Volume 11 — Pennsylvania State Reports

<p>Error to the Common Pleas of Mifflin.</p> <p>May 24. In the court below, this was an action of debt brought by Samuel Comfort, to use, &c., against Daniel Eisenbeis, who pleaded payment, with leave, &e., and that he was a certificated bankrupt. The facts are stated in the opinion of this Court. On the trial, the plaintiff’s counsel requested the Court to instruct the jury—</p> <p>1. That the defendant’s plea of bankruptcy will not avail him: Because the judgment, for the payment of which the suit is brought, was recovered after his petition was filed, and after he was decreed a bankrupt.</p> <p>Because the surety, S. Comfort, paid the judgment after Eisenbeis’s discharge, and it only became a debt due to him at the time he paid it, and was therefore not due to him at the time of filing the petition for discharge.</p> <p>Because his promise to pay the judgment after his discharge, if time was granted, which was granted, was a good and valid promise made upon sufficient consideration, and which promise by operation of law enured to the use of his surety upon the payment of the debt by him.</p> <p>2. The plea of bankruptcy being disposed of, there is no other objection to plaintiff’s recovery.</p> <p>Defendant’s counsel requested the Court to instruct the jury—</p> <p>1. That defendant’s certificate of bankruptcy discharged him from the debt or demand for which Eisenbeis’s executors obtained judgment, and also from the liability of the judgment itself, as the said debt or demand was proveable under the bankrupt law.</p> <p>2. That, if any payment was made by Comfort of said judgment or demand after defendant’s discharge as a bankrupt, it raised no. implied promise to repay him.</p> <p>3. That, if there was a promise made by Eisenbeis to pay the judgment to one of his father’s executors, it imposed no additional obligation on Comfort to pay the same, and no implied promise could arise from Comfort’s subsequently paying it.</p> <p>4. That no promise made by Daniel Eisenbeis to his father’s executors is sufficient in law to support plaintiff’s claim in this suit.</p> <p>The Court (Wilson, President) refused to answer the plaintiff’s points, and answered the defendant’s as requested. The verdict was for the defendant. These answers were assigned for error here — as were also the instructions to the jury, that “ the promise proved by Mr. Woods can have no effect on this trial, and will not authorize a verdict for the plaintiff,” and that “the certificate of discharge was a satisfaction of the judgment of Eisenbeis’s executors as to Daniel Eisenbeis obtained after the petition and decree of bankruptcy, but before the final discharge.”</p>

<p>Error to the Common Pleas of Mifflin.</p> <p>May 24. Thomas Neel obtained a judgment against the bank before a justice of the peace, and issued an execution, which was returned nulla Iona. Thereupon, on the 17th December, 1847, Neel filed a transcript in the Common Pleas, in order to obtain a lien upon, and proceed against, the real estate of the defendant. On the 14th of the same month the bank had made an assignment of all its property for the benefit of creditors. To the April Term, 1848, Neel issued a .ji. fa. on which certain real estate of the defendant was levied and condemned. To the ensuing August Term he issued a ven. ex. on which the sheriff was about to sell the real estate levied, when the assignees of the bank presented a petition to the court, setting forth that the judgment on which this ven. ex. was issued was obtained and entered of record after the execution and recording of their assignment — that they were anxious to sell the real estate of the bank before or at the next August court — that the proceedings on’ the judgment were illegal, because the judgment is not, nor ever was, a lien on the property; that if the sheriff was allowed to sell, the petitioners would be unable to do so, or to do so only at a great sacrifice, and therefore praying the court to stay all further proceedings on the ven. ex. until a sale could be made by the petitioners, and the proceeds thereof distributed among the creditors. On this petition a rule was granted to show cause why the proceedings on the writ of ven. ex. should not be stayed for the present. After argument, the court (Wilson, President) delivered an opinion and ordered the sale by the sheriff to be stayed until the further order of the court.</p> <p>In this court the plaintiff assigned for error that the court erred in setting aside the execution of the plaintiff in the hands of the sheriff, and in staying the writ and enjoining the sheriff from proceeding further on the writ in his hands.</p>

<p>1. Where one suffers liis land to be sold upon an execution, the judgment upon which it issued being more than five years old and not revived by scire facias, neither he nor those claiming under him can afterwards, in a collateral proceeding, be permitted to call in question the validity of the sale.</p> <p>2. The non-return of the execution, upon which the sheriff makes a sale, will not affect the validity of his conveyance. His deed may be considered a return, and a misrecital in the deed of the ven. ex. is open to correction.</p>

<p>Error to the Common Pleas of Blair.</p> <p>May 24. This was an action of ejectment, brought by David W. Huling against Peter Hewitt, for whom Elias Baker was subsequently substituted as defendant. The facts are fully stated by President Black in his charge to the jury. The verdict was for the plaintiff.</p> <p>Charge of the Court below. — “ The facts of this case are briefly as follows: — Alexander Blair owned the land and devised it to his nephew, Alex. B. Buchanan, by his will, dated 21st August, 1819,</p> <p>“ On the 14th of July, 1832, and before Alex. B. Buchanan had attained the age of 21 years, his father, George Buchanan, with the consent of Alexander, made an agreement to sell the land to George W. Henry for $25 per acre, or $2603.75 for the tract.</p> <p>“ Henry paid $800 on the agreement, and there being still due thereon of principal and interest $1903.85, which he was unable to pay, he prevailed on A. P. Wilson, one of his creditors, to advance that sum for him, so that the benefit of the contract might not be wholly lost to his creditors and himself.</p> <p>“ On the 9th of August, 1834, Alexander B. Buchanan (being then of full age) made a conveyance of the land to A. P. Wilson, with the consent of Henry, upon trust and confidence that he (Wilson) should stand seised of the premises to his own use until he was paid or reimbursed the money advanced, with power to sell the whole or a part to raise the money advanced, and upon the further trust and confidence, that, after he was reimbursed the money so advanced, he should stand seised of the premises to the use of Ceorge W. Henry, his heirs and assigns, with the same effect as if the title had been made directly to Henry.</p> <p>“ A judgment was obtained against Henry by M. & E. Tiernan, and execution issued thereon. His interest in this land was levied and sold in January, 1835, to David Huling, the present plaintiff, who took the possession under his deed from the sheriff, in May of the same year.</p> <p>“ A part of the money advanced by Wilson appears to have been paid him by Henry, soon after the date of the deed from Buchanan, to Wilson. But a portion of it remaining unpaid, ejectment was brought (No. 71, Ap. T. 1836) by Wilson against Henry and Huling. On the 21st of November, 1838, the defendants confessed judgment, to be released on payment of $700 to Peter Hewitt, and $225 to A. P. Wilson, within nine months. Three days after the expiration of the nine months, Wilson assigned all his interest in the land and in the judgment to Peter Hewitt, who took out execution, and under it the sheriff put Hewitt in possession, and turned Huling out.</p> <p>“ After Hewitt had been in possession some time, judgments were obtained against him — executions issued, and Ms interest in the land was levied on and sold by the sheriff to Elias Baker. At the time Baker became the purchaser of the property, he had ful^ notice of all these facts. Baker has remained in possession since’ April, 1844 — Hewitt from 1840 to 1844. You have heard the evidence which both parties have produced to show the annual value of the land, and the profits received therefrom by the defendants.</p> <p>“ Baker holds the land through Hewitt under Wilson, to whom the legal title was conveyed, for certain purposes, by Buchanan. Huling claiming under Henry, asserts his right to all the equitable interest reserved to the latter by the same deed.</p> <p>“ It is argued by the defendants’ counsel, that the judgment confessed by Huling to Wilson, and the non-compliance of the former with the terms on which it was to be released, not only justified Hewitt, the assignee of Wilson, in taking possession, but gave him the possession as absolute owner, and for ever defeated all right of Plenry, or those claiming under him, to recover it back. The argument is based upon a supposed resemblance of this case to that of a'vendee, who is turned out on a conditional judgment for non-compliance with the terms prescribed.</p> <p>“ If a vendor brings ejectment to compel payment of the purchase-money, and recovers a judgment either by confession or on verdict conditioned, that it be released on payment of the balance due within a prescribed time, and the time is suffered to pass without payment, the vendor may take possession and keep the land as absolute owner. The vendee in such cases has his election either to consummate his contract by paying what he owes on it, or to forfeit all right under it by refusing. If he refuses, the contract of sale is wholly rescinded, and the parties are remitted to their rights and capacities, as they stood originally, to all intents and purposes as if the agreement of sale had never been made: Gable v. Hain, 1 Penn. Rep. 264; Treaster v. Eleisher, 7 W. & S. 137.</p> <p>. “ But I am wholly unable to believe that the relation between Gen. Wilson and George W. Henry, was at all analogous to that of vendor and vendee. The legal title to this land was vested in Wilson to secure the payment of certain money, advanced by him for Henry. He was to hold it to his own use. until he was paid. This authorized him to recover in ejectment, if the money was not paid. But could he recover as the absolute owner of the whole estate ? Certainly he could not recover a larger estate than the deed vested in him. Suppose the parties were remitted to their original rights. What were those rights ? The deed defines them too clearly to make mistake a possible thing. The right of Wilson to hold the land until he is paid, is not more plainly set down than his obligation to restore it to Henry when the debt is satisfied. The rights .and obligations of one party are as well secured as those of the .other. We are therefore of opinion, that the condition appended to the judgment could mean nothing more than that Wilson would not take possession of the land, for the purposes mentioned in the deed, until the expiration of nine months, nor then if $925 should be paid him in the mean time ; but, if payment was delayed beyond the nine months, then he might take possession, and hold it to his own use agreeably to his deed, until he was reimbursed what was coming to him. ,</p> <p>“ This deed is not properly a mortgage. Strictly speaking, it is a deed of trust in which the cestui que trust, or those who represent him, have the same rights that a mortgagor has against a mortgagee : 3 W. & S. 384.</p> <p>“If we look upon it as a mortgage and the confession of judgment, a foreclosure upon terms agreed (as in the case of Stoever v. Stoever, 9 S. & R. 434), we must regard it ás a case in which a chancellor would give the party relief; because there has been no unreasonable acquiescence in the defendants’ possession, and they had the fullest notice of the present plaintiff’s intention to- claim his rights ; no improvements have been made by the defendants, except what you can compensate them for out of the profits. The debt for which the land is pledged, in this case, is very small, compared to the value of the property ; not, perhaps, more than one-sixth of what it would sell for. Equity will not permit a man, under these circumstances, to do so hard a thing as to keep property worth $6,000 for a debt of $1,000.</p> <p>“ The defendants, however, insist that, even on the views of the case already given, the plaintiff cannot recover for want of having tendered the debt in money before suit brought. They deny that they are accountable for the profits of the land since they have been in possession. But we instruct you, that the law is otherwise. One who holds lands in trust for another, must account for the profits. That a mortgagee in possession must do so, every pne knows. It is not the law of Pennsylvania, that a person who holds his debtor’s land merely as security, and stipulates to hold it for the use of the debtor after he is paid, can keep the possession until he is paid twice over by the profits, and then demand payment again before he surrenders the property.</p> <p>“ The plaintiff is therefore entitled to recover, if the clear profits of the land, since the defendants have had it, amount to as much as the debt and interest due to Wilson and Hewitt, as settled by the confession of judgment. I say clear profits; for you must allow the defendants to recoup the value of all reasonable and necessary improvements. If you believe that the defendants received, in the shape of profits, the amount of the debt with interest thereon before this suit was brought, your verdict ought to be for the plaintiff unconditionally, and the judgment will carry costs. But if it be your opinion that the profits of the land did not amount, when the suit was brought, to as much as the $925 with interest down to that time, but that they swelled to that amount or beyond it since suit brought,.your verdict ought to be for the plaintiff, on condition that he pay all the costs of this suit before taking out execution. If the clear profits do not amount to as much as the debt and interest up to this time, your verdict must be for the defendants. In making the calculation, the plaintiff is not entitled to take rests ; that is, he cannot stop at the end of a year, or at the expiration of any other period, and apply the profits so as tó stop the interest. The profits are only to be applied when they amount to as much as the principal and interest both.”</p> <p>The defendant, having excepted to the charge, in this court made the following assignment of errors.</p> <p>1. The court erred by instructing the jury that the confession of judgment in the equitable ejectment, No. 71 April Term, 1836, Andrew P. Wilson against D. W. Huling and others, to be released upon the payment of the money therein stipulated to be paid with interest, within nine months — the expiration of the nine months — ■ áüd the delivery of the possession of the premises by the sheriff to Hewitt, after the expiration of the time — did not prevent a recovery by D. Huling, the plaintiff below, and that the plaintiff was entitled to recover if the clear profits of the land since the defendants have had it, amount to as much as the debt and interest due to Wilson and Hewitt, as settled by the confession of judgment.</p> <p>2. The court misinstructed the jury from the beginning to the end of their charge, as to the legal effect of the judgment, and proceedings thereon, in the equitable ejectment, No. 71 April Term, 1836.</p> <p>3. The court erred by instructing the jury that the plaintiff (D. W. Huling) was not bound to tender to the defendant, before the institution of the suit, the debt and interest provided for in the judgment in the equitable ejectment.</p> <p>4. The court erred by instructing the jury that the defendants were bound to account to the plaintiff for the issues and profits of the land, to be applied to the payment of the debt, even down to the time of the trial of the cause, and that the plaintiff was entitled to recover, if the debt had been paid out of the profits at any time before the trial.</p>

<p>1. A conversion by a guardian of personal property of Ms wards into real estate can only be justified by imminent necessity.</p> <p>2. A guardian took a conveyance of real estate in Ms own name to secure a debt due to Ms wards, and two years afterwards declared that he held the land in trust for Ms wards. Held, that the guardian be charged with the money or the land at the option of the wards.</p> <p>3. A guardian is liable for losses of money of his wards incurred through culpable indifference and negligence.</p>

<p>1. In an action against a prior endorser of a note by a subsequent endorser, who had paid a judgment obtained upon the note by the holder against all the endorsers, the record of that judgment will have as conclusive an effect as though the plaintiif had claimed subrogation upon it.</p> <p>2. Though the record was of a suit iu which the defendants, as endorsers, were misjoined, and the narr. averred a joint implied promise, whilst their obligations, as specially' described, were in their legal nature several and contingent, still the plaintiff to that record having been required to prove notice of demand and non-payment to each defendant according to the legal nature of his obligation, those defendants are estopped from denying it afterwards as between themselves.</p> <p>3. An award of arbitrators, unappealed from, has the same legal effect, by way of estoppel by judgment, as the verdict of a jury and judgment thereon under an issue strictly made up: and a substantive averment in the narr. it must be taken for granted was required by the defendants to be proved before the arbitrators, or was conceded.</p> <p>4. The principle from which estoppel springs is applicable betweenjoint defendants, where from the nature and cofarse of the suit everything, necessary to give to one defendant a cause of action against his fellow, must have been proved by the original plaintiff in support of his claim to recover.</p> <p>5. Wherever equity would subrogate a second plaintiff to all the rights of the first, the judgment is conclusive of every fact, necessarily adjudicated against him, who primarily ought to satisfy it.</p>

<p>Writs of error to the Common Pleas of Blair.</p> <p>May 31. Henry L. Patterson and John Lytle were partners, against whom one Devine obtained a judgment. After Lytle had sold his interest in the concern to Patterson, he built a store-house, in which he sold goods on commission for one Thornton Barnes. A fi. fa. was issued on Devine’s judgment against P. & L., and Patterson, it seems, directed the sheriff to levy upon and sell the goods in-Lytle’s store, as Lytle’s goods, in pursuance of which direction they were sold by the sheriff, Patterson becoming the purchaser and receiving the goods. Before and at the sale, Lytle gave notice that the goods belonged to Ba-rnes. The sheriff returned, “personal property of J. L. sold for $500 on this fi. fa., and applied to same by sheriff.” Patterson afterwards paid Barnes for the goods, sold as Lytle’s, Barnes “agreeing to indemnify Patterson from any other claims on or for said goods, and to release all other persons;”</p> <p>In an action of account render, brought by Patterson against Lytle, which was the case in the court below, the auditors upon the judgment quod computet reported a certain balance due to the plaintiff, giving Patterson credit in their account for the $500 paid by the sheriff, on Devine’s judgment, from the sale of the goods sold as Lytle’s. To this report the defendant, Lytle, took exception that the auditors erred in crediting Patterson with the amount of the sheriff’s sale of the store-goods of Lytle, and in not giving Lytle credit for the amount instead of Patterson. The court below sustained this exception, so far as to strike out the credit of the $500 to Patterson, but refused to give Lytle the credit for that sum demanded by him. And upon this basis the report was reformed, and approved, and judgment entered thereupon. Each party sued out a writ of error.</p> <p>In this court Lytle assigned for error, that the court below erred in not giving him credit for the $500 made by the sale of his goods by the sheriff on the Devine judgment. And Patterson assigned for error, that the court erred in striking out the credit of $500 given to him by the auditors’ report.</p>

<p>Error to the Common Pleas of Huntingdon.</p> <p>May 24. This was an appeal from the judgment of a justice of the peace, before whom Samuel Caldwell was plaintiff and the executors of Robert Moore were defendants.</p> <p>The case as it appeared in evidence was as follows: Before the year 1840, Robert Moore was the owner of a tract of land in Eranklin township, Huntingdon county, with a forge on it, and in that year he leased the land and forge to Hileman & Haman, who went into possession, and continued there as the tenants of Moore, until the beginning of the year 1842. In the year 1841, while Hileman & Haman were in possession of the premises, they were assessed, in the name of Hileman & Haman, with the state, county, road, poor, and school taxes, for the year 1841. Some time in the year 1841, Hileman & Haman became insolvent, and never paid the above taxes assessed and due on the premises for the year 1841. About the end of the year 1841, Robert Moore sold the land and forge to Samuel Caldwell, by deed, dated April 1, 1842. Caldwell went into possession of the premises, on the first of April, 1842, and soon after the collector of taxes for Eranklin township levied with his warrant, on the coal of Samuel Caldwell, on the premises, for the collection of-the state, school, county, poor, and road tax, assessed on the premises in 1841, in the name of Hileman & Haman, and which they left unpaid at the time they left the premises. Samuel Caldwell, to prevent the sale of his property by the collector, paid the above taxes for the year 1841 to the collector, and brought this action against the executors of Robert Moore, who was the owner of the land at the time the taxes were assessed, to recover back the amount of money and interest paid by him, Samuel Caldwell.</p> <p>The defendants requested the court to instruct the jury as follows:</p> <p>1. The taxes, for the payment of which plaintiff claims to recover, being assessed in the names of Hileman & Haman, without any reference to Robert Moore as owner, the collector could not seize the goods of Robert Moore, or by any means compel him to pay the taxes; and Caldwell, whether the payment by him was voluntary or compulsory, cannot recover.</p> <p>2. If the goods of Robert Moore, as owner of the real estate, would not be liable to distress for the taxes, then Samuel Caldwell’s goods would not; and if he paid the taxes it was a voluntary payment, and he cannot recover for the taxes so paid by him.</p> <p>8. The taxes not being assessed in the name of Robert Moore, nor during his occupancy, there was no personal liability on him to pay them, and if Samuel Caldwell paid them, he- did it voluntarily, and cannot recover them in this action, his remedy, if he has any, being against Hileman & Haman.</p> <p>4. The plaintiff claiming the land on which taxes were assessed, as owner thereof, cannot recover from a former owner taxes which were assessed in the name of the tenants of the former owner, in the absence of any agreement.</p> <p>The court below (Wilson, President) gave the instructions prayed for.</p> <p>The verdict was against the plaintiff, so far as he sought to recover the amount of the taxes paid by him; but was in his favour for the balance of an account due to him by Robert Moore in his lifetime.</p> <p>The plaintiff below sued out a writ of error, and assigned for error these instructions, and also that portion of the charge in which the court said that the “ taxes were a charge against Hileman & Haman, and not against the land nor against Moore; and although the payment by Samuel Caldwell may have been compulsory and not voluntary, it was a payment for Hileman & Haman, the persons charged with the taxes, and against them he would have his claim, if against any one, for reimbursement.”</p>

