Volume 10 — Pennsylvania State Reports

In error from the District Court of Philadelphia. The defendant in error filed a “ copy of deposit certificate” in the court below, in the following words: Virtue, Liberty and Independence. Incorporated 1834. No. 1176. §2000. This is to certify that George Simpson is entitled to Two Thousand Dollars 555, on deposit in the Philadelphia Savings Institution, to he paid to his order on the 25th day of July, 1839, without grace. Philadelphia, May 20th, 1839. N. P. Poor, Treasurer.

From the Common Pleas of Philadelphia. In equity. Jan. 23. This was a bill filed by Thomas Astley Atkins, by his guardian, against the trustees under the will of Sarah H. Astley. The testatrix, after bequeathing certain legacies, gave the residue of her estate to defendants in trust.

Jan. 24. Pickering and two others, on behalf of themselves and all other members of the Monthly Meeting of Friends of Philadelphia for the Northern District, filed a bill, setting forth that one Sheppard died, having made a will, dated in 1800, whereby he gave certain legacies to his children, payable at twenty-one, and the income of his whole estate to the maintenance of his wife and children until they should receive their legacies — remainder to his wife for life; “ and…

In error 'from the District Court of Philadelphia. Jan. 25. Mather and others brought assumpsit against Gillespie et al., and in support of their action gave in evidence the following instrument, which was declared on specially:— #801.97. • . Philadelphia, April 3, 1841.

<p>A. conveyed lands to a trustee, in trust to apply tlie rents and profits to the interest accruing on certain encumbrances, and the residue of said income to A. for - life, and in case he should leave a widow, that the trustee should, out of the said balance, or nett revenue, income, and proceeds of the said yearly rents, pay said widow an annuity of $1,000 yearly during widowhood, which should be in lieu of dower, &e., and the residue of said rents and profits to third persons. A. died, and the rents and profits during certain years were insufficient to pay the interest on the encumbrances and the annuity: the widow is entitled to the arrearages out of the rents accruing during subsequent years.</p>

Dec. 16. Rude for a mandamus. The petition of T. Aspden set forth that he was the executor of John Aspden and a claimant in that right of a fund in litigation, but that no part of his testator’s estate had come or was likely to come into his hands for a long period.

In error from the Common Pleas of Philadelphia. Jan. 29. Assumpsit on the common counts. The plaintiff, who was a constable in Philadelphia, proved that the defendant had offered him a reward of f>100 for the arrest of one M. Crossin, against whom warrants had been issued on a charge for obtaining goods under false pretences. Under one of these warrants M. Crossin was arrested, in Philadelphia, by plaintiff’s deputy.

<p>An order to quash a foreign attachment is not the subject of a writ of error: for the affidavits on which the order was made are not part of the record. And where an order is made on extrinsic evidence, the presumption is, that in a court of record all things were rightly done.</p>

<p>Under the general issue, without notice of special matter, defendant may prove that the work was done in an unworkmanlike manner.</p>

In error from the Common Pleas of Philadelphia. Jan. 31. The plaintiff brought an action for damages by a mob, and was offered as a witness to prove what clothing she had in her room when destroyed by fire; also, the articles she had in her chests, trunks, drawers — her cooking utensils, delf-ware and things in her basket and chest, and their value. The court admitted her, on a general objection.

In error from the District Court of Philadelphia. JPeb. 1, 2. There were four cases argued together, and involving the same principles, with one exception, which will be noticed. Three of them were actions on notes drawn in 1846, by Henry W. Andrews & Co. in favour of plaintiffs, and one on an endorsement of a note by the same firm.

Feb. 5. Assumpsit for money had and received. The plaintiff was the administrator of Dorr, and brought this action to recover the value of certain goods purchased of Dorr by defendants. It appeared that Dorr had made a purchase of goods from defendants, and taken credit on his books for the price of the goods, for which this action was brought, the balance having been paid in cash.

In error from the District Court of Philadelphia. Feb. 6,7. This was a foreign attachment against William Sidney Warwick, and Claggett, in which the Bank of the United States was garnishee. To a scire facias against the garnishee, the bank pleaded nul tiel record, and the court gave judgment against them.

In error from the Common Pleas of Philadelphia. Tel. 8. The question was, whether, after a discontinuance of an appeal, by plaintiff, from a judgment of a justice, he could maintain an action on the judgment? Parsons, J., decided the action would lie.

From the Nisi Prius. Feb. 9. The action was brought oh a covenant by defendant, that she was seised in fee-simple, contained in an indenture conveying the land to plaintiff.

In error from the District Court of Philadelphia. Feb. 12. The plaintiff issued a scire facias on a mortgage given for the purchase-money of land conveyed by him to defendant, by deed with special warranty. The defendant set up a mortgage given by the former owner of the land.

Feb. 12. Case stated as on a bill and answer. The complainant claimed under the following clause in the will of Pratt: “ Item, I do give to my executors, hereinafter named, and the survivors or survivor of them, and the executors and administrators of such survivor, an annuity or yearly'sum of $600, to be paid to Sophia Pratt, the widow of my deceased son Edmund Pratt, in quarterly payments, during all the term of her natural life, if she so long remain his widow unmarried.”…

Mr. 13. Case stated. Testator, by the second clause of his' will, devised certain lands, for wbicb the present action of partition was brought, to his son,- Harvey Beck, for life, and after his death to such of his children as should he living at the time of his decease, and the issue of any deceased child.

Feb. 13,-14. This was an ejectment by one of the heirs of Thomas Bradford the elder; and the question was, whether a will of said Thomas, dated in 1821, and which had been revoked by a will made in 1824, had been subsequently revived by the cancellation of the will of 1824, and whether the parol evidence offered was admissible or competent to rebut the presumption of an intent to revive it.

In error from the District Court of Philadelphia. Feb. 15. This was an action on the case for a nuisance. Plea, not' guilty, and justification that the injury was consequent on the grading of Penn street, under the act of Assembly. The facts material to the questions arising on the record were as follows: The plaintiff proved that she occupied the premises bounded by an alley, and also a boat-yard and wharf adjoining, to which access was had by the alley.

In error from the Common Pleas of Philadelphia. On an issue of devisavit vel non, to test the validity of a writing purporting to be the will of Houston, it appeared that the instrument in question was written upon several sheets of paper, fastened together by a piece of tape, and signed by testator at the end thereof, with a seal affixed.

Isr error from the Common Pleas of Philadelphia. Feb. 16. The plaintiff in error was lessee of the defendant; and it appeared from the proceedings before the justices, under the act of 1825, had quitted the premises without leaving sufficient goods, or giving security for payment of the rent. After proceedings commenced, and before judgment, the tenant tendered ample security for the rent, which the landlord refused.

In error from the Common Pleas of Philadelphia. Feb. 19, 20. The plaintiff in error was an endorser of a note, and it was proved that defendant requested that the note should not be protested; and found by the verdict, that on the day it matured he waived the protest. His honour, Jones, J., told the jury, under such circumstances, he was liable, without a demand on the maker.

<p>Evidence of the contents of a placard posted up in a bank, offering to make collections on certain terms, is admissible, when the president after notice to produce did not account for it, in an action against the bank for negligence in failing to make a collection, without proof that the plaintiff read it and acted on its faith.</p> <p>Parol evidence admissible to explain the meaning of short entries in a hank-hook, in an action against the hank.</p> <p>Where a bank received for collection a note payable in another state, under an agreement to collect it for 7 per cent., and neglected to give information of non-payment, and to return the note to the depositor within a reasonable time, they are liable to an action.</p> <p>And if, at the time of the trial, the note is barred by the statute of limitations, and the hank has never until then returned it to the depositor, and there is no evidence of the insolvency of the maker, the measure of damages will he the amount due on the face of the note, with interest, less the 7 per cent, to be paid for collection.</p> <p>"Where, under a count for negligence in not collecting, the case has been tried on the merits without objection, and the recovery was on the ground of neglect to inform the depositor of the non-payment, and to return him the note: the variance cannot be objected in error.</p>

<p>Tile patentee of a look assigned his- right, and received as a consideration certain Ronds of Ms assignees. At the same time he gave them a covenant that he had a right to the letters patent, and that if any person should establish a lawful right to the invention, the Ronds should Re void, and that no recovery should be had on the Ronds until the suit that might Re then depending, should be determined in his favour by the decree of a lawful oourt. In a suit on the Ronds, the obligors cannot set up the invalidity of patent as a defence.</p>

<p>Certificate from the Nisi Prius.</p> <p>March 7. The defendants were owners of the schooner Ninetta, on hoard of which certain sugars were shipped from Louisiana, consigned to the plaintiff at Norfolk, Ya. The vessel having sprung a leak, and being otherwise injured by stress of weather, the captain put into St. Thomas as a port of refuge. The usual surveys were had upon the vessel, and repairs recommended. Shortly after the arrival of the vessel there, the cargo, consisting of hogsheads of sugar, was landed. A survey was then called by the captain upon the cargo. The surveyors reported that seventy-one hogsheads were “ damaged by sea-water, all which they recommend forthwith disposed of at public sale, for account of whom it may concern.” The sale was accordingly made in March. At'a subsequent period the residue of the cargo was disposed of by the captain, and the proceeds of the whole cargo applied to the payment of the repairs.</p> <p>The defendants accounted to the plaintiffs for the market value at the port of destination of the sugar admitted to have been sound, and for the nett proceeds of what was alleged to have been damaged. The question was, whether they were liable for the market value of the whole cargo at the port of destination. The plaintiffs gave evidence that eleven of the seventy-one hogsheads sold in March, were purchased to be shipped to Boston; the remaining sixty hogsheads were purchased and brought to Philadelphia, where they were sold on the wharves, after examination, and purchased as sound sugar. The forty hogsheads of sound sugar were taken to Baltimore, and a comparison of accounts showed that the weight of the two parcels averaged the same.</p> <p>The defendants proved by one of the surveyors that they examined the hogsheads, taking out the heads, and found a quantity damaged, which they recommended to be sold, and that the sale was fairly made at auction. He also stated that there were a number of vessels there, seeking cargoes for the United States.</p> <p>His honour, Bell, J., instructed the jury, that the question for them was, whether the captain was justified in making the sale. “ This power to sell a cargo, by a master of a vessel, is an extreme one forced upon the master (who does not represent the owner) by mere necessity. To sell is the last thing which ought to be done, and then it is only permitted because most to the advantage of the owners. It is not every case of partial injury which will justify a sale: the cargo may be partially injured, and yet the market may be such as to render a sale improper. The extent of the power'of a master to sell a damaged cargo is thus well expressed: ‘ Where the cargo is damaged to such an extent, that to carry it to the port of destination would endanger the ship, or it would be probably worthless on its arrival, it is the duty of the master, exercising a sound discretion for the benefit of all concerned, but especially the shippers, to sell it where the necessity arises.’</p> <p>“Now, was the sugar in question injured to this extent,.or did the captain, acting bond fide, honestly, and with an eye single to the benefit of the owners, believe it to be so injured, and proceed accordingly ?</p> <p>“ In these cases, something must be confided to the discretion of the master, under the emergencies which have occurred, and, in a doubtful case, a bond fide exercise of this discretion will protect him, though it be shown he might have acted more beneficially. So where surveys have been properly held by competent and impartial persons, who find the goods damaged, and on this ground recommend a sale, this, in a case of doubt, though it is by no means conclusive, ought to weigh in favour of the action of the master, on a question of the necessity of the sale.</p> <p>“But, in a case where it is clear no such necessity existed, the allegation that the master acted bond fide, and in the honest exercise of his discretion, or in pursuance of the advice of surveyors selected by himself, or his agent, will not protect him or his employers.</p> <p>“ Under these rules, it is a question for your consideration and determination, whether such a case of extreme necessity existed in this instance.”</p>

In error from the Common Pleas of Philadelphia. March 8. Case stated. The plaintiff, on the 28th February, 1842, demised a house to defendant, for one year from the 1st of May ensuing, at a yearly rent of $300, payable quarterly. On the 2d November, 1842, the tenant filed his petition in bankruptcy, and was decreed a bankrupt on the 30th December of the same year. In June, 1845, he was discharged as a bankrupt, and obtained his certificate.

