Volume 12 — Pennsylvania State Reports

Sept. 10. This was an action of ejectment brought by the heirs of William Aitkin, of Mary Nelson, and Susan Dickson, who were devisees of the property in dispute under the will of John Aitkin, against James Mehaffy and others, tenants of Thomas B. Young, who appeared and made defence.

<p>Error to the District Court of Allegheny.</p> <p>Sept. 17. This was an action of ejectment, in which the heirs of Joseph Logan were plaintiffs, and Samuel W. McGinnis was defendant.</p> <p>The title upon which the defendant relied, was an article of agreement executed between Joseph Logan and himself, and the will of Joseph Logan, both of which the plaintiffs alleged were obtained by undue influence, and while the said Joseph was incompetent to make them, by reason of mental infirmity.</p> <p>The article of agreement and the will are dated 29th May, 1848, and the will was proved 21st June following. By the agreement Logan covenanted “ to will and bequeath to McGinnis, his heirs and assigns, to be held by them for ever, all his real estate of whatever description, as presently held by him, with an encumbrance not exceeding $400, to be paid by said McGinnis, as also to put said McGinnis in possession of the same as held by said Logan, on his signature of this article,” in consideration of which McGinnis covenanted “ to support and maintain Logan and his wife, during their natural life, in a decent, respectable, and comfortable manner, providing them in lodging, boarding, clothing, and attendance, good and sufficient. Also to pay legatees or heirs of Logan to any amount not exceeding $400.”</p> <p>It appeared that McGinnis did not sign fhe article until a few days after the will was executed by Logan. In the will Logan devised as follows: “ I give and bequeath to my step-son, McGinnis, his heirs and assigns, all my real estate of whatever description, to be by them held for ever, on the following conditions: 1. That said McGinnis bind himself by legal obligations to keep and maintain, respectably and comfortably, in lodging, food, clothing, and attendance, myself and my wife, during our natural life; 2. That said McGinnis pay certain sums, amounting to 400 dollars, to certain legatees. Said McGinnis 'to pay all my just debts.”</p> <p>Upon the trial the defendant, having called one of the subscribing witnesses of the will, proposed to ask him as to the soundness of the testator’s mind, to which the plaintiffs objected upon the ground that the witness had not stated, or been examined as to, any facts upon which to found the opinion. The objection was overruled, and the admission of the evidence was the subject of the second bill of exceptions.</p> <p>The defendant proposed to ask the same witness this question— “ Did you discover anything that indicated want of mind ?” which being objected to, and the objection overruled, was the subject of the third bill.</p> <p>The defendant then read the deposition of one James McGinnis, taken by him, with the exception of the deponent’s answers to the seventh and eighth interrogatories, which answers he declined reading, without any objection being taken thereto by the plaintiffs. The evidence being closed for the defendant, the plaintiffs offered to read the omitted answers, .and then to call a witness to the stand for the purpose of contradicting the testimony given by the deponent McGinnis in those answers. The defendant objected to this, and the objection being sustained, the plaintiffs took their fourth bill.</p> <p>The plaintiffs then requested the Court to charge—</p> <p>1. That the aylII in this case devises the estate on the condition that the said Samuel McGinnis bind himself by legal obligations to keep, maintain, &c. &c.; that the defendant in this case, the devisee in the will, has never complied with said condition, either in the lifetime of the testator nor subsequent to his death, nor in the lifetime of his widow; he has no title under the will, and the plaintiffs are entitled to recover.</p> <p>2. That the agreement of the 29th May, 1848, is not a compliance with the condition of the will, it being an agreement binding the testator to will, and not executed by the defendant until two or three days after its date; and he thereby agrees to’do certain things, in consideration of the testator binding himself to make a will; the whole agreement pointing to future acts to be done by the testator, and the whole agreement being based on such future acts as the consideration.</p> <p>3. That the whole agreement of 29th May, 1848, is void, it being contrary to the policy of the law to permit the hands of aged persons to be tied up; and their rights of disposing of their property by will narrowed down to certain specified objects.</p> <p>4. That said agreement, by binding Joseph Logan to will his land to defendant, passes no title to defendant.</p> <p>5. That in law, under both the will and agreement, no title passed to the defendant.</p> <p>6. That the opinions of witnesses, whether in favour of sanity or incapacity, ought not to be received or taken into consideration by the jury, further than said opinions are based upon and warranted by the facts stated by the witnesses respectively.</p> <p>7. That if the jury believe that shortly prior to this will being made, the testator was unsound in his mind and memory, then all general presumption of sanity is destroyed, and they must be fully and clearly satisfied, that at the time this will was made, the testator enjoyed a lucid interval, and was of sound and disposing mind and memory, and the proof of such lucid interval at the execution of the will, must be clearly made out by two witnesses, or other evidence equivalent thereto.</p> <p>8. That if the jury believe that a state of general derangement or imbecility of mind be proved at any time prior to the making of this will and agreement, then the defendant must prove the mental capacity of the grantor to make the will, at .the time it was done: and it is not sufficient in such case for the -defendant to show that the devisor could return appropriate answers to plain or^common questions, but he must prove that the testator was of sound mind and disposing memory.</p> <p>9. That if the jury believe that at the time the will was made, the testator was feeble in body and weak in mind, and that the will was procured by undue influence, the plaintiffs are entitled to recover.</p> <p>10. That if the testator was imposed on in his weak state; believed that said agreement prevented him from making another will; and that when he sent for his will and the agreement, they were refused to him, then the defendant is not entitled to the land.</p> <p>11. That if the jury under the evidence think it doubtful on which side their verdict should be, then the fact that the plaintiffs are heirs-at-law, should in this case, as in the case of a will of doubtful meaning, entitle them to every fair intendment in their favour.</p> <p>The Court reserved the consideration of the first five of these points. ■With regard to the others, the Court (Lowrie, J.) filed as a charge a copy of them with the words, “charge so,” written opposite to Nos. 7, 8, 9,10, and 11—and with the words, “ Refused in favour of sanity,” written opposite to No. 6.</p> <p>The verdict was in favour of defendant, and the Court, subsequently deciding the reserved points in his favour, directed judgment to be entered upon the verdict. To this judgment the plaintiffs excepted.</p> <p>The assignment of errors was to the admission or rejection of the evidence, as specified in the foregoing bills; to the charge, in not charging as requested upon points numbered 1, 2, 3, 4, and 5,— in not charging as requested upon point 6, and in not answering that point, “refused in favour of sanity” being no answer, or not such an one as should have been given; and -in not answering points numbered 7, 8, 10, and 11.</p>

<p>1. An order on a township treasurer, signed by one supervisor, and for the other one, who could not write, by a person having authority from him to sign for him, being in other respects correctly issued, was properly received in evidence; it being left to the jury to determine whether the supervisor, who could not write, authorized or ratified the signature for him.</p> <p>2. Although orders drawn by supervisors on township treasurers ought not to be sued until payment is demanded at the treasury, this Court will not reverse for a failure to make such demand, where that fact was not strictly in issue.</p>

<p>1. The widow's acceptance of a devise to her does not, under section 10 of the intestate law of 1797, bar her of her dower in land, which her husband conveyed in his lifetime, and in the conveyance of which she did not join.</p> <p>2. And the fact that the husband conveyed with general warranty will not restrain the operation of the statute.</p>

<p>Error to tbe District Court of Allegheny.</p> <p>Sept. 19. These were proceedings by scire facias sur mechanic’s lien, wherein Thomas Scott was plaintiff, and John Donahoo, owner, and John Maffit, contractor, were defendants. The facts of the case seem to be fully presented in the opinion delivered in this Court. The verdict below was for the plaintiff.</p>

<p>1. Tlie statute of limitations is not a bar to a claim for services rendered, forty years before bill filed, by a negro who from ignorance supposed himself to be a slave, the person to whom the services were rendered having suppressed the truth that the complainant was free, and having falsely asserted that he was his slave, whereby he procured the negro to serve him.</p> <p>2. Where there is fraud, the statute does not begin to run till the fraud is discovered. It does not necessarily begin to run from the timé that the facts which constitute the fraud become known; for, although ignorance of the law excuseth not, yet Courts must have regard to the circumstances and condition of parties on whom a knowledge of facts is to operate.</p>

Sept. 20. On the 6th September, 1847, Z. W. Remington filed a bill in equity, setting forth that prior to the grievances complained of, he had been for many years a surveyor and regulator of the streets, lanes, and alleys of the city of Pittsburgh, and other places around said city, and as such had made many plans and plots of ground in said city and throughout said county, and maps of lands and grades of streets and roads, and drafts of surveys of plantations in other…

Sept. 24. This was an action on the case by Samuel Steel, plaintiff, against John Steel, executor of Isaac Steel, deceased, for services rendered, goods sold, and money paid for the use of the decedent, after the plaintiff became of age. The pleas were non assumpsit, and non assumpsit infra sex annos.

