Volume 10 — Watts's Pennsylvania Reports

James D. Caldwell against Brewster Freeman. The plaintiff obtained a judgment against the defendant for S54 dollars 36 cents, upon which the defendant paid 400 dollars. A fieri facias subsequently issued for the balance, which was levied upon thirty-two head of cattle as the property of the defendant, but which were claimed by a third person.

This was an action of ejectment by Hugh Bellas against William M’Carty and others for the undivided three-fourths part of a tract of land in Coal township containing one hundred acres. Each party claimed under the same original title, and under George Derk; the plaintiff by a conveyance from Derk, and the defendants by a sale of the land, as the property of Derk, by the sheriff of Northumberland county upon a testatum venditioni exponas from Union county.

Edward H. Castle against David Reynolds & Co. John Brink and David Reynolds were partners in a contract with the Lehigh Coal and Navigation Company, for making a railroad.

Henry Morgan for the use of Joseph H. Ellis against Abraham Pool and others. This case originated before a justice of the peace who rendered a judgment for the plaintiff and issued execution, upon which it was alleged a part or the whole of the money was made. Upon another execution being issued, the defendants took out a certiorari and removed the same into the common, pleas.

<p>ERROR to the common pleas of Union county.</p> <p>Joseph Klinger, administrator of Catharine Kreider, against Samuel Boyer, surviving executor of Leonard Boyer, deceased. This was an action on the case for the recovery of a legacy.</p> <p>On the Sth April 1812, Leonard Boyer made his last will and testament, by which, after making several specific beqiiests to his widow and others, he thus disposes of his estate: — " Item: All the rest and residue 'of my estate, after my just debts and funeral expenses be paid, I give and bequeath them in the following manner, to wit: unto thy sons, William, John Leonard, Jacob, the children of my deceased son George, for an equal share, and Samuel and my daughter Christina intermarried with John Filman, Catharine intermarried with Isaac Kreider, Elizabeth intermarried with William Haas share and share alike: — the children of my son George to have an equal share.”</p> <p>On the 16th February 1826, the testator died and the will was proved.</p> <p>The plaintiff, after giving the will in evidence, and exhibiting the account settled by the executors, showing the amount to which intestate was entitled as a residuary legatee, closed.</p> <p>The defendant then offered the following evidence: —</p> <p>“ That the testator, Leonard Boyer, declared that he had given his money to his children, and only wanted the interest during his life; that Isaac Kreider, the husband of plaintiff’s intestate, on the 2d November 1811, gave his note to Leonard Boyer for 46i. 85., equal to 123 dollars 74 cents, which sum, with 96 dollars 25 cents interest, were charged in the inventory of the estate of the said Leonard Boyer, deceased; that the same sum was charged in the executor’s administration account, together with 13 dollars 44 cents additional interest, and forms part of the balance reported by the auditors, as proved by plaintiff; that during the lives of Isaac Kreider or Catharine Kreider, no demand of the legacy was even made, but that Isaac Kreider was present at the settlement by the auditors, and. that this legacy was considered by Kreider and defendant as settled, by the claim of the testator against him; [that Kreider toas at all times so poor as to be unable to pay said note;] that Kreider never did pay said note; [that since the death of Isaac and Catharine Kreider,■ their children, including the plaintiff, divided all the property of the said Isaac and Catharine among themselves, without administration, the ivhole of it not exceeding 100 dollars;] that Isaac Kreider bought of defendant at the sale of the goods of the testator to the amount of 17 or 18 dollars, which he did not pay for; that all was considered settled by Kreider and Boyer.”</p> <p>The plaintiff objected to this evidence, but the court overruled the objection and admitted the whole offer, “except the parts within brackets, the note of the 2d November 1811 being first given in evidence, before the declarations of Leonard Boyer, the latter being only admitted to show with what intent the money was advanced to Isaac Kreider.”</p> <p>The plaintiff excepted to the opinion of the court.</p> <p>The defendant then gave in evidence the inventory of the estate of the testator showing that the note of Isaac Kreider was included in it; the administrator’s account showing that the executor was charged with it, and the note itself for 46i. 85. dated 2d November 1811, payable ten days after date, and then called witnesses who testified as follows:—</p> <p>Barbara Boyer testified. — “ Leonard Boyer lived with me and my husband, I think eight years. He gave his money to his children just as they needed it. When a child came, he gave it to him after he had married or commenced house-keeping. He gave it because they needed it. Kreider at one lime bought a horse and got money. The children that got too much were to pay back again. The interest they were to pay for him to live on. Kreider never paid interest, and they used to scold about it. The children were to have the money they got as inheritance. Those that had too much were to pay back again. Those that had not received enough were to receive from those that had too much. Kreider was before the auditors.</p> <p>“ The old man said so at the time he lived with us, about a year before his death. He died about 17 years ago. Defendant and I often talked about it, and so did Leonard Boyer and I.”</p> <p>Margaret Boyer testified. — “I am the wife or widow of Leonard Boyer, who was a son of old Leonard Boyer. I heard old Mr Boyer say that he had now given his money among his children; that they must pay him the interest so that he must live; that Kreider had received his money too now and he never paid him any interest. It is so long that I cannot remember. I heard this talk several times; can’t say how often; can not say how long since I heard it; it was a good while before the old man’s death. He got it because he needed it. He bought a horse one time. He said those that had too much.were to pay to those who had not enough; one had none at all. He said that after his death, those that had none should receive from those that had too much.”</p> <p>The court charged the jury that if they believed the testimony of the two witnesses that the money was advanced to Isaac Kreider as so much of his legacy or inheritance, the plaintiff was not entitled to recover; the amount of the note being greater than the residuary legacy.</p> <p>The admission of the evidence and the legal effect given to it by the court in their charge, were the subjects of the assignment of error.</p> <p>cited 8 Waits 39. 406, Sir. Purd. Dig. 538. 78S, sect. 48; 11 Serg. S¡- Raiole 325; 7 Serg. 8,- Rawle 493; 6 Watts 132, 4 Rawle 183; 2 Watts 90; 6 Serg. fy Rawle 466; 2 P. Wms. 497.</p> <p>cited 2 Atk. 48; 3 Alls. 77; Ham. Dig. 289; PI. 7S 79; 1 Ball fy Beatty 298; 2 Raiole 304.</p>

<p>B made a voluntary assignment of his property and effects to trustees for the benefit of his creditors, and by the deed directed them to give public notice of the assignment, and to pay such creditors as would release the assignor within sixty days after notice. The trustees having sold and transferred all the property and effects to P, who had been their agent and attorney, he collected and received the same: B, upon the allegation that the trustees had never given the notice required by the deed, and that none of the creditors had released, treated the deed as á nullity, and brought an action for money had and received against P: — Held, that he could not recover.</p>

<p>ERROR to the common pleas of Luzerne county.</p> <p>Jameson Harvey against Freeman Thomas.- Trespass guare claihsum fregit, brought to August term 1839. On the 5th May 1832, an act of assembly was passed, authorizing the location and. construction of lateral railroads connecting with the public improvements, and prescribed the mode of obtaining the same; in pursuance thereof, the defendant, Freeman Thomas, petitioned the court of common pleas for the appointment of viewers to ascertain the amount of damage Jameson Harvey would sustain by reason of the railroad which he proposed to make through his land. The viewers reported that he should pay 100 dollars damages; from this report Harvey appealed; and it was afterwards, to wit, 15th April 1835, tried by jury, who found 65 dollars damages. On the same day a rule to show cause why a new trial should not be granted was entered. On the 28th May, 1835, rule discharged.</p> <p>Nothing further was done until the 3d August 1839, when a rule was entered to show cause why judgment should not be entered on the verdict as of 28th May 1835. 14th November 1839, rule discharged, and the court directed judgment to be entered as of 3d August 1839, when the jury fee was paid; and at the same time, the plaintiff, Freeman Thomas, obtained a rule to bring the 65 dollars, the amount awarded by the jury, into court and there paid the same; it having been previously tendered to the defendant, Harvey.</p> <p>On the trial of this cause, it appeared that all the record of the foregoing proceeding was lost, except the docket entry, and the defendant offered to prove, by parol, the contents of the lost papers, to which the plaintiff objected, and the court overruled the objections and sealed a bill of exceptions.</p> <p>The plaintiff asked the court to instruct the jury upon these points:—</p> <p>1. There being no judgment on the verdict in the proceeding of Thomas v. Harvey, it was no justification of the trespass complained of in this suit.</p> <p>2. That defendant is a trespasser unless his road is made precisely upon the ground laid down in his petition and specification.</p> <p>3. That defendant had no right to occupy any part of the plaintiff’s land, at the terminus of the road, for loading boats.</p> <p>4. That the act of 5th May 1832, is unconstitutional. And at all events it was not intended to apply to any case but that where the petitioner for the road had the right of landing, or owned the land at the terminus of the road.</p> <p>And the defendant asked the court to instruct the jury, that the proceedings and assessments of damages given in evidence are conclusive upon the plaintiff, and he cannot recover in this suit.</p> <p>Jessup, president, instructed the jury, that inasmuch as the defendant had not proceeded to have a judgment entered upon his verdict, and the money tendered before this suit was brought, the proceedings were not a justification to him; but that the record of them, as they stood, was evidence in mitigation of damages, and in this point of view it was permitted to go to the jury. The second point the court answered in the affirmative, and submitted the fact to the jury. In answer to the third point, the court said, that it was not necessary to the enjoyment of the road by the defendant, that he should be either the owner of the soil or of the right of landing or loading his boats on the navigable waters at the termination of the road: his right would be to reach the navigation, and that being a public highway, he would, when there, only be responsible for any injury he might do to the property or right of others. The court also instructed the jury, that the act of the 5th May 1832, is constitutional and binding: and directed them to find for the plaintiff the amount of actual damage which he had sustained by the erection of the road; but not for any consequential damage arising from injury to his landing, &c.</p> <p>Verdict and judgment for 25 dollars damages, and costs.</p> <p>cited Str. Purd. 146; 11 Serg. # Rawle 319; 1 Saund. 298; 6 Bac. Jib. 609; Co. Lit. 303; 3 Whart. 484; 1 Penn. Rep. 394; 1 Bald. 222; 1 Yeates 167; 9 Serg, fy Raiole 22; 3 Watts 219; 1 Whart. 137; 2 Whart. 539..</p> <p>cited 1 Penn. Rep. 464; 12 Cons. Deb. 211; 6 Binn. 509; 3 Yeates 153; 2 Dali. 304.</p>

This was an action of ejectment by Timothy H. Lewis against William T. Bradford, for a tract of land in Monroe township, containing 325 acres. The plaintiff, to maintain the issue on his part, gave in evidence as follows:— That in 1791 the land in controversy was occupied as a sugar-bush by one Jacob Bowman and one Stephen Strickland — that they continued so to occupy it for three years.

<p>In an action against a justice of the peace, by a parent, to recover the penalty for marrying his minor son, the entry in the family Bible of the son’s birth, proved by the oath of the plaintiff, is competent evidence of the minority of the son.</p> <p>In such action it is competent for the defendant to give evidence tending to show previous encouragement or assent of the parent to the marriage; but not subsequent indications of his satisfaction therewith.</p>

George Roush against Simon Walter. Action on the case. By an act of assembly passed in 1803, Penn’s creek was declared a public highway for arks, rafts, &c., and provision was made by the same act for the erection of dams by individuals who owned the lands through which it ran, prescribing the manner in which it should be constructed, and requiring the owner to make a shute of certain dimensions Tor the passage of craft.

Lewis Maus issued a scire facias to revive a judgment against Wm Montgomery, administrator of Philip Maus, deceased, with notice to Joseph Maus, Lewis Maus, Elizabeth Maus, and Philip Strawbridge; each defendant pleaded separately to issue, and a verdict was rendered for the plaintiff for 370 dollars 91 cents, to be levied of the land of Elizabeth Maus, and the jury found for the defendants Joseph Mans and Philip Strawbridge. Whereupon a judgment was rendered.

WRIT of error to the common pleas of Luzerne connly. This was an action of ejectment by Jacob Kutz against Caleb Inman, for the one-third part of a tract of land, containing 38 acres. Richard Inman died seised of the land, leaving issue, eleven children, of whom Richard, Caleb, and John Inman were three.

Samuel Hazelett against C. H. L. Ford, Hiram Bebee, and Lewis Mead. This was an action of trespass which originated before a justice of the peace, and was brought into the common pleas by appeal. The cause of action was for taking and selling the plaintiff’s horse upon an execution against Amsey Hammond.

This was an action of replevin for a quantity of store goods in boxes. The ca,se and all the facts in it are circumstantially stated in the opinion of the court.

Samuel John, Esq., against Simon P. Kase. This was an action on the case in assumpsit, and originated before a justice of the peace, and was brought into this court by appeal.

John Myers against Charles B. Drake. On the 4th September 1S38, the defendant contracted with the plaintiff to deliver to him 100 bushels of clover seed by the 1st of February following, for 800 dollars.

Christian Brobst, endorsee of David Williams, against David Williams.

Frederick Kramer against Martin A. Stock. This was an action on the case, in which the plaintiff thus laid his cause of action: — Martin A. Stock, late of said county, yeoman, was attached to answer Frederick Kramer, of a plea of trespass on the case.

<p>It. is essential to the validity of a judgment of a justice of the peace for a sum exceeding 100 dollars, that it should appear upon the face of his record that the parties appeared in person before him and confessed the judgment. Without this the judgment is absolutely void, and therefore not the subject of ratification.</p> <p>The sale of the defendant’s personal property to the plaintiff upon a void judgment, vests no property in him.</p>

<p>The grant of an annuity, out of whatever payable, prima fade binds the person of the grantor; and the implication, from it, of a covenant to pay, can be rebutted only by a plain intent, apparent on the face of the instrument, that the annuitant should resort only to a specific fund: Hence, a promise to pay the annuity in consideration of forbearance to sue the personal representatives of the grantor, is binding, and may be enforced against the promissor.</p>

<p>It is proper that testimony should be rejected, when, if given, it would have no legal operation upon the rights of the parties.</p>

<p>The endorsee of a promissory note may maintain an action of debt against the maker, and recover upon a statement of his canse of action. But the statement must contain an-averment of the endorsement of the note by the payee to the plaintiff: without such averment, a judgment upon it would be erroneous.</p> <p>The entry of a rule of arbitration, does not take the cause out of court, or deprive it of its jurisdiction. This effect cannot be produced, except by the appointment of the arbitrators,' and the commitment ’of the case to them. A mere rule, not acted on, may be treated as a nullity by either party.</p> <p>Sed secus as to a.rule of reference.</p>

The overseers of the poor of Union township against Abraham Aurand and John Wolf. This was an action on the case in the nature of a conspiracy.