In error from the District Court. March 8th. The plaintiff brought assumpsit against the administrator of Heberton, and declared for money had and received. Subsequently, he filed four additional counts, setting forth that Heberton in his lifetime was a partner with Abbott, and received goods of the plaintiff to be sold on his account.

<p>Twenty years’ adverse user of a way under claim of riglit is sufficient to authorize the presumption of a grant. And that it was adverse may be presumed if the user was notorious and in the ordinary manner — and not under circumstances showing it to have been by leave and favour, or by the courtesy of the owner.</p>

<p>In error from the Common Pleas of Philadelphia.</p> <p>March 9. Assumpsit. Plea, the statute of limitations, replication, assumpsit infrá, &c. The evidence was the defendant’s sworn petition for the benefit of the insolvent laws.</p> <p>In the accompanying schedule was the following :—</p> <p>“It. F. Christy, borrowed money, $75.”</p> <p>Parsons, J., directed a verdict for defendant.</p>

In error from the District Court of Philadelphia. March 9. Sarah Forrest and others being seised of lands by devise, -subject to an annuity, conveyed the premises now in question to Fisher and Fox, in trust to let the premises and receive the rents, and, after paying taxes, with the residue to pay a certain part of the annuity above mentioned; or to sell and dispose of the premises, and to convey to the purchasers in fee-simple; “and, if sold during the lifetime of the…

<p>In error from the District Court of Philadelphia.</p> <p>March 9. The plaintiffs filed a mechanics’ lien, and issued a scire facias, on the trial of which they were nonsuited by the court. They then filed a second claim for the same demand, and the defendants pleaded to the scire facias, the former judgment and the pendency of the former claim. But the court decided these were no defence.</p>

<p>A sale of a lot by a plan on which a public street is laid out as one of the boundaries, and a conveyance describing the lot as a lot on W. street, as the same shall be opened, and bounded on the south by W. street, does not create a covenant on which the grantors are liable, where the street was subsequently vacated by legislative authority, and the grantors entered upon and occupied the land over which it was laid out.</p>

IÑ error from the Common Pleas of Philadelphia. March 12. This was an. action against the sheriff, for the penalty for demanding and receiving illegal fees. In the sixth count, the plaintiff averred he had demanded and taken $6 as fees for services other than those expressly provided for by the act of Assembly. The facts proved were, that an execution issued against the present plaintiff; and the debt and costs demanded were paid.

<p>In error from the Common Pleas of Philadelphia.</p> <p>March 12. The plaintiff having obtained a judgment, issued a fi. fa. and a Uberari, which the sheriff returned, that he had given possession of the premises. The plaintiff then brought an action for a false return, and proved that the premises were held, at the date of the return, by a tenant, under a demise for five years from the defendant in the execution, commencing before the date of plaintiff’s judgment. The sheriff did not put plaintiff into actual possession, but gave notice to the tenant to pay him the rent.</p> <p>Parsons, J., instructed the jury, that actual possession, under the circumstances, could not have been given; and, therefore, the. sheriff should have made a special return of the facts. If, then, the return was not according to the facts, and possession was not delivered, the sheriff was liable.</p>

<p>From the Orphans’ Court of Philadelphia.</p> <p>March 12. Carter having settled his distribution account, as administrator, and the auditor’s report having been confirmed, a motion was made on behalf of the distributees, that he should pay over their shares, or show cause why an attachment should not issue.</p> <p>In his answer, the administrator alleged there were debts due him by two of the distributees; but the court made the rule for the attachment absolute.</p>

In error from the District Court of Philadelphia. March 12. The ancestor of the plaintiff below, having erected a wall on his land, thirteen inches in thickness, conveyed part of the land on which it stood, viz., three inches in width in front, and two and a half inches in width in the rear, to the defendant. The defendant erected a house on his adjoining land, and, in order to rest the joists in the wall, broke into it beyond his boundary-line.

From tbe Common Pleas of Philadelphia. March 13. In 1836 Mrs. Yanarsdall filed a petition in the Common Pleas, setting forth, that in 1818 Gray made an assignment, for the benefit of creditors, to Billington and Richards; that petitioner was a creditor of Gray ; that Billington was dead, and Richards had never filed an account; and prayed a citation to compel a settlement.

<p>A consignment, coupled with an order to transmit the nett proceeds of the shipment to A., a creditor of the consignor, is an appropriation of the proceeds. And where the consignee deducted his general balance, and invested the balances arising from the shipment, and due on former account, in a return cargo, A. is entitled to the whole of the proceeds of such cargo, not exceeding the amount which had been appropriated to him.</p>

<p>In error from the District Court of Philadelphia.</p> <p>March 14. Hopkins, being the owner of a lot, entered into a contract with Waters to erect a house on the premises, and, by the agreement, Waters was to have the benefit of the party-wall on the east, “ and may dispose of the same for his own profit.”</p> <p>Hopkins conveyed to Todd, without notice of this agreement. Stokes, the adjoining owner, used the party-wall on the east, and Todd brought this action, which was turned into a cáse stated.</p> <p>The court gave judgment for defendant.</p>

<p>In error from the Common Pleas of Philadelphia.</p> <p>March 14. Assumpsit. The plaintiff gave in evidence, under objection, a copy of proceedings before a justice of the peace of Posey county, Indiana, wherein judgment was confessed by defendant. The justice certified, under his hand and seal, that this was a correct and complete copy, from his docket, of the proceedings and judgment. The clerk of the Posey Circuit Court certified that the signature was genuine, and the person signing was a justice of the peace; and the president judge attested the signature of the clerk.</p> <p>Campbell, J., admitted the evidence.</p>

In error from the District Court of Philadelphia. March 14, 15. Case stated. Testator, by his will in 1828, directed the proceeds of his estate should be divided into three parts, one of which he gave to his wife, and directed two to be invested for the use of his son James.

<p>In error from the District Court of Philadelphia.</p> <p>This was an action on an alleged contract of indemnity. The declaration also contained the common counts.</p> <p>Morris, Hollingshead & Co., of Philadelphia, having goods in the hands of Hoffmans & Co., of Baltimore, gave an order for their proceeds to a firm in the latter city, styled E. E. Brady & Co., composed of the plaintiff below and one William Stockton. The object of this order was a matter of controversy. The plaintiff alleged that it was given by Morris, Hollingshead & Co., to secure his brother E. E. Brady, who was endorsee on certain drafts accepted by them, and then held by the firm of Thomas & Martin, of which the defendant below was a member. The defendant alleged that it was given by Morris, Hollingshead & Co., who were then in difficulty, to cover said goods or their proceeds from the creditors, and not for the purpose alleged by the plaintiff.</p> <p>E. E. Brady, the plaintiff, received said order, and by means of it obtained from Hoffmans & Co. two notes, the price of said goods, which he procured to be discounted and claimed to hold the cash proceeds for the security of his brother. But Morris, Hollingshead & Co., alleging that he had not received them for that purpose, demanded them, and the plaintiff was about to give them up, when the defendant below, fearing that his firm could not otherwise procure payment of the drafts held by them, requested the plaintiff to pay the money in his hands to said firm on account of those drafts, and in relief pro tanto of the liability of F. E. Brady, his brother, and agreed to indemnify him against loss. This was done. Stockton, the plaintiff’s partner,was not informed of the transaction, nor of any part of it. The order, though in the firm’s name, was received by the plaintiff, the notes were obtained and discounted by him, the proceeds paid over by him to the defendant, and the indemnity given to him alone.</p> <p>Bex et ah, claiming to be assignees of Morris, 'Hollingshead & Co., subsequently brought an action of trover against the plaintiff for the notes given by Hoffmans & Co., and recovered damages equal to the principal and interest due upon them. That action was brought against the plaintiff and his partner, Stockton, as E. F. Brady & Co., but Stockton was not served with process, and the judgment was satisfied from the funds of the plaintiff alone.</p> <p>This recovery being had by Bex, the present suit was brought on the indemnity. During the trial, the court admitted Stockton as a witness for his co-partner, the plaintiff.' This was assigned as error. The court also refused to admit a letter from the plaintiff to Bex, offered by the defendant as evidence tending to show that no promise of indemnity was made. This was also assigned as error. This letter had been written after judgment was rendered in Baltimore against the plaintiff below, who was defendant in that action, offering to pay to Bex $1000 in compromise, which he, the plaintiff, was “satisfied to lose,” but making no mention of any indemnity. Before the letter was written, Thomas had denied the indemnity.</p> <p>The other questions arose under the charge of Findlay, J., who instructed the jury that if the money paid by the plaintiff to the defendant’s firm, on account of the drafts drawn by his brother, was paid under a mistaken belief either that the order given was to secure the brother, or that there was an agreement by Thomas, the defendant, to indemnify, he could recover it back under the count for money had and received, though there was no contract of indemnity. He also instructed the jury that even if they found that the order was given to cover the goods from, creditors, that the fraudulent character of such a transaction would not taint the subsequent contract of indemnity, if one were proved.</p> <p>The points raised are stated in the arguments of counsel.</p>

<p>An accepted order for the delivery of goods, requires a consideration to make it binding on the drawer before a delivery, pursuant to the order without notice.</p> <p>And in an action for goods sold, such an order having been pleaded as a set off by the payee, the drawer is a competent witness to prove it was given without consideration.</p>

<p>A bill for the discovery of assets,' &c., lies against a corporation under the act of 1836. But such a bill can be filed only by a sequestrator appointed under ‘ the provisions of that act.</p>

<p>In error from the Common Pleas of Carbon.</p> <p>March 20. In November, 1845, the plaintiff entered a rule of reference, and obtained a,n award for $132. The defendant appealed, and the plaintiff obtained a verdict for $129. The court entered judgment without costs accrued since the appeal.</p>

In error from the Common Pleas of Monroe. March 21. The questions in this cause resolved themselves into one. It was an issue directed by the creditors of Peter Serfoss, to determine whether a judgment confessed by him to his father in 1843, was fraudulent. It was proved that at that time he was indebted in a trifling sum.

From the Common Pleas of Montgomery. March 26. The questions in this case arose on the distribution of the proceeds of a sheriff’s sale of land. The funds were awarded to certain mechanics’ liens, and the objections were taken by a judgment-creditor. To the claim of Bean & Ullman, the objections were — 1st. That the name of the owner was not set forth in the. claim. It was entitled against Joseph M. Harper, and the bill annexed was in that name.

In error from the Common Pleas of Montgomery. March 27. Debt by Scholl, to the use of his wife, on a bond taken by Mm, in right of his wife, to secure her share of the valuation of certain real estate, accepted by an heir, under proceedings in partition. In 1845, Scholl assigned this bond to Goodshalk, without consideration ; and, in the same year, the obligor paid Goodshalk the amount due thereon, under an agreement to refund it, if it was not lawfully due to him.

In error from the Common Pleas .of Montgomery. March 26. Schneider, having obtained a judgment, issued a fi. fa., under which a levy was made on “ 11 acres of land of (defendant), the improvements are, &c.” At the sale, Schneider became the purchaser, and was so returned by the sheriff; but he refusing to comply, the land was sold under another execution, and this action brought by the sheriff for the difference.