Sept. 26. This was an action of ejectment brought by J. McKinster and others, heirs of Thomas Silverthorn, deceased, against William Silverthprn and others, to recover an undivided fifth part of a certain tract of land, containing twelve acres.

<p>1. A promissory note held by one of the parties to a contract against the other, and mentioned in the contract as to he taken in part payment of the work covenanted to be completed for the holder, is not merged in the contract, and the holder can maintain an action upon it.</p> <p>2. In a suit upon a note so held, the defendant may set off the substantial completion of his work, but the plaintiff may recover compensation in damages for such part of the work as was not fully completed.</p>

Sept. 27. This was an action of covenant brought by Brown and Williams against Dobbins, upon a covenant of warranty in a deed.

<p>1. A pilot, without a release, is not a competent witness for the owner of a boat, in an action for her loss, where the defence is, that the loss accrued through the want of skill, or negligence of the pilot.</p> <p>2. Where one has a right to erect a dam in a public stream, so as not to obstruct its navigation, persons passing such dam áre required to use ordinary care, diligence, and skill; but where these are used, and the dam is such an obstruction as to occasion loss to those attempting its passage, the one erecting or maintaining it must answer in damages, no matter what was the stage of the water at the time of passing it.</p>

<p>X. An assessment of warranted land for a disseising settler, of a less quantity than is called for by the warrant and surrey, if made by his procurement, or eren with his knowledge and acquiescence, will lose to him his constructive possession, by detaching it from the land-marks that had sustained it.</p> <p>2. To acquire title to the whole tract by the statute of limitations, as against the warrantee, such settler must always hare evinced, by declarations and acts, an unintermitted purpose to hold by the lines on the ground.</p>

Oct. 3. This was an amicable action in ease, between Hopewell as plaintiff and Independence as defendant, in which a case was stated for the opinion of the Court, exhibiting the following facts. In October, 1848, the then township of Hopewell was divided into the two townships, litigant here. Nine years before that division there came into Hopewell a woman, who brought with her a small boy, whom she called her son.

Oct- 3. This was a scire facias sued out by Thomas Reed against Ezekiel Sankey, with notice to James Dundas, and others, torre tenants, the object of which was to revive the judgment No. 35, October T., 1841, in which Reed was plaintiff and Sankey defendant. On the trial, the plaintiff read in evidence the record of No. 35, October T., 1841, which was a scire facias to revive a judgment No. 228, June T., 1838, between Reed and Sankey.

•Error to the Common Pleas of Butler. Oct. 3. John Means sued out a scire facias to revive a judgment against James Westerman, which judgment had been entered upon a bond and warrant. The bond contained a condition which is set forth, with all the other material facts of the case, in the opinion of Mr. Justice Coulter.

This was an action of ejectment, brought by Sebastian Seybert against Jacob Truby, to recover 100 acres of land, being the settler’s part of the Samuel Campbell warrant, which Truby had entered into articles with Seybert to sell to him. Truby derived his title to the land in dispute from a sheriff’s sale of three hundred acres, in a certain case of Truby v. McIntyre and others.

Oct. 12. This was an action of covenant on a warranty in a deed brought by Frederick Steiner, the grantee, against Jacob Baughman, the grantor. It appeared that one Fritchman, who had been a pretdous owner of the land conveyed by the deed in question, had a survey made of it by one Gay, which survey fixed the tract by certain boundaries marked on the ground.

Oct. 15. This was ejectment brought by Alexander Wilson, trustee of the children of Thomas Graham, against Henry Howser (with whom were admitted to defend John Galbraith, David Ayres, and others), to recover 230 acres of land.

Oct. 16. This was an action of ejectment brought by John B. Reed, the father, against John Reed, the son. It was agreed on both sides that the legal title was in plaintiff, and that defendant was in possession.

Oct. 16. This was an action of ejectment by David and William II. Marple, against Jacob Myers, for 416 acres of land. The plaintiffs gave evidence to the following effect: On the 30th August, 1792, their grandfather, William Hollman, obtained a patent for this land. By his will, proved 1st September, 1817, he devised all his estate, real and personal, to his three daughters, Mary, Sarah, and Elizabeth, share and share alike.

Oct. 17. This was an action of debt on an award, brought by Robert Graham against Richard Graham. For a summary of the general facts, the reader is referred to the previous report of it in 9 Barr, 254. The evidence, touching the point upon which the case turns at this time, is this.

<p>1. Where a testator devising land lays down a line of division “ to a post, a corner, &e.,” and-there are two such, posts, the will pointing to neither in exclusion of the other, though external circumstances may do so, a contest as to which of those posts was intended is one of fact, which does not depend in any degree on legal direction.</p> <p>2. To remove a latent ambiguity in a will, circumstances indicative of the state of the testator’s affections towards the object of his bounty, or the relative circumstances of his connexions, or his acts and declarations in respect of the thing given, or the person of the donee, are constantly admitted. With this view, the relative amount of advancements, and the difference in value of the portions of the land, would be proper evidence.</p>

Oct. 22. This was an ejectment, brought by the overseers of Whitely township against William Hamilton, to enforce the payment of a certain sum of money, with interest.

Oct. 22. The widow Jones brought an action of dower unde nihil habet against John Casporus and Alfred Patterson; to which Casporus pleaded: 1, ne unques seisie que dower; 2, that the husband of the demandant is alive; and Patterson pleaded non tenure. The demandant replied that her husband was dead; that Patterson did hold, &c., and issues.

Oct. 25. This was ejectment by Jesse King against Samuel Dietz., The facts of the case are fully reported in the opinion of this Court, with the exception of this, that the copy of the record of proceedings in bankruptcy in re Adam Dietz, given in as rebutting evidence by the plaintiff, was certified by the clerk and judge of the District Court, U. S., under date of 2d September, 1848, to be full and entire.

<p>1. Though the fact of notice of the time and place of holding an inquisition de lunático having been served on the defendant may not appear on the record, it cannot be treated as a nullity in a collateral proceeding.</p> <p>2. The record of the proceeding de lunático is prim& fade evidence to impeach the aots of the lunatic before the finding, and -within the period during which he was found to be a lunatic.</p> <p>3. The enlargement of the duties of an auditor beyond the duty assigned .to him by his appointment, by the assent, of an attorney, whereby the identity and validity of his client’s claim, which did not fall within the scope of the auditor’s original authority, was merged in that of other persons, does not bind the client without his express consent, as such action of the attorney is not in the usual routine of his powers and duties as such.</p> <p>4. Where, under such circumstances, an auditor reported that a certain single bill was a nullity, in consequence of the insanity of the obligor, the report was held not to be conclusive on the obligee, and that he h^d an undoubted right to bring his action upon the bill.</p>

Error, to the Common Pleas of Washington. Oct. 27. This was an amicable scire facias, in wbich Bagaley & Smith, who had obtained judgment in foreign attachment against William Seatown, were plaintiffs, and Thomas Watson and John McCahan, as garnishees of Seatown, were defendants. The attorneys of the parties stated the following case, in the nature of a special verdict, for the opinion of the Court below.

Error, to the Common Pleas of Washington. Oct. 27. This was an action of assumpsit by Alexander Scott against Samuel Iiill to recover $237.80, for coal delivered by him to the defendant. The plaintiff introduced several witnesses as to the amount of coal delivered at his bank to Hill’s wagons. He also put in his book of original entries, which, so far as it had been kept by himself, was admitted, and so far as it had been kept by another person, was rejected.