<p>ERROR to the special court of common pleas of Bradford county.</p> <p>Mary Ann Lanning against William Patterson and others. Ejectment for 800 acres of land.</p> <p>The plaintiff gave in evidence a patent for the land in controversy to Mathias Hollenbach, who died intestate, leaving as his heirs at law, George M. Hollenbach, Mary Ann Lanning, widow, Ellen J. intermarried with Charles F. Wells and Sarah H. intermarried with Chester Butler. Also a deed of partition between all the said heirs, by which the land in dispute was vested in Mary Ann Lanning, the plaintiff in severalty, and other parts of the estate of Mathias Hollenbach, deceased, were vested severally in the other heirs. This deed contained no express warranty either of quantity or title of the land mentioned in it.</p> <p>The plaintiff then offered Charles F. Wells, who was the husband of one of the heirs at law, as a witness, who was objected to by the defendant, on the ground of interest; but the court overruled the objection, and the witness gave evidence material to the plaintiff’s cause. This was the subject of the error assigned.</p> <p>cited Co. Lit. 173 b, 174 a; 7 Bac. M. 231.</p> <p>cited 5 Watts 379.</p>

WRIT of error to the common pleas of Bradford county. This was an action of ejectment for a tract of land by Samuel K. Gore against George and George W. Kinney. The facts of the case seemed to be, that the land in controversy had been sold in-1834, at sheriff’s sale, as the property of the present plaintiff, and purchased by William H. Overton for 625 dollars, who conveyed to the present defendants.

<p>In order to give title to land by the statute of limitations, there must be an actual and uninterrupted occupancy of it for twenty-one years. An occasional occupancy, and an uninterrupted use of the land as a wood lot, together with the payment of taxes, will not give title.</p>

John Prutzman against Chauncy Ferree. Ejectment for a tract of land. Robert Bailey, claiming to be the owner of a tract of land, in March 1828, put Chester Conch into possession of it as his tenant; in October 1828, Couch purchased the land from John Norris, the agent of Elias Boudinot, by articles of agreement. On May 12, 1829, Couch sold the land to Jesse Keeney, who went into possession of the north half of it.

<p>If a defendant in an execution have two cows in his possession, of one of which he is the absolute owner, and the other of which he had hired for a certain time, the officer having the execution in his hands, is not liable to an action of trespass for selling the one of which the defendant is the absolute owner.</p>

<p>ERROR to the common pleas of Union county.</p> <p>The Commonwealth for the use of the Bank of Pennsylvania against Frederick Potius. This was an action of debt upon the official bond of John Cummings, sheriff of Union county, in which the defendant was a surety.</p> <p>The plaintiff claimed the amount of a balance due upon four writs of fieri facias, issued at the suit of the Bank of Pennsylvania against M. J. App, amounting to about 2000 dollars.</p> <p>After the plaintiff had given in evidence the executions, he proved that M. J. App, the defendant, had in his possession personal property to an amount more than sufficient to pay them, which had been sold, carried off, and squandered by the defendant, after the executions came to the sheriff’s hands. It appeared, also, that after this suit was brought, the bank had proceeded against the sureties of M. J. App, and collected a part of their debt from them, so that it only claimed for itself to recover in this suit a balance of 117 dollars 16 cents. But the sureties, who were endorsers, to the bank, of M. J. App, and who had paid the whole debt, except the above balance of 117 dollars 16 cents, came in, by consent of the plaintiff, and claimed, by way of substitution, to recover in this action the whole amount of the original debt, for which the executions came to the hands of the sheriff.</p> <p>The defendant set up as a defence, and proved, that when the writs of fieri facias were in the hands of the sheriff, the plaintiff accepted from the defendant, M. J. App, a bond and mortgage for the whole amount of the executions, dated September 29, 1832, payable in four, eight, and twelve months: and in order to show the terms upon which this mortgage and bond was given, he called:</p> <p>H. W. Snyder who, being sworn, said — After September court, 1832, Mr Bellas sent me that mortgage in a letter, in which he desired me, so far as I recollect, to have the same executed by App. He did not hesitate about it, but went with me to Squire Feehrer and executed it. He made light of it, saying he could and would pay it in a short time. I do not remember what was said about the time. When the mortgage was executed, I returned it to Mr Bellas, I do not recollect whether I did show App the letter or not. I do not know whether I said any thing about time or not; but I think App spoke in reference to it. I think he said he would be able to pay the money before the expiration of a year. I cannot remember what I said to that. Do not know that I said any thing about the mortgage being given up if paid within the year. I can not say that he read the mortgage. I can not say that the letter contained any thing about a previous arrangement. I do not know what the mortgage was given for, only from what appears on it. I know of no money paid. Any thing I said must have been from what was on the face of the mortgage.</p> <p>The assent of the plaintiff to the substitution of the endorsers was dated February 11, 1839, which was more than five years after they had paid the money to the bank.</p> <p>There were a number of bills of exception to the admission and rejection of evidence during the trial, but none of them involving any legal principle.</p> <p>The court below (Lewis, president) submitted to the jury, as a matter of fact, whether the bond and mortgage were taken by the plaintiff to relieve the defendant, App, from the writs in the hands of the sheriff, and with a view of giving him the time mentioned for the payment of the debts, or whether they were given as mere collateral security, instructing them, that if the former were the object of the parties, it was a release of the sheriff, and the plaintiff would not be entitled to recover in this action; but if the latter, it would not affect the plaintiff’s right to recover. As to the substitution of the endorsers, the court was of opinion that it could not be allowed; and that the bank was only entitled to recover, if at all, the balance which remained unpaid to it.</p> <p>on the subject of the endorsers’ right to substitution, and a recovery by them in this action, cited 6 Watts ■226; 1 Dess. Rep, 409; 2 Rawle 128; 1 Johns. Cha. Rep. 409; 2 Johns. Cha. Rep. 560; A Johns. Cha. Rep. 123, 530, 545; 10 Johns. 524; 2 Johns. Cas. 227; Story’s Eq. 471, sect. 493. On the subject of the duty of the sheriff, he cited 1. Wash. C. C. Rep. 29; 16 Johns. 287; 10 Wend. 267; 15 Johns. 456.</p> <p>The counsel for the plaintiff in error also contended, that.there was no evidence which justified the court in submitting it to the jury to find, whether the plaintiff in the executions had made any agreement to stay them: that the mortgage was taken as collateral security for the payment of the debt, and for no other purpose.</p> <p>contended that the court below had properly submitted the fact to the jury, and that the sheriff had not violated his duty; and cited on this point 7 Law Lib. 47; Watson on Sheriffs; 3 Whart. 257; 6 Watts 76; 2 Watts 45; 5 Watts 229; 2 Watts 414; 4 Watts 24; 6 Watts 227.</p>

<p>WRIT of error to the district court of Allegheny county.</p> <p>John Dunlop and others against James Dunlop. This was an action of ejectment for a lot of ground, which involved the validity of a paper purporting to be the last will and testament of James Dunlop, Se'n., deceased. The only question was, whether the will was legally executed, in pursuance of the provisions of the act of the Sth April 1S33. The defendant claimed as a devisee under the will.</p> <p>The undisputed facts of the case were in substance as follows:— The testator requested one of the witnesses, Samuel Milliken, to draw his will for him, and told him how he wished to dispose of his property, in the presence of another witness. Milliken took a written memorandum from the mouth of the. testator, of what he wanted in his will, and took it away, and drew a more formal testamentary instrument, in substance the same as his rough draft, The next day he returned to the house of the testator, with two witnesses for the purpose of having the same executed, but found the testator speechless and senseless. Supposing that it was absolutely necessary that the will should be signed, whether the testator was able or not, and that he was about to die, they proceeded to hold him up in his bed, while one of the persons present (having previously written the testator’s name to the will) put a pen in his hand and directed it while making a mark. The will was not read to the testator, because they supposed it useless, as he could not understand anything at that time. But the testator revived and got better, and on the following day sent for Milliken to come and read his will to him; Milliken went accompanied by one of the witnesses who had been there the day before. At the testator’s request the will was opened (for it had been sealed up) and read to him distinctly, concluding with the formal attestation “signed, sealed, published, and declared by me, the above-named James Dunlop, to be his last will and testament,” &c. The testator said, “ it was just as he wanted it.” This was proved by two witnesses, who fully concurred in all their statements.</p> <p>The court below instructed the jury, “ that if they believed from the evidence that the testator knew his name had been put to the will, and by his declaration intended to ratify and confirm that act, it may be considered as his act, and will bring the case within the statute.”</p> <p>Upon a motion for a new trial, the court below, (Grier, president) expressed great doubt about the correctness of his opinion as delivered to the jury; but refused the motion, and recommended that his opinion should be reviewed by this court.</p> <p>cited 1 Doug. 241; Skin. 227; 3 Lev. 1; 1 Maulé Sr Sel. 295; 2 Shoioers 297; 2 Vez. 458; 5 Whart. 386.</p> <p>cited 1 Roberts on Wills 93, sect. 11; 2 Bos. &r Pul. 217; 3 Pr. Wms. 254; 1 Vez. Jun. 11; 1 Vez. Sr Beames 362; 8 Vez. 504; 19 Com. Lato Rep. 91.</p>

