Volume 10 — Sergeant & Rawle's Pennsylvania Reports

<p>Error to the Court of Common Pleas of Lancaster county.</p> <p>Ejectment by Anthony Long, the plaintiff below, against Rudolph Hoak, and Daniel Minich, defendants below, for a tract of land in Lykens township, Dauphin county, containing 70 acres, or thereabouts. The jury found a verdict for the plaintiff for 37 acres and 20 perches, particularly specified in the verdict.</p> <p>Six bills of exceptions to evidence were taken by the defendants on the trial in the court below, but only one was now noticed in the opinion of the court, viz: a bill of exceptions to a deed dated the 9th October, 1813, from Matthias Weymar and wife, to the plaintiff, FLnthony Long, which the court below allowed to be read in evidence by the plaintiff.</p>

Writ of error to the Court of Common Pleas of Dauphin county, in an action of debt in the court below, brought by Jacob Bucher, administrator of Jacob Boas, deceased, against Frederick Wolfersberger, and Frederick Beissel, on a note under seal, dated the 27th November, 1815, given by the defendants to the plaintiff, as administrator, for the payment of 204 dollars, and 27á cents. Plea payment, with leave to add, alter, and amend, and to give the special matters in evidence.

<p>Error to the court of Common Pleas of Dauphin county, in an ejectment, brought by the plaintiff below, Innis Green, administrator cum testamento annexo, of Robert MlCord, deceased, against Thomas D. Cornell, James Urmstrong and John Sawyer, the defendants below, in which a verdict and judgment were rendered in favour of the plaintiff.</p> <p>Exceptions were taken by the- defendants below, to the opinion of the court, on points of evidence, and also to their charge.</p>

•In the court below, Peter Rough, the plaintiff, brought this action of slander against James Todd, the defendant.

This was a writ of error to the Court of Common Picas of t-he county of Dauphin, in an ejectment brought by the plaintiff Adam Light, against the defendant Thomas Woodside, for 500 acres of land in that county. The jury give a verdict for the defendant, and judgment was rendered accordingly.

<p>IN ERROR.</p> <p>A special plea of fraud and covin to debt on a single bill, is in nature of a special non est factum: and if the plaintiff reply to such plea, that it is his deed, on which issue is joined, and a verdict given for the plaintiff, the judgment is regular.</p>

<p>Error to the'Court of Common Pleas of Dauphin, county, in a scire facias, brought in the name of the plaintiff below, dimos Eli-maker, President of the Orphans’ Court of the county of Dauphin, for the use of James Jilrichs, now for the use of James Williams, against Daniel Reigart and Nicholas Sweyer, terretenants of a brick house in Harrisburg, defendants below, and plaintiffs in error, in which a verdict and judgment were rendered in the court below, in favour of the plaintiff.</p> <p>The scire facias was on a recognizance, entered into by John Kean, who intermarried with a daughter of John Hamilton, deceased, who died intestate, to secure the payment of the shares and purparts of the children, out of the premises taken by the said Kean, at the appraisement, under a decree of the Orphans’ Court, among which was this house. Kean transferred the house to Henry Orth, under whom the defendants claimed, in July, 1806. This scire facias was originally brought by James Jilrichs, who married one of the daughters of the intestate, for her share, and was subsequently assigned to James Williams, and in the action entitled Jilrichs for the use of Williams, the jury was sworn. The parties went to trial, on the plea of payment, with leave to give the special matters in evidence.</p> <p>There was no attempt to prove a direct payment. Other estate of the intestate had been taken by several of his children. Jllricks and Kean took one estate, and Jilrichs alone, another in Mifflin county. Kean likewise took a farm in Dauphin county, valued at £3,125, part of which he sold to Mr. Fisher,• the residue was sold by the sheriff, as the estate of Kean, at the suit of Moses Mc Lean, who had married a daughter of the intestate, and had obtained a judgment for his purpart out of the tract. A feigned issue was directed by the Court of Common Pleas to ascertain what was due on the recognizance binding this tract, to each of the distributees; in which Jilrichs was made a party. He disclaimed of record, and disavowed the authority to make him a party.</p> <p>The defendants on the trial in the court below, contended, first, that Jilrichs had permitted this property to be sold without any notice to the purchaser. Second, that he and Kean took land in Mifflin, and he conveyed his interest to Kean. Third, that he released to Kean all his interest in the farm in Dauphin county. Fourth, that suit was brought by Mr. McLean, for his wife’s distributive share in the farm, and Jilrichs disclaimed on record, all interest in that recognizance. The defendants, after giving a variety of evidence, gave in evidence the record of the action brought by MiLean against Kean, the feigned issue, and the disavowal of Jllricks. This action was brought to May, 1812: the feigned issue was entered of May, 1818. The plaintiff then gave in evidence a release of the 26th October, 1806, from Jllricks to Kean, of all the Dauphin tract, and offered a letter from Kean to Jilrichs, dated in 1805, requesting him to release his interest in the land sold to Mr. Fisher, as he would not pay the purchase money without releases, and stating that there was some other property to make him safe. This evidence was objected to by the defendants, and admitted by the court, who sealed a bill of exceptions.</p> <p>The plaintiff offered in evidence an assignment of his claim in this action to James Williams, dated 19th June, 1807. This was also objected to by the defendants, and admitted by the court, and an exception taken.</p>

In the Court of Common Pleas of BerJes county, to which this writ of error issued, the case was this: Samuel' Umbehower, the plaintiff below, brought an action of assault and battery in that court,. against Jacob Miller, the defendant below. The action was referred to arbitrators under the act regulating arbitrations, passed the 20th March, 1810. An award was made in favour of the plaintiff for forty-five dollars, and filed in the. oiSca, of the prothonotary.

The plaintiffs, Robert Geddis and Samuel Kerper, as surviving obligees with John Wolfersberger, deceased, brought this action of debt against the defendant, Jonas Hawk, surviving executor of Michael Hawk, deceased, who was jointly and severally bound with Adam Hawk, to recover the amount due on two bonds, dated the 3d of April, 1810, conditioned for the payment 420 pounds, one shilling, and four pence each, with interest.

<p>IN ERROR.</p> <p>If there are articles of agreement forthe sale of lands, in which no time is stipulated for delivery oi possession, but before the day of payment of tile purchase money, the vendee obtains possession by the consent of the vendor, and the purchase money not being paid, the vendor obtains possession unlawfully, by the act of a third person, the vendee may recover in ejectment without tendering the purchase money or bringing it into court.</p> <p>Possession of land is always constructive notice of the actual title of the person in possession.</p>

This was a writ of error to the Court of Common Pleas of Lancaster county, in an action of slander brought by Jacob Eckart against John Wilson, in which the jury found a verdict for the defendant.

<p>IN ERROR.</p> <p>Articles of agreement for the sale of land are evidence, notwithstanding a deed afterwards executed under them, in a suit on bonds given in pursuance of the articles, to show, that the bonds were given for certain lands, or that the articles contained a stipulation that the bonds should not be paid without six months notice, which circumstance was concealed from the defendants, who were sureties in the bonds</p> <p>Evidence of general character of a party is admissible only in actions where character is put in issue. In debt, the plea of fraud does not put the character in issue.</p> <p>Where the defendant proves circumstances, showing anticipated payment of a bond, and the obligee is dead, the plaintiffs, his representatives, may give in evidence, to repel the presumption, that the testator received large sums of money about that time, and was not in want of funds.</p> <p>Under the plea of payment, with leave, the jury cannot find any sum due from the plaintiff to the defendant.</p> <p>The jury cannot, under any plea or notice, find a sum due from the plaintiff to the defendant, to be deducted from another debt due from the defendant to the plaintiff.</p> <p>The court will notice an error not assigned, which plainly appears where the justice of the case requires it.</p>

Case, by Jacob Strickier and George Weaver, plaintiffs, against William Todd, in which the declaration stated, that the plaintiffs being seised of a certain grist and saw mill in the borough of Columbia, worked and turned by the waters of Shawnee Run, the waters of which were graiited and secured for the use of working and turning mill machinery on the site where the said mill stood, through and from the lands formerly of Thomas Blunston, and now of the heirs of Samuel…

It appeared from the evidence returned with the bills of exceptions, that Henry Slaymaker, the plaintiff, John Gundacker, the defendants’ testator, and others, were directors of the Falmouth and Elizabeth Town Turnpike-road Company. This company being in debt, the directors came to a resolution to borrow money, and applied to the Farmers’ Bank of Lancaster, for a loan in their corporate capacity.

Ejectment by Edward Graff Reichenbach against Elizabeth Eornich and others, for a lot of ground and three houses in the city of Lancaster, anda tract of 31 acres in the county of Lancaster. A verdict and judgment were rendered against the defendants, (now the plaintiffs in error,) in the court below, and the case came up on several bills of exceptions to evidence, and to the charge of the court, taken by the defendants.

Replevin by Thomas B. Smith, plaintiff, against John Jlurand, defendant, to which the sheriff returned, replevied, and delivered to the plaintiff. The defendant made cognizance as bailiff of John Templin and others, for rent in arrear. The plaintiff replied, no rent in arrear and issue.

This was an action brought by Nathan Trotter, indorsee of John Lynn, against Barnabas M‘Cormick, as the maker of a promissory note, by which he promised, two months after date, to pay to John Lynn, or order, at' the Harrisburg Bank, and in bank notes of the chartered banks in Pennsylvania, 500 dollars, without defalcation, for value received. On the trial, several exceptions were taken to the admission of evidence, and also to the charge of the court.

This suit is brought on a penal bond, dated the 3d April, 1815, by which Alexander Underwood, the defendant, bound himself to the plaintiff, Samuel Lilly, executor of Edward Ml-Cabe, deceased, in the penal sum of 1,900 dollars, conditioned for the payment of the sum of 57 dollars, annually, to Rebecca M‘Cabe, widow of Edward M‘Cabe, during her natural life, and at her decease, the sum of 950 dollars, to be paid to the said Samuel Lilly, the plaintiff.

<p>Error to the Court of Common Pleas of York county.</p> <p>A scire facias post annum et diem, was issued to August Term, 1819, by Daniel Eaton, for the use of Robert Coleman, plaintiff below, on a judgment which had been entered against Caleb Kirk, the defendant below, on the 7th October, 1817, by confession. The scire facias was returned, made known, and in August, 1819, after a rule to plead, the defendant’s attorney entered a plea. The record of íhe proceedings in the suit was then as follows. September 4th, 1819, plaintiff files a rule to have arbitrators chosen on the 20th instant. September 20th plaintiff appeared, and defendant and his attorney acknowledged the service of the notice; plaintiff and prothonotary appoint Daniel Heckert, and George Haller, Esquires, and Jacob Upp, arbitrators, to meet at Clement Stillingers, York, on the 5th of October next. October 5th, 1819, arbitrators report, that they find for the plaintiff 2418 dollars and 12 cents, and costs. Judgment nisi. October 26th, 1819, judgment absolute. In the minutes of the arbitrators they stated, that legal notice was given to the defendant, and that he did not appear before them. Fieri facias to November Term, 1819. Venditioni exponas to January, 1820: sale set aside. Alias venditioni exponas to April Term, 1820. On this alias the sale was completed by the sheriff, and he received the money. Rule on the sheriff to bring the money into court: on which it appeared, that the sheriff had paid part of the money to creditors of the defendant, who had a lien on the land prior to the plaintiff’s judgment, and the residue to the plaintiff in part payment of his judgment.</p> <p>'The plaintiff in error had assigned eight errors in the proceedings below, but that they were all relinquished except three.</p> <p>Í. That the period fixed for the meeting of the arbitrators was less than 20 days from their appointment.</p> <p>2. That the defendant below had not notice of the time and place of choosing the arbitrators.</p> <p>3. That the defendant below had not 15 days notice of the time and place of meeting of the arbitrators.</p>

Pancake issued a foreign attachment in the Court of Common Pleas of Dauphin county, against Hiland IJ. Parker, in debt by assumption, which was levied on money in the hands of Harris, the garnishee.