<p>Error to the Common Pleas of Huntingdon.</p> <p>May 25. The facts of the case are sufficiently stated in the charge of the court below, which was delivered by Wilson, President, and is subjoined.</p> <p>££ The relator, James Dysart, by his information of the 2d of September, 1847, complains that ‘ for a long time past, to wit, for the space of one month and more, Jonathan M’Williams and John S. Isett, Esquires, both of the township of Franklin in the county of Huntingdon, have, as the relator has been informed and truly believes, under and by colour of the authority of an act of Assembly of this Commonwealth, passed and enacted on the 13th day of April, 1846, claimed to exercise and have exercised and acted in the office, place, and authority of supervisors and assessors of taxes, in the said township of Franklin, in the county of Huntingdon, and under and by colour of the aforesaid act of Assembly, have claimed and do claim, and have acted in, exercised, and practised the right, privilege, office, and authority, within the said township of Franklin, and over and upon the citizens of the said township, of assessing, levying, and collecting taxes, and large sums of money, within the said township, of and from the citizens of the same, to and for the use, benefit, and behoof of £ The Spruce Creek and Water Street Turnpike Road Company,’ and still claim, act in, exercise, and practise the authority, office, and power of assessing, levying, and collecting taxes as aforesaid, within the said township of Franklin, and of and upon the citizens thereof, for the use and purpose aforesaid, without any warrant or lawful authority, for acting in, exercising, and enforcing the same, as the relator has been advised and verily believes. All of which liberties, privileges, and franchises aforesaid, the said Jonathan M’Williams and John S. Isett, during all the time aforesaid, have usurped and still do usurp upon the citizens and inhabitants of the said township of Franklin, to the great damage and prejudice of the said inhabitants of the said township of Franklin.’ Whereupon the relator prayed the advice of the court in the premises, and asked process against the said Jonathan M’Williams and John S. Isett in this behalf to show by what warrant and authority they claim to have, use, and enjoy the liberties, privileges, and franchises aforesaid.</p> <p>“ On the process issued as requested — Jonathan M’Williams and John S. Isett, who are thereby made defendants, join issue by denying the suggestions of the relator as fallows: The said Jonathan M’Williams and John S. Isett deny that they have at any time by colour of the authority of an act of Assembly of this Commonwealth, passed and enacted on the 13th of April, 1846, claimed to exercise and have exercised and acted in the office, place and authority of supervisors and assessors of taxes, in the said township of Franklin, in the county of Huntingdon, and under and by colour of the aforesaid act of Assembly, have claimed and do claim, and have acted in, exercised and practised the right, privilege, office and authority aforesaid, within the said township of Franklin, and over and upon the citizens of the said township, of assessing, levying and collecting taxes and large sums of money, within the said township, of and from the citizens of the same, to and for the use, benefit, advantage and behoof of the Spruce Creek and Water Street Turnpike Road Company, and still claim to act in, exercise, and practise the authority, office, and power of assessing, levying and collecting taxes as aforesaid, within the said township of Franklin, of and from the citizens thereof, for the use and purpose aforesaid, without any warrant or lawful authority for acting in, exercising, and enforcing the same. And the said Jonathan M’Williams and John S. Isett, further deny that they have usurped and do usurp the said office, as by the said relator averred.</p> <p>“ This information, to our minds, clearly affirms, that the defendants under and by colour of the authority of the act of Assembly of the 13th of April, 1846, claim to exercise and have exercised and acted in the office, place and authority of supervisors and assessors of taxes, in the township; not that being such officers they have exercised, or claim to exercise a power or privilege under and by colour of that act of Assembly, which they could not legally do, or that being 'supervisors of Franklin township, they claimed to exercise, and did exercise certain powers and privileges under that act.</p> <p>“ The allegation is in fact that they usurp the office of supervisors and assessors of Franklin township, under and by colour of the act of the 13th of April, 1846, and have claimed and do claim, and have acted in, exercised and practised the right, privilege, office and authority, within the said township, and over and upon the citizens of the township, of assessing, levying and collecting taxes and large sums of money, for the use and benefit of the Spruce Creek and Water Street Turnpike Road Company.</p> <p>“ By the defendants’ denial of the information, whether they claim to hold the office of supervisors under this act, and to assess taxes, &c., under this act, is put directly in issue, and it cannot for a moment be pretended under the evidence, that they hold or claim to hold the office of supervisors as suggested. The evidence shows that they were elected supervisors of the township, and assessed a tax, not exceeding their power, and that they do hold, and claim to hold the office of supervisors, by virtue of their election. The evidence thus failing to support the information, the verdict must be for the defendants. But the question desirable to be settled for the future action of those parties is relative to an appropriation of taxes assessed in this township by the supervisors, for the payment of stock subscribed by the supervisors, in the Spruce Creek and Water Street Turnpike Road Company, we will express an opinion on, as requested, to enable the parties to have that question raised in this proceeding, should the relator see proper to carry the case further.</p> <p>“From the evidence it is shown that the defendants were regularly elected, and it is not disputed, were legally supervisors of the township of Franklin, through which this turnpike located by the company passes. It is further shown, that under their powers as supervisors of that township, they assessed a tax, not by law 'exceeding what they were authorized to assess on the valuation of property in that township, as valued by the county assessors. On this state of facts, although the defendants did in their assessment of tax include in making their general estimate of the amount necessary for opening, repairing, &c., the roads, include a sum which they intended to collect for the purpose of paying the stock by them intended to be subscribed to the Spruce Creek and Water Street Turnpike Road Company, we are of opinion it would not make out a case authorizing a verdict in favour of the relator, and are of opinion that they Were warranted and had authority for their act. They are authorized under the general powers given them, to lay a rate on assessment, not exceeding one cent on the dollar, upon real and personal estate, offices, &c., for the purpose of laying out, opening, making, amending or repairing of bridges, and for such other purposes as may be authorized by law. The 16th section of the act of Assembly of the 18th of April, 1846, incorporating the Spruce Creek and Water Street Turnpike Road Company, enacts that “the supervisors of the public highways through which the said turnpike road may pass, be and they are hereby authorized to subscribe for the use of the inhabitants of such township, any number of shares not exceeding three thousand six hundred in the capital stock of the said turnpike road. Provided always that the said supervisors in subscribing as aforesaid, shall be entitled to all the rights and privileges granted by this act to other stockholders in the said company.</p> <p>“ Under the facts of the case presented to us by the evidence, there is no ground for ousting the defendants from their office; for when they are creatures of the law, and the same power which authorized their creation has extended to them a power which they exercised in pursuance thereof, they will not thereby forfeit their office. They are exercising a power granted to them by the mere authority that created the corporate powers of the township, of which they are legally elected officers. In the assessment of the taxes they have not exceeded the amount they were authorized by the law to assess; it is admitted, however, that a portion of the tax assessed, when collected, is intended to be applied towards the payment of the stock subscribed by them under the provisions of the 16th section of the act of the 13th April, 1846. Payment of any part of the subscription has not yet been made; nor has the tax assessed, except a portion of it, been collected, and they are not in fault at the time of this relation filed, unless it be by increasing the amount of the township assessment at the time the tax was laid to meet any future subscription of capital stock in this turnpike company.</p> <p>“ The Legislature authorizes the subscription of stock by the supervisors for the use of the township. The tax is not assessed by colour of and under the act of the 13th of April, 1846, but by virtue of their general powers as supervisors of the township, and an amount is included in the assessment to meet a subscription the law authorizes them to make — giving them the power of subscribing the stock, it would authorize them to pay out of the funds of the township the amount subscribed — and under the existing laws they could raise for the purposes of payment of the stock the amount of taxes, confining themselves within the amount of ten mills on the dollar of county valuation of property taxable; it would be levying a tax for a purpose authorized by law.</p> <p>“ The facts presented by the evidence do not, taking them in the strongest point of view, support the allegation of the relator in his suggestion. It is admitted by the relator’s counsel, that we could not give judgment ousting the defendants from their office. If this is so, it is questionable whether we could give a judgment under this proceeding, restraining the defendants from carrying out their intentions, which are complained of — or whether the evidenee presents a case for a quo warranto, under the Act of Assembly, giving the Court of Common Pleas jurisdiction of that writ.</p> <p>“ The court is requested to charge the jury as follows:—</p> <p>“ If the jury believe from the evidence that the defendants, as supervisors of Franklin township, have levied and assessed the sum of $400, or any other sum of money as a tax upon the taxpayers of Franklin township, for the use of the Spruce Creek and Water Street Turnpike Road Company, and have collected, or threatened, or attempted to collect the' same for the use, benefit, and behoof of the said company, the verdiet should be for the plaintiff.</p> <p>“We refuse to answer as requested, as already stated in our general charge; and will here remark, that the undisputed evidence that any increase of tax assessed, instead of being- as set out in the suggestion of the relator, to and for the use, benefit, and behoof of the Spruce Creek and Water Street Turnpike Road Company, was assessed in contemplation of a subscription of stock in that company, under the Act of Assembly incorporating it, which authorizes the subscription for the use of the inhabitants of the township.</p> <p>“ On the whole case, we are of opinion, that, in point of law, the verdict must be for the defendants.”</p> <p>Yerdict and judgment for the defendants.</p> <p>The relator sued out a writ of error, and, in this court, made the following assignment of errors: — •</p> <p>The court erred in not giving judgment for the Commonwealth on the pleadings.</p> <p>The court erred in charging the jury that the words, “under and by colour of the aforesaid act of Assembly of the 18th of April, 1846, was fatal to the relator.”</p> <p>In instructing the jury that the respondents had a right to assess and levy taxes on the citizens of Franklin township, under the act of the 13th of April, 1846, for the use of the Spruce Creek and Water Street Turnpike Road Company.</p> <p>The court erred in instructing the jury that they might find for the respondents — and in giving judgment for the respondents.</p>

<p>Error to the Common Pleas of Huntingdon.</p> <p>May 29. This was an action on the case for malicious prosecution, in which Christian Prough was plaintiff, and James Entriken was defendant. The facts of the case were these:—</p> <p>'On the 12th August, 1845, Entriken instituted a prosecution against Prough and his brothers for “ conspiracy to secrete away Prough’s property, in order to cheat and defraud his creditors.” Upon the warrant issued by the justice the defendant was arrested and committed to the county jail.</p> <p>Prough, it would seem from the evidence, was indebted to Entriken to a considerable amount. He was a tenant-farmer, apparently on a small scale. A few days before the arrest he ceased operations on the farm, and set about selling and disposing of his property, with the design of going to the west. He sold it to one of his brothers. The second day after this sale he started for a place near the county line, to leave for the west, which he purposed doing without settling with his creditors. In consequence of some disappointment he returned to his father’s, where he was arrested.</p> <p>Upon being arrested he was taken to prison, where he was asked by the keeper if he would pay the debt: he said he would not. The keeper told him there was no other way than to go up stairs, he could do nothing else with him. They went up, and when the key was turned upon him, Prough said he would pay it, and did so, not without some hesitation and denial of his ability. Upon being discharged, and after they had settled the prosecution, Prough went before the justice of the peace and confessed judgment for a certain amount, and a few days after, confessed judgment in a civil suit, which had been instituted before the same justice, on the same day that the prosecution had been commenced. The paper-book which came to the reporter’s hands was defective in the evidence relating to what took place between the arrest and the settlement of the prosecution. The verdict was for the defendant.</p> <p>All that is material in the points presented below, or in the charge of the court, which was delivered by Tatlor, President, will be found in the opinion of this court.</p>

<p>Legacies, directed to be paid by the devisees of land in proportion to a prescribed appraisement of the devised land, are not a charge upon that land.</p>

<p>1. Judgments against the vendor of land, who retains the legal title for the security of the unpaid purchase-money, heing liens attaching not only on the naked legal title but also upon the unpaid purchase-money, whether secured by bond or otherwise, cannot be disturbed by an attachment subsequently issued, for the money due by the vendee, upon a judgment subsequently rendered against the vendor.</p> <p>2. "When a sale is made to delay, hinder, and defrand creditors, the proper manner to test the validity of the transaction is by a judicial sale at the suit of one or more of the creditors.</p>

<p>Appeal by Walker township, from the decree of the Quarter Sessions of Centre.</p> <p>. May 31. This case has been before this court on several occasions, and in several shapes, two of which appear in 7 Watts, 171, and in 8 Barr, 177. When the case was before this court, as it is reported in 8 Barr, it was on an appeal, though the report designates it as a certiorari, taken by West Buffalo from the decree of the Q. S. of Centre, by which West Buffalo' was ordered to pay to Walker the sum of $322.45 for the reasonable costs and charges of the latter, in supporting the pauper Troy. The claim of Walker was for $1,503.42. West Buffalo appealed from the decree so far as it confirmed the order of removal, and Walker appealed from the same decree, so far as the same related to the costs and charges of supporting the pauper. The report in 8 Barr covers the appeal of West Buffalo, and the decree which this court made in that case was “ the order of removal affirmed” — but the decree of this court, made then, goes on to order that “the costs and charges, to be paid to the appellees for maintenance, are to be ascertained by this court on depositions, and the record to be retained in the mean time.” This latter part of that decree has particular reference to this case (the appeal by Walker township), which was argued at the same time with the appeal by West Buffalo. The depositions ordered to be taken, were taken, and exhibited the costs and charges incurred by Walker township. The paper-book contains nothing that would in any degree illustrate the facts of the case, as the same are stated by Mr. Justice Burnside.</p> <p>In this court, at a term subsequent to the return of the appeal, the appellee moved to quash it.</p>

<p>1. The gross negligence of an improver in perfecting his original privilege for a period of more than twenty years, during which his opponent, claiming under a warrant and survey posterior to the settlement, paid taxes for the disputed tract and exercised acts of ownership, whilst the improver in effect disclaimed his liability as owner, is fatal to the title based upon the settlement.</p> <p>2. The case of an actual settler will hereafter be governed by the principles which determine what degree of neglect amounts to an abandonment by a prior, as against a subsequent warrantee.</p> <p>3. Depositions rightly admitted, though in the handwriting of the party’s attorney, it having been shown that they were so taken with the assent of the opposing attorney.</p> <p>4. As to the effect of acquiescence in the payment of taxes by an adversary, and as to the doctrine of abandonment of settlement, see the case at large.</p>

June 14. Philip Berlin, who was president of the Insurance Company, made and delivered to Simeon Nichols a promissory note, dated September 14,1842.

June 14. This was an action of covenant brought by Andrew Brough against Christian Bitner, on articles of agreement for the purchase and sale of land. Bitner covenanted to sell and convey to Brough for $9,000, of which $5,000 was payable on 1st April, 1847, “when a good and sufficient deed clear of encumbrances was to be made and delivered,” and the residue was to be paid in five equal annual instalments.

June 14. This action, which was in case, was brought by Lewis M. Hughes against the Cumberland Valley Railroad Company, to recover damages for the loss of his car, thrown off the track of the railroad and broken, in consequence (it was alleged) of the bad condition in which the road, through the negligence of the company, was suffered to be at the time.

<p>Error to the Common Pleas of Franklin.</p> <p>June 15. Adam Rineman, the plaintiff below, brought suit before a justice, against the Commissioners of Franklin, to recover the price of printing certain election proclamations in a German newspaper, published by him in the county, called the “ Coon Fanger,” or Coon Killer. From the judgment of the justice there was an appeal, upon the trial of which it appeared that the sheriff of the county had employed Rineman to do this printing; that the paper was what is called a campaign paper, having been published but for three months preceding the presidential election of 1844, and that it was a newspaper in fact and in form, regularly published in the county, and circulating some 300 numbers weekly.</p> <p>The statement which was filed in the Common Pleas, after the appeal, was in its body against “The County of Franklin,” though it was endorsed as the suit was entitled upon the transcript. The plea was non assumpserunt.</p> <p>' The court below was requested to instruct the jury:—</p> <p>1. That the plaintiff in this case cannot recover; that the suit must be brought in the name of and by the sheriff.</p> <p>2. That the paper offered in evidence as containing the publication, is not a newspaper within the meaning of the law.'</p> <p>3. That the suit ought to have been, brought against the county, and not against James Burns, Thomas Pomroy, and Jacob Eyster, Esqs., and on the law and facts the plaintiff is not entitled to a verdict.</p> <p>The court (Black, President) charged the jury as follows</p> <p>“ 1. The defendant makes three points. The plaintiff ought to recover the pay for his services from the sheriff, and then let the sheriff recover from the county.</p> <p>“ I believe it is the universal practice everywhere in the state, for printers, who publish these proclamations, to make out their bills directly against the county. It is as easy and as cheap for the county to pay the printer as to pay the sheriff. The law makes the sheriff the organ to employ the printer. He' might charge it against the county with his own fees. But if he does not do so, and if the printer does not receive his bill from the sheriff, nor from anybody else, he has a right to recover it against the county. There is no law that forbids it, and the general rule of law and justice is that where it is the right and duty of an officer to employ a man in the public service, and such officer does so employ him, the public, and not the officer, is bound to pay him for the service.</p> <p>“ 2. It is alleged that this is no newspaper, and our opinion is demanded on thatkquestion. From all the evidence in the case, we say it is a newspaper. Mr. Pritts, the only witness called by defendants, says it is a newspaper. But this is a matter of fact to which it is your duty to answer, not ours.</p> <p>“ 3. It is said suit was brought wrong. It is true the suit was wrongly entitled by the justice. But the law. does not allow us to defeat the action on account of the mere mistake of the justice in entering the cause on his docket as against the commissioners. When the plaintiff employed the attorney, the statement was filed against the county by its proper corporate name — ‘ The County of Franklin.’ The court were bound to allow this amendment, and the jury on a former occasion, as well as on the present trial, were sworn between the proper parties.”</p> <p>The errors assigned were to the answers of the court to the points submitted by the defendant below.</p>

<p>1. The liability of a surety in an official bond being contingent, suit cannot be' brought against a surety by a party in interest, whether creditor, legatee, or distributee, without proceeding in the first place against the administrator or executor, and fixing him personally for the debt.</p> <p>2. The settlement of a general account by an executor, disclosing a general balance in his hands, does not so fix the executor as to enable a distributee to maintain an action on the official bond. .</p> <p>3. It is not required that the executor should be pushed to insolvency: a judgment at law or a decree of the Orphans’ Court, ascertaining the amount of the personal responsibility of the executor to the particular creditor, legatee, or distributee, suing on the bond, is all that is necessary as a pre-requisite to such suit.</p> <p>4. These principles extend to a bond given by one of two executors for the faithful performance of his duties, though it was not an original or a joint administration-bond.</p>

<p>Appeal from tbe decree of tbe Register’s Court of Berks county, affirming tbe grant of administration to Jonathan Bieber, and annulling the grant of administration to Isaac L. Bieber.</p> <p>June 19. Margaretta Bieber died intestate on tbe 16th May, 1847, and on tbe 18th of the same month, Jonathan Bieber applied fo.r letters of administration upon her estate, which were granted to him, he having first entered into bond, with two sufficient sureties, and taken the oath required by the act of 15th March, 1832. On the 9th day of June, 1847, Jonathan Bieber filed an inventory of the goods and chattels, &c., of decedent, amounting to $859.72. On the 15th June, 1847, Isaac L. B'ieber filed an affidavit with the Register, setting forth that he is the eldest (and only living) son of Margaretta Bieber, deceased, and that Jonathan Bieber is not a child of said Margaretta. And thereupon he claimed administration of the estate of the said decedent. The letters to Jonathan Bieber were revoked the same day, by the Register, without any notice or citation to Jonathan, and administration granted to Isaac L. Bieber, and letters issued accordingly. On the 19th June, 1847, Isaac L. Bieber filed an inventory of the personal property of the decedent, amounting to $143.72, besides amounts due by Mary Zimmerman and .John L. Bieber, not ascertained.</p> <p>On the 26th July, 1847, a citation was issued by the Register to Jonathan Bieber and Isaac L. Bieber, at the instance of Jonathan Bieber, one of the claimants, and the case was heard before a Register’s Court, to which an appeal had been taken, on the 18th February, 1848. On the hearing in that court, Isaac L. Bieber produced the following testimony:—</p> <p>Henry Hottenstine, sworn. — I am acquainted with Margaretta Bieber; I live about one and a quarter miles from her. She died on the 16th May, 1846; she was buried on the 18th of May. She left four children surviving her, Isaac L. Bieber, Mary, wife of Isaac Zimmerman, Susanna, wife of George Miller, Sarah, wife of George Baum, and the issue of two deceased children, John and Judith; the children of John are Sarah, wife of William Hoch, Judith, Abraham, Yalentine and Mary; the children of Judith are Daniel, Amos, Peter, Felix and Levi Beisel.</p> <p>Isaac L. Bieber lives near Jonestown, in Lebanon county. Jonathan Bieber lives in Maxatawny township, Berks county. Jonathan Bieber is not a son of Margaretta Bieber, deceased; he is a nephew by marriage, that is, he is the son of a brother of her late husband.</p> <p>Jonathan Bieber produced the following paper in evidence:—</p> <p>“ The undersigned, heirs of Margaret Bieber, deceased, do hereby certify, that we are unwilling that Isaac L. Bieber, the son of said deceased, should be her administrator, as we consider him incompetent, and not a resident of the county, and largely indebted to the estate of Margaret Bieber, deceased, which indebtedness he denies, for the purpose of depriving the other heirs of their shares ; and further certify, that we are satisfied that Jonathan Bieber shall be the administrator, and hereby nominate and recommend him as such.”</p> <p>This paper, produced for the first time upon the argument in the Register’s Court, was signed by the three other children of the decedent, and by some of her grandchildren, children of her deceased daughters and son.</p> <p>The opinion of the Register’s Court was to this effect:—</p> <p>“We think that the Register having granted administration to Jonathan Bieber of this estate, and having approved his bonds as administrator, his power and authority on the question of right to the administration was determined. The granting of letters to Jonathan Bieber in the first instance, on the 18th of May, so soon after the death of the decedent, not, it would appear, upon the then nomination of the greater or indeed of any part of the heirs, and without notice to them, or particularly to the complainant here, was certainly precipitate. When a stranger presents himself and asks for letters to the exclusion of kindred of the decedent, and does not produce the written renunciation of those preferred by law, letters should not be granted to him without bringing those so preferred before the Register by citation or other adequate notice, in order that they may contest or acquiesce in the grant. Administration' does not belong to the first claimant. But the Register having once granted administration, the power to revoke it seems to be lodged only with the Register’s Court, upon appeal from the judicial acts and decisions of the Register, of which granting administration constitutes so large a class; and that court, upon appeal, is invested with power to affirm, revoke, alter or modify the decree of the Register. Hood’s Ex. 68. ■</p> <p>“ If, then, the Register could not revoke the letters he has granted on the 18th May, 1847, to Jonathan Bieber, he clearly could not grant, while those letters were subsisting, administration upon the same estate to Isaac L. Bieber, by his subsequent letters of the 15th June. When administration is once granted, no other can have title to a similar grant, during the continuance in office of the administrator. An executor has a right to probate, though it has already been taken out by his co-executor. Hot so with an administrator ; the grant to him is absolute and exclusive, and to him the maxim, qui prior est tempore, potior est jure, applies with all its force. Williams’s Executors, passim. The grant then to Isaac L. Bieber was unauthorized, as was also the revocation of the letters to Jonathan Bieber. This would dispose of the’ question before the court; but as upon the argument the whole matter was treated beyond these questions, as an appeal from the decision of the Register granting administration to Jonathan Bieber, we will briefly consider that appeal.</p> <p>“ This is a contest between the eldest and only son of the decedent, who is alleged to be a debtor to her estate, and the nominee of her other children, and of the descendants of such of them as are dead. The interests of these children of the decedent in the estate are all equal, and we have here the eldest son, representing an interest equal to one-sixth, resisted in his claims to the administration by the others, representing interests equal, or very nearly equal, to five-sixths of the estate. In the English courts, it is said, when there is no material objection on the one hand or reasons for preference on the other, the court in its discretion puts the administration into the hands of that person, amongst those of the same degree of kindred, with whom the majority of parties interested is desirous of intrusting the estate. Without examining the extent of the applicability of this rule in our practice, we will say that the preference of a majority in interest will always be favourably regarded, when the court can properly do so, and that where claims are equally balanced it will be decisive.</p> <p>“ In this case, if there is any well founded objection to Isaac L. Bieber, the nomination of nearly all the other heirs, ought to have, and must have, great weight with the court.</p> <p>“ It is alleged that Isaac L. Bieber is a debtor to this estate to an amount equal to three-fourths of the inventory, as filed by Jonathan ; and that may be taken to be the allegation of the other heirs. In the inventory filed by Isaac, we find no item embracing the alleged debt, which may be taken to be a denial of the debt on his part. It seems to us that this state- of facts presents an insuperable objection to the appointment of Isaac. He stands in an antagonist position to the interest of all the other heirs, so far as three-fourths of the estate are concerned, and granting administration to him, would amount to a suspension of all proceedings to determine the validity of that debt during the continuance of his administration. The decision in Ellmaker’s Estate, 4 Watts, 34, seems to us conclusive of the law on this point, if so obvious a point requires the support of authority.</p> <p>“We therefore affirm the grant of administration to Jonathan Bieber, the contestant, Isaac, being out of the question, and Jonathan being the nominee of nearly all the other parties in interest.</p>

