Volume 12 — Sergeant & Rawle's Pennsylvania Reports

<p>IN ERROR.</p> <p>From the record of this case, returned with a bill of exceptions,■on a writ of error to the Court of Common Pleas of Westmoreland county, it appeared that Eve Shaupe, the defendant in error, brought an action in the court below, against Jacob Shaupe, Lawrence Shaupe, and George Mumma, jr. on a recognizance, dated August 21st, 1815, entered into by them, in the Orphans’ Court of that county, conditioned, that the said Jacob Shaupe, should well and faithfully, in all things, perform and comply with the terms of an order of the said Orphans’ Court, to which the condition of the recognizance referred. By this order, the said Jacob Shaupe, who, as eldest son of Michael Shaupe, deceased, had elected to take the real estate of his father at a valuation, was directed to pay to the children of the intestate their respective shares of his estate, in one year from the date of the said order, with interest; and to pay annually to his mother, Eve Shaupe, during her natural life, the interest of one third of the sum at lohich the estate of her late husband had been valued; and, at the death of his said mother, to pay. to his brothers and sisters their respective proportions, of the said third part.</p> <p>To prevent a recovery on this recognizance, the defendants offered in evidence, the record and proceedings in a suit, instituted in the Court of Common Pleas of Westmoreland county, by Jacob Felgar against the said Eve Shaupe, to February term, 1814; in which, a judgment having been obtained by the plaintiff for ninety dollars damages, a fi. fa. issued, returnable to Jlugust term, 1816; which was levied on u all the right, title, interest, and claim of the defendant, of, in, and to the annual interest during her natural life, of the one-third part of the estimated value of the real e-state of her late husband, Michael Shaupe, deceased, charged on the said premises, to wit, on a certain messuage,” &c. To February term, 1817, a venditioni exponas issued, and was returned, sold to Jacob Durston. On. the 21st of February, 1817, Jacob Durston executed an instrument of writing under seal, by which, after reciting that he had made the purchase for Eve Shaupe, he bound himself, on her paying to him the amount of damages and costs, and fifteen dollars for his trouble, to execute to her a deed of conveyance, for the estate he had purchased. On the 20th of March, 1817, Jacob Durston, in consideration of having received from Jacob Felgar the amount above-mentioned for his trouble in attending to the sale of Eve Shaupe’s interest in the estate of her late husband, transferred to the said Jacob Felgar all his claim thereto. A certificate, dated the 21 “t of Jlpril, 1S17, signed by Humphrey Fullerton, sheriff, was ario offered in evidence, which, stated, that in pursuance of the venditioni exponas above-mentioned, he had sold “all the right, title, and interest of the said Eve Shaupe, in and to the annual interest during her natural life, of the one-third part of the estimated value of the real estate of her late husband, charged on a certain messuage, &e. to Jacob Dur-ston for eighty-six dollars.” Endorsed on this certificate, was an assignment, for a valuable consideration, by Jacob Durston to Jacob Felgar, of the first two annual payments which might become due since the sale, and to the said Eve Shaupe, of all the remaining payments, during the natural life of the said Eve Shaupe. A receipt was also indorsed, dated Jlpril 21st, 1818, signed by the said Jacob Felgar, for one hundred and twelve dollars, from Jacob Shaupe, by the hands of Lawrence Shaupe and George Mumma, jr., in full for the first two instalments.</p> <p>The defendants also offered in evidence the record and proceedings in two other suits, in which judgments for costs were obtained against the said Eve Shaupe, and executions issued, which were levied on her interest in her late husband’s estate. From the sheriff’s receipts, the costs of these suits appeared to have been paid.</p> <p>The defendants further offered to prove that the purchase by Jacob Durston, was made at the request of the attorney of the said .Eve Shaupe on the terms contained in the deed" of the said Jacob Durslon above-mentioned.</p> <p>The counsel for the plaintiff objected to the whole of the matters thus offered in evidence; and the court, having sustained the objection, the defendants’ counsel excepted to their opinion.</p> <p>argued, that the plaintiff below having parted with all her interest in her husband’s estate, prior to the institution of the suit, it could not be sustained; and the court below erred in refusing to admit evidence of that fact. Her interest was of such a nature as was capable of being sold. Before the proceedings in the Orphans’ Court lake place, the widow of an intestate has a freehold interest in her husband’s estate. After those proceedings, it is in the nature of a rent charge. It is a tenement. 2 Bl. Com. 16. Co. Lift. 6. 3 Com. Dig. 306.’ And all tenements may be taken in execution. Cro. Elia- 213. -A rent charge may lac levied on. The slightest interest in land may be sold. 2 Bac. Jib. 699. 2 Binn. 91. 1 Yeates, 427. It is no objection that.the sheriff did not execute a deed; for an equitable interest will pass without deed. The judgments were paid by the defendants, who thus became the equitable assignees of the fund. A deed may be made at any time. Such an objection, to an equitable defence in a case like this, lias oven less force, than if it were .made in an ejectment, in which the party sought to recover by virtue of such a title.</p> <p>For another reason this action cannot be maintained. There being several cognizees, the suit should have been brought in the name of all.</p> <p>in answer to the last point, observed, that the action should be joint, only where the interest is joint, which is not the case here. Whatever may be the force of such an objection, however, if urged in time, it is now too late. It should have been pleaded in abatement.</p> <p>In relation to the first point made on the other side, he contended, that the widow of an intestate has no interest in the land of her deceased husband; — she gets money instead of land. It is not in the nature of a rent charge. The widow has no right of distress. She cannot enter. The acceptance of a recognizance is a waver of the right of distress. Her interest is a mere chose in action; the recognizance is a bond of record. Yoke v. Barnet, 1 Binn. 358. The interest became personal, and was absorbed in the recognizance. Hamilton v. Lodge, 2 Serg. & Raiole, 491. Jade-son v. Willard, 4 Johns. 41. A chose in action cannot be levied on. Goodie’s .Administrators v. Jltkins, 14 Mass. B. 380.</p>

IN ERROR. Writ of error to the Court of Common Pleas of Allegheny county. The action in the court below was brought by Mary and John Invine, the defendants in error, against the plaintiffs in error, Sutton and M‘NicMe, partners in trade, on an alleged guarranty on the sale of a quantity of cordage, by the plaintiffs below, to one Hiram Hanshitt.

IN ERROR. Writ of error to Crawford county. This was an action of debt, for the purchase money of a tract of land, in which, on a demurrer to the plaintiff’s declaration, judgment was given for the defendant. — The facts were as follows: Isaac Beach, the plaintiff, by articles of agreement, dated the 1st of March, 1815, agreed to sell and convey in fee simple, to a certain James Wilson, a tract of land containing one hundred and twenty acres in Crawford county; for which…

