survey and division of the land for Patrick Duffield in 1819, so as to divide off the 60 acres, which were conveyed to Andrew' M’Clure; and that, in making the calculation of the 60 acres, so as to fix the division line between the eastern and western end, he omitted one of the lines; the consequence of which was, that the partition line (if ever it was run .upon the ground, which was a disputed fact in the cause) would not close with the survey of either part, but if run on the ground at the place contended for by the plaintiff, the land in dispute would belong to the western part; but if the line was run according to the courses and distances, as contained in the deed from Duffield to Bixler, the survey would not close, but the line would embrace the land in dispute. Where this partition line was and the land affected by it was the subject of dispute. The plaintiff gave some evidence tending to show that the line was run by Monroe- in 1819, and that M’Clure, while he owned the western part, occupied up to it, and that Bixler recognised it as the true line. The defendant denied that any partition line had ever been run on the ground, and proved the mistake made by Monroe in leaving out the line in his calculation; and that if the plaintiff’s line were adopted as the true one, the defendant would have but 210 acres, instead of 230 conveyed to him, and that there would be 80 acres, instead of 60, in the western end. During the progress of the trial, several bills of exception were taken, as follows:</p> <p>Defendant offered to prove that the courses and distances, as marked in the deed from Patrick Duffield and wife to Bixler, would, if run on the ground, include the land in dispute; and that the division line, said to be run by Esquire Monroe, in 1819, never was marked upon the ground. The first part of the offer was objected to by the plaintiff. That it is immaterial to this issue. That the line run on the ground is the true survey. To the last branch of the offer, the plaintiff objected, that the evidence was immaterial, and could lead to no result in this suit.</p> <p>Objections o.verruled, and exception by plaintiff.</p> <p>William West, a surveyor, was then called as a witness, and gave the evidence offered, and in addition that he had run a line making a partition of the two parts, by which line he gave to Bixler the quantity conveyed to him by Patrick Duffield, and still left about 75 acres in the west end.</p> <p>Defendant then offered articles of agreement dated 29th Decernber 1838, by John Duffield, Thomas Duffield, Joseph Robinson, and Mary his wife, and R. E. Duffield, with Joseph Bixler, adopting the amicable line as run by Mr West, as the true line: to be followed with parol proof that it was executed by Joseph Robinson and wife, and Robert E. Duffield, with the knowledge, consent and advice of John Rice, the present plaintiff, who is a subscribing witness to the agreement: to be followed by a deed of conveyance from Joseph Robinson and wife, James Duffield, and Robert E. Duffield to John Rice for the quantity of land within the line run by Mr West, recognising that line as designating the true quantity.</p> <p>Plaintiff objected that these persons, parties to the article, had no right to the land, nor to change its boundaries in any way. All or any of these acts would be inoperative in this suit. John Rice could do no act that could affect his right as administrator of Duffield: he was not administrator for a year afterwards. That John Rice could not take a deed to affect his right as administrator, particularly as he was not administrator at that time, and could not give evidence for the purpose now offered, of affecting this suit. That they do not import what is alleged: they are inoperative, because they do not prove any thing as to the right of the land being in or out of Duffield, or any thing as to whether Monroe’s or West’s line is correct. At all events, the proof of the payment of debts should precede the other proof.</p> <p>Defendant offered to prove in addition to his foregoing offer, that the debts of P. Duffield were paid in his lifetime by the Bixlers out of the purchase money of the land sold to them, and further, that John Rice is now in the actual possession of the land, claiming it as bis own right, and adversely to the trust created by P. Duffield’s will, and that he is the only party in interest in this suit.</p> <p>Plaintiff objected to defendant’s offer, for same objections as above stated.</p> <p>Objections overruled. Exceptions taken by plaintiff.