<p>ERROR to the district court of Allegheny county.</p> <p>Oliver O. Gregg and Christian Johnson against Elias Phillips and Jacob Poth. This was an action of ejectment for 70 acres of land on Coal Hill; consisting of nineteen coal lots, and another lot adjoining, of about 35 acres. The land was conveyed by the proprietaries to John Ormsby, Sen., by deed, dated September 7, 1791. John Ormsby, Sen. died intestate, in December 1806, leaving two of his five children, Oliver and Mrs Sidney Gregg, surviving him. Mrs. Bedford and Joseph had died, without issue, before their father. John Ormsby, Jun. had also died in 1795.</p> <p>The plaintiffs claim as the purchasers of the title of Mary Swazey, who they allege is a daughter of John Ormsby, Jun., and therefore entitled to inherit the one-third of the estate of her grandfather, as tenant-in-common with Oliver Ormsby and Sidney Gregg. Oliver Ormsby died in 1832, and the landlords of defendants are his children and heirs.</p> <p>The defendants relied upon three grounds of defence:</p> <p>1. That Mary Swazey was not the legitimate daughter of John Ormsby, Jun., and this involved the legal objection to the sufficiency of the evidence to establish the validity of the marriage of John. Ormsby, Jun.</p> <p>2. That John Ormsby, Jun. had- been fully advanced by his father in his lifetime. This ground of defence involved the inquiry, as of what time the value of an advancement in land is to be made, and by what rule it is to be ascertained.</p> <p>3. That the plaintiffs were barred by the act of limitations: and this involved the inquiry, what acts of exclusive ownership will be evidence of adverse possession of one teuant-in-common against his co-tenant.</p> <p>The evidence given upon the trial was exceedingly voluminous, but the points raised by it will be sufficiently understood by the statement of it, contained in the following charge of the court to the jury:</p> <p>Grier, President. — The first question for your consideration is, whether Mary Swazey (the wife of Gabriel Swazey) was one of the heirs at law of John Ormsby, Sen. It is admitted that John Ormsby, Sen. had five children, two of whom (Mrs Bedford and Joseph Ormsby) died before their father, and without issue.- Oliver Ormsby and his sister (Mrs Sidney Gregg) survived their father. John Ormsby, Jun. (the other son) also died before his father; and the plaintiffs claim, that Mary Swazey was the daughter and only child of John Ormsby, Jun. and is therefore entitled to the one-third of the estate of her grandfather, John Ormsby, Sen. That this Mary Swazey is the daughter of John Ormsby, by his reputed wife, (Lydia, daughter of Nathan Swazey,) is clearly proved, and has not been seriously denied. But defendant’s counsel contend, that there is no evidence, or at least not sufficient evidence, that the marriage of John Ormsby with Lydia Swazey was valid. And as the learned counsel have condensed their able argument on this subject into a number of points, on which they have prayed the opinion of the court, it will be best, perhaps, to examine this subject, with reference to them. And we answer to these points:</p> <p>1. They contend that (as between persons suvjuris) marriage is to be decided as to the law of the place where it is celebrated. If valid there, it is everywhere. It has a legal ubiquity of obligation; if invalid there, it is equally invalid everywhere.</p> <p>2. If it be insisted that marriage has been solemnized according to the laws of the country where the marriage took place, it is necessary to prove what the law of that country was.</p> <p>3. The existence of a foreign law or custom, is to be proved (as a matter of fact) by evidence to show what the law or custom is, and the court cannot presume that the law of a foreign country agrees with the law of our own in any particular point.</p> <p>4. Marriage is a contract sui generis, which is regulated not by private contract, but by public laws of the state, which are imperative on all who are domiciled within its territory.</p> <p>5. The onus of proof of a foreign law, like the burden of proof of other facts resting upon the party who claims, by virtue of a contract alleged to be made in conformity to it, he must prove it by competent testimony; if written, by documentary evidence; if unwritten, by the attestation of tribunals, or proofs of persons in a situation to be conversant with it; and in the absence of such testimony, he must be considered as failing in his proof.</p> <p>6. The marriage between John Ormsby, Jun. and Lydia Swazey (the mother of the plaintiff) is alleged by Mrs. Sarah Swazey to have taken place some time before 1791. In answer to the third interrogatory, she says; “ That John Ormsby married Lydia Swazey about forty years since; that they were married by Justice King, who was duly authorized todo so by the Spanish government, and who was in the habit at that time of marrying a great number of persons; that she was present at the marriage, and waited as bridesmaid upon Ormsby’s wife; that he lived with his wife about three years after his marriage, during which time the said Mary was born.” The courtis requested to charge the jury, that supposing these to be the facts of the case, there is no sufficient proof before them of the validity of the alleged marriage; that at the time of the alleged marriage, the country of the domicil of the parties was under the government and jurisdiction de facto of the king of Spain; that the validity of such marriage must be tested by Spanish laws; that foreign laws must be established by professors of the law of the country, or that the law regulating marriage must be procured and shown to be the existing law of the country at the time.</p> <p>7. That the declaration of the parties, common reputation of the country, and cohabitation, and birth of the children during cohabitation, although circumstances from which a marriage may be presumed, in absence of direct testimony, of the fact of marriage; yet when the marriage ceremonies of the act are fully testified to, it is incumbent on the parties alleging the marriage, to show that it was performed in conformity to the law of the domicil; and failing to do that, the proof of the legitimacy of the offspring of such cohabitation entirely fails.</p> <p>8. .That taking all the evidence given in this case to be true, there is no fact or accumulation of facts, from which the jury can infer the validity of the alleged marriage between John Ormsby, Jun. and Lydia Swazey.</p> <p>9. That if any just inference can be drawn from the facts of the case, in relation to the alleged marriage, it must be against the validity.</p> <p>10. That there is no proof that the marriage alleged to have taken place between John Ormsby, Jun. and Lydia Swazey, was a valid marriage, according to the law of the domicil.</p> <p>In answer to these points, the court instruct you—</p> <p>.'That the first five correctly state the general principles of the law on this subject, although subject to many exceptions, not necessary to be here enumerated. Story’s Conflict of Laws, sects. 118, 119, 120, &C.</p> <p>...But the court are not prepared to concur in all the inferences, or the results which are alleged necessarily to follow in their application to the present case, as drawn by the learned counsel, in the last five points.</p> <p>It is true that by the evidence in this case, the Natchez country, (as it was then called), in which this marriage was contracted, was at that time under the Spanish government de facto, through a mistake of the true boundary line; and that, as a general rule of law, the validity of the marriage must be tested by the lex loci; and that the party alleging its validity should show that it was valid by the customs and laws of the country.</p> <p>But to apply the same rules and mode of proof to every case of foreign marriage which may be found laid down in the English and European courts, would be exceedingly oppressive and unjust. It was but a short time that this portion of the country was under the Spanish government, having changed more than once from France to Spain, and back again. The laws and customs of these distant colonies often differed greatly from those of the mother country, from sheer necessity. The governors, appointed by the king of Spain, had general absolute political powers, both legislative and executive. This colonial government has ceased to exist for near half a century. These edicts of the governor, and the customs of the province, are not preserved in any accessible shape or known locality. It would be useless to ransack the musty records of San Ildefonso for the appointment and powers of the governor, or seek for records of his temporary edicts, or to expect a modern Louisiana lawyer to testify to the fleeting customs and changing laws of a government defunct a half a century ago. It would be as reasonable to expect record proof of acts of parliament among the Winnebago Indians, as to suppose that the local customs and temporary, edicts of the early Mississippi colonial governments should be found registered and enrolled, or stereotyped in books, like the laws of the different European states, which have undergone little change for centuries. To exact, therefore, in all cases, the same unbending mode of proof, would be hard and unjust, and would be establishing a rule which would bastardize one-half the descendants of the early settlers on the Mississippi.</p> <p>The court cannot, therefore, consent to charge you, as requested by defendant’s counsel, that the proof of the marriage of John Ormsby, Jun. with Lydia Swazey, is not sufficient, in law, to establish that fact.</p> <p>On the contrary, if they believe the witnesses, that it was customary for protestants to be married by a justice of the peace, that such a regulation had been made by the governor, (who was the government,) at the request of the protestant immigrants, and that such marriages were held valid by the political power of the state, it matters little what opinion the catholic priests might have of the matter. It is not probable that ecclesiastics who hold marriage to be a sacrament, or religious ordinance, and, therefore, wholly within their control, would be disposed to uphold customs and laws so contrary to their prejudices and interests, although such marriages among protestants are sanctioned by the comity and laws of almost every catholic government in Europe, and reprobated by few, save the ignorant and fanatical rabble of Mexico.</p> <p>I am of opinion, therefore, that from the history and circumstances of the country, it would be almost impossible to give evidence of a higher nature, tending to show a valid marriage fifty years ago, in the settlements on the Mississippi, and that, if the jury believe the testimony, they may be justifiable in pronouncing the marriage valid. The very peculiar situation of this country at that time, (the territory being actually a portion of the United States, and claimed to be under Spanish authority by mistake of the true situation of the boundary line,) would render it very probable that the government de facto would, in the unsettled and uncertain state of the country, while the Americans were commencing settlements under claim of right, not be disposed to refuse the comity usually allowed by government to the conscientious scruples of persons of different religious creeds. In such unsettled times, if it appears, from the testimony of ancient witnesses, (whether lawyers or not,) that marriages were made before a magistrate by the license of the governor de facto, which were common, and esteemed and reputed valid marriages at the time, it would matter little what view a catholic priest might be disposed to take of them; and yet I doubt whether even by the common law, the fruit of such a marriage would be treated as illegitimate; but it is unnecessary to decide that point at present.</p> <p>The credibility of these witnesses is, of course, for the consideration of the jury. If this connection was not intended or considered by the parties as a valid and binding marriage, but a mere temporary concubinage, of course the fruit of it could not inherit; but if it was celebrated as testified, and intended andv treated by the parties for a time as a valid marriage, during which time Mary was born, the mere fact that after a separation ha.d taken place, the wife may have married again, under the advice of a priest, who may have acted as her conscience-keeper, will not affect the legitimacy of the child.</p> <p>If you find that this marriage was valid under these instructions, and that Mary Swazey is the legitimate child of John Ormsby, Jun., you will, of course, perceive that the plaintiffs will be able to recover according to their claim in this case, unless the defendants have shown some good defence.</p> <p>They have set up two other grounds of defence:</p> <p>1. That John Ormsby, Jun. was advanced by his father to his full share of his father’s estate, and therefore had no claim to any further portion thereof.</p> <p>If this be trite in fact, it would constitute a good defence to the plaintiff’s claim. Is it supported by the evidence?</p> <p>An advancement is an irrevocable gift by a parent in his lifetime to his child, on account of such child’s share of his estate after the parent’s decease. Hengst’s Estate, 6 Watts 86.</p> <p>What are the facts in the case? On the 1st April 176.9, John Ormsby, Sen., entered three applications for adjoining tracts of land, one in his own name, one in the name of his son John, and one in the name of his son Oliver. That he intended these applications for his two children, (who were very young at that time,) is evident from the fact that he suffered them both to treat them as their own. He took out no patents for them, himself, but left his sons to complete the titles on their respective tracts, by taking out patents when they came of age, which would show pretty clearly that he did not use his childrens’ names for himself, but intended as a gift or advancement to each, of the money paid for them, in entering their respective applications. When Oliver came of age he paid the purchase-money of his, and got a patent; and John, when he came of age, being indebted to his father, conveyed his tract to his mother, (by whom it was afterwards sold,) and the purchase-money applied to the payment of John’s debt to his father, after he (John) had left this Country.</p> <p>Now, wherein has John been advanced more than Oliver? — and what right has Oliver to say that John shall be charged with the advanced value of his tract, when it was sold to pay his debt to his father, as an advancement; and because Oliver retained his tract, he is to be charged nothing. I question, if Oliver ever thought of such a thing, and it was left to the ingenuity of the counsel for his heirs to make the discovery.</p> <p>Besides, if a man haying several children, and being owner of one or more tracts of land, should make a deed to one of his sons' of his proportionate share of his father’s estate, it should justly be called an advancement to that proportion. But, if a man, having two sons, should give one the one-fourth in value of his estate, and by the labour and improvements of that son, or from any other circumstance, that advancement should rise in value to be equal to the other three-fourths of the father’s'estate at the time of his death, the value of the advancement, would be reckoned at the time it was advanced, and not at the time of the parent’s death. Oyster v. Oyster, 1 Serg. Rawle 422.</p> <p>Again, if a parent should contract with A B for a tract of land for one of his sons, and pay the hand money, say 100 dollars, and leave his son to go on, pay the balance of the purchase-money, and complete the contract, and get his legal title, in calculating the value of the advancement to this son, it would be the money paid by the father when he made the contract, and not the whole value of the tract after it was paid for and improved by his son.</p> <p>What did the father do more, in this case, for John? He paid 7 shillings 6 pence for the application and the surveyor’s fees; 5 dollars, perhaps, for John, and left him to complete his title. He did the same for Oliver; and, if this be a correct view of the facts, I cannot see with what propriety the h.eirs of Oliver can set up this as a defence in this case, more especially after O. Ormsby took possession of the whole personal estate of his father, and never rendered any account.</p> <p>2. But the last, and main point, relied on as matter of defence in this case, is the statute of limitations.</p> <p>In order to gain a title by the statute of limitations, there must be a continuous, notorious, and adverse possession for twenty-one years. That Oliver Ormsby and his heirs have had the possession of this property for upwards of thirty years, is not denied; and the only question is, whether this was an adverse possession, claiming it as his own, in exclusion of his co-tenants. This is a question of fact for you to decide on the principles of law which shall be laid down to you by the court.</p> <p>“ The possession of one tenant-in-common, is prima facie the possession of his companion also, and it therefore follows, that the possession of the one can never be considered as adverse to the title of the other, unless it be attended with circumstances demonstrative of an adverse intént, such as demand, by the co-tenant, of his share of the rent and refusing to pay, saying he claims the whole; or when one joint tenant bade the other go out of the house, and he went out accordingly. On the same principle it was decided that although the entry of one is, generally speaking, the entry of both, yet if he enter claiming the whole to himself, it will be adverse.” Lodge v. Patterson, 3 Watts 76.</p> <p>When one tenant-in-coinmon enters and takes the whole rents and profits for thirty or forty years, or even for twenty-one years, a jury may presume an ouster; and there might be cases when a jury ought to presume an ouster — as, when one tenant takes exclusive possession of the whole property, and the other stands by and sees him do it, makes no demand, especially if he be needy, and no reason can be assigned why, if he had any claim, he should not pursue it immediately; and there might be cases when one tenant-in-common might receive and appropriate all the rents for more than twenty or over thirty years, and yet a jury would not presume an ouster — as, when the children of a family are settled (as is so often the case in this country) over the face of the earth, and some of them are resident a thousand miles off, have no knowledge of the death of their ancestors, or have been purposely kept in ignorance of the rights by the son who takes possession; or when the party who takes possession, keeps an account of the rents received and expenses laid out, showing an intent to settle with the heirs when they shall appear, and many other like circumstances which may be easily imagined.</p> <p>Let us endeavour to apply these principles to the cirumstances connected with this case.</p> <p>At the death of John Ormsby, Sen., in December 1S06, Mrs Gregg, one of the heirs, is married, and living with her husband— (it is not in evidence when her husband died) — Mary, the granddaughter, is a minor resident in Mississippi; Oliver Ormsby, the other heir, is resident in Pittsburgh, a man of business, living near the premises, and having land of his own adjoining, he takes out letters of administration on his father’s estate. Now it is a very common custom in this country for the executor or administrator to take possession of the land, as well as the goods of the deceased, especially if the other heirs are at a distance and settled in the world; and much more especially if the estate of the deceased should happen to be encumbered with debts; as it is better for all concerned that the rents should be applied to the payment of the debts, than that any portion of the estate should be sold; it not unfrequently happens that by general consent of the heirs, the rents are received Toy the administrator, and so applied; and this is so frequently done, that in some parts of the country it is a prevalent notion that the administrator has a right so to do; accordingly, we find that Oliver Ormsby takes possession of all his father’s property and leases it out, and reserves the rents; and as his sister was living in the neighbourhood, (whose right to a share of the rents he could hardly be supposed to deny,) and yet no division is made or rents paid to her, it would render it very probable that the father’s estate was in debt, and it was deemed proper that the rents should be appropriated to that purpose. Now, as I have stated to you, when one tenant in common enters into possession, it is considered the possession of all his co-tenants, unless he show, by some unequivocal act, that he entered for himself alone, and claiming the whole.</p> <p>The presumption is, that every man acts honestly till the contrary is proved, or there be some evidence of a contrary intention. Now, if Oliver Ormsby had brought up some sham title to the whole estate — had set up a claim to it all, as his own — if he had even fraudulently confessed a judgment against his father’s estate, and had the land sold, and thus got a title to himself — however wrongfully — this would have been clear evidence of intention to claim the whole, in exclusion of his co-tenants, and the statute of limitations would have made his bad title a good one. If he had made a partition with his sister, (Sidney Gregg,) either denying the legitimacy of his niece, or, in ignorance of her existence, this would have been evidence of his holding adversely to her claim, and the statute would have run. Even if he had returned the land of his father’s estate to the assessor as his own, it might be a circumstance from which to infer that he intended to claim it as his own.</p> <p>Have you any evidence of any acts of Oliver Ormsby tending to show that he entered adversely to the other heirs, or set up any claim to the exclusive ownership when he entered, or at any time after, before the year 1S20, when he had the land assessed in his own name? The plaintiff’s counsel called on defendants to produce the books of Oliver Ormsby, in order to see if he had not kept an account with the heirs of the receipts from these lands, and expenditures for improvements and repairs. They were not produced. If their contents would have shown any thing to benefit defendants, it is not probable they would have withheld them,</p> <p>The taking out of this patent in trust for the heirs, and the taxing of these lands, as'the property of Ormsby’s heirs, up to 1S20, although they are circumstances that might not be absolutely inconsistent with a claim in Oliver to the exclusive ownership; yet, in the absence of evidence of any uneqnivocal act evincing such intention, they are corroborative of the prima facie conclusion, or inference of the law, that this entry of O. Ormsby was not adverse, but enured to the benefit of his co-tenants.</p> <p>The petition, in the orphans’ court, given in evidence, if it had related to this land, and had been followed by a division of it between O. Ormsby and his sister, would have been conclusive evidence either of his ignorance or denial of his niece’s claim, and of an,adverse possession from that time, though if you believe the testimony, (as the niece -was a married woifian at that time, and has ■continued so ever since,) the statute would not be a bar. The petition shows, if not ignorance of his niece’s existence or claim, yet that he did not feel certain enough of their existence to acknowledge them. One witness swears that he spoke to her concerning his niece, when she was a child, and it would seem not impossible, as it is evident, from-the titles produced, that they had some knowledge Of John’s marriage, and not at all unlikely, that, as he communicated to his brother his joy at hearing that his wife had got a divorce from a catholic priest, and got married again; that the history of his previous connection with her was no secret, although, probably, the family may have always had some doubts as to her legitimacy, owing to this letter of John’s about his wife’s conduct; for in the letter of O. Ormsby, of March 12, 1825, to his niece, he neither affirms nor denies her legitimacy, seems evidently willing to admit her claims, if he can be satisfied on that point, and although he speaks of knowing of John’s marriage by report, but denies that John acknowledged it, yet he speaks of having seen letters of his niece directed to his father and mothér. ' By this letter, and that of •March 1828,it evidently appears that he was much perplexed what 'to do on the subjéct. He expresses no intention of wronging his niece, or denying, hér claims, provided he is satisfied of her legiti■macy; but as, by this time, the value Of this property was beginning to appreciate very-fast, he seems evidently disposed -not to be too candid in letting her know the extent of her claims. He appears, also, by this letter, to have requested his friend (Mr Stockman) to forward any vouchers or papers which might tend to establish his niece’s rights. And this Mr. Stockman swears that, after examining into the subject, O. Ormsby acknowledged his niece’s claims, and hoped she could be induced to take s'ome definif'e sum for her release of ’them. This may account, also,.for his want of explicitness as to their amount in'his letter.</p> <p>In reviewing the whole circumstances of this case, the question must occur to almost every one, why'has this estate remained so long unsettled? Oliver Ormsby surely never intended to take his helpless sister’s share without compensation. Why not some partition between them, or settlement of the estate, if they did not suppose there was some distant claimant which might disturb it, whose claim, if fairly substantiated, they did not feel disposed to evade?</p> <p>In fine, as I have stated, the question of adverse possession is for you. The possession of one tenant in common is prima facie the possession of the other; but if you can find any unequivocal act of Oliver Ormsby, showing that he had denied the title of his niece, and intended to hold adversely to her, before May 1815, then the statute of limitations is a bar — if not, it cannot avail the defendants.</p> <p>on the subject of the evidence of marriage, cited Story’s Con. of Lazos 103; 1 Eng. Ecc. Rep. 365; 3 Phil. Ev. 58. On the subject of advancement, 4 Serg. 8? Razóle 333; 6 Walls 311; 5 Razóle 219; 2 Wms. Ex’rs 923, 937; 3 Pr. Wms. 317; 2 Pr. Wms. 441; 6 Res. 721; 8 Res. 51; 16 Mass. Rep. 202; 1 Jltle. 632; 1 Eng. Cond. Cha. Rep. 444; 4 Whart. 524; 2 Wash. 92S; Sorin on Wills 337,pi. 3, sect. 18; 1 Serg. 8? Razóle 312.</p> <p>on the first point, cited Story’s Con. of Laws 109, sect. 118,119, 120; Recopilación de leges de las Indias Lib. 7, tit. 22, Lazo 3. On the second point, 1 Serg. 8? Razóle 442; 6 Watts S6; 17 Mass. Rep. 358.</p>