<p>IN ERROR.</p> <p>This was an action of dower brought in the Court of Common Pleas of Allegheny county, by Elisabeth Reed against James Morrison. Plea ne unques seisie, &c.</p> <p>From evidence given on the trial in the court below, so far as it could be collected from the bill of exceptions which was returned with the record, it appeared that John Penn and John Penn, jr., being seized in fee of a tract of land, comprehending the premises of which dower was demanded, on the 27th of March, 1794, conveyed the same, by their attorney, to A. C. Reed, the husband of the demandant. On the 30th of December, 1803, sheriff Weslhoff executed a deed to James Morrison, who, on the 1st of December, 1813, executed a deed to R. Neal; but the purport of these deeds did not appear. It was proved, that James Morrison had possession of the lot in question from the year 1807, to the summer of 1S13. Two powers of attorney from A. C. Reed and wife, to A. Tannehill were given in evidence, in pursuance of which sundry lots were laid out. A plan of these lots, prepared by Tannehill, was at the same time exhibited to the jury; and among them, was the lot in question. At the time of the execution of the first mentioned deed, A., C. Reed cohabited with the demandant, and they lived together as man and wife until his death, in September, 1S06. Thomas Reed, a son of the plaintiff, testified, that three distinct sales of the land of A. C. Reed were made by A. Tanne-hill, under the powers of attorney above-mentioned, and that the lot in question was sold on the third sale, to William Larwell. The same witness was afterwards called by the defendant’s counsel, and stated that he had received a sum of money from William Wilkins, Esq., amounting to upwards of one hundred dollars; that this money had been recovered by Mr. Ross from A. Tannehill, after the death of A. C. Reed, and paid by him to Mr. Wilkins; that the witness, his mother, and three of her other children, were living together at that time, and supported principally by him. He could not say who received, the money from him, but some of it went to the use of the family, some of it was applied to his own use, and some to the payment of his father’s debts. He had no knowledge that his mother was aware from whom, or on what account, he received the money. At the time of his father’s death, the witness stated, the plaintiff was quite frail and weak in mind, and not competent to do business, and continued in that way since, lie added, that she was never more capable of doing business; nor did his father attend to business for some years before his death. The witness supported them a number of years. He stated further, that he never heard the suit of Reed v. Tannehill spoken of in the family; ho had heard of it himself, and supposed it was brought to recover money which Tannehill had improperly charged against Jl. C. Reed.</p> <p>The counsel for the defendant offered in evidence a bond given by Jl. C. Reed, to John Penn and John Penn, jr., dated March 27th, 1794, and an exemplification of a mortgage, embracing the lot in dispute, of the same date and between the same parties, upon which satisfaction was entered on the 28th of September, 1811. The counsel for the plaintiff objected to the admission of these papers in evidence, but the court permitted them to be read, and sealed a bill of exceptions. The defendant’s counsel also offered in evidence the record of a suit brought to June term, 1803, by Jl. C. Reed against Jl. Tannehill, a statement and other papers filed in the said suit, an arbitration bond executed by the parties to it, an account of sales and disbursements by Jl. Tannehill, and a list of judgments against Jl. C. Reed; to the admission of the whole of which in evidence, the counsel for the plaintiff objected; but the court overruled the objection, and an exception was taken to their •opinion.</p> <p>William Wilkins, Esq., who was examined as a witness, stated, that he was not the counsel of Reed in the suit against Tannehill; that after the death of Reed, Mrs. Reed spoke to him concerning the affairs of the estate, and her own situation; that he paid Thomas Reed the money recovered from Tannehill; that it was a voluntary interference on his part to serve the family, and not as counsel, and that he had no recollection of her speaking to him about this money or that received from Tannehill; that he had various conversations with her about the affairs of the estate,. but did not remember her consulting him about administering; that he did not recollect what Thomas Reed said he was going to do with the money, but ha, the witness, was satisfied that it was going to the use of the family; that he was apprized by the family that the money was in the hands of Mr. Ross, and that Mrs. Reed never complained to him that she had not got the money from Thomas Reed.</p> <p>William Earl swore, that Mrs. Reed was as capable as women generally are of attending to business.</p> <p>The court charged the jury in favour of the defendant, and the counsel for the plaintiff excepted, to their opinion.</p> <p>On the argument in this court, the following errors were assigned.</p> <p>1. That the court erred in admitting the evidence objected to by the plaintiff’s counsel, as stated in the bill of exceptions.</p> <p>2. That the court erred in charging the jury, that if the mortgage from Jl. C. Reed to the Messrs. Penns was executed simultaneously with their deed to him, he was not seized so as to entitle his widow to dower.</p> <p>cited Lessee of Watson v. Baity, 1 Binn. 470. Hitchcock v. Harrington, 6 Johns. 293. Collins v. Torry, 7 Johns. 281. Keller v. Michael, 2 Yeates, 300. Jackson v. Willard, 4 Johns. 44.</p> <p>referred to 15 Johns. 459. 4 Mass. R. 566. Cro. Jac. 615. 2 Co. 77.</p>

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Allegheny county, in a scire facias on a recognizance of special bail, on an appeal from the judgment of a justice of the peace. A suit had been brought before the justice by Casper Waldhouer and James invine, guardians of C. Waldhouer, the present defendants in error, against one James Patterson, in which judgment having been given for the plaintiffs, the defendant appealed to the Court of Common Pleas at November term, 1817, and entered into a recognizance with Jonas Roup, the plaintiff in error, as his surety, conditioned to prosecute the appeal with effect. The cause was submitted to arbitrators, who on the 20th of December, 1819, filed an award in favour of the plaintiffs for sixty-seven dollars and fifty cents. On the 12th of January, 1820, P. H. Patterson entered into a recognizance in the sum of two hundred dollars, conditioned for thé payment of the debt, &c. in order to entitle the defendant to a stay of execution, under the provisions of the seventh section of the áct of assembly of the 21st of March, 1806. 4 Sm. L. 329. On this recognizance, suit was brought to May term, 1820; to which the defendant pleaded mil tiel record, and the cause was placed on the argument list; but it did not appear from the record that any further disposition had been made of it.</p> <p>The scire facias in the principal case, issued in the name of the defendants in error against P. II Patterson and Jonas Roup, and recited a judgment against James Patterson on the 20th of December, 1820. The writ was served on Jonas Roup, and returned nihil as to P. H. Patterson. On the .15th of November, 1821, the court permitted the writ to be amended, by striking out the name of P. H. Pattterson as bail.</p> <p>On the trial, the president of the court below charged the jury, that the entering of security for the payment of the debt, &c. after the time limited for the stay of execution had expired, was altogether nugatory, and did not suspend the recognizance of special bail;' that bringing suit on the recognizance conditioned for the payment of the money, was not a waiver of the liability of the special bail, who sustained no injury by the proceeding, and who was not thereby prevented from surrendering his principal; and that therefore the plaintiffs were entitled to recover.</p> <p>The counsel for the defendant excepted to the charge; and, on the removal of the record to this court, filed the following specifications of error.</p> <p>1st. That the court could not amend the scire facias, by striking out the name of P. II. Patterson.</p> <p>2d. That the court amended the writ only, and not the record, which still remained erroneous.</p> <p>3d. That the proceedings on the recognizance for the payment of the debt, discharged the special bail.</p> <p>4th. That the scire facias vai'ies materially from the record, inasmuch as it recites a judgment obtained against James Patterson on the 20th of December, 1820, whereas no judgment was obtained against him on that day, but on the 20th of December, 1819.</p> <p>who insisted on the second, third, and fourth specifications of error.</p> <p>was requested by the court to confine himself to the third specification, He observed, .that in Peril and Cabot v. Glaser, it was held, that proceeding against a defendant by execution, did not discharge the security for the debt. It is only where two remedies arc inconsistent with each other, that by putting one in force the other is discharged. The entry of security for the money, being after the stay of execution had expired, was a nullity, and did not prevent the special bail from surrendering his principal.</p> <p>In reply, it was argued, that the entry of security for the debt, was inconsistent with the existence of special bail, the former being, in contemplation of law, sufficient for the money. Perlasca v. Spargella, 3 Binn. 427. An enlargement of the time of payment, is a discharge of special bail. The entry of security for the money, though after the time for a stay of execution had expired, was not a nullity, because the plaintiff did not treat it as such. He accepted the security and proceeded upon the recognizance, by which he lulled the special bail to sleep, and cannot now say that it was void. Bat Abone v. Warren, 10 Johns. 587. Livingston v. Bartles, 4 Johns. 480.</p>

IN ERROR. From the record of this case, returned on a writ of error to the Court of Common Pleas of Allegheny county, it appeared, that it was an ejectment for forty acres of land near the town of Allegheny.

IN ERROR. ON error to the Court of Comnjpn Pleas of JVarren county, it appeared from the bill of exceptions accompanying the record, that Isaac Buckaloe, the defendant in error, brought an action against the plaintiff in error, Callender Irvine, for goods sold, work • and labour, and-money had and received; to which the defendant pleaded non assumpsit, and payment.

IN ERROR. On a writ of error to the Court of Common Pleas of Fayette county, it appeared that this was an amicable action, in case, entered by the parties, to try their respective rights to a sum of money in court, arising from the sale of the real estate of George Caruthers. The plaintiffs in error were plaintiffs below. A case was stated for the opinion of the court, to be considered as a special verdict, either party having the right to sue out a writ of error.

<p>Possession of an order by the person on whom it is drawn, though the order be payable to a particular person, and not endorsed by the payee, is prima facie, evidence that it, has been paid.</p> <p>In an action by the endorsee against the maker of a promissory note, the endorser is a competent witness to prove, that the defendant had notice of the endorsement, before he acquired a claim upon the endorser, which he had given in evidence as a set-off.</p>

<p>Where the court below charged the jury, that «if the early settler has in any way defined his claim, he ought not to be deprived of it by a man who settles down many years afterwards,” but the jury were probably led by this language, taken in connexion with the circumstances of the case to suppose, that, as the plaintiff claimed by boundaries embracing six hundred acres, no person had a right to settle within those boundaries, until the plaintiff bad laid off the four-hundred acres to which he was entitled; or at least, that if any person did so-settle, it was at his own peril, because the plaintiff might afterwards locate his-land, so as to deprive him of his improvements, the judgment was reversed by this court for error.</p>

Weit of error to the Court of Common Pleas of Crawford county, in a. scire facias on a mortgage, brought by the defendant in error against the plaintiff in error. The defendant below, Turner, pleaded the statute against usury, and set forth in his plea, the facts of the usurious contract; to which the plaintiff demurred.