<p>Error to the Common Pleas of Berks.</p> <p>This was an action on the case brought by Andrew Taylor and others to the use of George Hain’s heirs against Jacob W. Seitzinger and another, to recover the sum of $1,955.55, with interest, it being the sum under the intestate laws charged upon eighty-eight acres of land, late of George Hain, deceased, the interest of which was payable to the widow Hain, during life, and the principal, after her death, to the heirs of George Hain.</p> <p>The declaration charged, that on the 13th of May, 1811, George Gernant. accepted in the Orphans’ Court, at the valuation, a tract of eiglity-eight acres of land, which the court adjudged to him, in right of his wife Barbara; that the valuation was £2,200, of which one-third, seven hundred and thirty-three pounds six shillings and eight pence ($1,955.55), remained charged upon the land during the life of the widow Hain, payable to the heirs of George Hain after her death, and the interest to her during her life:</p> <p>That George Gernant and wife, August 5, 1812, sold the land to George Ege, for £2,745, and took a bond from him conditioned for the payment of £733 6s. 8d., immediately after the death of the widow Hain, with interest, payable annually: That George Ege, May 25,'1823, made an assignment to Andrew Taylor and others, in trust for his creditors :</p> <p>That Andrew Taylor, Richard Boone, and Simon Seyfert, trustees of George Ege, February 18,1837, granted and conveyed Reading Furnace, including this tract of 88 acres (subject to a doiver charged thereon, to wit, the said sum of $1,955.55), to the defendant; that the consideration in the deed was $121,000, being the purchase-money ; that the defendants paid only $119,044.45, and retained $1,955.55, and in consideration thereof promised to pay the interest of the last-mentioned sum to the widow Hain, during life, and the principal, after her death, to the said George Gernant and others, for whose use this suit was brought, they being heirs of George Hain, deceased. The declaration then avers the death of the widow, May 14, 1845; that the defendant did not pay the said $1,955.55, nor its interest, and became liable to pay to Andrew Taylor, Richard Boone, and Simon Seyfert, and in consideration thereof promised to pay it to them; with a breach of this promise.</p> <p>On the trial, the plaintiff obtained leave to amend by adding a count, stating the promises to have been made on the 3d of January, 1837; that the plaintiffs then agreed to sell to the defendants, Beading Furnace, including the eighty-eight acres, subject to the widow Hain’s dower, to wit, $1,955.55, and to permit the defendant to retain the said sum, in consideration whereof the defendant promised to pay it, as stated in the first count.</p> <p>After proving the various facts above set forth, the plaintiffs called as a witness Andrew Taylor, one of the plaintiffs on the record, who was admitted to testify, under exception to his competency taken by the defendant. Mr. Taylor testified as follows: — •</p> <p>“They” (that is Keim and Seitzinger) “retained $1,955.54 of the purchase-money, with interest from January 1, 1837, on account of the widow Hain’s dower. They deducted it from me and assumed to pay it. It was understood so on my part.” (Witness was then asked how or to whom they were to pay it, in reply to which question he proceeded and said,)- “ I don’t know that there was anything said about it. I should suppose they were to pay it to those entitled to receive it. It was on the 3d January, 1837, before the deed was made. When the deed was given the full consideration was not then paid. This dower was still due and retained out of the purchase-money then. The defendant has not paid any •to me since.”</p> <p>Cross-examined. — On the day this deed was delivered, I do not recollect that anything was said about their paying this dower. All that was said about paying the dower was said before, nothing on the day and nothing after. The deed was delivered in February 1837. I am not certain as to the day.</p> <p>The plaintiffs closed their case. The defendants, having proved its execution, gave in evidence the following paper, executed by the defendants:—</p> <p>“ To all persons to whom these presents shall come. George De B. Keim and Jacob W. Seitzinger send greeting:</p> <p>“Whereas the said George De B. Keim and Jacob W. Seitzinger purchased the Beading Furnace and Charming Forge estate, of the heirs and devisees of George Ege, late of Berks county, Esq., deceased, for the sum of $135,000, and afterwards, in order to procure a good title, purchased the same property at public auction, held by Andrew Taylor, Esq., an assignee and trustee of the said George Ege, for the sum of $146,000. And whereas, the said Andrew Taylor this day delivered to the said George De B. Keim and Jacob W. Seitzinger deeds for the said estate, executed by him the said Andrew Taylor, and by Richard Boone and Simon Seyfert, the other trustees of the said George Ege, conveying the said ■estate to the said George De B. Keim and Jacob W. Seitzinger, their heirs and assigns, to which deeds are attached receipts signed by the said Andrew Taylor, for the aforesaid sum of $146,000. And whereas the whole of said sum of $146,000 has not been paid by the said George De B. Keim and Jacob W. Seitzinger, either in discharge of liens on the estate aforesaid, or to the said Andrew Taylor, a part of the same being retained until the precise amount of the liens and charges against the said estate is ascertained, and it is known what part of the said purchase-money, if any, the said Keim and Seitzinger will be entitled to on account of their purchase of the heirs and devisees of the said George Ege aforesaid. Kow know ye that we, the said G. De B. Keim and J. W. Seitzinger, for and in consideration of the delivery of said deeds and receipts to us, have, and by these presents, do covenant, promise, and agree to and with the said Andrew Taylor, that we will indemnify and keep him harmless at all times from any costs, expenses, or trouble, in consequence of the delivery of the said 'deeds, and that we will pay any lien or charge against the said estate, to the amount of the said $146,000, or, if the liens or charges shall not amount to so much, will give to the said Andrew Taylor a proper acquittance on account of the heirs and devisees ■ of the said George Ege, for whatever they might be entitled to retain on account of our purchase from them.</p> <p>“ In witness thereof, the said G. DeB. Keim and J. W. Seitzinger, have hereunto set their hands and seals, this 14th day of February, 1837.”</p> <p>They then called Andrew Taylor, who testified, that this paper was taken at the delivery of the deed. Mr. Biddle drew it. I gave it to Mr. Strong. I think both Keim and Seitzinger were present when the promise was made.</p> <p>The case being closed on both sides, the court (Jones, President) charged the jury as follows</p> <p>“ This case has been treated entirely as one of law, in being elaborately and exclusively argued to the court. We are of opinion that the plaintiff is entitled to recover, and accordingly instruct you to find in his favour.”</p> <p>The defendants excepted to the charge. The jury rendered a verdict for the plaintiffs for $2,744, and judgment.</p> <p>The assignment of errors here was: — ■</p> <p>1. The admission of Andrew Taylor to testify.</p> <p>2. The court erred in withdrawing the case from the jury.</p> <p>3. The court erred in instructing the jury to find for the plaintiffs, notwithstanding the special agreement given in evidence.</p>

<p>Error to the Common Pleas of Berks.</p> <p>June 20. This was an action of debt on a joint and several note under seal, for the payment one year after the date thereof, to Henry Fox, his heirs or assigns, of the sum of $100. It was executed by one John Quin and by “Baughman & Covely.” The plaintiff below was Henry Fox, the defendant Aaron B. Covely. The defendant pleaded non est factum, and some time after, fourteen days before trial, served upon the plaintiff’s attorney the following notice:—</p> <p>“ Please take notice that the defendant will withdraw all the pleas entered by him in this case, and enter the plea of £ payment, with leave to give the special matter in evidence,’ under which he will show that Baughman & Covely signed the bill single declared upon as the bail or surety of one John Quin. That some two years after the date of the said bill single, the plaintiff was desired by the bail or surety of said Quin to proceed and collect the amount from said Quin, who was then and long after in solvent circumstances, and well able to pay the amount, and the plaintiff gave him time.</p> <p>“ That some years after that, say about the year 1837, one Reuben Bower became indebted to the said John Quin in an amount exceeding the debt due upon this bill single, and that the said Bower, by the consent of the said Quin and the plaintiff, agreed to pay the amount of said single bill to the said plaintiff, Henry Fox, and that the said plaintiff gave the said Bower time for the payment of the same for several years, declaring that he looked to said Bower, and not to the bail or surety in the bill single, which indulgence the plaintiff extended to Quin, and afterwards to Bower, until both became insolvent and the money lost.”</p> <p>The case coming on for trial, the plaintiff read to the court so much of this notice as related to the withdrawal and change of pleas, gave the note in evidence, and rested.</p> <p>The defendant then called a witness by whom he proposed to prove the matter set forth in his notice. But the plaintiff objecting to the admission of the testimony on the grounds, 1. that it was no defence to the action, and 2. that fifteen days’ notice of this special matter had not been given according to the rules of court, the offer was overruled, and the defendant took his bill of exceptions.</p> <p>The jury, under the charge of the court (Jones, President), rendered a verdict for the plaintiff.</p> <p>The error assigned here was the rejection of the evidence offered as above on the- trial.</p>

June 20. This was an action on the case brought by Augustus Fidler against Isaac Rutter, to recover damages for the erection of á porch by the defendant, in front of the defendant’s house, whereby a certain door-way, from- the house of the plaintiff into the public square of Womelsdorf, was obstructed. The situation of the properties will be more readily understood by reference to the accompanying diagram. A. The porch erected by Eutter.

June 21. In the opinion of the court below, by Jones, President, the facts of the case are thus stated:— “ Here a road has been laid out between two public roads, and opened from one of them to the house of one of the original petitioners, but not opened from that house out to the other road. The road has been only partially opened.

<p>Error to the Common Pleas of Berks.</p> <p>June 21. Ejectment by David Mast, plaintiff, against James Groheen and John Long, defendants. Christian Long, who was seised in fee of a certain tract of land in Berks, made a will, which was admitted to probate in January, 1799, in which, among other things, he directed as follows:—</p> <p>“ I give and bequeath also to this my grandchild, Anna, the land which I have measured and given to my son John, but for which I have not given him a deed, but the widow of my son shall have a right to live on this land till this my grandchild is come to age; if this my grandchild should die under age and without heirs, then the land shall fall back to my daughter Barbara, and so soon as the widow of my son John should marry again, she loseth her widow seat on the land. Eurther, shall my daughter Barbara pay to the six children of my deceased daughter Anna, who was married to Jacob Zook, to every one the sum of five pounds, to the oldest, two years after my death, and so every year to the others, till they are all paid, and this should be in full from all my estate, as I have given to their mother already a complete marriage good.. It is my will that if my daughter Barbara should die without heirs, then shall the land which I have given to her within this, fall to my grandchild Anna Long and their heirs. Should she die without heirs, then it shall fall to the oldest of my grandchildren of my before mentioned daughter Anna, their sons, and if they all should die without heirs, it shall fall to the oldest daughter of my daughter Anna, her children, and so forth, till to the youngest, but if all my family should die without heirs, then I give and bequeath all my land to the oldest son and heirs of my brother John Long, in Holland.”</p> <p>It appeared by the plaintiff’s evidence, that the son John Long, mentioned in the foregoing extract, and who is not of the same blood with John Long, the defendant below, liyed upon the land in question during his father’s life, that he died before his father, and that his widow, Christina, lived on it after her husband’s death. Anna was the daughter and only child of John; she also lived on this land; was married and died three months afterwards, childless, in July 1820, being at her death more than twenty-one years of age. When Anna was married, she left the land and did not return to it. The testator’s daughter, Barbara, lived on land adjoining; she never married, and died in August 1825; Jacob Zook, the nephew, lived with her. This Jacob is a son of Anna Zook ■ deceased, a daughter of the testator, one of her six children; and from him the plaintiff, David Mast, derived his title by a deed, dated 29th March, 1844. The widow of the testator’s son John died in July 1839. The defendants were in possession at the bringing of the suit.</p> <p>The defendants’ evidence showed that the defendant, John Long, and his mother, who was the widow of Christian Long’s son John, occupied this land after the death of her daughter, Anna Long; that they were the only ones who did occupy it; that they resided in the house; and that the defendant John farmed the land. They paid taxes for it. The widow lived on the land from 1802 until her death, in July 1839, since which time the defendant, John Long, kept up the possession by his tenants. The defendant also gave in evidence the will of the widow, proved some four years after her death, by which she devised all her property to her son, the defendant.</p> <p>The plaintiff then called a witness, who testified, that the widow of John Long never said she claimed this land; she said she had her living there as long as she lived; that it would fall to her daughter Anna after her death, and to the Zooks if her daughter Anna did not live. And followed this by evidence of the sale by the sheriff, of her supposed life-estate in this land, and the buying of it in by the defendant.</p> <p>The court below (Gordon, President) charged the jury as follows: — •.</p> <p>“ The question is on the title of John Long, under the statute of limitations, by virtue of the possession of Christina Long, under whom he claims and his own. Christina Long held and possessed in her own right, under the will of Christian Long, until her daughter Anna attained the age of twenty-one years. After that she held adversely to Anna, if her possession can, under the circumstances, be regarded as adverse; for it is proved by Jacob Ochs, that she always claimed a life-estate in this land, in the lifetime of Anna. After the death of Anna, the possession of Christina Long remained as before, the persons entitled by law to the possession being Barbara Long and the children of Anna Zook, until Barbara’s death, when the right of possession descended with the property to the children of Anna Zook. Anna, the daughter of John Long, who was living at the date of Christian Long’s will, in 1796, must have been at age at least as early as 1817; and Christina Long ha'ving lived on the land until 1839, when she died in possession, her title was complete under the statute of limitations, if her possession were such as to give title under that statute, and it would be competent for John Long to defend his possession against the plaintiff, under the title of Christina thus acquired. Was the possession of Christina Long of the character which the law recognises as capable of conferring title under the statute? Was it adverse possession ? We think her possession was in subordination to the title of her daughter Anna Long, until Anna attained the age of twenty-one years, and that being thus in privity with the title of the rightful owner, it is necessary for her and those claiming under her, to show that the character of her possession was changed subsequently to that period, and became hostile to the owner, by some unequivocal act or acts, different from the mere occupation and cultivation of the land, as she had theretofore occupied and cultivated it, or by an open and explicit disavowal and disclaimer of holding under that title, and an assertion of title in herself, communicated to those having title and the right of possession. Whether any such acts or such disavowal and disclaimer have been established by the evidence laid before the court and jury, is for your decision, with the other questions of fact which have arisen in the cause. It is in evidence that Christina Long declared that, as long as she lived, she had a right to it; but it does not appear that this declaration was ever communicated to any person whose rights or interests could be affected by it. In the opinion of the court, such a declaration on the part of Christina Long, even if communicated to those interested in disputing it, does not amount to an assertion of any title, that can be acquired under the statute of limitations, and that it is of itself such a qualification of her possession as would prevent her from acquiring title under it. It is easy to imagine many reasons which might induce a party having title, and the right of possession, to abstain from the immediate prosecution of it, against a person claiming to hold for life merely, which would have no weight in a case where the tenant made no such qualification of his claim or possessions. To this opinion of the court, the defendants, by their counsel, except, and request that the same may be filed of record.”</p> <p>Yerdict and judgment thereupon for the plaintiff, for one undivided sixth part of the land in the writ mentioned.</p> <p>In this court the following errors were assigned:—</p> <p>1. The court erred in charging the jury that, after the death of Anna, the possession of Christina Long remained as before.</p> <p>2. In charging the jury that, we think her possession was in subordination to the title of her daughter Anna Long, until Anna attained the age of twenty-one years, and that being thus in privity with the title of the rightful owner, it is necessary for her and those claiming under her, to show that the character of her possession was changed subsequently to that period, and became hostile to the owner by some unequivocal act or acts, different from the mere occupation and cultivation of the land, as she had theretofore occupied and cultivated it, or by an open and explicit disavowal and disclaimer of holding under that title, and an assertion of title in herself, communicated to those having title and the right of possession.</p> <p>3. In charging the jury that Christina Long declared, that as long as she lived she had a right to it, but it does not appear that this declaration was ever communicated to any person whose rights or interests could be affected by it. In the opinion of the court, such a declaration on the part of Christina Long, even if communicated to those interested in disputing it, does not amount to an assertion of any title that can be acquired by the statute of limitations, and that it is of itself such a qualification of her possession as would prevent her from acquiring title under it.</p> <p>4. In charging the jury that, it is easy to imagine many reasons which might induce a party having title and the right of possession, to abstain from the immediate prosecution of it, against a person claiming to hold for life merely, which would have no weight in a case where the tenant made no such qualification of his claim or prosecution.</p> <p>5. The court erred in withdrawing the consideration of the facts from the jury, and in not giving them proper instructions as to what adverse possession is.</p>

Writ of error to the Common Pleas of Berks. June 21. This was an application to the court below for a writ of mandamus, based upon a petition signed by Charles Bitchthorn and Andrew M. Dehart, setting forth, that by the 9th section of an act of Assembly, passed March 16, 1847, the select and common councils of the city of Reading were empowered to open and keep open the streets, lanes, and alleys of said city; that there was a street in said city, called South 3d street,…

<p>Error to the Common Pleas of Berks.</p> <p>June 22. This was a case stated in the court below, in which the commissioners were the plaintiffs, and the company was the defendant. The case was presented in these terms:—</p> <p>“The assessor of South-West Ward, in the borough, now city, of Reading, has returned for taxation for state and county levies, as the property of the defendant, at the valuation of $9,000, two contiguous three-story brick houses with back buildings to each, and about two acres of ground appurtenant; one of the said houses is occupied by Samuel Griscom, the superintendent of said canal, and the other occupied by Richard Wilkins, the collector of tolls for the said company — each of the said named persons having their respective offices and families in the said buildings. These buildings are situated on Front street, the ground running back on the said canal, and between Franklin and Ohesnut streets, in the said city. At the locks above, immediately on the canal, and about 300 or 400 feet north of those two houses, the company have a two-storied stone house occupied by the lock-tender, at the foot of Franklin street.</p> <p>“ The question for the decision of the court is, whether those three-storied houses, occupied by the superintendent and collector of the said company, or either of them, with their appurtenances, are liable to taxation for county and state purposes, under the several acts of Assembly of this Commonwealth, for that purpose. If the court should be of opinion that they, or either of them, are so liable, then judgment to be entered for the plaintiffs; and if not, then judgment to be entered for the defendant, with costs.”</p> <p>The court below gave judgment for the plaintiffs. In this court the following errors were assigned:—</p> <p>1. The court erred in rendering judgment, that the property set out in the case stated was subject to taxation, and in rendering judgment generally for the plaintiffs.</p> <p>2. The court erred in deciding that any part of the property set out in the case stated was subject to taxation, and in rendering judgment for the plaintiffs.</p>

<p>1. Although a judgment by default in ejectment, without affidavit of the service of the summons, is erroneous; yet if such judgment be tahen without such affidavit, where a summons has been returned served, the defendant will be bound by it after the lapse of the time allowed for suing out a writ of error, which in such, case will run from the judgment.</p> <p>2. Where the record is legally removed upon a writ of error that is out of time, the proper course is not to quash the writ, but to disregard the assignment of errors.</p>