<p>Certiorari to the Quarter Sessions of Montgomery.</p> <p>March 27. The case is fully stated in the opinion of this court,</p>

<p>In error from tbe Common Pleas of Montgomery.</p> <p>March 28-9. Tbe main question in tbis case was, whether the defendants had acquired title to certain fixtures, consisting of machinery for spinning cotton yarn, purchased by them at a sheriff’s sale, under a fi. fa. On the trial, it appeared that certain land, and a factory, in which was the machinery now in question, were conveyed to Waters and Gr. M. Hill, in 1836. Their estate was bound by several mortgages and judgments held by Harvey, et. al., and by the Montgomery County Bank. , In 1839, writs of fieri facias against Waters & Hill, upon these judgments, were left with the sheriff, who levied upon the machinery, and sold it, in January, 1840, to Freedley & McCredy, for $10,050, which was paid. In February and March, 1840, and before the machinery was severed from the freehold, and removed from the premises, of which FreedleyJ & McCredy had the possession, Waters & Hill conveyed their estate in the land and factory to J. Lynd. This title was divested in 1841, by a sale under a prior mortgage.</p> <p>In April, 1840, Lynd gave notice to Freedley & McCredy to quit possession, and shortly afterwards commenced an ejectment. Pending this suit, Lynd died, and Mitchell was substituted, as his devisee in trust and executor. In 1843, a recovery was had.</p> <p>Pending this ejectment, Freedley & McCredy, in 1840, removed from the premises, and took with them the machinery and other fixtures, constituting the factory, which they had purchased at the sheriff’s sale.</p> <p>The present action was trespass, brought by Mitchell, executor of Lynd, and the declaration was: 1. For mesne profits; 2. For mesne profits and for injuries done to the building, and taking away the machinery; 3. For breaking the close, and taking the goods of the plaintiff, viz., the machinery; 4. For taking the goods of the plaintiff, viz., the machinery; with counts laying like injuries to the property of the plaintiff’s testator.</p> <p>As a defence to the taking of the machinery, the defendants relied on the sheriff’s sale, which they alleged was made with the assent of Waters & Hill. It was shown that Gr. M. Hill, one of these partners, never attended at the mill; but his brother, Peter Hill, was there as agent for the firm, and assisted in conducting their business.</p> <p>The defendants further proved, by the sheriff and others, that the levy was made with the assent of Waters, who also caused certain of the machinery, on a part of the premises out of the county, to be brought over and included in the levy; that the sale was made in the presence of Waters, Peter Hill, and Lynd, and that no objection was made at the time.</p> <p>They further proved, that P. Hill urged an increase in the bids, and that, after the sale, Waters had expressed his hopes of being able to obtain money to redeem the property.</p> <p>The plaintiff contended this was not such an assent as was necessary to validate the sale under a fi. fa., and that thero were circumstances of fraud which avoided the supposed assent. To prove this, he called</p> <p>Peter Hill, who stated, that as soon as he heard of the execution, he called on Freedley, the attorney for the bank, who said it could not be stopped, or some one else would take the property from them; that he thought of but one way, and that was, for the bank to buy it in, and let Waters use it; that he then went with Freedley to Thomas, the president of the bank, and there repeated the conversation. Thomas said, the payments might be one-fourth, yearly; and it was agreed the bank should purchase on these terms, if Waters & Hill assented. Nothing was said about the price. That the final arrangement was, that the bank should buy, and give them four years to pay it in; that he informed Thomas he had told Waters they would buy, without limit. At the time of the sale, Thomas and Freedley attended, as a committee on the part of the bank: when the bidding reached $10,000, Thomas informed •witness, that was their limit; he remonstrated, but got no answer. McCredy, who had declared they should have the same terms as those offered by the bank, in case he purchased, declared he would bid no more; upon which Freedley bid $10^050, and it was knocked down to him. The fact that Freedley was bidding for the bank, was communicated to several bidders. The next day, Freedley informed him the bank would not comply with the arrangement, and that he and McCredy had taken the purchase together. On the 6th of February following, Freedley offered to transfer his right to Waters & Hill, on the terms of paying the expenses incurred in carrying on the factory; give approved paper for the price bid at the sale, and secure the debt due the bank by Waters & Co.; and allowed them a week to accept the proposition. This fell through. The witness further stated, that Waters & Hill had never assented to the sale on any other terms than those originally proposed.</p> <p>It was also in evidence, that Waters & Hill were not informed by Freedley, that the fixtures could not be sold'under a fi. fa., but it did not appear that any questions were asked, or anything said on the subject.</p> <p>In answer to this, the defendants read several letters written by Peter Hill, after the sale, as agent for some one, showing that he was in treaty for means to make arrangements with Freedley and McCredy for the machinery. They also proved, by the minutes of the bank, the appointment of committee to purchase, the machinery, and that they were limited to $10,000. That after the sale, Freedley offered the purchase made by him to them, which was refused.</p> <p>The points made by the plaintiff were, that the machinery, being part of the realty, could not be sold under a fi. fa. That there was no evidence of such an assent by Waters & Hill, or by Lynd, as authorized a sale by the sheriff. That the extent of the defendants’ equity was the amount paid by them at the sale.</p> <p>Krause, P. J., instructed the jury — Was there such an arrangement between Hill and the bank as would authorize Waters & Hill to hold them to their terms. Neither the president nor attorney could bind them without authority; and there was no authority shown but what appeared on the minutes. If the bank refused to accept the purchase by Freedley, he became an independent purchaser, and was not bound to carry out the arrangement between Hill and the bank. If Waters & .Hill gave their assent that the machinery might be sold, as they might do, that made a severance' and turned it into personalty. Whether they gave such assent,- and whether Lynd was present and knew the terms, was for the jury. That, as Freedley was acting as attorney for the bank, in a hostile position to Waters & Hill, they could not expect anything from him but friendly advice. But, though the court could see no evidence of fraud, that was for the jury. If Waters & Hill were dissatisfied with the sale, they should have applied to the court to set it aside, while it appeared they entered into a correspondence after the sale, to enable them to retain the property. But, if there was fraud, Lynd could not take advantage of it; for he bought after the sale, with full knowledge: nor could he complain of the sale; that was for the defendants in the execution. He further said, there was evidence of such an assent as would authorize the sale.</p> <p>A question was made on the trial as to the time the defendants were liable for mesne profits.</p> <p>Pending the ejectment, the defendants, having received notice to quit, left the premises. The court said the plaintiff was entitled to recover up to that time. The plaintiff contended that he was entitled up to the date of the recovery of judgment in the ejectment.</p>

From the Orphans’ Court of Bucks. March 30. Petition for partition, there being six heirs. The inquest divided the land into thirteen purparts; an exception was filed, “ that the inquest have divided the property into more purparts than there are heirs.” Upon this, the court set aside the inquisition.

In error from the Common Pleas of Montgomery. March, 30. Ejectment by O’Brien and wife, for lands devised to the wife for life. The wife disclaimed the action, and the defendants offered to show that the plaintiff and his wife were living separate and apart by reason of ill treatment by the husband, and that proceedings for divorce on those grounds were pending. The court rejected the evidence.

In error from the Common Pleas of Montgomery. March 30. Case stated. Testator, by his will, dated in 1839, bequeathed “ one-fifth part of the residue of my estate to the children or legal heirs of my brother, David Sorver, in equal share alike.” David Sorver died in 1816, leaving six children. One of these died in 1826, leaving one child, who died after testator.

<p>April 2. Petition for a mandamus. The question arose under an act of Assembly, passed in 1847, providing that the qualified electors of the county of Delaware should determine by ballot, at the next general election, whether the seat of justice should be continued, as at present, or be removed to another place, and directing, that in the event of there being a majority for the change, the commissioners should determine the exact location for the new public buildings, and proceed to erect them. The petition set forth that there was a majority for the change, and prayed a mandamus accordingly. Two of the commissioners returned they were willing to act if required by law, but that doubts had been expressed as to the constitutionality of the act. They therefore submitted themselves to the order of the court.</p>

In error from the District Court of Philadelphia. April 2. Trespass. The defendant below justified, under an execution against Ensign, and the question was, whether certain paper, which had been attached at the storehouse of Ensign and sold, was his property.

1st error from the District Court of Philadelphia. April 2. Dréw built a house adjoining a vacant lot, and conveyed it to Hanna, together with the building appurtenances, &c., in the usual form. After the conveyance, Gilbert built a house on the vacant lot, and used the party-wall erected by Drew, one half of which stood on Gilbert’s land.

From the Orphans’ Court of Philadelphia. E. Tyson, by her will, proved in 1845, bequeathed to “ my sister, Hannah Tyson, intermarried with Charles Tyson, the interest of the sum of five thousand dollars (now secured, &c.), to be paid to her in equal half-yearly payments, yearly and every year during the term of all her natural life; the said principal sum of $5,000 to be kept at interest on satisfactory security, by my executors, during all said term.

In error from the District Court of Philadelphia. April 3. Caspar Sylvius died in 1793, seised of certain real estate. His heirs were three sisters, Joanna Hartman, Anna Sabina, Catherine Sylvius. Anna died abroad, and her' estate descended on her two sisters. Catherine Sylvius had two sons, Conrad and Henry Goeble, by her first husband, and three ’ daughters, Catherine, Louisa, and Dorothea Pilaster, by her second husband.

In error from tbe Common Pleas of Philadelphia. April 3. Assumpsit on a special contract, that plaintiff would build a barn for defendant for $200, and that defendant would furnish the materials; averring that, when it was nearly completed, defendant neglected and refused to furnish the materials, and that there was then due plaintiff, &c. The common counts were added.

In error from the Common Pleas of Philadelphia. Afrilfi. Assumpsit for work and labour done. Pleas, nonassumpsit and the statute of limitations. The claim was for fees earned by the plaintiff’s intestate, who was an alderman of Philadelphia. On the trial, before Parsons, J., the plaintiff, under exception, read the alderman’s docket, to show the suits brought for the present defendant. In many instances, the suits were ended more than six years before this action was brought.

This was a petition by the administrator .of John Maxwell to have payment made of a legacy charged on real estate by the will of Robert Maxwell.

In error from the Common Pleas of Chester. April 11. Assumpsit. The plaintiff was the administrator of Esther Erain, who was a daughter of Rinehart Gunsenhauser. John Rinehart administered to his estate, and died. The defendants were administrators of the administrators of John Rinehart, who had settled his administration account in the Orphans’ Court, which was confirmed in 1825.

In error from the Common Pleas of Chester. April 12. Case stated.

From the Common Pleas of Schuylkill. April 1%. The sheriff, under a fi. fa., sold the interest of A. White, in a lease of certain coal-mines, together with the houses, fixtures, &c.,' erected by him at the mines. Heist claimed out of the fund, under a mechanics’ lien, for the work done, &e., in erecting a one-story boiler and engine-house, situate at the head of the slope, and built partly of stone and partly of wood.