<p>IN ERROR.</p> <p>Comparison of hands is evidence in civil cases, where it goes in corroboration of other evidence tending strongly to support the fact disputed.</p>

<p>Error to the District Court for the city and county of Laucas-' ter, in an action of replevin, brought by Jeremiah Brown, the plaintiff below, against James Hi. Caldwell, the defendant below, in which a verdict and judgment were rendered for the defendant.</p> <p>The case was argued by Hopkins and Montgomery for the plaintiff, and Buchanan and Rogers for the defendant.</p>

<p>IN ERROR.</p> <p>On the death of the plaintiff after judgment, and the suggestion thereof on the record his administx-ator may issue execution without scire facias.</p> <p>But the defendant maybe enabled on motion, to avail himself of every defence which he might have had on a seif-e facias.</p>

1. That the Court of Quarter Sessions refused the appeal tendered by George Hoyer, guardian of Samuel and Mary Rutherford, minor children of Thomas Rutherford, deceased. 2.

<p>IN ERROR.</p> <p>Though on an appeal from a justice, the instrument declared on in the Common Pleasbe stated differently from that mentioned by the justice in some particular’s, yet this court will not reverse the judgment, if the cause of action appear in reality to have been the same before both.</p> <p>A judgment for costs given under an existing law, is not affected by a subsequent repeal of the law.</p>

<p>IN ERROR,</p> <p>The defendant engaged to keep the plaintiff clear of back interest, but not doing' so, judgment was obtained for it against the plaintiff. Held, that from that rao» ment the plaintiff was damnified, and might sue on the engagement,</p> <p>Query, whether an assignment by an assignee of all his interest in land, indorsed on the original articles of agreement for the purchase of it, dispenses with the ne, cessitv of proving the articles, or any previous assignment, indorsed thereon.</p> <p>At all events, a subsequent assignment by his assignee, must be proved in the or» dinary way by a subscribing witness. A reference to such subsequent assign» ment, in a contract signed by the defendant, is not sufficient to dispense with the ordinary proof j if it refers to it generally, and contains nothing to identify it.</p>

<p>Error to the Court of Common Pleas of Susquehanna county-The case was argued by Conyngham and Greenough, for the plaintiff in error, (who Was plaintiff below) and by WiUiston and Case, for the defendant in error.</p>

<p>Error to a special Court of Common Pleas of Mifflin county, held before Reed, president of the ninth district, and the associate justices of Mifflin county.</p> <p>- Ejectment for eighty-five acres of land, brought by Isaac VanSwearingen and others, plaintiffs below, children and heirs of Thomas Vanswearingen, deceased, who died intestate, seised of-the land in dispute in fee simple, against George Nass, the defendant below. On the trial in the court below, after proof by the plaintiffs of the title of the deceased, and of the plaintiffs’ pedigree, the defendant offered in evidence the records of two judgments,in the Court of Common Pleas of Mifflin county, recovered by Thomas Indis against Samuel Vanswearingen, one of the children of the said Thomas Vanswearingen, as executor de son tort of the said Thomas Vanswearingen ; on which an execution was issued, and the land in dispute was sold by the sheriff to Nass, the defendant: the taking possession of the land by Nass; the payment of $ 700, the purchase money; the making of large and valuable' improvements t.hereon by the defendant, with the' full knowledge of the plaintiffs; that, the sheriff’s sale was open and public, and that some of the children of Thomas Vanswearingen were present at it, urging the sale of the land; together with an article of agreement entered into between Samuel Vanswearingen, one .of the children of the said Thomas Vanswearingen, (but not one of the plaintiffs in this suit) with the full consent and knowledge of the plaintiffs and Nass the defendant, for the sale of the land in dispute. This evidence was objected to by the plaintiffs, and overruled by the court. To this decision of the court, the defendant tendered a bill of exceptions.</p> <p>The defendants then offered in evidence the records before mentioned, with an offer to prove further the payment of the amount of said judgments and costs to the sheriff, and the application thereof to the payment of the debts of the deceased. This evidence being objected to by the plaintiffs, was also rejected by the court, who sealed another bill of exceptions.</p> <p>The plaintiffs having given some evidence as to the personal property left by Thomas Vanswearingen, in order to rebut this, the defendant offered to prove, that soon after the death of Thomas Vanswearingen, all his personal property, consisting of two horses, a cow, wagon, &c., were sold by the constable of the township at public sale. This evidence was objected to by the plaintiffs, and rejected by the court. The defendant tendered another bill of exceptions. .</p> <p>The record returned with the writ of error stated, that after the jury were charged and sent out, they returned, and said by their foreman, they had agreed upon their verdict. The prothonotary inquired how they found in the issue, &c. The foreman answered for the plaintiffs, and handed a paper to the court containing a statement of their finding. The court informed the jury that it was informal, and asked them what was their meaning; • whether they found for the plaintiffs their whole claim. They answered in the affirmative. The court directed the finding to be moulded into the form in which the verdict was recorded, and asked the jury if that was their verdict. They answered, that was their meaning. The counsel for the defendant requested the court to file the paper handed to them by the jury. The court refused, and said the form of the verdict was a matter.between the jury and the court: and also refused to show the paper to the counsel for the defendant. The defendant’s counsel then requested the jury to be inquired of severally how they found. This was done, and they severally answered for the plaintiffs. The verdict was then read over a sentered, and they were asked if they agreed. One of the jurors said something about the costs. The court stated, that the finding for the plaintiffs carried the costs, and the jury could not direct otherwise. They then all assented to the verdict as entered. At the request of the plaintiffs’ counsel, these facts were certified by the court, and ordered to be filed as matter of record in the cause. The defendant excepted to the charge of the court.</p>

IN ERROR. Persons having a right of entry into land at the time of passing the act of limitations, of the 26th March, 1785, are not barred by an adverse possession of 18 years from that time; there must be 21 years adverse possession to bar them of their right, whether their right existed before, or arose after that act.

<p>IN ERROR. ,</p> <p>The return of «served” by the sheriff on a writ of ejectment, is prima fade evidence of possession by the defendants, whether they be originally named in the writ or added by the sheriff.</p> <p>The land of one attainted of treason by the act of the legislature of Pennsylvania of 6th March, 1778, is not restored to him or his heirs, by the 6th article of the treaty of peace with Great Britain, though the state has not sold the land, nor even known its position.</p>

Ejectment, originally brought by Simon Snyder against Robert Smith, in which the death of the plaintiff was afterwards suggested, and his heirs substituted. It was to recover 8 acres of land, and involved a dispute between the plaintiff and the defendant, concerning their lines, both claims adjoining tracts by conveyance from a person in whom the title had been vested.

<p> IN ERROR. </p> <p>When a party gives in evidence his books of original entries, kept by another, who is absent from the state, and whose handwriting is proved, the opposite party may give evidence as to the genera' character ior honesty of such absent person.</p> <p>Where the suit was bi’ought in November, 1818, and one count in the declaration averred, that in consideration that the plaintiff at the special instance, &c. of defendants, agreed to sutler them to occupy certain premises for the term of four years, commencing in August, 1816, and to board one of the defendants, plaintiff did suffer them to occupy the same for the said term of four years, and boarded one of the defendants, and a general verdict was given. Held, that though on demurrer it. would be a fatal objection, that the jury gave damages for a period after the commencement of the suit, yet the defect was cured by verdict.</p> <p>If an exception is taken to the opinion of the court rejecting evidence, and the same evidence is afterwards admitted, the exception cannot avail the party.</p>

<p>These were writs of error to the Court of Common Pleas of Union county, in causes which depended on the same title, and were in this court decided together. They were ejectments for two lots of ground in the town Louisburg, commonly called Derr’s Town, on the west branch of the river Susquehanna. The plaintiff gave in evidence a patent to Richard Peters, dated the 11th JLugust, 1772, for a tract of 320 acres of land, called Prescott, including the land in dispute, and then showed a regular chain of title down to Peter Borger, of the city of Philadelphia, who by deed, dated the 2d January, 1787, conveyed in fee to Carl Ellinckheusen, of the city of Rotterdam, merchant. The plaintiff then offered in evidence a deed from Carl Ellinckheusen, by his attorney Peter Borger to Richard and James Potter, which deed recited the power of attorney. To this the counsel for the defendant objected. The court rejected the evidence, and an exception was taken to their opinion.</p> <p>The plaintiff offered in evidence the exemplification of a power of attorney recorded in the Roll’s office, from Carl Ellinckheusen “to Peter Borger, and gave parol evidence that the original was not to be found. This power of attorney was not signed or sealed by Ellinckheusen, but it was certified by a notary public of Rotterdam, that Ellinckheusen personally appeared before him with two witnesses, and declared that he had given power to Peter Borger, to sell and convey his lands and lots in the town of Louisburg. This declaration was attested by the said two witnesses and the notary, and certified in the usual forms, under the notarial seal, &e. The plaintiff offered, moreover, to give a variety of other matters in evidence, as introductory to the deed from Ellinckheusen by his attorney Borger to Richard and James Potter, after which he proposed to offer the said deed again in evidence. The substance of these matters was as follows: Evidence was offered that Peter Borger, as attorney for Carl Ellinckheusen, executed a deed to Matthias J. Ellinckheusen, (son of Carl,) for a number of lots in Louisburg. That Ellinckheusen, the son, sold many of these lots to persons who had erected buildings on them*, and held the possession to the day of trial. That the said Borger, as attorney aforesaid, sold and conveyed many other lots to other persons, who paid for the same, and had erected buildings, and held uninterrupted possession. That John Lawshe, one of the defendants, was in possession of one or more lots under a title derived from Peter Borger, as attorney to Carl Ellinckheusen, and that the said Borger, wrote a letter to the Rev. J. C. Helbron, dated the 18th January, 1791, by which he acknowledged that he had received notice of the revocation of his aforesaid power of attorney, and of the grant of a new power of attorney by the said Carl Ellinckheusen to the said J. C. Helbron. The evidence was objected to by the defendant, and overruled by the pourt, whereupon the plaintiff excepted.</p>

• This was a writ of error to the Court of Common Pleas of Union county. It was an action of debt on a single bill, brought by William Gougler, for the use of George Gougler, plaintiff below, against Ptter Marshall and Sally Marshall, defendants below, in which the sheriff returned “summoned,” but an appearance was entered for Sally Marshall only, who pleaded non assumpsit and payment, and the plaintiff replied non solvit and issue.

<p>IN ERROR.</p> <p>If in a suit on a single bill, it appear, that at the time of its execution, a blank was left where the name of the payee was afterwards inserted, but evidence is given tending to show, that it was left blank in order that the name of the payee might afterwards be inserted, the due execution of the instrument is for the jury to decide,and it is error for the court to reject the bill.</p> <p>If a blank be left in a single bill when it is executed, for the name of the payee, with an intention that it should be filled up when the money is borrowed of him, and an authority is given to that effect by the obligor, and the money afterwards is obtained, and the name inserted, this is not such an alteration as avoids the bill, but it is valid.</p>

The defendant, George Sweney, was indicted in the court below, for a libel on David Petriken, and found guilty on the third and fourth counts of the indictment.

This was a writ of error to the Court of Common Pleas of Columbia county, in which the case was as follows: John Cowley and others, plaintiffs below, children of James Cowley, deceased, brought an ejectment against Peleg M. Leek, the defendant below, and plaintiff in error, for a tract of land in Columbia county.

<p>APPEAL</p> <p>An United States tax is not a public tax, the payment of which gives a right of set. tlement under the act of 1771.</p>

It was an ejectment for part of a tract, of land in that county.

This was a writ of error to the Court of Common Pleas of Mifflin county, in which the plaintiffs and defendant in error were plaintiffs and defendant below, a verdict and judgment having been tendered for the defendant. The action was debt on recognizance, brought by Foster Milliken and David Milliken, trading under the firm of Foster Milliken & Co. against William Brown.