<p>1. The clerk to the county commissioners is not forbidden by the law to be a purchaser of land sold at public sale by them for arrears of taxes. Nor is such purchase so opposed to the policy of the law as to make it iniquitous and void.</p> <p>2. Where A., being such clerk, and B., agreed that B. should buy at such sale for their joint benefit, each paying an equal share, which was done, the contract between them was executed by the deed to B.; and if policy made the purchase void as against the public or the former owner, it would be good as between A. and B.</p> <p>3. The statute of limitations is not a bar, where it was the duty of the defendant, standing in the relation of trustee to the plaintiff, to give him notice of the sale of the trust property, which he did not do.</p>

<p>Error to the Common Pleas of Tioga.</p> <p>The plaintiffs below, the trustees of Wm. Bingham’s estate, brought this action of ejectment against Simeon B. Lewis, to recover one hundred and sixty acres of land, being part of warrant No. 1835, surveyed 23d July, 1793, to Thomas M. Willing. The plaintiffs showed title in themselves. The defendant relied upon the statute of limitations. The possession which he showed, as to a portion of the land, one hundred acres, called the Baker tract, was begun in 1817, by Amos Baker, who had a survey made of one hundred acres, and chopped some three or four acres, but cleared no part of it. In the fall of 1820, Baker sold whatever interest he had in this tract to Lewis, th^ defendant, who went upon it, built a house and continued to reside thereon to the time of trial.</p> <p>At the time of the sale to him by Baker, or soon after, Lewis began to cut timber, and to clear, on a tract of some sixty acres, which lay between the Baker tract and the New York line, on the north. In 1824 he permitted one Schoonover to go into possession of this tract, who remained on it a year or two and built a house, when Lewis paid him for what he had done, and he moved off. Lewis then took and kept possession of it from that time forward.</p> <p>On 22d November, 1823, Lewis contracted with Mr. Jackson, the attorney of the plaintiffs, for the purchase of the one hundred acres at a certain price, “ being a part of No. 1835.”</p> <p>In 1834 John Goodspeed and Isaac H. Metcalf went on to warrant No. 1835, to survey it, preparatory to selling the unsold parts of it. They were employed by Dr. Bose, the general agent for the plaintiffs. The testimony of these witnesses upon the trial was as follows:—</p> <p>John Goodspeed, sworn. — I surveyed this lot in April, 1834 ; I found old lines and corners there; there was about one hundred acres in this lot, within the old survey; I think at that time Lewis told me he had bought the Schoonover improvement; I never knew of any other improvement Lewis had on this one hundred acres besides the Schoonover lot. I made this survey by direction of Doctor Bose; he was then said to be the agent of the Bingham trustees. We went to Lewis’s house; I told Mr. Lewis my business; I believe he went with us and showed us the lines; I could not say whether he went round with us or not.</p> <p>The Schoonover lot lies right north of Lewis’s lot, between that and the state line, and contains about sixty acres; I surveyed that lot the same day. I rather think the Schoonover lot had been run (said to have been by Tharp) before I run it; there were old lines; I made a draft of these lots. I know that I marked the Schoonover lot, for Mr. Lewis. It was stated in my notes as surveyed for him; I think he informed me that he had bought the possession of Schoonover, that he owned Mr. Schoonover’s possession; I believe Mr. .Lewis went to the corner of his lot on the north end, the north-east corner; I don’t think he went through to the state with us. In 1826 or 1827, Dr. Rose requested me to do the surveying for the Bingham estate; after that he gave me written instructions to make a re-survey of these lands, when I found a person in possession ; I put his name in the draft when it was surveyed for him; this was my instructions from Dr. Rose.</p> <p>Cross-examined. — Previous to 1834, I gave contracts for most of the lands I surveyed; I don’t recollect of Mr. Lewis refusing to take a contract, I don’t think I asked him to take a contract; the most of land I surveyed that year I did not give contracts for until I could make drafts of the lands surveyed; in the year 1834 some of the settlers I charged for surveying, and some not. My instructions from Dr. Rose were explicit; that if I found a man on land who refused to contract, I might survey it off for any other person who would take a contract. I cannot recollect the conversation with Mr. Lewis.</p> <p>Isaac H. Metcalf, sworn. — I was with Squire Goodspeed -when he surveyed this land. In the first place, Mr. Goodspeed told Mr. Lewis he came on to survey the old lot; I meant to say his business was to survey the old surveys. Lewis lived on the old lot; we went round the lot. When we got round his hundred acres, something was said about the Schoonover' lot; at first Lewis rather declined having it surveyed, he said he had it surveyed by Mr. Tharp, if I understood right;- Goodspeed told him he did not care about Tharp’s surveys, that Tharp was not employed to survey for Bingham’s trustees; Goodspeed told him he would just as leave he [Lewis] should have the land as anybody, but if he would not have it, he would sell it to anybody who would buy it. Pinally Lewis concluded to have it run, and we went on and run it.</p> <p>Cross-examined. — I think Goodspeed told Lewis that Dr. Rose did not charge anything for surveying their lots. I don’t recollect the conversation distinctly.</p> <p>The summons in this case was served 13th August, 1844.</p> <p>Upon the trial, the defendant contended that he had possession of the lands in controversy more than twenty-one years before suit brought; that he had his claim designated by metes and bounds; that his claim, thus designated, embraced all the lands in controversy, and that nothing had been done which in law destroyed his claim.</p> <p>The plaintiffs relied upon their legal title, and to defeat the defendant’s adverse possession relied upon the contract of 1823 for the purchase of the 100 acres, part of what the defendant now claims, as it did not, as they alleged, appear that there was anything to show that he then made any claim to more than the 100 acre lot.</p> <p>The plaintiffs also relied upon the entry made in 1834, hy Good-speed and Metcalf, as defeating all right of defendant under the statute of limitations.</p> <p>The court (Anthony, President) charged the jury as to the effect of the entry by Goodspeed and Metcalf, and of the agreement of 22d November, 1823, as follows :—</p> <p>“ The counsel for the plaintiffs in this suit allege that the evidence in the cause is sufficient to bar the defence of the defendant under the statute of limitations, on these several and distinct grounds:</p> <p>“ The first is, that the entry as proved by the witnesses is altogether sufficient; and the second is, that the agreement of November 22, 1823, signed by Lorentus Jackson, on behalf of the agent of the Bingham trustees, Doctor Rose, of the one part, and Simeon B. Lewis of the other part, is such recognition of the plaintiffs’ title, and such admission by defendant, as is abundantly sufficient.</p> <p>“1. As to the entry: In order to prevent the statute of limitations from running, the plaintiffs allege that the entry by John Goodspeed, in 1834, when he re-surveyed the lands in possession of Simeon B. Lewis, is sufficient to avoid the effect of the statute of limitations. In the case of Altemus v. Campbell, 9 W. 28, the court lay down the law that there must be an explicit declaration, or an act of notorious dominion, by which the claimant challenges the right of the occupant; or it cannot, perhaps, be better defined than by saying, that the entry must bear on the face of it an unequivocal intent to resume the actual possession. Admitting the facts as testified by Goodspeed and Metcalf, we are of opinion that the entry made by them on the land in April, 1834, is not sufficient to destroy the effects of the adverse possession of defendant under the statute of limitations.</p> <p>“ 2. As to the agreement: We have listened with much attention to the arguments of the counsel on this point, and are satisfied that, if we are to regard the decisions of the Supreme Court, and that we are bound to do so, no one will deny, as they must ultimately settle all questions of law respecting our land titles, they have, as we believe, established principles which govern in the present case. In Sailor v. Hertz-og, 2 Barr, 182, Chief Justice Gibson reviews the former decisions on this point, and comes to the conclusion that the admissions of a party are evidence to show that Ms possession is not adverse, and are to be received to destroy his adverse possession. In this case Simeon B. Lewis, the defendant, went into possession of the land about 1820, and began to clear and cultivate. The line had been run off so far as to include one hundred acres. On the 22d November, 1828, the following agreement is entered into and signed by Simeon B. Lewis:—</p> <p>“ ‘ This agreement, made this twenty-second day' of November, A. D. one thousand eight hundred and twenty-three, between Robert H. Rose, as attorney for the devisees of the late William Bingham, on the one part, and Simeon B. Lewis, of the county of Tioga, and state of Pennsylvania, of the other part, witnesseth, that on condition of an improvement and residence on it, the said Simeon B. Lewis is to be entitled to a lot of land which has been surveyed for him in the township of Westfield, in the county aforesaid, containing one hundred acres, for which he is to pay to the said devisees, at the rate of two dollars and fifty cents per acre, one-fifth on the 10th day of December, one thousand eight hundred and twenty-three, and one-fifth part, with the interest, annually after-wards, until the whole be paid, interest to commence at the time appointed for the first instalment to be paid; and in case the said Simeon B. Lewis shall abandon the said lot, or leave it untenanted for the term of six months, at any time previous to the payment of the first instalment, then the devisees of the late William Bingham, or their agent or attorney, shall have full power to sell or dispose of the said lot to any other person. Being a part of No. 1835.’</p> <p>‘Lorenttjs Jackson, [l. s.]</p> <p>Witness, As attorney of the devisees aforesaid.</p> <p>‘Benj. S. Lewis.’ t Simeon B. Lewis, [l. s.]</p> <p>“ Can this be considered in any other light than an admission that the title to the land is in the devisees of William Bingham, an acknowledgment that the one hundred acres was surveyed for him in Westfield township, that he was to pay the devisees two dollars and fifty cents per acre in instalments, that he was not to abandon the lot, &c., and if he did, the devisees should have full power to sell or dispose of said lot to any other person, it being a part of lot No. 1835.</p> <p>“ If Lewis claimed the lot adversely or in hostility to the title of Bingham’s devisees, would he authorize them to sell it to any other person ? would he, under his hand and seal, acknowledge that the lot had been surveyed for him, for which he was to pay two dollars and fifty cents per acre, when he claimed to hold the land as his own against any other persons ?</p> <p>“Nothing is said in the agreement about his improvement, his interest in the land, nothing about a compromise of doubtful claims; if this agreement then do not amount to an admission of the title of Bingham’s devisees, so far as to avoid the statute of limitations, I can hardly conceive what admission would have that effect.</p> <p>“ With regard to the lot called the Schoonover lot, lying between the one hundred acre lot and the New York state line, containing sixty acres, the testimony is somewhat conflicting and contradictory; and it will be a matter of fact for the jury to decide, whether there was an actual, continued, visible, notorious, distinct, and hostile possession of these sixty acres by Lewis and Schoonover for twenty-one years before this suit was brought in July 1844. If Lewis defined and marked or designated his boundaries, went into actual possession of this land, cleared, cultivated, and occupied the same, used the land for the usual purposes of farming during his possession, and then placed Schoonover on the land to cultivate and improve it, and Lewis, after Schoonover moved off, went on with his clearings and improvements, and continued to occupy it, and held actual adverse possession of this land for twenty-one years before suit was brought, then the plaintiffs cannot legally recover the Schoonover lot. But if, on the contrary, the jury are not satisfied from the evidence that Lewis and Schoonover have had such actual, continued, uninterrupted, hostile possession for twenty-one years before the ejectment was instituted in this case, then the plaintiffs have a right to recover this part of the land, as well as the residue.</p> <p>“It was not necessary for Simeon B. Lewis to reside on the sixty acres in order to hold it by twenty-one years’ adverse possession ; if he designated his boundaries, cleared, cultivated, and farmed the land for twenty-one years according to the usual course of husbandry, it was not necessary for him to live upon the sixty acres so as to hold by the statute of limitations.</p> <p>“ If Lewis had occupied the sixty acres previous to November 1823, when he agreed to purchase the one hundred acres, and continued afterwards to clear, cultivate, and occupy it twenty-one years, the purchase of the one hundred acres would not prevent him from holding the sixty acres by the statute of limitations.”</p> <p>The jury found a verdict for the plaintiffs for all the land in the writ mentioned, except the Schoonover tract, &c. Judgment.</p> <p>In this court the plaintiff in error assigned the following errors :—</p> <p>1. The court erred in taking the facts from the jury in regard to the entry of plaintiffs upon the land in dispute, and deciding upon them themselves.</p> <p>2. The court erred in instructing the jury, that the facts proved by Hoodspeed and Metcalf were not sufficient in law to destroy the effect of the adverse possession of defendant under the statute of limitations.</p> <p>3. The court erred in charging the jury that the contract of 22d November, 1823, by defendant, for the purchase of 100 acres, part of the land in his possession, did not prevent the defendant from holding the 60 acres by the statute of limitations.</p>

This was an action of assumpsit brought by the above-named plaintiffs below, and plaintiffs in error, for the use of John Elliot v. Charles Gudykunst, defendant below, and defendant in error. On the trial, twelve bills of exception were sealed for plaintiff, to the rejection and admission of testimony, and a number of ^assignments of error made to the charge of the court (Wilson, President). The jury found a verdict for the defendant.

<p>The lien of a debt upon a decedent’s land was extended to twelve years from bis death by bringing suit within the first seven years after that event, under the act of 1797; but if the land was not brought into execution within, it would vest in the heir absolutely at the expiration of, the twelve years.</p> <p>2. And a purchaser of it at sheriff’s sale, after the expiration of the twelve years, upon a proceeding begun within the first seven, would acquire no title.</p>

<p>1. When an attempt is made to use a written instrument in violation of an agreement accompanying its execution, to which attempt no moral guilt can be imputed, a legal delinquency attaches to the attempted abuse of the writing, sufficient to subject it to the influence of oral evidence.</p> <p>2. Posterior acts of the party, whose representatives attempt so to use such written instrument, are of themselves incompetent to affect the agreement between the parties, or to change the medium of proof. When such acts consisted of a will, and of a deed, the declarations of the party relative to them will be received, not as explanatory of the deed, or elucidatory of the will, but as corroborativo of the agreement.</p> <p>3. When notice of special matter is required to be given, and evidence of such matter is objected to on trial on the ground that notice of it has not been given, that objection should be specifically made, and noted in the court below, or it will not be sustained on error.</p> <p>4. Executors may tender a deed, executed by their testator in his lifetime, and directed by him in his will to be delivered after his death.</p>

<p>Error to the Common Pleas of Union.</p> <p>This was an action on the case by Ritter & Kline against Gundrum, the facts material to an understanding of which, are briefly these:—</p> <p>On the 24th January, 1842, Gundrum entered into certain articles of agreement with Ritter & Kline, by which “the said Gundrum agrees to sell a certain store or stock of goods, consisting of various kinds of goods, with plaster, coal, iron, &c., including all on the premises situate on the north side of the Pennsylvania Canal, on the Isle of Que, in Union county, unto the said George Kline and Lewis Ritter. The said stock of goods, &c., are to be sold at first cost, and carriage added for all and every article found on the premises. The boundary of premises will be described by referring to the article of agreement between II. W. Snyder, and Gundrum and Kingsbury, it being the premises now in possession of George Gundrum. The lower part of the premises consist of a dry dock and a lot of ground; the same is rented to Charles Moyer for one hundred and thirty dollars, including the dock and lot below the warehouse; there is a shop occupied by Mr. Gerhart, at the west end of the store, which is belonging to George Gundrum, and not to the property leased by H. W. Snyder. The payments are to be as follows: three thousand dollars on the first day of April next, and the balance as follows : five hundred dollars on the first day of August next, and the residue in two equal payments, say half on the first day of April, 1843, and the other half on the first day of October, 1843; all to bear interest from date, except the first payment. The said Kline & Ritter are to pay a yearly rent of two hundred dollars, unto the said Gundrum; the lease to continue three years from the first day of December last; all the rent of the dry dock and other buildings, are to be paid to said Kline & Ritter.”</p> <p>Ritter & Kline gave judgment-notes to Gundrum for the purchase-money, and entered into possession of the store, &e. On some of those notes judgment was entered.</p> <p>On the 19th January, 1848, the same parties entered into another article of agreement, of the following tenor:—</p> <p>“ The said Ritter & Kline agree to sell a certain store, dry goods, groceries, and everything in and about the premises, being leased to them in 1842, by the said above-named Gundrum, for the term of three years, this is to be in lieu of that agreement, the said Gundrum agrees to pay unto the said Ritter & Kline, the sum of six thousand dollars, to include all the boats, horses, mules, wagons, and everything belonging to said firm, which may be on the said premises or elsewhere; also a smoke-house on the lot of IT. W. Snyder; one shop at the north end of the store; one platform scale. The payments to be made as follows: four thousand dollars to be paid on the first day of Nov. 1843, and the residue in one year from the first day of May (1844). The said Gundrum may bring in as off-set against the first payment, for such debts as he may have become liable on the account of Ritter & Kline. The said Gundrum is to have possession on the nineteenth day of January, 1843. It is also understood that the said Gundrum is to have all the lumber which they have at Hoffman’s Mills, in Lycoming county, at five dollars per thousand feet — and if delivered at the canal, they are to pay six dollars and fifty cents per thousand. Also one wagon, one buggy, and one set of harness; all of which the said Gundrum shall apply to paying their debts in the city of Philadelphia, and other places, and if anything left, to return the same to Ritter & Kline.”</p> <p>Gundrum took possession of the store again under this second article; but the parties afterwards differing as to its construction, and as to various matters of account between them, the present action was instituted.</p> <p>The plaintiffs, having arbitrated the case, obtained an award for $4,380.70, which was filed 21st May, 1846, on which day was entered of record an assignment by the plaintiffs of one-third of the amount so awarded in their favour, to Messrs. Swineford & Miller, of another third to Messrs. Maynard & Watson, and of the remainder to Mr. Littel. On the following day the defendant appealed.</p> <p>Upon the trial the jury found for the defendant $172.70.</p> <p>As to the construction of the second article, of 19th January, 1848, the court below (Wilson, President) charged as follows: — '■</p> <p>“ The purchase of the store by Ritter & Kline, is the first of the dealings, that we have evidence of, between these parties, and with it commence their difficulties. The inventory of the goods taken under the article of 24th January, 1842, with the amounts of the items footed up, amount to $10,010.89, to which is an entry of credit by bonds $10,000, leaving a balance of $10.89 charged in day book. The defendant shows obligations as follows</p> <p>One dated 7 Feb., 1848, payable 1 Nov., 1848, for $1,000.00</p> <p>“ “ “ “ 1 April, 1843, 1,000.00</p> <p>1,000.00</p> <p>1,000.00</p> <p>1,000.00</p> <p>1 August, 1843, 500.00</p> <p>October, 1834, 1,000.00</p> <p>u 250.00</p> <p>5 Feb., 1842, 2 months after date, 3.000. 00</p> <p>7 “ 1 October, 1843, 1.000. 00</p> <p>23 April, 1843, 20 days after date, 350.00</p> <p>$11,100.00</p> <p>“ The plaintiffs contend that the whole of the defendant’s claim on these bonds, or the whole of the residue due upon them, was swept away by the agreement, of the 19th January, 1843, and refer particularly to the clause in the agreement: ‘ The said Ritter & Kline agree to sell a certain store, dry goods, groceries, and everything about the premises, being leased to them in 1842, by the said above-named Gundrum, for the term of three years, this to he in lieu of that agreement.’ To be in lieu of, means to be in the place of; and had this latter agreement been one not changing the positions of the parties to the former agreement in the relation of seller and purchaser, debtor and creditor, the terms used, 1 this to be in lieu of that agreement,’ could fairly be applied as the plaintiffs contend for; but that agreement was consummated so far as the amount they were to pay for their purchase was concerned, by Ritter & Kline taking possession of their purchase, and in payment thereof executing bonds and notes to Gundrum. By this last agreement, Gundrum takes back the store. No mention is made whatever of the bonds and the notes taken in payment of it. The defendant makes no provision for his retaining them out of the purchase-money; neither do Ritter & Kline stipulate for their cancellation, or their being given up to them. The defendant retains them in his possession, or all but one, which is produced on notice by plaintiffs. Tbe plaintiffs give tbe possession of tbe store and what they sell to him, without exacting the re-delivery of these bonds and notes. And in this sale the parties agree on a price the defendant is to pay for the property he purchases in and about the store-room and premises, and all their property (except the lumber), for $6,000. The agreement provides that against the first payment the defendant may bring in as a set-off, such debts as he may have become liable for on account of Ritter & Kline, and shall apply of the amount he is to pay for the lumber to the payment of their debts in the city and elsewhere, and if anything is left, to return the same to Ritter & Kline. Although it says he is to return the balance to Ritter & Kline, it would not prevent the defendant retaining out of it any legal demand he had against them. The plaintiffs appear to have had in view the payment of their creditors generally, and that out of the first money due on their sale, Gundrum might set off such of their debts as he had become liable for, or guarantied the payment of, for the plaintiffs. And we cannot, as a question of law, say, that by the agreement of the 19th January, 1843, these obligations were cancelled or swept away.</p> <p>“ The plaintiffs say, that the conduct of the parties, subsequent to the agreement, in connexion with the fact of their not being noticed in the agreement, shows that they were cancelled or settled and that the grain which they furnished to Gundrum while they were in business, and the $2,500 bond Kline had on Bryan, assigned in part payment of their bonds to Gundrum, furnished the consideration for the settlement of these obligations. But if this was so, why would not the bonds have been given up ? The plaintiffs’ allegation is, that they were, and that they were surreptitiously procured by Gundrum subsequently — that Gundrum fraudulently obtained them. The evidence, if proved, should not be such as to leave the question to presumption; fraud is not to be presumed — it may be inferred from facts and circumstances proven, but the facts and circumstances should be such as to show the fraud beyond mere presumption.</p> <p>“ The question presented in this shape on the claims for these bonds is for you. Is there any proof to satisfy you that the parties settled this claim on the bonds ? If there is not, exclusive of the agreement, the question turns on the construction of the article of agreement alone, which is a question of law for us; and the face of the agreement and its terms do not authorize the construction contended for by the plaintiffs’ counsel, that by it this claim on these obligations was settled.”</p> <p>The principal exception to the charge was founded on the construction which the court put upon those words of the second article of agreement — “ this to be in lieu of that agreement” — as not embracing the first articles, and so affecting the cancellation of the outstanding judgment-bills (as they were called) given by Ritter & Kline under the first articles. As to the other exceptions noticed by the Supreme Court, whatever facts may be involved in them are sufficiently stated in the opinion delivered here.</p>

<p>Certiorari to the Quarter Sessions of Union.</p> <p>July 20. The facts involved in this case are sufficiently stated in the opinion of this court.</p>

Writ of error to the Common Pleas of Union. July 23. This was an action of ejectment, in which William Byers was the plaintiff, and Jonathan Hoch was the defendant.