<p>From tbe Register’s Court of Delaware county.</p> <p>April 13. An alleged nuncupative will of Woodward Crosley being offered for probate, and being objected to by one of the next of kin, the evidence given was as follows:—</p> <p>Pierce: “ Crosley sent for me early on the morning he died. I found him lying on the bed, with his clothes on. He told me to take from his pocket a key, and take out of his desk the deeds for his property where he then lived, and write an assignment in favour of his sister Mary. I thought there was not time, and told him so: he then directed me to write it down as his will, and for us to witness it; he wished his sister Mary to have the property where he then resided, with all his personal property; his farm in Nether Providence he wished divided among his relations. He asked me twice if I understood him; I repeated it to him, and he said it was correct. Nobody was present but his great niece, E. Suter, and he called upon us both to witness that that was his will. He did not live over an hour after this conversation, if that long; his dissolution was approaching, he was restless at the time, rolling from side to side ; did not appear to be in great bodily pain, only uneasy and restless; there was not time for him to have made a written will, as he was not in a situation after that. He said he would die. This paper was committed to writing in a few hours after his death, the same day; this memorandum contains the substance of what he wanted. I noted the contents down at the time with my pencil. The memorandum in pencil contains the substance of what he said at the time.”</p> <p>The pencil memorandum was as follows: “Woodward Crosley, on fifth day morning, 4th of fifth month, 1848., requested me to write an assignment of the deed of the place where he now resides* in favour of his sister Mary.</p> <p>“ Told me to write down as his will, and for us to witness it, that- his sister Mary should have the place and all his property; asked twice if I understood it.”</p> <p>Endorsed on this paper was the following : — “ The following was"’ taken down, as soon as I ’ came home, from recollection. Being called upon by my neighbour Woodward Crosley, this 4th day of the 5th month, 1848, I visited him, and among other matters, he gave me the key to his desk, and requested me take his deeds out and select them for the place he now lives on, and write an assignment upon them in favour of his sister Mary. From his appearance I thought there would not be time, and told him so, and further said he had better tell me. He told me to write down as his will, and for us to witness it, that his sister Mary should have this place and all his personal property; and then asked me twice over, if I understood him. I told him I did, and repeated what he had said, and he replied, £it is right,’and also requested me to settle his estate.”</p> <p>The will, reduced to writing by the witnesses within a few hours after Crosley’s death, and offered for probate, was as follows:— ££We do hereby certify, that'being in the room with Woodward Crosley (yeoman), of the township of Upper Providence, Delaware county, Pennsylvania, on the fourth day of the fifth month, one thousand eight hundred and forty-eight, the said Woodward Crosley, being of good sound mind and memory, did in our hearing say, and to us stated that he should not live, he then being sick; that it is my will and request, that Mary Crosley, my sister that now lives with me, is to have both tracts of my real estate in Upper Providence township, together with all my personal property, and that my real estate in Nether Providence, I wish it to be sold and divided among my relatives, and requested of William T. Pierce to write it down, and the above wag committed to writing the same day in which it was stated to us. In witness whereof we have signed our names this fourth day of the fifth month, one thousand eight hundred and forty-eight (1848).”</p> <p>On cross-examination, the witness stated: — ££ The personal property of Crossley was about $4,000, and his real estate worth about $9,800. When I first went there, he told me he could not live — • he requested me to write his will for him; I did not take these notes with a view to a written will. I told him there was not time to make a written will. He told me to write down as his will, he wanted his sister Mary to have as I have said; he wished me to administer. The first paper contains exactly what did take place — it was written immediately after I went home. I went down the road that morning to Squire Afflick’s, to get him to write an assignment on the deed, if there was time. This was before the death of Woodward Qrosley, and after I took these notes. I remained in his room about half an hour before I left it. It is a little over half a mile to Squire AfHiek’s. Squire Afflick did not come up with me; he came up there after me; he was dead before Afflick got there; he died just as I got back. I went to Afflick’s at my own instance. I was in hopes there would be time, but I did not think so. I did not believe there was time to write the assignment on the deed when I went to Afflick’s. I don’t know that I did request Afflick to hurry. I took that memorandum for the purpose of writing an assignment, if time had been allowed for the same. I did not take the memorandum to write a will from.”</p> <p>Elizabeth Suter, the other witness, proved “that Pierce was called into the house at the request of Crosley. When he came, Crosley said he wished his sister Mary to have, &c.; he lived about an hour after he was done telling him. He told Pierce to get the deeds; he wished to make an assignment of the deeds to Mary. Pierce told him he did not think the assignment would stand. He was sensible to the last minute. He was of as sound mind as ever. He died in about an hour. I think he was able to write when 1 first called Pierce. He might have been able to write after he said what he did.”</p> <p>On cross-examination, she said: “ Crosley spoke of assigning the deed first. He told Pierce he wanted him to write his will. Pierce took a piece of paper to take it down, and wrote it down as he told him, and left soon after. He did not say he could not make a written will. He wished us to witness what he said. I don’t remember that he said anything about writing a will. The notes might have been taken to write a will from, but I did not hear him say so. He called me by name, and told me to ‘ witness what I say.’ He requested Pierce to settle his affairs.”</p> <p>The question was, whether the will could be admitted to probate. The court below decided that it might.</p> <p>Another question was made in the cause. Mary, the legatee, died since testator, and appointed Elizabeth Suter a residuary legatee; she released to the administrators of Mary, and the question was whether she was thus rendered competent to support the will of Woodward Crosley.</p> <p>It was argued at length by the appellants, who cited Post v. Avery, &c.; but the court declined hearing argument against the objection to her competency.</p>

From the Register’s Court of Chester. April 14. The Register having granted letters of administration of the estate of Mary Beeder; John and Nathan Rinehart, administrators of A. Rinehart, appealed to the Register’s Court, averring that Mary Beeder died more than twenty-one years before the letters were granted.

From the District Court of Philadelphia. April 16. James Duval, by his will, devised certain real estate specifically, and the residue to his wife Catherine for life, remainder to his children, and appointed his wife executrix.

April 17. The case, as it appeared upon the pleadings and evidence, was this. Samuel Curtis and several others having united to erect a church edifice, and needing money for the purpose, the association requested Curtis to borrow $1,000 from the Benezet Society, the 'association or church agreeing to pay the interest, and the principal when required. Curtis borrowed the money, and gave his own bond and mortgage for it in 1820.

In error from the District Court of Philadelphia. April 18. Walker conveyed to Juvenal, reserving a ground-rent, in the usual form. Walker conveyed the rent to Patterson, who brought covenant for the arrears.

April 19, 20, — James and Thomas Darraeh, were tenants in common of certain land in Manayunk. In 1834, Thomas Darraeh assigned his estate to Blight and Y. L. Bradford, in trust for his creditors. The present action was an ejectment by the assignee. The defendant showed a deed from Y. L. Bradford (by his attorney Thomas Bradford) and Blight, assignees of Thomas Darraeh, conveying the property to James Darraeh.

<p>Where possession, under colour of title, was shown to have been in A. until his death, and there was evidence of possession of the premises by B., one of his sons, after A.’s death: a conveyance to 0., another of A.’s sons, by his executors, is admissible for defendants in possession, claiming through such conveyance as evidence of the claim of right, in which the possession was held by the family of A., and of the hostile character of that possession to a better title, then subsisting in third persons.</p> <p>Where there is a paper title to land, regular with the exception of one conveyance, and written acts of ownership by parties claiming under the title, and the possession was shown to have accompanied such title for a series of years, excepting an occasional vacancy during a pestilence, and an occasional occupancy by persons who were not of the family of the claimants, the assessment books are evidence for the purpose of showing the continuity of claim and possession during such supposed interruptions of the occupancy: and this, though the assessments were sometimes made in the name of the executor, and sometimes in the name of one of the sons of the claimant, such son not being a party to the conveyances of the title.</p> <p>To prove actual possession of the house in question byE., who held under a conveyance from W. in' February, 1789, and who had conveyed the property in the same month, the record of an amicable sci. fa. is evidence, in which the writ was tested, September, 1790, June T. 1789, and was filed in 1794, and which was intended to revive a judgment recovered against W. in 1786, to bind land which he had aliened to E. in 1789 — the recorder’s certificate showing that no deed, was of record between 1787 and 1790, purporting to convey property from W. to E., but the deed in February, 1789, for the property now in question.</p> <p>The expression of an opinion by the judge as to the weight or credibility of the evidence, is not the subject of a writ of error, unless it be delivered as binding upon the jury.</p>

<p>In error from the District Court of Philadelphia.</p> <p>April 25. The plaintiffs in this action declared upon a warranty by the defendants, on the sale of certain tobacco, that it was superior sweet-scented Kentucky leaf tobacco; on a promise to reimburse the defendants' for any loss that might occur on a sale of the tobacco by defendants; and on an account stated. On the trial before Jones, P. J. the plaintiffs gave in evidence the bill of parcels, as follows:</p> <p>“Messrs. Reeves, Buck & Co. (the plaintiffs) bou’t of Samuel Bispham, 50 hhds. superior sweet-scented Kent’y leaf tobacco.”</p> <p>Then followed the weights of the several hogsheads, and at the foot of, or accompanying the bill, was the following:</p> <p>“ Please let me know when and where you will have the above tobacco, and as our porters understand it, they can get the same out of the warehouse better than strangers. The charge is 25 cents porterage and 1£ outage, and the certificates given up to the inspector. Yours, &c. S. B.”</p> <p>The plaintiffs then offered to read the depositions of one of their consignees at Liverpool, who said that he had requested William Oxley to examine the samples of the tobacco, and of another of the firm, who said that he had examined the samples carefully, and that the tobacco was Kentucky leaf of exceeding bad quality, low, faded, and rotten; that the said tobacco was not superior sweet-scented Kentucky leaf.</p> <p>Oxley stated he had, at the request of the consignees, examined some samples of tobacco, believed to be that above alluded to; he found it Kentucky leaf tobacco of very low quality, ill-flavoured, and mostly heated, and quite unfit for the consumption of that country; that the tobacco was not sweet-scented Kentucky leaf tobacco, but quite the reverse. ' This evidence was rejected. The plaintiff then proved by Buck that the usage in Philadelphia is, if an article is not sold by sample, with such a heading, an allowance is made if it does not correspond with the heading. He further stated that the custom of the trade here is to sell by samples, which are drawn by the inspector: and it seemed from the charges for boxes for samples, that the sale in this case was made by sample.</p> <p>The .plaintiffs then offered in evidence under their count on an account stated, an account sent to defendant, in which the cost and charges and the nett proceeds of the tobacco resulted in a loss of $1,690 ; accompanied with a letter from them to defendant, in which they said : “ Having received an account of the sales of 50 hhds. of tobacco, purchased from you last September, under a guaranty that you would reimburse us for any loss which we might sustain by that shipment, we now annex a statement of our claim for loss, amounting to $1,690, to the settlement of which we ask your early attentionand air other letter, stating that they had written to him on the subject of this tobacco, “purchased under a guaranty that the quality of the article was superior, and that you would reimburse us for any loss we might sustain by the shipment. We then exhibited our claim, amounting to $1,690, arising from the very inferior quality of the tobacco, it being, according to our letters from Liverpool, the meanest lot which had been seen there for many years,” and requesting payment and a reply. These letters were sent — the ■ one about a year, the other about three months before suit was brought — and, as it appeared, had not been replied to.</p> <p>This evidence was rejected, and the plaintiffs nonsuited.</p>

<p>Trusts for accumulation beyond the period allowed for the vesting of an executory limitation are absolutely void, although the fund thug to be created is directed to be ultimately applied to the foundation and support of a charity.</p> <p>Where land is devised upon a trust which is void as tending to create a perpetuity, the heir is entitled to recover.</p> <p>The subsequent grant by the legislature of a charter to execute such a trust, though in pursuance of the will of the testator, would not aid the devise or divest the estate of the heir: Per Gibson, C. J.</p>

<p>A sale of unseated lands was made for taxes, and a deed acknowledged but not delivered. The purchaser gave his note to the treasurer, who did not account to the county for the price bid. Within five years from the sale, the representatives of the owner of the tract paid the taxes in arrear, and costs, and received the deed which had been intended for the purchaser. The purchaser at the tax-sale then paid the note given to the treasurer, having notice of the previous payment of the taxes by the representatives of the owner of the tract. Held, that the title of the owner was not divested.</p> <p>In such case the statute of limitations of 1804 does not bar an action brought more than five years after such sale, by a purchaser from the former owner.</p> <p>The fact that money was received by the treasurer in redemption of certain of the tracts sold at the same time, to the same purchaser, is not equivalent to payment by him of the amount of his bid for another tract: Per Büenside, J.</p>

