Volume 1 — Wharton's Pennsylvania Reports

On a previous day, Price, for himself and Hugh Roberts; and G. L. Ashmead for Thomas Clyde, had obtained rules to show cause why a mandamus should not issue to the Commissioners of the County of Philadelphia, commanding them to draw orders on the County Treasurer for the payment of certain sums of money alleged to be due to the rela.tors, under the following circumstances.

<p>A testator having given the residue and remainder of his estate, real and personal, to J. B. “ his heirs and assigns forever,” charged with the payment of debts, funeral expenses, and certain small legacies, added the following proviso: “ Provided, that in ease the said J. B. doth not return to Philadelphia, from his present intended voyage to South America, or in case ho doth not return to Philadelphia within a reasonable time after my decease, but departs this life without lawful issue, then, and in such case or cases, all my said messuage, lot, and residuary estate, real and personal, intended for the said J. B. shall go to, and I do hereby give, devise, and bequeath the same to A. B. &c., their heirs and assigns,” subject to the same charges: Held,that the proviso was to be taken to refer to a dying without issue on the contemplated voyage; and J. B. having returned from the voyage in the life time of the testator, he took a fee simple in the real estate.</p>

' Appeal from the Orphans’ Court for the County of Philadelphia, in the case of the settlement of the accounts of George Metts, Executor of the Will of Barbara Metts, deceased. Adam Metts died about the year 1797, intestate, seized of a dwelling-house and lot of ground, situate in the Northern Liberties, of the City of Philadelphia, and leaving a widow and several minor children. His widow, Barbara Metts, remained in possession, and made some addition to the building.

Upon a writ of error to the District Court for the City and County of Philadelphia, the case was as follow's. To September term, 1834, an action on the case was brought by George Tryon, Nathan Jones, John Alberger, Joseph B. Norbury, and Joseph Starne, against Daniel H. Miller, Lawrence Shuster, David Woelpper, and Jacob Frick, under the following circumstances : In the year 1822, Jacob G. Tryon was elected sheriff of the City and County of Philadelphia.

. This was a writ of error to the District Court for the' City and County of Philadelphia. In that court, Philip Reigart, trustee of Elizabeth L. Stevenson, brought an action of assumpsit against John Ehler, for the use and occupation of a house in the city of Lancaster. At the trial, the action was marked to the use of the said Elizabeth L. Stevenson.

<p>The public wharf or landing place, called “ The Hay-scales Landing” in the Northern Liberties, of the city of Philadelphia, and the public wharf or landing place on the south of and adjoining Callowhill street, in the same district, were, by the act of the 16th of March, 1819, vested in the board of commissioners of the incorporated district of the Northern Liberties, in trust for the use of the public generally; and neither the district of Spring Garden, nor the township of Penn, nor the unincorporated part of the Northern Liberties, has any right to any part of the value or income of those wharves or landing places or either of them.</p>

Upon a writ of error to the Court of Common, Pleas of Bucks county, it appeared by the record, that James De Normandie brought an action of covenant in that court, against Morris Lancaster, in which he declared upon certain articles of agreement under seal; and the defendant having pleaded “ covenants performed,” &c. the parties went to trial upon this issue. Annexed to the record was a paper beginning thus, “ James De Normandie, 1 v. > Covenant.

This case came before the court upon a certiorari %o the Court of Common Pleas of Bucks County.

This was an appeal from a decree of the Court of Common Pleas of Northampton County, distributing the proceeds of sale of certain real estate, sold by virtue of a writ of venditioni exponas', at the suit of Abraham Jacoby, administrator of the goods, &c., of Elias , Klinker, deceased, against Jacob Klinker.

<p>IN ERROR.</p> <p>1. Where a defendant, who had been sentenced by a Coart of Quarter Sessions, upon a conviction of fornication and bastardy, to the payment of a certain gross sum to the mother of the child, and also to the payment to her of a weelily sum for a certain, term, applied for and obtained a discharge of his person under the insolvent act, it was held that the mother might maintain an action of debt upon the sentence of the Quarter Sessions, to-recover the amount ordered to be paid to her.</p> <p>2, The-defendant in such action having pleaded payment, with leave to give the special mailers in evidence, it was held that the plaintiff was not bound to prove the averment in her declaration, that she had maintained and supported the child during the term, for which the defendant was liable to pay, by the sentence of the court.</p>

Upon a writ of error to the Court of Common Pleas of the county of Montgomery, it appeared that Christian Fritz brought an action of assumpsit, in that court, to November Term, 1833, against Charles Thomas and Merchant Mauls by, administrators of the goods, &c. of George Fitzwater, deceased, to recover the amount of a promissory note for 71 dollars, dated the 30th day of December, A. D. 181§, drawn by the said George Fitzwater, m his life time, in favour of the said…

<p>IN ERROR.</p> <p>1. The owner of a Ground Rent, in fee, is not liable for any part of the taxes assessed upon the land, out of which the rent issues.</p> <p>2. The decision of the president Judge of the Court of Common Pleas, upon an exception to his jurisdiction, under the act relating to Special Courts, cannot be reviewed in this court; it being a matter entirely within his discretion.</p>

<p>A testator directed his executor to convert his whole estate into money, and declared that he forgave certain debts due to him by his sons A. and B., and his sons-in-law, C. and D. He ordered the residue to be equally divided into six parts; and bequeathed one-sixth to a trustee, with directions to invest the same and pay the interest to E. (one of his daughters, the wife of F.) during her life, and the principal at her death to her children; He then added, “ It is further my will, that whatever debts may he due to me and owing from any of my sons or sons-in-law, (except those herein forgiven,) I order to be deducted from the share of such son or son-in-law, whether given direct or in trust; and the neat proceeds only after such deduction he appropriated to the use of such branch of my family.” At the date of the will, F., the son-in-law, -was indebted by bond and mortgage to the testator; after whose death, the land of F. bound by the mortgage, was sold by the sheriff, upon an execution at the suit of a judgment creditor; Held that the mortgage given by F. to the testator, was to be deducted from his wife’s share; and consequently was not a lien upon the land.</p>

Writ of error to the Court of Common Pleas of Northampton county, to remove the record of an action in which Abraham Arndt was plaintiff, and William White, defendant. The material facts appeared to be as follows: Jacob Arndt devised Jo his wife for the term of her life, a brick store, a stone house, and two lots of ground, in the borough of Easton, with remainder in fee to Abraham Arndt, the plaintiff.