<p>Error to the Common Pleas of Union.</p> <p>July 26. This was a scire facias to revive a judgment against a terre-tenant, in which John C. Watson, for the use of David Stitzer, was plaintiff, and Samuel Zerns, the terre-tenant, was defendant. The facts were these:—</p> <p>On the 9th September, 1842, one Henry Roush entered into articles of agreement with Zerns to sell to him a certain tract of land. On the 14th January, 1848, Watson obtained a judgment against Roush and David Stitzer, who was security of Roush, by confession, in the penal sum of $3,000, to indemnify Watson against certain encumbrances, not material to this case. On the 20th Januáry, 1843, six days after the confession of the judgment to Watson, Roush conveyed the land, mentioned in the articles, to Zerns.</p> <p>The condition of the judgment to indemnify Watson having been broken, he issued a scire facias thereon, alleging breaches, &c., to January Term, 1844, but without notice to Zerns, and in February following, Roush and Stitzer confessed judgment on this scire facias for'$1,226.90. This judgment was paid out of the appropriation of the proceeds of the sale of the real estate of Stitzer, and satisfaction was entered by Watson. This judgment was afterwards marked by Watson’s attorney to the use of Stitzer, and thereupon this scire facias was issued to April Term, 1846, and served upon Zerns alone. This scire facias recites the judgment confessed by Roush and Stitzer on the scire facias to January Term, 1844.</p> <p>Under the direction of the court below, the jury found a verdict for the plaintiff.</p>

<p>1. Where the title to a chattel is in issue between an alleged bailee of-it for use without pay, and one who claims under a judicial sale of it as the property of the bailee, the bailor is not a competent witness for the bailee.</p> <p>2. Where a chattel, capable of consumption, is left with the defendant by a purchaser at a judicial sale, if left with him for his own use and consumption, or the same chattel is not to be returned to the lender, it will be liable to execution as the property of the defendant; but if left without any agreement that the defendant is to have it for his own use and consumption, it will not be so liable.</p> <p>3. Allowing one to use a wagon and horse and a barn for getting in and threshing grain, the title to which, is in dispute, will not implicate the person allowing it a3 a trespasser.</p>

July 26. One Nathan Mitchill executed a mortgage to Platt Knox, to secure the payment of $2,626. On the 11th January,-1848, Platt Knox assigned the mortgage to his brother, A. P. Knox. On the 12th January, 1848, foreign attachments at the suit of Moatz & Harper, and of John Moatz, were served upon Mitchill, as garnishee of Platt Knox. A scire facias had been sued out upon the mortgage to December 7, 1847, on which judgment was obtained on 15th February, 1848.

<p>Certiorari to the Quarter Sessions of Union.</p> <p>July 26. Commissioners were appointed upon the petition of citizens of Union and West Buffalo townships, to inquire into the propriety of erecting a new township out of parts of those townships. The commissioners reported that they had viewed the townships mentioned in the order of view, and the parts proposed to be erected into a new township, and that they did find certain boundaries, describing them, and that they were of opinion that the territory, included within the lines marked red in the diagram annexed to their report, ought to be erected into a separate township, to be called Limestone. To this report exceptions were taken, which were overruled in the court below, and the report of the commissioners was approved and confirmed. This certiorari was then sued out; and, among other errors assigned in this court, was one that “ the commissioners do not report whether they have made inquiry into the propriety of erecting the said new township.”</p>

<p>Appeal by Albert S. Cummings from the decree of the Orphans’ Court of Union.</p> <p>July 27. Albert S. Cummings, intermarried with Louisa, a daughter of Peter Richter, deceased, presented a petition to the court below, representing “ That Henry Hilbish, who is the testamentary guardian of said Louisa, has filed his account, which has been confirmed absolutely at the present term, by which it appears that the balance in his hands is as follows:—</p> <p>Balance in money $1435.74</p> <p>A house and lot for which the guardian holds the title papers, amounting to 1560.00</p> <p>$2995.74</p> <p>“ The petitioner further represents, that, although the said Louisa is still in her minority, between the ages of fourteen and twenty-one years, he conceives that by the marriage, which has taken place since the death of her father, the relation of guardian and ward has been virtually dissolved, and that he is entitled, in virtue of his marital rights, to assume the care and management of his wife’s property, in such a way and manner as shall be most conducive to her interest, and under such restrictions as are provided by the laws of this Commonwealth. He further represents that the said Louisa is willing and desirous that -he should take charge of her property as aforesaid, as is witnessed by her written consent and acknowledgment herewith presented.</p> <p>“ The petitioner therefore prays the court to make a decree directing the money, and securities for money, and other personal property in the hands of the guardian, to be paid and transferred to him, for the use and benefit of his said wife; and also directing the said guardian to transfer the deeds and other papers relating to the real property to the said Louisa.”</p> <p>In connexion with the above petition was offered the written consent and acknowledgment of the wife, upon which the court endorsed as follows:—</p> <p>“ It being made to appear to the court that Louisa Cummings is a minor, the acknowledgment offered above is refused to be taken.”</p> <p>And on the same day the court refused to make the order requested, and refused to decree the money, &c., to the petitioner.</p> <p>Mr. Cummings took an appeal, and assigned for error that the court erred in refusing to decree according to the prayer of the petitioners.</p>

July 27. A. S. Lewis and John Paul executed a joint and several single bill in favour of William Cameron for $200, payable one year after date. Cameron brought an action of debt upon this instrument against Paul, which he arbitrated, and obtained an award in his favour for $224.46, from which Paul appealed. When the case came on to be tried in court, Paul offered Lewis, his co-obligor, as a witness, to prove some partial payments to Cameron, at the same time releasing Lewis.

<p>In an action on the case for deceit in the sale of a patent, which had never been issued, the defendant may prove that before the execution of the contract, ■which expressly affirmed the existence of the patent, he told the plaintiff he had no patent yet for the machine; and may prove what efforts he made, before and after the sale, to procure the patent.</p>

<p>Where the demand before the justice was within his jurisdiction, but upon appeal a declaration was filedfor a sum beyond that, it was not error in the court below to refuse to quash the appeal after an award of arbitrators.</p>

<p>1. A sheriff’s sale of mortgaged premises upon a judgment obtained for the interest due upon the mortgage-debt, which debt was payable in futuro, effects a virtual foreclosure of the mortgage, extinguishes the equity of redemption in the mortgagor, transfers the legal estate still in him, and divests the lien of the mortgage.</p> <p>2. The money raised by a sale on such judgment is brought into court attended by the lien of the mortgage, and the mortgagee will be entitled to it by virtue of that lien, in preference to creditors whose liens intervene between the mortgage and the judgment for interest thereon.</p> <p>3. The interest is part of the substance of the mortgage-debt — it belongs not to it by tacking — it is not an incident of the debt — but pro tanto it is the debt itself.</p>

A penalty and a condition are indispensable to constitute a recognisance ; hence where one was entered thus — “ A. B. enters special bail, &c., for stay of execution, &c., according to law,” the sum could not be supplied by reference to the debt and costs at the date of the entry, for it should have been large enough, to cover future costs ; nor for that purpose would the court assume that it had been taken in double the amount. Error to the Common Pleas of Lycoming.

<p>1. A vendee, -who is to pay the purchase-money, as itfalls due, in yearly'gales, in discharge of liens, and who is under no present liability to pay so much of the purchase-money as may be necessary to discharge the encumbrances -which threaten his vendor’s title, is not bound to do more than offer in good faith to apply as much as is due by him, in part satisfaction of the liens.</p> <p>2. If such vendee suffers the land to be sold by judicial process, with a clear conscience, and a stranger purchases, no blame is imputable to him — and the defence arising out of such a state of facts will go to the whole of the consideration ; for one is not bound to pay for what he has not received.</p>

<p>Error to tbe Common Pleas of Lycoming.</p> <p>July 16. This was an action on the case by Henry Robb, administrator, &c., against John E. Mann, to recover the sum of $388.33, with interest from 1st April, 1846, being the balance of the first instalment of purchase-money of a tract of land, sold by the plaintiff to the defendant under an order of sale of the Orphans’ Court, for the payment of debts of the decedent.</p> <p>By the conditions of sale the deed was to be delivered to the purchaser on the 1st April, 1846; but, in consequence of some exceptions being taken to the sale by a creditor, which were not disposed of until 12th May, when they were withdrawn, the deed was not ready for delivery at the day specified. It was tendered to Mann on the 16th July. He refused to accept it; he had, however, taken possession of the land on the 3d of April, and held it at the time of the tender and of the trial.</p> <p>At the time of the sale, 31st January, 1846, there was upon the land a distillery, the machinery and apparatus of which were taken away by one Manville, between the day of sale and the 1st of April, 1846, under a claim of right by one Hill. It appeared that the decedent, Shoemaker, on the 8th July, 1840, entered into an article of agreement with Hill, for the sale of this land, in consideration of $300 paid down; $1,000 to be paid April 1, 1841; and $2,000 April 1,1845; deed to be given on payment of the second sum, and bond and mortgage for the last. Hill went into possession, erected a stone distillery thereon, and furnished it with the usual machinery, &c. After the death of Shoemaker, on the 29th September, 1845, Hill, by an endorsement under his hand and seal on the article, stating that he was unable to pay the balance of the purchase-money, released to the estate of Jacob Shoemaker, “ all right, title, interest, claim, and demand whatsoever, which I now have, or hereafter might have of and to the same (within premises), by virtue of the within article of agreement, and do agree to surrender up the possession of the same on the 1st of April next to H. Robb, administrator, or to such person as he shall sell the same to.”</p> <p>On the trial, the defendant gave in evidence the advertisement of sale of 100 acres, wherein the words “stone distillery” were used in describing the improvements; and having proved, that a few days before April 1, 1846, John F. Manville, by authority of Jacob Hill, who claimed it as .his property, removed the machinery from the distillery, contended for a deduction to the amount of the value thereof. He also alleged a promise by plaintiff, made April 1, 1846, at which time $100 were paid, to deliver him the apparatus, or make compensation for it. This evidence was given under exceptions thereto by plaintiff. The plaintiff produced the conditions of sale describing the property as “ a farm and appurtenances,” and gave evidence to prove, that he had given notice at the sale, that he was not selling the machinery, and that Manville claimed it.</p> <p>. It appeared by some of the witnesses that Mann was in possession of the property before the 1st of April, 1846, and that he was present when the machinery was taken away by Manville, and assisted him to load the boiler, without objection.</p> <p>Some other facts appear in the following extract from the charge of President Anthony :—</p> <p>“ From the testimony it would appear, that a difficulty occurred in relation to the machinery of the distillery prior to April 1846, and that Mann, the defendant, was not willing to pay the balance of the first instalment till he should get the apparatus, &c. Owing to an exception having been filed to the confirmation of the sale by the administrator, at the February Tei;m, he was not able to make a deed on 1st April, 1846, that the purchaser ivas not bound 'to comply on his part if he had seen proper to refuse. It seems, however, that the administrator promised, if the defendant would pay him $100 more, in addition to the sum already paid, he (the administrator) -would not ask Mann for any more money till he would get the stills for Mann; or, according to another witness, Mann told Robb he would pay no more money unless Robb would make good to him the utensils in the distillery, and that Robb replied, If you will let me have $100,1 will have the utensils brought back, or make you compensation for them. Relying on the promise of Robb, $100 were paid by Mann to him, and on the 3d April, 1846, he took possession of the farm. On 12th May, 1846, the court confirmed the sale absolutely, and, afterwards, a deed was made and tendered to the defendant, and the balance of the purchase-money demanded. Although Mann might have objected before the court to the confirmation of the sale, because the machinery and apparatus were taken from the premises, yet was he not prevented from doing so by the promises made by Robb, that they should be brought back, or compensation be made for them ? Mann had no right to the possession of the farm till the 1st April, 1846: the stills, &c., were taken away previously thereto. Had he power to bring suit against the person who took them off, till April 1, 1846 ? We thinlc not. The plaintiff agreed to deliver him possession on that day. Had not the plaintiff possession, or quasi possession, by virtue of the decree and order of sale, so as to prevent the destruction of the property, or any trespasser from taking a portion of it away? Both parties, if the evidence is believed, seem to have taken that view of the property, or, otherwise, the agreement of Robb, that possession should be delivered to Mann on 1st April, 1846, and the promise made cannot be satisfactorily accounted for. We have, therefore, come to the conclusion that the plaintiff ought to be held to his promise, if the jury believe it was made, so far as to permit the defendant to deduct the value of the machinery and apparatus of the distillery from the balance of the purchase-money due on 1st April, 1846.”</p> <p>In answer to points, the court charged, 1. That, as the defendant took possession of the farm on 3d April, 1846, the plaintiff was not estopped from bringing this suit. 2. That the distillery and apparatus were part of the realty, and passed by the sale to the purchaser.</p> <p>3. That, unless the jury are satisfied, from the evidence, that the administrator, at the time of the sale, changed the terms thereof so as to exclude the apparatus of the still-house from the sale, the advertisement, in connexion with the written conditions of sale, would control as to the property sold. The administrator may .change the conditions of sale, at the time the sale is being made, but unless the person who buys the property is distinctly informed of such change and assents thereto, and the property is struck down to him, with a full knowledge of such change of the terms and conditions of sale, he would not be bound thereby, and the advertisement and written conditions of sale, promulgated at and before the sale, would govern.</p> <p>4. That, unless the terms and conditions of sale were changed by the administrator at the time of making the sale by him, as stated in our last answer, with full knowledge of such change and assent thereto by Mann, the distillery and apparatus ought to have been delivered by the plaintiff to the defendant, on 1st April, 1846, agreeably' to the terms of sale, as set forth in the written conditions thereof; and as they were removed from the premises after the sale and before 1st April, 1846, in violation of the terms and conditions of sale, and were not delivered by the plaintiff to the defendant, the said defendant is entitled to have the value deducted from the purchase-money due when the present suit was brought. What that deduction ought to be, the jury will decide from all the evidence in the cause.</p> <p>The verdict was favourable to the defendant.</p>

<p>Error to the Common Pleas of Lycoming.</p> <p>This was an action of debt on a single bill, brought by the administratrix of John A. Stewart, to whom or whose order the bill was made payable, against Stevenson, the maker. The bill was dated 6 th July, 1844. The defendant pleaded non est factum, alleging that the hill was a forgery.</p> <p>The plaintiff called several witnesses, who testified that they would take the signature to the bill to be the handwriting of the defendant; and the bill was read in evidence to the jury.</p> <p>The defendant then -introduced several witnesses to prove that he was not in the county at the date of the single bill; he proved and gave in evidence several receipts and letters, to which his signature was attached and undisputed, for the jury to compare with the alleged signature to the bill; and also proved, that this single bill was not exhibited by the administratrix to the appraisers of the estate of the deceased; and rested.</p> <p>The plaintiff then called John Cook, and proposed to ask the witness whether the defendant asked the witness to loan him money in the year 1844, and to follow this with testimony that defendant wanted to borrow money both before and after the date of this single bill.</p> <p>The counsel for defendant objected to the evidence offered. The court overruled the objection, and admitted the evidence, and sealed a bill for defendant.</p> <p>The witness then went on to state that he had loaned defendant money; that he loaned him $40, and took his note when he wAs in Philadelphia in June 1844.</p> <p>The verdict was for the plaintiff.</p> <p>The error assigned in this court was, the admission of the evidence of Cook.</p>

July 18. This case came before the Supreme Court upon several assignments of error, and the judgment below was reversed, and a ven. fae. de novo awarded, because President Woodward in his charge to the jury permitted that body to. pass upon a fact, of which this court conceived there was no evidence.

July 11. Paxton, who was the plaintiff below, sold and conveyed to Harrier by deed of 5th May, 1882, a tract of 447 acres, and on the same day took from him a mortgage upon that land, to secure $1,100 of the purchase-money. The mortgage was recorded on the 30th of the same month.

Writ of error to the Common Pleas of Columbia. July 11. This was an action on the case for breach of promise of marriage, in which Fanny Stratton was the plaintiff, and Paul R. Baldy was the defendant.