<p>In error from the District Court of Lancaster.</p> <p>Ejectment and case stated. Jacob and Christian Strickler, who were brothers, being seised in fee as tenants in common of the land in question, in 1882 executed a deed poll, which, after reciting their title, was as follows:—</p> <p>“Now know ye, that we, the.said Jacob Strickler and Christian Strickler, have this day agreed with each other, that in case if one of them shall happen to die unmarried, or intermarried and without lawful issue or issues that should arrive to the age of twenty-one years, that then and in that case the survivor of them shall be the sole heir of the deceased one, both to the real and personal estate of the deceased, without any further deed or conveyance: to hold the real estate as well as the personal estate of the deceased unto the survivor, and to his heirs and assigns for ever. And it is further agreed by the said parties, that if any one of them shall get intermarried, having no issue or issues that shall arrive at the age of twenty-one years, but leaving a widow, that such widow shall be entitled to take all such articles and money which she had or brought to the deceased, or to which the deceased if he had lived to receive in right of his wife; and if that or her own personal estate should not be sufficient to maintain or support her, that then and in that case the survivor, Jacob or Christian, whoever may be the survivor, shall yearly pay unto the said widow the sum of fifty dollars during’she remains the widow of one of the parties who may die without a child or children that arrive to the age of twenty-one years, and no longer: the said fifty dollars shall be paid in and under the circumstances before mentioned.”</p> <p>Christian Strickler died in 1841; and this deed having been acknowledged on the day of its date, was recorded after his death. The plaintiff was one of Ms heirs, and the question was, whether he was entitled to recover against Jacob Strickler any part of the land of the decedent.</p> <p>Hayes, P. J. — “ The instrument of writing set forth in this case, is what is technically called a covenant to stand seised to uses. The words are sufficient to create the covenant, the intention -being apparent on the face of this deed, that each party should stand seised to the use of the other surviving him, under the circumstances stated. And the consideration of natural love, though not expressed, is manifest from the relation of the parties; and as this, being consistent with the deed, might be averred in pleading, and admitted in evidence, it is not essentially necessary that it should be mentioned in the instrument: Milburn v. Salkeld, Whiles, 673; Bedell’s case, 7 Rep. 40; Crossing v. Scudamore, 1 Ventr. 137; 3 Cruise’s Dig. part iv. 186, 190. Being of this opinion, I think judgment, on the case stated, should be for the defendant.</p> <p>“ Judgment for the defendant.”</p>

<p>Conditions in. restraint of marriage are valid in devises of real estate.</p> <p>Testator devised his real and personal estate to his wife, provided she remained a widow for life; but in ease she married again, she was to leave the premises. If she remained a widow for life, the testator devised all his property, after her death, to his father and mother, if living; if not, to others. The land was sold for payment of debts, and the widow married. The testator’s father died before the marriage of the widow: His mother is entitled to recover the surplus proceeds of the real estate.</p>

<p>A by-law of an incorporated beneficial association provided that “no soldier of a standing army, seaman, or mariner, shall be capable of admission; and any member who shall voluntarily enlist as a soldier, or enter on board of any vessel as a seaman or mariner, shall thenceforth lose his membership.” The relator, a member of the association, joined a volunteer corps raised in another state, who tendered their services to the United States under the act of 1846, and were accepted and mustered into -the service. The relator continued in such service in Mexico imtil the expiration of his term. Held, that this act did not authorize his expulsion from the association.</p>

<p>Under a bequest to tbe children of testator’s brothers and sisters, share and share alike to them severally, and their heirs and assigns for ever, such of the children take as were living at his death, to the exclusion of the representatives of children dying before the testator, but after the date of his will.</p> <p>The act of 1844 does not extend to such a case, for the legacies never vested in the children dying before the testator.</p>

<p>Where a state of facts could not be inferred on a demurrer to evidence; it is error to submit it to the jury as possible, and thereby affording a reconciliation of contradictory testimony.</p>

<p>In error from the Common Pleas of Adams.</p> <p>Assumpsit for money had and received, and case stated in the nature of a special verdict. The facts were these: D. Scott was a contractor with the Baltimore and Ohio R. R. Company. Having performed a large part of the work, and being indebted, he made an assignment, on the 22d May, 1841, to Cooper, of his interest in the contract, and in the money retained by tbe company for work already done, in trust, to pay certain of his creditors, to the extent of $6,100. On the 21st June, 1841, Scott transferred his contract with the company to Garvin, the plaintiff, who covenanted to complete the work at his own expense, and it was agreed that he might draw on the' company for his work, and the retained per-centage, and that he should he entitled to receive $900 out of such per-centage. Garvin completed the contract, hut when, was not stated. In July, 1841, six of the creditors named in the assignment, one of whom was Stewart, drew an order on Cooper, the assignee, requesting him to pay Garvin the amount expended by him on the work, out of the first estimates, and at the final completion of the work, to pay him $100 out of the retained per-centage, for his trouble in attending to the work. On the 28th September, two of the creditors revoked this order, and notified Cooper. The other creditors also notified him not to pay the money over to Garvin. In 1843, Cooper received a sum of money, which was applicable to the creditors under the assignment. Stewart’s executor received his dividend, being $62.90, from the assignee; and the question was, whether the plaintiff could recover that amount from him.</p> <p>The court gave judgment for the plaintiff.</p>

<p>It is in tine discretion of the court to enter the verdict upon particular counts: and, unless the whole evidence is brought up by bill of exception, this cannot be examined on writ of error.</p> <p>In a count for conspiracy to defame, by reporting and charging the plaintiff to have been guilty of a crime, it is not necessary to aver that the reports and charges were made falsely and maliciously. Nor is it necessary to sot forth the words spoken.</p> <p>Where separate declarations of defendants are relied on as proof of the conspiracy, whether the plaintiff is concluded by the motives avowed at the time the declarations were made, querj/ ? But where the court was not requested so to instruct the jury, the not doing so cannot be assigned for error.</p> <p>It seems that an objection to a declaration, good in substance but defective in form, cannot be taken by praying instructions to tbe jury to that effect; but there should be a special demurrer.</p>

<p>Bank-stock held hy the -wife before her marriage, or bequeathed to her after-wards, will not pass by an assignment by the husband which does not pass her choses in action.</p> <p>Unpaid dividends are subject to the same rule.</p> <p>Such of the shares as were transferred by the husband to a trustee and re-transferred to the husband and wife, pass by an assignment of the husband’s personal estate; and the wife dying afterwards, and before her husband, the assignee is entitled to them.</p>

<p>In error from the District Court of Lancaster.</p> <p>Case for a nuisance, by raising the height of a dam. The nuisance was laid in the narr. to have existed from 1843 to 1846, when suit was brought. The defendant offered, as a witness, a tenant, on shares, of the mill to which the dam was appurtenant. He had entered after suit brought, under a demise from defendant, for one year. He was rejected as interested. There was evidence given, that in 1844 the dam was a foot higher than it had ever been before; and there was also evidence, that for forty years previous to that time, the mill had done a certain kind of work. The defendant then offered to show, by a practical and professional millwright, who had taken the levels of the water and the waterwheel, that if the dam were a foot lower than it then was, it would be impossible for the mill to do the same kind of work as heretofore to advantage, and that it would have been impossible to have done the work which it had done for the past sixty years. This evidence was rejected: and these were the points assigned for error, and noticed by this court.</p>

<p>From the District Court of Lancaster.</p> <p>The real estate of Howett having been sold by the sheriff, the question in this cause was, whether the claims of mechanics,- filed against the property, had priority over a judgment-creditor ? The work for which the claims were'filed was commenced about December 23, 1847, and finished in March, 1848. A judgment was recovered against Howett on the 25th April, 1848. The claims were filed on and after April 27, 1848. The evidence was, that Howett purchased the property a short time before the work commenced. It was an old-fashioned two-storied house, with a pent roof, formed by the joists of the second story projecting. The roof was propped up, and the front wall taken out and rebuilt on a new foundation, outside and adjoining the old foundation, which was left standing. The old rafters were spliced, and a" new roof put on, with new dormer windows. All the partitions in the house but three were altered. The whole of the inside work but the floors were taken out; and the chimneys, below the garret floor, were taken down. New door-ways and windows were cut, and new work put in the old doors' and windows. The back and side walls, floors, and the foundations of the old house remained. It was proved that the cost of a new building would have exceeded the cost of these alterations. Adjoining the house, a new two-storied back building was erected, without a cellar: a new smoke-house, bake-oven, and privy were also erected. During these alterations, the family removed from the premises.</p> <p>Of the seventeen claims filed, seven were for claims apportioned on the main and back building, one-half on each. The remaining ten were filed against the building and back building as one house.</p> <p>The court (Hayes, P. J.) awarded the fund to the mechanics’ claims, and the judgment-creditor appealed.</p>

<p>In error from the Common Pleas of Adams.</p> <p>This was a scire facias, issued in 1847, on a, judgment recovered against Little, in 1842, to revive the same against the defendant and terre-tenants. The terre-tenants pleaded that the judgment on which the sci. fa. issued had been entered on the 2d May, 1842, on an amicable sci. fa. to revive, &c. That afterwards, in 1842, the defendant, Little, had aliened certain lands to the terretenants, defendants, who had paid for the same. That, in the year 1843; the plaintiff had impleaded the defendant, Little, in an amicable sci. fa. to revive the said judgment of 1842, and had obtained judgment therein, without notice to the terre-tenants. That, in 1844, a judgment had been obtained between the same parties on like proceedings; and that a fi. fa. had issued on the judgment recovered in 1844, and that a certain sum had been made thereon.</p> <p>The plaintiff replied, that the present sci. fa. issued within five years from the recovery of the judgment, in 1842. To this there was a demurrer, and the court (Irvine, P. J.) gave judgment for the plaintiff.</p>

<p>Testator directed Ms executors to sell a certain tract of land contaimng 100 acres, in order to carry out Ms will. The residue of Ms land he devised to his widow and son for life, remainder to his son. He then directed Ms executors to retain §300 out of the.purehase-money of the land ordered to be sold, and the residue he bequeathed to Ms daughters. He then bequeathed to his three grandcMldren §100 each. The widow, as executrix, under an order of the Orphans’ Court sold the 100 acre tract, and of the proceeds, more than §300 was applied to the payment of the debts. Held, 1. That the legacies to the grandchildren were demonstrative, and payable out of the §300 reserved out of the proceeds of the land ordered to be sold. 2. That these legacies were not liable to abatement for a deficiency of personal assets to pay debts, but that the land devised and the legacies -to the daughters must contribute for such deficiency. 3. That the land devised to the son was liable to make good the legacies to the grandchildren, the fund provided for which had been applied to the payment of the debts, to an amount exceeding these legacies, and less than the sum wMch the devisee was bound, as between himself and the daughters, to contribute to the payment of the debts. 4. The heir of the devisee is liable therefor. 5. The Orphans’ Court have jurisdiction to settle the contributory shares payable by the devisee and legatees, and compel payment thereof.</p>

<p>An assignment of a certificate of deposit in trust for a son of the assignor, who reserved the right to use the money during his life, and directed the residue tc be paid at his death to his son, is not a gift which passes the property, for want of actual delivery; though the assignee surrendered the certificate and took out a new one during the life of the assignor.</p> <p>Where it was covenanted by an ante nuptial settlement that the real and personal property of the husband and wife should be held and enjoyed after the marriage, during their joint lives, as if the articles had not been made, and that if the wife survived she should have all the real and personal estate of which the husband should die seised or possessed: the husband during the mar.riage, has the power to make a gift of personalty, if it is perfected hy delivery during Ms life.</p>

<p>In error from the Common Pleas of Lancaster.</p> <p>In 1819 L. Eshleman died, seised of the land in question. The defendant, as his administrator, settled his accounts and procured an order, by the Orphans’ Court, for the sale of the land, to pay debts. In 1824 the sale was made, at a price which was shown to have been a fair one. The defendant was, in fact, the purchaser. From that time he was in possession, until this ejectment by the children of his intestate, which was brought in 1848. The youngest child attained his majority in 1837.</p> <p>Lewis, P. J., directed a verdict for defendant.</p>

In error from the Common Pleas of Lancaster. The personal property of the defendant having been sold by the sheriff, an auditor was appointed to report the facts, to enable the court to make distribution. From this, it appeared that a fi.fa. had been issued by Bingham et al., and a levy made, Feb. 21, on the goods in the defendant’s store.