<p>An acknowledgment such as will relieve a demand from the operation of the statute of limitations, must be so precise and distinct in its extent and form as to preclude hesitation about the meaning of the party making it.</p>

<p>WRIT of error to the common pleas of Washington county.</p> <p>This was an action of assumpsit, brought by William Campbell, and Jane his wife, late Jane Walker, the plaiutiffs in error, against Edward M’Donald and William Berry, executors of the last will and testament of Andrew Walker, deceased, to recover a legacy claimed under said will. A case was stated, in the nature of a special verdict, by the counsel of the parties, for the opinion of the court, on which the court rendered a judgment for the defendants. By the case, as stated, it appears that Andrew Walker, the testator, late of Washington county, Pennsylvania, who died in the month of March 1834, in his lifetime, by his last will and testament, bearing date January 3, 1833, and duly proved after his death, among other things, bequeathed as follows: “ Item 6. I bequeath to the children of my brother, Hugh Walker, in equal parts, the last six instalments of the place which I and my wife conveyed to John Cook, as the said instalments become due, which instalments amount to 1500 dollars; provided they are satisfied with this bequeathment in lieu of what my letter to them promised them on their arrival in this county; and in case they will insist upon the fulfilment of my promise in said letter, then this bequeathment to be void, and in place thereof, I bequeath to each of them six dollars, in addition to my promise to them in the said letter; provided my. brother, Hugh Walker, of the county of Down-, of the parish of Bangor, townland Ballysallach, in Ireland, his children, the within mentioned heirs in this sixth item, appear within six years from my decease, with sufficient proof, such as the court of Washington county, Pa., may think sufficient, that they are the-within mentioned heirs; which I do require them to do, before they get any part of my estate.” That Jane, the wife of William Campbell, the plaintiff, is one of the six children of the testator’s brother, Hugh, mentioned in the will. That the plaintiffs, or either of them, never have appeared personally in the county of Washington,but have executed a letter ofattorney to James Watson and David King, of Pittsburg, authorizing them, or either of them, to demand and receive the legacy, and upon the receipt thereof, to execute a release for the same. Under this letter of attorney, demand of the legacy being made by the attorneys of the plaintiffs, and payment thereof refused by the defendants, this suit was instituted afterwards, within six years after the death of the testator, with a view to compel payment of the same. No one of the six children of Hugh Walker, designated in the will as legatees, has ever appeared personally in the county of Washington, nor indeed within the United States; but five of them, including the plaintiffs, have by letter of attorney authorized James Watson and David King, before mentioned, to demand and recover their respective legacies claimed, who made demand thereof, and upon payment being refused, commenced suits therefor within the six years, and have made full proof that the claimants are the children of the said Hugh Walker. By the 28th item of the testator’s will, the following disposition is made of the remainder or residue of his estate. “And further it is my will, that after the within mentioned bequeathments, as they are directed to be paid, are paid out of my estate, together with just debts, and other expenses that are directed to be paid, expenses of executing my will and costs of suits, if any should be against my estate, the remainder to be given by my executors to help poor and needy congregations of the Associate Reformed Church of the West, and to young men, low in circumstances, that are studying divinity under care of said church, on condition that the said young men will give their bonds to the officers of said young men’s fund, that they will refund said money as soon as they are able, clear of interest; in either of these cases I do authorize my executors to use their own best judgment.”</p> <p>The question submitted to the court below upon these facts was, whether the plaintiffs were entitled to recover, and if they were, judgment to be entered in their favour for 166 dollars and 6 cents.</p> <p>The court below rendered judgment for the defendants.</p> <p>cited 1 Roper on Leg. 656; 3 Rtk. 364,368; 3 Whart. 584.</p> <p>cited 1 Madd. 172; 1 Ves. Bea. 248, 259.</p>

<p>THIS was a writ of error to the district court of Allegheny county, on a judgment rendered in that court in favour of the plaintiffs, in an ejectment brought by Oliver O. Gregg and Christian Johnson, plaintiffs below and defendants in error against Jacob Hart, the defendant below, and plaintiff in error. It was brought on the 20lh November 1838, to recover the undivided third part of a tract of land adjoining the borough of Birmingham, containing 81 acres. This tract was part of a larger tract which had belonged to John Ormsby, deceased, and was called for distinction, the Triangle. The plaintiffs claimed as alienees of Gabriel Swazey and Mary his wife, who was alleged to be the daughter of John Ormsby, Jun., deceased, one of the sons of John Ormsby, Sen., deceased. The defendants claimed under the heirs of Oliver Ormsby, deceased, another of the sons of John Ormsby, Sen., deceased. It was admitted that John Ormsby, Sen., died on the 9th December 1805, and his wife Jane died in the year 1791; that John their eldest child was born in 1765, and died in August 1795; Oliver, another son, was born in 1767, and died in 1832. Jane (afterwards Mrs Bedford) was born in 1769, and died in the year 1790, without issue. Joseph B. died in 1803. Sidney, another daughter, was bom in 1774, and was alive at the time of the trial.</p> <p>On the trial in the court below, the plaintiffs gave in evidence a patent to Oliver Ormsby, for 345 acres and allowance,'dated April 16th IS 13, consideration money 276 dollars 78 cents, reciting that said tract was surveyed in pursuance of application No. 1, entered April 1st 1769, by John Ormsby, who since died intestate, leaving issue the said Oliver, and several others to survive him, to whom the above described tract of land descended, &c.‘ The patent was to the said Oliver Ormsby for himself, and in trust for the other heirs of John Ormsby, deceased, a certain tract of land called Ormsby’s villa, &c.</p> <p>To prove the pedigree of Mary Swazey, as the daughter of John Ormsby, Jun., and the marriage of John Ormsby and Lydia Swazey (the mother of Mary) at Homochitto, in Mississippi, the plaintiffs read in evidence a number of depositions, which it is unnecessary now to detail the contents of, and several letters, viz., January 1st 1789, John Ormsby Sen. to John Ormsby, Jun.; July 1791, Buffalo, John Ormsby, Jun , to Nathan Swazey; July 1791, John Ormsby, .Jun., to Lydia Ormsby; March 12th 1825, Oliver Ormsby to Mary Swazey; March 19th 182S, Oliver Ormsby to Mary Swazey.</p> <p>The plaintiffs then offered a copy of a deed from Gabriel Swazey and wife to the plaintiffs, from the records of the recorder of deeds of Allegheny county, duly recorded in his office. The defendants •objected, that this was but a copy, and that the grantees were con'fessedly in possession of the original deed. The court overruled the objection, and at the defendant’s instance sealed a bill of exceptions. The defendants afterwards objected that the acknowledgment was not before any mayor, chief magistrate or officer, as required by law, nor legally certified. But the court were of opinion that these objections were not founded on fact or law, and again sealed a bill of exceptions. It appeared, however, that the original deed was not then in court, but after the-record was read, •it was produced and banded to the defendant.</p> <p>The plaintiffs then gave in evidence the assessment books of St. Clair township, from 1800 to 1819 inclusive, to show the lands formerly of John Ormsby, Sen., which had continued to be taxed in the names of his heirs generally.</p> <p>The defendant denied the marriage of John Ormsby, Jun., to the mother of Mary Swazey, under whose conveyance the plaintiffs claimed. They further contended that John Ormsby, Jun., had been advanced by his father, John Ormsby, Sen.; and also insisted that Oliver Ormsby having had the exclusive possession and enjoyment of the premises was protected by the statute of limitations.</p> <p>The defendant, gave in evidence a deed, dated December 1st 1804, from John Ormsby, Sen., to Isaac Gregg and Sidney Gregg, ;(his daughtei’,) for 50 acres, a portion of the above mentioned tract of 345 acres, and not now in dispute. Also a deed dated July 23d 1804, from John Ormsby, Sen., to Oliver Ormsby, for 200 acres and allowance, another portion of the same tract in consideration of 4000 dollars. Also letters of May 20th 1789, and August 9th 1773, from John Ormsby, Jun., to John Ormsby, Sen. Also a deed, made in 1S04, from John Ormsby, Sen., to Dr. Nathaniel Bedford (who married one of his daughters), for 75 acres and •allowance, another part, of said tract.</p> <p>To show the advancement, the defendant gave in evidence the ledger of John Ormsby, Sen., under date, commencing January 10th 1786, and containing his account with John Ormsby, Jun., in which he charged him with various items of cash, paid to and for his son John Ormsby, Jun., amounting to 600 pounds, and closed by giving him credit for 600 pounds, cash received from Culbertson. To this was annexed a nota bene, that the design of keeping the above account was a memorandum of the different payments which he had made on his son John’s account. The defendant then gave in evidence a deed dated October 26th 1786, from John Ormsby, Jun., to Jane Ormsby (his mother), in consideration of 5 shillings, and for other valuable considerations, in fee simple, for 269 acres and allowance, situaté on the river Monongahela,with general warranty: anda deed dated June 24th 1793,from John Ormsby, Sen., and the said Jane Ormsby his wife, to Robert Culbertson for this tract reciting a re-survey in 1791, by which the tract contained 324 acres, in consideration of 600 pounds, with general warranty. The defendant contended that the 600 pounds for which his father gave credit to John Ormsby, Jun., in his account, was a gift to him of that money: and that John must still be considered as advanced this 600 pounds. The plaintiffs, on the contrary, insisted, that the father had received that amount from the land of John, which John had conveyed to his mother as his trustee, and that the father’s advance of the 600 pounds was thus paid and at an end.</p> <p>The defendant further gave in evidence the book of Oliver Ormsby, containing a list of his lands, made out however as late as June 1S32, containing, among others, about 250 acres east of Birmingham.</p> <p>The defendant also gave in evidence the petition of Oliver Ormsby to the orphans court, in August 1816, for a partition, which was not proceeded in.</p> <p>The plaintiffs then, to show that Oliver Ormsby did not hold or claim the land now in dispute adversely to the other heirs of his father, offered the administration bond of Oliver Ormsby, in connection with testimony that no administration accounts had ever been filed, and that in those times no copies were kept, or memoranda made of granting letters of administration other than filing the bond. The defendant objected that it was irrelevant; the plaintiffs answered that they offered this as rebutting evidence on the subject of advancement and hotchpot, and also to account for Oliver Ormsby’s going into possession and taking the rents, as it was a-common error throughout the whole country, that the administrator or executor had a right to the rents of the deceased. The court overruled the objection and sealed a bill of exceptions.</p> <p>The administration bond of Oliver Ormsby, as administrator of his father’s estate was then read, and the plaintiffs called John M. Snowden as a witness to prove his certificate of the 23d October 1830, as register of the county, to be correct. It certified that he had made lawful search, and was not able to find any inventory or account of Oliver Ormsby. He stated that in early days no minutes were made of issuing, letters of administration, but the bond only was filed, till the year 1816: since that time minutes had been made of their issuing.</p> <p>A. patent dated March 5th 1S00, was issued, to Oliver Ormsby for 294 acres, called Mount Oliver, 59 pounds 6 pence, “ now paid.” This was surveyed in pursuance of an application in the name of Oliver Ormsby, April 1st 1769. The plaintiff contended that Oliver Ormsby being an infant when this application was made, his father was the real applicant, and. the land was an advancement to Oliver. Iu addition, connected surveys of (he Ormsby property, three tracts surveyed in the names of John Ormsby, Sen., John Ormsby, Jun.,. and Oliver Ormsby, were produced.</p> <p>There was further shown a record of an ejectment at November term 183S, for 300 acres (a different tract from the present) brought by Oliver Ormsby Gregg and Christian Johnson against Aaron Watson. Another by the same plaintiffs against Elias Phillips and others for coal hill lots, 61 to 79 inclusive, and 35 acres adjoining. These lands had belonged to John Ormsby, Sen., who died seised, and the plaintiffs claimed under Mary his daughter, and the defendants as heirs of Oliver Ormsby.</p> <p>A great deal of parol evidence was given to show the occupancy and enjoyment of the premises by Oliver Ormsby, after the death of'his father, by cutting wood upon it, renting it to tenants, and receiving the rents, the placing of buildings upon it by the,tenants, their taking out coal, and its being claimed as his and passing as such, the material parts of which are stated in the charge of the court.</p> <p>Grier, president, delivered the same charge to the jury as in the case of Philips v. Gregg, ante, 158.</p> <p>1. The court erred in allowing the record of the deed to be read, when the original deed was required by the defendant. In Vickory v. Knight, 4 Binn. 212, it is questioned by Brackenridge, J., whether on notice to produce the originals, recorded copies of deeds can be given in evidence in any.case until the non-production is accounted for. But notice not having been given in that case, it was thought by him it would be taking the party by surprise to insist upon it. This case is referred to by Kennedy, J., in, Kern v. Swope, 2 Walts 79,. who cites Lessee of Talbot v. Simpson, 1 Pet. C. C. Sep. 188, where it was held that the registry is but prima facie evidence that the original had been legally proved..</p> <p>2. On the subject of advancement they referred to their arguments in the former cases, relative to the Ormsby property.</p> <p>3. We alleged Oliver enteredafter his father’s death on the triangle as well as the rest of the property. He cleared, changed the fences, put up a house, and claimed and held it as his own for more than, 21 years. The principles of the charge on this head, and answers of the court are incorrect, particularly the answer to the plaintiff's third point.</p>

<p>If o'né of two tenants in common enter into the exclusive possession of a moiety of the freehold, and continue that possession so long as to acquire a right by the statute of limitations, he cannot afterwards claim his original interest in the residue as a tenant in common.</p>

James Woods against John Farmare and Robert Davis. Ejectment for a lot No. 200, containing 10 acres in the reserve tract. The title to the lot of land in dispute, was vested in John Woods, the father of the plaintiff, by patent dated the 28th March 1814, and both parties claimed under this title.