<p>Error to a special Court of Common Pleas of Fayette.</p> <p>This was an action of debt, brought by James, Norton, Samuel, Rush, Benjamin and Stephen Mackey, and Lafayette Mackey, by his next friend, James Mackey, against William Robinson and John Robinson. The facts of the case are stated by the Chief Justice.</p> <p>The Court below (Hepburn, President) instructed the jury that the plaintiffs were neither parties nor privies to the lease upon which the suit was brought; that they did not claim the demised premises, through or from their father, Stephen Mackey, the lessor; and being neither his heirs, assignees, nor legal representatives in relation to the land, the action in their name could not be sustained, and directed the jury to find a verdict in favour of the defendants.</p> <p>The verdict was accordingly, and in this Court this charge was assigned for error.</p>

This was an action of ejectment by Isaac Hugus against Benjamin Walker, brought for the use of such of the creditors of William Gr. Walker, deceased, as were concerned in the purchase of the said William’s interest in the premises from A. H. Philson, his administrator. William Gr. W. and the defendant were sons of George Walker, deceased.

<p>1. To entitle a party to read in evidence a warrant issued since 22d Sept., 1794, when the land office was closed against the issuing of any warrants, except where an actual settlement had been or thereafter should he made, &c., he should show from the hooks of the office that the officers were hy law authorized to issue it.</p> <p>2. Where lines and corners are found, they cannot be departed from, though there may be a variance in the course and distance.</p>

<p>Error to the Common Pleas of Payette.</p> <p>Oct. 80. This was an amicable reference under the Act 21st March, 1806, regulating arbitrations and proceedings in Courts of justice, in which Dr. Playford was plaintiff, and the executors of Joseph Thornton, deceased, were defendants. Upon the filing of the award in the Court below, exceptions thereto were taken by the defendants, and upon the confirmation of the award this writ of error was sued out.</p> <p>The agreement of reference, after stating the Act under and in pursuance of which it was made and the parties, proceeds: Whereas the said Playford claims to have an unsettled account, it is hereby agreed to submit the same as well as all unsettled accounts and claims between the said Playford and the estate of Joseph Thornton, deceased, to the arbitrament of, &c., &c., whose award thereon shall be final and conclusive against both parties, and from which there shall be no appeal taken or exceptions filed.</p> <p>It is understood and agreed upon that the said referees above mentioned are to meet, some place in the borough of Brownsville designated by the parties, upon ten days’ notice.</p> <p>The agreement was signed, sealed and delivered in the presence of a witness.</p> <p>Several meetings were held and adjourned from time to time, until the 12th of August, 1848, when an entry to the following effect was made on the agreement: “1. II., one of the referees, met at the house of D. B. in pursuance of adjournment, and W. S. and G-. N. (the other referees) being absent, cause adjourned by agreement of parties to meet at Masontown, at the house, &e., on, &c., &e.signed E. IT.</p> <p>Agreeably to that adjournment, the referees met at Masontown, and, examining the account of parties, found for the plaintiff $2818.50.</p> <p>The notice of the award, service of notice, and the agreement to refer having been proved, the award being endorsed on the agreement, the papers were handed to the prothonotary by the counsel of Playford “open and unsealed, and so by him filed.”</p> <p>To this award the defendants filed a number of exceptions, to the effect that the adjournment to Masontown was by one refereé alone, without their knowledge or consent, and that what was done there was done in their absence; that no place of meeting in Brownsville was ever designated, and no notice of meeting was ever given agreeably to the agreement; that the referees did not make their award under hand and seal, and were not sworn, as appears by the report; that the award was not sealed up by referees and by them delivered, so sealed, to the prothonotary; that no notice of the adjournment to Masontown was given to the acting executor; that the plaintiffs’ demand was for 2029 dollars, against which the estate ought to have a credit of more than 700 dollars for moneys paid on account; and yet the award was for $2818, and that interest was allowed on 6 months’ rests.</p> <p>The Court below decided, after hearing evidence and argument upon these exceptions, that they would confirm the award, if the plaintiff would enter a remittitur for $924.96; which having been done, the award was confirmed.</p> <p>In this Court the following errors were assigned: The Court erred in confirming the award; because,</p> <p>1. The proceedings and award were not in conformity with the submission, but in violation of it, in this:—By the terms of the agreement, it is agreed that the referees “are to melt at some place in the borough of Brownsville, designated by the parties upon ten days’ notice;” yet, by the procurement of the plaintiff, one of the referees adjourned the meeting of the referees from Brownsville to Masontown, and there, in the absence of the defendants, and without the knowledge of such adjournment by both of them, the referees heard the plaintiff and his testimony, and made out their award in his favour.</p> <p>2. The award was not sealed up by the referees and so delivered to the person in whose favour it was made. But, on the contrary, it was given to the plaintiff by one of the referees “unsealed,” who gave it to his counsel, and he gave it to the prothonotary, “ open and unsealed.”</p> <p>3. Gross injustice was done thereby to the defendants.</p> <p>4. The referees allowed interest after every six months, from the beginning of the account in January, 1819, till the death of the testator.</p>