<p>Appeal from the District Court of Lancaster.</p> <p>An attachment execution having been served, a motion was made on the part of the plaintiff, to have a sequestrator appointed, which was refused, and this appeal taken. The judgment was entered May 1, 1847. From the answers of-the garnishees to the interrogatories, it appeared that on the 20th April, 1847, an order was made by the Orphans’ Court, in proceedings in partition, for the appraisement of the real estate of C. Kilheffer. Elizabeth, the wife of John Stauffer, the defendant in the judgment, was one of the heirs. Her share of the valuation was $490. On the 3d July, 1847, one of the garnishees accepted the real estate at the appraisement. On the 2d March, 1848, the wife of John Stauffer made her declaration under the act of 1832, that the amount due to her, under these proceedings, should be paid to her husband without any condition or security. On the same day, the husband released to the garnishee. The garnishee then executed a note for the amount thus due, to the brother of Elizabeth Stauffer, in trust, for her separate use. In April, 1848, before the note was paid, the attachment was laid. The answer of one of the garnishees averred, that the declaration of Elizabeth Stauffer was made, on condition that her interest, and that of her children, should be protected, and that her husband should have nothing to do with the money. The other averred, that the whole was a contrivance to evade the judgment. From this answer it appeared, that there Were children of the marriage.</p>

In error from the Common Pleas of Lancaster. Debt against the administrators of Hertzler, on a joint and several bond executed by Hertzler and Funk as sureties, and by Wright as principal. On the trial, the defendants gave in evidence an endorsement on the bond, signed, but not sealed, by the plaintiff, which recited a receipt of a sum of money from Funk, one of the sureties, being one-half of the amount due on the bond, as and for his full share and part of the obligation.

<p>In error from the Common Pleas of Lancaster.</p> <p>Case stated. Hambright was a collector of tolls for the commonwealth, during the years 1841-2-8. Several bonds were executed, in each of these years, by Reitzel and others, as his sureties. -Hambright was a defaulter each year; and in March, 1844, a general settlement of his account was made, and a certificate duly transmitted to the prothonotary of the Common Pleas of Lancaster, by whom it was entered as a lien against Hambright’s estate, April 11th, 1844: but there was no entry against the sureties. On the 13th April, Reitzel mortgaged his land in Lancaster county. Several actions were brought by the commonwealth, on the bonds of 1841-2-3, and judgments recovered. The judgment on the bond of 1843 had been paid and released. Reitzel died insolvent, in 1848, and his land was sold by the Orphans’ Court for payment of debts. The question submitted was, whether the commonwealth had a lien on the fund arising from the sale of Reitzel’s estate, paramount the mortgage and other creditors, from the date of the settlement, in March, 1844.</p> <p>The court (Lewis, P. J.) gave judgment for the commonwealth.</p>

From the Orphans’ Court of Lancaster. In 1837, William Brinton, by his will, bequeathed “to my daughter Elizabeth, wife of James Smith (exclusive of what I advanced to her and her husband, shortly after their marriage, in money, furniture, &c., and of the money her husband has since received from me, and part of it never refunded), $3,325, to be paid to her in one year after my decease.” He gave legacies to his other children, and the residue he bequeathed among his five…

<p>In error from the Common Pleas of Dauphin.</p> <p>This was a scire facias on a mechanics’ lien, for bricks furnished in the erection of a church. The first objection on the trial was to the admission of the plaintiff’s book of original entries, in which the items were charged: “Peter Bernheisel to Jos. Allison Dr.” The plaintiff, also, under exception, gave evidence that Bernheisel, who was the contractor, at a certain price to be paid for the building, had ordered these bricks for the building, and that they were furnished on that contract; they were to be paid for by orders on the building committee. The items of charge were for bricks down to April 28,1842. From that time until May o, the charges were exclusively for paving-brick. It was also in evidence, that Bernheisel’s contract was to finish the church, and pavement, and enclosure. The defendants proved, that the church was consecrated in February, 1842. But there was evidence given by the defendant, that the wall or curbing around the basement window was finished May 5, 1842; the witness adding, that this wall was no part of the main building. The lien was filed November 1, 1842.</p> <p>His honour instructed the jury, that the building was within the act, and the entries in the plaintiff’s book were primd facie evidence that the bricks were furnished on the credit of the contractor, but that the plaintiff might prove they were furnished on the credit of the building. If they were so furnished, it was immaterial that the contractor used them in the pavement and wall enclosing the church; though he did not consider that, if furnished for such purposes, they could be the subject of a lien. Whether the walls around the basement window were necessary to the completion of the contract, for the erection of a building of that description, was for the jury.</p>

<p>A plea in abatement after a plea in bar may be struck off by the court, although the plea in bar had been •withdrawn by leave of the court, and permission granted to file a new plea.</p> <p>The deposition of a witness far advanced in pregnancy may be read, where it was shown she resided eight miles from the court-house, and it was said it would not be proper for her to attend.</p>

<p>In error from the Common Pleas of Adams.</p> <p>A judgment was confessed against Topper, in 1834; on which an attachment execution -was issued, and Raffensperger summoned as garnishee. He pleaded that he was the administrator of the defendant’s father, and that the funds attached were the distributive share of the defendant therein. But the attachment was served before a settlement of any administration account. Demurrer and joinder, and judgment for the garnishee.</p>

In error from the Common Pleas of Adams. Trover, for certain chattels. Moose, by his will, bequeathed the chattels, mentioned in the declaration, to his wife, “for her own proper use during her lifetime,” remainder over. The widow afterwards married Snyder, who died, and his executors sold the chattels bequeathed by Moose. The legatee then brought this action.

<p>The assignee for value of a sealed note without notice, is not affected with a fraud between his assignor and the obligee, which, as between them, would avoid the previous transfer.</p> <p>On a feigned issue to try the right of claimants to the proceeds of the instrument, the assignor, having been released, is a competent witness for his assignee.</p> <p>And so is an endorser, to prove fraud after the transfer made by him, and thus avoid the transfer, (a)</p>

<p>The assignee in bankruptcy of the husband, is not entitled to a legacy then Tested in the wife, but not then payable; for he has but a power to reduce the same into possession, which does not pass by a transfer by act of law merely.</p>

<p>From the Common Pleas of Dauphin.</p> <p>In 1806, Frey, by his will, devised his estate, real and personal, to trustees, for the erection and maintaining of an orphans’ house, in which orphan children were to be maintained and educated free from charge to their parents. The will' contained full and detailed directions respecting the management of the school. Among other things, it provided that the trustees should annually submit a statement of their accounts to the Grand Jury and'Quarter Sessions of Dauphin county, and he directed a charter to be applied for.</p> <p>In 1839, the institution was incorporated, and the Common Pleas authorized to appoint trustees, who should elect a principal to perform the duties mentioned in the will. Under this, Dr. Brown was appointed principal, in 1839. lie-continued to conduct the affairs of the institution, and filed annual accounts of his trust in the Common Pleas, which were confirmed. His account, filed in 1848, was excepted to by Moore, and the matter referred to an auditor.</p> <p>In this account he charged himself with receipts, $3,601.76</p> <p>He took credit for expenditures, including repairs and improvements, payment of interest on debts due by the estate; tutor’s salary, $200; outstanding ground-rents, $300; his own salary, $266; in lien of a free table, allowed by the will, $300, and outstanding hook-debts, $300 ...... 4,306.75</p> <p>The balance due the accountant was thus 704.99</p> <p>The debts due by the estate were . . . . 9,054.98</p> <p>The assessed value of the property was 45,252.00</p> <p>The exceptions were, that the accountant ought to he surcharged with $1,000 annually, during the period he had managed the property, and with other amounts arising from property sold and not accounted for, and which ought to have been obtained from the renting of the various pieces of real estate. The evidence to support the first, was the general statements by witnesses, that the property ought to have brought in the whole more than it did, by at lea¡3t $1,000 per annum. But there was no evidence, to show that any lot could have been rented for more than it was: and it was shown, that everything received had been accounted for, and that the condition of the land and buildings had been very much improved, and that the expenditures for repairs were proper and beneficial.</p> <p>The court below confirmed the report, saying: “ There does not appear to be any tangible exception properly supported by evidence; the trustee has leased out the "property, in manner customary in this country, and as prudent men transact their own business. The rents appear to have been fully accounted for, although, in the opinion of the court, much less profit has been heretofore made from the property than would have been, had the same been managed to the best advantage. Yet there does not appear to have been any culpable negligence on the part of the trustee within the past year, and we cannot go back of the confirmation of the last account stated.”</p> <p>The errors assigned were: 1. In refusing to go behind the accounts which had been confirmed, they not having presented to the grand jury, as required by the will. 2. In not charging the accountant with $1,000 additional, the evidence on that ¡Joint not being contradicted. 3. In confirming the account after saying, that much less profit had been made, than would have been, &c.</p>

<p>From the Orphans’ Court of Lebanon.</p> <p>The petition of Boger et al. set forth, that Boger devised certain land to his son Joseph, subject to the payment of one-third of the valuation, to be fixed by three men, to be appointed by his executors, 'which third was bequeathed to the petitioners. That appraisers were appointed by the executors, who valued the land at $6,636, and from this they had deducted $3,331, being the amount of the testator’s debts, alleged to have been paid by the devisee. A rule was prayed to show cause, why the appraisement should not be set aside so far as respects the deduction, and the appraisement recorded at $6,636.</p> <p>The answer denied the jurisdiction, and the petition was dismissed.</p> <p>It was admitted on the paper-book, that partial payments had been made by the devisee.</p>

<p>A bank chartered under the act of 1824, which prescribes the payment of a certain tax on dividends declared, is subject to a subsequent general law, which increases the rate of taxation although its charter had not then expired.</p> <p>Such an act is constitutional.</p> <p>A general law, taxing the dividends of banks, was passed on tie 1st of April. On tbe 7th, an act was passed, extending tbe charter of an existing bank from a future period, when the former charter would expire. The act of the 7th contained a provisión for taxation similar to that of the 1st, but taxes were not to be levied under it until the new charter went into operation. The latter act does not repeal the former.</p> <p>The auditor-general and state treasurer have jurisdiction Under the act of 1811, &c., to settle an account and state a balance against a bank for unpaid taxes on dividends. And the fact that an amount was paid and received by the treasurer for such taxes, does not preclude a subsequent settlement of an account for the excess legally due.</p> <p>The bank is .liable only for 6 per cent, interest, after three months from such settlement, where the case is tried on appeal therefrom to the Common Pleas of Dauphin, under the act of Assembly. Por this is a special jm-isdiction, and the act creating it fixes the rate of interest, and the time for which it shall be paid.</p>

<p>From tbe Orphans’ Court of Lebanon.</p> <p>In 1824, administration of the estate of Jacob Hassinger was granted to his two sons, J. and H. Hassinger, whose accounts were pending before an auditor at the time of this controversy. Eliza Hassinger, one of his daughters, died in 1847, leaving her two brothers and the children of her deceased sister, Mrs. Grloninger, her next of kin. At the instance of her brothers, letters of administration- of the estate of Eliza Hassinger were granted to S. Dill-worth, who died, leaving D. Hassinger his executor. At the death of Dillworth, applications were made by J. and D. Hassinger, and by Marshall, who had married a daughter of Mrs. Gloninger, at the instance of the children of Mrs. Gloninger, for letters of administration de donis non of the estate of Eliza Hassinger. To the applications by the Hassingers, it was objected that they represented an estate on which Eliza had a claim as a distributee. Whether this had been paid was a contested question, and evidence was offered to the court. To the claim of Marshall, it was objected that Eliza Hassinger had resided until her death with his wife’s father. And it was alleged that one of the objects in taking out letters was to bring suit against him for property of the decedent, which he had improperly obtained. On these grounds, the court, Pearson, P. J., after the parties had refused to agree upon a disinterested party, dismissed both the petitions.</p>