This was an appeal from a decree of the Orphan’s Court of Bucks County, in the matter of the settlement of the accounts of Philip Wimmer, surviving trustee of Margaret Swartz, intermarried with John Swartz.

Upon- a writ of error to the Court of Common Pleas of Northampton County, it appeared that Davis Oram, (for the use of John Carey, Jr.,) had brought an action on the case against John Sletor, to April term, 1833. The original writ was issued on the 2d of April, 1833.

Upon a writ of error to the Court of Common Pleas of Northampton county, the case was thus; An action of account-render, was instituted by summons in the court below, to January Term, 1833, No. 57, in which . Michael Odenwelder was plaintiff, and Jacob Odenwelder was defendant, and in which no declaration was filed.

Bailey w.as defendant. The action was originally instituted before an alderman, who gave judgment in favour of the plaintiff, from which the defendant appealed to the Court of Common Pleas. The plaintiff having filed ■a declaration in indebitatus assumpsit for work and labour done, the defendant pleaded non assumpsit and payment, &c.; and the cause came on for trial on the 6th of February, 1834.

This was an appeal by Samuel Yardley, from a decree of the Court of Common Pleas of Bucks County, in the distribution of the proceeds of certain personal property, sold by virtue of a writ of venditioni exponas, in a suit wherein Samuel D. Ingham and John H. IngEam were the plaintiffs and M. H. Snyder was defendant.

<p>IN ERROR.</p> <p>1. A will executed in 1748, contained the following clause: “I give and devise unto my cousin J.T., son of my brother T. T., my messuage or tenement and tract of land whore 1 dwell, bounded by the several courses along the line run to Darby creek; thence down the said creek to the river; thence by the river to the place of beginning.........to him and his heirs lawfully descending from his body, and in default of such heirs, to my right heirs for ever.” In a subsequent clause of the same will, was the following devise; “ I give and devise to D. S. my fishing place, to him and his heirs for ever; and likewise it is my will, that he shall have the help and use of my negroes, M. and H., one month in each year, in fishing time, till they respectively attain to thirty years of age.” Held, that D. S. did not acquire by this clause, any right in the soil on the bank of the river, but merely an easement, or so much use of the shore as was necessary for the purpose of the fishery.</p> <p>2. Trespass will lie by the owner of a fishery, for a direct interruption in the exercise of his right.</p>

<p> IN ERROR. </p> <p>1. A testator devised as follows ; — “ I give to my son, T. N., all my house- and lot situate in Spruce Street, Philadelphia, as soon as he shall arrive at the age of twenty-one years, him and his lawful heirs for ever; and in case of his death, without lawful issue, then said house and lot to be sold to the best advantage, and the amount thereof equally divided among my surviving children.” Held, that T. N. took an estate tail.</p> <p>2. A tenant in tail by indenture of bargain and sale,-dated the 23d of November, 1797, and acknowledged on the 24th of the same month, in consideration of $2218, conveyed the estate to B. and C. his wife, their heirs and assigns, with a covenant for further assurance. By another deed of bargain and sale, dated the 24th of November, 1797, and acknowledged on the same day, A., in consideration of five shillings, and for the purpose of barring the estate tail, &e., conveyed the same estate to B. and his heirs, to the intent and purpose that B. should become tenant of the freehold, and be seized thereof, until a common recovery, with single voucher, should be had, &e., and it was covenanted that A. should, before the end of the next term, permit and suffer B. to sue forth a writ of entry, &e., against him (A.) in the Court of Common Pleas, &c., so that judgment might be thereupon had against him (A.), &c.; and the uses of the said recovery were declared to be, that B. and his heirs should stand seized of the premises, to the use of the said B., his heirs and assigns, &c. On the same 24th of November, A., by letter of attorney, reciting that he was about to proceed on a voyage by sea, appointed two persons his attorneys, to appear for him in the said recovery, declaring the same and the uses thereof as in the last mentioned deed. A writ of entry, sur disseisin, &e., tested the 9th of December, 1797, issued, at the suit of B., demandant, against A., tenant, returnable at the March term following of the Court of Common Pleas'; at which term a common recovery, with single voucher, was suffered; and a writ of seisin, tested the 9th of March, 1798, issued accordingly. On the 19th of December, 1797, B., with C. his wife, in consideration of $2218, conveyed the premises to D. in fee. In an ejectment (instituted in 1829) by the heir in tail of A., against a purchaser under D., it was held, that the second deed was to be considered a nullity; that the first deed was to be taken as declaring the uses of the recovery; and that the recovery was well suffered, and operated to vest the estate in B. and his wife, to the use of their vendee.</p>

Upon a writ of error to the District Court for the city and county of Philadelphia, the case was thus: To June Term, 1833, of that court, Cornelius Conard brought an action on the case against… Held: and the land condemned. A venditioni exponas issued to October Term, 1831, No. 32, endorsed in like manner.