</p> <p>The agreement of John, Thomas and Robert Duffield and Joseph and Mary Robinson with Joseph Bixler, dated 29th December 1838, after reciting the deed of P. Duffield to Bixler, of 29th January 1838, for 231 acres 9 perches, thus proceeds:</p> <p>“ And whereas it appears, by a recent accurate survey and calculation, that the said tract does not contain the number of acres named in the conveyance, and (as it is believed) was intended to be conveyed, agreeably to the contract between the parties; and also that the part of said tract now belonging to the heirs of said Duffield, contains a much greater number of acres than is named in said conveyances (M’Clure’s). We therefore, as heirs of said P. Duffield, believing as we do, that in justice and equity the said Joseph Bixler (to whom John and Jacob released, &c.) is entitled to the number of acre's named in the conveyance made to him, do agree that (so far as we and each of us have an interest in the estate of our said father) the lines on the north and south side of the land conveyed as aforesaid to the Messrs Bixlers, be extended 17 perches along the lines of that part of the tract belonging to the heirs of our said father; and that the line lately run by William West, Esq., between the two points thus formed, (being parallel with the first supposed division line,) shall be hereafter considered, to all intents and purposes, the division line; the same to be a remedy for the mistake by making up the quantity of land sold to the said Bixler. And on account of the consideration sum so paid by the said Bixler to our father, we do, for ourselves, our heirs and assigns, (but for no other of the heirs of our said father,) hereby renounce all pretensions to any right, title, interest, or claim, in or to the land lying between the division line erroneously run and named in said conveyance, and that hereby agreed upon; and that the same be possessed by said Bixler.</p> <p>John Deffield. [seal].</p> <p>Thomas, Deffield. [seal].</p> <p>Joseph Robinson. [seal].</p> <p>Mary + Robinson. mark. [seal].</p> <p>Robert E. Deffield. [seal].</p> <p>Test. Robert Elliott,</p> <p>George Baker.</p> <p>Witnesses to signing of all but Mary Robinson.</p> <p>Witness to the mark of Mary Robinson, John Rice.</p> <p>The defendant then offered Robert E. DufKeld as a witness. The plaintiff objected to him as being incompetent, because of his interest in the result. The court overruled the objection, and sealed a bill of exception. The witness testified as follows:</p> <p>John Rice is in possession of the 74 acres adjoining Bixlers. Had some conversation with Rice; he bought my interest in the land. I am a tenant of the land held under Rice. Hall farms it; he lives on Rice’s other farm. I signed the agreement 29th December 1838. On the day we articled, me and Rice had some conversation about the line. Rice said we should settle it with Bixler, and not have any trouble about it. We were talking about the difference between West’s line and Monroe’s line. He did not say that he did not want to buy until that was settled. I had not signed this agreement at the time I articled with Rice. At the time I articled with Rice, West had made the line. It was last January a year (1839) I articled with Rice. Rice then knew there was a disputed line, and he said he should settle that, and have no bother. I did not sign the agreement until after we had articled. Rice and me had some conversation .about this article of 29th December, 1838, after he and I articled, and he agreed I should sign it.</p> <p>Cross-examined.—Plaintiff offered to ask witness whether he did not describe and sell to Rice, all his interest in the land up to the line as run by Monroe. Objected to; and defendant proposed to ask witness whether what he sold to Rice is not in writing. Which was objected to by plaintiff; that the defendant cannot stop the cross-examination to ask this question, and after the deed they have given in evidence. Plaintiff’s objection overruled; exception taken.</p> <p>Witness. The agreement of sale between me and Rice is in writing. Defendant now objected to plaintiff’s question, as offered and written out at commencement of the cross-examination.</p> <p>Plaintiff read agreement between Robert E. Duffield and John Rice, dated 8th of January 1839; consideration $125; conveys one-ninth part of 75 acres, more or less.</p> <p>The defendant then offered in evidence the record of a former action of ejectment, by John Rice against Joseph Bixler, for the same land in which a verdict and judgment were rendered for the defendant. This for the purpose of showing that John Rice in the action trying claimed the land in his own right, and not as administrator, with the will annexed, of Patrick Duffield, deceased.</p> <p>The plaintiff objected to the evidence; but the court overruled the objection and sealed a bill of exceptions.