<p>ERROR to the district court of Venango county.</p> <p>Richard Peters against Henry Heasley and others. Ejectment for 1000 acres of land.</p> <p>The plaintiff exhibited a regular legal title from the commonwealth for the land in dispute. The defendants relied upon, and gave in evidence, a title derived from a treasurer’s sale of the land as unseated, for the payment of taxes, which sale was made to the commissioners. Upon the trial the plaintiff contended, that the provisions of the fourth section of the act of 13th March 1815, which dispense with the necessity of making proof of all the prerequisites to a sale by the treasurer, and cure all defects therein, are not applicable to a sale to the commissioners, and therefore objected to every part of the evidence offered, which did not conform precisely with the act of assembly. It appeared also, that the amount of the taxes and costs, for which the land was sold, amounted to 8 dollars 87 cents, and the sale list also showed that it was struck down to the commissioners for that sum; but the consideration mentioned in the deed to the commissioners was 9 dollars 87 cents. The plaintiff therefore contended, that this vitiated the sale, as the commissioner's had no power to bid a sum exceeding the amount of the taxes and costs.</p> <p>Thompson, president, overruled all objections to the evidence, and instructed the jury, that the fourth section ofthe act of 13th March 1815, applied as fully to sales made to the commissioners as to individuals, and therefore it was not necessary to establish by proof, all the prerequisites to a sale of unseated lands for taxes; and the fact of the recital of the consideration in the deed, exceeding the amount of the taxes and costs, was rather attributable to an error in drawing the deed than to a violation of the act of assembly; but in either case it would not vitiate the sale: and directed the jury to find a verdict for the defendants.</p> <p>cited 16 Serg. fy Raíale 2S6.</p> <p>cited 1 Walts 477.</p>

<p>ERROR to the common pleas of Erie county.</p> <p>This was an action of trespass de bonis asportatis, brought by Solomon M’Cumber, the defendant in error, against James Duncan, plaintiff in error. The goods in question were part of the personal estate of Moses Fellows at the time of his decease; and as such were thereupon taken into possession by Rebecca Fellows, his executrix and widow. Upon a judgment obtained against her, as the executrix of Moses Fellows, in favour of James Duncan, the plaintiff in error, in the common pleas of Erie county, a writ of fieri facias was sued out to May term 1839, directed to the sheriff of Erie county, and delivered to him to be executed on the 27th -day of March, 1839, in the borough of Erie: at which place, it seems, that the sheriff, without going to the residence' of Rebecca Fellows ábout fourteen miles from the borough, where the goods then were, endorsed a seizure of them upon the back of the writ, without-seeing them, or haying them in his power; and without attempting to take the possession of them, until twenty days or more afterwards, when, in the mean while, they had come into the hands and possession of the defendant in error, as a purchaser thereof at constable’s sale, made under the following circumstances:' On the first of April, 1839, an execution was issued by. Thomas Greenwood, a justice of the peace of Erie county, against Rebecca Fellows, in her own right, as it would appear by the execution, at the suit of Ezra Thompson, for 70 dollars and 79 cents, besides costs of suit: also, on the next day, another execution was issued by P. Wells, another justice of the peace of Erie county, against Rebecca Fellows, as executrix of Moses Fellows, deceased, at the suit of Timothy J. Newton, for a debt of 6 dollars and 20 cents, besides 82 cents costs; both of these executions were directed to the constable of Harborcreek township in Erie county, whose name, as it appears, was G. W. Walker; having them in his hands on the 2d day of April, 1839; he, by virtue thereof, actually took the goods from the possession of Rebecca Fellows where he found them, and in the course of ten or twelve days afterwards, sold them, public auction to the defendant in error, after giving due notice thereof. The goods, upon the defendant in error’s paying for them, were accordingly delivered by the constable to him; from whom the plaintiff in error, in company with the deputy sheriff, after-wards; but before the return-day of the fieri facias, took- the goods by virtue thereof.</p> <p>Upon the trial of the cause below,. after the evidence was given to the jury, the counsel of the defendant requested the court to charge the jury, 1st, That'the execution in favour of James Duncan and against Rebecca Fellows, executrix of Moses Fellows, deceased, bound the personal property of the deceased, from the delivery of the same to the sheriff. 2d, That the levy and sale of the goods by the constable, Walker, upon, an execution issued by a justice, and received by the constable after the lien of the fieri facias in the sheriff’s hands had attached, did not release the goods from the sheriff’s levy and lien; and that notwithstanding-the action of the constable, the sheriff was justified in taking an.d selling the goods upon the fieri facias in his hands, :3d, -That the execu-. tion in the constable’s hands, being against Rebecca Fellows for her individual debt, the constable could not levy upon and sell the goods late of Moses Fellows, deceased, in her possession as executrix, so as to release them from the previous lien of the fieri facias, in favour of James Duncan against Rebecca Fellows, as the executrix of Moses Fellows, deceased.</p> <p>The court in their charge to the jury considered the defendant’s first proposition to be correct in general; but denied his second, unless the purchaser at the constable’s sale had full notice of the sheriff’s claim to the goods under the fieri facias, and his endorsement thereon of having levied on the same; whether he had such notice or not, the court left as a question of fact to the jury to be decided by them. The defendant’s third proposition, the court answered in the negative. The counsel of the defendant below excepted to the answers and charge of the court on his second and third propositions; which have been assigned for error.</p> <p>referred to the 39 th sec. of the act of the 16/A of June 1836, Parke Johns. Dig. 575; 2 Wharl. Dig. tit. Execittion, pi. 264,265, and 266, to show that the court erred in their charge on the second point; and to 2 Watts 110, for a like purpose on the third point.</p> <p>cited 5 Raiolc 290; 3 Rawle 343, 406; 6 Watts 550; 2 Johns. Ch. Rep. 312; 6 Watts 400.</p>

THIS was an appeal from the decree of the court below, ordering the money paid into court by the sheriff, being the proceeds of sale under certain executions against the partnership property of Jacob R. White & David H. Schnebly, partners in trade, under the firm of White & Schnebly, to be paid to the execution creditors, by Alexander Wilson, assignee of said White & Schnebly.

<p>ERROR to the district court of Allegheny county.</p> <p>This was an action of ejectment by Oliver O. Gregg and Christopher Ihmsen against Thomas Blackmore and Jacob Poth, for the undivided third part of a tract of land in St. Clair township, containing 30 acres more or less. The plaintiffs claimed as alienees of Gabriel Swazey and wife; the defendants, under the heirs of Oliver Ormsby, deceased.</p> <p>The plaintiffs gave in evidence, title from the Penns to Dr Bed-ford, and from him to Mrs Jane Ormsby; and the death of Mrs Ormsby; and evidence to prove the wife of Gabriel Swazey to be the only daughter of John Ormsby, and one of'the four surviving children of Mrs Jane Ormsby; and of the death of Mrs Jane Ormsby in 1790; and of her son John in 1795, intestate; and the conveyance from Swazey and wife to the plaintiffs. They then gave in evidence the following records:—</p> <p>Richard Smith, a citizen of Mississippi, lessee of Gabriel Swazey and Wife v. William Stiles, a citizen of Pennsylvania, with notice to George Jackson and others, tenants in possession.</p> <p>This was an ejectment in the district court of the United States, for the same land in which, on the 7th of October 1835, a verdict and judgment were rendered for the plaintiff, and a writ of error to the supreme court of the United States, sued out by the defendants, but which was never prosecuted.</p> <p>Gabriel Swazey and Wife v. Martin Snyder and others, tenants in possession.</p> <p>This was an ejectment in the district court of Allegheny county, brought in 1837 for the same land. Upon the trial, the plaintiff' gave in evidence a deed from the Penns to Dr Bedford, and from him to Jane Ormsby: her death and the pedigree of Mrs Swazey, as the daughter of John Ormsby, Jun.</p> <p>The defendants then gave in evidence a deed from Gabriel Swazey and Wife to Oliver O. Gregg and Christian Ihmsen, for the land in controversy, dated the 10th of May 1838, being after suit brought and before the trial. And also, a mortgage from Oliver O. Gregg and Christian Ihmsen to Swazey and wife, on said land, to secure the payment of the purchase-money: when the bill of exceptions proceeded as follows: — “Defendant’s counsel now suggest to the court, that having shown that plaintiffs have conveyed their title since this suit was brought, they cannot claim to recover the possession, and propose to submit to have a verdict entered for plaintiffs for costs and nominal damages; plaintiffs’ counsel admitting their deed of May 10, 1838, but claiming that the legal title was re-conveyed to them by the mortgage of the same date, and executed at the same time with said deed, insist that the court instruct the jury to find a general verdict for plaintiffs, for the one undivided fourth part of the land in dispute.”</p> <p>The court refused to instruct the jury as requested by plaintiffs’ counsel, but instructed them to find for the plaintiffs a verdict for nominal damages and costs only.</p> <p>The jury found a verdict for plaintiffs, six cents damages and six cents costs, and that the plaintiffs have conveyed their title since the institution .of this suit as per deed of 10th May, 1838, and mortgage of same date. Upon, this verdict a judgment was rendered.</p> <p>After this evidence had been given in this cause, the court intimated their opinion, that the two verdicts and judgments were conclusive, and that the counsel had better permit the cause to go off on this point alone; which was acquiesced in, and the court thus instructed the jury: —</p> <p>“ We cannot shut our eyes to the fact that the policy, aim, and intent of the act of the 11th of April, 1807, is this: — That, where two verdicts and judgments have been rendered on the same title to land, between the same parties or their privies, they shall be estopped from again disputing the same matters. ‘ Interest reipublicm ut sit finis litium.’</p> <p>“ Now, what is the admitted state of the facts in this case? Gabriel Swazey and wife, claiming as tenants-in-common with the heirs of Oliver Ormsby, bring their ejectment in the district court of the United States against the tenants of Oliver Ormsby’s heirs. This action is tried on its merits — after a full and fair hearing, a verdict and judgment are rendered for the plaintiffs.</p> <p>“ The defendants take out a writ of error, and file it, but never take up the record. The plaintiffs being thus baffled in obtaining possession, bring another ejectment in this court against the tenants of the heirs of Oliver Ormsby. They appear and take defence, (without putting their names on record,) and at the trial set up as a defence that the plaintiffs (Swazey and wife) have sold their title (since suit brought) to the present plaintiffs; a verdict and judgment, therefore, are again obtained against the defendants, on the same title and under the same testimony, and the defendants retain the possession by alleging the fact that the title of Swazey and wife is vested in plaintiffs; and yet in this suit they insist upon again trying the same facts as to the heirship of Swazey’s wife, a third time, and denying the title of plaintiffs, which they asserted in the last trial.</p> <p>“ I am of opinion, therefore, as the title to this land has been twice fully tried between these parties, and their privies, and two verdicts and judgments rendered on the merits of their respective titles, that, according to the true -spirit and meaning of this act of assembly, the defendants should be concluded from again setting up the same matters of defence, and that you should accordingly find for plaintiffs.”</p> <p>This opinion was the subject of the assignment of error.</p> <p>cited Story’s Eq. 152, 3; 2 Eq. Cas. M. 171-243; 1 Watts 342; 1 Whart. 514; 14 Serg. S¡- Rawle 301; 5 Watts 272-425; 11 Serg. fy Rawle 392.</p>

county. A. and S. Bailie against George Wallace. This was an action of debt on an insolvent bond of G. A. Cook, in which the defendant was bail.

<p>ERROR to the common pleas of Warren county.</p> <p>Curtis Hawley against the Lumberman’s Bank at Warren.</p> <p>The plaintiff obtained a judgment against the defendant for 2045 dollars, upon which, in pursuance of the act of June 16, 1836, an attachment was issued against the bank, by virtue of which the sheriff levied upon, and attached eight hundred and fifty-eight shares of the capital stock of the bank, as the property of the defendant.</p> <p>The court below, (M’Calmont, president,) on motion, set aside the attachment and levy, on the ground that the stock of the bank was not the subject of attachment for its own debt.</p> <p>relied upon the provisions of the act of June 16, 1836, and cited 17 Serg. fy Raiole 285.</p>

<p>ERROR to the common pleas of Erie county.</p>

THIS was an action of trespass vi et armis, brought in the court of common pleas of Erie county, by James A. Whallon against Andrew Scott, sheriff of said county, and William Truesdail, Josiah Pardee, and Robert Allison, his assistants, for forcibly entering the store of the plaintiff, in the town of Erie, and carrying away certain goods, viz. boots, shoes, packing cases, sign of the plaintiff, &c„ of the value of 1C00 dollars.