This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of assumpsit, brought by the Bank of Wilmington and Brandywine against William Almond, William Warner, John Torbert, and Lewis Summerl, lately trading under the firm of William Almond & Co. The action was founded on a promissory note drawn by the defendants, Almond, Warner, Torbert, and Summer!, as co-partners under the firm of William Almond & Co., in…

rowning was defendant. It appeared, by the record returned in this case, that on the 2d of January, 1.835, the case was referred, under the act of 1705, to Messrs. Coleman Fisher, Mordecai D. Lewis, and William S. Torr. The next entry on the record is as follows: “ March 6th.

Upon a writ of error to the District Court for the City and County of Philadelphia, the case was thus: Robinson had issued a foreign attachment against Othniel Colescott; and having obtained judgment… Held: that the husband was entitled to the legacy. The reasoning of the judge who pronounced the judgment of the court, is aside from the circumstance of the husband being joined in the suit. Yohe v. Bar-net, (1 Binney, 358,) contrasted with Jamison v. Brady, (6 Serg.

An action of trover was brought to September term, 1832, of the District Court, by Mark Richards, John Hemphill, George M’Clelland, and Tobias Súber, against James Murphy, to recover the value of certain pieces of lumber, alleged to be the property of the plaintiffs, and to have been converted t¡y the defendant.

This was a writ of eRroR to the District Court for the city and county of Philadelphia, to remove the record of an action of debt, brought in that court by Joseph Sims against Alexander Henry, to recover the pénalty given by the 14th section of the act of 13th April, 1791, 'for not entering satisfaction of a judgment in the said court.

<p>IN ERROR.</p> <p>.One died seized.of real estate, leaving three daughters, one of whom, A.,was married to B. By three several deeds the land was partitioned between them; but the deed to B. and his wife, recited, that on the death of her- father, her share descended to B.; . and conveyed one-third to Mm, his heirs and assigns’. After tlie death of B., his widow borrowed money, and gave a sealed note for payment, upon which judgment was entered, and then she died. G., the son of A. and B. becaipe administrator, both of his father and mother, and applied to the Orphanls-Cqurt'for’the sale of the land, as the property of A., to pay her debts. The court !re’fus’ed the application, on the gtound that it was the property of B. The land was afterWardS sold 'by-virtue of proceedings on amortgage given by A. and B.; the 'suit on the mortgage being* against G.as-administrator both of A. and B. The balance of the purchase money, after paying the mortgage, was brought into court, where it was directed to be paid to C. “ admmsfrator, &c., as aforesaidand was received by him. In a scire facias, on the jíiügtnent above mentioned, brought against C., as administrator of A., it was - held, that C. must be taken to have received the money as administrator of A.; and, consequently, that he was liable for the amount to the plaintiff in the scire facias.</p>

This was an action brought by Catharine M'Knight against Alexander Read and Frederick V. Krug, executors of the will of James Gray, deceased, to recover the arrears of an annuity bequeathed to the plaintiff by the said James Gray. A case was stated for the opinion of the court, and the following facts were agreed upon, to be considered in the nature of a special verdict.

<p>IN ERROR.</p> <p>A. the holder of a promissory note, a short time before the failure of the drawer, and in anticipation of that event, sold it to B, who was indebted to the drawer. On the failure of the drawer, his assignees brought an action against B., who set off the promissory note and obtained a.verdiet and judgment; Held, that A. had a right to dis, pose of the note to B. and that the assignees had no cause of action against him.</p>

Writ of Error to the District Court for the City and County pf Philadelphia. An action of ejectment was brought in that court by Lewis Gasper, and Mary his wife, in right of the-said Mary, Sarah Porter, Ann Porter, Rosina Porter, Elizabeth Porter, Mary Ann Porter, Hannah Porter, Joanna Porter, and Emma Porter, against John Donaldson and William Baker, to recover a house and lot of ground situate on the east side! of Delaware Sixth Street, in the City of Philadelphia.

<p>IN' ERROR.</p> <p>1. Mere lapse of time, without demand of payment, is not sufficient to raise a presumption that a ground rent created by a valid deed, has been, released, or otherwise extinguished.</p> <p>2. The lapse of twenty years without demand of payment, is evidence from which a jury may presume payment of the arrears of the ground rent; but such presumption may be repelled by circumstances.</p> <p>-3. A testator devised a small annual ground rent to a servant for life; His executors not being aware of the testator owning such a ground rent, or not finding the person by whom it was payable, paid the amount to the devisee from time to time, as an annuity ; Held, that these payments were not to be considered as a satisfaction of the ground rent pro tanto ; but that the devisee was entitled to recover the arrears.</p>

<p>IK ERROR.</p> <p>A testator, by his will, proved in 1814, devised all his estate to his wife for life, and after her decease, to his five children. In lo25, his widow obtained letters of admin, istration, cum testamento annexo, and, in her character of administratrix, confessed a judgment to the commissioners of Spring Garden, for a certain sum, which, by the statement in the case, appeared to be tor paving done, in 1820, in front of a certain lot, which had belonged to the testator. By virtue of an execution on this judgment, the lot was sold at sheriff's sale: Reid, that the purchaser acquired no more than the life estate of the widow.</p>

<p>APPEAL.</p> <p>A. the holder of a mortgage for $450, by an instrument under seal, assigned the mortgage to B. with condition that if the receipts of a certain theatre should on a certain night amount to $300, B. should re-assign the mortgage to him and pay him whatever the said receipts should amount to beyond the said sum of $300; and if the receipts should be less than $300, B. was to hold the mortgage as security for the deficiency; and if the same should not be paid by a certain time, (one week thereafter), the mortgage was to be considered as absolutely assigned to B., his executors, administrators, &c. B. assigned the mortgage to C., who brought suit upon it and sold the mortgaged premises at sheriff’s sale, the proceeds of which were brought into Court for distribution. Upon an issue directed by the Court, it ivas ascertained that the receipts of the theatre on the night mentioned in the assignment were $155. Held, that the clausfe respecting the absolute assignment of the mortgage was to be considered in the nature of a penalty, against which equity would relieve after the appointed day; and that B. was entitled to receive, out of the money in Court, only the difference between the actual receipts of the theatre and the sum of $300.</p>