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Mercer county.</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, an amicable issue was formed, in which the plaintiffs in error were plaintiffs, and the defendants in error, defendants, the object of which was to try, whether or not Thomas Officer, the defendants’ testator, and late sheriff of Washington county, had paid over two sums of money which he had received from Henry Wise, on an execution issued by the present plaintiffs against him, viz. one hundred and sixty one dollars on the 2d of September, 1816, and one hundred and twenty-five dollars on the 22d of October, 1S16. The said Henry Wise, who was produced as ^witness by the defendants, having testified that these sums were paid, in hank notes, in his presence, by Mr. Officer, to the cashier of the branch of the Philadelphia bank, Mr. Neal, the cashier, after producing a re • lease from the mother bank, affirmed positively that no payment of one hundred and sixty-one dollars, or of one hundred and twenty-five dollars, had ever been made to him, either by Mr. Officer or Mr. Wise. In support of this allegation, and to show mistake in Henry Wise, the plaintiffs’ counsel offered in evidence the books of the bank of Washington to show, that on the 2d of September, 1816', Thomas Officer paid into that bank, the sum of one hundred and sixty-one dollars. The entry'proposed to be read, which, it was admitted, was made by Mr. Marshall, the clerk of the bank at the time, was in these words and figures:</p> <p>“ Monday, 2d September, 1816.</p> <p>W. K 161</p> <p>C. 104,14.</p> <p>Thos. Officer. 265,14.”</p> <p>The admission of this evidence being opposed, the defendants, on notice from the opposite counsel, produced their testator’s private bank book with the Washington bank, which exhibited the following entries:</p> <p>“ 1816, Aug. 21st. Cash, - - - #146.</p> <p>Sept. 2d. Do. ... 265,14.”</p> <p>The objection to the book of the Washington bank being persisted in by the counsel for the defendants, the court rejected it and sealed a bill of exceptions.</p> <p>contended, that the entry in the book of the Washington bank, being admitted to have been, made by the clerk of that institution, in the usual course of his duty, ought to have been received in evidence. 1 Phil. Ev. 312, (330.) On another ground, too, it was admissible. It was evidence of a rebutting nature. It was explanatory of the entries in the private bank book of the late sheriff, and was highly important, because it showed the deposit of two sums, making the aggregate for which credit was given in the private bank book; one of which sums, viz. one hundred and sixty-one dollars, in Washington notes, exactly corresponds, as well in amount, as in the date of the deposit, with the sum alleged to have been paid to the Philadelphia bank, in bank notes. This evidence would have been conclusive with the jury, and the plaintiffs lost the verdict by its rejection.</p> <p>If the private bank book of the defendants’ testator had been produced by them in the first instance, the propriety of giving in evidence the book of the Washington bank, to rebut or explain, would not perhaps have appeared in so objectionable a light; but the private book was only produced on the call of the plaintiffs, made after the book of the corporation had been offered. The clerk who made the entries, for aught that appears, might have been produced; and therefore the defendants were entitled to an opportunity of cross-examining him.</p>

<p>The 21st section of the act of the 20th of March, 1810, which provides that “ no judgment shall be set aside in pursuance of a writ of certiorari, unless the same be issued within twenty days after the judgment was rendered,” applies only to civil actions.</p>

IN ERROR. On the trial of this ejectment in the Common Pleas of West-moreland county, much evidence was given on both sides, and several points were made by counsel, upon which the court delivered their opinion to the jury; but to understand the only question decided by this court, it will be sufficient to state, that George M‘Dowell held by right of settlement the land in controversy, on which he commenced an improvement in the year 1768.

IN ERROR. Error to the Common Pleas of Washington county. brought this suit before a justice of the peace, against Joseph Wilson, the plaintiff in error, and obtained .a judgment for seventy-five dollars thirty-eight cents; from which the defendant entered an appeal to the Court of Common Pleas.

IN ERROR. The plaintiff below, Thomas Jones, issued a seh'e facias post annum, &c., on a judgment which he had bbtained in the Court of Common Pleas of Allegheny county, against Joseph Davis, the plaintiff in error.. The writ was returned, made known, &c. but the defendant did not appear. The return was at January term, 1814.

<p>Evidence that the drawer of a note discounted in bank, had without the privity of the bank, informed the endorser, prior to putting his name to the instrument, that the bank had agreed to look to certain other securities for payment, and not to hold the drawer or endorser liable, is not admissible, in an action by the' bank against the endorser.</p> <p>Where it had been testified by some witnesses, that certain bonds, which had been legally assigned to a bank, with powers of attorney to enter judgment, given at the request of the bank, and of which it retained possession, were assigned as a collateral security, not only for the bank, but also for the endorsers of a note discounted by the bank, held, that it was error to charge the jury, that if they believed the fact to be so, the negligence in not entering up the judgments on the bonds, and issuing executions, was as much the fault of the endorsers, as of the bank.</p>

IN ERROR. On a writ of error to the Court of Oyer and Terminer of Franklin county, it appeared that an indictment was found by the Grand Jury, containing two counts: The first charged, that the defendant The second count, charged him with having committed an assault and battery upon the said Catherine Coiler, with an intent to ravish and carnally know her. The caption of the indictment, was “ Over and Terminer, September term, 1822,” but it was found at November term, 1822.

IN ERROR. It appeared on the return of a writ of error to the Court of Common Pleas of Huntingdon county, that Hailey, the defendant below, being indebted to Gifford, the plaintiff, in about two hundred and fifteeen dollars, gave him five promissory notes, for forty-one, forty-two, forty-three, forty-four, and forty-five dollars, and confessed a separate judgment on each note, before a justice of the peace.

IN ERROR. Writ of error to --county, in an action brought by William Gifford, the defendant in error, against John Thompson, the plaintiff in error, and removed to the Court of Comnjon Pleas by appeal. The plaintiff filed a statement of his cause of action, and entered a rule of reference.

IN ERROR. This was an action brought by Jacob Stroop, and Mary his wife, in the Court of Common Pleas of Perry county, to recover damages for slanderous words, alleged to have been spoken of the wife by Smarts, the defendant in error. The plaintiffs had a verdict in the court below for one hundred and seventy-five dollars, but the court, on motion of the defendant’s counsel, arrested the judgment, for which reason the present writ of error was sued out.

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Huntingdon county.</p> <p>It was an action action against the Huntingdon bank, for money had and received for the use of the plaintiffs. The circumstances of the case were these: Samuel Maxwell held a hundred shares of stock in the bank, on which thirty per cent, of the principal had been paid. On the 18th of October, 1815, Maxwell gave a power of attorney to William E. Smith, to receive the dividends, and, on the same day, he gave him another power, to transfer the ^ stock to the plaintiffs. At the date of these powers, Maxwell was' indebted to the bank, for money borrowed on discount, in the usual manner, for which the bank held his note, with endorsers. There was also an instalment, to the amonnt of five hundred dollars, due on the stock, of which Mr. Smith informed the plaintiffs, and received from them five hundred dollars to discharge it. This money Mr. Smith deposited in the bank, to his own credit, and the day after the deposit, he drew a check, payable to Maxwell, which was applied to the payment of the instalment due on the stock. When this instalment was paid, no notice was given to the bank of the power of attorney from Maxwell to Smith, for the transfer of the stock to the plaintiffs. But sometime after-wards, (the exact time could not be ascertained,) Mr. Smith informed the officers of the bank, of the power which he held, and requested permission to make the transfer on their books. This permission was refused, unless the plaintiffs would pay the money in which Maxwell was indebted to the bank, on his note discounted. On the trial of the cause, two questions arose: — 1. Whether the plaintiffs had a right to receive a transfer of Maxwell’s stock, without paying his note? 2. Supposing they had no right to the transfer, whether they were not entitled to recover the five hundred dollars, which they had paid on. account of the stock? On both these points, the Court of Common Pleas decided in favour of the defendants.</p> <p>contended, 1. That the true construction of that part of the 11th article of the 7th section of the act of the 21st of March, 1813, 6 Sm. L. 154, which declares, that ££no stockholder, indebted to the institution, shall be authorized to make a transfer, or receive a dividend, till such debt shall have been discharged, or security, to the satisfaction of the directors, given for the same,” was, that the bank might refuse permission to make a transfer, where instalments were due upon a subscription to the stock, or notes were actually under protest; but that it was never intended to reach the case of one, who had had notes discounted with an endorser in the usual form, and who therefore could not be considered as indebted to the institution, within the meaning of the law. The effect of a different construction, would be to give the bank, in some cases, an unjust preference. If a stockholder should die, leaving a note unpaid, the bank, if it has a lien upon the stock, would be preferred to all other creditors.</p> <p>2. The plaintiff’s were entitled, at all events, to a return of the ffve hundred dollars paid on account of the stock. The bank had notice, some months after the payment, that it was made under an expectation of a transfer of the stock. It was therefore money paid under a mistake, and cannot be conscientiously retained. Paley on Jlgcncy, 257, 258.</p> <p>Tod, contra, denied the propriety of the construction given to the act of assembly in question, and observed, that stockholders were frequently enabled to obtain endorsers, because their stock ■was considered and relied upon, as a security for the payment of the note. He referred to X Ball. L. 323. 4 Sm. L. 153. 5 Sm. L. 23.</p> <p>2. Where a man receives money which is due to him, without using fraud or artifice to obtain it, he may retain it with a good conscience. When this money was paid, no notice was given to the bank that it belonged to the plaintiffs, and they must have supposed it was the property of Maxwell, because a power of attorney was, at the same time, given to receive the dividends, in his name.</p>