David Orr and Eleanor his wife against Ezekiel Harker. This was an action of slander, in which the jury rendered a general verdict for the plaintiffs, on the 4th November 1839, for 210 dollars. The declaration was as follows:— • Allegheny county, ss. — Of June term 1837, No. 130.

This was an action of assumpsit by John Lonergan and others, for the use of James Armstrong against Whitehead, Johnson & Phillips, founded upon the following agreement: “ Pittsburgh, February 2, 1838. “ $459 43.

<p>ERROR to the common pleas of Somerset county.</p> <p>Espy L. Anderson against John Keim and others. This was an action of ejectment for a tract of land.</p> <p>The plaintiff gave in evidence a warrant to Alexander Bingham, dated the 12th of March 1786, descriptive of the land, upon which a survey was made the 16'th of May 1786, of 386 acres and allow-' .anee; and in order to deduce the title down to himself, he offered in evidence, “ a certified'copy of purchase voucher, No. 1121, together with a certified copy of the purchase blotter, No. 1121, and the original receipt of Francis Johnston, receiver-general, by John Keeble, his deputy.” To which the defendants objected :-^-</p> <p>1. Because the receipt on the face of it, shows it to have been mutilated and altered.</p> <p>2. It does not show that James Burnside paid for the warrarits, but the reverse.</p> <p>3. That the purchase-money paid does not appear to have been for these or any other warrants.</p> <p>For these reasons the court rejected the evidence and sealed a bill of exceptions. Verdict and judgment for defendants.</p> <p>cited 16 Serg. 8? Rawle 44; 6 Serg. fy Bátele 312; 2 Penn. Rep. 132; 1 Watts 57.</p>

This was an action of debt upon bond, commenced in the common pleas of Crawford county, by-Sexton against-Seymour, whence it was removed, before trial, by certiorari, into the district court. The bond was given on the 2d day of April 1836, in the sum of 2400 dollars, conditioned for the payment of 200 dollars, on the 1st day of July then next following, and the like sum of 200 dollars annually thereafter, on the 1st day of January, until 1200 dollars in all should be paid.

John B. Hughes for the use of George Armor against Richard Pope and Robert Craddock. This action originated before a justice of the peace. The summons was served upon Craddock alone. Pope not found.

David Lytle against John Lytle and . other heirs of Abraham Lytle, deceased. This was an action of partition; Robert Lytle the father of the plaintiff and of Abraham Lytle the defendant’s ancestor, died seised of the land in dispute, containing 415 acres, having first made his will, by which he devised it as follows:— “And the remainder of my real and personal property I will to be equally divided betwixt my children.” The testator left ten children.

The Farmers and Mechanics’ Bank against George Wilson. This was an action of ejectment for 241 acres of land, in which the only question which arose in this court, was as to the effect of certain declarations of the defendant in avoiding the operation of the act of limitations upon which his defence rested. The defendant had been in the adverse possession of the land for twenty-one years and upwards.

Harvey Chaffee, one of the plaintiffs in error, being the defendant in a writ of replevin sued out of the court of common pleas of Fayette county at the suit of Hamilton Stewart, and directed and delivered to John‘Sangston, then high sheriff of said county, in due form of law to be executed, claimed property in the goods mentioned in the writ, when the sheriff came to execute it; and that he might retain the possession of the goods under such claim, on the 18th September…

<p>If the payee of a promissory note endorsed by himself and subsequent endorsers, delivers it to his creditor as collateral security for a debt then created on the faith of such endorsements, without notice of any equity between the maker and payee, such maker cannot defend himself by showing failure of consideration as between him and the payee.</p>

Ralph M*Clintock and others, devisees of Jane M’Cullough, against Luke Loomis and John Park. This was an action of ejectment for part of lot No. 386, in the city of Pittsburgh. The plaintiffs claim to recover possession of the property as heirs at law of Sarah Simpson, and devisees of Jane M’Cullough, deceased.

<p>Where an imperfect memorandum of an agreement is prepared and submitted by one party for the signature of the other, who adds a material modification to it before he signs it; and the paper, thus altered, is taken and acted on by the former, such acts are prima fade evidence that he agreed to the modification; and hp will be bound by it, unless there has been imposition by the party so making it, or ignorance by the other, of material facts connected with it, which he was not bound to know, and which were less accessible to him than to the party who altered the memorandum.</p>

Various matters of dispute and controversy having arisen between Andrew Bowman and Simon Pennington, the parties in this case, they, by their agreement in writing, executed under their hands and seals, dated the 8th day of March 1839, submitted, “ all disputes and controversies that then existed between them, to the final award of Henry Homan, W. W. Shaw, and Edward Sweaney;” agreeing expressly thereby, that their reference to the arbitrators, and all the proceedings had in…

WRIT of error to the common pleas of Allegheny county. This was an action of debt by Rebecca M’Donough against Arthur Meigan and Ambrose Shaeffer, which originated before a justice and came into court by appeal. It was founded upon a note for 70 dollars given by the defendants to the plaintiff.

A VERDICT and judgment were rendered in favour of the plaintiff below, Sidney Gregg, a lunatic, who sued by her committee, against the defendants below, Aaron Watson and Charles S. Bradford, Esq., (admitted as co-defendants,) for one-third of the premises claimed in ejectment brought to recover 370 acres of land, in St. Clair township, Allegheny county.

Luther N. Ransom against Jacob Stroop. This action was founded upon a note of the defendant to the plaintiff, as follows:— “ Manchester, November 4, 1836. “$120.

This was an action of trespass de bonis asportatis by Betsy Burr against Andrew Bayne. The plaintiff, in her declaration, laid the goods to be of the value of 150 dollars, and claimed damages to the amount of 200 dollars. On the trial the plaintiff proved the taking of the goods, and that they were of the value of 64 dollars.

<p>THIS was an appeal by John Snowden, Jun., from the decree of the orphans’ court of Fayette county, confirming the sale of the real estate of Neal Gillespie, deceased, to John L. Dawson and William F. Copian.</p> <p>The facts of the case are all clearly stated in the opinion of the court.</p> <p>cited 2 Watts 164; 1 Raíale 361; Sir. Purd. 768, sect. 40; 4 Watts 257; 6 Watts 150; 2 Watts 383, 264; Sir. Purd. 773, sect. 2; 3 Con. Chan. Rep. 506.</p> <p>whom the court declined to hear.</p>

<p>One having a judgment which binds distinct pieces of land, may at law elect which he will proceed against for payment, or take which he pleases first, (if one is not sufficient to pay his debt,) but when the money is brought into court, and there are contending claimants, it will be distributed according to equity.</p> <p>A creditor having two funds for payment of his debt, may be compelled by another creditor, who has but one of them, to apply the proceeds of sale by execution, so as to leave to the latter a resort for payment of his debt, to the only fund in his power.</p> <p>H. being the owner of lot No. 68, a judgment is obtained against him by E. for 347 dollars 25 cents. This judgment is afterwards revived, before which H. becomes owner of lot No. 30. During the interval H. mortgaged the first mentioned lot No. 68, to H. H, for 2500 dollars. Afterwards H. acquired a tract of land, and then A. obtained judgment against him for 1107 dollars 51 cents. The three pieces of land were sold on an execution, and lot No. 68 brought 400 dollars, lot No. 30, 180 dollars, and the tract 50 dollars, total 630 dollars. This money being brought into court, it was decreed that the price of lot No. 30 should be first applied to E.’s judgment, and the residue of that judgment should be satisfied out of lot No. 68; that the remainder of the price of lot No. 68, should be applied to H. H.’s mortgage; and lastly, that the price of the tract should be applied to A.’s judgment.</p>

THIS was a writ of error to the mayor’s court of the city of Pittsburgh, to remove the record of an indictment against William Stewart, for erecting a wooden building within the limits of the city.

Andrew Wylie, assignee of H. N. and W. W. Walters, against Andrew Bayne, high sheriff of Allegheny county. This was an action of trespass de bonis asportatis. The parties agree upon the following case, stated for the opinion of the court, to be considered in the nature of a special .verdict, with leave to either party to take a writ of error.

Peter Haines against Nathaniel Patterson and Mary O’Conner. This was an action of ejectment for a lot of ground in the borough of Birmingham. The original title was admitted to have been in the plaintiff Peter Haines.

This was an action of ejectment by Benjamin Chew against Mary Morton, to recover the possession of 25 acres of land, lying in Beaver county, north and west of the rivers Ohio and Allegheny and Conewango creek, which carne within the provisions of the act of the 3d of April 1792, and were to be sold and disposed of by the commonwealth upon the terms and conditions prescribed by that act.

John Fowler against Mary Turner. This was an ejectment brought to recover one-half of 200 acres of land in Parker township.

David Kirkpatrick and others, heirs at law of John Kirkpatrick,' deceased, against John Black. This ejectment was brought to recover the possession of 400 acres of land, situate in Mercer township.

THE complainant Thomas H. Patterson on the 25th of October 1839, filed a bill in the district court of Mlegheny county, representing that the said Solomon Schoyer had commenced an action at law, in said district court against said Patterson on an article of agreement, executed by said Patterson in substance and effect following: — “Articles of agreement, dated the 4th of April 1839, which witnesseth, that the said Dr Patterson, for and in consideration of the sum of 5000…

E.RROR to the district court of Allegheny county. Dr. James Spence against Thomas S. Clark & Co. This was an action cn the case brought to recover the price of a trank and its contents, which came to the, possession of the defendants as ware-housemen in the city of Pittsburg. The plaintiff, after giving evidence of the receipt of the trunk by the defendants, offered to prove the contents by the evidence of the plaintiff himself.

WRIT of error to the district court of Allegheny county. This was an action of assumpsit, for money had and received by Samuel Lewis for his use, in the name of John Braden against William Robinson.

The commonwealth df Pennsylvania for the use of Abraham Horbach against William Rainey and others.

John Bennet and Rebeeca'his wife against Matthew Robinson’s executors and terre-tenants, &c. This action was brought to recover the one-third of the profits arising from a tract of land devised by Matthew Robinson, to his son Isaac, for one year from April 18, 1838, till April 18, 1839, being 150 dollars.

On March 23, 1839, a petition was presented, by the appointment of viewers, to lay out a road, within part of Allegheny town, from the bank of the Pennsylvania canal to Cedar street, in the town, and viewers were appointed, who reported in favour of the road.

Samuel Rice against Lenthal Platt. Ejectment for 250 acres of land in Oil Creek township. The land in dispute was a donation tract, regularly assessed and taxed, in the name of W. M?Gee, and sold as unseated, for the nonpayment of taxes, by the treasurer, to Edward A. Reynolds, who conveyed the same to the plaintiff.

This was an action of ejectment by Samuel Lewis against William Robinson, Jun., and J. Forsyth, to recover the undivided moiety of a lot of ground in the town of Allegheny, according to the general plan thereof. Both parties derived their respective claims to the lot from William Braden, who obtained a patent for it from the commonwealth dated the 2d of September 1790.

John Long who had no legal settlement in the state, was disabled by a hurt while engaged as a labourer in Mifflin township, from whence he was carried- into Versailles township; the overseers of the poor of which, in pursuance of an order of two justices of the peace maintained him.

This was an action of covenant by John E. Braddee against Samuel Wiley. The plaintiff Braddee being the owner of a farm, leased the same to the defendant, Wiley, for the term of four years, ending on the 1st of April 183S, at 160 dollars per annum, payable at the end of each year. On the 5th of January 1838, the farm was sold by the sheriff, as the property of Braddee, to N. Ewing, Esq., and the deed was then acknowledged and delivered.

Monongahela Navigation Company against Thomas S. Clark. This was an action on tfie case to recover from the defendant the amount of stock subscribed for by him in the said compauy. The defence was, that the commissioners who received the subscription of stock, did not require the payment of five dollars upon each share at the time of subscribing, as prescribed in the act of incorporation, and therefore the contract was void.

WRIT of error to the common pleas of Butler county. Ejectment brought in the court below, by Archibald M’Call against William M’Ciillough, John M’Cullough and David M’Cullough, for the recovery of 70 acres of land lying west of the Allegheny river, in Butler county, and part of a survey patented to the plaintiff below, as containing 439 acres and 105 perches, under the provisions of the act of .assembly of April 3, 1792; which, among other conditions, required, before a…

This was an ejectment in which William Prout and Heth F. Camp, plaintiffs in error, were plaintiffs below, and Richard Bard was defendant, and a verdict and judgment were rendered for the defendant.

This was an action on the case in assumpsit by Samuel M’Clurken for the use of Ralston & Hays and John Caldwell against Frederick Blume. The declaration contained the common money counts, and one for the use and occupation of a house. Plea non-assumpsit. Edward Simpson, Esq., sworn, said M’Clurken was indebted to Ralston & Hays and John Caldwell on judgments; the property was extended; I was about taking possession of the property under a liberari.

George Gamble against Joseph Garman. This was an action of debt which originated before a justice of the peace to recover a penalty of five dollars, for a violation of the act of April 9, 1834, relative to killing fish in Stoney creek. The provisions of the act are recited in the opinion of the court.

Charles Graeff and others, partners under the firm of the Union Transportation Company, against Collins & Timberlake. The following statement of facts was agreed to be considered in the nature of a special verdict. The plaintiffs are common carriers on the Pennsylvania canal and railroad between Philadelphia and Pittsburgh by canal boats and railroad cars, under the name of the Union Transportation Company. The defendants are merchants, and reside in Lexington, Kentucky.

Action of assumpsit brought in the court below by Thomas Mehaffy against William L. Hale and Nathaniel A. Lowry, to recover one year’s interest upon the sum of 8300 dollars, being the balance or residue of 10,S00 dollars, the amount of the purchase-money agreed to be paid by the defendants below to the plaintiff upon a contract made between them for the sale and purchase of a certain messuage and piece of ground situate in the borough of Erie, being parts and parcels of lots…

The Commissioners of Armstrong county against George W. Smith.

ERROR-to the common pleas of Mercer county. Joseph Culbertson against Samuel B. Hazen. This was an action upon a recognizance, in which the following case was stated in the nautre of a special verdict.

Charles M. Reed against John E. Norcross andEleazar C. Ben-net. This was a scire facias quare executio non to revise judgment No. 147, August term, 1S34, which was served upon Bennet, and “ nihil” as to Norcross. An alias scire facias was issued upon which the same return was made. In each writ Foster appeared for Bennet.

