Volume 11 — Sergeant & Rawle's Pennsylvania Reports

moved to strike off the award of arbitrators filed in this case, because one of the defendants, who had been arrested and held to bail, had entered a rule for arbitration, without having entered special bail. The defendant, he contended, was not in court, when he entered the rule. The writ was returnable to December Term, 1823: the rule for arbitration was entered on the 4th of February last, and the award filed in the present 'month.

<p>Though a slight acknowledgment of a debt will take it out of the act of limitations, yet if the debtor qualify his acknowledgment so as to show a determination not to pay, the act will take effect. Therefore where a debtor on being called on for payment of a promissory note, mbre than six years- after it became due, said, that as there had been no money transactions between himself and the plaintiff previous to or during the year 1812, he -was surprised at the demand; that he owed Mm nothing on the account mentioned, and referred him to his final discharge under the act of 13th March, 1812, it was held, that the debt was barred by the act of limitations, notwithstanding the act of 1812, was unconstitutional and void.</p> <p>The operation of the act of limitations was not suspended, while the act of 13th March, 1812, “ for the relief of insolvent debtors residing in the city and county of JPhiladelphiasxiil their creditors,”-was held by the courts of this state tobe con* stitutional and valid. -</p>

<p>William Flintham, administrator of Elizabeth Febiger, deceased, on the 13th February, 1819, filed his accounts in the register’s o£6ee, in which he admitted a balance to be in his hands of 21,190 dollars 62 cents, part of which arose from the personal estate, and the residue from the sale of the real‘estate of the decedent under an order of the Orphan’s Court. On the application of the children of John Ca/rson, deceased, the Orphan’s Court appointed auditors to examine the accounts, who made a report to which exceptions were filed by the administrator. After hearing an argument on the exceptions, the court made a decree, in which they disallowed a charge against the estate of 275 dollars 86 cents, for mourning, of which the children of John Carson received no part; and charged the administrator with interest from the time the accounts ■ were filed. The Orphans’ Court also charged the administrator with the sum of £ 1000, to which they considered the decedent entitled under the will of her late husband Christian Febiger, and therefore as constituting assets in the hands of her administrator. This was the principal question in the case, and the will upon which it arose was in substance as follows.</p> <p>The testator gave to his wife 'Elizabeth all his estate real and personal with all the income thereof, during her natural life, provided she paid out of it from timé to time, as much as she thought necessary for the maintenancé and education of his nephew Christian Carson Febiger. Should'his wife marry again he declared, that she should continue to enjoy the income of his estate, but that neither she nor her future husband should have power to dispose of any part.of it; but the whole was to be left entire until her death, for the uses afterwards declared by the will. He then proceeds: “ If I should die possessed of any property conveyed to me by my said wife Elizabeth as daughter and heiress of her father William Carson, deceased, it is not to be considered as my property, but remain unto her and at her sole disposal, at which also shall be all my household furniture, family untensils, horses and carriages, plate and plated ware, &c. And I do further give and bequeath unto her to be disposed of at her death £ 1000 to be raised out of my property in such manner as she shall direct, giving preference to the sale of personal estate.” The testator then declares,* that if Christian Febiger Carson, shall as soon as lie is twenty one years of age publicly and of his own free will, exchange his name to Christian Carson Febiger, all his estate, real and personal, shall on the demise of his wife, go to-his1 adopted son Christian Carson Febiger, and his heirs for ever, ec excepting the above £ 1000, and what is hereinafter excepted.” In the event of his nephew declining to comply with his wishes, he makes a small provision for him and then gives his estate after a few legacies, in equal portions to his brothers and sisters, resident in Denmark, who he declares (“ the tie of blood only excepted,”) are utter strangers to him.</p> <p>On the removal of the record to this court by appeal, the administrator of Mrs. Febiger excepted to the decree of the Orphan’s Court;</p> <p>First. Because the court refused to -allow the charge against the estate of 275 dollars 86 cents for .mourning) which debt was incurred before he was appointed and wás paid in common with other bills for funeral expenses.</p> <p>Secondly Because he was charged with interest, although the children of John Carson, deceased, had no legal guardian or person duly authorised to receive their shares of the estate of the intestate until the 20th June, 1820; and because the accounts having been before auditors, it did not appear, until the decree of the court on the said accounts, how much the share of the said minors would be.</p> <p>Thirdly. Because he is charged with the sum of £ 1000, which" he never received, and which he is advised he is not entitled to receive.</p> <p>who cited Toller, 191. 2 Bop. on Leg. 358. 2 Leon. 71 i 1 Mod. 189. 2 Lev. 104. Bradly v. Wescott, 13 Fez. 444. Powell on Powers, 130. Cowp. 268. 2 P. Wms. 682. Latch, 9. 1 P. Wms. 149. 2 Sop. 205, 207, 210.</p> <p>cited Pox v. Wilcocks, 1 Binn. 194. Robinson v. Dusgale, 3 Vern. 181. Maskelyne v. Maskelyne, Jlmb. 750.</p>

<p>IN ERROR.</p> <p>Samuel Redmond brought suit against George Shaw, in the District Court for tire city and county of Philadelphia, in which he declared against him on a promissory note drawn by Thomas Parker, in favour of George Shaw, and by him indorsed to Redmond. The material part of the first count was as follows: “ And the said Samuel in fact saith, that afterwards when the said note1 was about to become due and payable according to the tenor and effect thereof, the said George, well knowing, as well that the said note would not be paid by the said Thomas Parker, the maker thereof, he the said Thomas haying lately before absconded, as that the said •George was in law and justice, liable to pay the said sum of mo.ney‘in the said note specified, to the said Samuel, he the said Samuel having lent, to the said George when he the said George delivered to him the said Samuel, the note aforesaid, the sum therein specified, directed his agent, 'Edmund Kinsey, of the city of Philadelphia, saddler, to pay and satisfy the sum of money, in the said note specified, when the same should become due and payable and then and there undertook and promised that the sum in the said note specified should be paid to. him the said Samuel.</p> <p>The second count was against Shaw as indorser in the usual form, averring a demand upon Parker, non-payment by him, notice to Shaw, &c.</p> <p>The third count was for money lent and advanced.</p> <p>The fourth count was for money laid out and expended.</p> <p>The pleas were non assumpsit and payment'with leave, and non assumpsit infra sex annos. To the last plea there was no replication but by the 34th rule of the District Court it is ordered that upon a plea or pleas being entered, the prothonotary shall of course put the cause to issue, and enter the proper replications and other pleadings, for that purpose; but the act of the prothonotary herein, shall not prejudice either of the parties. Each party shall have it in his power to enter other pleadings, or demur, as they may deem most eligible, provided, to prevent surprise and give a fair trial, they give reasonable notice thereof, in writing to the adverse party.</p> <p>The defendant’s attorney entered a rule for trial by special jury.</p> <p>A verdict having passed in favour of the plaintiff, the defendant removed the record to this court by writ of error.</p> <p>The verdict rendered in the court below being general, and the first count in the declaration defective, the judgment must be reversed. It is defective because it contains no averment, that when the note became due, a demand was made on the maker, and notice of nonpayment given to the indorser, which in anaction on a promissory note against the indorser, is universally necessary. The promise set forth in the declaration is without consideration. The words “ then and there,” refer to the day of the date of the note and a promise to pay then is void, because, the liability of the indorser does not arise until the credit of the note has expired and until after demand upon the maker, and a refusal by him to pay. Bowes v. Howe, Serg. <§• Lowb. 8. 5 Taunt. 30. 1 Com. on Cont. 9. 2 Bl. Com. 445, Whittall v, Morse, 5 Sergt. 8? Baiole, 358. But this is not properly a question of notice, but of special promise, and this distinguishes it from the eases in Chitty, which relate to. negotiable instruments, a class to which the note in question does not belong. If was not payable to order. There is in the first count no demand founded on the. indorsement. The undertaking on the párt of the defendant below, was that the plaintiff should be paid; not that he would pay the note himself. The stating part of the count declares, that the defendant, knowing he was liable for the money lent, directed his agent to pay the note when it became due, and undertook that it should be paid. To make the defendant liable, it was necessary to show, a demand on the agent and a refusal by him to pay. Yet there is no averment that the agent was ever called upon or in default; non constat that he has not' paid the note. The declaration does not contain a scientific feature, and if the judgment is supported, the science of the law must be sacrificed, to the supposed justice of the case, and thus partial good, become universal evil.</p> <p>Another fatal error in the record is, that the cause was tried without being at issue. This point was settled in Broivn v. Barnett, 2 Binn, 33, between w’hich and the present case, there is not a particle of difference. Cooper v. Jordan, though of later date does not overrule it. There the object was, the want of a rejoinder to the replication of “fraud,” which would have been nothing more than “no fraud.” In truth the substantial issue was formed and any thing more would have been mere technicality. The rule of court, it is true is very broad, but it never could have been intended that the prothonotary should take charge of the special pleading of the bar. How can he enter a replication except when it is mere matter of form ? To the plea of the statute of limitations, the plaintiff may reply, not only that the defendant did assume within six years, but any of the exceptions to the plea, which must depend upon the information furnished to counsel by the client, with which the prothonotary cannot be acquainted.</p> <p>The order of the defendant’s attorney for a special jury was no waver, of the defect. It is the practice on’filing a declaration or putting in a plea, to- give such an order, without regard to the state ohthe pleadings.</p> <p>insisted that the issue was sufficiently joined. In a case in which there was a replication of fraud, which is much more special than a plea of non assumpsit infra sex annos, it was decided, that where there is a rule of court, directing the prothonotary to join t.he issue, the want of a joinder is no reason for reversing the judgment. Jordan v. Cooper, 3 Serg. 4 Rawle, 567. The case of Brown v. Barnett, does not militate against this position, because there does not appear to have been any such rule of court; and .if it did, the last adjudication must prevail. If however there was any force in the objection it was w.aved by the defendant’s entry of a .rule for trial, by which he is es-topped to say the cause was not at issue.</p> <p>It is to be observed, that this is not a demurrer to the declaration, but an exception taken after plea and even after verdict. It is admitted that the declaration is not technically drawn, but there is nothing in it which shows that the plaintiff oughtnot to recover. The distinction between a defective title and a title defectively set out, is familiar. If the defect be such, that the plaintiff could not recover’, even if he fully proved his case, as if in slander he declared on words not actionable, or in an action on a contract, the debt áppeared -not to be due, the judgment must be reversed. But if there be nothing in the declaration repugnant to the plaintiff’s right to recover, but that right is informally set out, it is to be presumed after verdict, that every thing necessary to establish the right has been proved. Such defects are not only cured by statute, bpt at common law. 1 Sound, 228, note 10. Collins v. Gibbs, 2 Burr. 899. 1 Chilly on Plead. 232, 233, 298, 319, 322. 1 Tidd. 406.</p> <p>Weigley v. Weir, 7- Serg. 4 Rawle,. 309. If however the count be analysed and the surplusage rejected, it will be found good for money lent. If this be considered a question of notice, the declaration fully shows that the defendant dispensed with it, by promising to pay,, expressly on the ground that the note-would not be paid by-the maker. That notice may be waved either before or after the-note becomes due, there is authority to prove. Chitty on Bills, 274. digan v. MiManus, 11 Johns. 180. 4 Cranch, 141, 161. If however there were no authority on the subject it cannot be doubted, that if the indorser at any time goes to the holder and dispenses with notice, he cannot take advantage of his own act, and refuse to pay because he has not received notice.</p>

<p>Where the original charter of a religious congregation conferred the right to voto, on the “ contributing members being communicants,” and by a subsequent act of assembly, confirming the charter, with some alterations, it was declared, that no person should be entitled to vote who was under the age of 38 years, it viasheld-, that to entitle a member of the corporation to vote, it was not necessary . that he should have taken the sacrament, after the age ot 18 years.</p> <p>. If evidence of the practice at other elections of the congregation has been admitted without objection, it is not error for the court to instruct the jury, that such evidence is admissible to show the true construction of the charter of the church.</p> <p>The formation of a society distinct from the rest of the congregation, for the instruction of a portion of it in the doctrines of the same church in another language, is not per se, a separation from the original congregation; though s.icli society have a minister and officers of its own. It is a circumstance for the consideration of the jury; the question, whether a man has separated himself so as to cease to be a member of a corporation often depending ou a variety of circumstances proper for their consideration. It is therefore .error to charge the jury that the inspectors of an election have no right to exercise a sound discretion, in deciding whether such a separation hast-ken place, and that, a vote could not bo refused unless the party offering it had'been regularly pmeeeded against and disfranchised in the manner pointed out by certain church regulations</p> <p>Malice is an ingredient, without which an action cannot be sustained against an inspector of an election for refusing- a vote. By malice is meant, the refusal of a vote from improper motives and contrary to the inspector’s own opinion. The existence of malice may he inferredfrom circumstances.</p>

<p>By express agreement, a partnership may continue after the death of one of the partners.</p> <p>A. & B. entered into written articles of partnership, which was to continue five years. In case of the death of A. within the five years, the business of the firm was to be carried on by B. for the joint benefit of himself and the heirs of A., “subject to the advice and inspection of the executors or administrators of A.” And in case of B’s. death, A. was to close the concern as soon as circumstances would admit. The partners were to be equal sharers in the profit and loss. When the articles were drawn it was intended to fix the capital, for which a blank was left, and which was to be advanced by the partners equally; and A. was to advance a sum, also left blank, over and above the stipulated capital, for which he was to be allowed interest, at the rate of six per cent, per annum. But by an additional article bearing the same date, after reciting that the funds of B: were engaged so as not to be at his own disposal, it was agreed, that the capital of the firm should for the present remain undecided, but be fixed on B’s. return'from the West Indies, and in the mean time A. was to be allowed by B. interest at six per cent, on a moiety of whatever capital A. might think proper to employ in the business of the firm. A. died on the 20th June, 181/, intestate. Betters of administration on his estate, were granted on the 1st July, 181/, to C. I). & E., and on the same day B. was appointed guardian of the minor children of Al" On the 2d October, 1819, the firm being- insolvent, B. assigned all the partnership property and all his own-private property to the defendants for the benefit of the creditors, who were to be paid in the order in which they were designated in the deed of assignment, in which the plaintiffs stood first. Considerable sums were paid by the administrators of A. to B. as guardian of the minors, .all of which were expended by him, in the affairs of the firm. The insolvency was produced, principally by losses on an establishment at a distance which was planned by A. Held, that the whole of the partnership fund, including what was acquired after the death of A. passed by B’s. assignment, and that the plaintiffs Were entitled to be paid the amount of their debt.</p> <p>It seems; that for want of a court of chancery, the provision in the article of agreement, that B. in the event of his partner’s death, was to carry on the business subject to the advice and inspection of Ms executors or administrators, gave no power to the executors or administrators to dissolve the partnership, in case B. should act in opposition to their advice.</p>

<p>In an action of indebitatus assumpsit, evidence cannot be given of the sale of a growing crop.</p> <p>A notice of set off need not be so certain and formal as a declaration. But it must describe the demand with reasonable certainty, so as not to take the plaintiff by surprise.</p> <p>In an action against a surviving partner to recover a partnership debt, the defendant may set off a debt due from the plaintiff to him in his individual capacity.</p>

<p>IN ERROR.</p> <p>Error to the Common Pleas of Chester county, in an action brought by the executors of Ephraim Mien, deceased, against Thomas Bull, orr an assumption made by the said Thomas to the said Ephraim, to indemnify him against a bond in which the said Ephraim became bound to a certain Joseph ff. Brinton, at the request of the said Thomas.</p>

<p>An action of trespass isa proper mode of recovering mesne profits, after a recover^ in ejectment, under the acts of 21st March 1806, and 13th April, 1807.</p> <p>There is nothing in the action of ejectment by writ under these acts of assembly,which varies the consequences of a recovery from those of the common law,except' where expressslv declared by the legislature.</p> <p>It seems, that if the plaintiff does not seek to recover damages for a time anterior ter the service of the writ of ejectment, the recovery in ejectment is conclusive, andestops the defendant; but ’if he does, he must show his title, arid the possession of the defendant.</p>

<p>in error.</p> <p>Writ of errar to Chester county.</p> <p>The original parties to this suit in the court below, were Isaac W. Vanlear, plaintiff and Samuel Lewis, defendant. During its pendency they died, and their representatives were substituted. The plaintiff declared in covenant upon a lease for the payment of rent. The defendant pleaded, covenants performed, with leave, &c. In the life time of the original parties, the defendant entered a rule of arbitration, under the act of 21st March, 1S06. An award was made against the plaintiff, and finding the sum of 2,456 dollars, to be due to the defendant. From this award the plaintiff appealed. On the trial, he gave in evidence the lease containing the covenants, and closed his case, without giving any evidence of the breaches assigned in the declaration ; when the court declared," that he had wholly failed to support his action, and recommended a nonsuit. To this the plaintiff refused to submit, preferring that a verdict should pass against him. The counsel for the defendant, then offered in evidence a set off, of which he had previously given notice; to the admission of which, the plaintiff objected. It was rejected by the court, who sealed a bill of exceptions. The jury found a general verdict for the defendant.</p>

<p>This cause was tried before hiá honour Judge Gibson, at Nisi Prius, on the 11th December, ISIS. It was an action upon a policy of insurance on the schooner Priidence, in which the plaintiff claimed for a total loss. A verdict was found for him for 4,245 dollars 70 cents, subject to the opinion of the court, whether upon the evidence, he was entitled to recover for a total loss.</p> <p>All the evidence in the case was embraced in the protest of the captain, made in conjunction with two seamen, at Gibraltar, on the 6th January, 1813, and his deposition, subsequently made in Philadelphia. ' From the former, it appeared that the Prudence sailed from Fredericksburg, Virginia, with a cargo of flour and corn, bound to Cadiz. She left the capes on the 27th October, and arrived in sight of Cadiz on the 30th November, when she was boarded by a British brig of war, who sent her into Gibraltar. She was afterwards released, and while waiting for a wind to proceed on her destination, it began on the 28th of December to blow very hard. At day light, all hands were called to attend to the cables and-sails. The gale having encreased, with heavy squalls of wind and rain, accompanied with thunder and lightning, the sea making a breach over the vessel fore and aft, she began to start about eleven o’clock, and was going stqrn foremost upon a reef of rocks. The jib was then hoisted to make her pay round, but the sheets having parted, this was found impossible, and they were obliged to haul it down again, by wjaieli the vessel became wholly ungovornahle. The master then put the helm hard up, in order to get her into the best place for the preservation of the lives of the crew, the vessel and cargo; and both cables were cut. At half past eleven o’clock site struck, and fastened on the landing place, called the Ragged Staff. About twelve o’clock, the sea being very heavy, and the vessel labouring much, she bilged, and every thing was afloat fore and aft. On the -following day, the 29th, the masts were cut away to prevent their working through the bottom during the continuance of the gale; very little could be saved that day. On the 30th, lighters, with about thirty hands, were employed to save as much as possible. Many of the barrels of flour were found stove, the heads and staves lying about the hold in all directions; and the corn was loose in the hold, the bags having been destroyed.</p> <p>The captain’s deposition set forth substantially the same facts, with the addition, that it was his intention to endeavour to get out to sea, which he probably would have effected, if the sheets had not parted, which deprived him of all power to govern the vessel. A survey was held on her on the 3lth of December, when the surveyors reported, that the expense of an attempt to get her off, even if successful, added to the cost of the necessary repairs, would considerably exceed the value of the vessel, and the captain was decidedly of opinion, that it would have cost twice her value. On his cross examination he stated, that he hoisted the jib before the cables were cut, for the purpose of making her pay round. After the jib' sheets parted, and the cables were cut, she immediately made for the shore. She did not go ashore within a quarter of a mile of the place on which she was previously going stern foremost. If she had gone ashore in that place, the vessel, cargo, and lives of the crew would all have been lost. After the cables were cut, and the helm put up, she went broadside some distance, arid struck She then got off and went head foremost ashore. The captain and mate consulted together before the helm was put up,- the cables cut, or the jib hoisted. They said they were going ashore then, and therefore, it was best to cut the cables, and do what they after-wards did, to try in the first place to go to sea, .and if they could not do that, to go ashore elsewhere, as they might lose their live;! where they were going. ■ ■</p> <p>stated the question to be, whethei the evidence presented a case of total loss, or of general average; The principle of contribution is, that’a certain danger, is substituted for one that is uncertain. But if the danger be certain either way,' and the master merely choose between them, a case of contribution does not arise. In a case that occurred some years ago, the vessel was driving on a lee shore. The captain hoisted all sail to carry her off, and the pails were carried away; but as they were destroyed while in their usual employment, it Was held, that they were not entitled to contribution. In this case there wap no voluntary sacrifice for the general good, which is the essential principle of general average. It was the duty of the captain to keep the vessel off the rocks, and in pursuance of that duty, his effort was to get out to sea. There was no election to run her ashore in -order to save the cargo and crew, but when it became obvious, that she must go ashore, if she did not get out to sea, a strenuous effort was made for that purpose. This was the leading object, and her going ashore afterwards, was purely the effect of the sheets having parted, which rendered her unmanageable. There is little analogy between this case and that of Sims- v. Gurney, 4 Binn. 513. There the ship was saved; here she was' lost — there, there was a consultation, and a selection of the place at which to' run the vessel a ground; here, there was only the negative resolution, not to go ashore at a particular place. The effort was to go to sea, and all that followed was accident. In Powers v. Whitman, 4 M. <§> S. 141, the ship, to avoid impending peril, stood out to sea, and hois.ted a press of sail, by which great injury was suffered, but the ship and cargo were saved, and it was held not to be a ease of general average. This is not a case of contribution, because there was no selection of a peril; because the loss ivas not voluntary, and because the determination that was' formed,- was frustrated.</p> <p>This case falls within the reason of Sims v. Gurney, and that case is supported by principles’previously well established. If, in endeavouring to escape from an enemy, or avoid foundering, the vessel be stranded, it is general average. 1 Emerigon, 408. Gray v. Wain, in this court, 2 Se/r-g. <§* Rawle, 229, and Gaze v. Rily, in the Circuit Court of the United States, Id. 238, note, in which it was held, that whether the ship was lost or saved, did not alter the rule, go on the same principle. In the present case, there was a voluntary cutting of the cables, hoisting of the jib, &c. in order to get to sea; and during that attempt, an accident happened to the sheets, which made the loss inevitable. There was imminent danger of going on the rocks where all would have been lost. A consultation took place, when the cables were cut; in consequence of which, and the carrying away of the jib sheets, the ship went ashore, and the cargo was saved. This was clearly voluntary. The principle decided in Sims v Gurney, is, that if a voluntary attempt be made to encounter a peril, in order to escape a greater one, though the loss do not happen precisely by the peril sought, and therefore, is not strictly the effect of volition, yet if a loss take place, which may be traced back to the voluntary act, it is a case of general average. It need not, therefore, be purely voluntary throughout. It is said that there was no affirmative intention of going ashore at any particular place. This is not necessary. In Sims v. Gurney, the vessel went ashore at a spot not contemplated by any one. It is not practicable to reaeh a particular spot. It is also said, that the intention was to go to sea, which was frustrated, and the vessel went ashore involuntarily. But the captain states a, double intention; either to go to sea, or, to' go ashore, and one of these things was the only result which could take place after cutting the cables. The captain must, therefore, be considered as having exercised his will in relation to both. The masts and cables are without doubt general average. They cited in argument. Emerig, 621. Targa, 31S. Le Guidon, Oh. 8Art2\. Covington, v. Roberts, 5 Bos. 8,' Pull. 378.</p>

<p>This case came before the court on an appeal from the dfecree of the'Orphans’ Court of Chester county, confirming the settlement of the account of the appellees, Joseph M. Downing and Jane Stalker, executors of Thomas Stalker deceased, who, in conjunction with William Pim, was guardian of the minor children of John Mitchenor deceased. The father' of the minors died in August, 1814, leaving a widow named Anne and three children. Letters of administration were granted to his widow and Byncr Mitchenor his brother. In Febrnry, 1815, the administrators applied to the Orphans’ Court to appoint William Pim sole guardian of the minors, which the court refused to do; but in the following May, appointed him and Thomas Stalker joint guardians. In October, 1816, the administrators settled an account in the Register’s office, .in which they acknowledged a balance to be due to the estate amounting to one thousand four hundred and sixteen dollars and twenty-three cents. This account was confirmed on the 6th of November, 1816. Thomas Stalker died in May, .1820, leaving the appellees his executors. In March, 1822, William Pim, the surviving guardian, was dismissed by the Orphans’ Court, without having settled an account of his guardianship ; and John Pim, the appellant, appointed in his place. At this time Ryner Mitchenor, Ann Mitchenor, and William Pim were all insolvent. In March, 1822, on the petition of John Pim, the new guardian, the appellees were cited to settle the guardianship account of their testator, and at the following court an account was tiled, to which the appellant-excepted, on the ground, among others, that the executors, had not charged the estate of the guardian with two-thirds of the sum of one thousand four hundred and sixteen dollars and twenty-three cents, acknowledged by the administrators of John Mitchenor to be in their hands. The exceptions were overruled by the Orphans’ Court, and the account confirmed; upon which this appeal was entered.</p> <p>It appeared on the healing, that after the death of John Mitchenor,'his widow took all the household goods, valued at two hundred and ninety-seven dollars and twenty-five cents, at the appraisement; and she and William Pim haying entered into partnership, under the firm of William Pim and Go., they took, at the appraisement, all the store goods belonging to the estate, amounting to one thousand five hundred and eighty-four dollars and fifty-seven cents. The whole amount of the inventory, including outstanding debts, was nearly five thousand dollars. The books of John Milchenor were placed in the"store of Pim and Co., who received the debts due to the estate, and put the money into the drawer of the firm, out of whidh the creditors of John Milchenor were paid. In this drawer the money received for debts due to the estate of John Milchenor, and for goods.sold by Pim and Co. were mixed. An entry, however, was made in a book of all money received and paid on account of Milchenor’s estate. These proceedings were known to Thomas Stalker, who was told by Ryner Milchenor, one of the administrators of John Milchenor, that he was collecting the debts of the estate, and paying the money to Pim and Co; and that he got money from them for the use of the estate. Stalker told him to continue to pay the money to Pim and Co.; and when the estate was settled, he would take the balance, if any, out of their hands. In consequence of these instructions, he paid all the money he received, except about sixty dollars, to Pim and Co. Ryner Milchenor removed to Columbia in the spring of 1816, when he considered himself in good circumstances. He took with him between fifteen hundred and two thousand five hundred dollars. He afterwards became insolvent, and made a general assignment. . On his removal, he showed to Thomas Stalker a paper, exhibiting the. situation of John Milchenor’s estate .as follows:</p> <p>Balance in the hands of the administrators, ■- $ 297,96</p> <p>Balance in the hands of William Pim and Co. 789,69</p> <p>Book accounts settled for in the office, but not collected, - - - - - - 328,23</p> <p>The above is the situation of the accounts at the time when the administrators settled their accounts in the office Nov. 1816.</p> <p>Signed, “Ryner Milchenor’’</p> <p>This paper, and the books of John Milchenor, with a' list of the debts due to the estate, he left-with William Pim. On the 1st of April, 1816, William. Pim and Ann Milchenor dissolved partnership and sold their goods to Brown and Baldwin. William Pim received the whole of the purchase money, amounting to about two thousand two hundred dollars, with the consent of Ann Mitchenor, who told him “it was for the children.” He, however, lent her in June, 1817, three hundred dollars of this money, and told Thomas Stalker of it. Upon the dissolution of the partnership, William Pim went to live with Thomas Stalker, and took with him the partnership books, to collect the debts. He resided with him two years, and received two hundred dollars a year wages. Stalker knew that Pim hod in his hands the money received from Brown and Baldwin, and borrowed from him at different times, while he resided with him, one thousand dollars, which-was returned. In 1S18, William Pim began to keep store at Downingstown on his own account. At this period Thomas Stalker owed hizn, on pz'ivate account eight hundred dollars, which he paid him. Some time before this, Stalker asked Pim, if hejzad the money of the minoi’s in hand ; to which he answered, that he 'had the greater part. Stalker knew that he employed the money in trade, to which he made no objection, and did not request him to put it out at interest. When William Pim went to Downingstown to keep store, he was worth two thousand four hundred dollaz’s, which he l’eceived under his mother’s will, and took with him about eighteen hundred dollars, including money belonging to his wards. He was then clear of debt. His cz-edit continued good until 1820 or 1821, when he became insolvent. A levy was made on his goods by the sheriff in the year 1819, when Thomas Stalker became his security; but his credit, it was sworn, was not affected by this circumstance. In the year 1817 Thomas Stalker told William Pim, that he ought to push the administz'ators for the balance in their hands; to which he replied, that he did not think they wei’e able to pay. Thomas Stalker himself received no money from the estate of John Mitchenor, except thirty-five dollars, for rent. At the time the hearing took place in this cause, William Pim held about seven hundred dollars of his ward’s znoney.</p> <p>The health of Thomas Stalker was much impaired three years befoi'e his death. Several months prior to his dissolution, he became too weak in body to attend to business; and towards the conclusion of his life, his mind was impaired.</p> <p>Upon these facts, it was contended by Dillingham and Mdwards for the appellant, that Thomas Stalker was responsible for twothii'ds of the balance appearing in the administration account to be due to the estate of John Mitchenor,</p> <p>1st. Because, having permitted the sum of two hundz’ed and ninety-seven dollaz-s to remain in the hands of the adzninistrators, without taking any steps to recover it, the money was lost.</p> <p>2d. Because, by his act, agreement, and dii’eetion, the balance came into the hands of William Pim, his co-guardian, inconsequence of which it was lost.</p> <p>3d. Because he knew that he was appointed guardian expressly for the security of the money of his wards; promised the acting adminstrator that he would get the money into his hands as soon as the estate was settled; actually had the money in his hands, and then paid it over to William Pim, knowing it was to be invested in trade, in consequence of which it was lost.</p> <p>’ In support of these positions, they cited 2 Madd. Ch. 121, 123, (New York Ed. 1817.) 7 Bac. Ab. (Wils. Ed.) 183, 184,417. 3 Bac. Ah. 32, 417. Monell v. Monell, 5 Johns. Ch. R. 283. 2 Fonb. Eq. 184.</p> <p>referred to 2 Madd. Ch. 141, 2, 4.</p>

<p>On a former day, Milnor obtained a rule to show cause, why an information in nature of a writ of Quo warranto, should not be filed against Simon Murray, to show by what authority he exercised the functions of minister, in charge of Wesley church, in Lombard, between Fifth and Sixth streets in the city of Philadelphia. The application was made on behalf of Robert Brown and others, in whom the legal title to the church was vested, and who alleged, that they represented the majority of an association, formed for religious worship, without charter. It appeared on the hearing, that the congregation was divided into two parties. That to which those who moved for the information belonged, on the 5th of ,Tanuary, 1824, gave notice by public advertisement, that an election would be held on the 23d of the same month, to choose a minister and trustees of the church. On the day appointed, an election was held, when Edward Johnson was chosen minister. Trustees were at the same time elected. On the 17th of January, the other party, who were called the Wesley Church party., inserted in the newspapers an advertisement, protesting against the meeting called by their opponents, and giving notice of another meeting, to be held on the 9th of February, to consider of the charter .of incorporation, and for other purposes. On the 3d of February, the same party published.in another- advertisement, the rules for holding the approaching election; and declared that the polls would he closed, if danger of tumult were perceived. On the 9th of February, the election was accordingly held by the Wesley church party; the.charter was accepted, an$ Simon Murray confirmed as minister. It was proved that Murray received no salary from the church, for his services.</p> <p>cited Bull. N. P. 210, 211, 212.- 2 Kyd. on Corp. 432. 3 Bl. Com. 262. Jacob’s Law Diet. Quo warranto. 1 Str. 299. 2 Str. 1196. Commonwealth v.- Woelper, 3 Serg. 8? Rawle, 29. Commonwealth v. Cain and others, 5 Serg. 8¡' Rawle, 510.</p> <p>that a Quo warranto was not a matter of course, and could not be granted in a case like this. He cited Kyd. on Corp. 432. Commonwealth v. Rosseter, 2 Binn. 360. Case of St. Mary’s Church, 7 Sergt. 8,' Rawle, 535.</p>

IN ERROR. On -the return of the record of this case, accompanying a writ of error to the Common Pleas of Bucks county, it appeared, that it was an action of debt on a bond bearing date the 15th of April, 1814, given by John Mann, the defendant below, to Elizabeth Morris, by whom it was assigned on the 29th of March, 1822, to Thomas Dungan, the plaintiff.