<p>In error from the Common Pleas of Dauphin.</p> <p>In 1812, McClay entered into articles for the sale of certain lots in the county of Dauphin. Before execution of the deed, or payment of the purchase-money, McClay died seised of other real estate, leaving Mary Awl one of his six heirs. . The title to the property conveyed by the articles was then perfected by the administrators, under decree of the court, in 1814. In 1813, Mary Awl, with her husband, entered into articles with Foster, reciting the death of McClay, seised of “ considerable real estate in the county of Dauphin,” and that the trustees of her husband were entitled to his life-estate in her property, and that it had been agreed that $12,000 of McClay’s debts should be paid out of his lands in Dauphin, and the residue out of other property. It was further agreed, that the vendors would, on request, convey to Foster all the estate or interest “which they now have in all the estates that have descended to the said S. Awl and Mary his wife, from the said William McClay, situate in the county of Dauphin, subject to the life-estate of the said Samuel, which is now vested in his trustees, and subject to the payment of the one-sixth of $12,000, viz. $2,000, of the debts which were due from the estate of said William McClay.” If more than this sum was taken out of the estate in Dauphin county, for the payment of debts and expenses of settlement, one-sixth was to be deducted from the last of the bonds to be given for the purchase-money. The payments were to be, $300 on the execution of the deed; $500 on the 1st of Sept., 1819, and the residue in four annual payments, commencing one year after the execution of the deed, for which bonds were to be given to Harris, as trustee for Mrs. Awl. It was further agreed, that “the last bonds are not to be paid by Foster till after the whole estate of McClay shall be settled, and till it shall be fully ascertained whether more than $12,000 are taken out of his estate in Dauphin county, for the'payment of debts, &c.”</p> <p>Pursuant to the articles, a deed was executed Aug. 1819, com veying to Foster “ one-sixth of.all the real estate of which William McClay died seised, situate in Dauphin county,” subject to the life-estate of S. Awl.</p> <p>This action was brought on the bonds payable in 1821-22-23, on which there had been small partial payments.</p> <p>In 1819, Foster was appointed one of the administrators de honis non of McClay, but the administration of that estate was not finally concluded until 1838. From McClay’s death until that time, there had been several sales of real estate, by order of the Orphans’ Court, out of the proceeds of which his debts were paid. Hut the jury found that not more than $12,000 had been taken for that purpose .out of the estate in the county of Dauphin.</p> <p>Eldred, P. J. instructed the jury: 1. That the purchase-money arising from the lands'sold by McClay in his lifetime, did not pass to Foster under the sale by Mrs. Awl. And that this was not to be taken as making up any part of the $12,000, which was to be applied under the articles, out of the Dauphin county property, to the payment of his debts. 2. That the bonds drew interest, before the settlement of the administration accounts.</p> <p>The errors assigned, were argued by</p>

<p>Where money is made on a fi. fa., the sheriff cannot set up any claim on the surplus proceeds hy reason of a debt due him hy the defendant, nor for the expenses incorred in taking care of goods when the sale was deferred at the instance of defendant, and on his promise to pay the expense.</p>

<p>In error from the Common Pleas of Dauphin.</p> <p>Assumpsit against two attorneys, for money collected for their client, and for negligence in collecting and paying over. It was proved they had employed another attorney to collect the debt, and that he had received it, but not accounted for it. The defendants pleaded the general issue, and required the plaintiff to prove their partnership.</p> <p>The court ruled, that a demand before suit brought was unnecessary, which was the error assigned.</p>

<p>In replevin, the time at which the rent was payable, and the amount due, must be proved, as laid in the avowry for rent in arrear.</p>

In error from the Common Pleas of Dauphin. Assumpsit. The claim was for taxes on fees received by defendant, from his successor, after defendant’s removal from the office of prothonotary of the District Court of Philadelphia. The account had been settled by the auditor-general and treasurer in 1835. The action was brought under the act of 1845.

<p>Sureties for an administrator may Lave a bill of review, where the administrator has charged himself in his account with rents and profits, and the proceeds of the realty.</p> <p>And it is no objection that the accounts have been settled by auditors, and a distribution awarded, and actions brought by the creditors of the estate against the sureties.</p>

<p>A. mortgaged lands to secure bonds payable in ten years, with interest payable semi-annually. A judgment on the bonds for interest accrued, and a sale within the ten years, under a venditioni issued thereon, divests the mortgage securing the bond and all subsequent mortgages.</p> <p>The date of the sheriff’s sale'is the period when it is to be ascertained whether a mortgage is prior to all other liens, &e., within the act of 1830. A judgment recovered against the mortgagor before the registry of the mortgage, but satisfied before the sale was made, is not a prior lien which will operate to divest the mortgage by the sheriff’s sale: Per Woodwakd, P. J.</p>

<p>In error from tbe Common Pleas of Centred</p> <p>By a written contract, tbe plaintiff agreed to raise, out of bis own land, 600 or 1,000 tons of iron ore annually, until five years from tbe following 1st of April, “ to clean it properly of all clay, sand, stones, &c.,” and deliver it for tbe use of tbe defendants’ furnace. Tbe defendants agreed to pay 25 cents a ton on all ore raised for tbeir use (as ore leave), $1 a ton for all ore raised, and $2 per ton for hauling. They further agreed to provide all tools, screens, ropes, and other implement^ necessary to work tbe bank or banks, and also keep them in repair.</p> <p>■ Tbe present action was assumpsit, to recover damages for a breach of this agreement, by reason of tbe defendants’ refusal to receive tbe ore tendered, and also to recover tbe value of tbe ore delivered and received. These were included in one count.</p> <p>On tbe trial, it was shown that plaintiff bad delivered ore to tbe defendants, under tbe contract, until Aug. 18th, 1846. On that day, defendants wrote to plaintiff tbe following letter:—</p> <p>“ I do not wish to be thought captious in anything I do in relation to my business. When I contracted with you for your ore, you were delivering at tbe furnace good rock ore, that was worth tbe price I agreed to pay you, and tbe ore we was to get was to be as good and productive ore as that was. All the ore we have received, since the 1st of April last, is of an inferior sort, mostly screening of a very poor quality; at least the one-fourth of it is clay and soap-stone; there is scarcely one piece of the whole that is not mixed, more or less, with this yellow ocherish stone, like soap-stone, which renders it very unproductive; so much so, that it takes from three to four tons of your ore to make a ton of pig metal. We have frequently screened loads of your ore, and never found one of them that there was less than four and six large barrows full of dirt in, besides the soap-stone, which was not taken out and separated from the ore. I consider that you have violated our agreement by not cleaning the ore from clay and other foreign matter, which you promised in the agreement to do; and I hereby notify you, that hereafter I will not receive any more of your ore on any other terms than such as I conceive fair and just, and which I know of no other away of arriving at than to dock it to make it good. There is at least a half ton weight in every load of your ore, that is not ore, nor anything like ore, besides a great deal of matter that is nothing more than a miserable mixture of ore and other matter. I can abide the contract in no other way than by making your ore good by taking off all other matter from it in the process of docking, which I will endeavour to do as nearly right as possible; and if you think that you can stand the process of dockage of the ore you have hauled since the 1st of April, as well as that which you may haul hereafter, you may continue to haul; but I am determined to pay hereafter for nothing but the pure iron ore, either hauling, raising, or leave, and wish you to govern yourself accordingly; and if you cannot comply with your contract, and clean your ore from sand, clay, flint, stone, and other foreign matter, as you have engaged to do, then I want none of it, only for what it is worth, of which I myself am the best judge.”</p> <p>I'- After this letter was received, the plaintiff hauled one load of ore to the furnace, but the agent refused to permit him to deliver it. A witness for the plaintiff said, that the agent assigned no other reason.for his conduct, than the instructions of the defendants. The .agent himself testified, that he had instructions from the defendants not to weigh any more ore for plaintiff, unless he agreed to clean it, according to his contract; that he told him so when the ore was tendered and refused. He further said, that one of the defendants gave him “ the instructions on the 18th of August. He showed me the letter.”</p> <p>Woodward, P. J., instructed the jury, that contracts are to receive such reasonable construction as will accomplish the intention of the parties, and-the whole is to be read together; “that as the defendants were 'bound to furnish such ‘ tools, screens, ropes, and other implements’ as should be necessary to work the bank with; so that, in promising properly to clean the ore of all clay, sand, stone, &c., the plaintiff promised to make diligent and skilful use of the ‘ tools, screens, ropes, and other implements,’ which should be furnished him by the defendants; and was bound to use the same' degree of diligence and skill which men engaged in similar business ordinarily employ. To, clean the ore ‘ properly,’ was to clean it as completely as usual diligence and skill, employing such implements as defendants had furnished, could do. The ore might, or might not, .be absolutely clean of clay, sand, stone, and other impurities. If the defendants furnished implements which, with diligent and skilful use, would enable the plaintiff to extract from the bank what Mr. Campbell’s letter called for, ‘the pure iron ore,’ the plaintiff was bound by the tenor of his contract to furnish it; but if they did not, they had no right to exact from the plaintiff the pure iron ore. It is said, that iron ore is never expected to go to the furnace absolutely pure, and it is not probable that these parties contemplated any departure from the customary practice. Properly cleansed, may mean fitted for making iron— reduced to the pure ore — or, it may mean, cleaned as iron ore is usually cleaned, before it is hauled to the furnace; but in this contract, this expression must be interpreted with reference to the facilities which the defendants bound themselves to furnish, and implies that degree of cleansing which reasonable skill and diligence, combined with these facilities, were capable of producing. Now, the question is for the jury, whether the plaintiff used such skill and diligence. If all the, evidence satisfies them that he did; that he prepared the ore as well as he reasonably could with such means as were furnished him, we must, for the purposes of this action, consider the ore ‘properly cleaned of all clay, sand, stone, &c.,’ and hold the plaintiff to have performed his agreement in the particular in which alone failure has been imputed to him by the defendants.</p> <p>“ If the jury should be with the plaintiff in this point, the next question is, does defendant’s letter of the 18th amount to an interruption and rescisión on his part of the contract. The conduct of the clerk, in refusing to weigh the last load of the ore, was in pursuance of one of the defendant’s instructions, and this letter having been read to the clerk, and then sent to the plaintiff, we are to presume that the communications on which they intended the plaintiff to act, are contained in the letter, rather than in the conversation which Gifford had with him. The letter, like the contract, is for the court to construe, and, taking it as a whole, without laying undue emphasis on any particular expression or sentence, we have -no hesitation in pronouncing it a refusal further to execute the contract of 1st November, 1845 — a repudiation of that agreement— and a proposition to substitute for it new and inconsistent conditions. The contract specifies the terms on which defendants were to receive and pay for the. plaintiff’s ore; the letter informs him that ‘hereafter I will not receive any more of your .ore on any other terms than such as I conceive'fair and just;’ the contract gives the defendants no right of dockage; the letter tells the plaintiff, plainly, that, they have assumed this right, ‘and if you think that you can stand the process of dockage of the ore you have hauled since the 1st of April, as well as that which you may haul hereafter, you may continue to haul.’ The contract contemplated the delivery of ore properly cleaned, which, as we have already seen, might, or might not, be absolutely clean ‘ore; the letter demands ‘nothing but the pure iron ore.’</p> <p>“Now, when it is considered that Gates had received no intimation that his ore was not according to the contract, and when the letter was followed by ah authorized refusal to weigh the only load he carried to the furnace after the- receipt of the letter, we hold that he was right in regarding a letter, couched in such terms as an interruption of the contract, and a refusal on the part of the defendants to go on with its performance. He did so regard it. He carried no more ore, but instituted this action for damages.”</p> <p>His honour further said, that the declaration seemed to be com.prehensive enough to embrace the facts of the case, and sustain a verdict for damages, and that the plaintiff might recover for the value of his contract for the whole time it had to run. The errors assigned were: In charging that the narr. was comprehensive enough, &e. 2. In the construction of the contract, as to the manner the ore was to be cleaned. 3. In saying that the jury were to presume that the conversation between the agent and plaintiff referred rather to the letter of defendants than to the conversation. 4. In saying that the letter of August 18th was an interruption of the contract, &c. 5. And in saying that damages might be recovered for the whole time the contract had to run.</p>

<p>In error from the Common Pleas of Centre.</p> <p>The plaintiff’s title was a descriptive warrant, issued in 1880; surveyed in 1832. The defendant held under an improvement, commenced in 1816. The plaintiff then offered in evidence the record of an action brought by him against defendant, before a justice of the peace, which was for a trespass committed on the lands in question. There had been a reference, by consent, and award for plaintiff. No suggestion that the title came in question, appeared on the record. This was rejected. The plaintiffs then offered in evidence a lease from one Cook to defendant, for the lands in question, executed about 1832. But this lease recited that defendant had made the improvement for Cook’s vendor, and it contained an agreement that defendant should have the first chance of purchasing. This was also rejected.</p> <p>The rejection of the evidence were the errors assigned.</p>

In error from the Common Pleas of Cumberland. From the special verdict in this case,.it appeared that the bank* being the owner of a large tract, procured the same, to-be divided, and a draft made, on which the quantities contained in each tract were written. The land was then exposed to sale, the draft being exhibited to the purchasers. Plaintiff purchased one of the ■tracts, at $17.50 per acre. A conveyance was made, and the price paid.