IN ERROR. In ejectment, if the lease laid in the nan-, has expired, the enlargement of it is an amendment in matter of form, and it is error under the act of 21st March, 1806, if the court refuse it. Error to the Court of Common Pleas of Columbia County, in an ejectment brought by the lessee of Philip Maus against Montgomery and others. The case was submitted to the court without argument.

■ - Debt by Abraham Saunders, the plaintiff below, against William.Kimble, before á justice of the .peace, for á sum under 100 dollars. The justice gave judgment.for the plaintiff for 17 dollars dnd 20 cents, and the defendant appealed. The plaintiff afterwards entered a rule of arbitration, and the arbitrators filed a report in favour of the plaintiff, dated the 20th May, 1813, for the sum of 8 dollars, 65 cents.

<p>in error.</p> <p>If a party produce a letter iu evidence on a trial, that is sufficient gf ound to make it evidence for the opposite party in a subsequent trial of the same action.</p>

<p>This was a writ of error to the Court of Common Pleas of Westmoreland county, where the plaintiffs below, Oliver Allison and Robert Allison, brought ejectment against Joseph MGennis, William Millegan, and Noah Roberts, to recover a tract of land in that county. The plaintiffs gave in evidence a location, dated 3d April, 1769, for 300 acres, &c. in favour of Benjamin Armitage, and survey thereon, 22d June, 1769. Thej7 then offered in evidence a deed poll, dated Sth March, 1773, purporting to be from Benjamin Armitage, of the cityof Philadelphia, to Francis Allison, of the same city, by which the land was conveyed in consideration of five shillings. The deed was attested by Joshua Seeney. It appeared to have been acknowledged on the day it was executed before Benjamin Allison, a justice of the peace of Northumberland county. Together with the deed the plaintiffs offered the .deposition of Thomas MiKean, and Shewbert Armitage: the for* ,mer stated that he had made diligent search for Joshua Seeney, the witness to the deed, but had not been able to discover him, nor could any trace of him be found, in the city and county of Philadelphia, nor could he find any person who knew his signature, Shewbert Armitage testified that he was well acquainted with the handwriting of his fathér, B. Armitage, having often seen him write: that the signature, Benjamin Armitage, to the deed and receipt were his handwriting. The defendants objected to the deed, but the court admitted .it in evidence, and the defendants excepted.</p> <p>The plaintiffs offered in evidence the copy of the will of Francis Allison, dated the 9th of May, 1813. The will was made by Francis Allison, of the township of London Grove, Chester county, state of Pennsylvania, practitioner of physic and surgery: but as the deed above-mentioned was to Francis Allison, of the city of Philadelphia, the defendants on that account objected to the copy of the will. The court however allowed it tobe read in evidence and sealed another bill of exceptions.</p> <p>Both the points contained in the bills of exceptions were now assigned as errors in this court by Alexander, for the plaintiffs in error, who cited on the first point, Engles v. Bruington, 4 Yeates, 345. Peters's Lessee v. Condron, 3 Serg. fy Bawle, 380. Haulz v. Bough, 2 Serg. 4’ Bawle, 342, Powers v. M‘Ferran, 2 Serg. -4* Bawle, 44. He cited on the second point, Falkner’s Lessee v. Eddy, i 'Bimi. 190.</p>

Trespass, in the Court of Common-Pleas of Allegheny county, brought by Nicholas Cunningham, the plaintiff below, against Morgan Neville, sheriff of the county, who had, under a judgment and fieri facias issued against one Thomas Cromwell, seised and sold certain furniture and goods in his possession, which the plaintiff claimed under an assignment in writing, dated the 29th October, 1819, recorded on the next day, in the Recorders office.

<p>Replevin in the Court of Common Pleas of Allegheny county, in which George Williams the plaintiff in error, was plaintiff below and John Smith, and Alexander M‘CUnlock, defendants, removed to this court by writ of error. The sheriff returned the goods replevied and delivered to the plaintiff, and a declaration having been filed, Smith made cognizance and M‘Clintock avowed for rent in arrear, for a house and premises situate in the city of Pittsburg. They also pleaded non ceperunt. The plaintiff replied no rent in arrear. The jury found a “verdict for the defendants for 383 dollars, 30 cents, with costs of suit,” and the court entered judgment thereon, and that the defendants have return of the goods irreplevisable.</p> <p>On the trial, the taking being proved by the plaintiff, the defendants gave in evidence certain articles of agreement under seal, made the 13th March, 1819, between the plaintiff George Williams and Alexander M‘Clintock, by which MiGlintock rented to Williams, for the term of three years a certain house and property thereon described,” which property the “ said Alexander MiGlintock, rented from Samuel Black: the said Alexander is to give possession of the premises on the first day of April next, until three years expires. For and in consideration of the above the said George agrees to pay unto Samuel Black, the sum of 575 dollars annually, to be paid quarterly, in good current paper or specie, together with all the taxes on said property, during the term of threeyears beginning the first of April next. Said George agrees to comply with the said Alexander’s article with Samuel Black, as far as it agrees with this article, and no farther, and also to make what repairs are mentioned in said article concerning the kitchen and fencing in the lots. For the true performance of the above, we bind ourselves, our heirs and assigns, in the penal sum of 6000 dollars. In testimony, &c.”</p> <p>The defendants further gave in evidence, the warrant to distrain issued by M(Clintock, and proved rent in arrear, and also that the parties, M‘Clintock and Williams, had met together to settle the balance of i’ent in arrear. Williams produced his receipts from MiGlintock for rent, and they ascertained the sum due. It was further shown that Williams had cited M‘Clint ode before a justice of the peace, under the provisions of the act of 20ih March, 1810, to settle a defalcation which he claimed, and obtained a set off of a few cents. M‘Clintock was in possession at the time of making the lease, and delivered the possession up to Williams, who enjoyed it.</p> <p>The plaintiff contended, that the lease reserved the rent to Samuel Black; that MiGlintock was himself a tenant to Black, and assigned his interest to Williams, and that under the lease MiGlintock had no right to distrain, although Black had. The plaintiff also requested the court to instruct the jury, that in case they found in favour of the defendants, they should find the value of the property which they might consider properly distrained.</p> <p>The court charged the jury, that if they were satisfied of the exeCUtion of the lease, that Clintock had had and transferred the possession of the demised premises to William,s, who enjoyed them according to the lease, that the latter recognized M‘CUnlock as his landlord, paid him rent, cited him to appear as his landlord and defalk, M‘Clintock, certainly was his landlord, and had a right to distrain, and the covenant to pay the rent enured to the use of MiClintock. Further, it was to be observed that it did not appear what was the extent of M( Clintock’s interest, nor that he had assigned the whole of his term. Nor was there so far as appeared to the court, any evidence, that Black knew any thing of this lease, or that he had ever claimed or recognized any manner of right or interest under it, or that he even authorized Mi Clintock to make it for his benefit. If such were the facts Black could have no right under this lease to distrain for this rent.</p> <p>The court further charged the jury that if the found for the avow-ant they should find the amount of rent in arrear and might if they pleased find interest and to give interest from the day of the distress, would seem to be proper.</p> <p>To this charge the plaintiff excepted.</p> <p>The following errors were uow assigned,</p> <p>1. That the court charged that M‘Clintock was entitled to dis-train under the lease, and that Black was not so entitled.</p> <p>2. That the jury were' not entitled to find the value of the property lawfully distrained.</p> <p>3. That the jury were directed or authorized to consider the lease under which defendant avowed, as altered or done away by the presumptions arising from the other evidence.</p> <p>4. That the judgment is not supported by the verdict.</p>

<p>Writ of error to the Court of Common Pleas of Allegheny county.</p>

<p>This was a writ of error to the Court of Common Pleas of Wash* ingtoti county.</p>

<p>Roland Curtin, and Moses Boggs, John Mitchel and David Mitchel, (the two former composing thefirm of Curtin and Boggs, the two latter that of J. and D. Mitchel,) defendants in error, and plaintiffs below, brought this action of assumpsit against Jlndrew Boggs, in the Court of Common Pleas of Indiana county, and declared for money paid laid out and expended by the plaintiffs for the use of the defendant, and at his special influence and request. The defendant pleaded non assumpsit and the statute of limitations., and issues were joined.</p> <p>On the trial the plaintiffs proved that Boggs, the defendant, being indebted to the firm of Duncan and Foster, in the sum of 1,428 dollars, 72 cents, and having removed to Pittsburg, the plaintiffs at the instance of J. Mitchel, the defendant’s agent, gave him their joint note for that sum in favour of Duncan and Foster, and the plaintiffs afterwards paid Duncan and Foster the amount, and took up the note. The note was a common promissory note, signed, “for A.Boggs, J. Mitchel, J. andD. Mitchel, Curtin and, Boggs” promising that they, or either of them, would pay Duncan and Foster, on the first of April, next, 1428 dollars, 72 cents, for value received. The receipt for the money indorsed was as follows: “Received November, 26th. 1813, of Messrs. Curtin and Boggs, and John and' David Mitchel, the bail of Boggs, the full amount of the within note. Duncan and Foster.”</p> <p>The defendant then read in evidence by consent, the deposition of John Mitchel, one of the plaintiffs, in which being interrogated, •whether Andrew Boggs had not settled with him for any money or interest he might have in the suit in which he was named as one of the plaintiffs, he answered that he had, and that he, (Boggs) had his receipt. The defendant then read in evidence the following receipt of J. and D. Mitchel. “ Received March, 21 st. 1817, of Andrew Boggs, Robert T. Stewart’s note for 1500 dollars payable in Centre Bank, in full of all accounts whatever until this day: the note at 90 days, dated the 1st. April, 1817.</p> <p>. J. and D. Mitchel.</p> <p>The defendant thereupon prayed the court to charge the jury,</p> <p>1. That the action could not be maintained; it ought to have been brought by Curtin and Boggs only, for contribution.</p> <p>2. The receipt of John and David Mitchel, operated as a release of the present demand.</p> <p>The court charged, however, in favour of the plaintiffs and the defendant excepted to their opinion. A verdict and judgment were rendered in favour of the plaintiffs.</p> <p>The above points were now assigned for error.</p>

In the court below,, a verdict and judgment were rendered for the plaintiffs below, for 213 acres, and for the defendants for the residue. The charge of the court below, being excepted to by the plaintiffs, was now brought up by writ of error.

<p>In the Coui’t of Common Pleas of Westmoreland county, to which this writ of error was directed, Boyle Irvine, the plaintiff below, and plaintiff in error, brought this action of assumpsit against William- Hanlin, to recover the value of certain ore, and a verdict and judgment were rendered in favour of the defendant, the court below having charged the jury, that the action was not maintainable. The circumstances of the case appeared on the trial to be as follows.</p> <p>James Hanlin, an infant, and Boyle Irvine, were tenants in common of a tract of land from which the ore was taken, for the price of which this action was brought, five-eighths of the land be-’ longed to Irvine, and three-eighths to James Hanlin. The defendant, William Hanlin, acting as guardian for James Hanlin, had made a parol partition with the person under whom Irvine held, and agreed upon a consentable line, by which the land from which the ore was taken fell to the infant’s part. William Hanlin, as guardian brought an ejectment against Irvine, for a part of the tract which was supposed by this partition to belong to James, and Irvine brought a writ of partition. Irvine finally succeeded in both actions, and his right as tenant in common was established, and the partition decided not to be binding. During the pendency of these proceedings, Irvine and one Benninger carried on a furnace in parternership, and they bought ore taken from the land of which James Hanlin and Irvine were tenants in common, and paid William Hanlin for it, partly in money, and partly in tobacco, and other articles. A part of the ore was bought by Benninger. And to recover his share of the money thus received by William Hanlin, from Benninger and Irvine, and from Benninger alone, this action of assumpsit was brought by Irvine. William Hanlin was not at the time appointed guardian, and the infant’s mother was then living. The question was whether Irvine could recover in this form of action the five-eighth parts of the value of the ore thus received by the defendant.</p> <p>The case was argued by Foster, for the plaintiff in error.</p>

<p>IN ERROR.</p> <p>A declaration against two in the usual form of a declaration in slander, except stating the words to be spoken by them by a conspiracy between them had, is still an action of slander, and not of conspiracy, and being a joint of action of slander against two persons, is bad on writ of error.</p>

<p>On a writ of error to the Court of Common Pleas of Mlegheny county, the proceedings in this suit were brought up to this court, and were as follows.</p>

Account Render was'brought in the Court of Common Pleas of Allegheny county, by the defendant in error, Patrick Cunningham, against the plaintiff in error, Richard Geary, and the parties agreed to refer all matters in variance between them, (comprehending the whole of theirpartnershiptransactions and accounts,) to three persons, under the act of 1705, and that upon their report, or thatofa majority of them, the prothonotary should enter judgment which should be final and…

<p>in error.</p> <p>A scire facias on the sheriff’s official recognizance ought to state, how the plaintiff was damnified, in what action the sheriff violated bis duty. A general allegation that the sheriff had not paid over to the parties the sums to them belonging which have come to Iris hands, and especially to the party who sues in the name of the commonwealth, is erroneous and bad.</p> <p>On such recognizance each suitor who is damnified may sue a sdre facias, and recover judgment for the amount in which he is aggrieved.</p>

In the Court of Common Pleas of Fayette county, from which this writ of error was returned, Nacca Gregg, administratrix of James Gregg, deceased, plaintiff below, had recovered judgment in this action of assumpsit against Jinn Stevens, the defendant below, and plaintiff in error.