<p>Where A. was indebted to B. upon a quantum meruit for services performed, and B. drew a draft of sigiit, for a part of his claim, in favour of C. upon A., which A, refused to pay, but afterwards gave B. a check for the amount of the draft, saying that “ it was in full of the draft,” it was held that B. had a right to credit the check to his own general account for services performed, and was not bound to appropriate the amount to the payment of the draft, which being dishonoured, B. and C. had a right to consider as a nullity.</p> <p>Where a suit is brought for the use of a party who is discharged as an insolvent debtor pending the action, the court will permit such action to be marked for the use of the assignees, at the trial of the cause.</p> <p>A party cannot, by assigning a part of his claim to another, divide an entire cause of action, nor by any means sustain more than one suit for it; and if two suits be brought a recovery in the first, it is a conclusive bar to the second.</p> <p>As to the application of the rule quicquid sohitur, solmtur ad modum solvenlis.</p>

<p>Where an appearance de bene esse is entered for the defendant, the plaintiff' cannot sign judgment for want of an appearance.</p>

<p>IN ERROR.</p> <p>The defendant in error, who was plaintiff in the District Court for the city and county of Philadelphia, from which the record was removed by writ of error, declared, that he had sent to the defendants, who were auctioneers in the city of Philadelphia, certain goods, together with an invoice of their sterling value, “to be disposed of by them at the average price of fifty per cent, advance on the sterling cost, as quoted in said invoice, but not otherwise.” The defendants sold the goods for less than the limited price, and the plaintiff claimed the difference between it and the price for which they were sold.</p> <p>The error now assigned was, that the declaration set forth no cause of action which could be maintained.</p> <p>On a sale at auction, the property is promised to the highest bidder. Upon this understanding all persons bid, and it is illegal to adopt a mode of sale contravening this principle. Therefore, although the owner may put up his goods at a limited price, yet puffing or any other mode of raising the price by which the buyer is deceived, vitiates the sale. The instructions here were, to sell an invoice of goods so as to produce an average on the whole, to a certain amount, which rendered it impossible for the auctioneers to set them up at a limited price. The case of Bexwell v. Christie, Cowp. 395, in which it was held, that an action would not lie against an auctioneer who had sold a horse for less than a limited price, closely resembles this. He cited also act of 26th November, 1779, 1 Sm. L. 511, 12. Simon v. Motivos, 3 Burr. 1921.' Howard v. Castle, 6 T R. 642. Donaldson v. M‘Roy, 1 Browne, 346. 6 Johns. 194. Jo?ies v. Caswell. 3 Johns. Cas. 29. 8 Johns. 444. 13 Johns. 112, Com, on Cont. 218. 2 Liv. on Agency, 334. 335.</p> <p>who was requested by the court merely to produce his authorities, without entering into an argument, cited Brownly v. Alt. .3 Ves. 625. Smith v. Clark, 32 Ves. 477. Sug.' on Vend. ch. 1 pa. 1 to 10. Cruso v, Crisp. 3 East. 337,</p>

<p>The exportation of condemned staves or cullings, to a port in the state of Delaware, is within the, prohibition of the act of 21st April, 1759, «to prevent the exportation of bad or unmerchantable staves, heading, boards and lumber.”</p>

<p>The enlistment of an infant is good at common law. There is no act of congress prohibiting the enlistment of a minor in the Marine Corps. ■</p> <p>Whether an enlistment be valid or.not, one under arrest upon a charge of desertion, must abide the sentence of a court martial, before he can contest the validity of the enlistment.</p>

SCIRE FACIAS. On the 5th December, 1.818, judgment was entered in this court by the plaintiff against Thomas Dobson, the testator, then in full life, for the sum of seven thousand five hundered and sixty eight dollars, the penalty of a bond, dated December 1st, ISIS, conditioned for the payment of three thousand seven hundred and eighty four 'dollars, with interest thereon, on the 1st December, 1819.

<p>Amendments under the act of 1806, being prescribed by law, are not discretionary, but mandatory, and therefore subjects of writs of error.</p> <p>But these amendments are not to be permitted, when they introduce a new cause of action,</p> <p>A variance between the writ and declaration is matter of abatement, or special demurrer, and not of review on writ of error.</p> <p>Debt for rent, three hundred and seventy-live dollars. The declaration contains two counts, for two distinct years’ rent, three hundred and seventy-five dollars each. The queritnr demands three hundred and seventy-five dollars. Verdict for less than that sum. The declaration is good.</p> <p>A receipt for rent, by one claiming adversely to the plaintiff-, who alleges, that an event has happened by which the estate has vested in him, is not admissible in evidence, at least without some evidence of attornment.</p>

<p>'EJECTMENT.</p> <p>In this case the jury returned a special verdict, which set forth, -££ That bn the-day of--in the year of our Lord one' thousand eight hundred and seventeen, Alexander Thomas, of the city of Philadelphia, Mariner, died seised of the messuage or tenement and lot of ground, with the appurtenances mentioned in the plaintiff’s declaration in fee simple : That the said Alexander, previous to his death, duly made his last will and testament, bearing daté the twelfth day of October, eighteen hundred and: sixteen, which was afterwards to wit, on the twelfth day of May, eighteen hundred and seventeen, duly proved in the Register’s office, at Philadelphia, by which will, after making sundry devises and bequests, he devised ,as follows: ££ Further it is my will, that my beloved wife, 'Eleanor Thomas, shall receive only the interest in the remaining part of my-real and personal estate, during her life, and at her decease to be divided between her’s and my poor relations equally.” On the thirteenth day of March, 1817,, Eleanor Thomas, widow of the testator, died. At the time of the testator’s death, there were living of his relations, two brothers and three sisters, namely, Daniel MlNeilledge, Peter M‘Neil-ledge, Isabella M‘Farland, wife of Robert M‘Farland, Ann MiFarland, wife of Andrew M‘Farland, and Mary Clark, wife of John Clark; and the children of his deceased brother, James M‘Neillege, to wit, Daniel Campbell MlNeilledge, and Catharine MlNeilledge, all of whom were aliv,e at the time of the death of the widow of the testator, and all of whom, excepting the said Catharine MlNeilledge, are plaintiffs in this suit. That the said Catharine is since deceased, intestate', leaving no lawful issue, nor father, nor mother, nor sister, but leaving a brother, Daniel Campbell MlNeilledge.</p> <p>“ That the testator left no father nor mother at the time of his decease.</p> <p>££ That at the decease of the testator’s widow, there were living of her relations, two brothers and, two sisters, William Burns, Robert Burns, Margaret WainWright, And Catharine Burns; also a mother, named Helen Burns, but no father. Margaret Wainright has since died, leaving one child, John B. Wain'wright'. The mother of testator’s widow has since died, having first made her will — (prout will.) . -</p> <p>££ That the defendant was in possession of the messuage or tenement and lot of ground, with the appurtenances as described in the declaration, when the summons in this case was served.</p> <p>Hereupon the jury submit to the court, whether the plaintiffs or any of them, are entitled to recover the premises described in the declaration, or any part thereof. If the court shall be of opinion, that the plaintiffs or any of them, are so entitled to recover the said premises, then they find for the plaintiffs, or such of them as the court shall say are so entitled to recover. Or, if the court shall be of opinion, that the plaintiffs or any of them, are entitled to recover any part or share of the said premises; then they find for the plaintiffs, or such of them as the court shall think are so entitled to recover, for such part or share of the premises as the court shall ■ say they are entitled to recover.</p> <p>“ But if the Court shall be of opinion, that the plaintiffs, or any of them, are not entitled to recover the said premises, or any part tberéof, then they find for the defendant.”</p> <p>cited, M‘Neillédge v. Galbraith, 8 Serg. &r Rawle, 43. Pyot v. Pyot, 1 Ves. 335. Crossly v. Clare, Jlmb. 397. Isaac v. De Friez, Jlmb. 595.</p> <p>cited, Roach v. Hammond, Pr. in Ch. 401.</p>

IN ERROR. The plaintiff below, Alexander Willis,declared in the Court of Common Pleas of Dauphin county, against the defendant, Peter Grubb, “ for that whereas the said Peter Grubb, on the ninth day of, September, A. D. 1820, at the. county aforesaid, bound himself unto-the said Alexander 'Willis, his attorney, executors, administrators, or assigns, by bond s.igned and sealed by the said Peter Grubb, in the sum of eight hundred and twenty-four dollars, conditioned for the…

<p>The covenants arising upon the words, “grant, bargain, and sell," in a deed, are not inconsistent with, or restrained by an express covenant of special warranty..</p> <p>Where the grantor, prior to the execution of the deed, had mortgaged the premises, it was’held, that the grantee was entitled to recover, in an action upon those covenants, at least nominal damages, notwithstanding the mortgage was not due at'the commenceirient of the suit and no actual damage was proved.</p> <p>If the grantee in his declaration had 'assigned, specially, the consequential damages arising from the breach of the covenants, stating that the land was of less value by reason of the incumbrance; that lie was prevented from selling it as advantageously as he might otherwise have dene, and that in fact it was sold by process of law, for so much less than the value of tiie mortgage, he would have been entitled to damages to the full value of the mortgage.</p> <p>Query, whether the grantee, by calling on .the grantor to remove the incumbrance, would be entitled to recover the value of the mortgage, where there had been no sale, no eviction, and even before the mortgage became due.</p> <p>Of the equity powers possessed by the courts of law in Pennsylvania.</p>

<p>in error. '</p> <p>In the Common Pleas of Lebanon county, to which, this was a writ of error, a scire facias on a mortgage, was issued by the defendant in error, against the plaintiff in error, to which the defendant below filed the following plea:</p> <p>“ And now November 6th, 1821, the defendant above-named,, comes, &c. and for plea saith, that:the assets of the said Peter Smith, deceased, are insufficient to pay the just debts of the said deceased, and therefore, on behalf of the creditors of the said es-tate, says, that the plaintiff ought not to have and maintain his said suit against him, because he says that the mortgage deed, set forth in the plaintiff’s writ, was obtained by the plaintiff by fraud-,' covin and deceit, with intent to defraud the honest creditors of the said Peter Smith, and without any good or valuable consideration whatever. All which, &c.” The plaintiff replied, “that the mortgage given in this case was bona fide; that on the 22d day of March, 1814, when the said mortgage was given, no creditor of the said Peter Smith existed, who was or could be affected, whatever may have been the consideration for the said mortgage; that no creditor on the said day was or is affected, or injured. All which, &e.”</p> <p>A plea in these words was also placed on the record:</p> <p>“Anne Sy billa Smith, the widow and relict of Dr. Peter Smith, comes and claims dower in the premises above-mentioned, and prays to be admitted a defendant, to defend as to one-third part of said premises, and for plea saith, that the said mortgage was obtained from the said Peter Smith, by fraud, covin and deceit, and without any valuable consideration. All whictx, ”&c. To this plea the plaintiff replied thus: “The plaintiff in this cause, for replication to the above, declares, that the widow is entitled to her thii’ds, or her dowei’, at common law, and that he asks to recover in this suit a judgment subject to the dower at common law, of the widow of Dr. Peter Smith.”</p> <p>On these pleadings the cause was' tried on the 12th November, 1821, when the juxy returned the following verdict: “That they find for the plaintiff the sum of six hundred dollars, debt, six cents damages, and six cents costs; and also find the assets, remaining in the hands of the defendant, to be thirty seven dollars, and sixty four cents, and a lot yet unsold, valued at forty dollars.” On this verdict judgment was entered, and a levari facias issued, returnable to November Term, 1823, on which the sheriff sold the mortgaged premises.</p> <p>The. errors assigned in this Court were,</p> <p>1. That the verdict is infoi’mal and illegal.</p> <p>2. That the jury have undertaken to judge of matters not submitted-to them.</p> <p>3. That the jurors have found, contrary to the express admission of the parties, in their pleadings.</p> <p>4. That the judgment is general, and has for ever barred the widow of her right of dower, although it was agreed by the plaintiff that the judgment should lie so entered, as to protect the widow’s dower.</p> <p>5. That the execution does not conform to the judgment.</p>

IN ERROR. M‘Farland, the plaintiff in error, brought an action of slander' against.Brown, the defendant in error, in the Common Pleas of Dauphin county, in which he obtained an-award of arbitrators, for three hundred dollars damages. From this award the defendant entered an appeal. While the Suit was pending, MlFarland became insolvent; but whether he was discharged under the insolvent laws, there was nothing in the record to show.

From the bill of exceptions returned with the record of this cause, on a writ of error, to the Common Pleas of Lebanon county, it appeared that the plaintiffs in error brought an action of covenant against the defendants in error, upon an article of agreement, executed on the 29th of April, 1817. by their testator, John Meyers.

<p>Where, in the body of a sealed instrument, the covenants arc stated as if they were made by a corporation, directly with the plaintiff', without the agency of any one, and the defendant is not named, but signs the instrument, and seals it with his own seal, as president of the corporation, and on their behalf, an action cannot be sustained upon it, against him individually.</p> <p>Tlie defendant has a right, during the trial, to change his plea.</p>

IN ERROR. Error to the Court of Common Pleas of Lancaster county, in an action brought by Thomas Griffith against Philip Roud, before a justice of the peace, who gave judgment for the plaintiff, for 94 dollars and 81£ cents, and costs, on the 2d Jlpril, 1817. The defendant appealed to the Court of Common Pleas, where the cause was tried, and the plaintiff obtained a verdict and judgment for 53 dollars, with cdsts.

<p>IN ERROR.</p> <p>Error to the Common Pleas of Lancaster county.</p> <p>-The plaintiff’s intestate had brought an action of replevin to November term, 1809, for a bay horse, to which the sheriff returned “ replevied, and horse delivered to plaintiff.” On the 10th of October, 1821, after various proceedings had taken place in the cause, which it is unnecessary to state, the plaintiff’s death was suggested, and his administrator substituted. On the same day, on motion of the counsel for the defendant, the court granted a rule to show cause why the suit should not be abated, agreeably to the rule of court. The rule upon which this motion was founded, was made on the 29th of August, 1818, and was in the words, “In all suits now pending, if the plaintiff be dead, and his executors or administrator shall not be substituted within one year after the adoption of this rule, or if the defendant be dead, and process shall not be issued within that time, to make his, or her executor, or administrator parties, in either case, -the suits shall abate, and the prothonotary shall make an entry accordingly.” After argument, the court made the rule to show cause absolute, and a judgment of abatement was accordingly entered.</p>

IN ERROR. Samuel Weidler, the plaintiff in error, brought a suit in the Court of Common Pleas of Lancaster count]', against the defendants in error, in which he declared for money had and received by them to his use. It appeared from the record, and the several bills of exceptions accompanying it, that the Farmers Bank of Lancaster had, on the 10th of August, 1815, obtained a judgment on an award of arbitrators, against one John Fulweiler, for 361 dollars 43 cents.

<p>IN ERROR.</p> <p>This .was a feigned issue sent from the Register’s Court to the Court of Common Pleas, of York county, to determine the validity of a paper, purporting to be the last will and testament of Peter 'Pipe, deceased. The case in the court below, turned upon the sanity of the testator’s mind at the time the paper was executed, in relation to which testimony was given on both sides, which it is unnecessary to state. Michael Leih, was called as a witness, by the plantiff, who proposed, to ask him, “ whether from his actual knowledge of Peter Pipe, he considered him fit or unfit to make a willP’ The counsel for the defendant" objected to the question being put, but the court overruled the objection, and permitted the question to be asked. - .</p> <p>It appeared that Peter Pipe, at the time he executed the writing in question, was seized of two tracts of land, of nearly equal value, and some personal estate, the exact amount of which did not appear. He had one son and one daughter. One of these tracts of land, he devised to his son and the other to the family of his daughter. He gave a legacy of four hundred pounds to an illegitimate child of his daughter, and one half of the residue of his estate to his son, and the other half to the family of his daughter. He afterwards sold the tract devised to his daughter’s family, "and contracted debts which swept away the tract devised to his son. At the time of his death, it was supposed that his estate was not more than sufficient to pay his debts, and the legacy to the illegitimate child of his daughter.</p> <p>The counsel for the defendant proposed to the court six questions, on which they requested the court to instruct the jury, and among other things, that the facts above stated, exhibited such a change in the circumstances of Peter Pipe, after making his will, as amounted to an implied revocation of the whole of it. The court however instructed the jury, that the facts did not amount to an implied revocation of. the whole of the will, and a bill of exceptions was tendered to their opinion.</p> <p>objected to the question which the court had permitted to be put to Michael Leib, because it was a leading one, and plainly intimated the answer, which the party putting it, wished him to make. He admitted, that there were cases, in which the court may, in their discretion, permit a witness to be asked a leading question, hut this is not one of them. The case presented no special circumstances. Putting the question in the alternative, could make no difference. Whether or not an answer was given, is not material. The objection was to the question, which was not withdrawn, and as the bill of exceptions does not show that no answer was given, the presumption is, that it was answered. Phil. Ev. 205. 6 Binn. 490.</p> <p>The acts of the testator amounted to an implied revocation of his will. He had divided his estate among his children with much equality, but by his subsequent acts, all equality was desti’oyed. It is true, that it has never yet been judicially determined, that any other circumstances amount to an implied .revocation, than marriage and birth of a child, after the execution of the will. But the principle upon which such a revocation is founded, is applicable to other great changes in the circumstances of the testator. Suppose a man having three children, is seized of two tracts of land, and possessed of personal property, and devises a tract of land to each of two children, and the personal property to the third, and afterwards sells both tracts of land, and dies, leaving a large personal estate but no land; would not such a state of things present as great a change in his circumstances, as marriage and birth of a child? This cannot be denied; and the changes proved in this case, are scarcely less strong than those of the case supposed; for if the will of Peter Eipe, be not revoked, his illegitimate grandchild gets the whole of his estate,' and his legitimate children nothing. Powell on Devises, 554, 557, 565, 605, 609.</p> <p>denied that the question put to Michael Lieb, was a leading one, or indicated the.answer he was expected to give. The manner in which the question was framed,' in the alternative, left every thing open. Besides, as the witness did not answer the question, it was wholly immaterial. Sheelerv. Speer, 3 Binn. 130.</p> <p>The doctrine of implied revocations, is w ell defined. No change of circumstances, has been held to amount to such a revocation, except marriage and birth of a child; and to extend it beyond these limits, would lead to great uncertainty and confusion. Aware of the difficulties arising from an implied revocation of a will, our legislature have, by act of assembly, modified the common law principle, and made marriage and birth of children a revocation of a special nature only. In the present case, no other change was effected, by the act of the testator, than a sale of one tract of land; and the sale of one tract of land, where a testator has devised several, is a revocation pro tanto only. If the will has been wholly revoked, the legacy to the bastard child will be entirely defeated, although it was the will of the testator to give it. Coates v. Hughes,. 3 Binn. 498.*</p>

<p>IN ERROR.</p> <p>The plaintiffs in error brought an action of debt in the District Court for the city and county of Lancaster, against the defendant in error, on a joint and several bond, conditioned for the payment of twenty thousand four hundred and seventy dollars, twelve and a half cents, given to them by Benjamin Kaufman, the defendant, Christian Slouffer, jun., and Christopher Brenner, deceased. The defendant pleaded payment, with leave to give the special matter in evidence. The jury, before whom the cause was tried, returned a special verdict; by which they found in substance, that the plaintiffs had brought a suit in the Court of Common Pleas to JlugusL Term, 1816, on the same bond, against the administrators of Christopher Brenner, deceased. This suit was arbitrated, and the arbitrators awarded, that the plaintiffs had no cause of action. From this award the plaintiffs entered an appeal. The cause was afterwards fried, when the plaintiffs voluntarily suffered a nonsuit. This took place after the institution of the present suit; but the defendant did not plead the former judgment. That was suggested by the court to be the proper course, and a plea was accordingly framed; but withdrawn in consequence of an agreement at bar, that the record should be given in evidence, in the same manner as if it were pleaded. The plaintiffs proposed to prove on the trial, that the nonsuit in the former action was suffered, in consequence of one of the defendant’s witnesses having sworn to a fact, which, if true, was fatal to their cause of action; and that it had since been discovered, that the witness was perjured; which the plaintiffs offered also to prove. The court overruled the evidence, and sealed a bill of exceptions.</p> <p>The opinion of the court below being, that, in consequence of the nonsuit, the award remained in full force, and was a bar to the present action, the plaintiffs excepted to their opinion, and removed' the record to this court by writ of error.</p>

<p>Ill proving' what was testified by a deceased witness on a former tria!, it is not necessary that the very words spoken by him should be sworn to. But the person •who undertakes to prove his evidence, must be able to state the substance of the whole of what was said on the particular subject, whieh he is called to prove. If he can only prove what was sworn to by the deceased person, in his examination in chief, without giving the cross examination, it cannot be received in evidence.</p> <p>Where it is a question, whether a sum of money in the hands of the defendant, belonging to A. has been appropriated by A. to the plaintiff, or to B., evidence, that B.' told the defendant that he claimed the money for his clients, and should look to him for it, is admissible on a count for money had and received.</p> <p>If a third person confess a judgment to the plaintiff, for a simple contract debt due from the defendant to the plaintiff the simple contract debt is not merged in the -judgment.</p> <p>Nor is the judgment a payment or extinguishment of the simple contract debt, unless such be the agreement of the parties.</p>

<p>After a parly has waived his right to challenge jurors, he cannot resume it.</p>