<p>IN ERROR.</p> <p>These actions, the first of which was brought by Thomas C. Lane and Elliott Lane, and the second by Thomas C. Lane alone, against Robert Smith, were, by consent, tried together, in the Court of Common Pleas of Franklin county, from which the record was returned,' on a writ of error, accompanied by two bills of exceptions to evidence.</p> <p>Both suits were brought on book accounts, and during the trial, the plaintiffs offered in evidence, the deposition of James Johnson, which had been taken in the suit brought by Thomas C. Lane alone. The witness testified, that the defendant “ looked over the books of Thomas C. Lane, and of Thomas and Elliott Lane, at the same time, and was satisfied with them, and mentioned he would pay interest; and at several other times, in conversation with the plaintiff, and in the presence of the deponent, he stated that he would pay interest, and that interest should always be paid on book accounts, when due.” The counsel for the defendant objected to the deposition, but the court admitted it, and an exception was taken to their opinion.</p> <p>The defendant, with a view “ to show the number of barrels of flour, belonging to Robert Smith, the defendant, delivered to the plaintiff,” offered in evidence the books of Archibald Irvine, at whose mill the flour was ground. Several witnesses, who had been employed at the mill, gave evidence relative to the delivery of the defendant’s flour, to the plaintiffs’ wagonners. They also proved, that the books were the original books kept in the mill, and that they believed them to be correct. They did not contain daily entries of the general transactions of the mill, or of all the flour delivered to any person whatever. But there was an account of the delivery of the defendant’s wheat to be ground at the mill, and of his flour to certain wagonners, said to be in the employ of the plaintiifs; but they did not contain an account of all the flour delivered to the wagonners of the plaintiifs, who were merchants in extensive business, and in the habit of having a great quantity of flour ground at Irvine’s miHs. They usually sent written orders with their wagonners for flour; but it appeared, that it was sometimes delivered on verbal orders. A considerable number of-the plaintiffs’ orders were filed at the mill,'but were after-wards burnt by Irvine, because they took up too much room in his desk. The entries were not always made at the time of the delivery of the flour; but sometimes, when flour was delivered in the absence of the book-keeper, a memorandum was made, and given to him on his return, from which he made the entry in the book. The book-keeper was living, and examined as to several matters in the cause. '</p> <p>The admission of the books in evidence, being objected to by the counsel for the plaintiifs, the court rejected them, and a second bill of exceptions was tendered and sealed.</p> <p>cited, Steel v. Duncan, 2 Yeates, 113. Juniata Bank v. Brown, 5 Serg. & Raiole, 226. Christie v. Woods, 2 Yeates, 213. Merrit v. Classon, 12 Johns. 102. 1 Dali. 16. Cooper v. Morrel, 4 Yeates, 341. Rogers v. Old, 5 Serg. & Rawle, 404. Phill. Ev. 167. Russell v. Boheme, 2 Sir. 1127. Warren v. Greenville, Id. 1129. Bellv. Keeley, 2 Yeates, 355. Robinson v. Lynch, 18 Johns. 451. Patton v. Jlsh, 7 Serg. & Raiole, 116. Love v. Perkins, 3 T. R. 749.</p> <p>cited, Phill. Ev. 199, (note.) Cooper v. Marden, 1 Esp. R. 196. Curren v. Crawford, 4 Serg. & Rawle, 3. 4 Mass. R. 455. Cutbush v. Gilbert, 4 Serg. & Rawle, 555. Poultney v. Ross, 1 Dali. 239. Kensington v. Inglis, 8 East, 289.</p>

<p>Counsel must confine their arguments, to the errors they have assigned in the re. cord.</p> <p>Trover, lies against the manager of a nail factory, belonging to third persons, for refusing to deliver a machine, put up in the factory during the period of his ma. nagement, by the patentee, who afterwards sold it to the plaintiff; there being no evidence, that the refusal was in pursuance of instructions from his employ, •ers.</p> <p>The detention of the machine, to prevent the plaintiff from using it as a model in the construction of other machines, is a circumstance proper for the considera, tion of the jury, in assessing damages.</p>

<p>Where an indictment has been returned, “ a true bill,” the prosecuting attorney cannot enter a nolle prosequi, -with the co?ise?it of the court, and charge the county with the costs of the prosecution.</p>

IN ERROR. Writ of error to the Common Pleas of Mams county, in an action for a legacy bequeathed to Ann Wiley, wife of the plaintiff below, William Wiley, by the will of her father James Walker, deceased.

<p>IN ERROR.</p> <p>The declaration filed in this suit, which was brought in the Court of Common Pleas of Cumberland' county, by John Weiser against Eve Collins, (late Womelsdorf,) administratrix of Daniel Wo-melsdorf, deceased, set forth that the said Daniel, in his lifetime, and the said John, were indebted to one Jacob Rupley, in two joint and several obligations, each conditioned for the payment of sixty pounds; all of which moneys, payable and due on the said bonds, amounting to the sum of one hundred and fifty-one pounds, five shillings and ten pence, at the request of the said Jinn, as adminis-tratrix of the said Daniel, the said John, since the death of the said Daniel, to wit, &c. hath paid and discharged, by reason whereof, the said Jinn as administratrix of the .said Daniel, is indebted to the said John in the sum of seventy-five pounds, twelve shillings and five pence, being one moiety or half part of the same moneys, which at the special instance and request of the said Jinn, as administratrix of the said Daniel, the said John, then and there on the day and year last mentioned, for her use as administra-trix, paid, laid out, and expended, and being so indebted, the aforesaid Jinn, as administratrix, at the day last aforesaid, in consideration thereof, as far as she had assets in her hands, unad-ministered of the said Daniel, to pay the same, then and there did assume, out of the said assets to the said John, that she the said Ann, the aforesaid sum of seventy-five pounds, twelve shillings and five pence, to the said John, when she should be thereunto required, well and faithfully would pay and content. Nevertheless,” &c.</p> <p>The jury found a verdict in favour of the plaintiff, for one hundred and twenty-five pounds, nine shillings and ten pence; and the court, having overruled a motion in arrest of judgment, directed judgment to be entered “ against the said administratrix, and that the plaintiff do recover his damages and costs out of the assets of the intestate, if the defendant has so much; but, if not, then the costs of the defendant’s own goods.”</p> <p>The defendant removed the record, by a writ of error, to this court, where Mahon and Carothers, for the plaintiff in error, contended, that the declaration set forth no cause of action. It charges the defendant in her own right, and does not aver that she had assets. When the intestate died, he was under no liability to the plaintiff; for the declaration states, that after his death, the defendant requested the plaintiff to pay the bonds, on which the intestate and he were jointly liable, and promised to pay the proportion of the intestate, out of his assets. It was a promise made by an ad-ministratrix to a third person, — not to the original creditor. Such a promise is personal, and does not bind the administratrix in her representative capacity. Forth v. Staunton, 1 Saund. 210. Pearson v. Henry, 5 T. R. 6. Hughes v. Ran, 7 T. R. 350. Tre-vannion v. Iiowel, Cro. Eliz. 91. Clark v. Herring, 5 Binn. 33. Grier v. Huston, 8 Serg. & Rawle, 403. 1 Chitty on PI. 228.</p> <p>The declaration does not set forth a promise by the defendant below personally. Her liability, as administratrix, is averred throughout. It avers that, as administratrix, she requested the plaintiff to pay these bonds, and as administratrix she promised to repay him. She was liable as administratrix, and as such was her promise given to pay not out of her own funds, but out of those of the intestate’s estate. That an administrator may restrict his promise, so as not to charge himself personally, is abundantly proved by authority. 1 Chitty on PI. 304, 305, 306, 307. 2 Chitty on PI. 100. 5 Binn. 37. Jones v. Moore, 5 Binn. 573. 1 Saund. 210, (note 1, 2.) 2 Saund. 137, (note 2.) Beach v. Kenriclds Executors, 1 Vez. 123. dll kins v. Hill, Cowp. 284. Hawkins v. Saunders, Cowp. 289. Wheeler v. Collier. Cro. 406. Swearingen v. Pendleton, 4 Serg. & Rawle, 493. 1 Peters, 441. The court will go very far to support a verdict, Cowp. 826.</p>