<p>IN ERROR.</p> <p>The plaintiff cannot recover in indebitatus assumpsit for work and labour, the amount stipulated to be paid him by the defendant by a special agreement, for services to be done, during a certain time, where the plaintiff has not performed the services, hut has been discharged by the defendant before the time expires, and is thereby prevented from performing them: he must resort to an action on the special agreement.</p>

<p>In ejectment in the court below, by James Nelson, the defenin error, against James Sutton, the plaintiff in error, and defendant below, for a house and lot in the town of New-Castle, a verdict and judgment were rendered for the plaintiff below, and were returned to this court by writ of error.</p> <p>On the trial, the plaintiff offered in evidence the treasurer’s deed to him for the house and lot, made pursuant to a sale for taxes, dated the 17th JLugust, 1818, the defendant objected to it, unless it were first proved, that an assessed tax was due at the time of sale, and that a warrant of sale was issued to the treasurer. See Purd. Dig. 636. The three associate judges of the court overruled the objection, and allowed the deed to be read as prima facie evidence of all that it contained. The defendant excepted.</p> <p>It afterwards appeared in evidence, that the plaintiff neglected to execute a bond for the surplus money within two years after the sale, and the court charged the jury as follows.</p> <p>The defendant contends, that supposing the treasurer’s deed prima facie evidence of title, yet the plaintiff having neglected to execute his bond for the surplus money, within the two years after the treasurer’s sale, ought not now to recover; especially when by that neglect, he caused the defendant to believe, that he had abandoned his purchase, and thus induced the defendant to make valuable improvements. Whether the plaintiff has been guilty of this neglect, is a fact which from the evidence you must decide to exist, before it can have any effect in this cause. If this alleged neglect was caused by fraud in the plaintiff, that is to say, an intention to deceive the defendant, as to his, the plaintiff’s, design of holding or abandoning his purchase, so as to prevent the defendant redeeming the lot within two years after the sale, in that case, the plaintiff ought not to recover; otherwise, he ought to recover. To this charge the defendant excepted.</p>

<p>IN ERROR.</p> <p>In a suit on a judgment in the court of another state, the pleas of fraud in obtaining1 it, imposition, mistake, and want of consideration, are bad on demurrer. It seem; nul liel record is the only plea of which the defendant can avail himself.</p> <p>Interest on a judgment in another state, cannot be recovered on a count for such iiiterest in a suit on the judgment,</p>

<p>IN ERROR.</p> <p>If an improver of an island in the river Allegheny, apply for it under the act of 27th January, 1806, within three years, and procure the appointment of valuers hy the board of property, and a valuation, and remain on it eight years without taking any further step, query, whether he has a right to it then on paying the purchase money and interest.</p> <p>A warrant granted at the end of the eight years, without any new valuation, to a different person, who paid the purchase money, is void, notwithstanding the board of property has decided in his favour on a caveat by the improver.</p> <p>The board of property are public agents with a limited authority, and if they exceed the power given them by the acts of assembly, in granting an island, their acts are void.</p>

Ejectment in the Court of Common Pleas of--county, by Nathan Luffborough, plaintiff below, against William Parker and Joseph Jenkins. The plaintiff deduced title to himself from the commonwealth.

<p>Assumpsit, in the Court of Common Pleas of Allegheny county, brought by Joseph Thornton, the plaintiff below, against David M‘Gunnagle, in which a verdict and judgment were had in favour of the plaintiff below, for 122 dollars, 16 cents.</p> <p>The plaintiff, on the trial, offered J. Darragh as a witness to prove, that he was verbally authorized by the plaintiff to lease the house in question, from year to year, and did, in pursuance of this authority, let it to the defendant for the term of one year. The defendant objected to the evidence, on the ground, that the witness being himself the agent, was incompetent to prove his own authority. The court, however, admitted the proof, and sealed a bill of exceptions.</p> <p>The case made out by the witness was, that the plaintiff had verbally authorized him to rent the house, and receive the rent as his agent. That the defendant called on him, the witness, some time in March, 1816, and inquired what rent he would take for the house, the witness told him he might have it for 180 dollars a year, from the 1st of April ensuing, but that there was then a tenant in the house, who had not been notified to quit, and that the defendant, if he took the house, must run the risk of getting the possession from the tenant. The defendant said he would see the tenant, and afterwards called again on the witness, and told him, he had conversed with the tenant, and that he had promised to leave the house in May: that this would suit him, and that he would take the house one year, at the proposed rent of ISO dollars. The witness then considered the agreement complete. ' He had occasion to be absent from Pittsburg, and on his return, about four months after the agreement, the defendant called on him, and said he would not take the house, as his brother-in-law, captain Johnston, for whom he had leased the house, could not come to Pittsburg, The defendant also stated, that he had called to mention the fact at the witness’ sstore during his absence, and had left word there for him. The witness told the defendant he would look to him for the rent, and advised him not to suffer the house to stand vacant, but to ren it, or to authorize the witness to rent it for him,< but that the defendant said, he did not consider himself interested, as the contract was made for captain Johnston, and would not do anything in the matter, and that he had told witness so at the time the contract was made. The witness, however, was clear, that at the time the contract was made, the defendant did not mention captain Johnston. Darragh further testified, that he believed the house was never occupied by the defendant, who was a young man/ and unmarried, but stood vacant from the time the former tenant left it, till the expiration of that year. That he did not know whether the key had ever been given to the defendant, nor that he had taken possession at any time, but that the witness never received the key from the former tenant. It was among them.</p> <p>There was no other testimony on the part of the plaintiff, and the defendant requested the court to charge the jury, that the plaintiff had failed to prove his case as laid in the declaration, inasmuch as there was no evidence of any occupation of the house by the defendant, but the contrary.</p> <p>The court, however, charged the jury, that the evidence was sufficient if believed, to sustain the declaration; that the defendant’s undertaking, to run the risk of getting the possession from the tenant, who was in the house at the time of the contract, rendered him the occupant in contemplation of law, and that under the circumstances of the case, an actual occupation was not necessary to entitle the plaintiff to recover in the present form of action, since the tenant might be considered as the locum tenens of the defendant from the first of April.</p> <p>To this charge the defendant excepted.</p> <p>The plaintiff in error assigned the following errors:</p> <p>1. That John Darragh, was not a competent witness to prove his own authority.</p> <p>2. That the court erred in their charge to the jury.</p>

<p>On a writ of error to the Court of Common Pleas of-county, the bill of exceptions and charge of the court below, were returned to this court without the evidence in the cause, and it appeared that this suit was originally brought before a justice of the peace by Barnet Boner, the plaintiff below, against Thomas Stokely, defendant below, to recover the amount of taxes due by Stokely, in the township of Donegal, during the time Boner was collector. The case,being brought by appeal into the Court of Common Pleas, a verdict and judgment were there rendered for the plaintiff.</p> <p>The claim to sue in the present form was founded on the act of assembly, passed the 2d Jlpril, 1821, which provides, that when a collector has failed to collect the tax due on his duplicate, within the time prescribed by law, he may, in his own name, sue for and recover it, notwithstanding the time, fixed for such collection has expired. ' ' '</p> <p>The facts of the case, so far as they appeared in the charge, were as follows. ' By the duplicate for the year 1820, it appeared, that Stokely was charged 17 dollars 53 cents, as the aggregate of his taxes. It was admitted that Boner was collector for Donegal township, in that year. Proof was given, that Stokely admitted before the magistrate, that the taxes had not been collected by Boner within the time prescribed, and that they remained unpaid at the time of trial. . The assessment list contained the name of Thomas Stokeley, in its alphabetical order, charged with different parcels of land, and several persons were named as tenants: and it was proved that in-1820, several persons lived as tenants on parts of the land taxed, and had property sufficient to pay the taxes. The duplicate annexed to the warrant named Stohely alone as charged with the whole, without reference to the tenants or suggestion of any apportionment of the taxes.</p> <p>The following errors assigned in this court state those points in the charge which were noticed in this court.</p> <p>1. The court told the jury, that as the duplicate annexed to the warrant named Stohely as charged with the whole, without reference to the tenants, or' suggesting any apportionment, that this was legal, if Stohely returned the property as his own, notwithstanding it appeared in evidence by the assessment and otherwise, that the greater part of the lands were actually occupied by tenants in the year 1820.</p> <p>2. The court instructed the jury, that the assessment may be either in the name of the owner or occupier; and, that if the assessment were made in the name of Stohely, and the names of the several tenants given as matter of description, the duplicate corresponded with it, and was sufficient.</p> <p>3. They stated to the jury, that the tax was a personal charge;" that the owner .or landlord is the real debtor, liable to be proceeded against, in the ordinary mode, and that the act of 1804 merely created an additional remedy, when the absence of the owner precluded the possibility of proceeding in the ordinary mode against him.</p> <p>4. They charged, that if neither the landlord’s goods nor his body could be found, that then the collector might call upon the tenants, and recover from them.</p> <p>5. They charged, the jury, that the act of 1821, enabled the collector to recover at any indefinite period, and that it would be extremely unjust for the collector to recover from the tenant after he had left the land and that this ground of defence was insufficient, and the plaintiff ought to recover.</p> <p>6. Because the judge stated to the jury in the absence of all proof, c< if from this proof, sufficient presumption arises to satisfy you that the previous requisites were observed, and demand made" according to the law, your verdict ought to be for the plaintiff.”</p> <p>7. The court stated to the jury, that the same principles applied to the lands upon which there were no tenants.</p> <p>8. ^ecause the judge did not state to the jury the law in relation to the 3d, 4th, 5th, 6th, and 7th questions or points, submitted té the court, and upon which he was requested by defendant’s counsel so to do.</p>

<p>IN ESROK.</p> <p>In an action on a single bill declared on as given to A. B. & Co., if the defendant goes to trial on non est factum and payment, he cannot avail himself at the trial of the objection, that all the company, who are plaintiffs, were not named in the writ.</p>