<p>IN ERROR.</p> <p>In the District Court for the city and county of Lancaster, to which this was a writ of error, Joshua Scott brought an action of debt on a bond, conditioned for the payment of three thousand dollars, against John Swan, who pleaded payment with leave, &e. and gave the following notice of special matter.</p> <p>“ That the consideration of the bond on which suit is brought is illegal, it being given for services rendered by the plaintiff, in laying out, planning, surveying, selling tickets, &c. in a certain, lottery, unauthorised by law, in a certain town, called, and known, by the name of Portsmouth, in the county of Dauphin: That the plaintiff was well acquainted with its being a lottery transaction, contrary to law: That he was a principal adyiser, director, and assistant in said lottery, and that he was present, aiding, and assisting at the time of the drawing of the lottery, by which the lots were distributed. The defendant also means to prove, that the plaintiff was a partner in this lottery transaction: That the plaintiff agreed to sell a number of tickets, and guarantee their payment: That he did sell them, but that the purchasers refused to pay, on account of its being illegal, by which means the defendanl sustained great losses: That the defendant has been much damaged, in consequence of the refusal of the purchasers of tickets, to pay him for the same.</p> <p>“ The defendant also means to prove, that the said Joshua Scott has been amply paid for all his services.</p> <p>“ He will also give in evidence the following payments and disbursements, viz. (here follows a statement of various sums, amounting together to one thousand three hundred and thirty-eight dollars and thirty-three cents, alleged to have been paid and disbursed at various times, from the 27th of Jlpril 1814, to the 3d of Jlpril 1820.)</p> <p>“The defendant also means to prove,that it was by the persuasion of Joshua Scott, and George Fisher, that he became concerned in this business.”</p> <p>It appeared that a suit had been brought in the Common Pleas of Lancaster county to January Term, 1817, by Scott against Swan, in which a statement of the plaintiff’s cause of action was filed in these words.</p> <p>“ John Swan, the defendant, on the 12th of May 1814, duly executed and delivered to the plaintiff his certain instrument of writing, of the tenor following that is to say, “ Settled this 12th day of May, A. D. 1814, with Joshua Scott, for his compensation, and for deeds in the town of Portsmouth, and there is due from me to Scott, three thousand three hundred dollars, which I engage to pay as follows; one half thereof on the first day of Abvember next, and the remaining half on the first day of November 1815,”</p> <p>(Signed) . JOHN SWAN,</p> <p>which said sum of three thousand three hundred dollars, the said John Swan hath not paid, nor any part thereof, according to the said insti'ument of writing, but the same to pay,” &c. This cause was submitted to the decision of arbitrators under the act of 1810, who on the 4th of February 1813, filed an award in favour of the plaintiff for three thousand and thirty-two dollars and sixty nine cents. From this award the defendant entered an appeal; and on the 22d of May 1818, by writing filed, under his hand and seal, withdrew the appeal. On the same day, Scott, the plaintiff in that action, acknowledged on the record, to have received full satisfaction for the amount of the award of the arbitrators. The bond upon which the present suit was- brought, which was dated on the same day, was alleged by the plaintiff to have been received in satisfaction of the award.</p> <p>On the trial of the principal case, after the plaintiff had given in evidence the bond on which the suit was founded, the defendant produced the. deposition of George Fisher, the following parts of which were read in evidence, without opposition, viz. That some time in the fall of 1813, the affirmant, contracted with the plaintiff, Scott, to lay out a town on his farm at the junction of the Swatara with the Susquehannah: That as nearly as he could recollect, not having the contract then in his possession, the terms were, that the plaintiff was to procure the defendant, Swan, to join him, Fisher, or to lend his name or aid or both, to effect the object of the contract, to whom a deed was to be executed to énable him to give titles to the purchasers; and that for laying outthe town and disposing of the lots and paying all incidental expenses, the affirmantwas to pay the plaintiff three thousand dollars: That the town was laid out, and the lots all disposed of by Scott, the plaintiff, and his agents, about the first oidlpril 1814 : That the affirmant went to Lancaster to close this transaction, and settled with Swan the defendant, in the presence of Scott, the plaintiff, and took his bonds and notes for twenty thousand dollars, on an assignment under his hand and seal, of all the lots and notes mentioned in the agreement, there executed between the affirmant and Swan, the defendant, a copy of which was annexed: That at the time this transaction was completed, it was perfectly-understood between the affirmant, the plaintiff, and the defendant, that the defendant was to pay the plaintiff the three thousand dollars stipulated in the aforesaid agreement made between the affirm-ant and the plaintiff: That the plaintiff and defendant, perfectly understood, this, both consented, and no objection was made by either party: That the affirmant and the plaintiff had fixed three thousand dollars as the plaintiff’s compensation for his services, before he had any communication or contract with the defendant, and that he should have considered himself bound to pay this sum to the plaintiff, on the accomplishment of the object contemplated by both, at the time he entered into the contract with the plaintiff; but that when he settled with the defendant, he considered himself as having nothing further to do with either the plaintiff or the defendant, and so it was understood by them: That the defendant then-assumed to pay the plaintiff'three thousand dollars, and the defendant agreed to accept him for that sum, and discharged the affirmant from any further liability: That the plaintiff had laid out the town, sold the lots, and taken notes from the purchasers, which he was prepared to deliver over to the affirmant, before he finally contracted with the defendant, all which was known to the defendant, when the contract was closed, and the list of purchasers exhibited to him, and nothing remained to be done on the part of the plaintiff, to entitle him to the three thousand dollars from the defendant. In answer to a question put to him by the defendant, the affirmant said, that the agreement between the plaintiff and himself was reduced to writing by the latter, signed by him, and then sent to the plaintiff at Lancaster,' but whether it was signed by hiift or not, the affirmant did not recollect: Thé plaintiff acted under it, and the affirmant did not remember to have seen it since he forwarded it to the plaintiff. The following question Was also put by ,the defendant: If the lots had hem sold to persons unable to pay for them, would you have considered yourself bound to pay Mr. Scott the sum of three thousand dollars ? The affirmant answered thus: This was a concern amounting to fifty thousand, dollars and upwards. It was understood that the sales were not to be made to persons who were unable to pay for, the lots/ and if a considerable portion of them had been so sold, the affirmant would not have considered himself bound by the terms of his contract, to pay the plaintiff the full amount of three thousand dollars ; and if they had all been sold to persons insolvent, he certainly would not have been paid the three thousand dollars or any part of it. The counsel for the plaintiff objected to the question and answer above stated, being read in evidence; upon which the counsel for the defendant, gave in evidence a notice in writing, served on the plaintiff, to produce certain papers, particularly an agreement between George Fisher and Joshua Scott, executed in the summer or autumn of 1813. The court, however, overruled the question and answer objected to, and at the request of the counsel for the defendant, sealed a bill of exceptions.</p> <p>Tobias Miller was then called, who swore that he was one of the arbitrators in this cause: That Scott observed, that he was employed by Mr. Fisher to lay out the town and make the deeds for the lots, and that this bond was given to him for his services: That something was said about his selling the tickets for them, but the witness did not recollect that he said he was to be answerable for the tickets he was to sell: That he (Scott) said something about a judgment he had against him (Swan) before. Henry Bear then testified that he was present at the drawing of the lottery for the town of Portsmouth, at Coopers; That many were present; ticket holders: That Scott was there, but the witness did not recollect what he was doing there, nor did he recollect- Scott’s selling any tickets that day; but he sold them before: That he did not recollect what Scott said, except at the arbitration, when he said that he, Swan,-owed him this money for laying out the town, and selling the lots. A number of lottery notes were then given in evidence, of various dates, all executed to John Swan, and witnessed by Joshua Scott. Bear was then cross-examined, and said that before this bond was given, Swan sent him and Miller to give their notes to Scott; before any arbitration: That they offered their notes, but Scott made some excuse, and would not accept them: That the witness sold fifteen or twenty tickets in the lottery: That he was employed first by Swan, and afterwards spoken to, both by Scott and Fisher: That Swan said he had bought Fisher out, for twenty thousand dollars. Joshua Scott then swore,, that the agreement which George Fisher swore he had sent to him, had been destroyed. The counsel for the defendant then again offered in evidence, the question and answer already referred to; but the court again rejected it, and another bill of exceptions was tendered and sealed.</p> <p>In the course of the trial, the plaintiff called Henry Carpenter as a witness, who stated that he was one of the referees: That Swan was before them,, and proffered some bonds of other men to Scott in liquidation of his claim, which he did not accept. After some further testimony not material, the counsel for the plaintiff offered to prove by Mr. Carpenter, That on the evening of the day after the award, or a day or two after, the defendant requested the witness to call on Mr. Scott and offer him some bonds and money in liquidation of the award: That he did so, and Mr. Scott refused to accept the offer. The admission of this evidence was objected to by the counsel for the defendant; but the court admitted it, and sealed a third bill of exceptions. ^</p> <p>Immediately after the testimony of Henry Bear had been given, the counsel for the defendant, offered to p^jve, by the receipts of Joshua Scott, admitted to have been executed by him, after, the date of the contract referred to in the deposition of George Fisher, that the said John Swan had paid, on the said contract, to the said Joshua Scott, the sum of 1338 dollars and 33 cents, before the said Scott obtained from the said Swan,the bond now in suit. The counsel for the plaintiff having objected to the admission of this evidence, it was rejected by the court, and a fourth bill of exceptions was tendered by the counsel-for the defendant.</p> <p>Before the court delivered their general charge, the counsel for the defendant, submitted to them five points, on which they requested them specifically to instruct the jury. To the answers of the court on the following, exceptions were taken.</p> <p>2d Point. That a lottery for the disposal of land, is prohibited by the act of 17th February, 1762, and that if the jury believe that the original considération for which the bond was given, was services rendered by Joshua Scott-, the plaintiff, in laying out the town of Portsmouth into lots, for the purpose of making an illegal lottery, knowing that the lots were to be disposed of by way of lottery; in procuring John Swan, the defendant, to lend his name to sanction this illegal transaction; in selling lottery tickets, and acting as agent in drawing the said lottery, and in other matters connected therewith, then the consideration is illegal, and any promise, settlement or bond, founded upon it, either by George Fisher, or John Swan, cannot be enforced in a court of justice.</p> <p>’ Jlnswer. It is now settled, that land lotteries are prohibited by the act of the 17th February, 1762, and the act extends as well to the agent as the principal; to all persons aiding and assisting, or in any wise concerned jn managing, conducting or carrying on such lotteries. And, between, Mr. Fisher and Mr. Scott, so far as Mr. Scott was concerned in carrying on this lottery, and selling the tickets, he would have to depend on the honour of his employer, for compensation, for the law would not lend him its aid, to recover such compensation; for I take it to be settled by numerous decisions, the latter of which entirely overruled, Faikneyv. Reynous in Burrow, cited by the plaintiff’s counsel, that an agent employed in the management of an illegal contract, cannot recover any compensation for his labour, from the person at whose request it was performed, and who had the benefit of it. Nor could he recover any compensation for services rendered in procuring others to become agents or parties to an illegal transaction. But with respect to the services rendered by Mr. Scott, in surveying the land and cutting it up into parcels, at the request of Mr. Fisher, 1 can see nothing illegal in tí-at. A man may survey and divide his property in any manner he pleases; the surveyor would, in my opinion, be clearly entitled to recover for such services. The latter part of the point, will require a distinct consideration, arisingon other points.</p> <p>3d Point. That the contract on which this suit is brought, is entire, and if any part- of an entire contract be void, the whole is void.</p> <p>Answer. It is settled that where a contract is entire, if it be founded on two considerations, one legal and the other illegal, the whole is void. No doubt this contract is entire; but the question still remains for the jury to determine, on the whole case, whether any part of the contract be illegal; or supposing it to have been so originally, whether the defendant is in a situation to take advantage of it.</p> <p>4th Point. That if the consideration of the original contract or any part thereof be illegal, the compromise alleged to have been made between the parties, in consequence of which the bond on which this suit is founded, was given, will not prevent the defendant from availing himself of the illegality of the original consideration, and avoiding the contract.</p> <p>Answer. As to this point, the court have already expressed an opinion, that an offermade pending a suit, ifnotacceded to, cannot after-wards be made use of in evidence againstthe party offering it, by way compromise. Therefore what was said by Henry Carpenter, as to offers not acceded to, with a view to a compromise, ought not to have any weight, and should not be noticed by the jury. But as to the acts and declarations of the defendant, after the decision of the arbitrators, when the controversy was settled, except only as subject to an appeal, and as to the mode of paying the sum awarded, and not as a compromise of the suit, they were, in my opinion, clearly good evidence.</p> <p>After having instructed the jury, on the points submitted to him, the judge charged the jury in the following manner:</p> <p>There has been much controversy, as to the.original transaction between Mr. Fisher and Mr. Scott, and the compensation, agreed upon between them, for services rendered by Scott to Fisher. There was no dispute between Fisher and Scott as to this consideration. Swan was no party to it, and Fisher admits that the whole sum was due and payable. All these services were rendered priorto the purchase by Swan. If this purchase was induced by any fraud in Mr. Scott upon Swan, as suggested in the first point, and he was induced to assume the payment of the 3000 dollars, under the influence of such fraud, it would invalidate the transaction. But if Scott had nothing to do with this contract, and there was no fraud on his part, and the debt due from Fisher to Scott, was assumed by Swan, as part of the consideration of the purchasé, by his agreement, and Scott discharged Fisher and accepted Swan as his debtor, in his stead, I think under all the circumstances, Swan was bound to pay the debt, and cannot by way of defence, enter into the consideration of the- debt between Fisher and Scott. I am unable to point my finger to any part of tbe evidence, which affects Scott as to this purchase. There must be some evidence of it, and the jury must patiently examine the evidence, and judge for themselves, as to rasult of it.</p> <p>Mr. Swan not having discharged this debt according to his promise, it appears a suit was brought, which suit was referred under the act of assembly. This was the time for Mr. Scott to make his defénce, and to set up any want of consideration, or fraud, which would have invalidated it. It appears, however, that the parties were heard before a competent legal tribupal, and an award made, and filed, according to law. This, by the act of assembly, is a judgment, subject only to be reversed on an appeal. The amount of debt yyas fixed by this award; if not appealed from in a certain number of days, it would be conclusive; if appealed from, and the appeal be withdrawn, the judgment is final and conclusive, and is then only tangible by writ of error, for'error in the record; not as to the merits. If no appeal or writ of error be taken out, execution issues on it of course. The amount of debt is fixed. An award under the arbitration act, has no resemblance to the case so strongly put, by the defendant’s counsel, of an interlocutory judgment, which determines nothing. It requires a writ of inquiry to ascertain the debt or damages, which must be returned to the court, to receive their final decision, before which it does not pass in remjudicatam; but if returned, and final judgment be entered on it, it-then becomes final. It puts the parties at rest, if not reversed on writ of error. The consideration of the debt cannot afterwards be inquired into in any collateral suit. But in the case put, where a compromise took place after the inquisition taken, but not returned, it was held not to be a judgment of the court, and that the fraudulent transaction of the party could be inquired into;</p> <p>There must be a time when there shall be an end of controversy. Judgments may be and often are, founded upon erroneous reasoning; but as the subject, wherever it rests, must ultimately be subject to human infirmity, the imputation of such error, ought not to be regarded as an impeachment of the authority, unless applied in its direct connection, according to the regular course of an appellate procedure. It is true there was an appeal in this case, but it was withdrawn, which amounted to an agreement, that the judgment should be final and conclusive. The withdrawing of the appeal, and the bond, were of the same date; which was the first act done, does not appear; but take them to be concurrent acts. What would have been the effect of the appeal, if it' had been prosecuted, cannot appear; but suppose it uncertain. The settlement of a doubtful controversy, is a good consideration for a promise, for the sake of peace. It is the interest of the commonwealth that there should be an end of law suits. I am, therefore, of opinion, that this agreement to settle their disputes, if not accomplished by' the means of fraud, and to withdraw the appeal, area good consideration for a bond; and the defendant having given the bond, to discharge the judgment, and satisfaction having been entered in pursuance of the agreement, he ought to pay it. I think the law, upon the whole ease, is with the plaintiff, and that fie is entitled to recover. The jury will, no doubt, examine the case for themselves, and will give such a verdict, as they may judges hall be most consistent with the evidence, and the law.</p> <p>who cited, Mitchell v. Smith, I Binn. 110,120. 14 Mass. Rep. 377. rfct of 20th March, 1810,, sec. 10. Purd. Dig. 14. 1 Powell on Cont. 354. 2 Id. 184. 5 ' Serg. fy Rawle, 141, 1 Sm. L- 346, 247. 4 Serg. fy Rawle 151. 1 Ba. Jib. 272 to 2Í6. 1 Phill. Ev. 224.</p> <p>1 Phill. Ev. 82. 2 Id. 7. 2 Serg. <§■ Rawle, 354. W-hart. Dig. 248. pi. 313, 314, 323. 8 Johns. 39. 1 Saund. 211, b. note. 2 Com. on Cont. 113. Faikney v. Reynous, 4 Burr. 2069. 1 Bac. Jib. 262. King v. Sloan, 1 Sergt. Sr Rawle, 77. Cardesa v. Humes, 5 Serg. fy Rawle, 65. ■ 1 Phill. Ev. 242. Smith v. Lewis, 3 Johns. 157. Whiter. Ward, 9 Johns. 232. Whart. Dig. 170. pi. 14, 15. Id. 121. pi. 3. Id. 105. pi. 4. Williams v. M(Kelsey, Jidd. Rep. 56. 1 Ba. Jib. 257. Lady Herbert v. Earl of Powis, 1 Powell on Cont. 303. Livingston v. Hastie, 2 Caine’s Rep. 246. 3 Bl. Com. 24. 2 Fern. 14. Com. on Cont. 113.</p>

in error. On a writ of error issued to the Court of Common Pleas of Berks county, the record of this case was returned, together with a bill of exceptions, from which it appeared, that it was a scire facias on a mortgage given by the'defendants, to Benjamin Morris, of lands lying partly in Berks and partly in Chester county, to secure the payment of certain bonds mentioned in the mortgage.

IN ERROR. Tbe plaintiff in error, William Stout, was tried in the Court of Quarter Sessions of Dauphin county, on the following indictment: “ The grand inquest of the Commonwealth of Pennsylvania, inquiring for the county of Dauphin, on their oaths and solemn affirmations, respectively, do present, That William Stout of the county aforesaid, yeoman, on the seventeenth day of January, in the year of our Lord, eighteen hundred and twenty-four, at the county aforesaid, and…

<p>IN ERROR.</p> <p>This case came before the Court on a writ of error to the Common • Pleas of Dauphin county, with which several bills of exceptions were returned, as well to the rejection of evidence as to the charge of the court below.</p> <p>who cited, Juniata Bankv. Brown, 5 Serg. <$• Bawle, 226. Phill. 34. note. 1 Dali. 254. 4 Serg. %■ Bawle, 399. and by</p>

On an appeal from a decree of the Orphans’ Court of Lancaster' county, it appeared, that Christian Shultz, administrator of Benjamin Weaver, deceased, having filed his administration account, it was referred to auditors for examination. The assets not being sufficient to pay all the debts of the intestate, the auditors allowed interest upon the debts- due by specialty, only to the time when letters of administration were granted.

IN ERROR. Error to the Court of Common Pleas of Lancaster county, in; an action of trespass, brought by the plaintiff in error, against the' defendant in error, for seizing and selling his goods.

IN ERROR. Mam Spring, the defendant in error, brought an action of debt on bond for the use of Garvin Henry, iti the Court of Common-Pleas of Dauphin county, against the plaintiffs in error, Jacoby and Isaac Updegraff, who pleaded payment,- with leave to add, alter, and amend.

<p>A deed, granting in the premises, an estate “to A. and B., and to their heirs and assigns,” but in the habendum, “ to the said A. and B.., their, and each of their heirs and assigns, to the only proper use and behoof of the said A. and B., their, and each of their heirs and assigns for ever,” passes to the grantees, an estate as tenants in common, and not as joint tenants, independently of the act of 31st March, 1812.</p> <p>That act extends to estates in joint tennancy, wliieh were in existence at the time it was passed, and is not forbidden by the constitution of Pennsylvania.</p>

<p>In an action upon the aet of congress of 19th April, 1816, imposing new duties on licensesto distillers of spirituous liquors, the term during which the defendant used the still, and the sum claimed for double duties, should be stated in the declaration ; and the omission to state them, is not cured by verdict.</p> <p>A declaration demanding two distinct penalties and double duties for the use of two separate stills, is bad; the use of the stills being a single act, for which a single penalty can be recovered.</p> <p>The Court of Common Pleas, has jurisdiction of actions arising under the act of congress above-mentioned.</p> <p>The arbitration act of 20th March, 1810, does not embrace actions founded upon penal statutes. Therefore, if the defendant arbitrates the cause-, and upon an award being filed against him, enters an appeal, and the verdict, on the trial of the appeal, be for a less sum than the award, it nevertheless carries costs.</p>

<p>IN EBBOB.</p> <p>On the trial of this cause, in the Court of Common Pleas of Lancaster county, one York Frever having been examined as a witness of the part of the defendant, the plaintiff, for the purpose of discrediting him, offered in evidence the deposition of George Thompson, which contained the following questions and answers:</p> <p>Question by the plaintiff. —What is the general character of York Frever, negro, or do you know him ?</p> <p>Answer. — I do not know him by the name Frever, but I know Black York, who gave evidence in a case’ of William, Lightner and others against Wike, about twelve years ago; he worked for me three days; and from his conduct during that time, I had reason to believe him not to be an honest man.</p> <p>Question by plaintiff. — Have you ever heard, of others,whether he was a dishonest man, or bore a bad character ?</p> <p>Answer. — I heard others say, that he was a bad fellow.</p> <p>Question by plaintiff. — Would you believe him on his oath?</p> <p>Answer. — I could not place so much confidence in his testimony, as in that of a man of integrity.</p> <p>The court, on an objection being made by the counsel for the defendant, refused permission to read the deposition, and a bill of exceptions to their opinion was tendered and sealed.</p> <p>admitted, that the answer to the first interrogatory was properly rejected, but insisted, that the last two were good evidence. They tended to show, that the witness’s moral character was bad, which was sufficient. To ask the deponent, whether, he had heard others speak of him as a bad man, or as bearing a bad character, is equivalent to asking him what people in general, say of him, in respect to these matters; a form of question which cannot be objected to. It is difficult to make some witnesses understand what is meant by general character; and unless the question be put in different ways, the evidence will be lost, merely because the question is not understood. Kimmel v. Kimmel, 3 Serg. & Rawle, 336. Phill. Ev. 211. 2 Hayw. Rep. 300.</p> <p>were stopped by the court; whose opinion was delivered by</p>

IN ERROR. Prom the record of this case, returned on a bill of exceptions, to the District Court for the city and county of Lancaster, it appeared that it was an action on a written contract without seal, by which the defendant promised to deliver to the plaintiff, at the mill of the defendant, one hundred and eighty barrels of superfine flour, atfive dollars a barrel, payable on delivery.

IN ERROR. The jury before whom this cause was tried in the District Court for the city and county of Lancaster, on the 7th January, 1822, returned a .verdict, finding “for the plaintiff 517 dollars damages, and six cents costs, Subject to the opinion of the court.” The court afterwards, on motion of the counsel for the plaintiff, which was opposed by the defendant’s counsel, directed the verdict to be amended, according to the entry made by the court at the time it was…

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Lancaster county.</p> <p>The only question presented by the record was, whether the deposition of John Riley ', offered in evidence by the plaintiff below, and rejected by the court, was evidence. This deposition was taken by consent, when the cause was depending before arbitrators, from whose award the defendant appealed to the Court of Common Pleas. The witness was living, and supposed to be somewhere in York county, when his deposition was offered in evidence.</p>

<p>How far administrators will be allowed, in the settlement of their account, payments made by them, for the funeral expenses, boarding and lodging, horse-keeping, &c. of the intestate.</p> <p>The Orphans’ Court have power to open and re-examine an administration account, at any time during the term at which it was settled.</p> <p>Where two administrators, neither of whom was next of kin to the intestate, settled a joint account, in which they charged themselves with the amount of the inventory they had previously filed, which embraced a bond and book debt due to the intestate from one of the administrators; the court refused, after the lapse of four years, to discharge the co-administrator from his liability for this debt, because it had been discovered since the settlement of the account in the Orphans’ Court, that the obligor was insolvent at the time of the intestate’s death.</p> <p>The proper time to claim an allowance for bad or doubtful debts, is when the administration account is settled.</p>