<p>Where a bond has been assigned, with a guarantee by the assignor for the pa}"ment of it, the guarantee runs with the bond, into whosever hands it may pass ; and the assignor is not a competent witness, in a suit brought by a subsequent assignee, to prove matters tending to show that the bond has been discharged.</p> <p>Where one, on receiving an assignment of a bond given by two obligors, one of whom was a surety, agreed with the assignor, with the approbation of the obli-gors, that it should be set off against another bond given by himself to the principal debtor; but, instead of doing so, assigned it, before it became due, to a third person, and suffered judgment to go by default against him in a suit brought on his own bond, held, that the responsibility of the surety was discharged.</p> <p>It seems, that, without any special agreement, the liability of the surety would be discharged in equity, since the creditor had in his own hands the means of satisfaction, out of the funds of the principal debtor.</p>

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Huntingdon county, in an action of debt on a bond, dated the 19th of July, 1820, given under the provisions of the act of assembly of the 2Sth of March, 1S20, by Abel F. Lincoln and Charles Raymond, to William S. Williams, conditioned for the appearance of the said Abel F. Lincoln, “ before the Court of Common Pleas of Huntingdon county, at the next term, to be held on the second Monday of August, 1S20, and then and there to remain and abide the final order of the said court, to be made during such term, and surrender himself to prison, in case on his appearance, he shall not comply with all things required by law to procure his discharge, under the existing laws for the relief of insolvent debtors of this commonwealth. ”</p> <p>To show performance of the condition of the bond, the defendants proved, that to August term, 1820, viz. on the 17th of August, Lincoln filed a petition, in the usual form of what is called a voluntary petition, praying for the benefit of the several insolvent laws of this commonwealth, and the second Monday in September was appointed to hear his case; on which day he obtained his discharge as an insolvent debtor. The petitioner returned some real and personal property.</p> <p>The plaintiff then produced a petition, filed by the said’ Abel F. Lincoln, to April term, 1830, and an order of the court, appointing the second of the following June for a bearing. On that day, the case was continued to August term, and on the 16th of August, 1820, the petition was dismissed. On the same day, Lincoln having been arrested at the suit of Wray Maize, gave bond, with the said Charles Raymond as security, ’conditioned for his appearance at the next court, to take the benefit of the insolvent laws; and, on application to Judge Stewart, he was discharged from arrest.</p> <p>On this state of facts, the presiding judge charged the jury, thus: “If the defendant had personal property when he gave the bond, and was discharged by Judge Stewart, it was not fair. While he had sufficient personal property, he could not legally be arrested. If he concealed the property, and procured the arrest for the purpose of preventing the plaintiff from getting the property he has a right to, it is unfair. The spirit of the act, requires fairness from the first step to the last. The proceeding at April may be laid out of the question. This court, where the defendant has plenty of personal property, and, instead of giving it up, goes to a judge and gives bond, has refused to receive his petition; stating that he was arrested in vacation, &c., being a falsehood and unfair conduct from the very face of his return, containing a large list of personal property. There are two forms of petitions in use, — ■ The one stating that the petitioner has been arrested in vacation, &e. the other by a person never arrested, but applying under section first of the act. This is in the latter form. If this was by mistake, or error of the clerk drawing it, we will not say it would conclude the defendants. If it really is a continuation of the proceedings on the arrest, the defendants have complied with the condition of the bond. If it is really an original application at August term, they are not freed from the bond. The proceedings in cases of this kind are not entered at large. Few are resisted — fewer are afterwards charged with fraud, and only short notes are made of the proceedings. The technical adherence to the literal meaning of words, has given place to the spirit and intent of parties. If, then, this is a continuation of the proceedings begun before Judge Stewart, the defendants are clear; if original, they are not.”</p> <p>The counsel for the defendants excepted to the opinion of the court, and removed the record to this court by writ of error.</p> <p>alleged, that there was error in charging the jury, that if Lincoln had personal property, he was not subject to arrest, and that, in such case, a discharge under the insolvent law is fraudulent. The act of assembly does not suppose, that there is fraud in the case mentioned by the judge. A very honest man may have considerable property, and yet be so pressed by debts, as to make it necessary to resort to the insolvent laws. A defendant is certainly liable to arrest, whether he has property or not, unless property be shown to the officer. Act of the 26th of March, 1814. Purd. Dig. 278. Act of the 29th of January, 1820. Pam. L. 9. Act of the 28th of March, 1820. Pam. L. 155.</p> <p>Whether the petition and discharge were a continuation of the proceedings begun before Judge Stewart, and a compliance with the condition of the bond, were matters of law, to be decided by the court, and therefore erroneously submitted to the jury.</p> <p>did not argue the cause.</p>

IN EREOS. This action was brought, in the Court of Common Pleas of Adams county, by the defendants in error against the administrators of Thomas Thornbury, deceased, the plaintiffs in error, on an assumption by the intestate to support a certain Daniel Swisher, who afterwards became a pauper, and was maintained by the plaintiffs.

IN ERROR. administrator of Elizabeth Hawthorn, deceased, brought this action in the Court of Common Pleas of Cumberland, county, against John Patterson, surviving executor of Samuel Henderson, deceased; and, by agreement, a case was- stated for the opinion of the court, to be considered as a special verdict. The substance of the ease was shortly this: — Samuel Henderson was the father of Elizabeth Hawthorn, deceased, late wife' of Alexander Hawthorn, the plaintiff.

<p>An application, calling for an improvement, is descriptive to a common intent; and if due diligence be used in obtaining a survey, the title, attaches from its date, and not from the return of survey; unless some subsequent act of the holder, such as suffering another to take possession and lnaips improvements without notice of survey, postpones him.</p> <p>It is the duty of the deputy surveyor to return his surveys; arid if he neglects this duty, the holder of an application is not to be injured by it.</p> <p>The holder of a surreptitious warrant for four hundred acres, on which a survey of eight hundred acres has been made, but not returned, cannot hold the land against an application founded on a settlement, where the applicant had a survey made of a smaller quantity than his application called for by a deputy surveyor, then interested in the surreptitious warrant, if, as soon as he discovers the fraud, he applies for an order of resurvey, and that order is executed, though not returned.</p> <p>. Time does not begin to run against the holder of such an application, where there been no bona fide purchaser, until he has had notice of the fraud.</p> <p>The holder of such surreptitious warrant, whose alienee and descendants hold more than the four hundred acres, cannot be considered in the light of a person claiming under a settlement right, and therefore protected on the ground of a settlement made without notice of resurvey, or before such resurvey is returned.</p>