<p>Error to the Common Pleas of Greene.</p> <p>Nov. 1. This was an action of covenant brought by Lot Lantz, for the use of Levi Anderson and others, against Jonathan Garrard.</p> <p>It appeared that on 10th January, 1839, Lantz and Garrard entered into articles of agreement, by which for $7500 Lantz agreed to make to Garrard, on 1st August, 1840, a deed of general warranty for certain lands, described in the articles as containing 300 acres. Of this purchase-money, $2000 were to be paid on the 1st April, and $1000 on the 1st October ensuing, and the balance in equal annual payments of $1000 each, except the last, which was to be a payment of $500. Of these Garrard paid the two first, and $100 to extinguish an outstanding paramount title, making in all $3100.</p> <p>On 17th December, 1839, Lantz gaye a single bill, with warrant, to Black and Myers for $2600, on which judgment was entered, and such proceedings had that the property sold to Garrard was levied and sold by the sheriff. At the sheriff’s sale Garrard became the purchaser for $3100, and the sheriff’s deed to him for the property was acknowledged 17th March, 1841.</p> <p>Other judgments were entered against Lantz: one, in favour of B. F. Black, on the same day with that of Black and Myers, for $3000, and another, in favour of J. R. Lantz, for- $1500, entered shortly before those named.</p> <p>Lantz left the county insolvent, and was away six or seven years. After his return, on 1st February, 1848, Lantz tendered a deed to Garrard for the land mentioned in the articles, and a few days after brought this suit to recover the balance of purchase-money, which he alleged ivas due to him from Garrard.</p> <p>The defendant requested the Court to charge the jury,</p> <p>1. That a judicial sale of the legal title of the vendor of land, sold by articles of agreement, divests the title of the vendor and extinguishes the covenants in the article, when the vendee is the purchaser at such sale, if the sale be made before the delivery of a deed.</p> <p>2. That the sale, in this case, divested the interest of Lantz in the articles of agreement and vested the same in the purchaser, at the sale made by the direction and procurement of Lantz, and the articles of agreement were merged in the deed made by the sheriff to Garrard.</p> <p>4. That there are two distinct interests in land sold by articles of agreement; the title or interest of the vendor being legal title; and the interest of the vendee being to the extent of purchase-money paid; and that a judicial sale of the interest of either divests the title of the party whose interest is sold, and vests the same in the purchaser, even if said purchaser be the vendor or vendee in the articles, as the case may be.</p> <p>5. That when a vendor in articles of agreement in failing circumstances confesses a judgment to trustees or assignees for the payment of debts, and directs a sale to be made to raise money in advance of the deferred payments in the articles, and a sale is made in pursuance thereof, it is an extinguishment of the covenants, if the vendee in the articles is' the purchaser, even though such sale be a judicial one.</p> <p>6. That there is a distinction between a case where a vendee, who has received his deed and given bonds for the payment of the purchase-money before they become due, suffers the land to be sold by the sheriff for the payment of encumbrances which existed before he purchased and becomes the purchaser, and the case where the interest of a vendor is sold on a judgment confessed or obtained after the sale by articles and prior to the delivery of a deed in pursuance thereof, especially where such sale was made by the direction and procurement of the vendor. In the former case the defence would be simply equitable; in the latter, it would be a legal defence, the sale having passed the entire interest of the vendor.</p> <p>7. That Lantz, the vendor, had a right to sell or cause to be sold his whole interest in the land, or unpaid purchase-money, and if the jury believe that he intended the salé thereof to be an out and out sale, or a sale of his whole interest (and that is a question exclusively for' the jury), the plaintiff cannot recover.</p> <p>The Court below (Gilmore, President) charged the jury thus:</p> <p>“ This action of covenant is instituted to recover of the defendant the remainder of the purchase-money due on the articles of agreement, after deducting the sums which defendant paid to Lantz, and to the sheriff, in all $6100, and the defendant resists the recovery, mainly on the ground that he has purchased the entire interest of Lantz, the vendor, at the sheriff’s sale. On the part of the plaintiff, it is contended that Garrard, being the purchaser, is only entitled to a credit for what he has actually paid, and that the remainder of the purchase-money is recoverable in this action.</p> <p>“We instruct you that the defendant, notwithstanding his purchase of the title or interest of the vendor, is liable for the remainder of the purchase-money, due on the articles of agreement, allowing him interest on the sum which he has paid in advance of the instalments. It is true, that all the authorities which have been cited by the plaintiff, commencing with 16 S. & R. 261, are instances where the lien had attached against the estate of the vendor, before any articles of agreement, but we cannot see why a vendee there would only be entitled to defalk the amount of his bid, with interest, and such expenses as a jury would allow him, and, in the case of a sale under a subsequent lien, would be entitled (if he became the purchaser) to the entire estate. In the case of a prior encumbrance, he is forced to become the purchaser, although he may have no money in his hands, or lose the estate. Not so as regards a subsequent lien—he is a volunteer—he buys on speculation, and if he buys the property for less than he had bound himself to pay under the articles, he is a gainer to that amount. If a stranger purchase it, it is admitted that the vendee would be bound to pay the balance of the purchase-money; yet if the vendee becomes a purchaser, for a dollar more than the stranger bid, he is released from the payment of the remainder of the purchase-money. This doctrine, to be sure, would make it indifferent to the vendor whether a stranger or his vendee should become the purchaser; in either case he would lose all beyond the bid. But what is sold by the sheriff? The legal estate remaining in the vendor, subject to the equity of the vendee, who is to have a conveyance of the legal estate, upon payment of the purchase-money.' Now, can the vendee insist upon the conveyance, by a partial compliance with his agreement ? If a stranger had purchased and stood in the place of the original vendor, he could not treat him so; and will the mere fact, that he has become the purchaser himself, enable him to avoid his own agreement? We may again observe that the vendee, in becoming the purchaser, is a mere volunteer; his covenants with Lantz could not have been disturbed, he could not have been compelled to pay an hour sooner or a cent more; besides, this doctrine would destroy all reciprocity, because we hold it for certain, that the vendor, by the sale, was not released from his covenants with the vendee. If this were the case, vendees would be in a most unfortunate predicament. Take this case for an instance:—Suppose the defendant had paid $7000 of the purchase-money, and Lantz had then discovered he could not make such a title as he had covenanted to make, could he relieve himself by confessing a judgment to any one and procuring his estate to be sold ? Certainly not. Then, while Lantz is held to his covenants, for both quiet possession and quantity, Garrard is released, or rather has released himself, from the payment of a considerable portion of the purchase-money. But, it is asked here, supposing Lantz had taken the articles of agreement or bond representing the instalments, and went into market with them, and Garrard had become the purchaser, for a sum not greater than was bid by him at the sheriff’s sale, would not Garrard have acquired the entire interest, and could he have been compelled to pay? We answer that he could not, for the reason that this would be the agreement of the vendor, to receive that amount as payment of the whole.</p> <p>“ It is said that the conditions, trusts, and powers, set forth in the confession of the judgment, upon which this property was sold, go to this extent, manifest an intention, and convey a notification to all who might purchase—vendee or stranger—that the whole and entire interest of the vendor was to be sold, and that Garrard, however he might be placed, purchasing under a simple unconditional payment, purchased in this instance, with the understanding that ho was buying the whole residue of the articles.</p> <p>“ If there had been an agreement between Lantz and Garrard, that, if the latter would purchase, he would be released from the payment of any purchase-money, beyond his bid, this would be the case, bivt there is no evidence of this that the Court can perceive. The mere fact that Myers was present at the sale and bid, will not answer. There is no evidence that Garrard himself offered any bid in his presence. Lantz contemplated two modes of disposing of his property for the benefit of his creditors—he confessed a judgment to Black and Myers, as trustees, for their own use and others. He, at the same time and in the same instrument, authorized them to sell, at public, private, or sheriff’s sale, and to pursue either course or both, as it might appear to them the most advantageous. Now, if it happened, as it did here, that the trustees should think proper to resort to a judicial sale, is there anything in the writing authorizing the confession of judgment, which would place Garrard, as purchaser, in a different situation, than if this had been purchased on any other simple judgment ? We answer that there is not. If Garrard had purchased at private sale, his purchase, then, would have depended upon its terms.</p> <p>“ The first and second points may be answered together. We have already said that the articles of agreement are not extinguished by the sheriff’s sale, and we have shown that, if such was the ease, a vendor might, at any time, place his vendee in a very unfortunate condition, by procuring a judicial sale of his estate, and thereby release himself from his covenants.</p> <p>“ 4. This is true, and, although not at common law, in Pennsylvania any estate or interest in land may be sold; but when the estate of a vendor is sold, whether upon a judgment entered before or after the relation of vendor and vendee is formed, and the vendee becomes the purchaser, he is only entitled to a credit on his agreement for the amount actually paid and such interest and expenses as the case may warrant.</p> <p>“ 5. We do not answer that a sale effected, under the circumstances detailed in this point, would alter the case, or effect of the sale.</p> <p>“ 6. We have already answered this in our general charge.</p> <p>“ 7. In order to give a sale, made by a sheriff, under a judicial process, an effect beyond 'the law, a mere intent of the party will not be sufficient—it must be openly expressed and acted upon. We have said already that it was the intention of Lantz to effect either a private or judicial sale, and, the probability is, he contemplated an entire disposition of his whole interest; but there is certainly no evidence that he intended a relinquishment of any legal or equitable advantage.”</p> <p>Yerdict and judgment in favour of the plaintiff for $1620. The following errors were assigned:</p> <p>1. The first sentence of the fourth paragraph, beginning—“ If there had been, &c.”</p> <p>2. Charging that plaintiff below was entitled to recover.</p> <p>3. The answers to the points submitted by the defendant below.</p>

<p>In error from the Common Pleas of Greene.</p> <p>Trespass under the Act of 1824, for cutting timber. There was evidence that the tract was seated, and the defendant contended the action did not lie; but the Court ruled the contrary.</p> <p>The plaintiff held by conveyance from Freeland, under Court-right, who had made an improvement and settlement, extending over two adjoining tracts, which had been previously surveyed. The land in question was within the limits of his claim.</p> <p>The defendant then proved that a survey had been made on this improvement right for Freeland claiming Courtright’s interest, without knowledge of the prior survey, which excluded the land in question.</p> <p>The plaintiff then proved, that at the time of making the older survey, Freeland declared it was not his intention to abandon any part of his place, but to secure other ground for certain reasons.</p> <p>The Court left it to the jury to say whether there had been a disclaimer of the part of the improvement excluded by the survey.</p>

From the Orphans’ Court of Indiana. The petition set forth that William Armstrong by his will directed that his wife and children should dwell on his farm, and have the use of it for the education of his children and her own necessary wants. In case she married, she was to move off the premises and deliver the same to his executors.

In error from the Common Pleas of Indiana. Assumpsit.—The plaintiff read in evidence a letter from Rea to himself, also a note drawn by himself to the order of Rea, and by him endorsed; and the deposition of Rea, who stated that he was the agent of defendant whose draft had been protested, and who had requested Rea to obtain this note from the plaintiff and have it discounted^ and with the proceeds pay the protested draft, which he did.

<p>In error from the Common Pleas of Indiana.</p> <p>Case for slander. The material words in the declaration were: —“You (the said plaintiff meaning) went and cut up a parcel of hats (meaning the hats of the said plaintiff), and then wont and made a false oath against your father (the said plaintiff’s father meaning), and afterwards you (the said plaintiff meaning) took sick and confessed that you (the said plaintiff meaning) had cut up the hats yourself; you (the said plaintiff meaning) swore a lie against your father (the father of the said plaintiff meaning), and I can prove it; you (the said plaintiff still meaning) swore a lie, and it is in black and white, in Westmoreland county; you (the said plaintiff meaning) swore a lie, and it is on record in Greensburgh; thereby then and there meaning and intending to convey the idea and to charge the said plaintiff with having destroyed hats by cutting them ixp, and with having commenced a prosecution against his father for malicious mischief, and with having committed the crime of perjury in swearing the false oath as aforesaid in the said alleged proceeding.”</p> <p>There was no averment or proof of any proceedings having been instituted, in which the oath could have been taken.</p> <p>Burrell, P. J., told the jury that “-the words laid in the declaration and proved, are to be construed according to their ordinary and usual sense; and if they impute a charge of perjury, in short, if they mean what the innuendo says they do, then the defendant is responsible, although it be not shown that he averred the pendency of a judicial proceeding, and that plaintiff was sworn as a witness on the trial.”</p>

<p>Where two persons are authorized,by a board of School Directors of a district to make a contract on their behalf, a contract signed and sealed by one only is not admissible in evidence in an action of covenant brought against the School District.</p>

In error from the Common Pleas of Somerset. Debt for the penalty imposed by the Act of 1729. The plaintiff was a citizen of and resident in Maryland. The defendant was a justice of the peace of this State, and having married the minor daughter of the plaintiff to one Bollin without the consent of the plaintiff first had, this action was brought.