<p>This cause was commenced in the Court of Common Pleas of Lancaster county, by virtue of a written agreement, in these words:</p> <p>“Agreement to enter amicable action on the- case and to refer.</p> <p>Robert Jlnderson and Samuel ^ J</p> <p>Enter amicable action in the Court of Common Pleas of Lancanter couty, to November term, 1819, to decide the following controversy, that is to say:</p> <p>“Whereas to January Term, 1815, No. 391, judgment is entered in the said court, in favour of John Neff, against Thomas Clark, Esq. on the 14th day of March, 1815, for the sum of tw6 thousand dollars, -payable in sixty days after date, being the 31st of February, 1815. And whereas, á mortgage was executed by Thomas Clark and wife, on the first day of May, 1807, to Andrew Walker, for the payment of JB 500, on which a balance of 500 dollars, was due with interest, from the 17th March, 1815. And whereas the tract of land containing about 137 acres, situate in the townships of Colerain, and Little Britain, which the said Thomas Clark owned, was conveyed by him since the date of the said mortgage and the entering of the said judgment, to the said James Porter, now deceased, and the said mortgage has since his death been assigned to the said executors, they and the said James Porter, in his life time, having paid the balance due on the said mortgage, to the said Andrew Walker. And whereas the said tract of land above-mentioned has lately been'sold by the sheriff of Lancaster county, as the property of the said Thomas Clark, and has been purchased at the sale by the said John Neff. And whereas, it is now disputed, whether the balance due upon the said'mortgage, which was paid by the said Col. James Porter, in his life time, in part, and by the said executors since his death,, or the amount of the above stated judgment in favour ;df the said John Neff, shall be first paid, for determining which, this-amicable action is now entered. And it is hereby further agreed, that, arbitrators be chosen this day to determine the same. That the said arbitrators be chosen, and their proceedings be in the same way as though this suit were commenced and arbitrated under the act of assembly, regulating arbitrations. In witness whereof, we have hereunto set our hands and 'seals.</p> <p>September, 13 th, 1819.</p> <p>John Neff, [seal.] ’</p> <p>Robert Anderson, [seal.]</p> <p>Samuel Pusey, [seal.]</p> <p>To George B. Porter, Esq. Prothonotary.</p> <p>The parties, by an agreement endorsed on the above, appointed five arbitrators, who on the 24th December, 1819, awarded, “ That the balance due on the mortgage assigned by Andreto Walker, to the executors of Col. James Porter deceased, shall be first paid, which balance, with interest, calculated to this day, amounts to 635 dollars 58 cents, with costs .of suit, "to be paid by the defendant.” The defendant appealed from the award, and the cause was afterwards tried in the Court of Common Pleas, under an agreement of counsel, that the trial should be on the merits, upon a count for money had and received, and the plea of non assumpsit.</p> <p>On the trial, the counsel for the plaintiffs, after having read the agreement upon which the action was instituted, and the mortgage therein referred to, offered to prove that the said mortgage was recorded on the 20th November, 1807. The evidence was objected to by the' opposite counsel, but admitted by the court. The confirmation of the sheriff’s sale, and the sheriff’s deed to Neff, together with several other matters, which it-is not necessary to mention, were likewise offered in evidence by the plaintiff’s counsel, objected to and admitted by the court. The ft. fa. under which the property was levied on and condemned, was returnable to August Term, 1818. The assignment to the executors of Porter was dated September 23d, 1818, and recorded on the following day.</p> <p>In the course of the trial, the counsel for the plaintiffs, offered JRobert Anderson, one of the plaintiffs, as a witness, having first required the prothonotary to tax all the costs which had accrued, or which in his. opinion might accrue in the cause; which was done, and the amofint deposited in the hands of the prothonotary with a futher sum, Sufficient to cover all the costs which might accrue in the Supreme Court, and a stipulation, that, in case the said Robert Anderson should be admitted as a witness, the said deposit should remain in the hands of the prothonotary, in payment of the costs already accrued, or which might accrue, whatever might be the final determination of the cause. The defendant’s counsel objected to the admission of Mr. Anderson, and the court sustained the objection. The plaintiffs’ counsel then offered to deposit in the hands of the prothonotary, á further sum of fifty dollars, for the purpose above-mentioned, and under a similar stipulation, and again offered Robert Anderson as a witness, but the court again rejected him. The counsel for the plaintiffs then offered to-enter into a recognizance in the penalty of 1000 dollars, conditioned for the payment of all the costs which ever could accrue in the suit, for the purpose of enabling Robert Anderson to become a witness; and then offered him a third time; but the court rejected him and sealed a bill of exceptions upon each rejection.</p> <p>Samuel Dale, Esq. who was one of the arbitrators by whom this cause had been decided, was then sworn for the plaintiffs, and stated: That one little thing he remembered from the manner in which Mr. Neff told it, more than from any thing else: That Pusey and Neff appeared before the arbitrators and stated their respective cases, without the assistance of counsel: That Neff, in speaking of the bond for 3000 dollars, given to him by Thomas Clark, observed, that Clark gave it to him under a promise, that he would not enter it up until a certain time: That his (Neff’s) language, was nearly this, “ At night on my bed, I thought there was something wrong in this business. I was uneasy. I said Johnny, you had better look to yourself. I think you had better take a trip to Lancaster. Accordingly, next day I got up and went to Lancaster, and entered up my bond, and in a few days after Clark executed a deed,” the witness thought he said, “to Porter.” That Neff said, the witness proceeded, that the judgment was entered before the day the agreement would have been out. He had a faint recollection that Neff spoke of eight days, or eight weeks, or eight something. He understood the deed was made between the time the bond was entered up and the time Aechad agreed to withhold it. He added, that he could not recollect all that passed. His recollection was pretty distinct, as to the judgment being entered up before the expiration of the time agreed-upon, because Neff observed, he was fortunate in going to Lancaster.</p> <p>The counsel for the defendant, during the trial, offered in evidence, the deposition of Andrew Walker, to the admission of which the plaintiff’s counsel objected, both because the deposition had not been taken by sufficient authority, and because the whole and every part of the subject matter of the said deposition, ivas incompetent; but the court overruled the objection, and permitted the deposition to be read, except those parts which are printed in italics. An exception wás taken to their opinion. The counsel for the defendant, when the deposition was objected to, called on the opposite counsel to specify such parts of it as they deemed exceptionable. . This requisition they refused to comply with, and the court would not compel them to do so.</p> <p>The deposition of Andrew Walker, was to the following effect: That when Clark and Porter dealt for the land, Porter became paymaster to him, the deponent. Clark sold Porter the land, with the proviso, that he would pay the deponent the mortgage. Clark requested the deponent to come to his house, and they would settle, and he did so.</p> <p> 1st Question by John Neff: Did you consider the mortgage satisfied, when Porter gave you his obligations? </p> <p>Answer. I considered Porter able enough. We agreed that the mortgage should be lifted. He. was to cáll for it, and if he could not get it, I'was to assist him.</p> <p>•2d Question. Did Porter pay you any money, on account, before he died?</p> <p>Answer. He did.</p> <p>3d Question.' How much money was due from Clark to you, when Porter gave you his obligations?</p> <p>Answer. I cannot tell. .</p> <p> 4th Question. Did you consider Clark'’s property bound to you for the mortgage, after Porter became paymaster to you for it? </p> <p> Answer. I considered Porter able enough. I still considered it bound, until I was paid. </p> <p>1st.Question by Samuel Pusey. Do you recollect that we paid the balance of the notes thafySorter gave you?</p> <p>Answer. I do. ;</p> <p>2d Question Do you recollect the year in which Clark, Porter, and yourself had the settlement?</p> <p>Answer. I do not: but the obligation will show.</p> <p>After the evidence on both sides was closed, the counsel, both of the plaintiffs and the defendant, proposed a number of points to the court, on which they requested tile jury might be instructed.</p> <p>They were as follows:. — The plaintiffs points,</p> <p>1st. That on the 14th March, 1815, the day on which the judgment was entered by John Neff against Thomas Clark, the mortgage, executed by Thomas Clark to Andrew Walker, and recorded, was existing in full force: and that, therefore, the judgment of John Neff, bound only the equity of redemption of Thomas Clark, in the land, or that part of the land which remained after the mortgage should be satisfied.</p> <p>2d. That Thomas Clark and wife having conveyed the mortgaged premises to Col. James Porter in fee, on the 17th March, 1815, he took them subject to the said mortgage; and even although the jury should believe the testimony of Andrew Walker, that Thomas Clark and Col. Porter agreed that the latter should become the paymaster of the mortgagee, and that he accepted him as such, yet after Andrew Walker had received the mortgage money from Col. Porter and his executors, it became in equity, the property of Col. Porter or his executors, who might, if he or they thought proper, have it assigned to him or them, and such assignment would be sufficient to give him the proceeds of the property sold at sheriff’s sale, in preference to John Neff, whoso judgment, when it was entered, only bound the equity of redemption.</p> <p>3d. That if the jury believe the testimony of Judge Dale, that John Neff admitted before the arbitrators, that he had entered up his judgment in violation of his agreement, before the time when he ought to have entered it, and that the deed from Thomas Clark to Col. James Porter, was executed before the time when John Neff could legally have entered up his judgment, according to his agreement, that circumstance is conclusive of this cause, and John Neff is bound to pay the sum in dispute, inasmuch as it is only by the violation of his agreement with Clark, that he can have any claim in this cause.</p> <p>4th. That where a third person, to whom the estate of a mortgagor has been conveyed after the date of a mesne judgment, discharges the prior mortgage, he is entitled to stand in the shoes of the mortgagee, as against the subsequent judgment creditor, and may take an assignment of the mortgage for his security; the distinction being, between a payment made by the mortgagor himself, who was the debtor, and a person who has purchased his estate bona fide and for value.</p> <p>The defendant’s points:</p> <p>1st. That inasmuch as it is agreed between the parties, that the mortgage has, since the death of Porter, been assigned to the executors, they and the said James Porter, in his life time, having paid the balance due on the said mortgage to Andrew Walker, it is a payment, and not a purchase of the said mortgage. That said ■ mortgage is extinguished, and plaintiffs cannot recover.</p> <p>3d. That as the mortgage and judgment were liens on the land purchased by Porter from Clark, and as said mortgage was paid by Porter and his executors, it is an extinguishment of the mortgage. That the assignment to .Porter’s executors vests no right of action in the plaintiffs, and that a personal right once suspended as gone for ever. ■ . '</p> <p>3d. That as Porter was the owner of the land on which the mortgage and judgment were liens, a purchase of the mortgage by Porter ^ or his executors, would be an extingishment of the mortgage; that at any rate it would cease to be a lien on the land, and that it would be necessary to resort to Clark for payment of the balance of the mortgage.</p> <p>4th. That Clark, having mortgaged the premises to Walker, had nothingto sell to Porter but an equity: That Neff’s judgment, beingsubsequentto the mortgage, bound only that equity, and as that was all that was or could be sold under Neff’s judgment and execution, the mortgagee, or any person claiming under him, can have no claim to any part of the money made by said sale.</p> <p>5th. That from the case as stated and filed of record, and the proof made by the plaintiffs and defendant, the plaintiffs are not entitled to recover, butjudgment should be rendered for the defendant.</p> <p>6th. That as the property was sold on Neff’s execution, the mortgagees are entitled to no part of the proceeds of the sheriff’s sale.</p> <p>7th. That as it is not stated in the agreement the parties filed of record, that the mortgage was recorded, nor that the sheriff’s sale was confirmed by the court, nor that a deed properly acknowledged was given by the sheriff to Neff for .the property, the plaintiffs are not entitled to recover. ,</p> <p>8th. That from the ease as stated and filed of record, plaintiffs are not entitled to recover.</p> <p>9th. That the agreementof Clark, Walker, and Porter, being to pay and lift the mortgage, as proved by the testimony of Walker, the mortgage was paid, satisfied and extinguished, at the time of the deed to Porter, and that the attempt of Porter and Walker to set it up, is in fraud of their agreement, and would be a complete fraud both upon Clark and his creditors.</p> <p>The President of the Court of Common Pleas, after adverting to some of the leading facts, delivered, to the jury the following charge:</p> <p>The defendant seemed to consider the plaintiffs as not at liberty to prove any other facts than those stated in the' agreement, and have requested the court to charge you, that as it is not stated in the agreement of the parties, filed of record, that the mortgage was recorded, nor that the sheriff’s sale was confirmed bv the court, nor that a deed properly acknowledged was given-by tne sheriff to Neff for the property, the plaintiffs are not entitled to recover.</p> <p>The court are of opinion, that if there was nothing more in the case than the facts, as stated in this agreement, and filed of record, the plaintiffs would not be entitled to recover.</p> <p>But the court decided, that the agreement was nothing more than an admission of the facts recited in it, and was not to be considered as a statement of the whole case,, so as to preclude thé proof of such other matters, by either party, as might be material to a correct decision of the cause, and did not contradict the facts stated in the agreement. We, therefore, admitted the other testimony given on the trial.</p> <p>Andrew Walker, whose deposition has been taken on the part of the defendant, testifies: [His Honour here stated the contents of Andrew Walker’s deposition.]</p> <p>Judge Dare testified as follows:</p> <p>[The President here read his testimony.]</p> <p>The question for your consideration is, whether under the evidence and agreement, your verdict ought to be in favour of the plaintiffs or the defendant.</p> <p>We are asked on the part of the defendant, to charge you on three points, relative- to the effect of the assignment of the mortgage to the executors of James Porter. They are these. [He readNo. 1, 2, and 3.]'</p> <p>We shall answer these three propositions together. The law is, that where the equitable and legal estate are united in the same person, the former is merged in the latter; as where the owner of an equity of redemption pays off a subsisting mortgage, and takes an assignment of it, it will be intended, that he does it to exonerate his estate from the incumbrance, and that the mortgage is extinguished unless it is made to appear, that he has some beneficial interest in keeping the legal and equitable estates distinct.</p> <p>Where a third person, to whom the estate of a mortgagor has been conveyed after the date of a mesne judgment, discharges the prior mortgage, he is entitled to stand in the place of the mortgagee, as against the subsequent judgment creditor, and may take an assignment of the mortgage for his security; the distinction being between a payment made by the mortgagor himself, who was the debtor, and a person who has purchased his estate bona fide, and for value. Whether there are any circumstances in the casé to show, that the two estates,- viz: the legal and the equitable, ■should be kept distinct, is a matter for the jury to judge of under the evidence. Unless some satisfactory reason for keeping up the distinction clearly appears, we ought to adopt the ordinary and natural conclusion, that when the owner of the equity of redemption pays off a subsisting mortgage, he does it to exonerate his estate. We ought, as a general rule, to follow the principle, that in the union of- the’equitable and legal estates in the same person, the former is merged and extinguished. But where there is a special agreement between all the parties interested, that the mortgage shall be paid off by the person holding the legal estate, there must be an end of all further doubt or difficulty upon that point.</p> <p>If you believe the testimony of Andrew Walker, and are satisfied that Porter was to pay off, and lift the mortgage, it is the opinion of the court, that the mortgage must be ctmsidered as paid, satisfied and extinguished, at the time of the deed to Porter, so far as respected Clark and his assigns, and that any attempt on the part of Porter and Walker to set it up, would be in fraud of the agreement, and a fraud upon Clark and his creditors; and after such an agreement, no assignment made to him or to his executors, would be sufficient to entitle them to the proceeds of the property sold at sheriff’s sale, in preference to John Neff.</p> <p>On the part of the plaintiffs, we are requested to charge you, that if you believe the testimony of Judge Dale, that John Neff admitted before the arbitrators, that he' had entered up his judgment in violation of his agreement, before the time when he ought to have entered it, and that the deed from Thomas Clark to James Porter, was executed before the time when John Neff could legally have entered up his judgment, according to his agreement, that circumstance is conclusive of this cause, and John Neff is bound to pay the sum in dispute, inasmuch as it is only by the violation of his agreement with Clark, that he can have any claim in this cause.</p> <p>In the first place, you are to ascertain whether in fact the judgment was entered before the time agreed upon, because it appears from the record, that the bond was dated on the 21st of February, 1815, and the judgment was not entered until the 14th of March, 1815, twenty-one days after the date of the bond. But supposing there was a departure from the agreement-, I do not think, that we can consider the judgment as a nullity. If it were irregularly entered, parties interested had their legal remedy, to have the irregularity corrected; but after the proceedings which have taken place under that judgment, it is now too late to invalidate it in this collateral way, and it ought to be considered asa good and valid judgment. ‘</p> <p>As to the effect of Neff’s judgment, and the sale under it. It is certain, that on the 14th of March, 1815, the day on which the judgment was entered by Neff against Clark, the mortgage executed by Clark to Walker, and recorded, was existing in full force, and that, therefore, the judgment of John Neff, bound only the equity of redemption of Thomas Clark in the land, or that part of the land which remained after the mortgage should be satisfied.</p> <p>The purchaser at sheriff’s sale, purchases only the title of the debtor, whatever it may be. If he has but an equity, the purchaser acquires no more. The sheriff sells the interest of the defendant in the execution; he cannot give a better title than the defendant himself had. He, therefore, could’ not sell or affect Walker’s interest. His interest was paramount, and could not be prejudiced. But with respect to the proceeds of the sale of property mortgaged, or subject to prior judgments, unless it be sold subject to those liens, they must be applied to the payment of them in the order of priority.</p> <p>But if the purchaser, or the sheriff, refuse to pay the proceeds to the lien creditors, I apprehend the legal remedy would not be the one now adopted. And, therefore, supposing the mortgage unextinguished, and unsatisfied, were it not for the agreement of the parties, this action would not be sustainable. The proper remedy would be a scire facias,* or other process, by which the property purchased by Neff, would be made answerable for the lien of the mortgage. But the agreement of the parties alters the case. They have agreed, that in this action it shall be determined, whether the balance due upon the mortgage, which was paid by the said Col. James Porter, in his life time in part, and by his executors- since his death, or the amount of the judgment in favour of John Neff, shall be first paid, and that this question shall be tried upon its merits on a count for money had and received, and upon the plea of non assumpsit.</p> <p>If, therefore, you are satisfied, that the mortgage was extinguished by the agreement of James Porter, or by the subsequent payment, you will find for the defendant. If you are convinced, that it was the intention of the parties, that the mortgage should continue a charge upon the land, you will find for the plaintiffs.</p> <p>when about to argue the errors assigned in the 1st, 2d, and 3d bills of exceptions, founded on the rejection of the testimony of Robert Anderson, was informed by the court, that this point had already been decided during the present term, upon which he abandoned these exceptions.</p> <p>4. The deposition of Andrew Walker was improperly rejected. The party objecting to a deposition, is not bound to point out the parts which are exceptionable. The burthen should fall on him who offers' it. It is his duty to strike out at his peril, all illegal evidence.</p> <p>5. The court did not answer all the questions submitted to them on behalf of the plaintiffs in error, particularly the second point, and so far as they have answered them, they have done so erroneously. It is perfectly clear, that a prior satisfied incumbrance may be brought in for the protection of a subsequent bona fide purchaser, without notice of the defect of title. Powell on Mort. 513, 657, 658. Sugden, 519. 8 Johns. 16S. Hamilton v. Callender, 1 Dali. 420. His situation resembles that of a surety, who has paid the debt of his principal, and who is entitled to stand in the place of the creditor, and- receive all the advantages to which he was entitled. Clason v. Morris, 10 Johns. 525. Having obtained an assignment, Porter occupied the situation of the mortgagee, and as the property was subject to the mortgage when the plaintiff entered his judgment, he cannot now be placed in a better -situation than he then was.</p> <p>6. The court below erred in charging, that the plaintiff’s judgment was a lien from its date. • It was entered in violation of his positive agreement, and therefore, must be considered as operating only from the time at which he was entitled to enter it. This being subsequent to the deed to Porter, the land in his hands could not be affected by it.</p> <p>We further complain, that the court took the whole matter from the jury.</p> <p>1. The case was submitted to arbitrators on a statement of facts, and it was afterwards agreed to try it on its merits. The case stated in the agreement, to which the parties ought to have been confined, mentioned the mortgage, but was silent as to its being recorded. The action, therefore, cannot be maintained.</p> <p>2. Taking the case, however, upon the whole of the evidence, the plaintiffs in error ought not to succeed. The mortgage was recorded, and was prior to the defendant’s judgment. After his judgment, Clark conveyed to Porter for the consideration of 2,800 dollars. The bargain waá, that Porter should pay the amount due upon the mortgage to Walker, which was to be deducted from the purchase money. Porter paid 2,300 dollars, and was to pay 500 dollars more. Unless,, therefore, he pays what was due upon the mortgage, he does not pay the whole of the purchase money. Porter gave to Walker a bond for the balance due, and he now endeavours by an ingenious operation; to put this sum of 500 dollars into his pocket, to the injury of Clark and his creditors. Payment by Porter of the money due on the mortgage, was equivalent to payment, by Clark. Porter being the owner of the land, -the moment the mortgage was paid, it was extinguished, and he held the estate exonerated from the charge. Jacob’s Law Dict’y. Extinguishment. Id. Merger. The error of the opposite argument is, in supposing that by the assignment, Porter acquired a beneficiál interest in the mortgage. Both by operation of law, and the express agreement of the parties, it was paid, not passed over to Porter. This is a conclusive answer to all the authorities cited on the opposite side. Hamilton v. Callender, does not approach this case. It only decides, that if a bond is taken as a collateral security, for a mortgage, the mortgage is not extinguished, but the mortgagee retains his lien until the bond is paid; a position not to be disputed. The right of action upon the mortgage was gone. Porter being the assignee of the mortgage, and the owner of the land which was the subject of it, could maintain no suit; and a personal action, once suspended, is gone for ever. 2 Johns. 147.</p> <p>3. It is assigned for error, that the court charged, that whether the plaintiff entered up his judgment contrary to his agreement or not, was- of no consequence. It is to be recollected, that the agreement to enter an amicable action; stated the defendant’s judgment to have been entered on a certain day, and no evidence to the contrary ought to have been received. But the court were right in their opinion excepted to. An irregularity in entering a judgment, cannot be taken advantage of collaterally in another action. It is valid until reversed. Lewis v. Smith. 2 Serg. 8? Rawle, 142. • '. '</p> <p>4. The objection, that the second point proposed to the court below for their opinion, was not answered, is not well founded. It was distinctly answered, in the negative.</p> <p>5. With respect to the deposition of Andrew Walker, the'court-below went further than they were bound to do, in rejecting any part of it. The counsel having refused to specify the parts of it to which they objected, if any part was good evidence, the whole was admissible. •</p> <p>The intent of the agreement to enter an amicable action, was, to leave every thing open. The great dispute was, whether the defendant’s judgment should operate as a lien from its date. ■ It could not, therefore, be intended by the plaintiffs to confess that point. Besides, it was afterwards agreed by counsel, that the cause should be tried on its merits, which opened the door, supposing it to have been closed by the agreement.</p> <p>When the defendant, on the 14th of March, 1815, entered his judgment, there was a prior mortgage on record, on which 500 dollars were due. He knew, therefore, that he only had a lien on Clark’s estate, subject to the mortgage, and nothing has happened to put him in a better situation. On the 17th of March, 1815, Porter purchased of Clark for 2,800 dollars, and agreed to apply ,500 dollars of it to the. discharge of the mortgage. ■ Why might he not defend himself against the defendant to the amount of 500 dollars ? The agreement was between Clark and Porter exclusively The defendant was not a party to it, and could not be injured by it; for it left him just where he was before. When the legal am the equitable estates unite in the same péíson, he may consider ths. latter as merged or not, as best suits him,’ provided no third person is injured. When, therefore, Porter paid the mortgage, he had a right to ask either for a release or an assignment, and the defendant had nothing to do with it. He purchased the mortgage of Walker, and the equity of redemption of Clark. If the opposite doctrine prevail, it will be attended with consequences extensively injui’ious to the common transactions of business. It is very usual for people to advance money, in order to save their friends from incumbrances, about to be put in suit, and in- order to save themselves, to take an assignment of the incumbrance. This will hereafter be considered a dangerous measure, if the plaintiffs in error succeed on this ground.</p>

<p>Surplus money arising from the sale of land by the Orphan’s Court, whether it belong to an infant, a feme covert, or a male of full age, is to be considered simply as money.</p> <p>Therefore, where one died intestate seized of land, but not leaving personal estate, sufficient to pay his debts, &C. and the land was sold under a decree of the Orphan’s Court, for that purpose, and a surplus remained which was paid to the guardian of the intestate’s only child, who died in infancy,- it was held, that the said surplus was to go the personal representative of the infant and not to his heir.</p>

<p>IN ERROR.</p> <p>On a writ of error in this case to the Court of Common Pleas of Dauphin county, it appeared, that William Morgan and James Morgan, the plaintiffs below, performed work and labour as masons, in the building of a house in Harrisburg, erected by Philip Lewis, and owned by Benjamin Kurtz, Esq., who were the defendants below, and now plaintiffs in error. The plaintiffs below filed a claim in the office of the prothonotary of the said Court of Common Pleas, on the 22d November, 1816, the building having been completed va. April, 1816. A scire facias was issued on the said claim to December, 1816, and the defendants suffered judgment to go by default. This judgment, however, was opened on the affidavit of Kurtz, and he was allowed to take defence. He pleaded payment, with leave to give the special matter in evidence: replication, non solvit and issue.</p> <p>On the trial of this scire facias, in the court below, the defendants offered in evidence, the docket of the late John Kean, Esq. a justice of the peace, containing the entry of a suit brought the 17th of May, 1816, by William Morgan against Philip Lewis, on which judgment was given, and execution issued, and stayed by the plaintiff on the suit. This evidence was objected to by the plaintiffs, and rejected by the court below, who signed a bill of exceptions.</p> <p>The plaintiffs offered to prove that B. Kurtz, one of the defendants below, declared, that he was bound to pay the liens on his house, and that he reserved money in his hands out of the debt due to Lewis. This evidence the defendants objected to, but the court admitted it, and the defendants excepted.</p> <p>The court below charged the jury, that seven months and more having elapsed after the completion of the building, before the claim was filed, the lien ceased after two years: but the party might, notwithstanding, proceed upon the scire facias issued on such claim,and ajudgment obtained thereon would be valid:it would stand on the same footing as other judgments, and would have no preference to prior judgments.</p> <p>The jury found a verdict for the plaintiffs below, and judgment was entered thereon in January, 1823.</p> <p>now contended, that there was error in the proceedings below.</p> <p>1. In the charge of the court. He referred to the acts of assembly of the 17th of March, 1806, and 28th of March, 1808, extended to Dauphin county, by the act of 22d March, 1817, Purd. Dig. 417. Under the act of 28th March, 1808, the party cannot proceed by scire facias, either where the lien never attached, or where it wras expired. The proceeding by scire facias is not personal, and cannot be used to affect the person óf the defendant, or any property but the building itself, on which the work has been done. If the lien is not filed within six months, the case is the same as if the act never had been passed; the remedy is by a personal suit. The remedy by scire facias is expressly declared by the act, to be “ against the debtor, or owner of the building: and no judgment on such scire facias, shall warrant the issuing an execution, except against the building or buildings, upon which the lien existed, as aforesaid.” Purd. Dig. 417.</p> <p>He also insisted on,the court’s rejecting the record of the suit before Kean, and admitting testimony of the declarations of Kurtz.</p>

<p>IN ERROR.</p> <p>On a writ pf error to the District Court for the city and county of Lancaster, the case appeared to be thus:</p> <p>The defendant in error, Peter Burke, declared m debt for the penalty of articles of agreement, éntered into between himself and John Huber, the plaintiff in error, on the 26th of February, 1817. By these articles Burke agreed, in consideration of the sum of 5,500 dollars, 3,500 dollars of which, were to be paid on the 1st of April next, ensuing the date of the articles, and the residue in one year from that day, to convey to Huber, on the 1st of April, 1817, a good title to the ten acres of land, situate in town of Millersburg, in Manor township, Lancaster county, on which a tavern and other buildings were erected, together with the stove in the bar room; the premises subject to the yearly ground rent of five shillings per acre. Burke reserved to himself the possession of the premises, until the day on which the deed was to be executed, when he covenanted to deliver peaceable possession to Huber. For the faithful performance of the covenants contained in the articles, the parties bound themselves in the penalty of 11000 dollars.</p> <p>The defendant pleaded payment and performance, with leave to give the special matters in evidence. The cause was tried on the 13th September, 1821.</p> <p>All the facts given in evidence on the trial, are embodied in the charge given by the court below to the jury, which was as follows:</p> <p>Charge. This is an action of debt to recover the first instalment upon articles of agreement, for the sale and conveyance of a tract of land. [His honour here read the articles of agreement.]</p> <p>The plaintiff has made out a good title in himself to the premises he covenanted to convey. He has proved the execution, and tender of a deed in due time, and an offer to deliver up the possession, all -which was refused by the defendant. It is in proof that the defendant, several weeks before the day on which the contract was to be executed, declared he would not comply with it; and on the day when the title was tendered to him, on the 1st of April, 1817, according to the terms of the articles, he immediately left the room, and said, “ I dont want your title or your property,” but assigned no reason for his conduct. The plaintiff has therefore done every thing which it was necesssary for him to do, to enable him to bring this action, and there is no difficulty in this part of the case.</p> <p>This being an action of debt for the recovery of the specific purchase money upon the contract, and not an action of covenant to recover mere damages for the breach of it, it is in the nature of a bill in equity to compel the specific execution of the agreement by the defendant, and if it be such a case, as under the circumstances, a court of chancery would decree the agreement to be completed, the plaintiff will recover his debt; but if there are circumstances of equity on the part of the defendant, which would excuse him from performance, or by reason of which chancery would not interfere to compel the execution of it, but would leave him to his remedy at law to recover mere damages, then the plaintiff can recover nothing in this suit, not even partial damages; the contract must be decreed entire or not at'all, and the plaintiff must fail.</p> <p>In England the remedy in this * case would properly be in a Court of Chancery. We have no such court in this state; but it has been long and well established, that equity is part of the law of Pennsylvania,- and lest there should be a failure of justice, our courts, blending the principles of equity with the dry rules of common law, with the aid of a jury, will do what a Court of Chancery would do; and .this practice is essential in many cases, to the due administration of justice.</p> <p>The defence now set up to a recovery in this case is this. That the plaintiff has covenanted to give a good title, which means a title free from all incumbrances; that he has not now a good title, and it is an executory contract.</p> <p>To support this defence they have proved:</p> <p>1st. That on the 24th April, 1815, one Kauffman obtained a judgment against Peter Burke, for 100 dollars, which does not appear to be satisfied.</p> <p>. 2d. On September 12th, the Bank of Pennsylvania obtained a judgment against Peler Burke, the plaintiff, for the sum of 468 dollars and 35 cents, which, though an incumbrance on the 1st April, 1817, was satisfied on the record on the 31st May, 1817.</p> <p>3d. On the 25th November■, 1816, the United States obtained a judgment against Peter Burke, the plaintiff, and others, for a penalty of 150 dollars, aild the real sum stated to be due is 37 dollars and 8 cents; a Ji.fa. issued on this, and personal property was levied on.</p> <p>These are all the judgments against Peter Burke, prior to the 1st of April, 1817, when the contract was to be carried into effect; and of these, only the judgment for the small sum of 100 dollars, and its interest appeal*, to be unsatisfied.</p> <p>They have cited the case of Jones v. Gardiner, 10 Johns. 266, in which it is said the title, means thelegal estate in fee, free and clear of all valid claims, liens and incumbrances whatsoever; and clearly the law is so, and that case was in a court of common law, in a state where they have also a Court of Chancery, and their rules of decision differ considerably from ours; but the defendant here would have had a right to have insisted that these incumbrances should be removed, and if refused he would not be compelled to have accepted the title, and the claim of the plaintiff for a specific execution, would have been put an end to. But no objection was made on that ground or any other, but there was an absolute refusal to complete the contract upon any terms, and a declaration before hand to that effect. If the objection had been made, it could have been removed immediately, or the judgments, being upon record, he might have insisted on their being discharged out of the purchase money, which was vastly more than the amount of all the incumbrances; besides, the second instalment of 2000 dollars remaining in his own hands. It is not uncommon for people possessed of real estate, but who are liable to judgments, to sell for the very purpose of disencumbering themselves from debt, and when they are willing that such incumbrances be paid in the first instance out of the purchase money, it would be a very unconcientious objection in the purchaser, to insist on the removal of them, before he pays, and thereby defeat the very object of the contract and sale, when he can suffer no disadvantage, and feel no inconvenience. It is a violation of the very spirit of the contract, and I do not think that any court of chancery would sanction such conduct, or support such an objection. It would be sufficient in that court if every objection could be removed at the time the contract is to be executed; and in many instances, even at the time of the decree, if a good title can be then made, they will execute the contract.</p> <p>It is further objected, that there is an incumbrance of an annual ground rent on this property. That is true, and it is so expressly stated in the contract, and the deed is to be made subject to that incumbrance.</p> <p>It is further objected, that the plaintiff has not shown that these payments havabeen annually made, and that there are no arrearages. No objection of the kind, appears by the evidence to have ever been made before the present trial. The defendant had an opportunity of inquiring into this fact, and as he has-not shown that there are any arrearages, we cannot presume, for him, that they have not regularly been paid. When a party raises objections to the execution of his contract, it lies upon him to show that such objections are well founded; and even if such arrearages should appear, there is a remedy for'that, also, in the power of the court.</p> <p>Another objection is, that by the agreement, the defendant was to have the stove in the bar-room, and that the plaintiff has not j>roved any tender of the stove. This scarcely deserves an answer; it is an appendage to the house, and if he had taken the possession of the house when it was offered to him, he would have received the stove in the house. It is not an article to be carried about in a cart or a wheel barrow, to be tendered.</p> <p>But anotherquestion of considerable importance is raised. Itis contended from what has been subsequently done, that the plaintiff cannot recover; that he has conveyed away his property, so that he cannot reclaim-it.</p> <p>If this be so, and the plaintiff cannot now make a title, he cannot recover in this action, however he might have been entitled to damages, in an action of a different nature.</p> <p>To support this ground of action they have proved,</p> <p>1st. A judgment, Hershey and Burke, (the plaintiff,) July 1st, 1S17, for 500 dollars. On this judgment a f. fa. issued, and personal property was levied on.</p> <p>2d. July 1st, 1817, Bank of Pennsylyvania and Burke, (the plaintiff,) judgment for 110 dollars,and 34 cents. A fi. fa. was issued on this judgment in 1819) but there is no evidence of what became of it.</p> <p>3d. In July, 1821, there are two judgments,' Sides-v. Burke, and Miller v. Burke, for 72 dollars and 25 cents, each, amounting together, to the sum of 145 dollars and 50 cents.</p> <p>4th. And on the 9th December, 1819, a mortgage of the premises to Ober and Kline, for the sum of 818 dollars and interest.</p> <p>Now with respect to such judgments as were entered since the 1st of April, 1817, and are now satisfied, no question can arise.</p> <p>If the defendant had complied with his contract on the 1st April, 1817, probably all these debts, if they even then existed, would have been discharged. Whether or not, no judgment for them could have affected the defendant. If the debts accrued subsequently, or judgments were entered subsequently, may it not justly be attributed to the conduct of the defendant, who refused to comply with his engagements? They did not exist at the time the deed ought to have been made; the defendant had tied up the plaintiff’s hands, and had deceived him. If the misfortunes of the plaintiff arise out of such conduct on the part of the defendant, is it right on an equitable defence, that he should set up his own misdeeds to protect himself, especially when.évery difficulty can be remedied by the payment of what is justly due from himself? It is to be considered, therefore, whether the defendant himself has not thrown all these difficulties upon the plaintiff, by not complying with his contract. If they were beyond the controul of the plaintiff, and can all be removed on payment of the purchase money, due from the defendant, is it equitable that he should shelter himself, in consequence of matters which have accrued from his own default?</p> <p>But it is said he has conveyed away the real estate and cannot reclaim it, and that the mortgagees have a right to the possession. Butit is not so. For even admitting, as is contended, that a mortgagee might bring an ejectment, which I am not at this day inclined to admit, as against the mortgage, (but it seems no part of this question,) yet such ejectment could be immediately defeated, upon payment of the debt, interest and costs. And so with respect to a sci-re facias on the mortgage. It is in substance no more than a judgment, and is not a parting with the absolute title; no reconveyance is ever required, but an entry of satisfaction on the margin of the record, puts an end to it. The mortgagor, to all intents and purposes, has the title, it is subject to subsequent judgments against him, to the dower of his wife, in this country, and to all other incidents of legal estates; and he is not thereby deprived of the power, by acts, to make a good title; he has not parted with it, so as to destroy his power over it. .</p> <p>I think, therefore, that upon equitable principles, the plaintiff ought to recover, and be compelled to complete his contract. The jury will, however, judge for themselves, and give such verdict as they think propel’.</p> <p>If the verdict shall be for the plaintiff, it will still be within the power of the court; they can direct the money to be brought into court, and the court will take care that all the judgments, liens, and incumbrances, even the arrears of ground rent, if any, shall be paid and discharged, at the expense of the plaintiff; so that the defendant can sustain no possible injury or disadvantage from them. I think this, in such cases, to be within the power of the court.</p> <p>The plaintiff has pressed for interest on the first instalment. Unless there are special circumstance to prevent it, in England the Chancellor would decree the purchase money to be paid with interest, and would direct an account to be taken of the rents and profits, to set off against the interest. We cannot direct such an account here; but it is in the breast of the jury how they will consider it; and if in their judgment, the rents and profits are equal to the interest, which in the absence of all proof is to be presumed, if the purchase was for a fair and reasonable price, they will find the principal sum without any interest.</p> <p>The jury found a verdict for the plaintiff, for 3500 dollars debt, with six cents damages and six cents costs.</p> <p>The counsel for the defendant, haying excepted to the charge of the court, removed the record by writ of error to this court, where eight specific errors were asssigned.</p> <p>1. The court erred in saying, that the plaintiff ought to recover and be compelled to complete his contract; whereas they should have instructed the jury, that under the evidence given in this cause, the verdict should be rendered in favour of the defendant. -</p> <p>2. The court also erred in that part of their charge containing the answer to the defendant’s defence, that the judgments or other incumbrances existing against Burke, the vendor, at the time of the tender of the deed, and before and after, were a bar to a recovery in this suit.</p> <p>3. The court erred in their- answer to the defence made, that Burke had conveyed away his .property subsequently to the tender of the deed, by mortgage to Ober and Kline, and that at the time of trial, the property was unincumbered in the hands' of Burke.</p> <p>4. There is error in stating, that this is a case in which the remedy would, in England, properly be in a court of chancery.</p> <p>5. There is error in that part of the charge which relates to the defence, that there were arrearages of ground rent on-the property sold.</p> <p>6. The court, erred also in saying, that the jury had a rightto judge, for themselves, a'nd give such verdict as they might think propel-.</p> <p>7. The cause was tried by talesmen, and no tales was prayed either by the plaintiff or the defendant. -</p> <p>8. There is error in the verdict of the jury, and rendition of judgment.</p> <p>who cited Jones v. Gardner, 10 Johns. 266. 1 Fonb. 383. 2 Rowell, on Cont. 19. Ch. Ca. 302. 1 Ves. 87. Salle,112. 1 Cassell v. Cooke, 8 Serg. 4- Rawle, 268. 1 Binn. 15S. 3 Dali. 506. 1 Johns. 185. 3 Johns. Ca. 145. 1 Caines,’ll 1 Serg. 8? Rawle, 202. 1 Madd. Ch. 331, 341. Sugd. 162, 163, 180, 312. 1 P. Wms. 282. 1 Saund. 58. Seho. N. P. 518. 3 Chitty, on PI. 298.</p> <p>cited 4 Dali. 439. Jordan V. Cooper, 3 Serg. Rawle, 579, 584. 5 Mass. Rep. 67. 1 Madd. Ch. 332. Decamp v. Feay, 5 Serg. #• Rawle, 323. Bellas v. Hays, Id. 427. 2 Johns. 614. 5 Mass. Rep. 448.</p>