<p>IN ERROR.</p> <p>The court is to give the construction of a written instrument, except where it cannot be understood without reference to facts dehors the writing; and, in that case, the jury are to judge of the whole together.</p> <p>Where a writing contained in the first part of it, a certificate that A., prior to its execution, had sold to B. seven hundred acres of land, and that a survey, made by S. L. the deputy surveyor, containing two hundred and nineteen acres, seventy-six perches, and the allowance of six per cent. was part of the aforesaid tract, for -which the said Ji. had paid him four pounds five shillings, specie, per acre ; and then followed a covenant, by the said A., to make to the said B. or his assigns, a deed of conveyance for the aforesaid two hundred and nineteen acres, seventy-six perches, clear of every incumbrance, &c. lield, that the payment of four pounds five shillings, specie, per acre, referred only to the two hundred and nineteen acres, seventy-six perches, and not to the whole tract of seven hundred acres.</p> <p>An acknowledgment, in an agreement for the conveyance of land, of the receipt of the purchase money by the covenantor, is evidence of that fact ¡ but it is not conclusive, and the covenantor is not estopped from showing, that the money has not been paid.</p> <p>An action to recover damages for the non-performance of an agreement under seal, for the conveyance of land, is to be brought by the personal representative of the covenantor, and not by his heir.</p> <p>The record of this case was returned on a writ of error to the court of Common Pleas of Cumberland county, accompanied by a great number of bills of exceptions to evidence; and in this court, various errors were also assigned in the charge of the court below, which had been excepted to by the counsel for the plaintiff in error, who was likewise plaintiff below. These exceptions, all of which may be resolved into a few principles, arose out of the following circumstances:</p> <p>On the 29th of June, 1782, Ephraim Blaine, of the city of Philadelphia, the defendants7 testator, and John Davis, of Mid-dletown township, in the county of Cumberland, the plaintiff’s intestate, entered into articles of agreement, under seal; in which the said Ephraim Blaine, after reciting that he was seized in' fee of a tract of land in Middletown township, called Coulter’s and Peter’s lands, containing eight hundred and thirty-two acres, seventy-two perches, and had bargained and sold the same to the said John Davis; in consideration of the sum of six hundred pounds, lawful money of Pennsylvania, the receipt of which, at the execution of the instrument, he acknowledged; and also, in consideration of five bonds, all bearing dato the 29th of June, 1782, executed and delivered by the said John Davis to the said Ephraim Blaine, viz. one bond for six hundred pounds, payable on the 1st of April, 1783; the second bond for the same sum/ payable on the 1st of JLpril, 1784; the third for the same sum, payable on the 1st of JLpril, 1785; the fourth for the same, sum, payable on the 1st of JLpril, 1786; and the fifth for the sum of five hundred and thirty-seven pounds, fifteen shillings, payable on the 1st of April, 1787, amounting, together with the said sum of six hundred pounds in hand paid, to the sum of three thousand, five hundred and thirty-seven dollars, fifteen shillings, the full amount of the consideration money of the said tract of land, covenanted and agreed, to convey the said tract of land to the said John Davis, his heirs and assigns, within a reasonable time after the payment of the said bonds, with interest, &c,</p> <p>On the 6th of June, 1783, a second agreement, drawn up in the handwriting of the said Ephraim Blaine, was entered into between the same parties, of which the following is a copy;</p> <p>“ I do hereby certify, that in the month of May, 1781, I sold Colonel John Davis seven hundred acres of land, situate in Mid-dletown township, Cumberland county, two miles from the town of Carlisle, and that a survey made by Samuel Lyon, deputy surveyor, containing two hundred and nineteen acres, seventy-six perches, and the allowance of six joe?’ cent, is part of the aforesaid tract, for which the said Davis paid me four pounds five shillings, per acre, specie; and I do hereby engage to make the said Davis, or his assigns, a deed of conveyance for the aforesaid two hundred and nineteen acres and seventy-six perches, clear of every incum-brance to the first of March, 1775. Given under my hand and seal,” &c.</p> <p>(Signed) “ Ephraim Blaine</p> <p>This suit was brought in the year 1805, by the administrator of John Davis, against the executors of Ephraim Blaine, for not executing a conveyance, agreeably to the covenant contained in the last agreement. If was admitted on the trial, which took place, in the year 1820, that the two hundred and nineteen acres, seventy-six perches, mentioheel in the agreement of the 6th of June, 17S3, was part of the tract of eight, hundred and thirty-two acres, seventy-two perches, spoken of in the agreement of the 29th of June, 1782, and that the agreement last executed, referred to the first. It ap^_ pearerl that immediately after the execution of the agreemenVof the 6th of June, 1783, Davis went into the possession_of fife two hundred and nineteen acres, sbYl’nt-y->s’X-perchs3>- astf continued in possession until he died. After his death, which took place about the 4th of July, 1784, the land was sold at different times to various other persons, by the said Ephraim Blaine and his executors, without notice of the sale to Davis.</p> <p>The defendants offered to prove, that all the bonds given for the purchase money, and even a bond given for part of the money said to have been paid at the execution of the agreement, remained in their possession uncaneelied; that Davis was in embarrassed and insolvent circumstances, from the date of the agreement until his death, and many other facts, tending to show that a very small payment only had ever been made by hirn on account of thejpur-chase money. The counsel for the plaintiff objected to all the testimony offered of this character, but the court admitted it, and bills of exceptions to its opinion were sealed.</p> <p>The exceptions taken to the charge, which was given at considerable length to the jury, will appear from the points made in the argument, by</p> <p>The first question raised by this record, is, Whether or not the court was bound to give a construction to the agreement of the 6th of June, 1783? We contend, that it is a fixed principle, that to the court, exclusively, belongs the construction of written instruments, especially of those under seal, and that in submitting it to the jury, the Court of Common Pleas erred. In Welsh v. Dusar, 3 Binn. 337, the Chief Justice insists on the importance of preserving this principle untouched; and, in Moore v. Miller, 4 Serg. & Rawle, 279, this court reversed the judgment of the court below, because it had left the construction of an award of arbitrators to the jury. Where a paper speaks for itself, it is to be construed ex visceribus suis, and the.court cannot enter into any equitable considerations. New York Corporation v. Cashman, 10 Johns. 96. 1 Phill. Ev. 41-6, (473.) Storer v. Freeman, 6 Mass. 21. 440.</p> <p>This position being established, the next question is, What is the true construction of the instrument in question? That the acknowledgment of the payment of the purchase money, was restricted to the tract of two hundred and nineteen acres, seventy-six perches, is evident from the whole tenor of the agreement; which is to be considered as a whole, and not in detached parts, nor to be tested by nice grammatical criticism. The first agreement was for the sale of Coulter’s and Peter’s land, containing eight hundred and thirty-two acres, seventy-two perches, and no conveyance was to be executed until the whole of the purchase money was paid. The second agreement was not intended to destroy any part of the first, but to provide for the immediate conveyance of two hundred and nineteen acres, seventy-six perches, which Davis had paid for. It would have been unreasonable to expect a conveyance of more, and therefore a. cash payment for/Chat quantity, must be understood from the agreement, and not a payment in bonds, for the whole of the tract of eight hundred and thirty-two acres, seventy-two perches.</p> <p>The certificate of the 6th of June, 1783, contained an express acknowledgment by Blaine, that he had received payment for the quantity of land which be stipulated to convey, and this he is estopped from denying. If he had sued Davis on his bonds, this certificate would have been evidence to defeat the action, and, on the same principle, it is evidence in an action by Davis, founded upon the agreement. A man is estopped from denying a fact, which he has asserted by a recital in a deed. Peake et al. v. United States, 9 Crunch, 33. Shelly v. Wright, Willes Bep. 9. 3 Burr. 1637.</p> <p>The court below erred in stating to the jury, that the lapse of time before the institution of this suit, was a circumstance of great weight against the plaintiff’s fight of recovery. Lapse of time creates a legal presumption, which in this case did not exist, and therefore this was an erroneous instruction in point of law, and not a mere opinion on a question of fact.</p> <p>There was manifest error in stating to the jury, that this action should have been brought by the heir, and not by the administrator of John Davis. 1. The covenant was not a real covenant. Blaine never conveyed the land to Davis, and therefore there was no covenant which could run with the land. In England, the heir could not support an action on this covenant, which was to make a conveyance to Davis, or his assigns. A covenant real must be annexed to the land, and accompany the legal title, which was never in Davis. 1 Brown’s Ch. 364. 4 Cruise, 67. 1 Esp. N. P. 152. Spencer’s Case, 5 Bep. 16. Greenly v. Wilcocks, 2 Johns. 1. Hamilton v. Wilson, 4 Johns. 72. Moody v. Vandyke, 4 Binn. 41. Hawn v. Norris, 4 Binn. 77. 2. If the covenant was real, it was broken in the lifetime of Davis. 3. In Pennsylvania, the action could only be supported by the administrator, whether the breach was in the lifetime of the intestate or not. Here lands are assets for the payment of debts; but if the heir could support an action for damages, they would be diverted into another channel, and would cease to be assets, and thus the whole policy of thé law would be defeated. By giving the right of action to the administrator, this policy is adhered to, and justice done to all who are interested in the land; for after paying the debts of the intestate, the damages recovered would be for the use of the heir. Graff v. Smith’s Executors, 1 Dali. 481. Morris’s. Lessee v. Smith, 1 Yeates, 238. 4 Dali. 209. Wootering v. Stewart’s Executors, 2 Yeates, 483. M‘Pherson v. Cunliffe, 11 Serg. & Bawle, 422. Wilson v. Watson, 1 Peter’s Rep. 273. Telfair v. Stead’s Executors, 2 Crunch, 407. 13 Mass. Rep. 162.</p> <p>By the agreement of the 29th of June, 1782, Blaine was not bound to convey to Davis, until the whole of the purchase money of the eight hundred and thirty-two acres, seventy-two perches, was paid. The two agreements are to be considered together, as the last has reference to the first. The object of the second agreement was to abolish the first, except so far as respects the conveyance of two hundi’ed and nineteen acres, seventy-six perches; and in relation to that quantity of land, it was the design to put the parties on the same footing in regard to payment, as that on which they stood in the first agreement. It was loosely drawn, when the agreement of the 29th of June, 1782, was not before the parties, and contains several mistakes: the year 1781, for example, is referred to instead of 1782, and seven hundred acres, instead of eight hundred and thirty-two acres, seventy-two perches. It should therefore be liberally interpreted, according to the intention of the parties. We have most reason to complain, that the court left the construction of the instrument to the jury, because we say it ought to have been construed in our favour, and that the payment therein acknowledged to have been made, was merely the receipt of the bonds mentioned in the first agreement. But whatever may have heen the true construction of the instrument, the fair question was, whether or not the money had been actually paid? and it was proper to receive evidence to ascertain that fact. The authorities to show the propriety of such evidence are numerous. 18 Johns. 420. Heilner v. Imbt'ie, 6 Serg. & Rawle, 410. 6 Binn. 345. 2 Coke, 74. 5 Burr. 2785 — 7. 4 Cruise, 428. Cro. Jac. 512. M‘Dermot v. United States Ins. Co 3 Serg. & Rawle, 607. 1 Yeates, 138. 2 Dali. 174. Hamilton v. M‘Guire, 3 Serg. & Rawle, 355. 0‘Neill v. Large, 3 Harr. & M‘Hen. 433. Jordan v. Cooper, 3 Serg. & Rawle, 564. Bowen v. Bell, 20 Johns. 341. Miller v. Heller, 7 Serg. & Rawle, 36.</p> <p>But the court was right, in réferring the construction of the second agreement to the jury. There were many, extrinsic facts to be taken into consideration, and where that is the case, the jury is the proper tribunal to judge of the whole. White v. Kyle, 1 Serg. & Rawle, 520. 2 Serg. & Rdwle, S. 8 Serg. & Rawle, 150. 4 Cranch, 71. Dennison’s Executors v. Wertz, 7 Serg. & Rawle, 372.</p> <p>The length of time which elapsed before the institution of this suit, was undoubtedly a circumstance, which raised a strong presumption against the plaintiff’s right of recovery. But even if the court were wrong in this opinion, it was merely an opinioh on a matter of fact, in which error cannot be assigned.</p> <p>This action cannot be sustained by the personal representative of the intestate. If damages are to be recovered^ they belong to the heir. Davis died in the possession and full enjoyment of the property, and therefore no breach of the agreement took place in his lifetime. The rule here is the same as in England. If the breach takes place during the life of the ancestor, the right of action belongs to the executor; if after his death, to the heir. 1 Chitty on PI. 14. Sug. on Vend. 367. Van Rensalear v. Platner’s Executors, 2 Johns. Ca. 24 Hamilton v. Wilson, 4 Johns. 72.</p>