</p> <p>The plaintiff then gave evidence to prove that there were debts of Patrick Duffield’s estate yet unpaid to the amount of $40 or $50; and for the purpose of showing that the defendant was estopped from making defence in this action by the defence made in the former one, he called—</p> <p>John Reed, Esq., sworn. When the trial came on, and the jury sworn, it was admitted the title was in Patrick Duffield originally. Plaintiff gave in evidence the will of Patrick Duffield; also the three deeds fi-om three of the children to plaintiff, James, Robert, and Mrs Robinson and husband. It was admitted that Bixler had purchased the eastern end. Defendant gave no evidence. It was suggested plaintiffs could not recover on their own showing. I stated to the court it would be unnecessary to consume time if that point was decided against us ultimately. The objection was that the heirs could not convey land; if they had any interest, it was money and not land. I stated to the court briefly my views to sustain the plaintiff. The court intimated a pretty strong opinion against us, that we could not recover in that aspect of the cause. Some positions were stated by Mr Watts for defendant, but not argued. It was then agreed that a judgment should be entered against the plaintiff. A motion for a new trial entered without argument, and held over to April court; in the mean time the motion was withdrawn, judgment entered, and this suit brought.</p> <p>The plaintiff requested the court to charge the jury upon the following points:</p> <p>1. That the sale, by the testator, of the eastern half of the land, does not revoke his will as to the western half; but the devise as to it continues; the whole to be sold, and after paying debts and some small legacies, the whole to be divided in money; that the title to the land therefore was vested in the executors.</p> <p>2. So long as debts, funeral expenses, legacies, &c., remained unpaid, it was not in the power of some of the legatees to elect to take the property as land; and the right to the land is still in the administrator with the will annexed.</p> <p>3. The deeds by the legatees to Rice do not amount to an election to take the property as land, so as to devest the title of the executor or administrator with the will annexed; they are more properly assignments of the legacies.</p> <p>4. That the article of agreement of Patrick Duffield to Bixler, and the deed to him, only convey the land as far as the line marked on the ground, as surveyed by Mr Monroe, and long recognised and treated by all parties as the true boundary, and give no right whatever to change the division and take in the land in dispute.</p> <p>5. The line marked on the ground, treated as such by all parties, ascertained by an old fence, marked corner, and trees, and uniform, corresponding occupancy and claims for twenty years and more, must be taken as the true boundary, and will control the courses, distances, or quantities in the deeds or drafts, even where there is a purchase by the acre, and cl fortiori here, where the sale was a lumping one, not by the acre, but for a lumping price, to such known, distinct, and visible boundary.</p> <p>0. The deed or agreement of John Duffield, Thomas Duffield, Robinson and wife, and Robert to Bixler, if without any consideration paid by him to them, and if the facts supposed above are true, does not vest any title in the land in Bixler; and at all events, as there is no deed or agreement in writing, or parol, by the other legatees conveying said land to Bixler, said agreement can not defeat plaintiff’s right to recover in this suit.</p> <p>7. If any of the debts of Duffield, or of the legacies given by him, or if the expenses of the funeral, or administering the estate, are still unpaid, the title to the land is still in the administrator with the will annexed, and no act or election by any or all the legatees can devest it; and it lies on defendant to prove all these to be paid, or he must fail.</p> <p>8. If Bixler, on the trial of the ejectment of Rice v. Bixler, made defence that Rice, claiming under deed from the heirs and legatees, could not sustain a suit for the land; that those legatees were only entitled to money legacies, and not land, and the title was in the executors; and, on the defence, obtained a judgment in that case in defendant’s favour, he can not now turn round and assert the title to the land to have been in those heirs and legatees, and in Rice under them, nor in himself under them, nor deny that the title to the land is in the administrator with the will annexed.</p> <p>Defendant’s points:</p> <p>1. If the jury believe that after the making of his will, Patrick Duffield made a sale of the eastern part of his tract of land for the purpose of paying his debts mentioned in his will, the sale of 60 acres 141 perches, and the objects and trusts created by the said will have thereby failed, it is a revocation of the will, and Patrick Duffield died intestate; particularly if the jury believe, that when Patrick Duffield died he had as much personal property as would have paid all his debts and funeral expenses, if he had chosen to appropriate the same to that object by a will.</p> <p>2. If there be no evidence in the cause, that James Duffield and Robert Elliott, the executors named in the will of Patrick Duffield, ever renounced their executorship, the letters of administration, with the will annexed, to John Rice, the plaintiff, were illegally granted, and vest in him no right to recover in this suit.