This was an action of covenant brought by David C. Skerrett against Edward S. Burd, to recover the arrears of a ground rent; in which a case was stated for the opinion of the Court, as follows: “ John Shields of the City of Philadelphia, being seised in fee of certain messuages, tenements and lots of ground, situate in the half square between Broad street and Juniper street, and Spruce street and Locust street, in the said city, made and executed his last will and testament,…

<p>IN ERROR.</p> <p>1. A testator directed his executors to sell all his real estate, goods and chattels, and to pay the proceeds, together with all the moneys coming to their hands after the payment of his just debts, funeral expenses and legacies, to two persons whom he appointed guardians for his son, and whom he directed to invest the money and to apply the interest thereof to the maintenance and education of his son during his minority, and to pay the principal to him on his arriving at the age of twenty-one years. But in case he should die before his arrival at'that age, he gave the same to the children of a brother and sister in Scotland : in the same clause with the directions to the executors to sell, he declared his will to be that his houses should be rented out “ until the same shall be sold as aforesaid.” The houses were not in fact sold. The son of the testator arrived at the age of twenty-one, and died about a year thereafter, having made a will in which he devised one of the houses to A., “ her heirs and assigns,” and the other to B. without words of inheritance: Held,' 1. That the real estate of the testator was in equity converted into personal, by the directions of his will, and continued so during the minority of the son: 2. That the son was to be considered as having elected to take the houses as real estate, and that B. took only a life estate in the house devised to him. 3. That the election to take as real estate operated as a new acquisition, and not to cast the descent upon him as from the part of his father, and consequently, that the reversion in fee of the house devised' to B. vested in the heirs ex parte materna as well as those ex parte paterna.</p> <p>2. A testator began his will thus, “ I, A. C. C. feel myself in declining state of body, and knowing the certainty of death, and not knowing the time thereof:” after certain bequests he gave to A. “ or to her heirs or assigns one three story brick house in Arch street, No. 63. Further I wish to give to W. C. one other three story house in Arch street, No. 65;” the will concluding thus, and not being signed by the testator : Held, that C. took only a life estate in the house devised to him.</p>

This was an action on the case brought in this Court to December Term, 1832, by Hall Britton, Aaron Wilson and George Ridgeley against Jesse Stanley. Issue being joined on the plea of non assumpsit, the cause came on for trial before Kennedy, J. at the Nisi Prius held in Philadelphia on the 2d of March, 1835, when a verdict was rendered for the plaintiff for one thousand two hundred and seventy-four dollars and fifty cents.

<p>1. In trespass against a sheriff and others for taking the plaintiff’s goods, the defendants may give in evidence under the general issue that the goods were the property of A., at the time of the alleged trespass, and that they (the defendants,) took them under a judgment and execution against A.</p> <p>2. Where such matter is pleaded specially, the court will strike off the special pleas, although they allege that the plaintiff was in possession of the goods by a, bailment from A. for safe keeping, or by a fraudulent conveyance from him.</p> <p>3. Quere, whether an averment of a judgment fbr 86000, is supported by a record showing a judgment entered by the prothonotary, in pursuance of the Act of 1806, by virtue of a warrant of attorney accompanying a bond in the penal sum of 812,000, conditioned for the payment of86000 with interest.</p>

<p>A judgment for costs obtained against an administrator plaintiff in another Court, and assigned by the defendant there to A., cannot be set off against a judgment for damages obtained by such administrator against A. in this Court.</p>

The costs of the plaintiff in this case having been taxed by the Prothonotary, an appeal was taken from his decision. The material exceptions were as follows: 1. To the allowance of the costs of a Bill to perpetuate testimony. 2. To the allowance of “ witness fees” to members of the bar practising in the Supreme Court. 3.

In the Mayor’s Court for the City of Philadelphia, Charles Drew, Elijah Drew, and Elisha Drew were indicted, for that they the said Charles Drew, Elijah Drew and Elisha Drew, “ on the 9th day of September, in the year of our Lord, 1833, at the city aforesaid, and within the jurisdiction of the said Court, with force and arms, feloniously did falsely make, forge, and counterfeit a certain check on The Philadelphia Bank, purporting to be drawn by Joseph G. Parke & Co. for the…

This was an action of covenant brought in this Court by Charles S. Coxe, Francis S. Coxe, and Henry, S. Coxe, executors of the last will, &c., of Tench Coxe deceased, against Benjamin Tilghman and Elizabeth Tilghman, executors of the last will, &c., of Edward Tilghman deceased, upon an agreement under seal dated the 25th day of July, 1806, between Tench Coxe and Edward Tilghman, by which the latter covenanted to purchase certain lands of the former.

This was a writ of error in the Court of Common Pleas of Northampton county.