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Huntingdon county, in an ejectment brought by the defendant in error against the plaintiffs in error.</p>

<p>The remedy by scire facias, given by the defalcation act of 1705, to a defendant, to recover a sum of money due from the plaintiff, is confined to actions in which a debt or damages are demanded from the plaintiff, and does not extend to a case, in which the plaintiff, having brought an ejectment against the defendant, it is agreed that judgment shall be entered for the plaintiff and that the sum to be paid by the defendant shall be determined by referees, who make a report finding a certain sum due to the defendant.</p> <p>It seems, that the remedy is by attachment.</p>

<p>It is not necessary, that the notice required to be given to a justice of the peace, prior to commencing an action against him for the penalty of fifty pounds, imposed by the act of the 14th of February, 1729, for marrying a minor, without the consent of parent or" guardian, should state that there was no publication of banns. A substantial notice of the cause of action is alone required.</p>

<p>If the person under whom the defendant claims was living1 on the land in dispute, and holding it by actual settlement, at the time at which the warrant under which the plaintiff derives title was taken out, and the survey made, and this possession was continued, with some intervals, (during which no person was actually on the land,) down to the defendant, it is not error to instruct the jury, that these facts repel any general presumption of abandonment, and that, in the opinion of the court, the evidence does not establish an abandonment of the improvement.</p> <p>If the court is not called upon to instrnct the jury on any particular.point, and in its general charge, lays down the general principles of law correctly, the judgment will not be reversed, because a more pertinent charge might have been given. If there are particular circumstances, which exempt the case from the general rule, it is the business of the counsel to ask the court’s opinion of the law on those circumstances.</p> <p>If a settler has not marked the extent of his claim on the ground, a person who intends to take up land near him, should request him to mark his lines; and if, without such request, a warrantee proceeds to make his survey, he acts at his own peril; and, in case of a dispute, it must be decided by the opinion of a jury, as to a reasonable location of the settler’s tract; regard being had to shape, soil, water, and other circumstances.</p>

<p>A bond executed by two obligors, binding “ themselves, their heirs, executors, administrators, and every of them,” is joint and several, and may be enforced against the representatives of a deceased obligor, though he was only a surety.</p>

<p>IN ERROR.</p> <p>Error to Huntingdon county, in an action brought by John Crawford, the defendant in error, against the plaintiff in error, William Jackson, upon an alleged assumption by him to pay a debt due to Crawford by one John Beatty. The circumstances of the case, were shortly these: — Jackson being indebted on certain bonds to Beatty, and Beatty being indebted to Crawford, an arrangement took place between them, by which Jackson was to assign to Crawford a judgment which he had obtained against one Ger-sham Lambert, and to have credit to the amount of the judgment, on the bonds given bj*- him to Beatty. The judgment, whieh was obtained on the 15th of August, 1S18, with a stay of execution until the 1st of April, 1819, was accordingly, on the 14th of April, 1819, marked to the use of Crawford, by Jackson, upon which one of his bonds held by Beatty was delivered up to him, and a receipt endorsed on another bond for the balance of the judgment. It turned out, that Lambert was insolvent, and had conveyed his real estate to his children at the time the judgment was obtained against him. Upon this judgment a fieri facias issued on the 22d of December, 1819; but, in the meantime, other executions had issued against him, under which his personal property was levied on and sold.</p> <p>Lambert, who was examined as a witness on the part of the defendant, swore, that about the time the money was due on the judgment, he informed Jackson that he could pay him, in Hunt-ingdon money, according to their agreement. Jackson said it was to be paid to Beatty, who on being called upon said, that the money was coming from him to Crawford. In a few days afterwards, Lambert mentioned the subject to Crawford, who said he did not want the money, and agreed to take security for its payment in one year. He afterwards brought to Crawford a person as security, and found that the assignment had been made the day before. Nothing more was said to him on the subject for nine months.</p> <p>When the evidence was closed, the court was requested to instruct the jury on the following points:</p> <p>1. That there being no express guarantee in the assignment, or by parol, and there being no allegation of fraud in the case, the defendant cannot be liable, under the idea of an implied guarantee or assumpsit.</p> <p>2. That the assignment of the judgment, being of the plaintiff’s Own seeking, and he having made his own arrangement with Ger-sham Lambert, the plaintiff took the assignment at his own risk.</p> <p>3. That the neglect of the assignee to take out execution until December, 1S19, eight months after the assignment, is laches on his part; and if William Jackson was liable, at the date of the assignment to refund to the assignee, in ease the money could not be recovered from Lambert, he is discharged from such liability by the neglect.</p> <p>4. That the conversations of Craioford with Lambert, respecting the Huntingdon money, being had before the assignment of the judgment, and the subsequent delay after the assignment to take out execution, are evidence that Crawford intended to take the judgment at his own risk.</p> <p>5. That if, from the evidence, the jury are of opinion that the terms of payment of the judgment have been varied by the as-signee, the plaintiff cannot recover.</p> <p>To these points, the Presiding Judge (HustoN) answered thus:</p> <p>i( 1. I do not see what is meant by this position, or how it applies, or how the answer of the court is intended to be applied:— Cases have been read to show the legal effect of the word “ assign.” No such word is used, and the technical or magical effect of that word, can have no effect on this cause.</p> <p>“ The liability of the defendant does not depend on the words transferring this judgment, taken alone; nor on the parol evidence alone, but on both together, and when part is written and part pa-rol, this latter draws all to the jury, who must judge from the whole transaction, and not from any part of it. Generally, where a note, bond, or judgment is transferred, the liability of the endorser, assignor, or person assigning the judgment, is to be decided from the law, where no special agreement, or from the special agreement of the parties. If given to pay a pre-existing debt, such transfer is not a payment, and does not discharge the debtor, unless the person receiving such security is guilty of laches, or unless there is an express agreement to accept such transfer as an absolute discharge and satisfaction of the debt.</p> <p>“ 2. Whether this was as supposed, or what was the agreement of the parties, is a matter of fact for the jury.</p> <p>(e 3. Even in the case of application for the payment of a note endorsed, and of notice to the endorser, what is reasonable diligence, a reasonable time or otherwise, is lately decided by our Supreme Court to be a question for the jury, and not the court. The rules and practice in such a case, are at least as certain and definite as in the case of a bond or judgment. We cannot, then, take this from the jury. There may be such delayas to discharge Jackson; but whether the delay, in this case, under all the circumstances, will have or ought to have that effect, is a matter to be decided by the jury.</p> <p>“ 4. This is a question of fact, and not of law.</p> <p>“ 5. This is true. If Crawford, by any agreement with Lambert, gave him time; agreed not to issue execution for a specified time, then he has discharged Jackson</p> <p>To the instructions specially given to the jury, on the points submitted, the court added the following</p> <p>Chakge. “ Much has been introduced into this cause, not very applicable to the. matter trying.</p> <p>“ A transfer of a bond, note, or judgment, is not payment of a pre-existing debt, unless expressly agreed to be given or accepted as such.</p> <p>“ But it may become so. He who receives the bond, note, or judgment, must use diligence to obtain the money from the obligor, maker, or defendant in the judgment.</p> <p>“ The diligence to be used, may be different in different cases. We have nothing to do with any but the cause trying, — that of a judgment assigned. If Crawford, after taking an assignment of this judgment, gave time to Lambert, by agreeing with him to wait, or if he delayed to issue an execution an unreasonable time, he, and not Jackson, must bear the loss.</p> <p>“ If this debt was lost, or part of it lost, by the delay or negligence of John Crawford, lié must bear the loss.</p> <p>“ If it was good for nothing when assigned, Jackson has not paid his debt to Crawford, and must pay it yet; that is, unless you find an express agreement between them, that Crawford should receive the transfer of this judgment in full discharge of his debt from Beatty.</p>