<p>Ekkor to the Common Pleas of Columbia.</p> <p>This was a feigned issue, directed by the Court of Common Pleas of Columbia county. On the 10th May, 1838, Peter Baldy obtained a judgment against Thomas Clark, in the said court, for $509.37. At that time Clark was seised in fee of a house and lot in Danville, on which this judgment became a lien. On the 22d September, 1838, Clark agreed to sell the house and lot to John Gearhart, the plaintiff in error, and George B. Brow-n, for $1,800, and on the 3d January, 1839, he and his wife executed a deed to them for the same. This judgment of Peter Baldy was revived by sei. fa. and al. soi. fa. issued against Clark, with notice to Gear-hart and Brown, as ter re-tenants, on the 19 th August, 1841, and again on 23d April, 1845. A. & J. B. Stevenson obtained judgment against George B. Brown, on the 19th November, 1841, for $300.90. Hart, Cummings & Hart obtained judgment against him on the 22d November, 1841, for $589.07, and Jordan & Brothers, the defendants in error, obtained judgment against him 7th January, 1842, for $495.30. Brown afterwards became bankrupt, and on the 5th October, 1845, received his certificate of discharge. Writs of sei. fa. were issued on these judgments against Brown, who pleaded his discharge as a bankrupt, and judgment “ de terris” was entered in each case on the 24th April, 1845. Hart, Cummings & Hart issued a fi. fa. on their judgment, which was “levied on an undivided moiety or half part of a certain piece of ground in Danville, seized, &c., as the property of George B. Brown.” A vend. ex. then issued, by virtue of which the sheriff, on the 1st March, 1847, sold Brown’s moiety of the said house and lot for $2,050, which was applied to the payment of said judgments of Peter Baldy, A. & J. B. Stevenson, and Hart, Cummings & Hart, and in part payment of the judgment of Jordan & Brothers, leaving part unsatisfied. At April Term, 1847, Jordan & Brothers presented their petition to the court, praying the court to decree, in. the distribution of the proceeds of said sale, that only one-half of Baldy’s judgment against Clark be paid out of the proceeds of the said sale, or if the whole should be paid out of the same, that they, the petitioners, might be subrogated to the rights of Peter Baldy, under his judgment against the moiety of the said lot remaining unsold, to the extent of one-half of the said judgment. On this petition the court granted a rule to show cause why the prayer of the petitioners should not he granted, which rule was served on Gearhart, who filed an answer, alleging that the facts set forth in said petition, if true, were not sufficient in law or equity to entitle the petitioners to such subrogation; and further, that at the time of the purchase of the said lot from Clarke, he (Gearhart) and Brown were partners in the storekeeping business; that the same was paid for out of the partnership funds, and that, on the settlement of the partnership concerns, Brown was largely, and to an amount exceeding the one-half of the said judgment, indebted to the said Gearhart — which indebtedness Brown had never satisfied; that Brown had been discharged as a bankrupt; and praying an issue, &c. Jordan & Brothers denied the facts set forth in the answer, and also prayed an issue. The court directed an issue to be formed: Jordan & Brothers to be plaintiffs, and John Gearhart defendant. By agreement of the parties filed, it was agreed that the cause be tried upon its merits, without form, and that the petition and answer be taken in place of a feigned issue; either party to be entitled to take out a writ of error. The cause came on for trial at August Term, 1847, and after the jury were sworn, one of the jurors stated that he was a relative of John Gearhart; that Gear-hart was married to the juror’s aunt; whereupon, before any testimony was given, or the cause was opened on the part of the plaintiffs, the counsel for the plaintiffs challenged the juror, alleging that they did not know of the relationship of said juror to defendant, till the juror made it known in open court. The court sustained the challenge of the juror, and directed another to be called in his stead, reserving the right of the defendant below to challenge peremptorily, as he waived his former challenge. Defendant below excepted to the discharge of the juror, and the court sealed a bill, which is the first error assigned. The plaintiffs below then gave in evidence all the before-mentioned judgments, and revivals of the same; the fi. fa and vend. ex. issued in the judgment of Hart, Cummings & Hart, and the returns showing the levy and sale of Brown’s moiety of the house and lot for $2,050; also the agreement dated 22d September, 1838, between Clark and Gearhart and Brown, for the purchase of the house and lot, and the deed of Clark and wife to Gearhart and Brown, dated 3d January, 1839. They then offered in evidence an agreement, dated 22d February, 1845, between Gearhart and Brown, for the sale to Brown of Gearhart’s moiety of said house and lot. This was objected to by the defendant below as irrelevant, but was admitted by the court, who sealed a bill, which is the second error assigned.</p> <p>The agreement of the 22d February, 1845, was of the following effect:—</p> <p>“The said John Gearhart agrees and covenants, for himself, his heirs, &c., to and with the said George B. Brown, his heirs and assigns, by these presents, for the consideration hereinafter stated, to grant, bargain, and sell, and convey unto the said G. B. B., his heirs and assigns, in fee-simple, clear of all encumbrances (except one judgment in favour of Peter Baldy, hereinafter mentioned), all his interest (being the undivided half part or moiety) in all that certain lot of ground situated in the town of Danville, &c., being the same lot of ground which Thomas Clark and wife, by deed dated January 3d, 1839, conveyed to said J. G. and G. B. B. The said J. G. hereby agrees and covenants, to grant and convey to the said G. B. B., all his interest, &c., &c., of, in, to, or out of said lot, &c., unto the said George, his heirs and assigns: in consideration whereof, the said G. B. B., for himself, his heirs, &c., doth covenant and agree, to and with the said J. G., to pay him the sum of five hundred dollars, and also to take up, pay, and satisfy, a certain claim which Thomas Yorks has against said Brown and Gear-hart, being a note given by Gearhart, Brown, and Slater, on which judgment has been obtained against the said J. G., in Northumberland county, the amount of said claim being, &c.; also, to take up, pay, and satisfy, another certain note, which George Gearhart has and holds, against sáid J. G. and G. B. B., the amount of which, &c.; also, to pay and satisfy one other note, which Isaac Wolverton has and holds, against said Gearheart and Brown, the amount of which note, &c.; also, to take up, pay, and satisfy, a certain note which Peter Baldy has and holds, against the said J. G., the amount of which note, &c.; all of which notes and obligations are to be taken up, paid, and satisfied, by the said G. B. B., on or before the first day of April next; so that the said J. G. shall not be in any manner liable for the payment of the said several sums, or any part thereof, to the persons hereinbefore named, or any other person into whose hands the same may come. The said G. B. B. agrees that the judgment in favour of Peter Baldy against said Gearhart and Brown, entered in the Court of C. P. of Columbia county, and now existing as a lien, against the whole of said lot, shall remain, and that he will take the said undivided half part or moiety, hereby agreed to be conveyed to the said George, by the said John, subject to the payment of so much or such part of the said judgment in favour of said Baldy, as the interest or moiety belonging to the said Gearhart was or is bound for, by vir•tue of the said judgment, so entered up against the whole lot as aforesaid; it is also agreed between the parties, that the said G. B. B. shall have and receive for his own use, the amount of rents due and owing, or to become due from J. P. Groves, for the use of that part of the dwelling-house occupied by said Groves, since the first day of April last past; the deed for the premises to be made and delivered, on the first day of April next, upon the payment of, &c., and taking up, satisfying, and paying the before-mentioned several notes and obligations, amounting to about three hundred and sixty-seven dollars and fifty cents. In witness whereof,” &c.</p> <p>The plaintiffs rested here; and the defendant gave in evidence the certificate of the discharge of Brown, as a bankrupt, dated 8th October, 1848, and also rested.</p> <p>The court below (Anthony, President) charged the jury as follows:—</p> <p>“ This is a feigned issue, to try whether Peter Baldy’s judgment against Thomas Clark, revived against Gearhart and Brown, ought to be paid out of the proceeds of the sheriff’s sale of the real estate of George B. Brown, which is in court for distribution; and if it should thus be paid, whether Jordan & Brothers, the insolvent creditors of Brown and Gearhart, should be subrogated to the rights of Peter Baldy, by virtue of the judgment against Thomas Clark, revived against Gearhart and Brown. Although certain facts were asserted on the one hand, and denied on the other, which required an issue to be formed, to be determined by a jury; yet, as there are no disputed facts before you, and the evidence is all either matter of record, or in writing, the question becomes one of law, and relieves the jury from responsibility, and throws it upon the court. As the case will, in all probability, be removed to the Supreme Court for final adjudication, I have concluded to charge you, that upon all the facts, the defendants in the issue have a right to be subrogated, so that a moiety or half part of the judgment of Peter Baldy will enure to their use, against the interest of John Gearhart, in the house and lot on which Baldy’s judgment was a lien. I therefore instruct you, that, in the issue formed by the parties, your verdict should be for the plaintiffs.”</p> <p>Verdict and judgment for the plaintiffs.</p> <p>In this court the following assignment of errors was made:—</p> <p>1. The court erred in discharging one of the jurors, after the jury had been sworn, as mentioned in defendants’ first bill of exceptions.</p> <p>2. The court erred in admitting in evidence the article of agreement between John Gearhart and George B. Brown, as mentioned in defendants’ second bill of exceptions.</p> <p>3. The court erred in charging the jury, that their verdict should be for the plaintiffs.</p>

<p>Error to the Common Pleas of Northumberland.</p> <p>July 20. This was an action of ejectment, brought by John Murray against the executors of his sister, Mrs. M’Coy, and David Holden, the tenant in possession.</p> <p>It appeared from the evidence, that John Murray, on 19th April, 1834, took a conveyance to himself for the land in controversy from one Bolinger and another, paying them therefor the sum of $150. Murray, in fact, purchased this land for Mrs. M’Coy, who paid him $70 towards the price of it, and went into possession. The remainder being due and unpaid, this action was brought to enforce the payment of the purchase-money. Before bringing suit, the plaintiff tendered a deed to the executors, defendants, who treated this tender in the manner described in the opinion of this court. This deed being offered in evidence on the trial, was admitted under exception by the defendants. The jury rendered a verdict for the plaintiff, conditioned, that if the defendants pay by 1st April, 1845, to the plaintiff $80, with interest from 1st May, 1835, then judgment to be entered for the defendants.</p>

<p>1. A plaintiff in error cannot get behind a judgment, confessed by Mm and which he does not seek to impeach, in order to strike off an appeal from an award because of the insufficiency of the recognisance and of the sureties of the appellant.</p> <p>2. Objections to the recognisance on appeal, &c., must be taken in a reasonable time and before other steps are taken to prepare the case for trial, or they will be considered as waived.</p>

<p>The county treasurer at a tax-sale trusted a purchaser of several tracts, taking his due-bill for a balance to be paid at the acknowledgment of the deeds at the next court, with the amount of which he never charged himself in the settlement of his accounts. Eive years having passed, during which the balance was not paid, and the deeds, though acknowledged, were not delivered, the original owner of one of the tracts so sold, paid the taxes and costs thereon to the treasurer, who had sold the land, but who was then out of office, and took up the deed for his tract. Shortly after, the purchaser at the tax-sale, knowing what had been done by the original owner, paid the ex-treasurer the balance due on his due-bill. ITeld, that these proceedings neither divested the title of the original owner nor gave any title to the purchaser at the tax-sale. The Chiej? Justice and Mr. J. Bell dissenting.</p>

<p>Error to the Common Pleas of Northumberland.</p> <p>July 30. This was an action of partition by Charles Pleasants, plaintiff, against James and William Ross, defendants. The defendants pleaded non tenent insimul, and that they did not hold as set out in the declaration.</p> <p>Upon the trial, the plaintiff gave in evidence the record of an action of ejectment between himself and these defendants, in which he obtained a verdict and judgment for an undivided moiety of a certain tract of land, being the same of which he now sought to have partition made; and read the writ of partition and return, and rested. '</p> <p>The defendants offered to show, that they had a good and valid title to all the land of which partition was sought, and one superior to that of the plaintiff. The plaintiff objected to the evidence, and the court sustained his objection. ■</p> <p>They then offered to prove, that the plaintiff was not and never had been in the actual possession of the property in controversy, and that they, the defendants, were in the sole and exclusive actual adverse possession of it when the writ of partition issued. The plaintiff objected to this evidence as irrelevant, and as being an attempt to try the title and right of possession which had been decided in the ejectment. The court sustained the objection.</p> <p>The defendants asked the court to instruct the jury that the plaintiff was not entitled to recover, which the court (Anthony, President) refused to do, and instructed them that the plaintiff was so entitled.</p> <p>The verdict was .for the plaintiff.</p> <p>The rejection of the evidence offered by the defendants constituted the first — and the answer to the point propounded by them, the second — assignment of error here.</p>

Writs of certiorari, respectively, to the Quarter Sessions of Columbia and Northumberland. July 31. This was a proceeding instituted in the Courts of Quarter Sessions of Columbia and Northumberland, under § 26 of the road law of 1836, for the purpose of procuring a certain road to be laid out and opened upon and along the division line of those two counties.

<p>Where there are no debts of a testator, and his administrator c. test. a. has filed an account showing money in hand for distribution, an attachment will lie against the purchase-money of land, sold by the administrator, in the hands of the purchaser at the suit of a creditor of one of the legatees of the proceeds of that land.</p>

Writ of error to the Common Pleas of Northumberland. In the court below, this was an appeal from the judgment of a justice of the peace, in which Henry Keyser was the plaintiff and Henry Yoxtheimer was the defendant. Yoxtheimer had assumed to pay a certain judgment against Keyser, for a valuable consideration moving to him from the latter. Without having paid that judgment, Yoxtheimer went into bankruptcy and obtained a discharge.

<p>1. Testimony, in order to overcome a settlement made by tie parties themselves, and to establish a mistake therein, ought to be clear and satisfactory, and not encumbered with reasonable doubts.</p> <p>2. Delay in pursuing the remedy to rectify a mistake of this nature for nearly four years after it becomes known to the original party, and until after his death, is a circumstance in favour of the defendant.</p>

<p>Error to the District Court of Allegheny.</p> <p>Sept. 4. This was a case stated, in the nature of a special verdict in ejectment, in which the heirs of Isabella M’CulIough, claiming one-seventh of the land in controversy, were plaintiffs, and John Gilmore, the tenant in possession of the land, was defendant.</p> <p>Henry Huey, William Huey, and Isabella M’Cullough, the mother of the plaintiffs, were children of John Huey, deceased. Of John Huey’s children, seven are alive, or have died leaving descendants. In 1822 Henry Huey made his will and died. In that will he makes the following disposition of the land in controversy: Whereas I own a small tract of land in St. Clair township, I give and bequeath the rents, &c., of the same for ten years, to my niece ' R. C., on certain conditions specified; “ and after that term it is my will and desire that it fall into the possession of my brother William, laying this injunction and prohibition, not to leave the same to any but the legitimate heirs of his father’s family, at his decease.”</p> <p>William took possession of the land so devised, and at the time of his death it was occupied by Gilmore, his tenant. By William’s will this land, after a certain time, was to be sold, and the balance of the purchase-money, after paying certain bequests, was to be invested, and, after the death of his widow, was to be paid to the testator’s daughter.</p> <p>The court below entered judgment for the defendant, which action of the court was assigned for error.</p>

Sept. 4. This was a sei. fa. sur recognisance in Orphans’ Court, in which the Commonwealth, for the use of Jane Taylor’s administrator, was plaintiff. Plea, payment, with leave, &c. John Taylor died seised of certain tracts of land, and leaving a widow and eight children, one of whom died before this proceeding in partition, unmarried and intestate. Upon the petition of his son Robert, an inquest in partition was awarded, which appraised the land in four parcels.

<p>Although in replevin the ordinary rule is to give damages for the value of the goods taken, with interest on the value, yet, under peculiar circumstances of outrage, vexation, or oppression, the jury may go beyond it by giving exemplary damages, as in trespass.</p>

<p>1. An assignment of a debt to another for the benefit of a third person creates an express trust, which, though voluntary and in parol, chancery will act upon if it be properly declared.</p> <p>2. Where the assignee in such case was the vendee of land, who had paid part of the purchase, and the claim assigned was an action for damages against the vendor for breach of his contract to convey, it is not within the power of the trustee to compromise the equitable interest of the cestui que trust in that paid purchase-money by fraudulently permitting the vendee’s son to merge it as a credit, in procuring a conveyance of the land, whether for his own benefit, or for the use of his father.</p> <p>3. If the vendor should execute the covenant, the trust fund would not be thereby destroyed. Equity would follow it through every transmutation for the benefit of the cestui que trust.</p> <p>4. Where the equitable remedy is more convenient than that at law by the action for money had, &c., as where an account is requisite, even though the latter affords a full remedy, there can be no objection to having recourse to the former. But, where the trustee has duties to perform, other than those of mere disbursement, a technical and continuing trust is presented, which can only be satisfactorily treated in equity.</p> <p>5. The courts should lean to a liberal exercise of the equity powers conferred upon them, without encouraging technical niceties in the modes of procedure and forms of pleading.</p>

<p>1. A judgment, in effect in personam, from another state, treated as a nullity by the courts in this state when called on to enforce it by action, because of want of jurisdiction of the foreign tribunal over the persons of the defendants, cannot be used as a bar or defence to a suit brought against such defendants on the original contract.</p> <p>2. A foreign judgment against one of several joint owners of a steamboat is not a bar to an action against the others. The act of 6th April, 1830, “for the furtherance of justice between obligors and obligees, and other creditors and debtors,” is to be construed liberally.</p>

Sept. 5. William Morton brought suit against the administrators of his father, for work done for the decedent in his lifetime. He arbitrated the case, and obtained an award for $1,000, from which defendants ■ appealed, in person, without making oath or affirmation that it was not for the purpose of delay, &c., &c. The prothonotary did not require the oath.

<p>Error to tbe District Court of Allegheny.</p> <p>Sept. 5. This was an action of ejectment by Eliza Wilkins against John and William Anderson. It was brought to recover the one-half of lot No. 202, in the city of Pittsburgh.</p> <p>John Wilkins, the father of the plaintiff, died seised of this lot in 1809. By his will, proved 14th December of that year, he devised this lot to the plaintiff, who was then an infant, about five years old. William and Charles Wilkins were appointed by the will guardians of the younger children.</p> <p>To meet this case of the plaintiff, the defendants offered in evidence the record of a case, Joseph M’Clurg v. John Wilkins and one Eltonhead, No. 122, August Term, 1809, which was ejectment for one-half of the lot No. 202, not the half in controversy here. This case being on the trial list at January Term, 1817, was continued under peremptory rule for trial at the next term, the president of the court making at the time an entry upon the trial list of this tenor: “ On motion of Mr. Baldwin, Eliza Wilkins, who appears by Williams Wilkins, Esq., her guardian, substituted as defendant.” The case came on for trial at August Term, 1820, when from the minute book it appeared that the jury was sworn as between M’Olurg and John Wilkins's heirs, and found for the plaintiff, whereupon judgment, &c. The notice of taxation of costs was entitled as of a case between M’Olurg and Wilkins’s heirs, and was addressed to “William Robinson, one of the above defendants,” he being married to a daughter of John Wilkins. The various writs of execution, which were issued in the case for costs, were all directed against “ Eliza Wilkins, the heir of John Wilkins, Esq., deceased.” The half of the lot devised to and owned by Eliza Wilkins, and which was not the subject of this ejectment, was sold upon the last of these writs, for $320, to Wm. Robinson. The record of the ejectment, including the trial list, minute book, execution dockets, &c., containing these several matters, being offered, the plaintiff objected to their admission, on the ground that Eliza Wilkins was not a party to the record and the entry; that the entry on the trial list is not competent as part of the record ; that the verdict is rendered against the heirs of John Wilkins, the jury having been sworn in that form; that the judgment follows the verdict, and that if the name of Eliza Wilkins has been substituted, she being a devisee and not an heir, the judgment does not affect her, and the fi. fa. was without authority so far as related to her.</p> <p>The objection to the fi. fa. is that there is no judgment against Eliza Wilkins to found it on, and that attachment against the guardian is the proper remedy.</p> <p>The court overruled the objection, and the admission of this evidence constituted the plaintiff’s first bill of exceptions.</p> <p>The defendant then gave in evidence the sheriff’s deed to Robinson, dated April 22,1825, acknowledged July 26, 1825, and various subsequent conveyances under that title, by which the premises became vested in John P. Bakewell, whose heirs are the lessors of the Andersons.</p> <p>Also a receipt to the sheriff by Eliza Wilkins, the plaintiff, for the “ balance of the purchase-money of her lot sold by the sheriff to Wm. Robinson, on the judgment of Joseph M’Olurg,” dated April 26, 1826.</p> <p>And the record of an ejectment, 24, November Term, 1835, by the same plaintiff against Thomas Bakewell, the grantor of John P. Bakewell, which, in February 1836, resulted in a verdict and judgment for the defendant.</p> <p>They then proved the situation and use of the lot by the defendant, -that the plaintiff had resided in Allegheny City for twelve years before, and that in 1830 a tenant paid rent to Robinson for it, leaving it on notice from him. The defence rested.</p> <p>The plaintiff then offered to show that, at the time of the sheriff’s sale, the plaintiff lived during her minority in the family of Robinson, who was the administrator de bonis non of her father’s estate, and the husband of her eldest sister, and that he bought in trust for her, and that the defendants had notice of the trust.</p> <p>The defendants objected, and the court overruled the objection, but required that the proof of notice should be first given.</p> <p>The plaintiff, contending that the fact of Robinson being administrator, &e., and accepting service of the notice to tax costs in M’Clurg’s case was evidence of notice, offered, in connexion with that, the record of a judgment confessed by Robinson to Bake-well, dated the day after his deed to him of 3d January, 1834, in a penalty of $5,000 for assuring to Bakewell a complete and perfect title to the half lot conveyed; and also to prove that John Darragh, and not William Wilkins, was the guardian of the plaintiff. But the court, conceiving that all this did not prove notice to the defendants of the alleged trust, as was required, rejected the offer, to the admission of which it was introductory. This was the second bill of exceptions.</p> <p>The plaintiff then offered to show the appointment of Darragh, as guardian of plaintiff, to show that the purchasers under the judgment had notice that W. Wilkins was not the true guardian, though so stated on the minutes given in evidence. The offer was overruled, and this constituted the third bill of exceptions.</p> <p>These offers were renewed for rebutting the receipt, and were rejected; which constituted the fourth exception.</p> <p>The plaintiff’s counsel being about to address the jury, to prove fraud in Robinson, and trust by reason of his being administrator, and notice of this to the defendants, was stopped by the court, on the ground, that the evidence would justify no such inference, that there was no legal evidence of notice, and without that the other points could not avail. No exception was taken to the refusal of the court to permit him to proceed.</p> <p>The court below, Lowrie, J., charged the jury as follows:—</p> <p>“ The records of the Court of Common Pleas, and the conveyances given in evidence, have the effect of completely vesting the title of the plaintiff in the defendants. This would be otherwise if there was any evidence of fraud in Wm. Robinson, and notice of that to the subsequent purchasers. But there is no evidence before you from which either can be inferred.</p> <p>“ There is, however, another point in this case which is also conclusive of the title. That is, that on the sheriff’s sale of this lot, there was a surplus left in the sheriff’s hands, and that, after the plaintiff arrived at age, was received by her from the sheriff. By this she made herself a party to the sale, and elected to consider it valid. She cannot now, under the circumstances of this case, change the position into which she then put herself. It would be a waste of time for me to labour this point, when I find it so clearly enforced by Chief Justice Gibson in the cases of Shaw v. Anderson, 7 S. & R. 68, 64, and Martin v. Ives, 17 Ib. 364; and by Mr. Justice Coulter in Hamilton v. Hamilton, 4 Pa. Rep. 195. See also 3 Whart. 419; 1 Rawle, 171; 8 W. 280.</p> <p>“ And there is no injustice in this result. The suit in which the fi. fa. issued was carried on for her benefit; and if she did not pay the costs, it was but the ordinary course of justice that her property should be seized to enforce payment.</p> <p>“ If there is a hardship in it, it is a hardship that was occasioned a quarter of a century ago, and not by these defendants; and it would be gross dishonesty, to visit hardships arising from her own fault, or that of her friends, on the defendants.”</p> <p>The verdict was for the defendants. The errors assigned were 1. To the admission or rejection of the evidence in the four bills— 2. To the refusal of the court to permit the plaintiff’s counsel to address the jury. 3. To the charge in alleging the sufficiency of the title derived under the record of the Common Pleas. 4. In instructing the jury that the defendants were entitled to a verdict without referring the facts to them. 5. In what was said in relation to the receipt.</p>

Sept. 6. James Ross brought an action of trespass vi et armis before an alderman, against 1ST. W. Prestly, laying' his damages at $25. The alderman gave judgment for the plaintiff for $5 and costs, whereupon the defendant appealed. In the Common Pleas the plaintiff took a rule to show cause why this appeal should not he quashed at the appellant’s costs. This rule was made absolute. The defendant sued out a writ of error, and assigned for error the quashing of his appeal.

Sept. 6. Henrie brought an action of trover against Murray for certain jewelry lent to him for a specific purpose. The ease was referred under rule, the award to he final, and resulted in an award for the plaintiff.

Sept. 6. The guardian applied for an order of sale, of certain ol his ward’s lands, for the payment of debts. The Orphans’ Court referred the application to Mr. Magraw, an auditor, who reported that the sale was necessary and expedient. Subsequently, the court refused to grant the order. The guardian appealed.