</p> <p>3. If the jury believe that John Rice purchased out the right, title, and interest of James Duffield, Robert E. Duffield, and Robinson and wife, to the estate of Patrick Duffield, deceased, of which he died seised, at the times and under the circumstances given in evidence, by the agreements and deeds for that purpose, and that he knew at the time of his purchase that there was a mistake as to the line between Patrick Duffield and Bixler, and. that the same had been rectified by the agreement of 29 th December 1838, in an amicable manner, and especially if he had advised the parties to that agreement to sign it, and thus settle all dispute about the division line, he can not recover, in this action.</p> <p>4. If the jury believe the facts in 3d point, and that John Rice is now claiming the land in his own right, and not for the purpose of executing any trust created by the will of Patrick Duffield, he can not recover in this action.</p> <p>5. That the agreement between John Rice and Robert E. Duffield, given in evidence, affords proof that the said John Rice is not prosecuting this action for the benefit of the widow of Patrick Duffield, inasmuch as he binds himself by that agreement to pay the widow the interest of the one-third of the purchase money.</p> <p>Hepburn, President.—The plaintiff’s first point read. Answer— The sale by the testator of the eastern half of the land, would not revoke his will as to the western half, and the devise as to if would continue, unless the purpose for which it was designed failed; and in that event, no purpose of the devisor requiring a sale of the property, the parties entitled to it have it in their power to consider the property as land, and not as money. But if the purpose intended by the testator has not failed, as intimated by this point, then the title would vest in the executors, as here indicated.</p> <p>Second point read.—Answered in the affirmative.</p> <p>Third point read.—We think these deeds do amount to an election by the parties to them, to take as land so far as they go.</p> <p>Fourth and fifth points read.—These points, if you find the facts as here stated, we answer in the affirmative'. The law undoubtedly is, that the marks upon the ground are the true boundaries. You must, however, to answer this point intelligibly, so far as the facts are concerned, recur to the whole testimony, and from it determine whether they are as here indicated, or as stated by the defendant in his points; which I will presently read to you. And if the facts are as he contends, that no such marks were there, &c., but that the lines were made after Bixler had purchased; by mistake, and subsequently corrected by the parties in the manner indicated by the testimony; then the result may be different. If, however, you find the facts as here stated for the plaintiff in these points, then we instruct you the law is as he states.</p> <p>Sixth point read.—This point we cannot answer in the affirmative. We think there was a sufficient consideration, if you believe the testimony. . . <</p> <p>Seventh point read.—This point, as a general legal proposition, would be true-, but if the jury believe the facts as here stated in the defendant’s third and fourth points, that he took out the letters of administration after he became the owner of the land, with a knowledge of all the facts in relation to the mistake in the line and its correction afterwards, and that there was personal property to the extent indicated by the latter part of defendant’s first point, we cannot instruct you the defendant must fail, by reason of the small amount of debt shown to exist against the estate of Duffield at this late date.</p> <p>Eighth point read.—The facts stated in this point were not the only defence taken in the case referred to, nor the only ground on which the judgment was given for the defendant there: besides that, it was between other parties and in different rights; we can not, therefore, instruct you the defendant is precluded from denying the title to the land being in the present plaintiff.</p> <p>First point of defendant.—We cannot answer this point in the affirmative.</p> <p>Second point.—Answered in the negative.</p> <p>Third and fourth points read.—Answered jn the affirmative.</p> <p>Fifth point read.—This agreement with the other evidence in the cause, is evidence in relation to whose benefit this suit is prosecuting; the effect and benefit, however, you must determine. The whole facts of the case are for you to determine, in accord-, anee with the law as we have stated it. The case is a difficult one, and I have had time, barely time, to read over the points previous to answering them. If I am wrong, the Supreme Court will set us right. Apply the facts to the law as I have stated it, and find such verdict as you think proper.</p> <p>The errors assigned embraced all the bills of exception, and the answers of the court to all the points put.</p>