Bank of Pittsburgh against Thomas T. Whitehead, Christian Ihmsen, Charles Ihmsen, and Robert Sproul, trading in the name of Whitehead, Sproul & Co. This was an action on the case in assumpsit, founded upon two accepted drafts drawn by Whitehead, Sproul & Co., on R. S. Swearingen & Co., in favour of R. C. Grier, for 266 dollars and 80 cents, and 647 dollars and 33 cents, dated the 15th of January and 25th March 1839, at six and four months, discounted by the' bank, and…

' Correy Meeker, for the use of A. L. Wade, against James Johnstmi. A scire facias was issued by Leonard S. Johns, Esq., alderman of the city of Pittsburgh, against James Johnston, as a constable, for not executing, as was alleged, an execution issued by the said alderman, at the suit of Correy Meeker, for the use of A. L. Wade. Judgment was given against the defendant, in the -sum of 81 dollars and 63 cents, and 94 cents costs of suit. The defendant appealed.

Elijah Heath against Joshua Knapp and others. Ejectment for 1634 acres of land. The plaintiff gave in evidence two warrants to Robert Morris, dated March 5, 1795, for 1000 acres of land each, and a survey on one of 1025 acres, 112 perches, to Alexander W. Foster, in right of Robert Morris, made August 26, 1820, returned and accepted January 30, 1822. A survey upon the other made August 26, 1820, to Hugh Brady, in right of Robert Morris, returned and accepted February 20,1821.

<p>ERROR to the common pleas of Beaver county.</p> <p>This was an action of ejectment, brought by Jesse Lightner, plaintiff in error and plaintiff below, against James Mooney, in which a verdict and judgment were rendered in favour of the defendant. It was instituted to recover the possession of 100 acres of land, part of lot No. 2, in the first donation district, containing 500 acres.</p> <p>The plaintiff gave in evidence the duplicates containing the assessment of this tract with county taxes for the years 1817 and 1818, amounting to four dollars, and also the assessment of road taxes for the year 1817, amounting to two dollars. Also, a deed from James Dennis, treasurer of Beaver county, to Robert Laughlin for the tract, sold to him for arrearages of taxes on the 30th of August 1820, dated the day of the sale. The arrearages of taxes stated in the deed were six dollars, and the deed was acknowledged on the 9th of January 1821. Also, a bond for the surplus money, one dollar, dated the 30th of August 1S20, and filed on the 9th of January 1821, in the court of common pleas, reciting the sale of the land for 10 dollars, of which the sum of nine dollars had been already paid by Laughlin to the treasurer, in full of taxes and costs; a deed from Robert Laughlin to Caleb Jones, for 200 acres and'40 perches of land, part of said lot, described by courses and distances, dated March 31, 1821, acknowledged before Nicholas Vaneman, a justice of the peace, on the 12th of August 1821, and recorded on the'12th of December 1836. This deed was also proved by one of the subscribing witnesses, on the 6th of December 1S3S, and again recorded on the 11th of December 183S. It was a deed poll, and in consideration of 35 dollars paid, Laughlin “remised, released, and forever quit-claimed unto the said Caleb Jones, his heirs and assigns forever,” the 200 acres and 40 perches, to have and to hold in fee. Also, a deed from Caleb Jones to George Lightner for 100 acres of the land conveyed to him, described as the S. W. corner of the lot, dated the 29th of June 1825, and a deed from George Lightner to Jesse Lightner, for the same 100 acres of land, dated the 2d of February 1837. To show that the title was out of the commonwealth at the time of the sale by the county treasurer, the’ plaintiff gave in evidence the patent from the commonwealth to Col. Stephen Bayard for said lot, and a deed of assignment from Col. Stephen Bayard to Jonathan B. Smith, dated the 2d of July 1795.</p> <p>The defendant gave in evidence an exemplification of the last will and testament of Jonathan B. Smith, dated the 1st of June 1S12, of which probate was made' on the 20th of'June 1S12, in the register’s office of Philadelphia. A deed from Robert Ralston, Abraham M’Kinney and William Rush, (to whom the tract of land in dispute had been devised in trust, by the said last will and testament, to Alexander Alcorn, dated the 3d of September 1829, recorded the 18th of February 1831; a deed from Alexander Alcorn and wife to James Mooney, the defendant, dated the 25th of April 1831, for 250 acres of the tract, recorded the 7th of September 1832, which embraced the tract that the plaintiff claimed. lie then showed in evidence a letter from John R. Smith to James Heslep, dated the 10th of November 1824, authorizing Heslep to take charge of the land, and act as agent: a deed poll of release from Robert Laughlin to James Heslep, dated the 31st of January 1S25, and recorded the 13th of March 1837. Robert Laughlin, by this deed, in consideration of 41 dollars and 50 cents, “remised, released, and forever quit-claimed to the said James Heslep, his heirs and assigns forever, all the right, title, interest, claim and demand I, the said Robert Laughlin, have in or unto the following described tract,” No. 2, donation district, containing 500 acres, “ which said Robert holds by a deed from James Dennis, treasurer,” &c. Also,- a receipt of Samuel M’Clure, Esq., treasurer of Beaver county, dated the 30th of Julv 1S22, for the taxes of 1817, 1818, 1819, 1820 and 1821, and 50 cents costs of advertising, paid by the trustees under the will of J. B. Smith.</p> <p>Patrick Mooney, a witness on the part of the defendant, proved, that the purchase was made of Alcorn, two years before the date of the deed from Alcorn to the defendant, and that he commenced his improvement shortly after the-purchase, and moved on the land immediately after the date of the deed. It was in proof that Lightner, shortly after the date of the deed from Caleb Jones to him, built a cabin, and cleared a small piece of ground; the cabin was thrown down, and the logs burned. Jacob Jones stated, that about fourteen years ago, in a conversation with Mr Alcorn about the Lightners, he told Mr Alcorn that Caleb Jones had purchased a commissioners’ deed of Robert Laughlin, and had sold to Lightner.</p> <p>This was the substance of the evidence in the cause, that was relevant to the issue.</p> <p>The court below charged the jury as follows:—</p> <p>“ The defendant contends, that as the treasurer’s deed to Laughlin does not state the years for which the arrearges of taxes accrued, and having paid to Mr M’Clure, the treasurer, in 1822, the taxes for which it is alleged the tract was sold, tire deed is invalid, and vested no title in Robert Laughlin. It is not improbable, that Laughlin may not have paid the taxes and costs, for which the land was sold to Mr Dennis, treasurer. But if the cause turned on this, would that affect the title of the plaintiff? The treasurer having executed and acknowledged the deed in open court, and the acknowledgment entered of record, and having taken a bond for the surplus money, the title passed to the purchaser. The treasurer, with his sureties, were responsible to the county for the taxes for which it was sold, was chargeable with them and for them. The land could not be again sold. The treasurer might have refused to execute and acknowledge the deed, until the taxes and costs were paid, but having executed and acknowledged the deed, the amount of the taxes and costs payable on the purchase, was a matter between the purchaser and treasurer, that could not affect the title.</p> <p>“It is also contended, that the transfer by Laughlin to Jones is a release; that, there being no possession, nor lease, nor title, the release could vest no title. It is true that a release, to operate as such, must be to a person who has some right or interest in the estate released, and operates to the enlargement of an estate; but the court entertain the opinion, that the law is now well settled, that a release shall operate as a grant, when it would have no operation as a release to vest title.</p> <p>“ On the part of the plaintiff it is contended, that the deed from Laughlin to Jones, being recorded on the 12th of December 1836, and before the deed of release from Laughlin to Heslep, the agent of the trustees and heirs of Jonathan B. Smith, was proved and recorded, entitles the plaintiff to recover. The law is settled, that although the person to whom a deed of conveyance has been made, has omitted to have it recorded within the six months from its delivery, yet if it is put upon record before a deed subsequently made of the same land by the same grantor, the title will prevail against the subsequent deed. The court entertains the opinion, that this cause does not turn on the recording acts. Until within a very few years past, when the original owner of a tract of land, which had been sold for arrearages of taxes, had taken a release from the purchaser, and lifted (as it was called) the treasurer’s deed, it was not considered that the title was derived by the conveyance from the purchaser at treasurer’s sale, but that he was in by his original title, and had, by the release and taking up the treasurer’s deed, removed the effects of the sale, in the same manner as if he had within the two years redeemed the tract, by paying the taxes and costs and twenty-five per cent; the limit of two years, in which redemption might be made by the original owner, might be extended by the purchaser at the sale for taxes. In the present case, the sale was made for arreages of taxes in 1820. In 1822, the taxes, for which it is alleged to have been sold, were paid by the original owner to the treasurer. In November 1824, James Heslep became the agent of the trustees and heirs of Smith, and in January 1825, he procured a release from Robert Laughlin of the treasurer’s deed, and received from him the treasurer’s deed. There was no person in possession of the tract, or any part of it, under the purchase at the sale for taxes; no conveyance of any part of it on record, on the 3d of September 1S29, when the tract was conveyed to Alcorn. On examining the records, the title would appear to be perfectly good; the original owner’s title from the commonwealth regularly vested in the grantors; the purchaser at the sale for taxes in 1820, had released, and had given to the agent the treasurer’s deed, which accompanied the title papers. The defendant commences his improvement under his purchase from Alcorn, and is in the actual possession of the premises, seven years before the deed to Jones was put on record. If a title of this description, under these circumstances, must prevail against the title of the defendant, it would operate with extreme hardship. I can hardly conceive of any thing more that could have been done by the original owners and their agent, than has been done in this case, unless it was to have recorded the release from Laughlin to Heslep, within six months from the time it was made, and this, certainly, has not been the practice with this description of title. It is perfectly clear, that a person to whom a conveyance has been made, who goes into possession, and is occupying the land conveyed to him, although he has not had his deed recorded within six months, fixed by the recording act, could not and would not be affected by a subsequent conveyance of the same land by the same grantor, his possession would protect him, and would be as effectual as notice, or the recording of the title, and in the present case, the possession of Mooney for so long a period before the recording of the deed to Jones, should protect him, as much as if the release to Heslep had been recorded before the first record of the deed from Laughlin to Jones. The court entertain the opinion, and so instruct the jury, that the deed from the trustees to Alcorn, and from Alcorn and wife to the defendant, being recorded long previous to the deed from Robert Laughlin to Caleb Jones being placed upon record, and the defendant in the actual possession of the land under the original title, and having the treasurer’s deed, and a release of all right under it, from the purchaser to the agent of those from whom the original title is derived, the release not being recorded before the first record of the deed from Laughlin to Jones, will not entitle the plaintiff to recover. Your verdict will therefore be in favour of the defendant.”</p> <p>The plaintiff excepted to the charge.</p> <p>The following errors were assigned:—</p> <p>1. The court below erred in charging the jury, that this cause did not turn upon the recording act, and in giving them to understand, that the former owners of the land, after the sale for taxes, and after the time of redemption had expired, still had some title or interest in the land, which might be connected with the deed from Robert Laughlin to James Heslep, their agent, and thus enable it to take effect as a release, instead of an original conveyance, when, in fact, the orginal title was wholly extinct, and the defendant had no other title than that derived through the deed from Laughlin to Heslep.</p> <p>2. They erred in charging the jury, that the plaintiff could not recover under the circumstances of this case; notwithstanding the deed from Laughlin to Heslep had not been proved and recorded, until after the acknowledgment and recording of the deed from Laughlin to Jones, and that their verdict should be for the defendant.</p> <p>cited the Act of Assembly of 1804, concerning sales for taxes, sect. 5; 3 Bl. Com. 19; 2 Bl. Com. 177, 324; Recording Act of 1775; 1 Dali. 68.</p> <p>cited 5 Binn. 132, 6 Serg. <§• Rawle 184; 7 Watts 163.</p>