<p>1. The attorney or agent of a judgment-creditor into whose hands the land of a defendant has been delivered on a liberan facias, and who collects the rents, cannot charge the defendant a commission on the amount of rents collected. Since the act of 1840, all allowance to the plaintiff for trouble and expense is disallowed.</p> <p>2. Where there have been no pre-existing mutual accounts or dealings between parties, a statement furnished by one to the other, and retained without objection, and a receipt given for a payment on account of the balance exhibited by the statement, is no evidence against the party receiving it and giving the receipt.</p>

<p>Error to the District Court of Allegheny.</p> <p>Sept. 7. This title was before the Supreme Court at the September Term, 1835, and was then adjudicated upon, under what state of facts may be seen in the report of the case: Eetterman v. Murphy, 4 W. 424.</p> <p>Since then, in 1847, Messrs. Eetterman and Metcalf, the then plaintiffs, have reconveyed their several interests in the premises to the heirs of Nixon, the present plaintiffs; and John Murphy, the then defendant, in 1836 conveyed his interest to James B. Irwin, the present defendant, for the price of $5,100. In 1844, Mr. Irwin erected buildings on the lot in controversy, at a cost of $4,000. The heirs of Nixon, the plaintiffs, have resided in and about Pittsburgh continually since the purchase of the lot by Mr. Irwin. The other facts will be found in the previous report of the case.</p> <p>To the offer of the defendant below to prove the fact of the sale of the premises by the sheriff to Kingston, by him to Murphy, by Murphy to Irwin ; and the consideration of each sale, the plaintiffs . objected, on the ground that the original judgment of David Wilson u. William Nixon, was no lien on the land at the time of revival, and did not become such by the revival; and that therefore, if there was a regular sale upon it, the title of the heirs is not affected. To evidence of the improvements by Irwin, of their value, of the residence of the plaintiffs in the vicinage, they objected as irrelevant. Upon its admissibility, Lowrie, J., delivered the following opinion:—</p> <p>“ In 1808 a judgment was obtained against William Nixon. In 1809 an execution was issued thereon and returned, ‘ money made and paid to plaintiff.’ In 1814 Nixon died. In 1815 the plaintiff in the judgment entered satisfaction in the appearance or continuance docket — so that there are two satisfactions of record: one in defendant’s lifetime, and the other after his death.</p> <p>“ Notwithstanding this, there appears the following most strange proceeding: In 1827, an attorney (Samuel Kingston) issued a sci. fa. to revive the original judgment against the administrators of Nixon; an attorney (Mountain) appeared and confessed judgment, and thereupon an execution issued, and the land descended to the heirs, was sold to Samuel Kingston, and the defendants under that title claim to hold the lot against the heirs of Nixon.</p> <p>“The plaintiffs object that the record of satisfaction of the judgment was a discharge of the judgment, and of its lien; and that even if its revival should overbear the satisfaction as evidence of payment, yet it does not impair its effect as a discharge of the lien.</p> <p>“ This very title was in the Supreme Court several years ago in the case of Petterman v. Murphy, 4 W. 424, and was there decided to be good upon the points there raised. , And it would seem that the facts then before the court were substantially the same as now. Are the plaintiffs permitted in a second act of ejectment to raise a new question of law on the same facts ? I think they are, and that we are bound to decide according to established principles, and without reference to any consequences arising to the parties out of their misplaced confidence in a former decision upon another question. Parties are not estopped by the mistakes of counsel in not having discovered the true legal principle applicable to the facts. They are not estopped by one verdict on the facts, even though the evidence be the same. They are not even estopped from having a reconsideration of the legal principles laid down by the court of the last resort. And when a party buys upon the faith of a judgment in ejectment, his faith must be limited by these principles, belonging to that form of action.</p> <p>“ 1. The present question was not raised in the former action. The question then decided by the court beloxv, argued by the counsel in the Supreme Court, and decided by that court, was as to the effect of the act of *kth April, 1798, upon the continuance of the lien. It seems to have been taken for granted that the revival of the judgment, having disproved the record of satisfaction, of consequence proved the continuance of the lien; a mistake which is readily made, though as readily seen when suggested.</p> <p>“ The act of 1798 was designed to limit the lien of the judgment to five years as against purchasers’ and other judgments: Kerper v. Hoch, 1 W. 9. But it never had any effect upon this judgment, for the lien of it was completely discharged by a doubly recorded satisfaction, the first being within one year. Thenceforward it was neither a judgment nor a lien: 4 Wend. 480; 8 Ib. 681.</p> <p>“ 2. Since its revival the existence of the debt cannot perhaps be denied, but the revival could not have an effect antecedent to its own existence. The judgment lay paid, discharged, dead, for eighteen years. The revival gave it new life, but did not restore vitality to these eighteen years of death. During all that time it was a common debt, a debt 1 not secured by judgment,’ and its lien against the estate of the deceased in the hands of his heirs is governed by the act of 4dh April, 1797. The defendant died in 1814, and the debt not being then ‘ secured by judgment,’ ceased to be a lien in seven years thereafter.</p> <p>“ 8. After these seven years the administrators ceased to represent the heirs as to all debts not then secured by judgment, and a revival against the administrators could not affect the heirs. After such a revival, the heirs would stand very much in the same position as the alienee of a mortgagor where judgment is obtained without notice to the alienee: Cowan v. Getty, 5 W. 531; Matter v, Clark, 1 Ib. 491.</p> <p>“4. The judgment in the sci. fa. decides nothing as to the question of lien. If the original judgment remained, so that the debt could be said to be secured by judgment, then the case is not within the act of 1797, and the lien against the heirs continued. But the question of lien is never raised on the sci. fa., and cannot be in ordinary cases. Such issue is never taken: Ramsay v. Linn, 2 Rawle, 229; as against creditors it cannot be so decided, for they have no right to be heard in the proceeding.</p> <p>“ The question of lien is always decided at a subsequent stage of the proceedings, on motion to set aside a levy made upon land after the lien is gone and the. title passed to another; or by way of defence in ejectment against the purchaser at sheriff’s sale, or on the distribution of the proceeds of sale.</p> <p>“ I am therefore constrained to say that no title passed to Samuel -Kingston under the revived judgment and the sale thereon, and I cannot see how the offer as to improvements made by the defendant can affect the title.</p> <p>“The objections to the offer are therefore sustained.”</p> <p>The verdict was in favour of the plaintiffs.</p> <p>The errors assigned were to those parts of the above opinion which are printed in italics, and they constituted, in the order in which they occur respectively, the 1st, 2d, 3d, and 4th assignment. The other three assignments were to the rejection of the evidence.</p>

<p>Error to the District Court of Allegheny.</p> <p>Sept. 10. This was an action of ejectment by Alexander Marshall against William and Andrew Marshall, for the undivided eighth part of a tract of land. The father of the parties, John Marshall, died seised of it, leaving eight children. The defendants claimed under the will of their father, which the plaintiff alleged had been revoked, by dispositions made of other property devised subsequent to the making of the will.</p> <p>The testator devised to his son Archibald a tract of ninety-eight acres, directing that certain legacies were to be paid by Archibald to certain of his children; and to William, one of the defendants, he devised the tract in controversy, he also being directed to pay certain legacies. After the making of the will, the testator sold the land devised to Archibald, who, at the request of the purchaser, joined his father in executing the deed. Archibald received part of the purchase-money, and paid all the legacies charged on the land which had been devised to him, but which was sold by the testator in his lifetime, except the plaintiff’s legacy. It was proved by Archibald, that the plaintiff said he would not take it.</p> <p>Under the eharge, the verdict was for the- defendants. The principal error assigned was that the court erred in their charge in deciding, that “ the sale of the tract of land devised to Archibald, was a revocation of the will, pro tanto only. The residue of the testator’s will remained in full force. The land in controversy is devised to William Marshall, and that devise is not affected by the sale of Archibald’s tract by the testator. The defendants, therefore, are entitled to your verdict.”</p>

Ejectment by Miller against Franey, for a lot in the town of Port Perry. Upon the trial, the plaintiff offered in evidence a plan of the town of Port Perry, found in the recorder’s office, which was objected to as not proved. He then called the recorder’s clerk, who testified that he had been in the office six years, and that this plan was in the office when he came there.

<p>Appeal from the decree of the Orphans’ Court of Allegheny.</p> <p>iSept. 10. The facts of this case are fully stated in the subjoined report of Mr. Darragh, the auditor appointed hy the court below, to report the facts, and whether any, and if so, what amount of balance is due or ought to be paid by the appellant.</p> <p>“ The case, as submitted to your auditor, presents the following statement of facts: — ■</p> <p>“ William Chambers was the administrator of the estate of Mary Eobb, deceased. His letters of administration were granted soon after her death, in April 1885.</p> <p>“ At the time of the death of Mary Robb, Chambers held, and was the owner in his own right of, a bond and mortgage executed by said Mary Eobb, and a certain Isaac Robb, now deceased, as joint obligors and covenantors in the said bond and mortgage, dated 18th September, 1832, and recorded in Allegheny county.</p> <p>“ On the 20th September, 1837, Chambers filed in the Register’s office his account as administrator of Mary Robb’s estate, in which account he claims credit for the sum of $642.50, being amount of said bond and mortgage, and interest then due. In that account he charges himself with two items only, but does not charge himself with the amount of said bond or mortgage as executed by Mary and Isaac Robb, nor any part of the same.</p> <p>“ This account was presented to the Orphans’ Court at October Term, 1837, and referred to auditors, who re-stated the account, but allowed the credit of $642.50, as in first account, and did not charge Chambers, as administrator, with the bond and mortgage of Mary Robb and Isaac Robb, or any part of the same. That report was confirmed absolutely, 3d Feb. 1840.</p> <p>“ This credit in the administration account of Chambers, allowed by the auditors, was a payment in full to him of the bond and mortgage executed hy Mary Robb and Isaac Robb, with the interest, and is so stated on the account.</p> <p>“ The proceeding, now before the auditor, is based on the petition filed March 27, 1847, by Jane Robb, widow and devisee of Oliver Robb, who was one of the heirs of Mary Robb, deceased. The allegation on the part of petitioner is, that Isaac Robb was the actual debtor or principal in the bond and mortgage aforesaid; that he received the money for which the bond and mortgage were given; that Mary Robb, although a co-obligor, was in fact but security for Isaac Robb; that Chambers, the administrator, well knew all these facts; and that he, having received payment from funds of the estate of Mary Robb, was legally required and bound, as administrator of said Mary Robb, to collect said amount from Isaac Robb, or his estate. •</p> <p>“ To this petition Chambers, the administrator, filed his answer 27th March, 1847, and therein replies ‘that the account as filed was confirmed by the court on 8d March, 1840, and that the proceeds of the estate in his hands were paid to the heirs and creditors as directed by the auditors appointed for the purpose of distribution, which report was confirmed 22d May, 1841, and is on file in Orphans’ Court.’</p> <p>“ He further replies that he made a full and faithful administration of the estate, of all and every matter and thing that came to his hands, or of which he had any knowledge, and that ‘ the Isaac Robb, mentioned in the petition of Jane Robb, died intestate in Westmoreland county, Pa., before said account was filed, leaving no estate behind him for the payment of his debts, excepting some household furniture, which was held for the payment of rent due by him at the time of his death. This respondent proceeded to Robbstown for the purpose of enforcing payment of said alleged $642.50, but could find no estate, real or personal, out of which to make it or any part of it. He made strict inquiry and searches in relation .to any estate left by him, but could find none; that he believes said Isaac Robb died insolvent, and leaving nothing behind him to pay said claim; that nothing whatever has come to his hands, belonging to the estate of said Mary Robb, since he filed his last account, and does not know of anything outstanding.’</p> <p>“ To rebut and answer the foregoing reply of Chambers to the petition of Jane Robb, the petitioner has exhibited to your auditor (and he marks the same as part of the report) a certified copy of the account of J. C. Plummer, and James Bell, administrators of estate of Isaac Robb, deceased, examined and passed by the Orphans’ Court of Westmoreland county, 23d May, 1836, showing that the personal estate of Isaac Robb was appraised at the sum of $578.04, which amount, after paying debts due by Isaac Robb, left a balance in their hands of $78.04J, -which was paid by them to the guardians of the estate of the infant daughter of said Isaac Robb. Petitioner also exhibits a certified copy of the account of David Bennet, guardian of the infant daughter of said Isaac Robb, showing that he l’eceived from said administrators of Isaac Robb $78.04J, and that, in addition thereto, he received the sum of $518.27, making in all the sum of $596.30-J; this amount was principally received from the sale of certain lots in Robbstown, belonging to the estate of Isaac Robb.</p> <p>“ It is therefore certain that Isaac Robb died seised and possessed of both real and personal estate sufficient to pay the amount of the bond and mortgage, and the interest at the time of his administration of Mary Robb’s estate.</p> <p>“ The next question submitted to your auditor is, that in the event of there having been estate of Isaac Robb sufficient to pay the bond and mortgage, was Isaac’s estate or himself bound to pay it or any part of it ? From the face of the bond and mortgage, Mary Robb and Isaac Robb were jointly and severally bound for the amount; and without any other testimony, your auditor is of opinion that Isaac Robb’s estate was liable to pay one-half of said bond, and Mary Robb’s estate the other half; but from the answer of Chambers to petition of Jane Robb, it seems that he looked on Isaac Robb as the actual debtor, and if he, as administrator of Mary Robb, knew that Isaac Robb was the actual debtor in the bond and mortgage, he was, in the opinion of the auditor, bound to use all due diligence to recover the same from the estate of Isaac Robb.</p> <p>“Did William Chambers exercise such diligence as the law requires of an administrator in his superintendence and control of the affairs of a decedent ? J. C. Plummer, Esq.; one of the administrators of Isaac Robb, deceased, testifies that, a short time after he and Bell took out letters of administration on the estate of Isaac Robb, William Chambers came over and called on them, as administrators of Isaac Robb, and presented a bond secured by a mortgage, in which Mary Robb was the principal, and Isaac Robb appeared to us to be the security, being the second named in the mortgage. Chambers stated that he wanted to apprise us of this debt; we told him we had no means to pay; that he must look to the land on which he held the mortgage; and, as we considered Mary Robb the principal, we would not pay it if we had the means. Witness also says that he told Chambers'that he could not have collected the debt off the estate of Isaac Robb, because it was manifest it was Mary Robb’s debt; we were advised on the subject before Chambers came a second time, and would have nothing to do with it.</p> <p>“ Whether the proceedings of Wm. Chambers, as set forth in the deposition of J. C. Plummer, was the requisite due diligence of an administrator, is for the court to determine. In the opinion of your auditor, it was not.</p> <p>“ The important question, however, is — was the debt, or amount of the bond and mortgage, really the debt of Mary Robb, or was it the debt alone of Isaac Robb ? and, if the latter, was all this known to Chambers ?</p> <p>“ On this subject there is, first, the answer of Chambers to the petition of Jane Robb. The petitioner charges that this debt was Isaac Robb’s alone, and that Chambers knew it. The answer does not deny the allegation, but relies on a full settlement of his administration accounts, and the insolvency of Isaac Robb. There is also the deposition of David Wilson. He swears that he was present at the time Chambers loaned the money on the bond and mortgage. It was at the house of Mary Robb; she, Mary Robb, received the money, and she and Isaac Robb executed the bond and mortgage. On his cross-examination, he states, that Mrs. Robb was borrowing the money for her son Isaac Robb, to buy a tavern-stand in Robbstown. Isaac was present at the time. Chambers was present. Did not hear him say anything when Mary said she was borroioing the money for Isaac.</p> <p>“ If Mary Robb did borrow the money for Isaac, it does not appear by any testimony whether she intended it as a gift to Isaac, or whether she was in fact the borrower for Isaac’s use. This the court will determine; and if, in the opinion of the court, the facts show that this was the real debt of Isaac Robb — that his mother borrowed the money for him on his and her security, expecting and understanding that Isaac was to pay it, and that Chambers, the obligee in the bond and the administrator of Mary Robb, knew all this, then it was his duty to use all due diligence in the collection thereof from the estate of Isaac Robb.</p> <p>! “ The court will observe that Chambers, the obligee in the bond and mortgage, was also the administrator of Mary Robb; as such administrator he paid himself out of the funds of the estate of Mary Robb. The auditors appointed to examine his account as administrator of Mary Robb, allowed him the credit of $642.50, the amount of the bond and mortgage aforesaid, and the interest then due; as the owner and holder of the bond and mortgage, he was paid from the funds of the estate of Mary Robb; and, as the administrator of said Mary Robb, if the facts already detailed are sufficient proof of his knowledge of the fact that Isaac Robb was the real debtor, it was his duty to use diligence in order to recover the amount from Isaac’s estate.</p> <p>“ It is very certain that the plea of the insolvency of Isaac Robb cannot avail him, because the accounts of the administrator of Isaac, and that of the guardian of his infant daughter, sufficiently show, that at the time of his administration of the estate of Mary Robb, Isaac’s estate was ample to pay said amount of bond and mortgage, and interest due thereon.</p> <p>“ From all the papers and proofs before him, the auditor is of opinion, that the debt for which the bond and mortgage was given was in fact the debt of Isaac Robb, and that Chambers knew this fact; that there was sufficient estate of Isaac Robb to pay the same; and that Chambers, as administrator of Mary Robb, did not use the care and diligence in order to its collection which the law requires.</p> <p>“ Should the court be of opinion, that, under all the circumstances herein detailed, William Chambers negligently managed the estate of Mary Robb, in regard to this bond and mortgage, then he is answerable to account as follows:—</p> <p>Dr. To amount paid William Chambers, as per his account on bond and mortgage, which he ought to have collected</p> <p>from the estate of Isaac Robb.....$642.50</p> <p>Interest on same from 3d July, 1837 ....</p> <p>Auditor’s charge, to be paid by said William Chambers, in case of his liability as above.....25.00</p> <p>Paid for rule of court - - - - - - - .75</p> <p>Paid for publication of notice.....1.50</p> <p>“ The auditor thinks it proper to state, that at the last hearing the counsel for William Chambers objected to the auditor’s power to examine the account at all, because said account was confirmed by the court, 3d July, 1840, and that it was therefore too late to disturb it. This is a matter for the court, and not for an auditor appointed to report facts,” &c.</p> <p>William Chambers filed the following exceptions to the confirmation of the auditor’s report:—</p> <p>1. That, as administrator of Mary Robb, he settled the account in full in the Orphans’ Court, and that the same was confirmed absolutely, February 3, 1840, and that, having paid out all moneys and assets in his hands agreeably to report of auditors, confirmed absolutely February 3, 1840, he is no further liable to petitioner, or any one else representing Mary Robb, deceased.</p> <p>2. That the Orphans’ Court has no jurisdiction or power to grant or issue the citation of 6th March, 1847, on which this audit was had.</p> <p>3. Ho proceedings against the administrator could legally be had after the lapse of time between the confirmation of the auditor’s report and final account, and application for the citation audited.</p> <p>These exceptions coming on to be heard, the court below overruled them, and confirmed the report of the auditor absolutely; whereupon the exceptant appealed, and here assigned for error that</p> <p>1. The Orphans’ Court erred in overruling the above exceptions, and in' decreeing, that Wm. Chambers account with and pay to the heirs and legal representatives of Mary Robb, deceased, the sum of $642.50, with interest.</p>

Sept. 10. This was an action of ejectment by the School Directors of M’Keesport against John Klinkener and others, for certain lots in that town. John M’Kee, being the owner in fee 'of certain land, laid out a town thereon in 1792, which he called M’Keesport. The town lots, excepting the school lots, were disposed of by lottery.

Sept. 12. The facts of this case are stated in the following charge of the court below, delivered by Hepburn, President:— “In this ejectment, Yalentine Specht claims to recover from the defendant, Lewis B. Miller, the residue of a term of ten years, ending 1st April, 1851, in the premises in dispute. Both parties claim under the same title, and each claims to he the owner of the unexpired residue of the said term. “ The term was originally created by a lease from Wm.

Sept. 12. This was an action on the case by Alexander King against Holmes & Son, brought to recover damages for protesting a bill of exchange which had been accepted by the plaintiff, thereby “causing it to be believed and suspected that the said plaintiff is not a punctual, solvent, and creditable merchant.” The bill was accepted by King, payable to the order of defendants, who were exchange brokers in the city of Pittsburgh.