<p>Both plaintiffs and defendants in this ejectment claimed under’ John Nicholson, deceased, who mortgaged the lands in dispute to Joseph Ball, deceased, the plaintiff's intestate, on the 20th Octo-her, 1794, and conveyed them in fee simple to Samuel Nicholson, on the 21st February, 1795. Samuel Nicholson conveyed to-Samuel Blythe, one of the defendants, by deed, dated the 31st March, 1806. Joseph Ball issued a scire facias on his mortgage to August term, 1803, against Hannah Nicholson, widow of John Nicholson, then deceased, and the children and heirs of the said J\ Nicholson, and Samuel Nicholson and others, terretenants. To this scire facias the sheriff made a general return, served.” A rule on the defendants was laid, to plead in six weeks, or judgment, under which rule judgment was entered against all the defendants at October term, 1803. A levari facias was issued on this judgment to January term, 1803, and an alias levari to April term, 1803, both of which writs were lost. January term commenced on the 3d day of that month, and on the 5th of the same month the lands were sold to Joseph Ball, by the sheriff, who executed a deed to him on the 8th January, 1803, and acknowledged the same in open court.</p> <p>Several exceptions were taken by the defendants to the opinion of the court below in the course of the trial.</p> <p>■ 1. Parol evidence on the part’of the plaintiffs was admitted by the court, which went to prove a long practice in Franklin county, for the sheriff to advertise property to be sold by virtue of writs of venditioni exponas, about the middle of the week in which the court was to sit, which was several days after the return day and sales thereon; and the sheriffs deed to Joseph Ball founded on a sale of that description, was received in evidence.</p> <p>3. The defendants offered to prove that the widow and children of John Nicholson, minors, and Samuel Nicholson, were not in the county of Franklin in the year 1803, and that the said writ of scire facias was not served on any of the defendants named in it, This evidence the court rejected.</p> <p>3. The defendants offered several papers to show, that J, Ball had received payment of his mortgage before he obtained judgment on it. The court rejected this also.</p> <p>4. The court below was requested by the plaintiffs to charge, that the sheriff had no right to sell to the mortgagee, unless more was bid by him than would pay the debt and costs, but in case the bid was to a less amount, the property was to be delivered to him to hold until the debt and costs were paid. This the court refused to do.</p>

<p>This was a writ of error to the Court of Common Pleas of Adams county.</p> <p>Assumpsit by Sheridan, and wife, plaintiffs below, against Marshall, the defendant below, to recover a balance due from the latter to the former. The defendant pleaded non assumpsit, and payment, with leave to set off, and on the trial offered to prove, that after the suit was instituted, Sheridan declared, that he had made a settlement with the defendant, after suit brought, of accounts which existed between them before suit brought, and that he acknowledged that he fell in debt to the defendant on the said settlement: and that he then gave a note to the defendant for that debt, which note, after being proved was also offered in evidence. The plaintiffs objected to this evidence, and the court rejected it, and sealed a bill of exceptions.</p> <p>The case was submitted to the court without argument,</p>

By the bill of exceptions returned with this writ of error, by the Court of Common Pleas of Jldams county, it appeared, that this was an action, brought by the York and Gettysburg Turnpike Hoad Company, plaintiffs below, against Samuel Gray ble the deffendant below, to recover the sum of 300 dollars, the amount of his subscription to the York and Gettysburg Turnpike Road.

Ejectment by John Moore, who was plaintiff below, against Thomas Buchanan, Robert Buchanan, and James Strong, to recover a tract of land in Cumberland county, which the plaintiff claimed under a sale to him by the sheriff of Cumberland county, on the 6th August, 1806, by virtue of a pluries venditioni exponas, issued after a fieri facias on a judgment at'the suit of John Field, against Alexander and Thomas Buchanan, obtained in January, 1795.

<p>IN ERROR.</p> <p>Where grants are made of the same land to contending claimants with general u arranty, the widow of the grantor is a witness in an ejectment by one against the other, for her interests are in equilibrio.</p> <p>The declaration of the obligee of a bond before assignment, as to his being paid the amount, are evidence in a suit to recover land in consideration of which the bond was given, brought against one holding the land by deed from the obligee of the bond, and holding the bond also by assignment.</p> <p>If the defendant give in evidence a verdict and judgment in a former suit respecting-the land in controversy to which the. plaintiff was party, the plaintiff may show that the evidence given in the present cause was not known or produced. Evidence is not admissible to show the general character of a witness for drunkenness.</p>

<p>in error.</p> <p>One arbitrator only attending on the first day of meeting has power to adjourn though one party be absent, and at such adjourned meeting (notice having been given to the absent party) he may appoint other arbitrators in the place of those absent.</p> <p>It need not appear in the proceedings, that such appointments were made without consulting the party present.</p> <p>An arbitrator present declining to act, because he conceives himself interested, may be considered as absent within the meaning of the act.</p>

This was a writ of error to the Court of Common Pleas of Huntingdon county in which a verdict and judgment were rendered in favour of the defendants It was an action on three single bills for 1000 dollars each, brought by Jacob Miller, the plaintiff below, against John Jt. Henderson, the defendant below. These bills were executed by Edward 1L Patton, as principal, and John Jt. Henderson, the defendant as his security.

<p>IN ERROR.</p> <p>When a warrant calls for an improvement, without saying when that improvement commenced, the title under such warrant cannnot be carried farther back than its date.</p> <p>An application for an improvement, mentioning the year where it began, is good, though it does not state the day or month when it commenced,</p> <p>Whether a right of pre-emption founded on improvement is lost by laches, is a matter for the jury, where its determination depends on a variety of facts.</p> <p>A recovery cannot be had in ejectment, of lands on the west side of the Allegheny river, without a survey : but on the east side of that river one who has a right of pre-emption, and has designated his boundaries, may recover without a survey.</p> <p>The 5th section of the limitation act of the 26th March, 1785, does not apply to persons who were in actual possession of their lands at the time the act was passed.</p>

<p>IN ERROR.</p> <p>Devise of land and quitrentsto testator’s son A. during the term of his natural life, and that after the decease of A., the land and quitrents should be equally divided to and amongst all the lawful issue of the said A. or their legal representatives, share and share alike, and to their heirs and assigns. On the death of the testator, A. entered on the lands and suffered a common recovery to the use of himself in fee.. Held, that A. took an estate for life with contingent remainders to the children of A. who were living at A’s. death, and the children of such' as were dead: and by comparison with other parts of the will,- that such grandchildren should take only their respective parents’ share': and that the life estate of A. being forfeited by the recovery, the remainders fell for want of support.</p>

. Articles of agreement made, &e. 28th November, 1810, between Jacob Bosler and Catharine Stayman, witnesseth that Jacob Hosier in case that said Catharine and me should intermarry, that-all that is now in her possession shall be and remain at her disposal at the day of her death, with full permission- from me: the goods and effects that she now enjoys according to the valuation taken this day, amounting to £ 665 4s. 6d., to be and remain to her and her heirs for ever.

<p>Ejectment by Daniel Royer and John Royer against George Benlow, in the Court of Common Pleas of Huntingdon county. A verdict and judgment having been rendered in favour of the de~fendant, they were removed to this court by writ of error.</p> <p>The plaintiffs clainjpd under a warrant and survey in' the year* 1794 ; the defendant under an improvement, alleged by the plain-tiffs to have -been subsequent to the warrant and survey.- The de= fendant relied chiefly on the act of limitations, and gave' evidence of an improvement consisting of a dwelling house, and cultivated land enclosed by a fence. He gave evidence, also, of having made use of the uninclosed woodland for such purposes as were necessary. There was little doubt but there had been an adverse possession, by actual inelosure of part of the land in dispute for more than 21 years before the commencement of the suit. There was evidence, also, of the defendant’s having marked and designated the bounds of his claim, and the question was, whether he was protected by the dct of limitations, as to the woodland uninclosed, but included within the lines thus designated.</p> <p>The president of the Court of Common Pleas instructed the jury, “ that if the defendant had marked and designated the bounds of his claim 21 years before suit brought, had land cleared and' cultivated at twd places half a mile distant from each other, and occupied the woodland as others do and must, that is, by cutting' when and where it suited his convenience, he is protected in every part of such tract so designated, as much as in the spot covered by his house.” To this charge the plaintiffs excepted.-</p>

This was a .writ of error to the Court of Common Pleas of Cumberland county.

This was á writ of error to the Court of Common Pleas of Perry county. Catharine Landis, the plaintiff below, and plaintiff in error, declared against John Urie and Daniel Bloom, executors of Francis Delaneey deceased, in assumpsit, and the defendants pleaded non assumpserunt and payment, and issues were joined.

Tresspas in the court below, by Matthew Henderson, plaintiff below, and plaintiff in error, against Nathan Jones, defendant below. On the part of the plaintiff, Michael Rupert was examined as a witness on the trial, and the defendant examined witnesses as to his character for veracity, and also to contradict him in several particulars.

<p>Error to the Court of Common Pleas' of Franklin county.</p> <p>This case was argued by Dunlop, for the plaintiff in error, and Chambers for the defendant in error.</p>

<p>IN ERROR.</p> <p>A certified copy of a survey given by the surveyor general, under seal of office, is evidence, though it appears in such copy that part of the writing of the original survey had been obliterated.</p> <p>But if the part obliterated, was that which recited the authority for making the survey, and there be no other evidence of any authority to make it, nor of the return being accepted by the board of property, it is not evidence.</p> <p>If an act of assembly authorise a sale by a guardian of the property of minors on entering into a certain recognizance, to be approved of by the court, a certificate from the clerk of the Orphans’ Court that such recognizances was given,- is not evidence: a copy of the recognizance should be stated with the approbation of the court.</p> <p>It seems a deed by a guardian, especially conveying the interests of minors, does not transfer her own right of dower.</p> <p>Before assignment of dower, the widow’s grantee cannot maintain ejectment</p>

<p>This was a writ of error to the Court of Common Pleas of Franklin, county, in an amicable action entered in the name of Richard Hayden and Rachael his wife against C. Mentzer and others in pursuance of the recommendation of the Orphans’ Court, for the purpose of ascertaining the amount of advancement made by David Mentzer, deceased, in his life time, to Rachael Hayden, late Rachael Topper, one of his daughters, and a plaintiff in this action.</p> <p>It appeared on the trial, that articles of agreement were executed on the 10th May, 1807, between David Mentzer and Andrew Topper, (former husband of Rachael Hayden,) by which the former, for the consideration after mentioned, agreed with the said, A. Topper, his heirs, &c. on or before the 1st November, then next, to give a sufficient title for a certain tract of land containing 110 acres and 115 perches together with 4 acres of meadow, and 20 acres of mountain land, adjoining, &c. and a note of hand, and some pine timber, in consideration whereof the said A. Topper, agreed to pay ¿6200 in two payments, the first, in one year after D. Mentzer’s death, the other in two years after that time, and by the agreement D. Mentzer reserved certain crops of grain in the ground. On the 7th November, 1807, D. Mentzer and wife conveyed the lands to A. Topper, in fee, in consideration of the same sums. The defendants gave parol evidence to show, that the tract of 110 acres and 115 perches cost Mentzer ¿6800, and was worth that sum, and that the intent of the parties was, that ¿6800, should be considered as advanced by him to Topper, on account of his wife, and that the ¿6200, mentioned in the.articles as the consideration money, was to be paid for the 4 acres of meadow and the mountain land.</p> <p>The plaintiffs requested the court to charge the jury as follows:</p> <p>1st. That the articles of agreement are conclusive evidence of a bargain and sale of the land to Andrew Topper, and cannot be altered by any of the parol evidence which has been given.</p> <p>2d. The land having been sold to A. Topper himself, in fee simple and for a valuable consideration, cannot be an advancement to the wife of a A. Topper.</p> <p>3d. That none of the declarations of A. Topper, can alter the nature of the transaction or convert it into an advancement.</p> <p>4th, There is no evidence of any advancement to the wife óf the defendant.</p> <p>5th. There being evidence of fraud or mistake in procuring the articles of agreement or deed, the plaintiffs cannot, in this manner be permitted to set up any other consideration than that expressed in said instruments, and the jury is not to regard parol evidence given to establish another consideration.</p> <p>The court charged as follows:</p> <p>1st point. We are of opinion the articles of agreement are not conclusive evidence of bargain and sale of the land to A. Topper, so as to prevent an inquiry on the present issue whether an advancement was intended by the parties.</p> <p>2d point. If the land was sold to A. Topper himself in fee simple, for a valuable consideration, it could not be considered as an advancement to the wife of A. Topper. But if you are satisfied from the evidence before you, that the agreement of the parties was, that ¡£800, or any greater or less sum, was intended by Mentzer as an advancement to his daughter, and so considered and received by Topper her husband, and that the ¿S200 mentioned in the deed was only part of the consideration for the land so conveyed, then such sum, so agreed upon, would constitute a good advancement, and you should find accordingly.</p> <p>3d point.' The declarations of A. Topper, cannot alter the nature of the transaction, and convert it into an advancement. But they are evidence of what the transaction was, and tended to show, whether an advancement or sale was intended.</p> <p>4th. We think there is some evidence of such advancement, but refer its extent and credibility to the jury to decide.</p> <p>5th. To this proposition we do not assent, under the facts in evidence if believed by the jury.- 'Whether they establish fraud or mistake in the agreement or deed, the plaintiffs are permitted to set up a further consideration than that expressed, being consistent with it. And the parol evidence given to establish such further or additional consideration is properly before you for your consideration.</p> <p>It was assigned for error, that the court erred in their charge to the jury on all these points.</p>

' The plaintiff claimed under a warrant to Joseph Patton for-210 acres including an improvement, interest from the 1st Jtpril, 1785, and survey thereon. The defendants claimed under a location to John Cochran, with a patent and survey, and also by virtue of long possession.