<p>County commissioners have an unqualified power to approve or disapprove the accounts of a teacher of poor children, under the Act of the 4th of April 1794, in a township which refuses to accept the provisions of the general school law.</p>

Robert R. Church against Trustees of Dickinson College, owners, and Henry Myers, contractor. Scire facias sur Mechanic’s Lien. The claim filed was for boards, planks, scantling, joists, shingles, &c., alleged to have been furnished to Henry Mvers, for the use of the new academy at Carlisle, the bill for the same commencing the 22d of January 1837, and ending 13th November of that year, said stuff being furnished to Myers at various times between those dates.

<p>When there are mutual accounts between parties, the items of credit and charge in such accounts, within six years before the commencement of the action, are deemed equivalent to a subsequent promise reviving the debt.</p>

John Hadley against John Snevily. This was an action of assumpsit brought to recover the price of a horse.—The evidence was, that Hadley left the horse at the Golden Lamb tavern in Harrisburg, and that he was for sale; that the defendant came there on Sunday, said that he had bought the horse, and was to pay $130, or $135 for him, and then took the horse away; and that Hadley said afterwards that he had sold the horse to Snevily.

ERROit to the Common Pleas of Dauphin county. This was an action of covenant by the executors of William Egle against John Snevily. The facts of the case and errors assigned are fully stated in the opinion of the court. The cause was arguea by

Isaac Ayres against Joseph T. Richards. Feigned issue. The object of this issue was to ascertain whether the plaintiff or defendant was entitled to the money made by the sale of the property of William Dobson, under a judgment of B. Barnly v. William Dobson, No. 79, February Term 1839; which was the oldest judgment. The defendant claimed the money under a judgment, No. 66, September Term 1840, entered 15th of June 1840, against Dobson, in favour of J. S. &. R. D. Peironnet.