<p>Error to the District Court of Allegheny.</p> <p>Sept. 12. This was an action on the case, brought by Samuel M’Cune against James Taylor, to recover the amount of a note, which was alleged to have been made by Alexander Short, in September 1842, payable to Samuel M’Cune, at six months, and endorsed by James Taylor, the defendant. No demand was ever made on Short, or notice of non-payment given to Taylor. The plaintiff offered Alexander Short, the maker of the note, to prove the making and endorsing and consideration of the note, which was objected to by defendant, on the ground that he is party to the note. The objection was overruled, and the witness testified under exception.</p> <p>Alexander Short, sworn. — I gave a note to M’Cune for $251, for bail of boat, September 1842. James Taylor endorsed it before it was delivered. The note was payable to Samuel M’Cune. I got Taylor’s endorsement to secure M’Cune. M’Cune would not take the note without an endorsement.</p> <p>Erancis C. Elanegan, sworn. — The note was given to me for collection by M’Cune, and was burnt 10th April, 1845.</p> <p>Andrew Wylie, sworn. — Short was insolvent at the time of the note, and has been since.</p> <p>In order to show that the note in question, which was destroyed, was made payable to James Taylor, the defendant, and by him endorsed to M’Cune, instead of being made payable to M’Cune, as plaintiff’s witnesses suppose, and also to show what M’Cune’s understanding was as to Taylor’s undertaking, the defendant called John Nicholson, who identified two other notes, dated in the same month with the one in question, drawn by Alexander Short, payable to James Taylor, for the engine of the boat, and endorsed by Taylor to the witness. Nicholson testified as follows: — “Notes shown. I got this note from Short; and this one also, for the engine of the boat. They were to give me endorsed notes for the engine. I would not let go the boat till I got them. Don’t remember of seeing M’Cune after the boat was brought down, till after the engine was in. He told me some time after, that he had this fixed, that Taylor had endorsed the paper. Some time after-wards, he told me he had neglected to have it protested — but he supposed it was not necessary; that if a note was endorsed by a man, it stood good.”</p> <p>The notes to Nicholson were read, dated 10th September, 1842. They were regular in form.</p> <p>The evidence being closed, the court (Lowbie, J.) instructed the jury, that, according to the decision in Leech v. Hill, 4 W. 448, if they believe that this was an informal note, given by Short and Taylor to secure the plaintiff for the amount due him, the note is to be construed according to the understanding of the parties.</p> <p>The verdict was for the plaintiff. The plaintiff in error made the following assignment of errors:—</p> <p>1. The court erred in admitting Alexander Short as a witness.</p> <p>2. The court misconceived the law, as ruled in the case of Leech v. Hill, 4 W. 448.</p> <p>3. The law laid down by the court, as applicable to this case, is indefinite and uncertain, and calculated to mislead the jury.</p> <p>4. The court should have instructed the jury, that upon the whole of the evidence in the cause, the plaintiff was not entitled to recover.</p>

This was an amicable action in debt, in which the question raised by the case stated was, whether the.defendants, Holmes & Son, who were licensed as exchange-brokers, under § 2, act 27th May, 1841, and who were in the habit of purchasing with their own funds, notes, drafts, acceptances, and other securities in the nature thereof, maturing or made payable at a future day, but did not sell the same, were subject to the tax or penalty imposed by that act upon such as follow the…

<p>The three months’ notice to leave demised premises, required to be given by § 12, act of 21st March, 1772, being for the benefit of the tenant, he may waive it in his lease: and where he does do so, and proceedings are had by the landlord under that act to regain possession, it will be a fatal defect in the inquisition if it does not find the fact of such waiver.</p>

Sept. 12. This was an action of ejectment, by Noble and Mary Calhoun, against Daniel Jester and another. The plaintiffs were children of John Calhoun, who was a son of Alexander Calhoun. They were born after the death of Alexander Calhoun, their grandfather, who in his will devised as follows :— “ Item 5th.

<p>Where a devisee sold his interest in real estate, charged by the will with payment of debts, — both parties, as devisees and executors, having equal means of knowledge of claims against the estate: — it is not competent for the vendee, in ejectment against him by the vendor to enforce payment of the purchase-money, to prove that debts afterwards came to his knowledge which he had to pay, and that the consideration for the purchase was its full value.</p>

<p>Error to the District Court of Allegheny.</p> <p>Sept. 14. This was an action on the case by A. L. Gearhart & Co., and Samuel Witman, plaintiffs, against John Amsbaugh. It was founded upon a promise of the defendant, endorsed upon a promissory note drawn by one Rodgers in favour of the plaintiffs. The endorsement was in these words:—</p> <p>“ I will see the within paid.</p> <p>“John Amsbaugh.”</p> <p>The defendant proved that the amount of the note could have been collected from Rodgers at any time, from the day when it became due to the day of trial.</p> <p>The court (Hepburn, President) instructed the jury: “ The question whether the defendant is an original party to the note, and liable in the first instance, or whether he is a mere guarantor, is reserved, and the jury pro forma instructed that the defendant is liable in this action, and that their verdict must be in favour of the plaintiffs.”</p> <p>The verdict was for the plaintiffs, and subsequently judgment was entered in their favour, on the point reserved. This entry of judgment was assigned for error here.</p>

<p>Error to the District Court of Allegheny.</p> <p>Sept. 15. On the 15th June, 1842, Irish purchased at a tax-sale of unseated land, an unseated part of lot No. Ill, in Fourth Ward, Pittsburgh, in the name of Rachel Impey. The price he bid for it was $1,505, of which $14.38 were paid in full of the taxes and costs, and on 21st July, 1842, a bond was given, agreeably to the act of Assembly, to Johnston, the treasurer of the county, and to his successors, for the balance of the purchase-money, $1,490.62, for the use of the owners of the land sold.</p> <p>On the 23d January, 1847, judgment was confessed on that bond, for the penalty by virtue of a warrant of attorney, to be released on payment of the real debt, with interest from 1st April, 1845, and the costs in No. 252, Ap. T. 1846. Subsequently this judgment was opened on terms, and the defendant was let into a defence. The defendant pleaded, that at the time of the sale Rachel Impey was not the owner of the land; that at that time he was himself the owner, absque hoc, &c.; that she was not the sole owner, and non est factum, and set-off. The plaintiff traversing these several pleas generally, the cause came on to be tried before Judge Lowkxe.</p> <p>The evidence of the plaintiff was this. The bond: a perpetual lease of the land sold, granted by Nathaniel Irish to Abraham Long, subject to a ground-rent of $45 per annum, dated 80th December, 1812: proof of the death of Long, and who were his heirs: deeds to plaintiff by two of those heirs, Frederick Long for one-fourth of the land, dated 10th October, 1831, and Sarah Midford for another fourth, and for any contingent interest that might accrue to said Sarah from any of the heirs of Abraham Long, dying without issue and intestate, dated 24th December, 1831; and a deed by Abraham Long, Jr., another of those heirs, to George "Watson, for another fourth. Rachel Watson, the plaintiff, was married to Impey in 1834, and was divorced from him in 1844.</p> <p>The evidence of the defendant consisted of the will of Nathaniel Irish, dated September 4, 1816, devising the above-mentioned ground-rent to the defendant, subject to a life-estate of Ann M’Cully in the same, who died in 1820</p> <p>The rebutting evidence of the plaintiff was to establish the fact that in 1842 George Watson went on the property for her, to make tender of the ground-rent, and that there was nobody there to receive it. She also gave in evidence another will of Nathaniel Irish, dated in 1813, proved in 1848, wherein he devised this ground-rent to one Anne Shaw, who conveyed it to the plaintiff by deed, dated 4th January, 1845.</p> <p>The plaintiff requested the court to charge, that the ground-rent due before the treasurer’s sale, cannot be set off by the purchaser in an action against him upon his surplus bond.</p> <p>The defendant requested the court to charge, that the defendant is entitled to a verdict in his favour on the first plea by him pleaded, unless the plaintiff has proved to the satisfaction of the jury that Rachel Impey was the owner of the ground, in the said plea mentioned, at the time therein mentioned, and that if George Watson was, at the time aforesaid, the owner of an undivided interest in said ground, the defendant is entitled to a verdict in his favour, on said plea.</p> <p>The court refused so to charge, and reserved the questions to be decided after the facts were found by the jury.</p> <p>Charge of the Court. — “ Under the deed of Sarah Midford to Rachel Watson, the plaintiff is entitled, as against William B. Irish in this case, to any additional title accruing to Mrs. Midford, by the death of an heir of Abraham Long, after the date of said deed, and before the purchase at the treasurer’s sale.”</p> <p>The jury found for the plaintiff on the first plea, that Rachel Impey was the owner of two-thirds of the premises referred to— and they also found for the plaintiff on the second and fourth pleas, and on the third plea for the defendant — on the plea of set-off, they found that two-thirds of the ground-rent due to the defendant, on the lot, at the time he became purchaser at the treasurer’s sale, were three hundred and fifteen dollars, but whether the same was a proper subject of set-off, they submitted to the court. June 5,1849, questions on the reserved points decided in favour of the plaintiff, and judgment entered in favour of plaintiff, Samuel R. Johnson, for the penalty of the bond, to be released on payment of the real debt, $1,490.62, with interest from April 1, 1846, with leave to Rachel Impey to take out execution for $993.74, with interest from April 1, 1846.</p> <p>The errors assigned here were:—</p> <p>1. That the court erred in refusing to charge the jury as requested by defendant’s counsel.</p> <p>2. The court erred in charging the jury ut supra.</p> <p>3. The court erred in deciding, upon the special finding of the jury, that the two-thirds of ground-rent due to the defendant below on the lot, at the time he became purchaser at the treasurer’s sale ($315), was not a proper subject of set-off in this action.</p> <p>4. The court erred in entering judgment generally, on the verdict of the jury, in favour of the plaintiff.</p>

<p>Error to the District Court of Allegheny.</p> <p>Sept. 17. This was an action of ejectment by John against Thomas Greenough. It appeared that Elizabeth Greenough died seised of the premises, unmarried, without issue, and leaving three brothers and a sister. The plaintiff and defendant were brothers of Elizabeth. She executed a will on the 17th August, 1840, and died ten days afterwards.</p> <p>The plaintiff below, relying upon her dying intestate, offered no evidence other than the admission of the foregoing facts; denying, however, the legal execution of the will.</p> <p>The defendant, claiming under the will, examined the subscribing witnesses to it, whose material testimony was as follows:—</p> <p>Andrew Nicholson, sworn. — I signed this will as a witness. I went to her bed-side, and was introduced to Elizabeth Greenough. The will was read to her. It is my impression she requested me to sign it as a witness : either before or after it was read. She declared it to be her last will and testament, after it was read to her. M. B. Lowrie also signed it in the presence of the testatrix, and in my presence. I saw her make the mark, with the assistance of Lowrie steadying her hand. She was nervous at the time. The name was written by Lowrie, I think: it was there when she made her mark. She was feeble, and not able to write.</p> <p>Cross-examined. — She was very nervous; her hand shook very much. I don’t recollect her ashing Lowrie to write her name. It would not have been possible for her to write her name. No conversation about her mark or signature afterwards. She appeared exhausted — said nothing. She grew worse after the will was signed, till she died. L did not hear her request any per son to write her name.</p> <p>M. B. Lowrie, sworn. — I wrote this will, under Elizabeth’s direction, from her dictation. I read it carefully over, and she assented to it, and when I tooh it to her to sign it, she said she was not alie, and requested me to sign it for her. 1 did so. Before she subscribed her mark, I asked her if she acknowledged this to be her last will, and if we, myself and another, should sign it as witnesses. She assented to both, and I then subscribed it as a witness, and Nicholson also in my presence. She made her mark to the will in my presence. She could write before this, I think, but not at this time.</p> <p>Cross-examined. — I may have steadied her hand, but she made the mark.</p> <p>This will devised the land in controversy to Thomas, the defendant, for life, and after his death to be divided among the children of John, and others.</p> <p>The signature of the will and the mark, described by the subscribing witnesses, was in this form.</p> <p>her</p> <p>Elizabeth x Greenough mark.</p> <p>The will was admitted to probate, 19th May, 1842.</p> <p>The jury was directed fro formd that the will was well proved, and good and valid in law, and that the defendant was entitled to their verdict. The questions of law were reserved. In the opinion subsequently delivered by Hepburn, President, the learned judge held that the proof of the testatrix expressly directing Lowrie to sign her name to the will was insufficient, under the act of 1833, and that the will was of no effect- under that act, but that the proof of her mark, under the act of 1848, was sufficient — that law acting upon the remedy and not upon the estate, and so violating no constitutional provision. Judgment on the verdict for the defendant.</p> <p>The errors assigned here were</p> <p>1. That the court erred in deciding that the act of 27th January, 1848, supplementary to the act relating to last wills, &c., did not violate any constitutional provision, and 'did no injustice to the plaintiff.</p> <p>2. That the court erred in deciding that the will in question clearly falls within the provisions of the act of 27th January, 1848.</p>

Sept. 18. Aaron Eloyd brought suit before a justice of the peace,- against Williams and Reed, to recover the amount of certain promissory notes, and obtained judgment, from which the defendants appealed.

Sept. 18. Zachariah M’Earson presented a petition to the court below, of the following purport:— “ The petition of Zachariah M’Earson, of Beaver county, showeth, That Nathan M’Earson, late of Allegheny county, died on or about the — day of January, 1848, at the county last aforesaid, intestate, that letters of administration have been issued in the course of law to John and Reuben M’Farson, administrators of the goods, chattels, and estate of said Nathan M’Farson. “ That the…

<p>Where there is survey against survey, and the possession in equilibrio, the law preserves the title for him who has the right.</p>

<p>Error to the District Court of Allegheny.</p> <p>Sept. 19. A writ of error was sued out in this case by Henry B. Gales, the plaintiff below, and also by J. W. Hailman, the defendant.</p> <p>This was an action on the case by Gales against Hailman and others, owners of the steamboat “Marion,” as common carriers. The declaration alleged the shipment of the plaintiff’s goods on the steamboat; a contract to carry the goods from Pittsburgh to Ghent, in Kentucky; and the loss of the goods.</p> <p>The defendants not having reserved the right of re-shipping at another port by the bill of lading, nevertheless placed the goods on board the steamboat “Export,” at Cincinnati, and the “Export” having sunk on the way, and the goods never having come to the hands of the plaintiff, the action was brought for the recovery of $2,682.46, the value of the goods. The plaintiff received, on account of his loss, from an insurance company in Cincinnati, with which he had insured the safe passage and delivery of the goods, $2,114,874. The insurance company had received the damaged goods from the “Export,” and realized from their sale the sum of $1,282.92.</p> <p>Upon these facts, the parties submitted to the court below to determine—</p> <p>1. Whether the plaintiff is entitled to recover any sum, and if not, to enter judgment for defendant.</p> <p>2. Whether he is entitled to recover the difference between his said loss, and the sum he received from said insurance company, and interest thereon for his own benefit, and if so, to render judgment for the amount.</p> <p>8. Whether he is entitled to recover, for the benefit of said insurance company, the difference between said proceeds of sale and said sum paid by said insurance company and interest, and if so, to embrace that sum in the judgment in favour of the plaintiff, with leave to either party to bring a writ of error on the judgment.</p> <p>The defence arose from the fact that the plaintiff had received remuneration in part from the insurers. The defendants alleged that plaintiff had no right to recover as against them at all; that, if entitled to recover, he could only recover the difference between the amount received from the insurance company, and the value of the goods with interest; and that, if entitled to recover on behalf of the insurance company, the owners of the steamboat “Export” being insurers in legal contemplation, the loss must be divided between them and the insurance office, in the same manner as if there had been a double insurance.</p> <p>The judgment of the court below was pronounced by Lowkie, J., accompanied by the following opinion:—</p> <p>“ The owner of goods, insured in the hands of a common carrier, has two contracts for their safe delivery, that of the insurer and that of the common carrier, and the contract of insurance sometimes covers the very risk for which the carrier is liable. But the owner cannot recover for his own benefit in both; for our law is never administered so as to become an instrument of speculation; it in no case sanctions a double compensation. If it were otherwise, in such cases as this insurances would become mere gambling contracts — insurances against events which work no injury. And if the liability of the insurer, or payment of the loss by him, exonerated the carrier from his liability, then we should have contracts by which common carriers would be discharged from the care and fidelity which arises from their occupation, and this is contrary to the policy of the law.</p> <p>“ Contracts of insurance, though they may, as between the insured and the insurer, cover the same risks as the law imposes upon carriers, yet, as against the carrier, they cannot be allowed to affect his usual liability as such. He still stands as insured against all accidents, except those excepted by the law and by his contract, and, so far as he is concerned, the insurer is answerable only for the other accidents contemplated by the policy. An insurance, so far as it is against the proper risks of the carrier, is in substance an engagement by the insurer to pay on the happening of the loss, and to take upon himself the burden of enforcing the carrier’s liability.</p> <p>“ This is a case of insurance of goods, where, on the happening of the loss, they were abandoned by all concerned to the insurers. What, then, is the effect of the abandonment ? It is undoubtedly an equitable assignment of the goods, and of all the remedies which the insured has against the carrier for the recovery of them or their value, with an implied reservation of the right of the insured to use those remedies, still for his own benefit, for all goods not covered by the policy, and if the insurer should fail to pay: 2 Phil. Ins., 282, 388; Marsh Ins. 691; Mason v. Lainsberry, 26 Eng. C. L. R. 36; London Ass. Co. v. Same, Ib. 97; Clark v. Hundred of Blything, 9 Ib. 77; ¿Etna Ins. Co. v. Tyler, 26 Wend. 385; Atlantic Ins. Co. v. Storrow, 5 Paige, 285; Meyer v. Barker, 6 Binn. 236.</p> <p>“ Here the policy did not cover the whole amount of the goods lost, but the amount insured by it was duly paid by the insurers; and it follows that the remedies against the carrier were, by operation of law, pro tanto assigned to the insurers, to be recovered by them after the insured shall have received the balance of this loss in full. And as there can be but one recovery against the carriers, this action is, in the first place, for the benefit of the owner of the goods for the balance of his loss; and, in the second place, for the benefit of the insurers for the loss paid by them, so far as they have an equitable claim against the defendant to be refunded therefor.</p> <p>“ In an ordinary case, the plaintiff would be entitled to recover the whole amount of his loss, with interest, which, in this case, is $1,349.54, with interest; that is to say, for himself $517.59, and for the use of insurance company $831.95, with interest on each.</p> <p>“But is this the ordinary case of payment by the insurer, where the carrier is liable ? It must be borne in mind, that this is an equitable remedy as to the $831.95, in favour of the insurance company. We must, therefore, inquire what equity the company has against the carriers. To the extent before indicated, the carriers, as well as the underwriters, are insurers; the underwriters against one class of losses, and the carriers against another. Here the defendants are liable by reason of a loss arising, not from want of care and fidelity as carriers (for the case as stated must prevail over the general allegations of the declaration, though it is referred to as part of the case), but merely because of their having changed the risk of the goods, by transhipping them from the ‘ Marion’ to the ‘ Export’ without license. It resembles, therefore, a case of deviation, and the defendant’s liability is clear, and was assumed the agreement: Erott v. Woods, 1 Gallis, 443. But that very 'transhipment changed the nature of the defendant’s liability. Instead of being liable as carriers only, with the owners of the 1 Export’ answerable over to them, they became liable as ordinary insurers likewise.</p> <p>“ It seems to me, therefore, that for that part of the claim to which the insurance company is by operation of law subrogated, the defendants stand precisely in the position of insurers, unless it appear that the ‘ Export’ (the agent of defendants for part of the voyage) was sunk from some defect of the vessel or of its management, and this cannot be inferred in a case stated.</p> <p>“ So far as the insurers are concerned, this is an equitable action, and must be treated as if it were a bill for contribution. Their insurance was not in the faith of any particular vessel, as it is admitted, and it was no breach of duty, as to them, that the goods were transhipped; their insurance was for goods in any sufficient vessel. Here, then, the carriers and the underwriters were insurers of the same goods against the same risks — against the very accident that happened. Neither has committed any wrong against the other, and I cannot perceive that either has any superior equity to the others. It is, therefore, equivalent to a case of double insurance, where each insurer must contribute in proportion to the risk assumed: 5 Paige, 293-4.</p> <p>“ The present case, therefore, is partly legal and partly equitable in its character, and the judgment must be adapted to the case. The plaintiff is entitled to indemnity for the balance of his loss, and the insurance company is the equitable assignee of. the rest of the claim, not to recover the whole from the defendants as carriers, but to recover contribxrtion as insurers; and to save subsequent disputes, we must define the share of each.</p> <p>“ How shall they contribute ? The defendants stand as insurers for the whole value of the goods, $2,632.46, and the insurance company for the amount paid by them on the same goods, $2,114.87. In that proportion must they contribute for the real loss of $831.95; or the insurance company having paid the whole, is entitled to contribution in that proportion. The defendant’s share of the loss is therefore $461.33. This, with $517.59, yet needed to indemnify the plaintiff, with interest on each, should be the amount of the judgment.</p> <p>“ Let judgment be entered in favour of the plaintiff for the sum of $1,406.59, of which sum $756.12 is for the benefit of the plaintiff, and to be first paid, and $650.47 is for the use of the Cincinnati Insurance Company.”</p> <p>The plaintiff below assigned for error upon his writ, that the court erred in not entering judgment for the plaintiff for $2,057, with interest, to which he was entitled. The substance of the error, as stated upon the paper-book, being, that the court adjudged that the insurance company and the defendant stood in the relation of joint insurers, fro tanto, and ordered that the amount of the loss, paid by the insurance company to the plaintiff, should be divided between the insurers on the policy and the defendants.</p>

Sept. 20. Dunlavey and Crawford sued out a writ of partition, as demandants, against James Elliott, a minor, and Snowden, committee of the person and estate of Matilda Elliott, a lunatic. The writ was duly served on the guardian of the minor defendant, and upon the committee of the lunatic.

Sept. 22. This was an action of ejectment, in which James Brown was plaintiff, and George Gossin, the tenant in possession, and Harmar Denny, his lessor, were the defendants.

Sept. 28. The plaintiffs in error were plaintiffs below, and brought their action against the defendants, charging them as common carriers of a large quantity of goods shipped on board the steamboat Auburn, of which defendants were owners. The goods had been consumed by fire at a landing on the river.

<p>1. It was intended in Hood v. Mylin, 8 Barr, 51, to restore the common-law rule of damages to what it was before Wilt v. Vickers and Rogers v. Bales, bnt not to touch the exceptions to it in trespass for mesne profits.</p> <p>2. It is error to charge the jury in such an action “ to find the expense of the plaintiff in prosecuting it, and such other damages as they may think him entitled to recover from the evidence.”</p>

Oct. 6. This was an action of ejectment, brought by John Calhoun, for whom, upon his death, the overseers of Jefferson township were substituted as plaintiffs, against Daniel Jester, defendant. The facts are stated by Mr. Justice Burnside, in the opinion delivered by him.