Upon a writ of error to the District Court for the City and County of Philadelphia, it appeared thatan action of trespass was brought in that Court by Daniel Lafferty against John J. Krider and Joshua Peeling, to recover damages for breaking and entering the plaintiff’s close, &c., under the following circumstances: John Lentz the elder, being the owner of a tract of land situate in the township ofPassyunk and County of Philadelphia, containing 18 acres and 20 perches, on…

<p>Affadavits to hold to bail made by the plaintiff (residing in New York,) and his clerk in Philadelphia, which set forth that the defendant was indebted to the plaintiff in a certain sum “ part of which” was for money lent and advanced by the plaintiff to the defendant, and “ the rest of the principal sum” was due “for the balance which the defendant owes the plaintiff on settlement, in transactions in which the plaintiff, by the defendant’s request, and as his agent, made purchases and sales for the defendant, but in the. plaintiff’s name,-by which he stands indebted to third persons, and the defendant is indebted to him in the said sum; the precise amount and extent of which balance cannot bo stated now, because the defendant suddenly left New York, without coming to any settlement &c.,” and that the defendant, on being required to pay, did not deny the debt or the amount: held to be sufficient.</p>

<p>CASE STATE®.</p> <p>The owner of a large lot of ground situate on the east side of Fourth street, in the City of Philadelphia, granted to A. in fee a part of the same, being a lot 25 feet in front, and in depth about 100 feet: bounded east, by a brick stable, standing in the line of the lot; “ together with the full and free privilege and authority of ingress, egress, and regress, by, through, and upon a 4 feet 6 inches alley, extending in and about 45 feet from 4th street, to be forever left open between the lot hereby granted, and the house now occupied by B.,” reserving a perpetual ground rent, with a covenant by A. to pay the same, and to build within a limited time a good three story brick bouse upon the lot thus granted to him. A. erected a house with back buildings, extending to the eastern boundary of the lot. Several years afterwards, C. purchased the whole of the large lot with the buildings on it, including that occupied by B., but excepting the house and lot belonging to A. The deed to C. described A.’s iotas being one of the boundaries, and contained the following clause, “Subject to the fall and free privilege and authority of ingress, egress and regress, granted by, &c. (reciting the deed to A.) by, through, and upon a 4 feet 6 inches alley along side of the north line of (A’s) lot, and extending in and about 45 feet from Fourth st. to be forever left open between (A.’s) said lot and the house included in this grant, formerly occupied by B.” &e. There was an alley leading into Market street, and another passage into Fourth street, communicating with the stable yard. Held, that C. had no right to continue the 4 feet 6 inches alley to the stable wall, and thence pass from the stable into Fourth street, along the alley on the north side of A.’s house.</p>

This was an action of replevin brought by Charles Jared Ingersoll, Esquire, against Mrs. Elizabeth Sergeant. The defendant avowed for rent in arrear; and issue being joined, the case carneen for trial before Rogers, J. at a Court of Nisi Prius held at Philadelphia, on the 9th of March, 1830, when a verdict was found for the avowant, for #175, rent in arrear, subject to the opinion of the Court upon the whole evidence, upon the merits, without regard to the form of pleadings.

<p>APPEAL.</p> <p>1. A testator after several legacies of bank stock and other stock and money, concluded his will as follows : “ The remainder of my worldly substance, consisting of furniture, bedding, carpets, china, kitchen furniture,looking glasses,and crockery, &c. &c. I give to my two daughters to be divided between them, part of which they are at liberty to sell, if they shall not need them. These with allmoney of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give'to my two daughters, hoping that they may live to enjoy much contentment and happiness.” • The testator, bad several shares of bank stock and other stock, not specifically bequeathed : Held, that they did not pass under the above bequest.</p> <p>2. A testator having two daughters, A. and B..and no other children; and having certain shares of bank stock, bequeathed one-half of the number of shares to his daughter A. who was at that time unmarried; but said nothing respecting the remaining shares. He gave several legacies of other stocks and effects to A. and B., and appointed his nephew C.,' his son-in-law’ D« (husband of B.) and his two daughters A. and B. to be executors. About á month after the probate of the will, A. by ah instrument (not actually sealed) reciting that the omitted shares were believed to have been intended by her father for ner sister B., granted, assigned, &c. the said shares to B. for her sole and absolute property, and requested the executors of her father to transfer them to her. The shares were accordingly transferred by the executors to B.; and in the settlement of their accounts, they'claimed credit for such transfer: Held, on exception to such credit, that in the absence of evidence of mistake or direct fraud or imposition, there was nothing in the relation in which C., the executor, or his wife B. stood towards A., to require the Court to rescind the assignment and transfer.</p>

An action of trespass was brought in this Court by Jabez Bur-chard, assignee of Henry H. Porter, against George Rees, sheriff of the city and county of Philadelphia, James G. Clark, John Hemphill and Mark Richards, to recover damages for taking the goods of the plaintiff.

<p>1. ' The liability of a dormant partner to creditors may be avoided by proof of fraud in the formation of the partnership, if no part of the funds have been received by such dormant partner.</p> <p>2. It seems that a partnership formed by articles ibr a definite period, may be dissolved by either partner before the termination of the period.</p> <p>3. One partner cannot, without the consent of the other, introduce a stranger into the firm, nor can he, without such consent, make the other partner a member of another firm ; but such consent may he implied from the acquiescence and acts of the parties; and if such other partner is made acquainted with the facts, he ought to dissent from the arrangement; otherwise he will be bound by it.</p>

<p>1. In an action against A. B. and C. as partners, to recover the price of goods sold to A., the others being* dormant partners, the defendants gave in evidence a release executed by the plaintiff to A. of all demands, &c. It appeared that-A. had executed an assignment to B. of all his estate, for the payment of creditors, among whom B. and C. were preferred to a large amount, an'd that the release was executed in consequence of a stipulation in the assignment: Held, that the concealment of the fact of the partnership at the time of the execution of the*release, was a fraud upon the plaintiff, which avoided the release*. ' ' /</p> <p>2. In an action against three persons as partners, two of whom only have been summoned, the partner as to whom a return of n. e. i. has been made, is not a competent witness for the other defendants* to disprove the allegation of a partnership having existed, although released by them. .</p> <p>3. A witness called to authenticate a paper, cannot be asked whether to the best of his impression, the paper is in the hand writing of the party.</p>