<p>ERROR to the Common Pleas of Clinton county.</p> <p>Daniel Graffius and others against Leonard Tottenham and others. This was an action of ejectment for two tracts of land, in which the defendants took defence for 1 acre arid 150 perches on the bank of the Susquehanna. *</p> <p>The plaintiffs gave in evidence a perfect paper title to the land in dispute, and the defendants relied upon a title by the Statute of Limitations. The opinion of the court below, which was the subject of the errors assigned, gives a statement of the case and points raised by the defence.</p> <p>Woodward; President.—The defendants allege that possession of the land in dispute was taken by Edmund Huff in 1816, and continued until his death in 1819, and that his widow and one of his sons remained in possession till she died in 1820. The evidence of these facts is full and uncontradicted, and if you believe it, it would seem that old Edmund’ Huff had taken such a possession of this land as, if continued twenty-one years, would give him title thereto. But at the time of his death he had no title under the statute, and yet he had such an interest in the land as would and did actually descend to and vest in his heirs as tenants in common. It was such an interest as the law recognises for many purposes. It was liable -to seizure and sale for his debts; he might, maintain trespass in respect of it; it would pass by alienation; and it vested at his death, like any title to real estate, in his children, who were his heirs. James Huff was one of the children in whom an interest vested: if you believe the evidence as to his entering into possession immediately or very soon after his mother’s death, the presumption of law would be, that he entered as heir to his father, and was holding the possession for himself and the other heirs. He could not set up title in himself against his brothers and sisters until he had done something to manifest his intention of holding adversely to them; and the court is unable to see any evidence here that would enable James, even if he had been in possession twenty-one years, to exclude his brothers and sisters from the benefit of it.</p> <p>The possession of the father was continued for the benefit of the family, and on the 14th of April 1830, James makes a deed to the defendants for the land, and places them in possession, who continued it until suit brought. Now, what did James convey by that deed? Evidently no more than his interest, which was an equal share with each of the other children of his father. If there were nine of them, he conveyed an undivided ninth part, and thenceforth the defendants became tenants in common with the other children of Edmund Huff. If you find the entry and possession of Edmund Huff to have been such as I have explained they must have been to give title under the statute, and that the possession has been kept up by James Huff and the present defendants, until twenty-one years had elapsed before this suit was brought, then a complete title has be.en shown in the defendants, and the heirs of Edmund Huff, exclusive of James, to the land in controversy; and the plaintiffs cannot recover.</p> <p>The plaintiffs have shown by their warrant, súrvey, and patent, that the title of the commonwealth had been granted; and to such a possession, on appropriated land, the statute attaches its protection.</p> <p>But the plaintiffs allege, and have requested the court to charge the jury, that the defendants cannot avail themselves of the benefit of any possession or improvement of this land, prior to March 1820, because that, on the 27th of August 1830, they applied for a warrant for 400 acres of land, including this improvement, and then proved by their grantor and witness, James Huff, that this improvement was commenced in October 1820, and not before. From the warrant it appears that, for some reason not explained, the date of the improvement was fixed in March, instead of October 1820.</p> <p>The object of the law in requiring proof of the commencement of an improvement by the applicant for a warrant, was to fix the time truly, if he can ascertain it. His warrant and title relate back to the time at which he pays interest, and no matter what may be the date of his warrant, survey, and patent: there, in the beginning of his improvement, is the beginning of his title. But if he alleges and proves a date to his improvement, short of the true one, and pays interest from it only, he shall not afterwards be permitted to show in court the true date, for the purpose of carrying that title back to an earlier period than he fixed in his dealings with the commonwealth. He is estopped from showing the truth. His improvement is by supposition earlier than is mentioned in his warrant, but he is not permitted to show this fact when he sets up title under that warrant, for .this would be to allow him to derive an advantage from a fraud practised against the commonwealth.</p> <p>To illustrate:—The plaintiffs in this case claim under a warrant of 1793. Suppose old Mr Huff had commenced an improvement on the same land in 1790, but in 1830, when he, and others claiming under him, apply for their warrant, they prove the improvement to have been commenced in 1800. They know nothing of the warrant of 1793, and they suppose 1800 is early enough for their purposes; but when they are sued, they find it necessary to carry their improvement warrant back to the true and real date of the improvement, in order to defend themselves against the warrant of 1793. But' this they may not do; they áre estopped by the date they furnish to the commonwealth, and have abandoned all prior improvement. They might have availed themselves of it, but they chose to abandon it, and they are concluded thereby. This position is abundantly established by the authorities cited in the argument; but in all the eases cited, as in the case supposed, the party estopped was setting up title under his improvement warrant, and the effort was to carry that title back to a period earlier than the date assigned for the commencement of interest. But though this may not be done, may not the party set up another, and a distinct title ? Is he estopped from showing that in another way, and by other means, he has acquired an available title ? I think not. If the defendants were setting up title to this land under their improvement warrant of 1830, this principle of estoppel would apply. But they set up no such title, nor ask to extend their improvement back to an earlier period than that assigned to it in their application. They repudiate that title wholly. They have not brought it into court, and we should not have heard of it if the plaintiffs had not told us. The defendants stand on a distinct and separate title — a possession under the Statute of Limitations. This is a title which is as well defined, and where the necessary facts are proved, is as real and as distinct from the title under an improvement warrant, as any title can be. This title to be available must be founded, as we have seen, in a possession of appropriated lands; an improvement right can only exist in unappropriated lands. An improvement right must be accompanied with a continued intention on the part of the settler to pay the commonwealth; a possession under the statute need not be accompanied with any such intention. An improvement must have an actual resident settlement; a title may be acquired under thé statute by enclosure and cultivation without residence. So there is a real and well-understood difference between a title by1 improvement, and one under the Statute of Limitations.</p> <p>Now, the question is, are the defendants estopped from showing their title under the statute, by their assignment of a wrong date to their improvement,- in the application for their warrant ? €er~ tainly not; for the reason of estopping them has ceased. We saw that reason to be, that they might not be advantaged by a fraud practised on the commonwealth; nor are they, since they have abandoned their warrant altogether. They claim nothing from the commonwealth. They admit she has granted no title to them, and their defence proceeds on the assumption that she has granted all her rights to another. And their fraud, if there was any, imparts no advantage to their title under the statute; so that the reason of the doctrine contended for has ceased in this case, and the doctrine does not apply.</p> <p>It has been insisted on further by the plaintiffs, that they are bona fide purchasers, with notice of an improvement commencing in 1820, and not before; and that they had no notice of the claim which the defendants now make to the land—that they purchased on the faith of the records in the land office, where the defendants had placed their admission that their title originated in 1820.</p> <p>The defendants’ title by warrant is a nullity, because the land was appropriated in 1793; and this, the records of the land office showed to the plaintiffs truly. But, as purchasers of the title under the warrant of 1793, they would not look into the land office for evidence of the defendants’ title under the Statute of Limitations. Concerning this point, they should obviously have inquired of the tenant in possession, and that possession was notice which must affect them now.</p> <p>If, therefore, under the principles of law which have been given you in regard to titles under the Statute of Limitations, you find the necessary facts to make out such a title in the defendants, and the heirs of Edmund Huff, the plaintiffs have shown nothing which in law prevents the defendants from availing themselves of that title, and your verdict should be for the defendants.</p>

Eli Gibbs against Albert Newell and George W. Hollenback. This action originated in a proceeding before two justices of the peace, under the landlord and tenant Act, to obtain possession of a store and dwelling-house in Wyalusing.