<p>ERROR to the district court of Allegheny county.</p> <p>An amicable action in covenant was entered in the court below by the agreement of the' parties, in which William T. Hamilton and William V. Robinson were plaintiffs, and Stephen Colwell, the plaintiff in error, defendant. The claim of the plaintiffs below was a balance of the purchase-money of a certain piece or parcel of ground, situate in the city of Pittsburgh, being parcel or part of lots Nos. 401 and 402, according to the original plan of said city, due upon an article of agreement, made between the parties for the sale of the ground, under their respective hands and seals, dated the 28th day of February 1836. By the agreement, the plaintiffs below bound themselves to make and execute to the defendant, below, his heirs and assigns, a good and sufficient deed for the said piece of ground in fee simple, with general warranty of a clear title, and free from all incumbrances, in consideration of the defendant’s paying thereafter, according to the terms of the agreement in that behalf, the sum of S000 dollars. Of this sum the defendant paid the plaintiffs below, before the entry of this action, 6000 dollars, leaving still unpaid of it 2000 dollars with interest from the 1st day of April 1836, which he objects to paying, on account, as he alleges, of the propertybeingincumbered and title ofthe plaintiffs to it defective, or at least doubtful, and not such, as by the terms of their covenant they bound themselves to give him. A case was stated by the parties, in the nature of a special verdict, for the opinion of the court below, showing the facts already stated, and the nature of the plaintiffs’ title, together with the facts and circumstances attending it, which are substantially as follows: The plaintiffs below claim to derive their title to the ground in question from John Woods, Esq., formerly of Pittsburgh, who, it is agreed, was duly seised of it in fee, at the time of making his last, will and testament, by which he authorized his executors therein named, to sell and convey it, and continued so seised thereof until his death. After his death, James Ross, Henry Woods and John M’Donald, Esqs., the executors of his will, in pursuance of the authority therein contained for that purpose, by their deed, bearing date the 17th day of July 1819, for the consideration of 3416 dollars 50 cents, therein mentioned, sold and conveyed the piece of ground aforesaid, to Samuel Thompson in fee. The purchase-money, however, not being actually paid by Thompson, he thereupon by his deed of the same date, mortgaged the said ground in fee to the said executors, for the purpose of securing the payment thereof. But failing after-wards to pay it, according to the tenour of the mortgage, the executors brought their action of ejectment against him, and a tenant in possession claiming under him, in the court of common pleas of Allegheny county, to April term 1822; and by virtue of their right as mortgagees by the proceedings had therein, recovered the possession of the said ground. Having thus obtained the possession thereof, the said James Ross, Henry Woods and John M’Donald, Esqs., on the 18th day of July 1822, by their deed for the consideration therein mentioned, of 3963 dollars 82 cents, sold and conveyed the same, in fee simple, to Theodosia Woods. In this deed the grantors designate themselves as the executors of John Woods, Esq., deceased, and by way of recital set forth the fact of their having been appointed such by the last will and testament of the deceased, and their power under said will to sell and convey certain portions of the real estate of the deceased, for the purposes therein mentioned, and that in pursuance thereof, and under the authority therein contained, they had sold and conveyed the piece of ground in question, as already stated, to Samuel Thompson; without mentioning the mortgage taken by them of him to secure the purchase-money, but state the fact of Thompson’s having made default in paying the purchase-money, and that in consequence thereof, they, “ the executors aforesaid, have by due process of law regained the title and possession of said real estate, as will fully appear by the record of a certain action of ejectment,” being the same mentioned above. Then after stating by a further recital, that the annuity giv.en to the said Theodosia Woods, by the will aforesaid, had fallen greatly in arrear; and that it had become necessary to dispose of some portion of the real estate in fee simple, in order to comply with the injunction of the said will, they by their individual names, with the addition thereto of “ executors, as aforesaid,” grant bargain and sell, the piece of ground in question, as stated above, to the said Theodosia in fee, concluding with a covenant in the following words: “ And the said James Ross,Henry Woods and John M’Donald, their heirs, executors and administrators, will for ever warrant and defend the same to the said Theodosia, her heirs and assigns against them, the said James Ross, Henry Woods and John M’Donald, or either of them, and the survivors or survivor of them, and against every person lawfully claiming the same from, by or through them or either of them, or the survivors or survivor of them.” The executors of Theodosia Woods, after her death, under a power contained in her will, by their deed, dated the 15th of July 1833, sold and conveyed the said ground, for the consideration therein mentioned, in fee to Westly P. Hunt, Theodosia P. Hunt and Robert A. Hunt, who, by their deed dated the 10th of December 1833, for the consideration therein mentioned, sold and conveyed the same in fee, to William T. Hamilton and William V. Robinson, the plaintiffs below. But during the time that Thompson held the ground under the conveyance from the executors of John Woods, deceased, John Gano, on the 4th of November 1819, obtained a judgment in the court of common pleas of Allegheny county against him, for a debt of 1384 dollars 81 cents, under which the ground was regularly taken in execution, and sold, as the property of said Thompson, under a writ of venditioni exponas, returnable to October term of the said court 1833, to James Ross, Esq., one of the executors of the said John Woods, Esq., deceased, and grantors of the said ground to the said Theodosia Woods, for the sum of 5000 dollars; and a deed, perfecting the sale thereof, was made to him by the sheriff, to whom the process was directed, and duly acknowledged in open court on the 25th day of November 1833.</p> <p>The court below rendered á judgment for the plaintiff.</p> <p>cited 7 Watts, showing the appropriation of the money arising from the sheriff’s sale of the property to Mr Ross. Likewise, 1 Cond. Chan. Rep. 567; 2 Simons S¡- Stewart 51.9. On the subject of estoppel, 12 Johns. 201; 3 Ohio Rep. 134; 1 Ibid. 477. And as to the effect of recitals in a deed, 2 Stark. 52; 3 Eng. Com. Laio Rep. 240; 6 Watts 60. And to show that the grantors in their deed to Theodosia Woods, would be liable on their covenant, which must be regarded as personal. 2 Whart. Dig. 56; 4 Burr. 2008;. 1 Johns. Ca. 90; 16 Johns. 36; 8 Mass. Rep. 162; 11 Johns. 94; 2 Brest, on Jlbstr. 210.</p>

This was an action on the case, by J. and E. Forster against O’Conner and others, to recover damages against the defendants, as common carriers, for refusing to transport from Pittsburgh to Philadelphia, a quantity of wheat according to contract. The verdict and judgment in the court below were in favour of the plaintiffs, and the defendants excepted to the charge of the court, and brought this writ of error.

<p>ERROR to the district court of Crawford county.</p> <p>Humphrey S. M. Wilson against V. S. M’Neal. This was an action of covenant upon an article of agreement for the purchase and sale of land.</p> <p>The declaration states “that when a regular conveyance is made of the title of the aforesaid lot 123, pursuant to the agreement entered into by the said M’Neal and John Reynolds, Esq., that the said V. S. M’Neal is to retain all the following parcel of land, part of the above described lot, No. 123, bounded as follows (describing the whole lot by its boundaries). The part of the above lot, belonging to M’Neal, is bounded by a stream to a certain ash tree. And the said V. S. M’Neal, for himself, his heirs and administrators, hereby covenants and agrees with the said Humphry, his heirs and assigns, to make a deed in fee to the said Humphry for all the residue of land contained in said lot No. 123, with its appurtenances, and the said V. S. M’Neal covenants, in consideration of having all the grain for his own family use ground toll free, by the said Humphry or his assigns, that he, the said V. S. M’Neal, will authorize and empower, and permit the said Humphry S. M. Wilson to erect dams and flow back the water on any part of said lot 123, to any distance that'will give a perpendicular fall of 15 feet for the propelling of machinery. And it is farther covenanted and agreed by the parties, that, for all the land conveyed by the said V. S. M’Neal to the said ■Humphry, pursuant to this agreement, the said Humphry is to pay-to the said Reynolds, Esq., or any other regularly authorized agent of the heirs of the aforementioned George Reid, late. owner of lot No. 123, the sum of 3 dollars per acre, with use from the time of the entering into of the aforementioned contract between V. S. M’Neal and J. Reynolds, Esq., attorney in fact aforesaid, he, the said Humphry, receiving credit nevertheless for the amount of money Advanced by him to the said V. S. M’Neal, for the purpose of making the first payment aforesaid, to the said John Reynolds, attorney in fact aforesaid.” It then avers that a regular conveyance was made by said John Reynolds, and that said Humphry had paid of the purchase-money 1577 dollars, or thereabouts, and assigns the breaches as follows: “Yet the said V., well knowing the premises, hath not kept his covenants with him in manner aforesaid, but hath wholly broken the same in this, that he did not when the said regular conveyance was made as aforesaid, nor did at any time since make a deed in fee to him-, the said Humphry, as aforesaid, for all the residue of land contained in said lot, being 480 acres, or thereabouts, to which he, the said Humphry; was entitled, according to said article, and the payments made by him in pursuance thereof, with its appurtenances, &c., did not then, nor at any time since, empower, and authorize, and permit, the said Humphry to erect dams, and flow back the water, as in and by said agreement is contained and provided, but wholly neglected to perform and keep his said covenants in that behalf, and still does neglect and refuse,” &c.</p> <p>The defendant pleaded non infregit conventionem and covenants performed, &c.</p> <p>The plaintiff gave in evidence the article of agreement between the parties, the material part of which is contained in the declaration; and also several judgments against the defendant, entered after the date of the agreement.</p> <p>The plaintiff claimed to recover damages from the defendant on the ground that he had not made or tendered to him such a deed for the land as he had covenanted to do by his agreement.</p> <p>The defendant had contracted with John Reynolds, as agent of George Reid, the owner of the land, being a donation tract of 500 acres and allowance, for the purchase of it. Afterwards the plaintiff and defendant entered into the agreement upon which this suit was brought, by which the plaintiff was to pay the purchase-money, excepting what would pay for about 100 acres, which M’Ncal had partly paid for, and subsequently fully paid. The plaintiff was to receive a deed from M’Neal for all but what M’Neal was to hold, as soon as the deed could be procured from the owner. The purchase-money was paid in pursuance of the agreement, something over 1500 dollars, by Wilson, and the residue by defendant. A deed was forwarded to Mr John Reynolds, for M’Neal, for the whole tract executed by William P. Reid, administrator of George Reid, deceased, in due form. Shortly after this, some two or three weeks, the defendant executed a deed to the plaintiff for 485 acres and some perches, having previously had a survey made of the part claimed by himself, which he alleges was the part agreed on that should be held by him. To this deed, the father of the plaintiff, who was authorized to receive the deed, and in fact who paid all the money, as it appears, made some frivolous objections, but which are not insisted on here, and refused to receive it.</p> <p>The plaintiff requested the court to charge the jury,</p> <p>1. That the defendant was bound to tender a deed in conformity with the articles of agreement, and that the omission in the deed of the privilege reserved in the articles of agreement of flowing back the water on the land reserved by defendant, was a substantial defect, and the plaintiff was not bound to accept the deed without it.</p> <p>2. That'the judgments given in evidence were an incumbrance on the interest of the defendant in the land, and the plaintiff was not bound to take a deed from him until those incumbrances were removed.</p> <p>To these points the court answered. 1. That the defendant, to protect himself, must show and satisfy the jury that he tendered a deed in conformity with the article. If he has not done so, he will not be protected, but he is not bound to do more, and in the opinion of the court, he was not bound to insert in his deed a conveyance of the privilege permitting the plaintiff to erect a mill-dam as stipulated in the article. There is no covenant in the agreement showing that a deed of this grant was to be made. The plaintiff has erected no dam or mills on the stream, and if the agreement contemplated future assurance on the subject, it will be time enough for the plaintiff to look for it when he has done something himself. It is not, therefore, a valid objection to the deed tendered, that this right is not conveyed or included in the deed. After the execution of the deed, the articles of agreement may remain subsisting and valid to enforce other items of contract contained therein. And so may they subsist in this case to secure the plaintiff’s right,'whatever it may be in relation to this covenant. Neal v. Thompson, 4 Watts 405.</p> <p>2. To this point I answer, that judgments generally bind whatever interest the person against whom they are rendered has in land in the county where obtained. What incumbrance were these judgments here? Wilson became the purchaser by an article of agreement, in 1836, between himself and the defendant, and in that stipulated to pay for the land mentioned therein, which had been previously purchased, as has been stated, by the defendant from Reynolds, agent of Reid. This was in 1836, prior to the entry of any of the judgments against M’Neal. Wilson paid something over 1500 dollars, and M’Neal about 300 dollars. Wilson was to have all the residue of the tract, excepting what was agreed to be retained by M’Ncal, being about 100 acres, as was then supposed; Wilson to get the residue which turned out to be 485 acres. What interest then had M’Neal in the land for which the conveyance was'tendered, that could be bound by the judgment? He never had any except so far as he may have overpaid his share of the land as is alleged, which is estimated to be from 50 to 60 dollars; 36 dollars of which was refunded by Wilson, and the balance remains in his own hands, and if M’Neal had an interest to this extent, Wilson can discharge the incumbrance by applying the money in his hands to it. This is the sum and substance of the incumbrances, and their existence did not form a valid .objection to the deed tendered.</p> <p>The plaintiff’s counsel has verbally required us to charge you, that the plaintiff, having, in the latter end of May or in June 1839, demanded a deed, is entitled to recover at least nominal damages for the non-compliance of the defendant with this demand. I leave it to you, as a question of fact, whether this demand was made at the time sworn to by the witness, Woodbury; because the very next witness, E. P. Wilson, is called as to a demand, and he says it was in 1839, in January. If it was before the fender made, it would not help the plaintiff, as he insists it would. I also say to you, that, if after a deed has. been executed and tendered, to which only frivolous objections are made, a party will not be countenanced in urging the opportunity to make a demand of his adversary, from home, in the woods, without specifying his objections to the former deed, and thus place himself in the attitude, that if he can recover nothing else, still entitles himself to costs. If the law be as insisted on, the consequence will be, that as often as a demand is made a new tender must be made. If the party, on this demand, had refused to give the deed, it would be another thing, but the witness testifies that M’Neal replied that he could have his deeds. If this was after he had once tendered, and had tendered a sufficient deed, then it was a sufficient reply, and the other cannot put him into the costs, because he did not happen to have the deed with him.</p> <p>The opinion of the court was assigned for error.</p>

This was an action of ejectment brought by John Wyncoop, against Elijah Heath, to recover a certain quantity of land. The plaintiff claimed to recover the possession of the land in dispute under a pre-emption right, which he alleged he had thereto by virtue of a settlement made thereon. The defendant claimed by virtue of a warrant from the commonwealth founded upon a settlement made by one Carr prior to the granting of it.

A. and A. R. Griffith against James Gray. This was an action on the case in assumpsit, in which the plaintiffs charged the defendant in the first count, with a note for 323 dollars. In the second count, with goods, wares and merchandize, sold and delivered on the 11th of June 1832, and a promise to pay for the same on the 1st of November 1832. The third count was on a quantum valebant for the same goods. The fourth count was for money laid out and expended.

APPEAL by Martha Wilson from the decree of the common pleas of Fayette county, distributing the proceeds of the real estate of William M’Williams sold at sheriff’s sale. The court referred the case to an auditor, James Veech, Esq., who made the following report of the facts and his conclusions upon them.

Edward Shingles against Elijah Trovillo, sheriff of Allegheny county. This was an action of trespass against the defendant for selling the plaintiff’s cow, alleged to be exempt by law from execution. The plaintiff gave the following evidence.

This was a scire facias by Collin Cooper and Samuel Dunton against James Gray, upon a recognizance of absolute bail for the stay of execution, to which the defendant pleaded nul tiel record.

This was an action of debt by the commonwealth of Pennsylvania, at the suggestion of Elias J. Pettibone and others against Joseph C. Gordon and others, founded upon the official bond of the said Gordon, as sheriff of Warren county, to recover certain money collected by him on executions.. The plaintiff entered a rule of reference under the compulsory arbitration law, and obtained an award in his favour.

William R. Elliott against John Powell. This was an action of replevin for 80 dozen of wheat in the sheaf. The plaintiff proved that he had cleared the ground, fenced it, and put in the crop of wheat, and was in the possession of the premises; and that the defendant cut and carried away the grain.

This was an action of ejectment by Archibald M’Call against Samuel M’Henry and others, in which the defendant took defence for 150 acres of land. The plaintiff gave in evidence four patents to John Nicholson, for tracts surveyed in the name of Wrn Montgomery, Hannah Montgomery, John Montgomery and John Young. The plaintiff then offered in evidence: — March 3, 1796, settlement of the account of John Nicholson by John Donaldson, comptroller-general.

Action of covenant, brought by William Stewart, the defendant in error, against James Patterson, the plaintiff in error, for a breach of covenant of warranty… Held: improAmd and occupied them ever since. To this evidence the defendant’s counsel objected, because the sheriff’s deed Avas of no validity Avithout being acknoAvledged in open court, and the only evidence of this having been done was a record thereof made by the court, which could not be supplied by parol evidence.