<p>IN ERROR.</p> <p>1. Tbe want of sea-worthiness in a vessel, at the commencement of the voyage, will be a sufficient defence to the insurers on tbe vessel, although she'arrived in safety at her port of destination.</p> <p>S. Where the question was as to the sea-wortbiness of a vessel, in an action by the insured against the insurer, and there being no contradictory testimony as to the facts, the > judge charged the jury that “if the facts are as stated in the protest, that the vessel began to leak as soon as she began to sail or soon after, and continued to leak up to the1 time of the storm, or any fortuitous accident, and would in consequence thereof have required repairs although there had been no storm, then the law says she was unseaworthy,” it. was held that the law was correctly laid down, to the jury, and that the Court was right in not leaving it to the jury to presume sea-worthiness or otherwise.</p>

This was an action on the case brought by Aaron Vanarsdale to the use of William Stell, trustee of Hannah Vanarsdale, against Samuel Richards, who survived George Billington, assignee of Robert E. Gray. The declaration contained-counts for money had and received, work and labour, &c. and on an account stated, and a special count for mismanaging the trust estate, &c. to the prejudice of the plaintiff.

This was an action of ejectment, brought by The Union Canal Company of Pennsylvania,'against William W. Young, John M'AUister, Junr. Joseph Fox and Philip M. Price, to recover a piece of land containing 135 perches, formerly of William Young, deceased.

Upon a writ of Error to the District Court, for the City and County of Philadelphia, it appeared, that an amicable action was entered to December Term, 1834, of that Court, by Lewis Edwards Humpton against John Wilson Moore and Caleb Peirce, executors of the last Will and Testament of Elizabeth Humpton, deceased; and the following case was stated for the opinion of the Court: “ Richard Humpton, being seised and possessed of certain real and personal estate, died on or about…

An habeas corpus having been issued to the keeper of the Arch-Street prison to bring up the body of William Pember, alias Francis Horner, alias John King, a return was made setting forth four-several sentences on convictions in the Mayor’s Court for the city of Philadelphia, at June Sessions, 1828, on four several indictments tried in that Court; three of them for passing counterfeit bank notes, and one for an assault with intent to murder.

In this case an habeas corpus had been issued to the keeper of the jail of the City and County of Philadelphia, to bring up the body of John Reddill alias John Reading. The return set forth that the prisoner was confined under two sentences of the Court of Quarter Sessions for the County of Philadelphia, on the 8th of June, 1830, on convictions for larceny.

This was an indictment against Francis King, Alfred Hayden, George M‘Henry and John OfRourke, which had been found in the Mayor’s Court for the City of Philadelphia, at December Sessions 1835, and… Held: that flour situated like the present, was not liable to inspection under the laws of that state.

<p>An act of Assembly incorporating certain persons by name, and all others thereafter becoming members, the object of which incorporation was declared to be to receive from time to •time, deposits of money, and to pay the depositors such interest, as might from time to time be agreed upon by the directors, enacted, that for the security of the depositors a certain capital should be raised, to be'divided into shares, which should be transferable, Sze. The act then proceeded to provide for annual meetings o'f the members, and for the election of directors from among the members; gave to the directors power to provide for the admission of members, and made it their duty to appoint from among the members, five persons as a committee of examination, and also to make a dividend of profits and to pay the same over to the stockholders, dr their legal representatives: Held,</p> <p>' 1. That stockholders were not, as such, members of the corporation; consequently that the assignee of a stockholder did not by the assignment become a member.</p> <p>2. That persons originally members, continued to be such, although they never possessed stock or had parted with it.</p>