William Ross against George Foust. Ejectment for a tract of land. The plaintiff, to maintain the issue on his part, gave the following evidence: 31st of August 1792, warrant to Mary Custard for 400 acres of land in Luzerne county. 27th June 1793, survey to Mary Custard for 401TV acres and allowance.

William Dale against Charles Craig. This was an action of trover to recover the.value of the straw of four hundred dozens of grain, under the following circumstances : The plaintiff leased a farm to the defendant upon the following terms: “This Indenture, made this 29th day of November, A. D. 1837, between William Dale, of Liberty township, Columbia county, of the one part, and Charles Craig, of Oxford township, Warren county, state of New Jersey, of the other part,…

<p>In replevin where the property had been delivered to the plaintiff by the sheriff, the parties on the trial agreed that the jury might find the value of the property and damages in one sum, which was to settle all further claim to the property:</p> <p>Held, that the jury were rightly instructed by the court, that in assessing the damages for the defendant they were not confined to the interest on the value, but might give more, if necessary, to compensate the defendant.</p> <p>When goods are delivered to the plaintiff in replevin on a claim of property, and the plea of property is found for the defendant, the damages for detention consist of interest on the value of the goods when taken, from the time of taking till judgment rendered. But when the writ of replevin is sued out fraudulently and without colour of right, the jury may give exemplary damages, as in case of a wanton and malicious trespass.</p> <p>The defendant in replevin is not entitled to special damages occasioned by interruption in business, in consequence of the property being taken from him under the writ.</p> <p>A sale and delivery of personal property by one in possession contains an implied warranty of title: and on the issue of property between two persons claiming as vendees of the same goods, the vendor cannot be called as a witness, by one, to prove he sold and delivered the goods to him, and not to the other.</p>

Mary Strawbridge against Jesse Funstone. This was an action of assumpsit, in which the question arose whether there was any cause of action laid in the plaintiff’s declaration, which was as follows: Columbia County, ss, Jesse Funstone, late of the county of Columbia, yeoman, was summoned to answer Mary Strawbridge of a plea that he render unto her $475, that he owes and unjustly detains, &c. And whereupon the said Mary Strawbridge, by Joshua W. Comly, her attorney, comes and…

This was an action of assumpsit by Guy Tozer, sheriff of Bradford county, to recover from David Cash and John L. Webb the sum of $4900, bid by them for a tract of land and steam-mill thereon erected.

James Fitzimmons against Samuel Long and Jacob Steinberger. This was an action of account render in which the plaintiff thus set out his cause of action. “ Samuel Long and Jacob Steinberger, late of said county, yeomen, were summoned to answer James Fitzimmons of a plea in account; for that the said James, at the county aforesaid, on the 1st day of April 1832, leased and demised to the said Samuel and Jacob a certain grist-mill, situate in Penn township, Union county…

<p>ERROR to the Common Pleas of Northumberland county.</p> <p>This was an action of ejectment by Isaac Zeigler against Christian Houtz. It was argued in this court by</p>

This was a scire facias sur mortgage, at the suit of William Clyde and Jacob Leisenring, assignees of John S. Heister and Henry A. Muhlenburg, executors of Joseph Heister, deceased, who was assignee of Joshua - Benson, against William Kase, administrator de bonis non cum testamento annexo of Henry Fisher, deceased, with notice to John Fisher and Caleb Fisher, terretenants.

This was an action on the case by David H. Owen against Abner C. Henman, Daniel Coolbaugh and others, in which the plaintiff thus declared: “ Abner C. Henman and others were summoned to answer David H. Owen of a plea of trespass on the case, whereupon the said David H. Owen, by Edward Overton, Esq., his attorney, complains: For that whereas the said plaintiff before and at the time of the committing of the grievance hereinafter next mentioned, was, and from thence hitherto…

William Hibler as well for himself as for the county of Luzerne, against Horace Hoag. This action was brought before a justice for recovery of the penalty imposed by Act of Assembly of the 2d of April 1830, section 2, against hawkers and pedlars, for selling goods by public auction, or outcry.

<p>A vendor cannot maintain an action to recover the purchase money of land, upon a parol agreement of sale, and proof of performance of the contract on his part: but he may recover damages from the vendee on the parol agreement.</p>