<p>In error from the Common Pleas of Butler.</p> <p>The ease is fully stated in the opinion of the Court.</p>

<p>In error from the Common Pleas of Warren.</p> <p>Assumpsit on a lost note, alleged to have been drawn by the defendant.</p> <p>The witness called by the plaintiff to prove the note, said: “ In the fall of the year 1846 the plaintiff showed me a note for $100, without interest, dated in May or June preceding, and payable the June following, with defendant’s name to it as maker, and payable to the plaintiff. I cannot say positively that it was in defendant’s handwriting, nor that the signature to it was. Did not notice whose handwriting the signature or body was; did not occur to me to look at the handwriting. I am acquainted with defendant’s handwriting from having business transactions and connexions with him, and it did not occur to me when I saw the note but that it was genuine. It did not occur to me to examine particularly whose handwriting the signature was. I tried to buy this $100 note from him, but could not; I cannot say I formed any opinion of the handwriting then or since, nor did I make any particular examination as to whose handwriting the signature to the note was. I took no particular notice. It never once entered my head about the writing not being defendant’s. It did not enter into my head about the writing at all. I then formed no opinion of the handwriting, and made no examination to enable me to form an opinion now, as to the handwriting. The body and signature I think were all in the same hand.”</p> <p>The plaintiff also gave evidence of the loss of the note.</p> <p>Church, P. J., told the jury the evidence was slight, but he felt bound to submit it to them to find on it whether the note was executed by defendant.</p>

<p>1. By a sealed agreement, A. and B. were to hold the land as equal partners, A. to remain in possession, and hold for the use of both, and to pay B. one-half of what should be adjudged a reasonable rent; covenant lies, although A. may have expended money in improving the land.</p> <p>2. A. having a sheriff’s title to land, executed a sealed agreement with B., by which it was covenanted that they should hold the land as partners, and that B. should pay half the rent to A.: this agreement recited another sheriff’s title in 0., which B. had agreed to purchase. Subsequently, O. conveyed that title to A., who conveyed to B. to hold for such estate as C. had at the time of his conveyance to A. A.’s title to the rent under the original articles is not thereby affected.</p>

<p>In error from the Common Pleas of Fayette.</p> <p>, The scire facias to have execution recited a judgment in an action of dower recovered in the Common Pleas of Fayette on the 26th September, 1820, by James Shaw and Margaret his wife, and that the said Margaret was now sole. Pleas : nul tiel record and payment with leave. On the former the Court, after inspection of the record, gave judgment for the demandant; and, on the latter, for insufficiency of the plea.</p> <p>The record showed a writ of dower was sued out in 1815, to which there was a plea and demurrer. It then proceeded to state that a case was stated for the opinion of the Court in 1817, and an opinion was filed in 1818. Put it contained no direction for judgment, nor was any actually entered, so far as the record showed. A writ of error was sued out, and the cause removed to the Supreme Court, where the record ran:—“ September 26, 1820, judgment reversed, and judgment on the verdict for the plaintiff.” This was certified to the Common Pleas before this sci. fa. issued.</p>

<p>In error from the Common Pleas of Armstrong.</p> <p>Ejectment. The plaintiff showed a warrant to one Bryan, and a survey together with a deed from Bryan’s heirs dated after the action had been commenced. But no objection was taken to it on this ground at the trial, and the objections taken were abandoned here.</p>

In error from the Common Pleas of Fayette. In April, 1841, Henry Shauffer demised certain real estate “ for the season” to the defendant. In the lease it was.recited that defendant had become bail for the lessor in a certain obligation, and it was declared that the rent (which was payable in corn, &c.) should be by the lessor retained and applied to the payment of that debt, so far as it would extend.

<p>1. Where real estate has been purchased for partnership purposes, and was so held, judgments for partnership debts are payable out of the proceeds, in preference to judgments against partners individually.</p> <p>2. If the judgment is merely a joint one, it is competent for the plaintiff therein, on the distribution of a sheriff’s sale of partnership property, to prove that the cause of action was a partnership debt.</p>

In error from the Common Pleas of Butler. Debt against the sureties of a prothonotary on the official bond.

<p>1. A purchaser of personalty acquires no other title than the seller had.</p> <p>2. Where a chattel had been lent to one, who used it as his own, and sold it, the lender does not lose his right of property; nor do his declarations, that the borrower owned the chattel, bind him, further than as evidence on the question of ownership, unless the purchaser was thereby, induced to buy.</p> <p>3. Acts of ownership by the borrower, inconsistent with his title, must be brought to the knowledge of the lender, to affect his title in favour of strangers.</p>

<p>In error from the Common Pleas of Cambria.</p> <p>Assumpsit on a note dated May 12th, 1845, and payable Sept. 1, 1846. The attorney of the plaintiff proved he had received the note from his client on the 12th of May, as collateral security for the payment of certain debts, to which the proceeds when collected were to be applied, which fact was communicated to the defendants.</p> <p>.The defendants produced a receipt by the plaintiff in full for the note, dated in March, 1846.</p> <p>The plaintiff then offered to show the facts above stated, and that defendants had since made an offer of money if the note would be delivered up, which the Court rejected.</p>

In error from the Common Pleas of Clarion. Debt on a single bill, dated in September, 1841. Payments had been made thereon in 1842, and 1844. Defendant proved admissions of plaintiff that the bill was given him for work done on a mill built for defendant. That he had been employed by one Obert to do the work, who had furnished the plan, and with whom he was in partnership; and lastly, that the mill was entirely worthless, owing to a defect in the plan.

<p>1. A being indebted on two contracts, makes a payment; it must be applied on the contract to which, by the receipt, it appears it was intended by A.</p> <p>2. The vendee of land under articles assigned to the plaintiff, and agreed to give him receipts which would bring a deed from Ms vendor. If receipts are given which entitle the plaintiff to a deed, and he continues in possession, he cannot rescind and recover back Ms purchase-money, because the vendor refuses to convey.</p> <p>3. ' The statute of limitations begins to run on the right to recover back the purchase-money of the assignment, from the refusal of the vendor to convey, and is not suspended by the subsequent declarations of the vendee, that the receipts wMch he had delivered would produce a deed.</p>

<p>In error from the Common Pleas of Warren.</p> <p>Case for nuisance. The plaintiff was the owner of a mill, propelled. by the water of a stream, without a dam. The defendants subsequently built a mill on their land, on the stream above that of the plaintiff’s, and there erected a dam ten or twelve feet high, in which they collected and retained the water long enough for the uses of their mill, hut no longer. They used a wheel called a •flutter-wheel.</p> <p>It was proved that this detention of. the water injured the plaintiff’s mill.</p> <p>The defendants contended that if they used no more water than was reasonable, customary, and necessary for the running of their saw-mill, and detained the water no longer than was necessary for that purpose, they were not liable in damages to the plaintiff, though he may have suffered injury from the works of the defendants in detaining the water in the manner testified to in this case.</p> <p>Church (P. J.) instructed the jury that:—“ The owner of land through which a stream of water passes has a right to the use of the water while so passing, either for irrigating or manufacturing purposes. But in the exercise of this right he must he reasonably careful of the rights of others. Defendants owning the land above the plaintiff on this stream, have a right to the reasonable and necessary use of the water running in it for a mill, unless it be taken and used or shut off hy them so as to materially destroy the privileges and rights of plaintiff below. They have also a right to a reasonable detention of the water for the same purpose, hut not to every kind and extent of detention which the peculiar construction of their machinery may seem to require as necessary. When constructing their works they should provide against such results as will materially injure the reasonable use of it hy plaintiff in his works below. To shut off the water altogether and then let it go in such unreasonable and unnatural quantities that the plaintiff is unable to use it, when passing, hy the exercise of reasonable care and attention, and thereby causing a material injury and damage to his works, gives the plaintiff a right to compensation for the actual damage thus sustained.</p> <p>“We cannot assent to the defendants’ point in the strong language used therein, without qualifying it in the manner we have. The reasonable use or detention of the water by defendants is such as does not materially injure or prevent the use of it by plaintiff below. This is what we are to understand by the reasonable use of the water by a riparian owner. Any other definition of the term would, it seems to us, be a violation of the spirit of the rule, so to use one’s own as not to injure another in the enjoyment of his legal rights.” • -</p>