<p>In the Mayor’s Court of the Gity of Philadelphia, at June Sessions, 1834, an indictment was found against John Alburger, William Bruner, and thirteen others, for a nuisance in the erection of a certain fence and wooden building upon a part of the north-eastern public square in the city of Philadelphia, called the Franklin Square.</p> <p>This indictment having been removed by certiorari, into this Court, the cause came on for trial at a Court of Nisi Prius, held by the Chief Justice, in the city of Philadelphia, on the 14th of March, 1836.</p> <p>It was alleged on the part of the Commonwealth, that the square of ground in question was given to the city of Philadelphia for public use, by William Penn, the Proprietary of Pennsylvania, at the foundation of the city.</p> <p>The defendants were the Trustees, Elders, and Deacons of “The-German Reformed Congregation in the city of Philadelphia,” and' claimed the exclusive right to the occupation of a portion of the said public square, under a warrant from Thomas Penn, the then Proprietary, dated the 18th of June, 1741, a survey made in December, 1763, and a patent granted in the same month and year.</p> <p>On the trial, the Commonwealth gave in evidence certain ancient documents and printed books, after objections made on the part of the defendants, which were overruled by the Court, viz:</p> <p>1. A certified copy from the Surveyor General’s office, of a plan or map entitled “ A portraiture of the City of Philadelphia, &c., by Thomas Holme, Surveyor General,” published in London about the year 1683.</p> <p>2. A certified copy from the same, of the “ List of first purchasers,” with an advertisement, subjoined, upon the situation and extent of the city of Philadelphia.</p> <p>3. A certified copy from the same, of an ancient general plan of the city, remaining in the Surveyor General’s office.</p> <p>4. A certified copy from the same, of Reed’s map of the city.</p> <p>5. A warrant to the German Lutheran Congregation, for a lot of land bounded eastward by “ the public square,” dated April 16th, 1776; and a patent for the same lot to the same, dated August 25th, 1781.</p> <p>6. Part of a note to the 2d vol. of the Law's of Pennsylvania, by Charles Smith, Esq. containing an account of Holmes’s plan, and the list of first purchasers.</p> <p>7. The book of minutes of The Board of Managers of the Pennsylvania Hospital, containing certain instructions from the Proprietaries to the Governor of Pennsylvania, the remarks of the Board of Managers thereupon, and their letter to Thomas Hyam and Sylvanus Bevan, dated 2d of 7 mo. 1752, in answer thereto.</p> <p>8. A printed book called “ Some account of the Pennsylvania Hospital,” dated in 1754, containing the same documents.</p> <p>In the course of their testimony, the defendants offered in evidence the following documents, which were objected to on the part of the Commonwealth ; and the Court refused to admit them, viz:</p> <p>1. A paper purporting to be certified by' Peter Zachary Lloyd, Clerk of the General Assembly, and to be a copy of a report made by the Committee to whom was referred a memorial of the Trustees, Elders, &c. of this church, presented in 1782.</p> <p>2. A paper purporting to be the copy of an opinion of William Bradford, Es'q. on the right of the defendants to the occupation of the ground; dated the 3d of February, 1783.</p> <p>A variety of evidence wras produced on each side, relating to the original plan of the city, the alterations therein, and the acts and doings of the corporation of the city, and the religious corporation represented by the defendants.</p> <p>The defendants finally submitted to a verdict being taken against them on the charge of the Chief Justice in favour of the prosecution on all points, with leave to assign their reasons for a new trial, in order to have the full benefit of their defence in bank; where the cause Was to be considered on the whole evidence.</p> <p>Several reasons for a new trial were filed on the part of the defendants, relating—</p> <p>1st. To the admission or rejection of testimony.</p> <p>2d. To the charge of the Court.</p> <p>The principal topics of the argument being adverted to in the opinion of the Court, it is deemed sufficient to give the authorities cited on each side.</p> <p>On the .part of the Commomoealih:—</p> <p>1. On the questions of evidence were cited Hurst v. Hippo, (1 Dali. 25.) 1 Starkie, 169. ' 2 Starkie, 167. Hill v. West, (4 Yeates, 144.) Shield v. Buchanan, (2 Yeates, 119.) Ross v. Cutshp.ll, (2 Binn. 402.) Blackburn v. Holliday, (12 Serg. SyR. 140.) Lord Sussex v. Temple, (Ld. Rayd. 311.) ■ Sturgess v.. Waugh, (2 Yeates, 477.) Read v. Jackson, (1 East, 355.) Cauffman v. The Congregation, ¿pc. (6 Binn. 59.) Bull. JV. P. 95. 14 East, 327, (note.) Barnes v. Maioson, (1 Maulé Sy-Sel. 77.) Weekes v. Sparke, (Ld. 679.)</p> <p>2. On the question of the title of the defendants, Commonwealth v. M‘Donough, (16 Serg. ¿y R. 390.) Rung v. Shoneberger, (2 Watts, 23.) Western Unioersity v. Robinson, (12 Serg. ¿y R. 29.) Pennant’s Hist, of London, 234. Harper v. Charlesworth, (4 Barn, ¿y Cres. 574.) Justin. Inst. Book I. tit. 6, §1. Cod. Book VII. tit. 38, § 2. 1 Domat. 271, 273. 2 Domat. 174. Erskine’s Inst. 519, 525. Arundel v. M‘Cullough, (10 Mass. Rep. 70.) Nickerson v. Brackett, (Id. 212.) Staughton v. Baker, (4 Mass. Rep. 528.) Weld v. Ham-by, (7 East, 195.) Rex v. Cross, (3 Campbell, 227.) Doe v. Reed, (5 Barn, ¿y Aid. 232.) Goodtiile v. Baldwin, (11 East, 488.) Hylton v. Brown, (1 Wash. C. C. Rep. 204.) Allen v. Lyons, (2 Wash. C. C. Rep. 475.) Penn’s Lessee v. Klyne, (4 Dali. 403.) Commonwealth v. Passmore, (1 Serg. Sp R. 217.) 1 Leon. 190. Chamberlain of London’s Case, (3 Leon. 265.) Rex v. Ld. Grosvenor, (2 Starkie’s Rep. 511.) 1 Wm. Black. 591. 1 Proud’s Hist, of Penn. 169, 242. Howell v. Barclay, (6 Peters’ Rep. 512.) Melbyn v. Whiting, (10 Picker. 295.) Cortelyou v. Van Brunt, (2 Johns. Rep. 362.) Packard v. Williams, (7¡Wheat. 109.) Emerson v. Wiley, (7Picker. 68.) Conn v. Penn, (1 Peters’ C. C. Rep. 514.)’ Blundell v. Caiteral, (5 Barn. <)’ Aid. 268.) Corfield v. Coryell, (4 W. C. C. R. 379.) Kean v. Rice, (12 Serg. SyR. 209.) Arnold v. Munday, (1 Halsted, 71.) Hall’s Case, (1 Ventris, 169.) Kirk v. Smith, (9 Wheat. 282.) Mayor, Spc. of New Orleans v. The U. States, (Sup. Ct. U.S. 1836, MS.) Act of 15th April, 1782 § xi. (2 Smith, 48.) Freytag v. Powell, (District Court Philad. MS.*)</p> <p>On the part of the defend.ants, were cited,</p> <p>1. Act of 31si March, 1823, (Purd. 382.) Biddle v. Shipper,, (1 Tall. 19.) Morris v. Vanderen, (1 Tall. 67.) Packer v. Gonsalus, (1 Serg óp R. 626.)</p> <p>2. 2d. Proud’s Hist. Penn. 41,53. Pennant’s London, 233,4. Watson’s Annals of Philadelphia, 155, dpc. King v. Ward, (Cro. Car. 266.) Newmarch v. Brantley, (3 Swanst. 99.) 2 Seliu. 503, n. Wood-year v. Hadden, (5 Taunt. 126.) Rex v. Lloyd, (1 Campb. 263, n.) M‘Connell v. Lexington, (12 Wheat. 585.) Maclay v. Work, (5 Binn. 157.) Town of Paulettv. Clark, (9 Crunch, 331.) City of Cincinnati v. White, (6 Peters’ Rep. 431.) Maclay v. Work, (5 Binn. 157.) Barter v. The Commonwealth, (3 Penn. Rep. 253.) New York Fire Ins. Co. v. Sturgis, (2 Coioen, 664.) Head v. The Providence Ins. Co. (2 Cranch, 127, 166.) Magill v. Brown, (C. C. U. S. Penn. Pamphlet.) Tuke on Uses, 174. Slat. 43 Eliz. cap. 4, § 6. (2 Rvffhead, 709.) 9 Peters’ Rep. 960. 2 Anslruther, 617. Toe v. Wilson, (11 East, 56.) Roe v. Ireland, (11 East, 280.) 12 Rep. 5. 3 Tow’s Rep. 112. King v. Nevile, (Peake’s N. P. C. 91.) Kingv. Smith, (4 Esp.N. P. 109.) Ricard v. Williams, (7 Wheat. 109.) Barclay v. Howell, (6 Peters’ Rep. 498, 512.) Jackson v. M'Call, (10 Johns. Rep. 380.) Jackson v. Lunn, (3 Johns. Cas. 117.) Beardsley v. French, (7 Conn. Rep. 125.) Mather v. Trinity Church, (3 Serg. dp R. 510.) Somerville v. Holliday, (1 Walts, 514.) Sugden Vend. 480. Crest v. Jack, (3 Watts, 238.) Le Fevre v. Le Fevre, (4 Serg. dp R. 244.) Werkheiser v. Werkheiser, (3 Rawle, 326.) Prevost v. Gratz, (6 Wheat. 491.)</p>