<p>In error from the Common Pleas of Perry.</p> <p>This action was brought to recover the ■ difference between the price bid by defendant at two sales of land by the sheriff, and the price at which it was subsequently sold by him. The first count averred a levy and sale under a vend, exp., subject to a prior mortgage to defendant. The second averred a subsequent levy and sale to him under a levari. Both counts averred a refusal by the defendant to pay the price bid, and that there had been a subsequent sale, &c.</p> <p>1 The defence to the first count was a misdescription in the levy, which description was very minute and particular; but the lands were described as situate in Toboyne township, when in fact they were in Jackson township. After the return of the writ, the court on motion, amended the levy in this particular.</p> <p>The defence to the second count was, that there was no judgment on which the writ issued.</p> <p>The proceeding was a sei. fa. and al. sei. fa. against a mortgagor and terre-tenants. Both were returned nihil as to the mortgagor, and served as to the terre-tenants. Mclntire and Anderson appeared for the terre-tenants. Mclntire then signed the following: “I agree to withdraw the plea in this case, and that judgment be entered for $551.96, with interest from 1st November, 1846. B. Mclntire, attorney for [the word not legible.]” Mr. Mclntire stated this was “terre-tenants.” Endorsed was the following: “Enter this judgment and issue lev. fa. E. Watts, attorney for plaintiff.” The docket entry was: “ January 9, 184T, Benjamin Mclntire, defendants’ attorney, by his agreement in writing filed, withdraws the plea in this case, and agrees that judgment be entered for $551.96, with interest from 1st November, 1846. — 9th January, 184T. Judgment.” It is stated in the opinion of this court, that a rule of the court below allows the prothonotary to enter judgment by default on writs of sei. fa.</p> <p>The court (Hepburn, P. J.) was of opinion that the defect in the description was fatal to the first count, and the want of a judgment fatal to the second.</p>

<p>The recital after a statement of the names of the plaintiffs in ejectment, “heirs-at-law of A.,” does not confine them to their title as his heirs.</p>

<p>In error from the Common Pleas of Juniata.</p> <p>Ejectment and special verdict. Jacob Walker died, leaving three daughters, Jean, Margaret, and Ann; four children of his deceased son James, and five children of his deceased daughter, Elizabeth SteWart. By his will, dated in 1829, he devised certain land to three of his grandchildren. To Ms daughters Jean and Eliza he devised other land to be divided between them, to them, their heirs and assigns for ever. To others of his grandchildren he gave lands in fee, or subject to certain payments. To his granddaughter Mary, her heirs and. assigns, other land, subject to a payment to others of his devisees. To his daughter Ann, certain land, “ upon conditions, in case she have an heir or heirs of her body, then to them, their heirs and assigns for ever; but, in case of no heirs,” then for life only, and that her husband might also be maintained out of it, should he need it. To his daughter Margaret other land, “the said Margaret to enjoy it during her natural life, and if she have any heirs of her body, then to them, their heirs and assigns in fee.” If she had no heirs, her husband was to be entitled to a support out of the profits for life. To Ms daughter Jean, he devised other land and personal property “ to her and her heirs and assigns for ever. * * * And lastly, in ease any of my daughters dies without heirs of their body, I do, and it is my will, that their part, as above bequeathed to them, be equally divided between the survivors of them and my grandchildren, counting James Walker’s'four children one, and Mizabeth Stew~ art’s four children one.” He further authorized his executors to sell certain land, and also any after-purchased land, and divide one-half of the proceeds “ equally between my five heirs; that is to say, James’s children, Elizabeth Stewart’s children, Ann, Margaret, and Jean,” as also all moveables and other personalty, and to pay the other half, at the daughters’ deaths, to their heirs.</p> <p>Jean married Johnson, and they joined in a deed barring the (supposed) estate tail. The grantee re-conveyed to Johnson, who devised to his wife Jean, who survived him, and devised the same to her sisters for life, remainder to the defendant, and died without issue.</p> <p>The plaintiffs were: three children of testator’s son, James Walker; (the fourth died intestate, and without issue, after the testator and before Jean Johnson): McCurdy, the son of one of the children of Elizabeth Stewart, mentioned in the will; (the other three there mentioned died intestate, and without issue, after the testator and before Jean Johnson): and Lukens, a son of a daughter of Elizabeth Stewart, who died before the testator.</p>

<p>Appeal from the Common Pleas of Lancaster.</p> <p>The plaintiff brought assumpsit on the 4th April, 1848. On the 21st May he obtained an award, and issued a fi. fa. Upon this, he moved for the appointment of a sequestrator. The defendant’s wife appeared to the rule, and set forth, that she was the devisee of certain lands from her father, under a will dated in 1835. And she objected to the appointment, on the ground] that, by the act of April 11th, 1848, she was entitled to hold the property to her separate use. But the court appointed a sequestrator, and this appeal was taken.</p>

<p>In error from the Common Pleas of Juniata.</p> <p>Debt on a bond. The record did not show what were the pleas, but, in the charge of the court, it was stated that there was a plea of set-off to which the statute of limitations was replied. The bond was given for the consideration of a house agreed to be sold by plaintiff to defendant. The articles were dated January 31st, 1838; by them the plaintiff agreed to make title on the 15th April, 1838, with the privilege of retaining possession of the dwelling until the 1st November following.</p> <p>The defendant offered to prove that plaintiff remained in possession until April 1st, 1839, and that a reasonable rent was $150; and that, during such occupancy, the property was injured to the amount of $100. The testimony was rejected as matter of set-off, barred by the statute, this action having been brought in 1846.</p>

In error from the Common Pleas of Cumberland. Debt on a bond by defendant to Jacob Mishler, brought by his administrator, to the use of his son. The plaintiff called the widow of the intestate, to prove the lost bond. Her present husband had released to the son, in consideration of one dollar, all her interest in this suit.

<p>In error from the Common Pleas of Perry.</p> <p>Ejectment. The plaintiff showed title in Gardner, and offered in evidence a deed to Mateer, under a tax-sale in 1810, which was rejected for want of proof of compliance with the law. He also offered a conveyance,from the heirs of Mateer to himself; its date was not given. He further proved a tax-sale to himself in 1846.</p> <p>The defendant proved that for twenty-five years past the land had been reputed to be Harper’s, who had exercised acts of ownership on it. In 1842, a judgment was recovered against him, and the land sold by the sheriff in 1844. The purchaser conveyed to defendant. In 1847, defendant paid the redemption-money on the tax-sale in 1846. The plaintiff then proved that about 1841 or 1842, he had applied to Harper to purchase the land, and he informed plaintiff that the title was in Mateer’s heirs, and gave him “ an extract from the prothonotary’s docket” to enable him to write a deed. Plaintiff then sought to purchase their title, but they refused to sell. He afterwards obtained a deed from them. Plaintiff then again offered the deed from Mateer’s heirs, and the deed under the tax-sale in 1810 to him, but the court rejected them.</p> <p>Hepburn, P. J., instructed the jury that the evidence did not show any such arrangement by Harper, as would affect the defendant’s title, and that he had such a title as authorized him to redeem the lands. The charge and the rejection of the evidence were assigned for error.</p>

<p>An action at common law does not lie in tliis state for harbouring runaway slaves, or for aiding them to escape from their owners.</p> <p>And the state courts have no jurisdiction under the acts of Congress on that subject: Per Coulter, J. •</p>

<p>In error from the Common Pleas of Cumberland.</p> <p>This was a petition by S. Woods, Jr., and several of his judgment-creditors, praying to be subrogated in the place of Bray & Barcroft, in two judgments they held against William Moore. The petition set forth that S. Woods, Jr., and William Moore were sureties for N. W. Woods, in debts owing to Bray & Barcroft and others. Judgments had been obtained by Bray & Barcroft in April, 1844, for $2,450. N. W. Woods was also indebted to other persons, to the amount of $4,608. William Moore was also his surety for these debts, and S. Woods, Sr., was his surety for $650, part of the same. In November, 1843, N. W. Woods confessed a judgment for $4,608, to William Moore, to secure him and S. Woods, Jr., and S. Woods, Sr. Under an execution on this judgment, $2,597.44 were levied.</p> <p>N. W. Woods was also the holder of a mortgage given by John Moore, of which he assigned to William Moore $2,450, on the 23d of December, 1843, to secure him from his said liabilities for N. W. Woods. The land was sold by the sheriff, and out of the proceeds $1,313.50 were paid, by virtue of the assignment, to the judgments of Bray & Barcroft. Since then the real estate of S. Woods, Jr., had been sold by the sheriff, and out of the proceeds the balance of Bray & Barcroft’s judgment had been paid, amounting to $1,516.21. That Moore had also received $301.35, belonging to N. W. Woods, with his consent. The lien-creditors of S. Woods, Jr., whose lands had been applied to the payment of N. W. Woods’ debt to Bray & Barcroft, prayed to be subrogated to that extent, viz., $1,516.21, on their judgment against William Moore.</p> <p>The answer of Moore stated that he had received on the execution against Woods but $1,893.92. That, under the mortgage, he received $1,313.59, and, after paying counsel fees, &c., there remained but $1,163.59, and he denied that the assignment was made for the purposes stated in the petition. As to the $301.35, they were not received on account of such liabilities, nor had they any connexion therewith. He further averred that N. W. Woods was indebted to him exceeding $2,000.</p> <p>The evidence, proving that this mortgage was assigned for William Moore’s indemnity, as surety for N. W. Woods, is stated in the opinion of this court. Mr. Graham, one of the witnesses for the petitioner, was the attorney for Moore, and drew the confession of judgment to him by N. W. Woods. The assignment of the mortgage was not drawn by him, but he was employed as his counsel, on questions arising on the distribution of the money on the execution under which the property was sold. While that case was pending, Moore communicated to him the object of the assignment. The witness said it was not necessary to him as counsel, and lie considered it in the light of a casual conversation; and whether Moore considered them as made in the character of a client, he could not say. The purpose of the assignment never came in question in the cause in which he was concerned as counsel.</p> <p>As to the $801, it was proved that Moore had returned the amount to Woods. The evidence also showed that after Moore had applied the proceeds of his execution of his judgment against N. W. Woods to the payment of his liabilities, as his surety, there remained in his hands a balance of $10.23, $1,163.69 of that fund having been applied to the payment of Bray & Barcroft’s debt, for which they had judgments against Moore and S. Woods, Jr., and that the amount paid towards Bray & Barcroft’s judgments against Moore and S. Woods, Jr., out of the mortgage assigned to him by N. W. Woods, was $1,525.24.</p> <p>The lien-creditors of S. Woods, Jr., whose liens had been deferred by the execution on Bray & Barcroft’s judgment, were decreed to be subrogated on his judgment against Moore to the extent of the balance in his hands, and the one-half of $1,525.24, it being shown that N. W. Woods was insolvent.</p> <p>The formal objections were: 1. That the creditors united in the petition. 2. The petition did not set forth the amounts due to each. Their judgments were referred to. 3. The petition was not sworn to but by one of them.</p> <p>The case was brought up by writ of error, but that objection was abandoned.</p>

<p>A decree of confirmation by tbe Orphans’ Court on an auditor’s report of the settlement of a guardian’s account, is conclusive as to lxis liability to the ward.</p> <p>But his administrators are not liable on their official bond for such a debt until they are fixed with a devastavit.</p> <p>When a party is estopped by acts in pais.</p>