<p>in error.</p> <p>Writ of error to. Lancaster county.</p> <p>The plaintiffs in error brought suit against the defendants in error, on a promissory note. After it had been pending some time, judgment of nonpros, was entered, in consequence of the decision of this .court in the case of Seidenbender v. Charles, 4 Serg. Sp Raiole, 151, that land lotteries were illegal, having rendered void the plaintiffs’ cause of action. The defendants then issued a ft. fa. for the costs, to be levied de bonis propriis of the plaintiffs. The costs endorsed on the writ, were the fees of the prothonotary, the sheriff, the crier, and the defendants’ attorney.</p> <p>To reverse this execution, the present writ of error was sued out.</p> <p>referred to II Johns. 403. Johns. Dig. 230. 6 Mod. 91, 181. Salk. 207, 314.</p> <p>cited, 4 Binn. 167. 4 Johns. 190. 16 Johns. 148. 2 Bac. Jib. 33, 46. 8 Mass. Rep. 162. 3 Burr. 15S4. 12 Johns. 289.</p>

IN ERROR. Samuel Huntsecker, trustee of James Anderson, an insolvent debtor, brought this action on the case, in the District Court for the city and county of Lancaster, against Isaac Heiney, in which he declared for money had and received by the defendant, to his use, as trustee of the insolvent. The cause went to trial upon the plea of non assumpsit and payment with leave, &c., and the verdict was in favour of the defendant.

<p>IN ERROR.</p> <p>On a writ of error to the Court of Common Pleas of Dauphin county, the case was this:</p> <p>Elizabeth Shaw, the plaintiff in errror, brought this action against John M‘Cameron and Mary Scott, administrators of James Scott, deceased, for money had and received to her use, by the intestate. The plaintiff’s claim was founded on a bequest in the will of her father, John Long, in these words:</p> <p>“ Item, To my only daughter, Elizabeth, I leave and bequeath the one half of my real and personal estate, what it will amount to in money to be put to interest, for her sole use during life, by my executors, which interest she is to receive as it becomes due; likewise my said daughter Elizabeth, to have at her will, to bequeath or will to whom she pleases, the one half of the principal or interest after her decease; the rest or remaining part of my estate, real and personal, not heretofore bequeathed, I leave to my brothers and sisters as follows,” &c.</p> <p>The testator appointed James Morrison and James Scott, executors, both of whom died intestate, without having executed the trust, and this suit was brought against the administrators of the surviving executor, one of whom, Mary Scott, died before the trial. The defendants pleaded non assumpsit and payment, no assets, and plene administraverunt, on which pleas the cause was tried.</p> <p>The counsel for the plaintiff requested the court to instruct the jury upon the following points.</p> <p>1. That the plaintiff is entitled to recover one .half of the whole estate her father died seised and possessed of, free and discharged from all debts and legacies.</p> <p>Opinion. — The debts are to be first paid. The plaintiff then acquires an interest in one half of the estate, and her half is to be put out to interest for her use, and the legacies are to be paid out of the other half.</p> <p>2. That there being no bequest over, the money vested in her, and she is entitled to recover it in this suit.</p> <p>Opinion. — She can recover nothing but the interest.</p> <p>3. That the trust never having been executed by the executors of John Long, both of whom died intestate before the institution of this suit, the administrators of the surviving executor could not execute the trust; which can be executed only by the plaintiff, who is now the administratrix de bonis non of the testator.</p> <p>Opinion. — After the death.of the surviving executor, intestate, the trust vested in his administrators, the defendants. The trust does not vest in the plaintiff, the administratrix of John Long, the testator.</p> <p>4. That the decree of the Orphans’ Court on the balance of the estate in the hands of John Long’s executors, makes this a debt of record, which is to be regarded a judgment, and paid out of the assets, in preference to specialties, and simple contract debts.</p> <p>Opinion. — -The balance in the hands of Long’s executors, as appears from the records of the Orphans’ Court, is a debt; but it is not a debt in the nature of a judgment, aud is not entitled to be paid out of the assets, in preference to debts by specialty and simple contract.</p> <p>5. That John M*-Cameron is bound to pay interest on the balance appearing to be due on the settlement of his account, as administrator of James Scott: That keeping- the money by him- eleven years, is an unreasonable delay, which renders him liable to pay interest, whether he has made interest or not; and if he has made interest, he is liable at all events, to account for it.</p> <p>Opinion. — John M(Cameron is bound to pay interest on the balance in his hands, of the account settled by him as administrator of James Scott, and it rests with him to satisfy the jury, that he had a reasonable excuse for not paying it. If he does not do this, he ought to pay interest, whether he has received interest for it or not</p> <p>6. That under the pleas in this cause, the jury are bound to find the whole amount of the assets, now in the hands of the defendants, and cannot apportion them, either between the judgment creditors, the creditors by specialty, or by simple contract, if any such there be.</p> <p>Opinion. — Upon the issues in this cause, the jury are to find the whole amount of the assets now in the hands of the defendant, and how much the plaintiff is entitled to receive. The administration account, the report of the auditors, and other evidence given, will inform the jury of the a ..ounl of the money due by John MiCameron, as administrator, and also, of the several creditors of the estate of his intestate.</p> <p>The jury returned a verdict, by which they found assets in the hands of John M'Cameron, the defendant, to the amount of 1,822 dollars 90 cents; that the plaintiff’s share of her father’s estate was 1,829 dollars 44 cents, being the interest on the legacy to her in his will, and that her proportion of the assets was 488 dollars 8 cents, which latter sum, they found for the plaintiff, with six cents damages and six cents c ists.</p> <p>who cited Salk, 210. 11 Johns. 16. 14 Johns. 446. 4 Burr. 2018. 1 Str. 188. 2 Fern. 281.</p> <p>referred to 6 Serg. 4" Rawle, 77.</p>

<p>IN ERROR</p> <p>The record of this ejectment having been returned on a writ of error to the Court of Common Pleas of Mifflin county, thematerial facts appeared to be these:</p> <p>having been prosecuted at November Sessions, 1811, for a forcible entry and detainer, by the defendant in error, James Oliver, it was subsequently agreed between them that the indictment should be discontinued, and an amicable action of ejectment entered of August Term, 1812, in which Oliver should be plaintiff, and Smith defendant, who was to derive no advantage from his possession, further than he could connect it with the alleged possession of his father, and with his title.</p> <p>The plaintiff below, James Oliver, claimed the land in dispute, under an improvement and settlement, in support of which he proved, that in April, 1808, one Samuel Keesman went on it and built a small cabin house and stable, cleared, the first year, an acre and a half of land, and made a garden and some other improvements. In the course of two years from' the time he went there, he raised some grain, and had a family on the ground, who continued to live there at the time of the trial. One of the plaintiff’s witnesses testified, that Keesman went into possession under James Oliver. But another of his witnesses swore, that he went in under John Oliver, the father of the plaintiff.</p> <p>The defendant derived title from Stephen Jordan, who claimed two tracts of land, adjoining each other, on the river Juniata, one by location, the other by improvement His claim under the improvement, extended northward to the Barren Ridge, and included, it was alleged, the land in controversy. In the year 1768, judgments were obtained against him, under which both tracts were sold by the sheriff, and purchased by William Lyon. The upper, or improvement tract, was described in the sheriff’s deed to Lyon, • which bore date, the 28th January, 1769, as u bounded on the east by John Armstrong, on the north by a barren ridge, on the west by Joseph Jacobs, and on the south by J. Jordan’s other tract, and containing 300 acres.” Lyon, by deed, dated 31st January, 1769, conveyed both tracts to Alexander Broion, who, by deed, dated 5th January, 1771, conveyed the improvement tract to Benjamin Brown. The description of the land in this deed, was substantially the same with that in the sheriff’s deed, except, that instead of 300 acres, it was called 200 acres. From a draft produced by the defendant, it appeared that the whole tract contained but 219 acres. In the year 1793, a survey was made for Benjamin Brown, by which it was ascertained, that to lay off 200 acres, at the north end of the tract, the improvements, which lay at the south end, would be excluded. After this survey, Benjamin Brown. conveyed to George Miller, describing the land in the same manner, that it was described in the sheriff’s deed, but calling it 200 acres.</p> <p>On the 15th March, 1780, Alexander Brown, conveyed the location tract, which he had purchased from William Lyon, containing 1471 acres, to William Smith, the father of the defendant, and under whose will he claimed; and on the 28th January, 1783, he conveyed to the same person, the sheriff’s deed for the improvement tract of 300 acres, with the deduction of 200 acres conveyed to Benjamin Broion.</p> <p>Robert Robison, a witness produced by tbe defendant, testified, that in a conversation he had with Judge (John) Oliver, he informed him, that at the time Benjamin Brown sold to George Miller, a surveyor was brought on the ground,, who commenced his survey, at or near the ridge, and measured south so as to take in 200 acres. But Brown’s orchard, spring, and a certain portion of cleared land, being excluded by this survey, which he desired to be embraced by his 200 acres, he requested William Smith to permit him to begin his survey at the south side of his improvements, and continue it northward, so as to comprehend the improvements in his survey. To this arrangement, Smith agreed, on certain conditions. That on the morning Brown was about to move away from the country, he came to Oliver’s house, and told him that Smith had called on him, and desired him to give to him a bond of George Miller, for fifty pounds, for the liberty he had given to him of including his improvements in his survey, and of cutting timber on land south, claimed by Smith; and had threatened, in case of his refusal to give the bond, to send the sheriff .to him. That Oliver then told Brown, that Smith would no doubt do as he had threatened, and the better way would be, to give Smith the bond, and leave the matter for him, Oliver, to manage afterwards. That Brown, accordingly, gave Smith the bond, which after his death, came into the hands of his executors. That some time after the death of Smith, ‘ a person came to receive the money due op Miller’s bond, and called on Oliver with respect to it. That Oliver accompanied him to the executors of Smith, and stated to them, that he believed the bond to have been fraudulently obtained from Brown. That the land for which it was given, was his, (Oliver’s) property. That he had a title from the commonwealth, and in^is his opinion, it would be unjust to take the money from the heirs of Brown, and give it to the heirs of Smith, when Smith had no title to the land. That the executors of Smith were of the same opinion, and gave up the bond to ' the heirs or agent of Brown. The conversation detailed abovej' took place in 1807 or 1808.</p> <p>Another witness, William Jones, testified, to judge Oliver having informed him of the arrangement between Benjamin Brown, William Smith, and George Miller, by which Miller’s bond for fifty pounds, was to be given to Smith, as a consideration for his permission to lay off the 200 acres at the south end of the tract.</p> <p>Evidence, besides that which has been stated, was given by the plaintiff, to prove that the improvement under which he claimed, was made for himself; and the defendant gave further evidence to show that it was made for Judge Oliver, the plaintiff’s father. In pursuance of this object, the defendant, after some evidence had been given of the loss of the record, offered parol evidence, to show, that certain proceedings under the landlord and tenant law, were commenced by judge Oliver. The evidence was objected to by the counsel for the plaintiff, and rejected by the court, who sealed a bill of exceptions.</p> <p>The defendant also proved, that prior to the plaintiff’s improvement, viz. on the 29th .December, 1794, a warrant was taken out in the name of James Oliver, though, it was contended, really, for John Oliver, for 290 acres, including the land in dispute. This warrant, it was admitted by the counsel for the plaintiff, was void, in consequence of having been issued after the passage of the act of 22d September, 1794, without having been founded on a previous settlement. The application for this warrant was made on the certificate of William Smith and John Culbertson, that the land was vacant and unimproved.</p> <p>The court below charged the jury in favour of the plaintiff. Those points of the charge, which are now material, were to this effect:</p> <p>The quantity called for in the deed from Alexander Brown to Benjamin Brown, is only matter of description, and the deed in law transfers the whole tract, whether it calls for 200 or 800 acres. If this tract had contained a less quantity than 200 acres, it is doubtful, whether Alexander Brown would be responsible upon the general warranty contained in the deed, for such deficiency. It is however, certain, that the deed from Alexander Brown to Benjamin Brown, did convey the whole tract, according to the boundaries set out in it. But it is said the acts of the parties show, that only 200 acres, part of the tract, were sold, and that he and those under him, claimed only to that extent.</p> <p>It is evident, that if Alexander Brown’s deed, of the 5th January, 1771, conveyed the whole improvementtráct, embracing the land in dispute, to Benjamin Brown, his subsequent deeds of 1780 and 1783, could convey no part of it to William Smith. A person cannot convey a right, which he has already parted with. According to the evidence in the case, which has not been controverted, these deeds passed no interest to William Smith. It does not appear from any part of the evidence, that William Smith ever had possession of any part of the improvement tract, or land iñ dispute, in his life time. Holding an adjoining tract, under warrant and survey, could give no right, either legal or equitable.</p> <p>This view of the case is strengthened by the certificate of William Smith, (if the same person, which has not been disputed,) dated, 19th of December, 1794, that the land described in it is vacant and unimproved. Whether it describes the land in controversy, is to be decided by the jury. If it does, what stronger evidence can there be, that William Smith had no claim to the land in December, 1794, than his certificate, that it was vacant and unimproved?</p> <p>It is said by the defendant, that a compromise or agreement took place, by which Benjamin Brozcn was to háve his survey of 200 acres confined to the south end of the tract, and the land in dispute was to be throwp out. If it was thrown out, it does not follow, that it was to go to Smith. If at the dates of the deeds from Alexander Brown to William Smith, and before, the land in controversy was sold to Benjamin Brown, those deeds could vest no title in Smith. The title was a mere equity, connected with an improvement. The improvement, it is admitted, was transferred to, and vested in Benjamin Brown. If so, and a surplus did exist as appurtenant to the original improvement, but on an agreement with Benjamin Brown, separated from it, the conveyance to William Smith of such surplus, would give him only a pre-emption right, which required diligence in him in pursuing it, to consummate a right or title. The defendant says, it was separated from Benjamin Brown’s survey in 1793, and it is not pretended, that any possession was taken by William Smith, in his life time, or by his representatives, after his death, until about 1810 or 1811. Under the circumstances in evidence, it presents a case in which an abandonment may be inferred; but this is matter not for the court, but for the jury.</p> <p>But supposing the land to have been thrown out of the survey of Brown and Miller, and relinquished by them, how would that give a right to William Smith? It being a mere equity, appurtenant to an improvement, and separated from it, if it was originally included in the deed to Benjamin Brown, as admitted by the defendant, and William Smith had no right under his deed, it would require a conveyance, or sale, or transfer to Smith, to give him that equity or pre-emption. The mere circumstance of the land being thrown out by Brown or Miller, would not transfer it to Smith, or vest any equity in him, under his previous deed. And if it had, his suffering it to lie for nearly twenty.years, without taking any kind of possession, would be strong and satisfactory evidence of abandonment. If Smith did not take it on its being thrown out, it would become vacant, and liable to be taken up by improvement.</p> <p>The plaintiff claims by improvement and settlement, having an actual residence on the ground. Improvement rights have become incorporated with the land titles of the state, and many tracts are held in that way. A plaintiff in actual possession, has a right to claim a reasonable quantity of land around him, not exceeding 400 acres. Upon the survey made upon James Oliver’s warrant, calling for the adjoining tracts, it would seem, that the plaintiff’s claim embracing the land in dispute, probably does not exceed 150 acres; perhaps it is less.</p> <p>Two objections are made to the plaintiff’s settlement.</p> <p>1. That it was made under a warrant and survey, which were void in law.</p> <p>3. That the improvement was made for John Oliver, and not for James, the plaintiff.</p> <p>The mere circumstance of the former warrant and survey, and their illegality, do not constitute a valid objection to the settlement, if otherwise good. The cases to which they have been compared, of settlement on Indian lands, are not parallel. Such settlements were prohibited under highly penal acts of assembly. No such prohibition existed in this case. It has been well answered to the other objection, that admitting James Oliver to be the trustee for the use of Ms father, an ejectment may well be sustained in the name of the trustee. If James is the real owner, then the objection fails.</p> <p>As to the conduct of Judge Oliver. He was right in his advice to the executors of William Smith, as detailed by Robert Robison. He did not state that Smith and Benjamin Broivn exchanged. Brown obtained the privilege of including his improvement. This he had by his deed. Brown’s deed to Miller, is up to the Barren Ridge. If he had exchanged the upper for the lower end, his deed would have excluded it. His deed is dated a few days after the survey.</p> <p>1. That the.Court of Common Pleas erred in rejecting evidence to show who conducted the proceedings under the landlord and tenant law. It was material to the defendant to show, that John Oliver was the real owner of the land, because if so, this suit could not be supported in the name of James, the plaintiff; and as these proceedings were evidence of ownership, the defendant ought to have been permitted to show, b)? whom they were conducted.</p> <p>2. It was error to instruct the jury, that the quantity of land called for in the deed from Jllexander to Benjamin Brown, was but matter of description, and that the deed conveyed the whole tract. What was conveyed did not depend on the deed alone, but on a variety of acts of the parties, from which their intentions were to be inferred. These facts should have been left to the jury, who were to draw their own conclusions from them. In a case like this, made up of written and parol evidence, the court are not to decide, because the decision involves the determination of facts. Brown v. Campbell, 1 Serg. 4' Rawle, 178.</p> <p>3. It was error to say, that Smith, residing on one tract of land, could not hold part of another, purchased from another person, who had acquired his title by improvement, and who continued to keep up his settlement on the part unsold. There was no abandonment of this part of the tract. Taking a warrant for part of an improvement, is not conclusive evidence of an abandonment of the residue. Porter v. MiIlroy, 4 Serg. 4’ Rawle, 436. Graham v. Moore, Id. 467.</p> <p>4. Abandonment is a question of intention, to be decided by the jury upon the evidence, and the court erred in saying, that this was a rase in which it might be presumed.</p> <p>5. The court erred in their opinion, that the arrangement conducted with the knowledge of Judge Oliver, and under his superintendance, by which the land in dispute was thrown out of Benjamin Brown’s survey, gave no title to William Smith. He had Alexander Brown’s title to the whole tract, except the 200 acres previously conveyed to Benjamin Brown, and he agreed, in consideration of the bond for fifty pounds, to exchange the southern for the northern end of it, in order to accommodate Miller.</p> <p>6. The opinion, that it required a deed, sale, or transfer to vest the equity in the land in dispute, in William Smith, was erroneous. Co. Litt. 171. The transfer of an imperfect right may be by parol. Whart. Dig. 391, No. 109. Qilday v. Watson, 5 Serg. fy Rawle, 267.</p> <p>7. Oliver had no right under his improvement to cross the line, and enter upon ground which he knew was Brown’s; and the court erred in instructing the jury to that effect.</p> <p>S. James Oliver was not the trustee of his father, and therefore, the court erred in charging, that an ejectment might be supported in his name, for the use of John Oliver. An illegal warrant could create no trust.</p> <p>9. The docket entries of the forcible entry, ought not to have been admitted. There was not sufficient proof of the loss of the record.</p> <p>1. It being the duty of justices acting under the landlord and tenant law, to make a record of their proceedings, the record itself, ought to have been produced, or proved to have been lost. But if it had been produced, it would not have been evidence in this case. The proceedings were between other parties, and took place after the commencement of this suit.</p> <p>2. The construction of deeds belongs to the court, who decided rightly in this case. All the lands embraced by the boundaries set out by the deed passed, whether there was more or less, than was called for. 5 Mass. Rep. 355. 2 Mass. Rep. 380. 6 Mass. Rep. 131.</p> <p>3. All that the court said on this point was, that if Smith purchased from the improver or his assignee, the right of pre-emption in the land in dispute, some act on his part, such as obtaining a warrant and survey, was necessary to complete his title, and his neglecting'to do so was strong evidence of abandonment. In this they were clearly right.</p> <p>4. The arrangement connected with the transfer of the land for fifty pounds to Smith, gave him no title to the land in dispute. He had no title to any part of the tract, and therefore, was incapable of exchanging one part for another, or of making any transfer of it whatever.</p> <p>5. If nothing was done by Smith, to secure the title from 1783, until 1811, and no act of ownership exercised by him, it was certainly a case in which the jury might presume an abandonment, and the court were right in telling them so.</p> <p>6. The court did not say, that the plaintiff had a right to cross the line and enter upon land which he knew belonged to Brown. This error is unsupported in point of fact.</p> <p>7. It is likewise a mistake to suppose, that the court charged, that James Oliver was a trustee for his father, and therefore, that the suit might be maintained in his name, for the use of his father. The charge was, that if he was a trustee, an actiommight be maintained in his name, which was clearly right.</p> <p>8. The docket entries were properly admitted, because proof had previously been given of the loss of the agreement.</p>

<p>Where in an action brought by a bank on a single bill, the defence was, that the • Bank had loaned to A. 10,000 dollars, on the security of certain bonds for 11,000 dollars, with warrants of attorney to confess judgment, and accompanied by the indorsed note of A., which it was understood was not to be proceeded on, it being given merely to comply with the forms of the Bank, and that it was agreed, that what remained of the proceeds of the bonds after satisfying the debt of 10,000 dollars, with interest, should be applied to the payment of the balance due on the single bill, which was given by the defendants as sureties for another debt, previously due to the Bank by A., and that in consequence of the Bank not having used due diligence in collecting the bonds, the defendants lost all benefit of them¡ evidence that the directors of the Bank had authorized the loan of 10,000 dollars on the assignment of the bonds, and A’s. note, and that no recourse was to be had on the note against the drawer or indorsers, without proof of the agreement, that the surplus was to be applied to the payment of the debt in suit, was held to be irrelevant and inadmissible.</p> <p>Declarations by the officers of the Bank, unauthorized by the board of directors, that the bonds were to be applied to the payment of the debt due by A., and the money he was about to get, are not evidence against the Bank.</p> <p>Where papers, in themselves irrelevant, have been permitted to be read to the jury, with an understanding, that they would be followed by evidence, connected with which, they would be relevant, but such evidence is not given, they cannot be argued upon by counsel, and sent out with the jury as evidence in the cause.</p> <p>The court is not bound to suspend the trial of a cause, until a bill of exceptions is drawn in form and seale'd. A note in writing, made at the time the exception is taken, to be reduced to form afterwards, is sufficient.</p> <p>Query- Whether the conduct of the court in such a matter, is the subject of a bill of exceptions.</p>

<p>in error.</p> <p>This was a writ of error to the Court of Common Pleas of Mifflin bounty, in a writ of entry sur disseisin, &c. brought by the plaintiff in error, James Witherow, against Frederick Keller, the defendant in error.</p> <p>By, the writ, the plaintiff demanded one messuage, one barn, and three hundred acres of land, with the appurtenances, in Greenwood township, which he claimed to be his right and inheritance, and into which the said Frederick Keller had not entry, but by the deforcement, which he unjustly and without judgment, made thereof to the said James Witherow, twenty years then last'past.</p> <p>The declaration was in the following form:</p> <p>t( Whereupon the said James Witherow, by J. Fisher, his attorney, demands against the said Frederick Keller, one. messuage, one barn, and two hundred and fifty acres of. land, in Greenwood township, in Mifflin county, aforesaid, with the appurtenances, as his right and inheritance, and into which the said Frederick Keller, hath not entry, but by the deforcement which he unjustly and without judgment, made thereof, to the said JamesWitherow, within twenty years now last past. And thereupon the said James, by his attorney aforesaid, saith, that the said James was seised of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right, within twenty years-, before the issuing of the original writ in this cause, by takingthe explees, &c. andinto which the said Frederick: Keller, hath not entry but by disseisin, which he unjustly and without judgment, made thereof, to the said James Witherow, within twenty years last past. And the said James now demands the said tenements, with the appurtenances aforesaid, and that such is the right of him the said James Witherow, he offers, &c. and thereupon, &c.” ,</p> <p>The defendant entered a general demurrer to the writ and declaration, in which the plaintiff joined, and the Court of Common Pleas gave judgment for the defendant, on the ground that the writ of entry will not lie in Pennsylvania, it having been super-ceded by the acts of 21st March, 1806, and 13th April, 1807, relative to the action of ejectment.</p> <p>in the course of his argument, cited Acts of 21 st March, 1806, and 13th April, 1807, Purd. Dig. 201. 1 Bl Com. 89, 90. Co. Lilt. 115, note S. 1 Saund, 87. 3 Bl. Com. 196, 197. Act of 28th January, 1777, Purd. Dig. 1. 1 Dali. 67, 114, 444. 2 Binn. 581. Act of 2d May, 1722, Purd Dig. 395. Act of 26th of 'March, 1785, Purd. Dig. 532. 7 Johns. 509, note. 6 Johns. 218. 5 Com. Dig. 282. 1 Yeates, 244. Dunwoodie v. Reed, 3 Serg. fy Rawle, 443. Livezy v. Gorgas, 1 Binn. 253. 2 Binn. 194. 5 Ba. Ab. 461. 1 Chitty’, PI. 457. 3 Chitty, P. 644.</p> <p>referred to Fitz, N. B. ' 442. 3 Woodeson, 22. Runn. on Eject. I, 2. 3 Burr. 1295. Carson v. Blazer, 2 Binn. 483. Stoever v. Witman, 6 Binn. 420. 1 Yeates, 487. 2 Yeates, 347. 5 Serg. fy. Rawle, 130. Morris v. Vanderen, 1 Dali. 67. Ba. Ab. 461, 462. 2 Serg. fy Rawle, 187. .</p>