This was a writ of error to the Court of Common Pleas of Jldams county in a suit brought originally before a magistrate by Conrad Umberger, the defendant in error, plaintiff below, against the plaintiff in error Jacob Heagy, in which a verdict and judgment were rendered in favour of the plaintiff below.

This was a scire facias on a recognizance entered into by the defendants below, the defendants in error, John Nigh, Mexander M‘Cutchen, and John Brotherton, under a decree of the Orphan’s Court, conditioned for the payment of a sum of money to Polly, the wife of M M‘Cutchen, who were the plaintiffs below, and plaintiffs in error.In this recognizance JohnNigh, one of the defendants, •was the principal, having taken a tract of land, part of the estate of his father John Nigh,…

<p>IN ERROR,</p> <p>Confession of judgment generally tic bonis in an action against an executor or administrator, is not conclusive proof in tins state, of the existence of assets, in a suit suggesting a devastavit, but the existence of assets must be proved by evidence aUunde.</p>

On a writ of error to the Court of Common Pleas of Franklin county, in which court judgment was rendered for the defendants in error, the defendants below, it appeared that the present was an action of debt on a former judgment, rendered in the same court, under the following circumstances: A summons was issued in debt by the plaintiff, Nancy Moore, for the use of John Moore, against Robert Kerr, surviving executor of James Moore, in which the defendant appeared by attorney,…

<p>IN ERROR.</p> <p>Testator ordered the residue of his real and personal estate to be sold, and out of the moneys arising therefrom, after the payment of debts and certain legacies, gave legacies to his seven children and grandchildren, and directed that if the money should not .be sufficient, to pay the legacies bequeathed, then the last mentioned legacies to his children and grandchildren should abate proportion-ably, but if it should be more than sufficient, then the residue should be divided amongst the last mentioned legatees proportionably. One of the last mentioned legatees died in the lifetime of the testator; held, that this legacy was lapsed.</p>

<p>IN ERROR.</p> <p>in a Suit on a forfeited.recognizance for a party’s appearance at the next Court of Quarter Sessions, to. answer a charge of fornication and bastardy, on the pleas of payment and nil debet, evidence is not admissible, that the party had married the- , mother after the date of the recognizance.</p> <p>, Ño evidence is admissible.under these pleas, but what tends to show, either that the recognizance was not forfeited, dr that it had been remitted by lawful am thority.</p> <p>It is error for the court to charge the jury on such pleas, that although the party did not appear, yet 'if he married the mother, even with the fraudulent intention of deserting her after marriages tlie defendant was entitled to a verdict, unless privy to the fraud.</p>

<p>A verdict and judgment were rendered in this Case in the Court of Common Pleas of Perry county,' in favour of the defendant, and the charge of the president being filed at the request of the plaintiff, the case appeared on the writ of error returned to this court, to be as follows:</p> <p>It was an action of trespass quart clausum fregit brought by Phillip Stambaugh against Conrad Hollabaugh,for cutting down and carrying away certain trees. The only description of the close stated in the declaration was, that it was situated in Toboyne township. The defendants pleaded not guilty, with leave to give the special matters in evidence, and librum lenementum to which the plaintiff replied and issues were'joined.</p> <p>Both plaintiff and defendant deduced, or endeavoured to deduce title from the same original source, Thomas Hewitt. Thomas Hewitt, on the 15th August, 1766, entered an application for 150 acres on Shearman’s creek, and on the 27th April 1767, a survey was made for him by the deputy surveyor of the district, of 142 acres and 136 perches, includingthe land on which the timber was cut, and was returned into the surveyor general’s office in December,-1769; and on the 9th June, 1774, he conveyed the whole tract by the courses and distances of the official survey to James Armstrong, in consideration of £70. The habendum contained, in a parenthesis,the following words, “ (excepting a small quantity struck oil' the said tract at the west end by a conditional line.)” It appeared that James Armstrong had entered into the general possession of the tract, and that Thomas Hewitt after his conveyance to James Armstrong, did not retain any possession. Judgments were obtained against James Armstrong, and on a fieri facias the sheriff returned a levy “ of a certain tract of land situate in Toboyne township, containing 200 acres more or less;” and sold the tract by the same description, and on the 22d September, 1789, duly conveyed the same, without any reservation, to William Lyon, who, on the 8th August, 1790, conveyed, by assignment on the sheriff’s deed, in consideration of ¿6180, to Joseph Wallace the land described in that deed. Joseph Wallace made a general entry, claiming the whole tract including the locus iii quo, and continued his general possession from 1774, to 1797, without any act done by Hewitt until after the death of James Armstrong, when some time in January,- 1797,- after an absence and desertion of the small quantity excepted in his conveyance for more than 22 years, William Armstrong, the son of James brought Hewitt on the land. James Morrison was called on by William Armstrong to go and make the survey. Wallace was sent for; who told William Armstrong, he had no land, no right to make a survey there. William Armstrong frequently called on Hewitt,- to show where to begin. Hewitt appeared to decline, saying he was an old man,- and did not wish to be the cause of dispute, that it was many years since he had been upon the land. William Armstrong still urged him to show where tó begin. Hewitt said, he did not know the woods, they were strange to him, but, pointing with his whip, he said, “somewhere there.” William Armstrong then set his compass, and- Wallace discharged him from surveying. They ran round till they surveyed a moiety of the land, as the witness expressed it. Hewitt did not go with them, and Wallace, after discharging them, went away in anger. The witness who carried the chain did not remember any lines or marks. The survey was the same as that shown at the trial; it contained 21 acres, a strip running on both sides of the creek, and was the best part of the land. Running as they did, it would still leave considerable land to the west. On the 14th January, 1797, Hewitt conveyed by courses and distances of the survey afterwards returned in 1812, to William Armstrong in consideration of ¿650. No further measure was taken by. William Armstrong until 1812, and on the 29th October, 1792,- the tract was levied on' as the estate of James Wallace, and sold, and conveyed by the sheriff to the plaintiff, who went into Wallace's possession. It was described in the sheriff’s deed, as a tract of land containing 230 acres be the same more or less, 90 acres cleared, a barn, dwelling house, and orchard. No evidence was given of any line striking off the 21 acres from the general tract, nor of any marks on the ground going further back than 1797. Wallace in his time had cleared a small piece on this 21 acres and Stambaugh another, which had been occupied by them for more than 20 years. The survey was made and returned of the 21 acres according to the courses and distances of the surveys of 1797, and patented to William Armstrong. The defendant failed in his attempt to bring down the title and vest it in himself.</p> <p>Ten points were proposed by the plaintiff in the court below, on which the charge of the court was requested.</p> <p>1st point. That if the jury believe the plaintiff entered into possession by virtue of a deed or purchase of the whole land, embracing the 21 acres in dispute, and was in actual possession under such deed, of any part of the 142 acres, at the time the timber was cut, he is entitled to recover, notwithstanding the defendant may have shown an adverse title in a third person.</p> <p>Answer. Answered in the negative in' its full extent. The plaintiff must have had the actual or constructive possession to enable him to sustain this suit. If he had the actual possession against every person but the rightful owner, or any person under him, it •would be sufficient without a legal title. So if he had the legal right to the whole, and was in the actual possession of a part, it would be enough to sustain this suit. But if he had not the actual possession of the place where the trespass is alleged to have been committed, and had no title to it, but it was vested in a third person, in that event, the plaintiff would have no right to recover, having neither actual nor constructive possession. A possession of part gives a possession of the whole, unless adversely held or occupied by another. But possession of a part of a tract, by clearing over the line, without right, and when the title is vested in a third person, gives nonconstructive possession beyond the lands actually occupied.</p> <p>2d point. That the defendant’s plea is not supported by proof of adverse title in a third person.</p> <p>Answer. This depends on, the circumstances of the case. If the plaintiff had no actual possession, and only claimed under that possession which title confers, if he had no title, but it was in a third person, then he would have no possession, and the suit could not be' sustained. If the plaintiff made out an equitable or legal title in himself, accompanied with possession legal or actual, then proof of title in a third person would not support the defendant’s plea.</p> <p>3d point. That if the jury believe the plaintiff or those under whom he claims, came into' the actual possession of any part of the 142 acres by virtue of an order of survey for the whole, and had a survey made thereon, and returned into the land office, the defendant cannot shelter himself by showing a subsequent survey, warrant and patent, for a part of the land embraced in the same order; unless he or the person holding the subsequent survey, warrant and patent thereon, had the actual possession of a part or the whole of the land.</p> <p>Answer. The actual possession would not be necessary under such circumstances if the defendant had the legal right. A trespasser on another’s land cannot support trespass against the owner for cutting timber on his own land.</p> <p>4th point. That the’ actual possession of a part of the disputed land under an order of survey, and survey thereon, draws to it by presumption of law, the actual possession of the whole, so as to enable such possessor to maintain trespass against one who has not the actual possession.</p> <p>Answer. Such possession and survey would draw to it, by presumption of law, the possession of the whole, except against a person having a better title, or one acting under his authority, so as to enable the possessor to maintain trespass.</p> <p>5th point. That if the plaintiff entered into a part, claiming the whole, by virtue of an order of survey, and survey thereon including the whole, trespass will lie against the person cutting timber, claiming under a different or adverse title, if the plaintiff’s actual possession extended to any part of the disputed land, and the defendant or person cutting timber had not the actual possession of any part of the land under his title.</p> <p>Answer. This point answered before.</p> <p>6th point. That it is incumbent on a defendant claiming under a reservation in a deed by which the plaintiff claims title, to prove the extent of that reservation at the time,</p> <p>Answer. Answered in the affirmative,</p> <p>7th point, That unless the defendant has, proved the 21 acres were struck off by a consentable line in 1774, and are the same land mentioned and intended in the reservation, the plaintiff is entitled to said 21 acres.</p> <p>Abswer. The recognition of the line in the deed of 1774, from Hewitt to James Armstrong, under whom plaintiff claims, is prima facie evidence of its existence at the time, If the defendant has not proved the 21 acres 3re the same lands reserved, we cannot see how the defendant could claim them. Whether the plaintiff is entitled to them, would further depend on whether he purchased them or not, or his whole title is complete. The description in his sheriff’s deed is very vague, and undefined, and must be made up by extrinsic proof.</p> <p>8th point. That the reservation in the deed of 26th May, 1774, is void for uncertainty, unless a line be proved fo have then existed, striking off the 21 acres in question.</p> <p>Answer. We think the deed itself furnishes prima facie evidence that a line did exist at its date,- and that the reservation is not void if you can ascertain from the testimony satisfactorily, where the lands so reserved were situated.</p> <p>9th point That even if a right to 21 acres was reserved, it is not located agreeably to the meaning of said reservation, nor agreeably to the laws of the land.</p> <p>Answer. We see nothing in the meaning of the deed, ojr the laws of the land, to prohibit the location of the lands reserved according to the draught of the 21 acres. We cannot say in law they are improperly located: that must depend upon the evidence. You have the evidence 'of the line on one side arising out of the deed, the survey made in 1797, or thereabouts, spoken of by the witness James Morrison. It is for you to say, how far the evidence of a survey made on the ground at that period, as described by the wit? ness, corresponds with the survey of the 21 acres, now produced, with the knowledge of J. Wallace,- while living on the land, and the survey afterwards in 1812, by the deputy surveyor of the dis? trict, and returned into the office and patented, without any caveat by Wallace and Stambaugh after him, may go to establish the land reserved, or any acquiescence by the plaintiff in.the quantity as laid off. On the. other hand, you have the vague terms of the deed itself, as to what land, or what quantity of land was reserved; and the evidence of the positive disagreement of J. Wallace to the survey being made, and his declaration at the time, that Armstrong had no land there. You must decide from the whole of the evidence, what quantity of land was reserved, and where it was situated. It is not for the court, but for you, to determine, The law has been rightly stated by plaintiffs counsel, that every reasonable presumption is in favour of the grantee against the gran? tor. If he made a reservation, he should have made it in intelligible terms; and if confusion and doubt ,is superinduced by his own act, he is to bear the loss. It lies on the defendant or those claiming under the reservation, to prove the land reserved as to quantity and where situated, to the satisfaction of the jury.</p> <p>10th point. That if there was no line in 1774, striking off the land reserved, the defect could not be cured by a survey in 1797, nor in 1812.</p> <p>Answer. We have said that the deed of 1774, raises a presumption, that there was a line at its date. If there was imposition or fraud practised upon the grantee, or no line in fact existed, a line could not be made in 1797 or 1812, without the consent of the then owner, striking off any part, contrary to the original intent of the parties.</p>