<p>1. Error lies on an award of execution.</p> <p>2. A. having been acquitted on an indictment, but ordered by the verdict to pay the costs of prosecution, gave a bond on which judgment was confessed, conditioned to pay the costs imposed by the Court. No sentence was passed. A fi. fa. issued before taxation of costs, is irregular—but a sentence is not essential.</p> <p>3. The record must show the amount due for costs on taxation, or it will not sustain such an execution for them.</p>

<p>In error from the Common Pleas of Washington.</p> <p>A judgment was entered by a justice of the peace for $87.50, being the amount of the plaintiff’s demand. In the certificate attached to the transcript it was stated—“ Defendant offered, in presence of the plaintiff, to confess judgment for five dollars, before the rendering of this judgment.”</p> <p>On the appeal the plaintiff had a verdict for five dollars, and the defendant took a rule to show cause why plaintiff should not pay defendant’s costs since the appeal; which the Court discharged.</p>

<p>From the Orphans’ Court of Washington.</p> <p>Carson by his will devised his land to his son Thomas. If he chose to accept it, he was to pay $1700 to different persons. If he would not accept the land, it was devised to the testator’s sons, Isaac and Thomas, share and share alike, and they were to pay certain sums to legatees.</p> <p>Thomas accepted the land, and conveyed it to the appellant.</p> <p>One of the legatees of part of the fund Thomas was directed to pay, filed a petition, praying satisfaction out of the land. And the Court so decreed.</p>

<p>An agent of a stage company, authorized to obtain surgical aid for a passenger, injured by the' upsetting of the coach, is not therefore authorized to employ a physician to attend to 'one who had acted as coachman, without the consent or knowledge of the company, and who had also been injured by the same accident.</p>

<p>From the Orphans’ Court of Westmoreland.</p> <p>The petition of one Cavett, one of the heirs of McKean, set forth his death, leaving three brothers, Robert being one, a sister, and the issue of another sister, his heirs. That he died seised of 160 acres, and that. Robert,.who had since died, had aliened his interest to Hartford. Partition was prayed, and an inquest awarded. Hartford having elected to take at the valuation, a decree to that effect was made August 21, 1848, and the next day he entered into the usual recognisances.</p> <p>On the 24th August, 1846, one of the heirs named in previous proceeding, filed a petition for review, setting forth that the conveyance by Robert McKean to Hartford was but for 100 acres; and though he entered and claimed the whole, the other heirs of the decedent before the partition made, had recovered in ejectment from him four-fifths of the 100 acres sold to him; but that in the partition he was, through mistake, allowed to retain as his share one-fifth of the value of the 160 acres, whereas he was entitled to but one-fifth of the 100 acres sold to him by Robert.</p> <p>The administrators and heirs of Hartford demurred to the petition, and the Court dismissed it.</p>

In error from the Common Pleas of Westmoreland. Assumpsit for work and labour performed by plaintiff’s minor children for defendant’s testator, from 1833 to 1839. The plaintiff, having proved the work done, called a witness, who stated: “Beeves (defendant’s testator) died 29th April, 1844. After 1837 Beeves sent word by me to my father to come over, he wanted to sell him some stock, or something to pay for this work; this was frequently.

<p>Where a township is created by Act of Assembly, describing the boundaries by a reference to certain rivers, creeks, and farms, without naming the'county, the locality may be ascertained by parol evidence, and the township is lawfully created.</p>

<p>An endorser of an over-due note is not discharged by want of notice for three months of the subsequent demand and refusal, there being no evidence that he was injured by such want of notice.</p>

In error from tbe Common Pleas of Westmoreland. Ejectment. The evidence in this case established that a conveyance (now lost) had been made to James Clark and Eanny his wife (the present plaintiff) of the land in question.

In error from the Common Pleas of Cumberland. Special verdict.

In error from the Common Pleas of Westmoreland. Ejectment. In 1818 there was a partition in the Orphans’ Court of certain land, and the several parcels were taken at the valuation by Samuel and Alexander Craig, the lessor of the present defendant, and they gave recognisances to pay to the other heirs their shares. The plaintiff’s wife was one of the heirs, and party to the partition.

<p>1. A. being indebted to B., a bond for tbe amount was prepared at his instance, and be being unable to write, from sickness, requested C., who acted as bis agent, to sign it C signed and sealed tbe bond, styling himself guardian, and authorizing judgment to be entered against himself as guardian of A. O. is a competent witness for B., in an action against A. for the debt.</p> <p>2. Nor will such a bond, and judgment entered thereon, be a bar to the action, unless received in satisfaction by B.</p>

In error from a Special Court of Common Pleas of Fayette. Ejectment. The plaintiffs were heirs of Ann Squibb. They showed a conveyance of the premises to C. Squibb and Ann Squibb, his wife, habendum to them, their heirs and assigns. C. Squibb died, his wife surviving. The defendant proved the grant of letters of administration on the estate of C. Squibb, in 1820, to Ann Squibb, his widow, and Jacob Matthiot.

In error from the Common Pleas of Fayette. This was an ejectment commenced in 1846. In 1848, Stewart presented a petition setting forth that he had sold the land to defendant with a covenant warranty, and praying to be substituted as defendant. He further stated that he had not until recently been aware that the case was on the trial list, and that his duties as a member of Congress would prevent his attendance and preparation for the trial at the approaching term.

In error from the Common Pleas of Greene. To a sei. fa. upon a judgment the defendant pleaded payment, and that, after the judgment was recovered, he had become a bankrupt. To this the plaintiff demurred, which demurrer he subsequently withdrew, and again demurred. The cause coming on for trial, the defendant was required to join in demurrer, which he did, and the Court gave judgment for plaintiff.

<p>1. Under the act of 1842 (warrant of arrest), tire bond to be taken by the judge, should be for an appearance only; and, if the defendant appeared on the day, his sureties are not liable for his non-appearance at an adjournment of the hearing.</p> <p>2. The bond is well taken in the name of the judge.</p>

In error from tbe Common Pleas of Venango. Tbe following opinion was tbe only paper obtained by tbe reporter, and is believed to contain a correct and sufficiently full statement of tbe facts of the case. It was decided at a previous term.

In error from the Common Pleas of Philadelphia. Dee. 10. On the 4th of August, 1825, a judgment was obtained before a justice of the peace. It was subsequently marked to the use of Reid, and then to the use of Browne. In January, 1845, a transcript was filed in the Common Pleas, and on this a scire facias quare ex. non issued. The defendant pleaded, among other things, payment.

In error from the District Court of Philadelphia. Dee. 10. Debt on the official bond of the sheriff: the question being whether the sheriff was liable to the plaintiff, as assignee of a mortgage, for the proceeds of a sheriff’s sale discharging the land from the lien.