<p>It is no cause of challenge to a juror, that he has been examined as a witness on the trial of the same cause before arbitrators, on a point'material to the issue.</p> <p>A. obtained a judgment against B. on which an execution issued, which was levied on property belonging to the defendant. Before a sale was made, certain transactions took place between the parties, in consequence of which the execution was suspended; and afterwards, on the application of the defendant, the court below opened the judgment, tor the purpose of giving the defendant an opportunity, to show what sum ought to be deducted from the judgment, by reason of payments made by him, or claims against the plaintiff, which had arisen posterior to the judgment. The parties went to trial upon the plea of payment with leave to give the special matters in evidence. ■</p> <p>Held, That the defendant might prove that he had a quantity of leather in the city of Philadelphia, which he proposed to deliver to the plaintiff, to be sold by him, and the proceeds of the sale applied to the payment of his judgment; to which proposal the plaintiff acceded; and that this leather, in consequence of the misconduct of tile plaintiff! sold for less, than its value; and that the defendant might claim an allowance, equal to the real value of the leather.</p> <p>Where it is necessary to enable the jury fully to understand all that passed between the parties, a conversation between a witness and a third person, merely of an introductory and explanatory nature, may be given in evidence.</p> <p>What was said by a third person as to the quality of an article, thougli communicated to the defendant, is not evidence.</p> <p>Where a contract is proved partly by letters between the parties, and partly by verbal communications, it is not error, to submit the nature of the contract to the jury upon the whole evidence.</p> <p>Where the nature of the contract is submitted to the jury upon the whole evidence, an intimation of the opinion of the court as to its nature, though incorrect, is not error.</p> <p>If a principal, in a letter to his factor, express a viish to have a certain thing done, but afterwards leave the matter to the discretion of the factor, a non-compliance with the wish thus expressed is not a breach of orders, which will make the factor liable.</p> <p>Where matter has arisen since judgment, which entitles the defendant to a deduction from it, and the judgment is opened for the purpose of giving him an opportunity of showing the amount which ought to be deducted, a verdict finding a balance in favour of the defendent, is erroneous.</p>

<p>IN ERROR.</p> <p>On the return of the record of this case from the Court of Common Pleas of Mifflin county, it appeared that it was. an action of debt on a recognizance, brought by the plaintiffs below, the defendants in error, against the executors of William Beale, one of the securities of the coroner of that county, for alleged official misconduct</p> <p>for whose use this suit was brought, obtained a judgment for 600 dollars and 51 cents, against David Reynolds, in the Common Pleas- of Mifflin county, at Jlugust Term, 1819, upon which a fi. fa. issued returnable to January Term, 1820. Reynolds, the defendant in the execution, being one of the securities in the official bond of the sheriff of the county, the writ was directed to the coroner. A return was made to the fi. fa., “ levied on a stove, drum and pipe, and a set of chairs and table, together with the whole of the defendant’s personal property.” This return was signed by David MlClure, for the coroner. The counsel for the plaintiffs proposed to prove by parol evidence and by records, that M‘Clure was the authorised deputy of the coroner; but the counsel for the defendants, having first proved that a written deputation was actually in court, in the possession of the plaintiffs, objected to the.evidence. The court however, admitted it, and an exception was taken to their opinion.</p> <p>After the return of the fi.fa. a vend-, exponas issued, which was delivered to the coroner, with a request to sell, but, he refused to do so, from unwillingness to offend the defendant in the execution, and the writ was never returned. An alias vend, exponas was issued, but no sale took place under it.</p> <p>The counsel for the defendants below, offered to prove on the trial, the value of the articles specifically levied upon, contending that the coroner was liable, if at-all, only to that amount. But the court rejected the evidence, and séaled a second bill of exceptions.</p> <p>The defendants’ counsel then requested the court to charge the jury:</p> <p>1st. That no deputation to MiClure had been proved.</p> <p>Opinion. A coroner may appoint a -deputy, and is answerable for his neglect. A person known and reputed as deputy, and proved by parol and by records, frequently to have acted as such, is to be taken as a legal deputy, and the coroner is liable for his misconduct.</p> <p>2. That the fi. fa. could not he legally directed to the coroner.</p> <p>Opinion. The fact of David Reynolds being one of the bail of the sheriff, forms such a connection between him and the sheriff, as that the writ might be legally directed to the coroner. Formerly, I believe, the objection to the sheriff was made in open court, and the court ordered the writ to issue to the coroner. This has not been the practice in Pennsylvania; but whenever the sheriff is so connected with a party, that a fair execution of proces is not to be expected, the process has been at once directed to the coroner, and this has been pretty generally the case in suits against the bail of the sheriff. ■</p> <p>3. That the plaintiffs, if entitled to recover any thing, can only recover to the amount of the value of the property levied on.</p> <p>Opinion. Whether the plaintiffs could recover more than the, proceeds of a sale by the coroner of the whole of the personal property of David Reynolds, is not now before us ; for it has not been sold. The officer refused to sell it. The defendants have not offered to prove the value of the whole of the personal property of the defendant in the execution; and in this case, under such circumstances, the defendant is liable for the whole of the plaintiffs demand. A sale might have been made since this suit brought, and the money raised, or the value of the goods ascertained.</p> <p>4. That issuing an alias vend, exponas, was a waver of the injury, (if any had been sustained) of which the plaintiffs complained in their declaration.</p> <p>Opinion. The return of the fi. fa. in this ease fixed the coroner; at least, unless he sold, and the defendants showed that the goods were of less value than the demand. The vend, exponas has come into use in this state, but it is not necessary on a levy on personal goods. It is an indulgence to the officer and the defendant. If the officer will not sell, or offer to sell on it, as he was fixed by the return of the fi. fa. the isssuing a vend, exponas does not release him from the liability created by the return.</p> <p>To the opinion of the court on all the above points, exception was taken, by the counsel for the defendants.</p> <p>A motion was also made in a arrest of judgment, because the declaration stated no cause of action. It stated only a levy, but no request to sell, nor any refusal by the coroner.</p> <p>The court however overruled the motion, and sealed another bill of exceptions.</p> <p>In this court, errors were assigned in the opinion of the court below, on the questions of evidence above stated, in their instructions to the jury, and in overruling the motion in arrest, of judgment; but in the argument, the counsel confined themselves to two points* ' ■</p> <p>- 1. That the fi. fa. could not legally be directed to the coroner. The circumstance of the defendant in the execution being one of the sheriff’s sureties, was not a sufficient reason. Nothing but the relationship of the defendant to the sheriff, will authorise a direction of the writ to the coroner. 6 Bin. 254. Coroner. II. pi. 1, 5. 19 'Bin. 443.</p> <p>2. The return of the fit. fa. was in the hand writing of M‘Clure; and as the deputation was proved to have been in writing, which it was in the power of the opposite party to produce, it was error to admit parol evidence of his authority.</p> <p>1. The writ was well directed to the coroner. He is the substitute for the sheriff, whenever the latter is justly suspected of partiality, when interested, or a relation to the party. 1 Bl. Com. 349. 5 Com. Dig. Officer, C. 13. Judicial writs may be directed to the coroner, when the sheriff is not indifferent to either party.. Trials for Pais, 49, 54, 166. 3 Ba. Jib. 747. The practice in Pennsylvania has been, where suit is brought against the</p> <p>sheriff’s surety, to direct the process to the coroner. The practice is founded in solid reason, for surely in such a case, there is just ground to suspect partiality. If, however, the writ might have been directed to the sheriff, yet as the coroner undertook to serve it, his sureties cannot gainsay his act.</p> <p>2. It is not necessary to show a written deputation in a case like this. It is enough if M‘Clure, acted as general deputy. The writing will then be presumed. It rested with the opposite party to show that the authority was special. Potter v. Luther, 3 Johns. 431.' Hazard v Israel, 1 Binn. s>40. Young v. The Commonwealth, 6 Binn. £8.</p> <p>denied the existence of the alleged practice in Pennsylvania, to direct to the coroner process issued against the surety of the sheriff, nor could any authority, he said, be produced in support of such a practice, if it did exist.</p>

<p>If a deputation be by deed, the deed must be produced and proved like other deeds; and if the subscribing witness does not attend, parol evidence cannot be given of the alleged deputy having acted in that capacity.</p>

<p>in error.</p> <p>This cause was tried at a special Court of Common Pleas, held for Centre county, before President Reed.</p> <p>Roland Curtin and Moses Boggs, the plaintiffs below, declared in case, against Edward B. Patton and Samuel Patton, the defendants, in substance as follows:</p> <p>That by certain articles of agreement, made the 13th of December, 1S13, between Curtin and Boggs, iron masters, on the one part, and William Patton on the other part, it was agreed to rescind a lease of a certain furnace in Centre county; that the said William Patton should take back the said furnace, with the appurtenances, from Curtin and Boggs, after the 1st of the following March, and that William Patton should take the stock of the said furnace, on the said 1st of March, at a fair valuation, to be made by three impartial men, to be paid for in the following manner, &c: That the said William Patton engaged to give to the said Curtin and Boggs, good and sufficient security for the said stock, on the said 1st of March; and, that if the said security was not given, Curtin and Boggs might sell any part of the stock which they might think proper to the Pennsylvania Furnace, or to any other company or person: That the said William Patton further engaged, to pay the said Curtin and Boggs for an improvement made in and about Tussey Furnace, to be valued and appraised by the persons chosen to value and appraise the, stock, and to give security as soon as the amount was ascertained, to pay the same in nine months after the said 1st of March, in bar iron, or in cash as aforesaid : That, in pursuance of the covenants and agreements thus entered into, Joseph Green, John Mitchell and William Stewart were chosen by the parties to valué the property at Tussey Furnace, who did value it at 2,841 dollars 34 cents ; whereupon the said William Patton, Edward B. Patton and Samuel Patton, on the 3d of March, 1814, made a certain promissory note, in writing, subscribed with their hands, and delivered the same to the said Cur-tin and Boggs, by which they promised to pay to them the appraised prices for such part of the stock at Tussey Furnace, as should not be taken by Wallace and Lyon, at the times mentioned in a certain agreement in writing, between the said Curtin and Boggs, and William Patton, and in proportion to the quantity they had received: That the said Wallaec and Lyon took property at the appraised prices, amounting to the sum of 1,338 dollars 3 cents, leaving a balance of 1,503 dollars, and half a cent. By reason whereof, &c.</p> <p>The defendants pleaded non assumpserunt and payment; and on behalf of Samuel Patton, a plea of infancy was entered.</p> <p>After evidence had been given in support of the plea of infancy, from which it appeared, that Samuel Patton arrived at full age on the 26th of May, 1814, the plaintiffs offered to prove, that before and at the date of the agreement declared on', Samuel Pat-ion was, and had been in business, dealing for himself to a large amount, and receiving conveyances of land in his own name, and for his own use. This evidence was objected to by the defendants counsel, and rejected by the court, to whose opinion an exception was taken.</p> <p>The plaintiffs then offered in evidence a deed, dated 3d of Jlpril, 1814, from William Patton to Edward B. and Samuel Patton, conveying a large estate, the consideration for whieh was stated to be 30,000 dollars. They further offered to show,, that Samuel was doing business in bank before that time, by endorsing notes, &c. which were discounted. The court rejected the evidence, and their opinion was again excepted to.</p> <p>The plaintiffs offered in evidence a note, dated the 25th of August, 1814, drawn by William and Samuel Patton, and indorsed by Robert J. Stewart, for the accommodation of the drawers, which it was admitted had been discounted in bank. An objection was made to this testimony, and it was overruled by the court, who sealed another bill of exceptions.</p> <p>They then offered a bond, dated May 14th, 1814, given by William, Edward, B. and Samuel Patton to James Maxwell, conditioned to make him a good title to a certain tract of land. The execution of the bond was admitted, but the counsel for the defendant objected to its being read in evidence, and the court sustained the objection. Their opinion was excepted to.</p> <p>The depositions of Edward B. Patton and John Anderson were then offered in evidence by the counsel for the plaintiffs; parts of them objected to, and the objection sustained by the court, whose opinion was excepted to. But the reporters have no means of knowing what.were the contents of these depositions.</p> <p>The plaintiffs having proved, that Samuel Patton, in the' year 1810 or 1811, did business in the store of Patton and Davis, offered to prove, that he was at that time a partner in the concern, and that he had declared that he was interested in it. The evidence was objected to, and rejected. A bill of exceptions was, thereupon, tendered by the counsel for the plaintiffs, and sealed by the court.</p> <p>The counsel for the plaintiffs asked the witness who had proved that Samuel Patton did business in the store of Patton and Davis, whether it was mentioned at that time, that he was of age ? The question was objected to, and overruled, and an exception taken to the opinion of the court.</p> <p>The plaintiffs proposed to prove, that on the trial of .this cause before arbitrators, Samuel Patton did not allege infancy in his defence. It seemed, that the arbitrators had filed no award, nor did it appear that they had acted in the business. The admission of the evidence was opposed, the court rejected it, and sealed a bill of exceptions.</p> <p>The counsel for the plaintiffs then offered in evidence an agreement,! dated 25th of October, 1814, between William Patton and Samuel Patton, which recited, that whereas, William Patton did, on.the.--day of-, A, D. convey unto Samuel Patton certain portions of Tussey Furnace, together with the lands, ore banks, &c. thereto belonging, and also certain parts or portions of Sligo Forge,lands, &c. and also certain parts or portions of a farm, known by the name of the Wallace Farm, in consideration' of which, the said Samuel Patton was to have become bound, together with the said William, in all the said William’s debts, and by his signature or indorsement, on certain notes discounted in bank, did become bound; therefore, the said Samuel did, for himself, Lis heirs, and assigns, release, and forever quit claim, and gj^’e up all right, title, and claim, whatsoever, of him the said Samuel, of, in, and to the above-mentioned property, lands, ore banks, furnaces, forge, &c., provided the said William should release him from his indorsements aforesaid; and when he should be so released, the said Samuel bound himself to make a deed of conveyance to the said William, of all the above described property, &c. To the admission of this agreement in evidence, the counsel for the defendant objected, and the court refused to admit it; upon which, an exception was taken to their opinion.</p> <p>Conformably to their agreement, Samuel Patton executed a release to William Patton, on the 1st of March, 1815.</p> <p>The plaintiffs proposed to prove, by the testimony of JR. T. Stewart, what Sligo Forge was sold for to Patton and Porter. The evidence was objected to on the ground, that as it was conveyed by deed, the deed ought to be produced and proved. The evidence was rejected by the court, and their opinion excepted to.</p> <p>Lastly, the plaintiffs proposed to give evidence, that many years ago, Samuel Patton acknowledged, that a partnership sub-. sisted between himself and William Patton. The evidence being objected to, it was overruled by the court, who sealed another bill of exceptions.</p> <p>The court were requested by the counsel for the defendant, to charge the jury as follows:</p> <p>1., That if the jury believe, that on the 3d of March, 1814, when the contract on which this suit is brought was executed, Samuel Patton was a minor, and that he did not, after his arrival at full age, ratify and confirm the said contract, their verdict should be' for the said Samuel.</p> <p>2. That nothing short of an express promise, with full knowledge of his rights and privileges, after his arrival at full age,would amount in law to a ratification of a contract made by a minor, which was not binding during his minority.</p> <p>3. That there is nothing in the deed from William Patton to Edward B. and Samuel Patton, of the 3d of April, 1814, the agreement between William and Samuel Patton of the 25th of October, 1814, and the deed of release from Samuel to William, Patton of the 1st of March, 1815, which afford ány essential evidence, that the premises mentioned in the deed of the Sd of April, 1814, were conveyed to the said Samuel Patton, to indemnify him against his liability on the agreement on which this suit is brought, and that there is nothing in the said deed and agreements which can make the said Samuel liable on the contract on which this suit is brought, provided the jury believe, that the said Samuel was a minor when he executed the said contract.</p> <p>The opinion of the court being in favour of the defendant on all these points, it was excepted to by the counsel for the plaintiffs, who removed the record to this court by writ of error.</p> <p>who cited Stansbury v. Marks, 4 Ball. 130. 3 Ba. Jib. 612. Infancy and Jge, I. No. 8. 2 Eq. Jib. 488, 9. Guardian B. 3 Binn. 457. 2 Serg. fy Emole, 413. 1 Gilb. E. 319. 3 Burr. 1801. Savage v. Foster, 9 Mod. 38.</p> <p>were stopped by the court, whose opinion was delivered by</p>

IN ERROR. This was an ejectment for land' in Lycoming county, brought by the defendant in error, Francis Riddle, surviving executor of Henry Dougherty, against the defendant in error, Thomas Clark.

in error. Writ of error to the Common Pleas of Centre county, in an action of ejectment, brought by the defendants in error against the plaintiffs in error, to recover a tract of land on the north side of Bald Eagle Creek. (See Gonzalus and another v. Hoover and another, 6 Serg. Bawle, 118.) In delivering the opinion of the court, the chief justice has.so fully stated, the circumstances connected with the questions raised by the record, that it is unnecessary to repeat them.

<p>In an action of ejectment, in which the case turned upon the fairness of a sale under a decree of the Orphans’ Court, held, that the defendant could not prove, that the party under whom he claimed, declared at, and just before the sale, at which he became the purchaser, that he intended to bid but a certain sum per acre for the land; but evidence that he offered immediately after the sale, to several persons, to take them as partners in his purchase, at the same rate at which he bought, is admissible to show, that the land was not purchased below its value, and to rebut the suggestion, that he had purchased in collusion with one of the administrators of the intestate, whose property was sold.</p> <p>If the court, upon being requested to charge the jury upon the effect of a particular part of a deposition, which cannot well be separated from the rest, in their instructions, take into view the whole of the deposition, it is not error.</p> <p>If the charge of the court be so contradictory, that the jury must be at a loss to know what the law is, the judgment must be reversed for error.</p> <p>It cannot be assigned for error in this court, that the charge of the court below, was dictated, and drawn up by the counsel of one of the parties.</p>

<p>Where, in consequence of proceedings in the Orphans’ Court, for the valuation and partition of the real estate of an intestate, a part of it is allotted and decreed to A. the husband of a daughter of the intestate, in right of his wife, upon his giving a mortgage for a certain sum to the other children of the intestate, but no such mortgage is ever given; in an ejectment by another daughter of the intestate, for her share of the land thus allotted to A., the defendant may, in order to show that the whole spm for which A. was decreed to give a mortgage, has been paid, give in evidence payments on account of the maintenance and education of the plaintiff" while a minor, by A., he being one of the guardians, and payments to her husband after her marriage.</p> <p>But declarations, by the husband of the plaintiff, with respect to the expenses of his wife’s education, before marriage, are not evidence.</p> <p>It is not error, in such a case, to leave it to the jury to decide, in relation to trans- ■ actionsbetween the husband of the plaintiff, and A., whether any, and what payments have been made, telling them at the same time, that any other dealings between the parties, than direct payments, ought not tb be applied to the discharge of the plaintiff’s claim, unless so understood and intended.</p> <p>Money received by the husband of the plaintiff, as the executor of A. when he has settled no administration account, and there is no evidence of any act of the executor, indicating an intention to separate any part of the money received by him as executor, and apply it to the satisfaction of his wife’s claim, is no payment of the debt due in right of the wife; and the court ought not to leave it to the jury, to infer satisfaction of the plaintiff’s demand. The jury should be instructed, that as the evidence was of a bare receipt of money as executor, such receipt did not in law, amount to payment of the money .due to the plaintiff'.</p> <p>Where one to whom the real estate of an intestate is allotted and decreed by the Orphans’ Court, is ordered to give a mortgage for the shares of the other persons interested in the estate, giving the mortgage or payment of the money, is a condition precedent, without the performance of which, no estate vests.’</p>

<p>Where the court, on the application of the creditors of the defendant, open a judgment for the purpose of” trying, whether the bond on which the judgment was entered, was not given in a contrivance between the plaintiff and defendant, to defraud the creditors, it is not necessary that the creditors should be made parties to the suit.</p> <p>in such a case, the declarations of the defendant, in the absence of the plaintiff', respecting the amount of the debts he owed the plaintiff, cannot be given in evidence by the creditors.</p> <p>Nor is a declaration by the defendant, “ that if a man cannot makeboth ends meet, he ought to secure something for his family,” admissible in evidence.</p> <p>If a bond be taken for more than the real debt, with an intent to defraud the creditors of the obligor, tire whole bond is void as to the creditors.</p>

<p>The plaintiff after the commencement of an ejectment, entered into articles of agreement with IP., which recited the pendency of the suit, and that he had given to P. a power of attorney to prosecute it to judgment, and then proceeded to state, that the plaintiff had agreed to grant, bargain, and sell, and thereby did grant, bargain, and sell, the landin controversy to P.and Ms heirs,who was to prosecute the suit by virtue of the power of attorney, and if he should be successful, pay to the plaintiff 2000 dollars, and the plaintiff should then convey the land to Mm in fee; P. to bear the expenses of the suit; hut if the plaintiff’s title did not prevail, he was not to pay the 2000 dollars, nor any part thereof ’ Held, that this was an executory agreement, which did. not divest the title of the plaintiff</p> <p>The court are not bound to compel a party to join in a demurrer to evidence, consisting ffertly of written, and partly of parol proofs, unless the party demurring, concedes all the facts which the evidence has any tendency to prove.</p>

<p>IN ERROR.</p> <p>On a writ of error to the Common Pleas of Northumberland county, it appeared that both parties to this ejectment claimed the land in dispute, under Reuben Haines, deceased.' The plaintiffs below, who were also plaintiffs in error, set up a parol contract between the said Reuben Haines and Jonathan Lodge, deceased, in proof of which they gave in evidence, a receipt from the said Reuben to the said Jonathan, in part payment for the land in dispute. The defendants asserted that this receipt was a forgery, and gave evidence of the declarations of Jonathan Lodge, one of the plaintiffs, as to the place where he found it. Upon this, Jonathan, Lodge was offered as a witness, to prove the place in which he found the receipt, in contradiction to the evidence of his declara» tions; The court rejected his testimony, and the plaintiffs except; ed to their opinion.</p> <p>For the purpose of proving, that the receipt subscribed with the name of Reuben Haines, had been forged by one William Shaw, deceased, the defendants produced several papers, which they proved were in Shaw’s handwriting. They then called Israel Pleasants, who stated, that he had been long in public offices, where they had a gi’eat variety of papers to examine, but not with a view to detect forgeries: That he was not much of an expert: That he was in an insurance office fourteen years: That ,he liad been in mercantile business twenty four or twenty five years: That he had had an extensive correspondence,and was accustomed to seoa great deal of different writing. The defendants’ counsel then proposed to ask Mr. Pleasants, as an expert, whether the receipt and the papers proved to have been written by Shaw, were in the same handwriting. The question was objected to by the counsel for the defendants, but the court permitted it to be put, and a bill of exceptions was tendered and sealed.</p> <p>1. The receipt had been given in evidence, and efforts had been made to throw suspicion upon it; to remove- which, by proof of a collateral fact, such as is usually proved by a party, the witness was called. An interested person is permitted to prove, to the court, a collateral fact, as, that certain blocks were the same which were cut from a certain tree. Lessee of Coxe v. Ewing, 4 Yeates, 439. A party may prove, that he has searched for a witness to a deed, and could not find- him. Lessee of Douglass v. Sanderson, 1 Yeates, 15. Davis v. Houston. 3 Yeates, 290.</p> <p>2. In admitting the testimony of Israel Pleasants, the court went further than had ever been done before in receiving evidence. The writing of one paper being proved, the jury may, it is true, compare the genuine writing with the paper in dispute; and an expert may be examined as to his opinion, whether a paper is written in a.natural oran imitated character, but not whether the same hand which wrote another paper, wrote that alleged to have been forged. The witness stated, that he was not expert in the business of detecting feigned hands, and the evidence offered, was merely that of a comparison of hands by an ordinary witness, which is inadmissible. 2 McNally’s Ev. .394, 418, 420. 1 Phil. Ev. 371, 372, 374. M( Corkle v. Binns, 5 Binn. 344. Rex v. Gator, 4 Esp. N. P. Gases, 117, 145.</p> <p>The rule is, that collateral matters may be proved by a party, to the court, in order to introduce other evidence. But the evidence here offered, was to the jury, to rebut evidencé which had been given of different statements made by the same witness at other times. (The counsel were told that they need not labour this point.)</p> <p>2. The decisions in England as to the proof of handwriting, have not been uniform. This court is unfettered by authority, and may therefore decide according to their own opinion. From the nature of the thing, all evidence of handwriting must be founded upon the opinion of the witness, drawn from comparison. Before he gives testimony, he must make a comparisonain his own mind, with some standard, and then give his opinion. A jury may compare writings, 11 Mass. Rep. 312; and men of business, accustomed to see a great variety of hands, are better qualified to judge of the genuineness of writings,- than juries generally are. The question is, whether the opinion of a person accustomed to the examination of writings, is evidence proper to be laid before a jury. Whether the witness was an expert, was matter for the court, and they have decided that he was. In 1 Chitty on Crim. Law, 506, 620, it is said, that the opinion of persons of art as to hand writing, is to be received. And in MíCorMc v. Binns, 5 Binn. 340, this court permitted the jury to infer, from a comparison of types, devices, &c. of two news papers, that both were printed by the same person.</p>

<p>IN ERROR.</p> <p>Two bills of exceptions, tendered by the plaintiff in error, the defendant below, one to the admission of evidence, the other to the charge^ of the court, were returned with the record of this ejectment, on a writ of error to the Court of Common Pleas of Lycoming county.</p> <p>Both the plaintiff and defendant claimed the land in dispute by settlement and improvement. In the month of September or October, 1797, the plaintiff, William Gilday, went on the land, cleared out a bottom, cut logs, raised a house, moved into it with his family, and continued to i eside there ever since. The improvement under which the defendant claimed, was begun in the year 1796, by Jonathan Bailey, who cleared land, built a cabin, moved upon the place with his family, and raised corn. Bailey after-wards sold his improvement to William M(Kee, who on the 30th of March, -1801, leased it to James Alexander for seven years. Upon the 27th of March, 1804, M‘Kee, by deed, conveyed the land to William and Oliver Watson. It was alleged by the plaintiff, and evidence was given in support of the allegation, that his improvement was begun with the permission of Bailey, both at that time considering the land as appropriated, and that they entered into a parol agreement for the division of the land between them. Whether such an agreement did exist, and whether the land in dispute was situated within the part allotted to Gilday by the agreement, were facts which the court left to the jury.</p> <p>the purpose of showing title in a third person, the counsel for the defendant, offered in evidence an application of the 3d of April, 1769, No. 2516, in the name of Jane Little, for 300 acres, on the east side of Lycoming Creels, about one and a half miles from the west branch of the Susquehannah. Upon this application, a survey was made on the 8th of June, 1769. of 255 acres, and 30 perches, by William Scull, the deputy surveyor. The land in dispute was included in this survey, which was returned into the land office. To the admission of this evidence, the counsel for the plaintiff objected, but the court overruled the objection. The counsel for the plaintiffs afterwards offered in evidence the record of an ejectment brought by Esther Coxe and others, executors of John Coxe, deceased, against William Benjamin, James Alexander, and William Gilday, in which the plaintiffs claimed the land in dispute, under the application of Jane Little. The cause was tried in February, 1811, and the defendants had a verdict. An objection was made by the counsel for the defendants to the admission of the evidence, but the court permitted it to be given, upon which, an exception was taken to their opinion. It was proved by Robert MlClure, Esq. that the plaintiffs in that suit failed, in consequence of being unable to show a deed from Jane Little to John Coxe.</p> <p>Charles Reeder, who had been examined on a former trial of this cause, being dead, William Mahoffy was called by the plaintiff, to prove what he then testified, respecting a particular line and corner, made between the plaintiff and MiKee. Mahoffy stated, that he could not say the exact words, but recollected the amount and substance of what he swore. He recollected there was a cross examination, but could not remember what questions were put, but if the parties’ questions were put, it was likely he could recollect some of them. The counsel for the defendant objected to the evidence, but the court admitted it, and sealed a bill of exceptions.</p> <p>In their charge, the court instructed the jury, that Jane Little had'a better title to the land in dispute, than either the plaintiff or the defendant, unless from the great length of time she had neglected to pursue her claim, it might be presumed to have been abandoned, or lost by the operation of the statute of limitations, for such parts of the tract as the plaintiff or defendant had adverse possession of, for twenty-one years: That if the title of Jane Little was considered as an existing title, it would bar the recovery of the plaintiff, as he had never been in possession of the land in controversy, and could not claim it by the statute of limitations: That there was no evidence that Jane Little had ever paid the commonwealth for this land, and if the jury believed', that from the neglect to pursue her claim since 1769, by making entry upon the land, occupying it, or paying the purchase money to the state, or in any other way claiming the land, (except by the ejectment brought under her title by the heirs of Coxe, in which the present claimants obtained a verdict,) she had abandoned her claim, the land would then return to the commonwealth, and be open to improvers : and that, if her claim could be considered in this light, it would be necessary for the jury to inquire into the validity of the respective claims of the plaintiff and the defendant.</p> <p>The counsel for the defendant excepted to the charge of the court; and the verdict being for the plaintiff, a wx’it of error was purchased.</p> <p>contended, that the Court of Common Pleas had erred in admitting the testimony of William Mahoffy: in support of which they cited, Phill. Ev. 215. 4 Serg. %• Rawle, 205.</p> <p>2, That the court erred in leaving it to the jury to decide, whether the title of Jane Little was subsisting or had been abandoned. To this point they cited, Woods v. Galbreath, 2 Yeates, 306. Cox v. Cromwell, 3 Binn. 118. White v. Kyle, 1 Serg. Rawle, 521. Biddle v. Dougal, 5 Binn. 149.</p> <p>refei’red to Cluggage v. Duncan, 1 Serg. 4* Rawle, 119. Lilly v. Paschal’s Executors, 2 Serg. fy Rawle, 398. Phillips v. Shaffer, 5 Serg. fy Rawle, 215. Lowrey v. Gibson, 2 Yeates, 81. Ewing v. Barton, 2 Yeates, 318.</p>

<p>A toother cannot maintain an action of slander, for calling her daughter a bastard; there being no colloquium of the mother.</p> <p>Of the nature and office of an innuendo.</p>

IN ERROR. The plaintiff in error, William C. Kelly, was indicted in the Court oi Quarter Sessions of Mifflin county, for a nuisance, in obstructing the highway, by erecting a fence across it.