<p>IN ERROR.</p> <p>A return of a mulatto child under the 4th sect, of the act of 29fh March, 1788,' as “ born about the 15th November, 1780,” is a good return, where it sufficiently appears that the entry and oath of the registry were made by the owner of the mother.</p> <p>Though the sex of the child and occupation of the owner were omitted in the re turn, yet if they aré statéd in the registry by the clerk the defect is cured.</p>

<p>IN ERROR.</p> <p>Á refusal by a justice of the peace to deliver a copy of his proceedings to either party on demand, is indictable under the act of assembly.</p> <p>The sentence.of the court in such case ordering the fine of ten dollars to be paid to the commonwealth, is regular.</p> <p>The want of a similiter to join the issue in the plea Of not guilty to an indictment, is amendable in the court below.</p> <p>An indictment against a justice of the peace for refusing a copy of his proceedings, ought to state a previous tender of his fee for that service and the want of it is fatal.</p>

<p>A verdict and judgment were rendered in the court below, the District Court for the city and county of Philadelphia, in favour of the defendant below, Jacob Shallcross in this suit, which was brought by the plaintiff below, Samuel Craig, and the proceedings were now removed to this court by writ of error.</p> <p>The action was brought on a promissory note, dated the 26th October, 1818, for the sum of 500 dollars, drawn by Thomas Ellis, in favour of, and indorsed by Jacob Shallcross, payable at 12 months. The plaintiff, on the trial in the court below, proved the indorsement, and, produced the protest of the notary public, B. Nones, dated the 25th October, 1819, which stated a demand on the drawer, and notice to the indorser on that day.</p> <p>The defendant offered the notary as a witness to prove, that he had not personally made demand on the drawer, and given notice to the indorser. The plaintiff objected to this evidence, but the court admitted the witness, and sealed a bill of exceptions.</p> <p>By the evidence subsequently given it appeared, that the above-mentioned note was delivered by Craig, the holder, to a person of the name of Weaver, to be deposited in bank for collection: but the property of the note remained in Craig. On Saturday, the 23d October, 1819, Craig agreed with Ellis, that if Ellis would-give him 45 or 50 dollars, he would renew the note for another year. In pursuance of this agreement, Ellis on the same day, gave Craig a new note indorsed by Shallcross, and 50 dollars: and Craig endeavoured to find Weaver, for the purpose of withdraw,* ing the original note from bank. Not being able to find him, the note remained in bank, was delivered for protest to Nones on Monday the 25th of October, and this suit brought upon it on the 27th October.</p> <p>The defendant excepted to the charge of the court, and errors were now assigned in those parts of it which stated the law relative to the place of demand on the drawer of a promissory note, and the use of due diligence in giving notice to the indorser. But the only portion of the charge on which this court decided was that in which the court below instructed the jury, that the plaintiff could not recover, inasmuch as the parties had made a new contract, by which the original note was extinguished, or at any rate, payment was suspended for twelve months.</p> <p>The case was argued by Rawle, Jr. and C. J. Ingersoll, for the plaintiff in error, and P. J].. Browne, contra.</p>

<p>CASE STATED.</p> <p>An insolvent debtor made a general assignment on the 24th November, 1819, in» debted to C. on a judgment obtained against him on the 1st of April, 1818, to the plaintiff on a mortgage given the 3 8th of May, 1819, and to the United States, on judgments for duties rendered the 16th of August, and 15th of November, 1819. Held, that C. had the prior rigid: to the monies in court, raised by a sale of the mortgaged premises under a levari facias.</p>

Ejectment, by Stephen Kingston against Peter Lesley, for a lot of ground- with several buildings upon it, in Arch street, in the city of Philadelpaia, tried before the Chief Justice at NisiPrius in November last, when a verdict was given in favour of the plaintiff, for two-thirds of the lot, and for the defendant as to the remaining third. A motion was now made on behalf of the defendant for a new trial.

<p>This case was argued by E. S. Sergeant and Chauncey, for the plaintiff, and Gordon and J. R. Ingersoll, were to have argued for the defendants, but the court without hearing them gave the following opinion.</p>

<p>certiorari.</p> <p>The act of 1705, relating to swine running at large, applies only where they are voluntarily suffered to go at large, not where they escape from the owner without his default: and if the proceedings do not state this, they will be quashed.</p> <p>It is not necessary-that proceedings by a justice under this act should contain any adjudication : nor is the appointment of appraisers process, which the constitution requires to be in the name of the commonwealth.</p> <p>A certiorari lies from the Supreme Court to remove the proceedings of a justice under the act of 1705, relative to swine running at large.</p>

<p>NEW TRIAL.</p> <p>If an execution issue against several defendants, and the assignee of one pay the amount thereof to the sheriff, who marks the execution satisfied, if such payment was in reality a purchase of the judgment the sheriff may correct the indorsement and proceed on the writ: but if the assignee had funds in his hands to pay the debt, and there are circumstances to show it was intended as a payment, the jury may so consider it, and the sheriff’s proceeding afterwards on the writ will be considered a trespass.</p> <p>New trial granted for excessive damages in an action of tresspass against the sheriff.</p>

<p>Assumpsit for money had and received, brought by Richard W. Wells against Samuel Archer, tried before Duncan, .1. at the Nisi Prius in March last, when a verdict was found for the defendant, subject to the opinion of the court. The state of the case was as follows:</p> <p>On the 5th of July, 1818, William, A. Field, deceased, covenanted with the plaintiff, that in order to liquidate a debt of about 2.500 dollars, which he owed him, he would ship goods to the amount of 2,500 dollars out of the commissions which the said Field was to receive as supercargo of the ship America, about to sail on a voyage from the United States to the East Indies and back again, and would consign the said goods to the plaintiff. This shipment was to be on the homeward voyage. And, moreover, the said Field did, by the same instrument of writing, in case of his death, assign and transfer to the plaintiff his commissions on the said voyage, and the proceeds thereof, for the purpose of liquidating the said debt. And on the same day Field gave authority in writing to the plaintiff to effect insurance on his own account on 2.500 dollars, the commissions of the said Field, and the proceeds thereof, as one of the supercargoes of the ship America, out and home. In pursuance of this authority, the plaintiff, on the 15th August, 1818, had insurance made in his own name in the office of the Philadelphia Insurance Company, on commissions outward and goods homeward, to the amount of 2,500 dollars. On the 10th July, 1818, Field had insurance effected on his own account by. the New-York Firemen Insurance Company, to the amount of 4000 dollars, upon his commissions as supercargo of the America. And, on the 11th of the same month, he wrote a letter to the defendant, in which the New-York policy was inclosed. It was proved by parol evidence, that some time prior to the making of the insurance of New- York, Field, being indebted to the defendant, had requested him to be his surety in a respondentia bond to an Insurance Company in New-York for 10,000 dollars, and promised, that if the defendant would comply with his request, he would cause insurance to be made on his commissions as supercargo of the America, and deposit the policy in the defendant’s hands as a security, as well for the sum then due to him,’ as for any loss'which he might suffer by the respondentia, bond. The defendant agreed to join in the respondentia bond, and afterwards did join in it. The America performed the outward voyage in safety, and sailed on her homeward voyage, Field being on board with a quantity of goods, the proceeds of his outward commissions consigned to the plaintiff. The ship was wrecked on the coast of New- Jersey, and Field perished. The plaintiff brought, suit in his own name, and -for his own use, on the policy underwritten by the Philadelphia Insurance Company, and received 1,700 dollars. The defendant compromised with the New-York Insurance Company, and received the sum of 1,800 dollars. When the defendant agreed to become the security in the respondentia bond, and received the Neiv- York policy in deposit, he was ignorant of the transactions between Field and the plaintiff. The plaintiff was ignorant also of the insurance effected in New-York, and of the transactions between Field and the defendant. The plaintiff contended that he was entitled to the money received by the defendant on the New-York policy.</p> <p>This case was argued by C. J. Ingersoll, for the plaintiff, and Finney for the defendant.</p> <p>For the defendant it was contended, that the plaintiff had no right to the money received by the defendant, because all that was intended to be assigned by Field to the plaintiff, was the commission out, and the proceeds of those commissions shipped home, not the commissions on the homeward voyage. Nor indeed could the commissions home have been assigned, because the cargo perished, and they were never earned. No .authority is given to the plaintiff by Field to insure the commissions home, but only the commissions outward, and the goods purchased with them and shipped home. The policy effected by the plaintiff at the Philadelphid Insurance Office shows this: it does not embrace commissions home. If by the assignment the plaintiff obtained the whole interest in the commissions, and the New-York policy was for him, then it is the same interest which was insured by the Philadelphia office, on which the plaintiff has recovered, and it was a double insurance. If the plaintiff alleges that Field effected this insurance for himself, then Field had no interest left to insure, and the money received by the defendant belongs not to the plaintiff, but in conscience to the New-York office, who have paid by mistake. The truth is, the agreement between the plaintiff and defendant looked only to a policy to be affected by the plaintiff, and not to any other. Further, the defendant had no notice of the plaintiff’s assignment when the Neiv- York policy was deposited, nor any circumstance to lead to a suspicion of it He .looked solely to this policy: the plaintiff to policies to bé effected by himself. If the plaintiff knew of this policy, he was guilty of neglect, in allowing it to remain in the hands of Field. The defendant had possession of this policy, and had the fund, he has the legal title, and his equity is at least equal to the plaintiff’s. To make out his title, the plaintiff must establish, 1st, That the matter insured belonged to him. 2d That the policy passed as an incident. 3d, That his right is prior to that of the defendant, neither of which positions can the plaintiff’ support.</p> <p>For the plaintiff, it was contended, that it was a case of a conflict of equities, and it must depend on the superior equity. Field was guilty of fraud,and in this fraud of Field’s the defendant’s claim is founded. Field assigned all his interest to the plaintiff and within a week afterwards deposited with the defendant a policy of 4000 dollars on the same interest, never informing the defendant of this assignment, nor the plaintiff of this deposit. That the New-York policy is on the interest assigned, is plain from the words of the assignment: and authority to insure. The former is of “his commissions on the said voyage and the proceeds thereof:” comprehending the whole voyage out and home. The authority to insure is still more express: it is, “as one of the supercargoes óf the ship America out and home.” Suppose the outward proceeds were only 500 dollars, and Field died but on the homeward voyage 5000 dollars were realized: would the plaintiff be entitled to receive only the 5Ó0 dollars towards payment of the 2,500 dollars due to him? By virtue of the assignment the plaintiff could have recovered on the New York policy. Then does the previous insurance here prevent him? A double insurance is where there are two insurances on the same interest and the same risk. But the Philadelphia insurance was “ on commissions outward, and goods homeward,” and theNew- Jor/r policy on commissions on the' voyage home. It is objected that the commissions, if assigned,perished. True, but the policy remained as a security for that loss. The policy, passed to the plaintiff under the word “proceeds:” or if not, it passed as an inseparable incident to the thing assigned. The defendants being in possession of the fund can give him no advantage. He obtained it after a knowledge that the plaintiff had a claim.</p>

By the return to a habeas corpus, issued against John Wilbank, it appeared, that the defehdant held the relator, John Buggies, as his apprentice: but the instrument by which he was bound as such, though signed by the parties, and the mother of Buggies, was not sealed. Ingraham, for the relator, contended, that this was a fatal objection to the validity of the binding, and that the relator ought to be discharged.