<p>In error from the Common Pleas of Philadelphia.</p> <p>March 22,1849; reargued Dec. 12. Case stated. The plaintiffs below were a municipal corporation created in 1819, and authorized to pass necessary ordinances for the government of the district and the welfare thereof.</p> <p>The defendants were a private corporation created in 1844, “ to construct and maintain suitable works for the manufacture of gas for the purposes of public and private illumination,” and they were required on application from owners or occupiers of property on any street, whenever in the opinion of the trustees the profit would yield six per cent, interest on the expenses, to lay pipes on such street for the purpose of lighting the same; and it was provided that the streets when broken up for this purpose should be repaired as soon as practicable under the direction of the officer appointed by the plaintiffs.</p> <p>By an ordinance of the plaintiffs, passed in 1849, the defendants and every other person were prohibited, at any time thereafter between the 1st of December in any year and the 1st of March following, from opening or digging up any paved street within the limits of the district, for the purpose of laying gas mains or pipes along the same—with a proviso that gas might be introduced at any time into'premises fronting on the streets where mains had already been laid.</p> <p>By another section, the digging up of any paved street within the district, in order to introduce gas into any premises on the opposite side of the street to that on which the main was laid, was prohibited. Penalties were imposed for the violation of these ordinances.</p> <p>For the violation of the first ordinance an action was brought, which was turned into a case stated, and judgment was given for the plaintiffs. On the argument here, the Court were requested to express an opinion on the validity of the second ordinance.</p>

<p>1. A sale to a bona fide purchaser for value by assignees for creditors, under a deed voidable for a defect apparent on its face, cannot be avoided by the insolvent trustee of the assignors, where the sale was made before an election by the trustee, to disaffirm the assignment.</p> <p>2. The accounts of the voluntary assignees, which have been confirmed, and the money distributed, in which they charge themselves with the price of the sale, are evidence of the fact of the payment of the purchase-money, against the insolvent trustee.</p> <p>S. The purchaser being a preferred creditor, an extinguishment of his preference to the extent of the purchase-money, to which he became entitled under a subsequent decree of the Court, is equivalent to actual payment.</p>

<p>Certificate from the Nisi Prius.</p> <p>Jan. 23, 1849, reargued Deo. 14. Assumpsit on a promissory note drawn by the defendant at four mouths in favour of Lucretia Bleecker, dated December 5, 1845. On the 16th January, 1846, Wheatley, for himself and Lucretia his wife (late Bleecker), endorsed the note to the plaintiff.</p> <p>A case was stated in the nature of a special verdict, and the facts were these :</p> <p>The payee of the note was married to Bleecker in 1840.</p> <p>In 1845 a libel for divorce was filed by her in the Court of Common Pleas of Philadelphia, alleging desertion and cruel treatment. The record showed that a copy of the interrogatories to be propounded to witnesses, and of the notice of taking the testimony, was posted in the prothonotary’s office ten days before tbe examination of witnesses. The evidence was taken and returned, and a decree of divorce entered November 22, 1845.</p> <p>A certified copy of this decree was exhibited to Wheatley by the father of the libellant, upon the faith of which Wheatley married her on the 12th January, 1846.</p> <p>On the 13th February, 1846, Bleecker applied to the Court to revoke and rescind the decree of divorce.</p> <p>The application contained simply a denial of the allegations of the libel, and averred that the libellant had previously been guilty of adultery.</p> <p>A notice of the application to vacate the decree was served at the reputed residence of the libellant. But the fact that she was at that time absent from the State was communicated to the Court on the 7th March, 1846, when the following decree was entered by the Court:</p> <p>“ Ordered, that the proceedings and decree in this case be annulled, on the ground that the same was obtained by fraud and imposition on the Court.”</p> <p>There was nothing on the record showing that any proof was taken preparatory to this order, or that the libellant appeared.</p> <p>The verdict further found that the libellant had no issue by her husband Bleecker, but that by her second husband, Wheatley, she Las issue, a child born November 4, 1846.</p> <p>Whether the plaintiff could recover on the note, was the question submitted.</p> <p>The Court gave judgment for the plaintiff.</p>

<p>1. The Orphans’ Court has concurrent jurisdiction mth the Common Pleas, in cases of testamentary trusts, though the trustees are appointed nominatim.</p> <p>2. After the settlement of the administration account, and of a trustee account, by executors, who were also trustees of real estate, a new county was created, within which were situated the trust property, and the residences of the trustees: the Orphans’ Court of the new county have jurisdiction over all subsequent accounts of the trust estate.</p>

In error .from tbe Common Pleas of Montgomery. Dec. 24. These were two cases of scire facias upon mechanic’s liens, with notice to the terre tenant. The claims were filed March 9, 1843, and were not liens until made so by the Act of 1845; because the work was done and materials furnished under a special contract between the plaintiffs and the owners of the land: S. C. 5 Barr, 145.

<p>In error from the Common Pleas of Montgomery.</p> <p>Dec. 26. Ejectment. Catharine Lentz died seised of the premises in question. By her will she devised “to my son John $1000 more than one-fifth of my whole real estate, to he paid out of the remaining four-fifths to be willed to my daughters.”</p> <p>To three of her daughters she devised by several clauses “ one-fifth of my whole real estate,” and to another “ the remaining one-fifth of my real estate.”</p> <p>After disposing of her personal property, and making some provisions respecting the shares of two of the daughters, she added, “ it is my will, and I so direct, that the place be not sold without the consent of all my heirs.”</p> <p>On the 19th Dec., 1845, the plaintiff in this action recovered an award in an action of assumpsit against John Lentz (one of the devisees in the above will) for $167.93. On the 19th of- January, 1846, the plaintiff appealed and obtained a verdict for $620 on the 26th August. Judgment was entered, and the estate of Lentz sold to the plaintiff by the sheriff under an execution.</p> <p>The defendants proved that on the 5th January, 1846, John Lentz had sold and conveyed his estate in the premises for a valuable consideration.</p> <p>The Court (Krause, P. J.) was of opinion that the interest of John Lentz was real estate and liable to sale under the judgment, and that the lien of the judgment related back to the date of the filing of the award.</p>

In error from the Common Pleas of Bucks. Deo. 26. Samuel Solliday, by his will proved in 1830, bequeathed to his wife the income of $900, to be paid to her yearly, and appointed J. Solliday and Boileau his executors. J. Solliday settled an account, in which he claimed to retain $600 under the above-recited provision of the will. This action was brought against him alone, to recover the interest on the fund retained at 6 per cent.

<p>1. Where the rights of parties depend on the validity of a divorce granted by the legislature, evidence is admissible to show that causes for which it was granted were within the jurisdiction of the Courts, and hence the legislature had no power to grant it.</p> <p>2. But evidence is not admissible to show that the divorce was obtained by fraud or. falsehood, or that one of the members misrepresented the facts.</p>

<p>1. A rule to show cause why a judgment should not be opened, does not stay proceedings, without an order to that effect. Hence the sheriff is liable for goods levied on under such a judgment, which have been levied on and sold under a subsequent execution, and the proceeds paid to the plaintiff in that suit.</p> <p>2. The lien of a sheriff’s recognisance is discharged by a sheriff’s sale under a prior lien.</p>

<p>A turnpike company, authorized by its charter to collect tolls, and to stop all persons passing through the turnpike until the toll is' paid, cannot maintain an action therefor against one passing against the consent of the keeper without payment.</p>

<p>In error from the Common Pleas of Schuylkill.</p> <p>Jan. 2. On the 24th of May judgment was given against the plaintiffs in error, before a justice. On the 2d of June they entered an appeal and gave bail. The return day was oh the 7th June. On the 12th execution issued, and on the same day the defendants withdrew their former bail and entered other bail, and filed a transcript on the 14th. It was shown by depositions that the withdrawal of the bail was without the consent of the plaintiff, and that the transcript was completed and remained in the magistrate’s office from the 4th till the 12th June.</p> <p>The Court dismissed the appeal.</p>

<p>1. A quo warranto directed to one holding the office of mayor of a municipal corporation may be prosecuted by a private relator; but it will be granted only after a rule to show cause ; and it is within the discretion of the Court, and will not be granted in all cases, even though the incumbent was ineligible, and the relator a citizen of the corporation, entitled to vote in the election of the officer.</p> <p>2. Where such a writ was granted after notice, without a rule, a motion to quash will be entertained.</p> <p>3. Qucere, where a charter requires residence within the city for two years previous to an election, as a qualification for office, whether a citizen elected to an office under the city authorities, which required his residence without the city limits, and which residence was changed until his resignation, ceases to be qualified for the former office, by reason of non-residence.—Per Gibson, C. J., he does not.</p>

<p>In error from the District Court of Philadelphia.</p> <p>Jan. 11. In 1821, J. Dickerson, the elder, being seised of certain premises in fee, mortgaged them to the Contributors of the Pennsylvania Hospital.</p> <p>In 1831 he conveyed the same premises to J. Dickerson, the younger, in fee, reserving a ground-rent, by a deed in the usual •form.</p> <p>In this deed there was a covenant by the grantor with the grantee and his assigns, that he and they, paying the rent, &c., “shall and may at all times hereafter freely, peaceably, and quietly have, hold, and enjoy all and singular the premises hereby granted, with the appurtenances, and receive and take the rents and profits thereof, without any molestation, interruption, -or eviction of him the said Jesse Dickerson, or his heirs, or of any other person or persons whomsoever lawfully claiming or to claim by, from, or under bim, them, or any of them, or by or with his, their, or any of their acts, means, consent, or procurement.”</p> <p>In 1838 J. Dickerson the younger conveyed the premises to the present plaintiffs in fee. After the date of this deed, the premises were sold by tbe sheriff under proceedings on tbe above-mentioned mortgage, which had been commenced and prosecuted to judgment before the conveyance. One of the grantees in the deed of 1838 became the purchaser, and the property was conveyed to him by the sheriff, and since then he had been in the exclusive possession of the premises.</p> <p>On the trial, the Court rejected evidence to prove the present value of the property, and nonsuited the plaintiffs.</p>