<p>IN ERROR.</p> <p>Ejectment in the Common Pleas of Mifflin county, in which James Scott was plaintiff, and Lydia Gallagher and James Harrell defendants.</p> <p>After, having shown title to the land in dispute in Joshua Smith, the plaintiff offered in evidence a deed, dated 5th of February, 1777, from the said Smith to Joseph Cdokson. The defendants’ counsel objected to its being read, upon which, the counsel for the plaintiff called John Oliver, Esq. to prove the handwriting of Samuel Lyon, Esq. before whom the deed purported to have been acknowledged, and also to prove, that Mr. Lyon was an acting justice of the peace. The defendants’ counsel opposed the admission of this testimony, but the court directed the witness to be sworn, who stated, that he had often seen Samuel Lyon write; that he knew his handwriting, and believed that which was shown to him, to be his handwriting. He added, that he knew Mr. Lyon was an acting justice of the peace, at the time the acknowledgment purported to have been taken. The deed was then read to the jury without further opposition. The plaintiff, after this, offered in evidence an exemplification of a deed from the said John Cookson to Thomas Gallagher, dated 2d of January, 1782, recorded 1st of July, 1794, which was objected to by the counsel for the defendants, on the ground, that no authority appeared in the person by whom the acknowledgment was taken. The acknowledgment was in these words:</p> <p>“ The third day of January, A. D. 1782, before me came Joseph Cookson, and Priscilla his wife, above-mentioned, and acknowledged the above-written indenture to be their act an'd deed, and desired the same might be recorded as such, the-said Priscilla thereunto voluntarily agenting, she being of full age, separate, apart from her husband, by me examined, and the contents thereof unto her fully made known. Given under my hand and seal, the day and year aforesaid.”</p> <p>ciChurch Cox.” \Seal.'\</p> <p>The plaintiff proposed to prove, by David'Walker, Esq. that Church Cox was an acting- justice of the peace in Cumberland county at the date of the acknowledgment. The defendants’ counsel objected to the admission of the testimony, and the court rejected it, and sealed a bill of exceptions. The defed was again offered in evidence by the plaintiff, but rejected by the court, and an exception taken to their opinion.</p> <p>A deed from Thomas Gallagher, and Lydia his wife, to Duncan M‘Corrnick, dated 21st of November, 1786, was then offered in evidence by the plaintiff, with parol proof, that Lydia Gallagher, the defendant, was a grantor in the deed, and that James Horrell was her tenant when this ejectment was brought, The parol proof was objected to by the counsel for the defendants, but admitted by the court.</p> <p>David Walker then stated, that Lydia Gallagher was the widow of Thomas Gallagher: That James Horrell acknowledged, that he was the tenant of Lydia Gallagher, who made the same acknowledgment herself: That the name, Thomas Gallagher, to the deed produced, was the handwriting of the said Thomas Gallagher: That Mrs. Gallagher said, they had sold the. land to Duncan M‘Cormick, and got some instrument of writing, to secure payment of the money, but that it never was paid, and that the land was sold long before Thomas Gallagher’s death. The witness then proved the handwriting of William M’-Coy, as a witness to the deed, who, he said, was dead, and added, that the other witness, who lived in the neighbourhood of M’-Coy, went to Ohio, and was also dead. MiCoy, he stated, was a justice of the peace, but he could not say, that the name, William M(Coy, to the acknowledgment, was in his handwriting.</p> <p>The defendants then called Thomas Gallagher, the son of Lydia, one of the alleged grantors, who testified, that the signature, Lydia Gallagher, was not in his mother’s handwriting; she never wrote, he said, near so good a hand ; he had often seen her write, tie also swore, that he had been to school to M’-Coy a long time, had often seen him write, and did not believe that his name, signed to the acknowledgment, was in his handwriting.</p> <p>After this evidence had been given, the deed was offered in evidence by the plaintiff, objected to by the defendants, and rejected by the court, whose opinion was again excepted to.</p> <p>now contended, that the court below erred in rejecting the exemplification of the deed from Cook-son toGallagher,accompanied as it was offered tobe, with proof, that the person before whom it was acknowledged, was an acting justice of the peace of the county in which t'áfe land was situated.</p> <p>2. That there was error in - Acting the deed from Gallagher and wife, to M(Cormick, as me plaintiff had proved the handwriting of one of the subscribing witnesses, and that the other had moved out of the state, and was dead.</p> <p>answered, that it was not said, either by direct assertion, or by reference to any thing, in what county the acknowledgment was taken, or that Church Cox, who took it, was a justice of the peace. The parol evidence of that fact, was not sufficient. No proof was given of his handwriting, nor any evidence, that he who took the acknowledgment, and he who acted as justice, were the same person.</p> <p>2. The court having rejected the deed from Cookson to Gallagher, no title was shown in the latter, and consequently his deed was not evidence. It is true, however, that the court did not go on this ground. They examined witnesses on both sides, and re» jected the deed, because they thought it a forgery. It is admitted, that this mode of procedure has been determined by this court to be irregular, and therefore, the rejection of the deed, will not be attempted to be sustained on this ground.</p>

<p>IN ERROR.</p> <p>On the return of the record of this case from the Court of Comrnou Pleas of Mifflin county, eight errors were specially assigned, in the admission of evidence by the court below, in their instructions to the jury,in overruling a motion made by the defendants’ counsel in arrest of judgment, and in the form of the declaration.</p> <p>But in giving their opinion, this court have only noticed the exception to the declaration.</p>

<p>The admission of a person under whom the plaintiff claims, by deed subsequent to the admission, as to the situation of a comer tree, pointed out to him by a-third person, is evidence of boundary against the plaintiff; the person who made the admission, being dead at the time of trial.</p> <p>Evidence that the defendant was in possession of the land in dispute, and bad purchased it, at a period antecedent to the date of his deed, is admissible.</p> <p>Where the party offering evidence is called upon to state for what purpose it is offered, he will be confined to the point proposed to be proved; but if the evidence be objected to generally, all that is incumbent upon the party offering it is to show, that it is proper for some purpose.</p>

<p>The'court below may, in tbeir discretion, amend a judgment by default; and this court will not inquire whether they have exercised their discretionary po wer ju. diciously.</p> <p>If the plaintiff declare against six defendants, and take judgment against three only, without noticing the others, it is error.</p> <p>The declaration ought to be against those who were summoned, with an averment, that process had issued against the others, who were not to be found.</p>

IN ERROR. Error to Allegheny county. The plaintiff in error, who was defendant below, on the 15th of May, 1824, appealed from an award of arbitrators, filed against him on the lath of the same month, and paid all the costs which were taxed at the time of the appeal. On the 21st of May, notice of the taxation of additional costs was given to the defendant, and on the same day, they were taxed in the presence of both parties, but the defendant did not pay them.

This was a habeas corpus to produce the body of Frank, a mulatto boy, whom the defendant, Barker, claimed as his servant till the age of twenty-eight years, being the son of his slave Milla, duly registered, &e. The boy was registered on the 9th of April, 1812, in these words: «To the clerk of the peace of Allegheny county, ilAbner Barker, of the borough of Pittsburgh, returns to the said clerk a male mulatto child, called Frank, born on or about the 12th day of November,…

<p>Where a general partnership is alleged by the plaintiff, and denied by the defendants, who admit a special partnership, a subscription to the stock of a Naviga ■ tion and Insurance Company, made in the name of the firm by the partner denying the general partnership, may be given in evidence by the plaintiff', as one step towards proving a general partnership.</p> <p>A party cannot assign that tor error from which he has sustained no injury. Therefore, if the court permit an improper question to be put to a witness, who is unable to give any answer to it, it cannot be assigned for error.</p> <p>The party who put the question, has a right to have the answer of the witness placed upon the record.</p> <p>If counsel are of opinion, that their case may be taken out of a general rule of law, by any particular circumstances, they should propose those circumstances hypothetically, and ask the opinion of the court upon the law. If they omit to do so, they cannot assign for error, that the court in laying down a general rule of law correctly, have done so too broadly for the circumstances of the case.</p> <p>How far an agent, who contracts in his own name, without disclosing his principal, is liable personally</p> <p>If the court, after instructing the jury as to the nature of partnerships, leave it to them to decide, from the evidence, whether one of the defendants had a right to bind the other in the contract in question, it is not error.</p> <p>Nor is it error to leave it to the jury to infer an acquiescence in the contract by one of the defendants, where the evidence shows consent only before, and not after the contract A judgment is not to be reversed on a verbal criticism.</p> <p>A contract made by an agent of the plaintiff' with the defendants personally, for the transportation of goods on freight, is not affected by the fact, that another agent of the plaintiff', to whom the goods were consigned, knew that the boat in which they were shipped, belonged to another house, for whom the defendants were agents.</p>

<p>IN ERROR.</p> <p>This was an action on the case brought in the Court of Common Pleas of Allegheny county by the defendants in error, as indorsers of a promissory note, drawn by the plaintiff in error, the defendant below, for 366 dollars 17 cents, dated Pittsburgh, August 28, 1822, and payable in seven months.</p> <p>On the trial, the defendant offered the following statement of facts, which it was agreed could be established, and prayed the court to admit it in evidence.</p> <p>“ The note for three hundred and sixty-six dollars and seventeen cents, on which the suit is founded, was given by the defendant for goods purchased by him from the executors of Frederick Rodgers, which goods were a part of the assets of the deceased. It was drawn in favour of Jonathan Smith, who was the defendant’s surety for the purchase-money, was indorsed by the latter in blank, and handed over to the executors of Rodgers. Samuel Smith, merchant of Pittsburg, (one of the executors, who after-wards became insolvent) put the said note, without indorsing it, and without thé consent of his co-executor, into the hands of M.S. Mason, agent for the plaintiffs, who resides in Philadelphia, in order to secure the payment of a note for three hundred and twenty-three dollars and twenty-one cents. This note was given by Samuel Smith, on his own private account, to the plaintiffs, for goods purchased. The goods were bought on the 18th of March, 1822, and a note given therefor, which fell due on the 18th of July. Default was made in payment, and on the 28th of October, Smith gave the new note, which was accompanied by that of Petrie The following memorandum was signed by Mason, the agent, ‘ Received, Pittsburgh, October 28, 1822, ,of Mr. Samuel Smith, Alexander Petrie’s note, favour Jonathan Smith, a seven months, dated 28th August, 1822, for 366 dollars 17 cents, which I hold as collateral security for a note of said Samuel Smith, dated this day a five months’ favour A. H. Clarke fy Co. Philadelphia, for 323 dollars 21 cents, which, if paid, the said note of Petrie’s to be returned. — M. S.Mason.’</p> <p>“Before the maturity of the note, a written notice of the foregoing circumstances was given to the defendant by the executors of Rodgers, on behalf of the creditors and legatees, and he was warned to pay the money only to them. The executors were Samuel Smith and John Hodge, the latter of whom had taken an activé part from the death of the deceased in the duties of his executor-ship. The plaintiffs and their agents were entirely ignorant at the time when the transfer of Petrie’s note was made, of the circumstances under which it came into the possession of Samuel Smith.”</p> <p>The court rejected the testimony upon which the counsel for the defendant excepted to the opinion.</p> <p>The action was brought by the plaintiffs below to obtain the benefit of a fraudulent assignment of a chose in action by one of the executors, who jointly took out letters testamentary. This cannot be suffered. If the assignee has actually received any thing out of the resources put at his disposal by one executor, he may perhaps not be compellable to refund; but where he comes into court as a plaintiff, the court will not lend him its aid. In the case of Le-pa-rd v. Vernor, 2 Vez. fy Beame, 51, 52, 53, the following language is held, “The other claim was under the assignment by one of the executors, William Vernon, subsequent to the testator’s -death. It is said, as each of the executors has the power to dispose of the assets, the assignment by one is good. If he had parted with any portion of the property to Ooodenow and Buzzard, if, by the assignment they had obtained any legal advantage, it could not perhaps be taken from them: but this is a mere assignment of a chose in action by one of several executors, of which no use can be made, unless this court shall act upon it, and interfere, to give the particular creditor an advantage against the other executors, and the general creditors. ” A similar distinction on the subject of relief pi’evails in our Pennsylvania law, as to sales of real estate, without warranty. A purchaser, on the title proving defective, may resist a suit for the purchase-money, but if actually paid, he cannot recover it back. “It matters not,” says Judge Ye ates, 1 Serg..8,' Rawle, 447, “that no good, substantial reason can be given why A., having once paid the consideration-money, shall not recover it back: it is at once admitted to be a real hardship, super-induced by considerations of supposed policy; but the law is so settled, and we cannot alter it. To adopt a cant mode of expression, the funeral has passed by, the dead cannot be resuscitated. But in my sense of the Pennsylvania system of law, there is a locus ■ psenitentise, until the money is paid. Something still remains in fieri and the plain dictates of common sense, and common honesty point out the correct path to be pursued. ” The court in such cases refuse to be actually instrumental in enforcing the claim. The case from Vezey # Beames is certainly a very strong one, as the assignment by the one executor appears to have been honestly made to a fair creditor of the deceased. But suppose the act of one executor to be the act of both, in what character do they stand with regard to the assets ? An executor is but an agent, or trustee; his interest in the assets is tempoi'ary, and qualified; he holds in aider droit, and merely for the purpose of custody and distribution. Toller’s Law of Executors, p. 134, Boole 2. ch. 1. Executor is but an attorney for the deceased. Roll. Rep. 147. cites 14 II. 6. 14. An executor is but the minister and dispenser or distributor of the testator’s goods. ’JVentw. Off. Executor, 88. He is in the nature of one who has the custody of another’s goods. Wentw. Off. Executor, 113. Executor from his name is but a trustee, he being to execute the testator’s will, and therefore called an executor. Per Lord Chancellor Parker, in case of Farrington v. Knightly, Wms. Rep. 548. Trih. 1719. And afterwards his lordship said, that the reason why the spiritual court cannot compel a distribution is, because they cannot enforce the execution of a trust. Ibid, 549.</p> <p>This Is emphatically the ease in Pennsylvania, where the executor has no claim to the residue.</p> <p>Being thus an agent or trustee, the rule of law becomes applicable which declares, that even an innocent holder shall- not avail himself of a pledge of property fraudulently made by one having such temporary qualified interest. The general rule is perfectly well settled. D’Jlubigny v. Duval, 8 D. £? E. 604. Newson v. Thornton, 6 East, 17. Salby v. Rathbone, 2 Maulé Selwyn, 298. 5 Johnson’s Chancery Reports, 428. Debouschad v. Goldsmid, 5 Vez. Jr. 212, 213. The Lord Chancellor. — “ The defendants are certainly wrong in point of law. I take it not merely to be a principle of the law of England, but of the civil law, that if a person is acting ex mandato, those dealing with him must look to his mandate.” Shipley v. Kymer, 1 Maulé 8,- Selwyn, 484. Martin v. Coles, 1 Maulé 8' Selwyn, 140.</p> <p>The analogy between the cases of factor and executor is obvious, and well settled. In the case of Bay v. Coddington, 20 Johns, Rep. 652. whore the law with regard to pledges by a factor is finally settled in the Court of Errors; Chief Justice Spencer says, ££ In the case of Joy v. Campbell, Lord Redesdale refers to Lord Bolingbroke’s case, in the discussion of which, a case was cited which he mentions with approbation/ where an executor transferred part of the assets for the avowed purpose of paying his own debt; in which case the person receiving the assets was held liable. The administrator had the legal ownership: he had a right to all the goods: but as the purchaser paid him nothing, but took the goods on account of his debt against the administrator, equity would not allow him to retain them. The ease, in principle, is very analogous to the present.”</p> <p>Lord Redesdale, in the case of Joy v. Campbell, 1 Sch. 8,' Defray, 346. adverting to the same case, remarks further: ££ In fact, the executor gets nothing applicable, in any manner, to the trusts for which he holds the assets, in lieu of what he so parts with.”</p> <p>The note on which this suit is brought would be negotiable in England, and although, by the decision of M‘Cullough v. Houston, such notes are, in Pennsylvania, deprived of one of the features of negotiability, yet the right of the indorsee to recover in his own name the amount due by the drawer, is expressly preserved and guaranteed by the statute upon which that decision was made. Act, 28th May, 1715, Purdon, 69, 70. Even in Pennsylvania, therefore, such notes may be assigned so as to rest the equitable interest in the indorsee, and enable him to recover in his own name. Per M£Kean, Chief Justice, (M‘Cullough v. Houston, 1 Dali. Rep. 448.) No distinction can be made between the assignees of bonds, and the indorsees of notes. They certainly may both sue in their own names, and respectively recover the money mentioned in the bonds or. notes, or so much thereof as shall really be due thereon, in like manner as the payees or obligees could have done. There is no question here as to the amount due by the drawer. All is due. The only question is, the. mode of assignment; the title of the indorsee, which is put by the Supreme Court in that case, and by the statute upon the footing on • which it would be in England as to the amount due.</p> <p>In the case of Wilkinson v. Nicklin, 2 Dali. 398. the indorsers had been guilty of a breach of trust, by misapplication of the bills from the purpose for which they were received. Yet the court held, that it could not affect the plaintiffs, who had paid a valuable consideration for the bill., for per Chase, Justice, There is no rule more perfectly established, more sacred in commercial transactions, than that the blank indorsement of a bill of exchange passes all the interest in the bill to every indorsee in succession. If the holder took the bill bona fide, and without knowing that the person making the transfer had no right to make it, whether he takes it absolutely, or as a pledge, such transfer will be as operative, and convey the same right as if it had been made by a person authorized to make it. Burr. 1516. 1 B. fy P. 546. 648. Tate v. Hilbert, 2 Ves. Jr. 115. 6 East, 21.</p> <p>If indorsed bills be delivered to a person for a particular purpose, and he negotiate them to a third person, who does not know of the trust, the latter will become beneficially entitled to the bills, however fraudulent the conduct of the agent may have been. 1 B.fyP. 539. iStark. 228. 1 B. 8? P. 648. 2 Esp. Cas. 520. It is clear, that if indorsed bills are deposited with a banker, and they are by him negotiated to a third person, though the purpose for which they are deposited be most cruelly disappointed, the original owner can have no claim to recover them in trover against such third person. 1 B. P. 546. 4 Mass. 45. And the rule is the same in equity. Where bills are actually negotiated by an agent, although against the express instructions of the principal, their circulation cannot be interrupted, nor the holders called in to deliver them up. 1 Rose, 23S. 1 Jitk. 234. Where money or notes are paid bona fide, and upon a valuable consideration, they never shall be brought back by the true owner. Clarke v. Shee, 1 Coup. 200. Though in general a factor cannot pledge the goods of his principal, it is otherwise in the case of a bill. In Collins v. Martin, 1 B. fy P. 648. the court were unanimous, that factors have the power of pledging as well as negotiating the bills of which they were enabled to hold themselves out to the.world as the true owners. This principle is recognized as undoubted in 20 Johns. 655. A blank indorsement has precisely the same effect that an indorsement to deliver to the plaintiffs would have. In the case of bills of exchange, the effect' of a blank indorsement is too well known to be doubted. Opinion of Buijler, J. Lickbarrow v. Mason, 6 East, 21, note. It is immaterial to the person who takes a bill with a blank indorsement whether the title of him from whom he takes it be good or not. Burr. 452. Even where the title accrued by finding, or theft. Dougl. 633. Burr. 1516. A note indorsed in blank passes by delivery, and possession proves property. JDougl. 636. It would, therefore, be unnecessary for the plaintiffs below to show that Smith, the ekeeutor, had authority to transfer. The mere delivery over by any person would be sufficient, if the holder gave value, and was untainted with fraud. It is so immaterial, that the plaintiffs need not, and did not, declare as indorsees of Smith, the executor, but as indorsees of the payee, who indorsed the note in blank; and this is sanctioned by every day’s practice. Chitty, 461. 4 Esp. Rep. 211. We may at the trial indorse over the blank indorsement, an immediate authority to pay to Jl. Ii. Clark <f' Co., the plaintiffs. We need not trace the bill from his hands, through all those into which it passes, but may disregard all intermediate indorsements in our declaration and evidence.</p> <p>But we can show that Smith, one of two executors, had authority to transfer. It is like other cases of joint interests, affected by the act of one person. One person may transfer a bill, though in fraud of the other co-partners, viz. to himself. Kirby v. Cagswall, 1 Caines, 505. Chitty, 160, and the cases cited Chitty, 40. If a man appoint several executors, they are esteemed in law as but one person, representing the testator; and, therefore, the acts done by any one of them, which relate either to the delivery, gift, sale, payment, possession, or release of the testator’s goods, are, deemed the acts of all; for they have a joint and entire authority over the whole. Godolphin, 134, 135. Office, Ex. 95. Roll. JPbr. 934. Toller’s Executors, 37. If the testator dies, possessed of a lease for years, and having made two executors, and one of them grants all his interest to a stranger, the whole term passes, for each had an entire authority and interest. Dyer, 23. B. p. 146. Cro. Eliz. 347. If an obligee make two executors, and die, and one of them deliver the obligation to a stranger, in satisfaction of a debt due from himself, and die, the surviving executor cannot recover in detinue. Kelsock v. Nicholson, Dyer, 236, in marg. Cro. Eliz. 478. 496. And this decision has never been impeached, but on the ground that the obligation was not assignable, being a chose in action ; the ground of which objection is taken away in this case. The right of assignment and indorsement is extended by the statute of Pennsylvania to executors; and the general principle, therefore, applies, that each has a right to deliver, &c. This may be a devastavit assignment to Smitli, but cannot affect even the other executor, for one is not liable for the devastavit of the other. Toller, 430. Off. Executor, 161. Dyer, 210. 3 Bac. JPbr. 31. 3 Br. Ch, Rep. 74. Each is amenable for his own acts, being complete by himself. If executors take a note or bond from a creditor to the estate of the testator, they must sue in their own name. Such a note, transferable by indorsement, would go to his administrator, and not to his administrator de bonis non. 10 Mod. 315. 3 Bos. ¿r Pul. 11. which show the full authority of'executor over such bill, they being as his own. The ease of Lepará v. Pernor, 2 Ves. <§• Beatne, 51, 52, S3, cited on the other side, is not the case of a mercantile, negotiable instrument, where the benefit of trade, and facilities of commercial intercourse were concerned; as they are in promoting the free and unembarrassed circulation of bills and notes. This is not the mere assignment of a chose in action, of which no use could have b'een made, without the assistance of this court. It might have been realized by negotiation, discount, &c. before it was due, and this court could not follow in the hands of the indorsees, nor the plaintiffs; who are as unaffected by the circumstances intended to bear against them, as the most remote indorsee could be.</p> <p>The case of relief against bonds given for a title to lands, which proves defective, cannot surely operate on principle here. That is a case between the original parties. Lord Mansfield says, the case is settled, that a holder coming fairly by a bill or note, has nothing-to do with the original parties. Peacock v. Rhodes, Rougl. 636. It may be grantéd, that-an executor is but an agent; but the authorities are express, that if the holder does not know of the agency, the title of the agent to transfer, indorse, &c. is as good as that of his principal. It may also be granted, that even an innocent holder shall not avail himself of a pledge of property made by a person having a temporary qualified interest. But a different rule has been applied to negotiable paper; the avails, perhaps, of that very property, and in the hands of the same agent; because the interests of trade have been supposed to require, that every facility should be afforded to its negotiation, that thereby commercial credit might be extended; when extended in good faith upon the paper itself, it should be sustained. Coddington v. Bay, 20 Johns. 655. This casé is strongly in favour of the defendants in error, in all its principles. The case of Lord Bolingbroke, contra, was cited, where the banker receiving the notes from the holder, with notice of the special purpose for which he held them, was obliged to account to the true owner. But here is no such notice. Its existence is strongly negatived. The case of an executor transferring the assets, for the avowed purpose of paying his own debt, the debtor concurring in the devastavit, is also a case of full notice and collusion.</p> <p>It is only necessary to add, that the law and usage, as understood by merchants, even oxit of Philadelphia, would not prepare the person about to receive such a bill, to institute any other precautionary inquiry, than, What is the amount dxie ? To such a question, the drawer of this bill would have answered, dill is due, Upon this answer, the utmost prudence which the law of Pennsylvania has taught the indorsee to use, would have been satisfied; and it would'be now exceedingly inequitable to say to him, “There were other precautions which you might have taken, in anticipation of a decision we are now for the first time to pronounce,”</p> <p>If it is said, “ that this note was seized upon as collateral security,” the fact appears to be, that it was delivered over at the time of the sale of the merchandize which was sold on the credit of this note.</p> <p>As to the negotiable character of the chose in action, transferred to the plaintiffs below, it will be found, on examining the cases cited, which bear on the question, that they turn upon the circumstance of the negotiable instruments fraudulently passed away, having been put by the principal into the hands of a banker ,or broker, and that it was considered his folly, thus unguardedly to intrust such instruments with men, whose business it was to deal in them as a commodity; and that the extension and rapid transactions dependent on the intervention of this class of men, would be infinitely perplexed, and great mischief ensue, if assignments could not fearlessly be taken from them. To the same purpose is the case of Lausatt v. Lippincott, 6 Serg. £? Raíale. It is not pretended that Smith, the executor in the case before the court, bore any such office in the commercial world, as to bring his fraudulent transfers within the policy which led to theexceptiqn to the general rule, invalidating pledges by agents. 2d, In Pennsylvania, notes and bills not dated in Philadelphia, by the act of 27th of February,' 1797, and the decisions of our courts, have not the peculiar character which is given to the negotiable instruments^ noticed in the cases cited by the defendants in error. They are put by. the counsel (and correctly) on the same footing with bonds. They bear close resemblance to those instruments which it has been decided even in England, can not be fraudulently assigned, so as to deprive the real owner of his property. Thus, a Bill of Lading, 16 East. 17. Lottery Tickets, Ford v. Hopkins, 1 Salkeld, 284. India Bonds, Glynne v. Baker, 13 East. 509, though assigned to an innocent holder, may be reached by the real owner. So in Lee v. Lagury, 1 B. Moore, 556. “ Where an agent is guilty of a misapplication of a bill of exchange, which is over due at the time, by indorsing it to a third person, in breach of the trust reposed in him, the indorsee takes it subject to all the equity which affected it in the hands of the agent: and consequently, cannot detain it, or the produce of it from the principal. Thus, where A. drew a bill of exchange on B., payable to the order of C., who indorsed it to his agent, David; it appeared that the bill in question was given as a substitute for a former bill, which had been dishonoured, and of which E. became ultimately the holder, and that E. sent that bill to F. to be forwarded to G., for the purpose of receiving the amount from A., (who was the drawer,) and that G. instead thereof indorsed it (it being then over due,) to C. for a valuable consideration, and on C’s. demanding payment from A., he drew the bill in question, as a substitution for the former, and before the substituted bill became due, E. gave notice to A. not to pay it; it was held that A was not liable in an aetion on the bill brought by D. as C’s agent.” This nóte was not received by the defendants in error, in the usual course of trade. It was seized upon as collateral security, and the transaction is thus brought completely within the case of Boddington v. Bay, 20 Johnson. So Truetel v. Barandon, 1 Moore Rep. 543, cited in Chitty on Bills, p. 147, in note.</p> <p>The cases collected in Bacon’s Abridgment, title Executors, and cited, can have no weight. In' the only case which can be pretended to be analogous (reported in Dyer and in Croke,) it is represented to have been decided by two judges against three, that an individual io whom a bond had been assigned by one of two executors, was not liable to an action of detinue, on the ground, that by the delivery, the party hath such an interest in the paper and wax, that he may be justly detained of the instrument. He was considered as having a sort of lien on the papers like an attorney. Fenner, Justice, dissented, saying that “ inasmuch as the debt remains to the surviving executor, the deed shall remain and appertain unto him.” The case decides nothing on principle, but so far as it goes, is in favour of the doctrine, for which we contend, as it seems to have been conceded, that the debt was not transferred, which is all that is necessary for us to establish.</p> <p>The meaning of the Court of Chancery in the case of Lepard v. Vernon, 2 Vez. fy Beame, has been misunderstood. It is asserted that the intervention of a court was not necessary to give Clark 8? Co. the benefit of the assignment, that it might have been realized by negotiation, discount, &c. So, undoubtedly, may any claim whatever. It may be passed from hand to hand for value; but finally, when payment is resisted, the intervention of a court becomes necessary, as appears by the bringing of this very suit. Then, the expressions of the Court of Chancery in Lepard v. Vernon, and the analogous expressions quoted from 1 Serg. 8? Rawle, are applicable, and induce the court to refuse its aid to inforce a claim coming before it under such circumstances. Our complaint is, that the court below used a language, and pursued a course diametrically the reverse.</p>