<p>One having large real and personal estates, and whose nearest relations were a brother and the children of a brother and sister, made his will, dated in February, 1830, in which were the following provisions: (1.) He devised a house and lot of ground in France to his brother and one of his nieces, during the life of his brother, and thereafter one moiety to the said niece and the other moiety to six children of his said brother. (2.) He gave legacies of different sums to his brother and nephews and nieces; some of the legacies being to trustees for the separate use of married nieces. [3.) He then gave the residue of his estate to “ the Mayor, Aldermen and citizens of Philadelphia;” in trust for the establishment of a college for orphans, and other public and charitable purposes. In December, 1830, he made a codicil reciting the will, and that he had, since the execution thereof, purchased certain real estate “all which as well as any real estate that I may hereafter purchase,” he added, “itis my wish and intention to pass by the said last willnow I do hereby republish the foregoing will and testament, dated, &c. and do confirm the same in all particulars.” In June, 1831, he' made another codicil, reciting, that since the execution of the will, he had purchased other real estate “ all which as ' well as any real estate that I may hereafter purchase, it is my intention to pass by said willand then reciting that he had purchased certain land near Philadelphia, he declared it to be his intention that the orphan house, &c. should be erected upon this land, . instead of the spot directed in his will, &e. Between the date of this last codicil and his death, he purchased certain other real estate. The legacies to the next of kin were paid by the executors about seven months after the death of the testator. Ejectments were instituted by the heirs, against the City of Philadelphia, to recover the after-acquired real estate, which were decided in favor of the plaintiffs, and possession was delivered accordingly. In ejectment brought by the city, to recover back the same real estate, it was held that it was not a case in which the heirs were bound to elect between the after-acquired real estate and the legacies, and therefore that the city was not entitled to recover.</p>

<p>IN ERROR.</p> <p>1. A house and lot of ground were conveyed, by deed of bargain and sale, to a trustee, his heirs and assigns, in trust to permit S., the wife of J., to take the rents and profits for her separate use as if she were a feme sole, so that the same should not be subject to the debts of her husband; and after her death, to such uses as- she should appoint by will, and in default of such appointment, and in case she should not dispose of the premises at private sale, which she was thereby authorised to do whenever she could dispose of the same to the benefit of herself and children, then to and for the use of such » child or children as she should leave, &c. An action on the case for obstructing a right of way, was brought against J. and S. his wife, and judgment was obtained against both, under which the premises were levied upon by the sheriff and sold: Held, that the purchaser acquired no title.</p> <p>2. Real estate settled to the separate use of S., a married woman, was sold by the sheriff on a judgment against her and her husband in an action of tort, and purchased by A.; who after receiving his deed, commenced proceedings, under the act of 1802, before two justices, to obtain possession. B. the trustee of S., claimed title, and the justices stayed proceedings. B. neglected to prosecute his claim at the next Court of Common Pleas ; and pending an application to the Court to be allowed to file the record nunc pro tunc, an agreement was signed, headed with the name of A. as plaintiff, and the husband and wife, defendants, and entitled as of the proceedings before two justices, and signed by the attorneys for the plaintiff and defendants, and by B. the trustee; by which it was agreed that the question, whether the plaintiff, as sheriff’s vendee, was entitled to possession, should be referred to three gentlemen of the bar ; and if it should be deter, mined, that he was so entitled, B. was to surrender possession without further delay or controversy, &c : The referees awarded that A. as sheriff’s vendee was “ entitled to the possession of the property in dispute.” In ejectment by B. against A. (who had -obtained possession,) it was held, that this award was not conclusive of the title to the premises, so as to prevent a recovery by B.</p>

■ At a Court of Oyer and Terminer held at Williamsport for the County of Lycoming, at November Term, 1835, John Earle was arraigned upon the following indictment: “ Lycoming County, ss.

This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action on the •case for money had' and received, brought by John M‘Leod against George Latimer and Joseph Clark.

This, was an action of ejectment brought in the District Court, for the City and County of Philadelphia, by Michael Freytag against John Hare Powell and George Tickner, to recover “ 27 acres and 157 perches of marsh or cripple land,” situate in Blockley township, in the County of Philadelphia. 1.