<p>Under a testamentary direction to invest in any loans of the United States, or of the State of Pennsylvania, or of the city of Philadelphia, or in any of the incorporated districts in the county of Philadelphia, or in any public stocks or securities bearing an interest, executors are not liable for a loss incurred on an investment in the loan of the Lehigh Coal and Navigation Company, a private corporation owning a canal and coal-mines, and engaged in the business of mining and shipping coal.</p>

<p>In error from the Common Pleas of Schuylkill.</p> <p>Jan. 4. This was an action against a constable, brought before a justice of the peace. The defendant had levied on certain goods and sold them, and received from the purchaser his promissory note in payment, which was subsecpiently paid to the endorsee; but when, did not appear.</p> <p>The plaintiff was the lessor of the defendant in the execution. The rent for the premises on which the goods levied were, was in arrear to an amount less than the price of the goods sold, and the constable had notice thereof before the sale.</p> <p>The Court said that the law, independently of any agreement between the parties, implied a promise by the constable to pay the rent in such a case, and the action was properly brought before a justice.</p>

<p>1. A principal, when released from all liability growing out of an action against a surety, is a competent witness for him.</p> <p>2. An objection to testimony, for want of notice of special matter, should appear to have been taken specially at the trial.</p> <p>3. Under a plea that A. became surety, on the express agreement that time should not be given after maturity, evidence is admissible to show that at and after the maturity of the debt for which time was given, the principal had property sufficient to pay the debt, until he assigned in trust for creditors.</p> <p>4. Where one became surety on condition that another would become a co-surety, evidence is admissible to show that the creditor was to call on the surety, and that the proposed surety was informed of the arrangement, and assented to it; and if the creditor failed to procure his execution of the instrument, the others are discharged.</p> <p>6. Where the obligation of a principal is surrendered in consideration of another in which he is merely surety, he is, as respects that, entitled to all the rights of a mere surety.</p> <p>6. Contradictory statements on different examinations, go only to the credibility of witness, and must be referred to the jury.</p> <p>7. Giving a definite time to a principal for a consideration, discharges a surety.</p>

<p>Certificate from tbe Court of Nisi Prius, of Philadelphia.</p> <p>This was an action of covenant brought by Joseph Fleming, to the use of John M. De Bolle, against the Insurance Company of the State of Pennsylvania, upon a policy of insurance dated the 15th day of December, 1827, between the defendants of the one part, and “ Joseph Fleming, as well in his own name, as for and in the name and names of all and every other person or person's to whom the property hereby insured, doth, may, or shall appertain, in part or in the whole,” of the other part; upon a box of jewelry, by the schooner Nueva Eloísa, Matamala, Master, at and from Philadelphia to Havana.</p> <p>The declaration alleged that “ one John M. De Bolle, for whose use this action is brought, and who is the person to whom the property did appertain, and for and in the name of whom the said insurance was effected by the plaintiff,” was at the time of the shipment, and at the time of the loss, interested in the goods to the whole amount insured, and that the goods were lost by and through the perils and dangers “ of the winds and waves;” and through “ the perils and dangers of the seas.”</p> <p>The defendants pleaded, among other things, a former recovery, in bar and as an estoppel.</p> <p>The cause was tried on the 2d of'December,'1847, before Mr. Justice Rogers. The jury found a verdict for the plaintiff. Upon the trial several decisions on points of evidence were made against the defendants, and were excepted to by them, and assigned for error in this Court. Among them were the following, viz.:</p> <p>1. The plaintiff offered in evidence the deposition of a witness taken under a commission and letters rogatory to Havana, issued in a former suit, upon the ground that it had been taken in a former cause between the same parties, to recover for the same loss.</p> <p>The first interrogatory was, “ Do you know the parties, plaintiff and defendants, or either of them, and how long have you known them or either of them-?” The answer was, “He excuses himself, inasmuch as deponent is one of the persons respecting whom it. is inquired.” There were also the usual general interrogatories. The defendants objected to the admission of the deposition, upon the ground that the first interrogatory was not answered; and that the reason given by the witness for not answering, showed that he did not know in what cause he was under examination. The Court overruled the objection.</p> <p>2. The plaintiff offered in evidence the preliminary proofs—to which the defendants objected. The Court overruled the objection, and stated that they might be read, but not as proof of the facts stated in them.</p> <p>3. _ The plaintiff offered in evidence, having first proved the signature thereto, a paper purporting to be an account current signed by Joseph Fleming, the plaintiff, dated 9th May, 1828, headed “ J. M. De Bolle in account with Joseph Fleming,” in which De Bolle is debited with cash paid for policy, dated December 15, 1827, per schooner Nueva Eloísa. The defendants objected; but the objection was overruled and the paper admitted.</p> <p>It was disputed on the trial whether there was any evidence of a loss by the perils of the sea. The plaintiff gave evidence to show that the jewelry was shipped in good condition, and was properly stowed. It appeared that the vessel sailed about the 16th December, 1827, and arrived at Havana about the 2d of January, 1828. No account of the occurrences of the voyage was given. A survey, on stowage was made on the 10th of January, when the surveyor found that the wooden box containing the jewelry was stowed in the cabin in the transom locker, and was wet, and on opening the box he found that the jewelry, which he did not take out of the box, was much damaged by wet at the top. On a place in the deck over the box being pointed out to him, where it was said there had been a leak, he found it was wet. There were jugs and ship stores in the locker with the box. It also appeared that the jewelry was examined in the custom-house at Havana, between the 10th and 17th of January, 1828, when the whole of it was found to be much damaged by salt water. It further appeared that the Nueva Eloísa was, on the 11th October, 1827, registered in the marine register of the defendants, as A. No. 2, new caulked and in complete order; that a vessel like the Nueva Eloísa never stands above A. No. 2; that on the 9th and 12th of December, her cabin was repaired by a ship-joiner; and that sometime in 1828 a person who purchased her had to careen her. A vessel which arrived at Havana from Philadelphia about three days before the Nueva Eloísa, had “ strong northerly winds almost all the way out.” Evidence was also given that the working of the rudder tended to loosen vessels at the stern. The learned judge left it to the jury to say whether there was a loss by the perils of the sea, which was excepted to and assigned as error.</p> <p>In order to show a former recovery, the defendants gave in evidence the record of an action of covenant upon the same policy, and for the same loss, brought in the Supreme Court by John M. De Bolle, to the use of Ms assignees, William Vineyard and Joseph Fleming, against the defendants; the trial notes of the judge who tried that cause, and the report of it in 4 Wharton’s Reports, 68. On the trial of the former action, two objections had been made to a recovery, viz. 1. That the suit should have been in the name of Joseph Fleming, and, 2. That no evidence had been given to show that Fleming, when he procured the policy, intended it for the benefit of De Bolle. The judge (Sergeant), gave no opinion on the first objection, but sustained the second one, and instructed the jury to find for the defendants, which they did. The Supreme Court in banc, on the motion for a new trial, sustained both objections, and judgment was entered on the verdict. Several depositions taken under commissions issued in that action, were read by the plaintiff in the present case, upon the ground that they had been taken in a former cause between the same parties, to recover for the same loss; but the learned judge ruled that the plaintiff was not barred by a former recovery, and this was excepted to and assigned for error.</p> <p>The jewelry had been purchased by De Bolle, but it appeared that it was “ consigned” by him to one Quevedo, in Havana, and the defendants requested the judge to charge the jury that the property in the goods was to be presumed from this fact to be in the consignee. But the learned judge instructed the jury to inquire whether De Bolle was the owner of the property, and instructed them that “ the mere consignment of property for the benefit of the owner, vests a right of action in the consignee, because, by the consignment, he has a special property in the goods, but that the general property still remains in the owner, unless he has sold .the goods; and he has such a property as will enable him to sustain suit in the name of the person who effects the policy for his use.” This instruction was excepted to, and assigned for error.</p>