<p>The purchaser of an equitable title, takes it subject to all the countervailing' equities to which it was subject in the hands of the person from whom he purchased.</p> <p>A. and B., by articles of agreement, dated 7th of September, 1794, sold certain lands to C., and covenanted to take out patents in his name; in con.ideration of which, C. covenanted to pay them a certain sum per acre; and to execute bonds, and a mortgage on these, or other lands of equal value, as a security. On the 17th of March, 1795, C., by deed, conveyed part of these lands to D., with covenants of special warranty, and for further assurance. On the 12th of July, 1795, E., who was interested in the concern with A. and B., and who had taken out the warrants and patents in his own name, conveyed the legal title to C., who, on the 14th of November, following, executed bonds to A., B., and E., and a mortgage to A. and B., to secure these bonds, and other debts. When the articles of agreement, and the conveyance to D. were executed, the lands •were situated in the county of JY., but whe the conveyance from E. to C., and the bonds and mortgage were executed, they were situated in the county of A., which was taken from JY., and erected into a county, 13th of April, 1795. The deed from C. to D. was recorded in the county of JY., 17th of September, 1795. The deed from C. to E. was recorded in the county of A., 18th of Octn. her, 1795, and the mortgage from C. to A. and B. on the 20th of the same month. A judgment was afterwards obtained on the mortgage, and the lands was* sold under a levari facias to B. and E. Held, 'that the conveyance from C. to 15., and the subsequent conveyance of the legal title from E. to C. did not vest in 15. a title clear of the incumbrance of the mortgage, and that therefore C. was not entitled to recover in ejectment.</p>

<p>IN ERROR.</p> <p>In the Mayor’s Court of the city of Pittsburg, to which this was a writ of error, the following bill of indictment, was returned by the grand jury, “a true bill.”</p> <p> February Sessions, 1822,. </p> <p>“City oe Pittsburg, ss.</p> <p>“ The grand inquest of the commonwealth of Pennsylvania, inquiring for the city of Pittsburg, do present, that Jibner Updegraph, late of the city aforesaid, on the 12th day of December, in the year of our Lord, one thousand eight hundred and twenty-one, and at divers other times, as well before as after, at the city aforesaid, and within the jurisdiction of this court, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, and contriving and intending to scandalize and bring into disrepute, and vilify the Christian Religion and the Scriptures of Truth, in the presence and hearing of several persons then and there being, did unlawfully, wickedly, and premeditatedly, despitefully and blasphemously say, among other things, in substance as follows:</p> <p>“ ‘ That the Holy Scriptures were a mere fable: That they were a contradiction, and that, although they contained a number of good things, yet they contained a great many lies.’</p> <p>“To the great dishonour of Almighty God, to the great scandal of the profession of the Christian Religion, to the evil example of all others in like case offending, against the force of the act of assembly, in such case made and provided, and against the peace and dignity of'the Commonwealth of Pennsylvania.”</p> <p>“Thomas Elder.”</p> <p>On this indictment the defendant was arraigned, and pleaded not guilty. On the trial, it appeared in evidence, that the plaintiff in error was a member of a debating association, which convened weekly for discussion and mutual information; and that the expressions contained in the indictment, were uttered in the course of argument on g religious question.</p> <p>The jury found the defendant guilty, and he was sentenced by the court to pay a fine of five shillings, and the costs of prosecution.</p> <p>submitted to the court the following argument in writing.</p> <p>In asking the court to reverse the decision of the court below, we do so on the following points.</p> <p>1. That the constitution of this state protects every citizen in the enjoyment and expression of his opinions on all subjects, provided such expression does not tend to a breach of the peace.</p> <p>2. That the act of 1700, does not comprehend within its purview the expressions contained in the indictment; and even if it does, that act was virtually repealed'by the constitution, and act of 1776. 5 Smitlds Laws, 425 J3pp. 1 Smith, 430, Sect. 3d. Constitution of Pennsylvania, diet 9, Sect. Sd. *</p> <p>3. That inasmuch as the expressions contained in the indictment, were uttered in a deliberative assembly, and in a discussion, they involve no offence against the laws of. this state, and do not tend to a breach of the peace.</p> <p>4. It is not an offence, at common law. So much of the common, as well- as the statute law of England, was extended to this country, as was necessary to the exigencies of the colonies. 3 Binn. Rep. Judges.</p> <p>The commón law of England,-as respected religion, was unnecessary to the colonies. Our ancestors fled from religious as well as civil persecution. And if the spirit of the government, as then established, or established afterwards by the constitutions of 1787 and 1790, virtually repealed the act of 1700, it also repealed the common law upon the subject.</p> <p>“ The free communication of thoughts and opinions, is the most invaluable of the rights o.f man.”</p> <p>In the constitutions of all the states, excepting that of New Jersey and New York, this principle is uniformly recognized, viz: “That all men possess the .right of enjoying and expressing their opinions, on all subjectsprovided such expression does not tend to a breach of the peace.</p> <p>The decision in S Johns. 290, is in conformity to the constitution of the State of New York.</p> <p>The constitution of this state, and of the general government, guarantees to each citizen the free and undisturbed enjoyment and expression of his opinions on all matters, whether civil, religious, or political. And such expression only becomes criminal when it interferes with the oi’der of government, or disturbs the peace of society. This is the land of toleration. Religious preference, or religious tests, are not recognized in the constitutions of 17S7 cr !79°.</p> <p>. Is the act of 1700 inconsistent with the constitution? A law, enacted a century prior to the adoption of the Federal Constitution/ when religious and civil tyranny were at their height: when the decrees of the church were accompanied by the terror of civil power: when enlightened notions of the rights of man were not so universally diffused, as at this day, when the spirit of the law gives freedom to all, whether Christian, Jew, or Mahometan.</p> <p>But if the act of 1700 is considered as still in force, do the expressions, and the place, and manner of their utterance', contain an offence within its purview ?</p> <p>The act in question, was passed when this state was a province of the British empire. It is thus entitled:</p> <p>“ ‘din act to prevent the grievous sins of cursing, and siaearing, <§’C.” 1 Smith, p. 6.</p> <p>The title to the act explains its object.</p> <p>1. To remedy the evil of profane swearing.</p> <p>3. To prevent all contmnelio'us reproaches upon the religion of the country.</p> <p>In the case of libels, certain expressions only become criminal, according to the manner in which they are expressed. To say, for instance, “ that a lady is a thief, because she steals men’s hearts,” is not criminal. The subsequent explanation conveys the real meaning and innocent intention of the speaker. In the present case, the expressions imputed to the plaintiff in error, were uttered without any malicious intention, and in the course of argument in a lawful society: and if they were uttered in the course of a discussion, in a deliberative assembly, and in the support of certain tenets, they cannot be termed profane, which implies an irreverence to the sacred word, and cannot be extended to a mere doubt in its authenticity. Every man has a right to reason upon that subject, as well as upon other subjects; and if in the course of reasoning, expressions of doubt should eseape him, those expressions cannot be termed profane. But according to the.law, the profanity of the expressions ought to be the very essence of the indictment. The word “profanely,” is not used in the indictment. Yet the words of the act are, “'whosoever shall speak loosely and profanely,” &e. Whether this court will consider the particle, “and” in the phrase, “loosely and profanely,” as a conjunctive, making “ loosely” and “ profanely,” both necessary to constitute an offence under this act; or, that the word, “and,” should be construed “or;” as “loosely or profanely,” then “profanely,” ought to be considered as explanatory of “ loosely;” and either way the profanity of the expressions must be considered as the gist of the indictment. If the word “loosely,” is considered as alone necessary, what a door does it open to malicious prosecution; to religious litigation, to sectarian disputes, and judicial uncertainty. Is not every sect of religion protected by our laws? Yet many of them differ widely from each other in the most material points. The Presbyterians look upon the Unitarians as infidels; and hold their comments upon the Bible, as profanity, or in the knguage of the act, “speaking loosely of the Scriptures of Truth.” Would it be pretended, that should a Unitarian preacher, in com-meriting upon the Bible, make use of the expression, “our Saviour was but the son of Joseph, and that the contrary doctrine was a libel on the Almighty,” points to which this sect give credence; would it be pretended, that he could be indicted for those expressions under the act of 1700? Certainly not. In like manner the Catholic denomination hold the comment of the Protestants. And where is the difference between the expressions imputed to the Unitarians, and the sentiment which the indictment imputes the plaintiff in error ?</p> <p>The plaintiff in error was indicted for the offence of blasphemy. This offence is thus described by Justice Beackstone: %</p> <p>“ Blasphemy against the Almighty, is denying his being or providence, .or uttering contumelious reproaches on our Saviour Christ.’ It is punished at common law by fine and imprisonment, for Christianity is part of the laws of the land.” 4 JBl. Com. 59,. last edition.</p> <p>Here the reason is given, why a denial of certain religious tenets is made an offence in England, under the appellation of blasphemy, “for Christianity is a part of the laws of England.” Not only speaking contumeliously or profanely, but entertaining a belief contrary to the established Religion in that kingdom is severely punished, either by a denial of certain privileges of citizenship, or a total deprivation of all civil and political rights that free constitution affords. So far have they carried their intolerance, that even the offence of apostacy, or adopting a religion contrary to that of our parents, is punished by rendering the offender incapable of. holding any office of trust or profit, incapable of bringing any suit or action; and farther punished by three years imprisonment, without bail. 4 El. Com. 43, 44. So is the offence of heresy, consisting in a denial of Christianity, punished at this day by imprisonment, and not as eighty of an hundred years ago, by burning at the stake. A particular writ, “ de hxretico comburendo,” was framed for that purpose; and no later than the reign of Elizabeth, were two Anabaptists publickly burnt, and two Arians in the 9th of James I.: and all this, because “ Christianity formed part of the laws of England.” Are these things to be revived in this country, where Christianity does not form part of ■ the laws of the land? or, the reason of those statutes ceasing here, do not the statutes themselves cease to exist also ? This state was a British province at the time the law of 1700 had its birth: a part of the British empire, when it was necessary, as the Christian Religion then formed part of the laws of the land, that laws should bé enacted for its support and protection. It was then consistent with the system of despotism under which this country groaned ; it formed a necessary part of the whole machine.</p> <p>Ip the' organization of a system of government to suit the new circumstances of the country, much difficulty occurred. It could not be expected that the legislature of the commonwealth, would expressly repeal all irrelative and absurd laws of the province by new enactments. It was believed that the spirit breathed by the constitution, superceded that necessity. That all laws inapplicable and unsuited to the change introduced by the revolution, were virtually l’epealed. The statute “ against sorcery, incantation and witchcraft,” and the law and doctrine respecting libels admitted in this country prior to the revolution, needed not an actual repeal by legislative enactment. The spirit of the government operated as a repeal. The statute of James I. against “conjuration and dealing with wicked and evil spirits, ” was extended to this country, and continued in force till 1794. The intention of the legislature is clearly expressed on this subject in the act of January, 1777,1 Smith, 429, the third section of which declares all such laws “of no force or effect.” Take this act and the constitution of 90; and is the law of 1700 then in force? ’ The principles then contained in the act of 1700, are “repugnant to the constitution.”</p> <p>This reasoning is humbly submitted to your honours, believing that the common law of England, on the subject of blasphemy, that the act of 1700, against cursing and swearing, are altogether inconsistent with the spirit of our government.</p> <p>All which is respeetfullly submitted,</p> <p>The attorney general declined arguing the cause on the part of the commonwealth.</p>

<p>IN ERROR.</p> <p>In the Court of Common Pleas of Washington county, from which the record of this case was removed by writ of error, the plaintiffs below, the defendants in error, declared in assumpsit for money had and received, and money lent and advanced, against the plaintiff in error, who pleaded payment,</p> <p>the opinion of this court, which fully states all the facts essential to the points decided, was delivered by</p>

<p>A tenant from year to year, who has been evicted by title paramount, is not liable for rent from the time of the commencement of the ejectment by which he was ousted.</p>

<p>Of the effect of a decree of the Orphans’ Court, in matters within its jurisdiction.</p> <p>The father of the plaintiff in ejectment, died intestate about the year 1794, seized in fee of a vacant lot, in or near the city of Pittsburg, thSn of little value. He had emigrated from Ireland about the year 1783, where, as it was afterwards discovered, he had left a wife, by whom he had no issue, and who was living at the time the ejectment hereafter mentioned, was commenced. In 1785 or 6, he came to the neighbourhood of Pittsburg, bringing with him the plaintiff’s mother, whom he called his wife, and a daughter by her, and in that year, while they cohabited as man and wife, the plaintiff was born. In the year 1790, the plaintiff’s father purchased the lot in question for one hundred pounds. He built’a small log house upon it, in which he resided with the plaintiff’s mother, and the two children, always acknowledging her as his wife, and them as his lawful issue. In the year 1793, he separated from his reputed wife, and after putting his son, the plaintiff, out to board, he went with a cargo down the Ohio, leaving the daughter with her mother. In Febniary, 1795, the plaintiff’s mother and another person took out letters of administration on the estate of the reputed husband; and the personal estate being small, the administrators presented a petition to the Orphan’s Court, praying an order for the sale of a moiety of the above-mentioned lot, for the payment of the debts of the intestate, and the maintenance of the minor children. The order was granted, in pursuance of which a sale, which was confirmed by the court, was made of one fourth of the lotto C. and D. to whom a deed was made 10th September, 1795, and of another fourth to E. who received a deed from the administrators on the 1st of March 1796. This sale being insufficient for purposes for which made, the administrators on the 9th of September 1795, obtained a second order for the sale of another fourth of the property, which was accordingly sold to F. to whom, on the sale being confirmed, a deed was executed on the 4th February 1796. Before any sale was made, an inventory was filed, but no written statement of the debts of the intestate. In March, 1796, an administration account was settled, and confirmed by the court; in which the administrators charged themselves with the amount of the ’ inventory, with a small debt, not included in it, and with the proceeds of the sale of the three fourths of the lot which had been sold, and prayed a credit for the payment of the debts of the intestate, for the expense of maintaining the children, and for the erection of a building on the fourth part which had been reserved. There was a small balance remaining in the hands of the administrators on the first sale, which was applied to the building of the house on the part which was reserved for the residence of the family. Guardians were appointed for the children of the intestate, as his Iegimate children. On those parts of the lot which had been sold, buildings, supposed to have cost 20,000 dollars, had been erected, since the sales; and onthe part reserved, there had been built, with the money arising from the sales, a brick house, in which the reputed widow and children had constantly resided. The defendants derived tlieir titles bona fide from the purchasers, and there was no imputation of fraud, either on their part or on that of the administrators. Nearly twenty years after the sales, the plaintiff', haying discovered that his father had a wife in Ireland, went there, and obtained from his heirs, in consideration of the sum of 701., a conveyance, dated 4th September,1Q15, for the whole lot; to recover which he brought an ejectment to August Term, 1816. Feld, that the plaintiff' was not entitled to recover.,</p>

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Common Pleas of Westmoreland county, in an action of debt on an administration bond, entered into by John Reed, administrator of James Reed, deceased, and' David Marchand, his surety. Judgment was given against the defendants in the court below, to whose opinion many exceptions were here taken, and argued tfy,:Alexander, for the plaintiffs in error, and by Coulter and Foster, foie the defendant in error. As, however, the decision of this court is confined to a single point, the case will be sufficiently understood by the insertion of its opinion,-which was delivered by</p>

<p>IN ERROR.</p> <p>In the Court of Common Pleas of Beaver county, to which this was a writ of error,, the case was thus:</p> <p>By articles of agreement dated 19th May, .1812, as appeared by the declaration, Boies the plaintiff below, sold to Edgar the defendant, .for the sum of 1,900 dollars, a tract of land, on which mills and other buildings were erected, and agreed to give him immediate possession of the mills, and every thing directly appertaining to them, as well as of a certain house on the premises, with liberty to cut timber, to repair the mills, and the dam; and further covenanted to give possession of the rest of the premises on the 1st of May, 1813, as well as to make a sufficient conveyance on or before that day, or in its stead, to give good security to make it on the 1st of May, 1815. In consideration of these covenants, the defendant covenanted to pay the said sum of 1,900 dollars in annual instalments of 200 dollars, and 500 gallons of whiskey, on the 1st of May, in each of the years 1813, 1814, 1815, and 1816, and 150 dollars, and 375 gallons of whiskey, on the 1st of May, 1817. The plaintiff averred that he had given possession according to the articles, which had been accepted by the defendant, and that on the 6th of May, 1813, he had with good security, execw ted a bond, conditioned to convey a good title on the 1st of May, 1815, which bond was accepted by the defendant, and that on the 24th December, 1818, he had tendered a sufficient conveyance. He then assigned breaches in the covenants to pay the instalments respectively as they become due. The defendant pleaded, performance of the covenants on his part, and traversed the averment of performance of covenants on the part of the plaintiff; and op this issue the parties went to trial. The plaintiff after having given in evidence the articles of agreement, and the bond conditioned to make the title on the 1st of May, 1815, and the delivery of possession according to the articles, offered to prove that on the 24th of December, 1818, (as laid in the declaration) he had tendered a conveyance to the defendant, who made no objection to it, but did not accept it. This evidence was objected to by the counsel for the defendant, but admitted by. the court, and an exception taken to their opinion. The plaintiff then gave in evidence a patent to Walter Stewartl bearing date 28th February, 1794, and afterwards offered in evidence a deed from Walter Stewart, and wife, to Robert Morris, executed in the year 1794, and a deed from Robert Morris, and wife, to Wilson Hunt, executed in the year 1796. To the admission of these deeds, the defendant’s counsel objected, on the ground that they were not acknowledged in such a manner as to bar the dower of the respective wives of the grantors. The objection was overruled by the court, and the deeds given in evidence.</p> <p>The plaintiff, having given in evidence an article of agreement,, executed by Wilson Hunt, and James Sample, dated April 2d, 1799, and a power of attorney dated 10th April, 1801, from the said Wilson Hunt, to the said James Sample, offered to prove by the testimony of. the said James Sample, that Hunt had never objected to a contract he had made, and had received the purchase money for a certain tract of land described in a deed, which was also offered in evidence, bearing date 28th of August, 1801, giyen by the said James Sample, as attorney for Hunt, to William Ashley, and Francis Nesbit, who immediately took possession of the land under the deed. The counsel for the defendant objected to the admission of this evidence, but the court permitted it to be given, and sealed another bill of exceptions. An article of agreement dated 2d of August, 1802, between Francis Nesbit, and William Espy, was then offered by the plaintiff, objected to by the defendant, and admitted by the court, who likewise admitted a deed offered by the plaintiff, dated 20th of May, 1816, from William Espy and wife, to Robert Wiley, and a deed dated 18th December, 1818, from Robert Wiley and wife, to James Boies, notwithstanding they were objected to by the defendant’s counsel, on the ground that they were not acknowledged in such a form as to bar the right of dower.</p> <p>The plaintiff then proposed to give evidence of the price of wins-key in the years 1814, 1815, 1816, 1S17, 1818, and 1819, to which the defendant’s counsel objected, but the court permitted it to be given, and a bill of exceptions was tendered and sealed.</p> <p>After the plaintiff had closed his evidence, the defendant having previously produced the several acts of congress, laying a duty on the distillation of domestic spirits, offered evidence to prove, that the average amount of the duties so laid, was forty cents per gallon. The counsel for the pláintiff objected to the evidence, which the court refused to admit, and a bill of exceptions was tendered to their opinion.</p> <p>At the close of the trial, Wilkins, President, delivered to the jury the following</p> <p>Charge. — The first question that presents itself for your consideration is — Has the plaintiff performed his part of the agreement? Upon this question you have in evidence that the defendant received and retained possession of the estate, agreeably to the contract — that the bond with security for making the title, was executed and delivered by the plaintiff, and accepted by the defendant — that a deed in fee simple with a good warranty, was tendered in December, 1818, to the defendant. He did not take it, but made no objections to it; and offered an apology for not paying the purchase money then due; spoke of his incapacity to pay, and said he would be down in two or three weeks, and see the plaintiff, and endeavour to make some arrangement upon the subject. The deed not having been made or tendered upon the day mentioned' in the article of agreement, does not of itself avoid the contract. This circumstance alone, does not preclude the plaintiff from his right to recover. The strict rule of law might defeat the right of action; but equity interposes — and if it is conscientious that the bargain should be performed, considers the act as if it was done at the time itwas contracted to have been done — particularly so in the present instance — where the estate was improved, and productive, and the defendant at this moment enjoys the possession, and reaps the fruits of the bargain. He never complained that the deed was not made.on the day ; and never indicated a wish to avoid the contract on account of that circumstance. Upon this point, therefore, I come to this conclusion, that although the time of making the deed is a material part of the contract, yet in the state of the pleadings, and under the circumstances of this case, the delay in tendex--. ing the deed, does not defeat the action. I think it unnecessary, (unless the plaintiff’s counsel should insist upon it) to incumber the case witli the consideration of the point he has made, that after acceptance by the defendant of the bond given by the plaintiff for making the title, the covenant in the article for making the deed, was fulfilled, and was no longer a precedent or dependant covenant, and therefore it makes no difference whether the deed was, or was not, tendered previous to the institution of this suit. — The seeond and remaining question for you to decide is — What amount of damages is the plaintiff entitled to recover? It is admitted that out of the 1,900 dollars, the defendant has paid the plaintiff 1,0'35 dollars, and 37 cents. And upon this last question, the defendant’s counsel makes two points, upon which he claims a considerable reduction in favour of his client — 1st That between 28 and 29 acres of the land sold, are not covered by the plaintiff’s title, and that he has been obliged to purchase this piece from one Johnston, who held the better right. That he bought No. 174, an adjoining donation tract from Johnston, there is no doubt; but that Johnston’s right to this piece of land was'better than the plaintiff’s, I cannot for a moment believe; and if you view the testimony in the light I do, you will probably be of the same opinion. It will be for you to decide — I do not mean at all “ to withdraw the facts from your consideration.,” - It turns out simply one of those cases in two adjoining donation surveys, where the numbers of the survey differ from the numbered corners, and the lines actually marked upon the ground. In the case of such a collision, I am asked to charge you as to the law — The law is settled upon this point — wisely and conveniently settled. The return of survey is prima facie evidence of the boundaries of the tract; but the corner and lines actually run and marked upon the ground, are the true survey. It is very true that the mistake of a surveyor may be examined by parol proof. And if mistakes have occurred by which an error has been made in the' survey, and the return of survey does not agree with the numbered corners, and lies actually marked on the ground, the latter are the true lines and must prevail over the former. Were this not the rule, great uncertainty and ruinous confusion would prevail over their districts. ■ That there may be an excess in one of these adjoining surveys, and a deficiency in the other, will make no difference, nor prevent the rule from bearing on this case. (Here the president recapitulated to the jury, the facts in evidence as to the locality of the numbered corner, and thd lines actually run upon the ground.) If then, Gentlemen, you should believe that the numbered corner, and the lines actually maiked, embrace the land in the plaintiff’s deed, and include these 28 or 29 acres in the survey, No. 86, this point, made to reduce the damages, cannot avail the defendant.</p> <p>The Act of Assembly of 1817 does not substantially change the rule of law laid down to you. It rather comports with, and reiterates the decisions of the Supreme Court of the state. Upon my construction of this law I need not dwell, because the defendant’s counsel admits that he coincides with me in opinion. The second point is, that the defendant ought not to be liable in damages for the increase in the price of the whiskey; that the increase, in consequence of the excise laws, ought to be thrown off, and the whiskey reduced to about one half the price it was at the time of delivery. By this article of agreement, the defendant covenant ¡ to deliver, on particular days, a certain quantity of whiskey7. If the whiskey rose in price, still he ought to have delivered it. If it had greatly fallen in value, the plaintiff would have been obliged to have received it. He could not have said to the defendant, “No, I w’ill not take it — you must pay the money, because the article does not stand at the price it did when we made our contract.” The chance of an increase or fall in the price of grain is mutual. The plaintififiran the risk of losing by the fall in the price; he is entitled to the advantage of the accidental rise. The general rule, or measure, therefore, for you to assess the damages by, is the price of the whiskey at the time and place, when and where it was to have been delivered. I cannot conceive that the Acts of Congress, of the years 1813 and 1814, laying duties upon licenses to distillers of spirituous liquors, can vary7 this general rule of assessing damages in a case like the present. The excise may have been the cause of the increase in the price of whiskey in the ymars spoken of, but cannot vary the nature of the contract between the parties. This national measure, necessary to increase the publiek revenues, and promote the general welfare, did not render the contract chimerical, or its performance impossible. It no way interfered with the bargain; it merely happened, mediately, to affect the price of the article contracted to be delivered. It was an accidental circumstance, like many others of which the parties ran the risk; and which might be'a gain to one, and a loss to the other. Reverse the case. Suppose the contract had been made during the excise, and when the price of whiskey was high, and before the time of delivery, the same had been repealed, and the price had fallen to a mere trifle; would not Edgar have been entitled to the benefit of its repeal, and would not Boies have been obliged to take the whiskey, and put up with the loss? The present may be a hard case upon Edgar. It is bad luck. As he made his bed, so he must lie in it. It is a man’s duty to take care, and look forward, when he makes a contract, to be performed at a distant day; because his bargain must be performed, or the damages which the other party has suffered, must be paid. Had Edgar the whiskey made, and ready to deliver? If he had, the presumption is, he sold it at the advanced price, and was thereby benefited. Instead of giving it to Boies, he may have got 75 or 100 cents per gallon for the whiskey,- in consequence of the excise. As to the interest, the general rule is this, that, if the vendor receives and enjoys the possession, reaps the use and benefit of the improved estate, he ought to pay the interest on the instalments, from the time of making default. The use of the improved estate is a compensation .for the interest. Edgar might have tendered the money and whiskey, and demanded the title. It is admitted he did not do ei-' ther. It is testified, that when the deed was tendered, he made no complaint or objections. But I would say, that, if the purchaser had been vexatiously delayed in getting his title, or has, for the want of it, lost an opportunity of making an advantageous sale, or otherwise suffered special damage, that these things should operate in his favour, and ought to be considered by a jury in assessing the damages, and determining the justice of his paying interest.</p> <p>In this court, in addition to the errors assigned in the opinion of the court below in the admission and rejection of testimony, nine specific exceptions were taken to the charge delivered to the jury.</p>