The deféndant John Thum, was convicted in this court, on an indictment found in the Mayor’s Court of the city of Philadelphia, which had been removed hither for trial by certiorari, for a misdemeanor, in being interested in the management and superintendance of a public building, viz: in repairing the new prison in Arch street, in said city, under the authority of the board of commissioners of the county of Philadelphia, he being then one of the commissioners of the said…

On a writ of error to the Court of Common Pleas of Chester county, and bills of exceptions to the admission of evidence, and to the opinion of the court in their charge to the jury, in this suit brought by Elizabeth Clemson, plaintiff below and defendant in error, against Sampson Babb, sheriff, of Chester county, plaintiff in error, the following appeared to be the case.

<p>In the Court of Common Pleas of Delaware county an ejectment was brought by the plaintiffs below Joseph Carter and Daniel Carter, plaintiffs in error against John Michael, and the following case was stated for the opinion of the court, to be considered as if the facts were found by a special verdict. Judgment was there entered for the defendant and removed to this court by writ of error.</p> <p>Abraham Carter on the 29th of December, 1787, made his last will and testament, and on or about the 1st of April, 1789, died without altering or revoking the same, and it was afterwards duly proved. At the time of making the said will and of the death of the said Abraham Carter, he was seized in fee of 50 acres of land situate in the township of ■ Chester, then in the county Chester j now in the county of Delaware, being the premises in the declaralion mentioned. By his said will he devised the same 50 acres in manner following:</p> <p>Item. I give, devise and bequeath unto my son Edward Carter, all that tract of 50 acres, (the meadow aforesaid only excepted) devised to me by my brother Edward Carter deceased, which descended to me by the death of our sister Lydia Carter, to whom the same was granted and conveyed by Robert Wade and Lydia his wife by deed of the 11th of 7th month 1684, and all that other tract of 50 acres of land devised to me by my said brother Edward Carter, which he purchased of Thomas Baldwin, the ISth of Jipril, 1719, to hold, to him my son Edward and his assigns for and during the term of his natural life, he making no waste or destruction of the timber thereupon, and paying thereout to my daughter dignes, the sum of 20 pounds in gold or silver money within the space of two years next, after the decease of my wife; and from, and immediately after the decease of him my said son Edward, Í give and devise the 50 acres déscended as aforesaid by the death of our sister Lydia, (excepting the aforesaid meadow,) to my said two sons Joseph and Daniel their heirs and assigns forever as tenants in common; and the aforesaid other 50 acres heretofore purchased of Thomas Baldwin I give and devise to the heirs male of the body of my said son Edward, lawfully to be begotten, and the heirs and assigns of such heirs, or heir male for ever, and for want of such heirs male then to my said two sons Joseph and Daniel their heirs and assigns for ever as tenants in common.</p> <p>The last mentioned 50 acres purchased of Thomas Baldwin, are the premises mentioned in the declaration.</p> <p>The testator devised other estates to his said two sons, Joseph and Daniel, and also all the rest, residue and remainder of his estate real, personal or mixed, &c, to his two said sons Joseph and Daniel in fee as tenants in common.</p> <p>Upon the death of the said testator, Edward Carter entered upon the premises in question under the said will and was seised thereof.</p> <p>Of the Term of Jipril, A. D. 1795, a proceeding in the form of a common recovery, was had of the said 50 acres in the Common Pleas of Delaware county, wherein William Graham, was demandant, and the said Edward Carter was tenant to the praecipe by which the same became vested in the said Edward Carter, in fee.</p> <p>On or about the 1st day of May, JL. D. 1821, the said Edward Carter, died, having first made his will in writing, by which he devised the said 50 acres in fee to his daughter Jinn Roberts who intermarried with the defendant, who was in possession of the said premises at the time of bringing this action.</p> <p>The said Edioard Carter, never had any heirs or heir male of his body lawfully begotten, but had two daughters who were living at the time of making the said Jibraham Carter’s will.</p> <p>The plaintiffs in this ejectment are the same Joseph and Daniel mentioned in the will of the said Abraham Garter.</p>

Beaumont, for 300 dozen of wheat and rye in the sheaff. The defendant below made cognizance as bailiff of Thomas MiKean, acknowledged the taking on the premises, and said, that one Benjamin Vogdes, for one year next before the 25th of March, 1820, held the lands as tenant, under a demise at the yearly rent of 300 dollars, during which time the rent distrained for accrued, which remained due.

<p>This was an ejectment brought by David Gray and George Heberton against John Hill and Mary Miller, tried before Gibson, J. át Nisi Prius, in November last, for a house and lot of ground in Spruce street, in the city of Philadelphia. The declaration was filed generally against both defendants, and there was a general plea of not guilty. Mrs. Miller died on the 4th March, 1819, and her death was suggested in the record. It was proved on the trial, that Hill was in possession of a two story house and stable in the rear of the lot; the remaining part of the property, being a distinct messuage and lot, was in possession of the heirs of Alexander Miller. It was admitted that Alexander Miller on the 6th day of December, 1800, had title to the premises, and that on the 6th day of December of the same year he filed his petition in the Court of Common Pleas, of Philadelphia county, praying for thebenefitofthe insolvent laws then ih force, to wit, the act of the 4th April, 1798. On the 20th December, 1800, he was discharged by the court, having madé an assignment to Charles Browne and Alexander Elmslie, in trust, for the use of his creditors, by a short indorsement on his petition. On thé 26th April, 1814, Browne and Elmslie signed a paper, which on the 21st Jamiary, 1815, was filed in the Court of Common Pleas, setting forth, that they had never acted as trustees of A. Miller, and declined doing so; and on the 21st January, 1815, Gray and Heberton,- creditors of Miller, filed a petition in the same court of Common Pleas, setting forth that Browne and Elmslie had never acted as assignees, and praying the court to appoint others in their place. On the same day, Heberton and Gray, the plaintiffs in this ejectment, were appointed by the'court, in the room of Browne and Elmslie. On the 24th June, 1817, the court approved of Philip Justice as security for the assignees, and fixed the bail at 3900 dollars. On the 26th June, 1817, the bond of the assignees and surety was filed. On the 4th of December,' 1817, the court dii’eeted A. Elmslie, who survived Browne, to assign his interest in the estate of Miller to Heberton and Gray, which was accordingly done on the same day.</p> <p>A verdict was rendered in favour of the plaintiff for the part of the lot in the possession of Hill, subject to the opinion of the court.</p>

On the trial of this cause before Duncan, J. at the Nisi Prius in February, 1823, the plaintiff gave in evidence, that on the 7th December, 1819, Michael Reed and Jlbraham Beidleman, by indenture of that date, assigned and transferred to Peter Kneppley and Philip Reed, all their estate, in .trust, .to convert the whole into cash; and then to apply the monies, after deducting costs and charges, “in the first place, to pay the several creditors of the said Reed and Beidleman…

<p>Error to the District Court for the city and county of Philadelphia.</p>

<p>IN ERROR.</p> <p>A feme covert joined her husband in a deed of her real estate, but never' separate»' ly acknowledged it, conveying the estate to trustees for the payment of the hus-' band's debts, and then in trust for her separate use. Afterwards, living in a state of separation, the wife, by an instrument purporting to be her last will, disposed bf the property and died: held that the disposition was void.</p>

<p>Error to the Court of Common Pleas of Chester county, in an action of assumpsit brought by Matthew Stanley, plaintiff below, defendant in error, against Jacob Nailer and George Nailer executors of John Nailer, defendants below, plaintiffs in error, judgment having been rendered in favour of the plaintiff below.</p> <p>The declaration of the plaintiff below contained four counts.</p> <p>The 1st stated that on the 1st April, 1815, Isaac W. Vanleer, was seised of certain lands and tenements therein described, situate in Chester county, and on the 22d April, following James Culbertson,-Samuel Lewis, and Thomas B. Smith, obtained judgment in the Court of Common Pleas of Chester county against the said Vanleer, for a debt of 10,000 dollars and 72 shillings damages; that on the 26th September, in the same year Vanleer, and wife, for the consideration of 4870 dollars, conveyed to John Nailer in fee, a tract of land in said county, containing 61 acres and 10 perches, upon which the said judgment was a lien, and on the 20th October, in the same year, Vanleer and wife, in consideration of 1400 dollars conveyed to Matthew Stanley, the plaintiff, in fee, a tract of land containing 37 acres, 48 perches, upon which the said judgment was also a lien. That on the 3d February, 1819, the sheriff of Chester county, by virtue of an alias venditioni exponas, issued under the said judgment, exposed to sale the tract conveyed to Mathew Stanley, and to satisfy the said debt and damages, sold the same to Samuel Leiois for the sum of 2300 dollars, and thereby the debt and damages due under the said judgment were satisfied and paid, and the lands so purchased by John Nailer, exonerated from the lien of thesaid judgment: whereby the said Matthew lost and was dispossessed of the said tract, so purchased by hi to wit, on the 1st of Jlpril, 1819. The plaintiff then averred, that on the day last aforesaid, there were no other lands, goods or chatties of Vanleer whereby the said debt and damages could be collected, other than these two before mentioned tracts, and that Vanleer then was, and ever since had continued to be, insolvent and unable to pay the said debt and damages. The plaintiff then averred, that by reason of these premises, the said John Nailer, on the day and year last aforesaid, became liable to pay the plaintiff a proportionate share of the said tract so sold by the sheriff to the value the said two tracts, which proportionate share amounted to 2000 dollars, and that the said John being so liable, on the day and year last aforesaid, in consideration thereof, promised to pay, &c.</p> <p>The second count contained no material allegations differing from the first. The third count was for money paid, laid out and expended; and the fourth count was for money had and received.</p> <p>The defendants pleaded non assumps erunt. On the trial, all the material facts and allegations contained in the declaration were made out by the plaintiff, except that no evidence was given of any promise or agreement by the defendant to pay or contribute any monies to the plaintiff; excepting also, that it appeared by the levy of the sheriff, and the sale made by him, that there were other lands than those mentioned in the declaration, liable to the payment of the said judgment; and, that they had contributed to the payment thereof. The plaintiff having closed his evidence, the defendants counsel thereupon insisted thatthe plaintiff was notenti tied to recover.</p> <p>1st. Because the plaintiff was bound to seek his remedy, for contribution against the lands conveyed by Vanleer and wife to John Nailer, by application to the court upon the return of the writ, to order the levy to be corrected so as to include the whole of the lands bound, and that having failed so to do, he could not resort to this action.</p> <p>2d. Because no express promise was proved to have been made by Nailer, in his life time, or the defendants since his death, to pay or contribute any monies to the plaintiff, nor would the law imply a promise upon the evidence given.</p> <p>The court in their charge to the jury overruled both objections, and directed them that said objections ought not to prevail.</p> <p>The defendants excepted to this charge.</p>