<p>By the act of assembly of the 11th of March, 1807, the directors of the poor of Franklin county, may themselves bind apprentices, such children as shall come under their notice as paupers, by a warrant from two justices of the peace; and they may also, in conjunction -with two justices, bind £< such children whose parents are dead, or as shall by them, the said directors and two justices, be found unable to maintain them.”</p>

case stated. This was an action on the. case, brought by Robert Kennedy against John G. Wachsmuth, to recover damages for the non-performance of a contract, for the purchase of certain lots of ground… Held: that an unauthorized decree of an Orphans’ Court for the sale of lands will not stand, Until reversed in a regular course of appeal; but may be questioned, in a collateral suit, by or against a person claiming under that decree.

IN ERROR.. The plaintiff in error, Benjamin Brooker, was convicted in the Court of Quarter Sessions of Philadelphia county, from which the record was removed by writ of error, on an indictment for an assault and battery, and contempt of Michael Freytag, esq., a justice of the peace, and sentenced to a fine of thirty dollars and one month’s imprisonment, to commence from and after the first Monday in January, 1825.

<p>IN ERROR.</p> <p>brought this action in the District Court for the city and county of Philadelphia, against the plaintiff in error, Thomas Willing, to recover a balance of eleven hundred and forty-four dollars, seventy-four cents, due upon a promissory note for two thousand dollars, dated December 2d, 1816, payable sixty days after date, drawn by the defendant below in favour of the plaintiff, by whom it was endorsed, and upon a loan of three hundred dollars by the latter to the former. The account produced by the plaintiff exhibit! ng the balance, showed that he had received about sixty per cent, of the original debt.</p> <p>The defendant relied upon a release bearing date Jlpril 15th, 1817, executed by the plaintiff and the other creditors of the defendant, by which they did “ remise, release, discharge, and for ever quit claim unto, the said Thomas Willing, jr., his heirs, executors and administrators, and every of them, of and from all and all mannerof actions, cause or causes of action, suits, bills, promissory notes, judgments, bonds, writings, debts, accounts, sum and sums of money, damages, claims, and demands whatsoever, both in law and equity, or otherwise howsoever, which against the said Thomas Willing, jr., they or either of them, or any or either of their heirs, executors, or administrators, should or might thereafter have, claim, challenge, or demand for or by reason or means of any transaction, matter, cause, or thing whatsoever, from the beginning of the world to the day of the date thereof ”</p> <p>With a view to prove a promise to pay the balance of the debt, subsequently to the execution of the release, the plaintiff himself was offered as a witness; and, to show that he was not interested at the time he was offered, the docket was produced, from which it appeared that this suit was, on the 16‘th of July, 1821, marked to the use of Joseph Curwen. A paper,-dated Liverpool, 30th of Jlpril, 1821, signed by Joseph Curwen, was likewise given in evidence, by which he acknowledged to have received from Richard Peters, jr., eleven hundred and fifty dollars; “being so much on account of a debt due from him to me; the said sum of eleven hundred and fifty dollars having been received in an assignment of a claim on Thomas Willing, late Thomas Willing, jr , of the city of Philadelphia, for which a suit has been instituted in the District Court for the city and county of Philadelphia, to March term, 1821, No. 293, and which suit has been marked- to my use by Richard Peters, jr., and having been received by me in payment of the sum of one thousand, one hundred, and fifty dollars, of the amount due to me by Richard Peters, jr.; and I having, as I do hereby, in consideration of the said assignment, release and acquit him of so much, viz. the sum of eleven hundred and fifty dollars, of the said debt due.to me.” During the trial of the cause, the following papers were also executed and read in evidence:</p> <p>“ Know all men by these presents, that I, Richard Peters, jr., of the city of Philadelphia, have assigned, transferred, and set over, (for the consideration of one thousand dollars to me in hand paid fay Joseph Curwen) to the said Joseph Curwen all my claim upon Thomas Willing, jr., for which suit has been brought in the District Court for the city and county of Philadelphia, and all right and interest therein and thereto: — Witness my hand and seal this eleventh day of December, 1822.</p> <p>(Signed) , “ Richard Peters, jr.” (Seal.)</p> <p><£ I acknowledge to have received from Richard Peters, jr., a transfer of his claim upon Thomas Willing, jr., for which suit has been brought in the District Court for the city and county of Philadelphia, as of the 30th of April last, and do hereby release the said Richard Peters, jr., of and from the sum of eleven hundred and fifty dollars, being the amount, of the claim upon Thomas Willing,, jr., and the consideration for which the transfer aforesaid was made; for which sum I acknowledge myself to be paid and satisfied to that amount: — Witness my hand and seal the 11th day of December, 1822.</p> <p>(Signed) “J. Curwen.” (Seal.)</p> <p>A sufficient sum having been deposited with the prothonotary, to cover all the costs which had accrued, or which might accrue in the cause, Mr.' Peters was offered as a witness. He was objected to by the counsel of the defendant, but the court admitted him, and a bill of exceptions was tendered and sealed.</p> <p>The witness swore, that after the execution of the release, viz. in the month of February, 1322, the said Thomas Willing, in a conversation he had with him relative to this debt, declared that he owed it io him and intended to pay it, and expressly promised that he would pay it.</p> <p>The C..URT charged the jury, that the release given in evidence discharged the defendant from all debts due to the plaintiff, at the time of its execution, or which might afterwards become due, by reason of any transaction, master, cause, or thing, prior to the execution of that instrument; but that if the defendant afterwards made an express promise to pay a debt discharged thereby, there was a sufficient moral consideration to support a promise, and therefore such promise would be binding: and whether or not such a promise had been made by the defendant, they submitted to the jury.</p> <p>The counsel of the defendant excepted to this opinion, and the jury having found a verdict in favour of the plaintiff, removed the record to this court by writ of error.</p> <p>in arguing against the admissibility of the plaintiff as a witness, disclaimed any intention to call in question the propriety of the decision of this court, in the case of Steele v. Phoenix insurance Company, 3 Binn.'306, which, they admitted, was a logical conclusión from well established principles. That case, however, they observed, had gone to the utmost limit of safety, and farther than any other case, either in England or in the other states had extended the rule by which a parly is permitted to give evidence. Phill. Ev. 57. Cog-hill v. Coghill, 2 Hen. & Mtinf. 467. The question is, had the witness any interest in the event of the suit at the time he was offered? He was interested, because, if Cur wen failed to recover in this suit, Peters was answerable to him upon the implied warranty of title to the thing he had assigned, and thus he was interested in proving the existence of a claim. Upon the sale of a chattel, whether tangible or merely in action, there is an implied warranty of title, and if the purchaser does not get what he has paid for, he may recover kirk the prwe. Ritchie v. Summers, 3 Yeaies, 533. Boyd v. Bopst, 2 Dr’ll. 91, Dorsey v. Jackman, 1 Serg. & Rawle, 42. Heer manee v. Vernoy, 6 Johns. 7. Defreeze v. Trumper, 1 Johns. 274. Kenrich v. Whiting, 16 Johns. 210. Although in assigning to Curtuen his claim on Willing, Peters .has not warranted the goodness of the claim, yet he has warranted, that he had a claim of some sort; that he had something which was capable of being transferred, and if it turns out that, he had no claim of any description, it is manifest, that he has undertaken to transfer that to which he had no title, and therefore the consideration on which Cur-wen’s release to him was founded has failed. A claim, is a challenge of the propriety or ownership of a thing which a man has not in possession, and is wrongfully withheld by another, Stowcll v. Tomb, Plowden, 359,. Cummings’ Assignee v. Lynn, i ZWi. 444. On the transfer of a claim, there is therefore always an implied warranty of the legal existence of such claim. If one assigns a bond, the money due upon which he has received prior to the assignment, he is unquestionably liable to refund, and the same principle is applicable to a transaction like this. In the case of Consequav. Willing, 1 Peters’ Rep. 103, the releases were so framed as to meet the difficulty now suggested.</p> <p>2. There was no consideration for the defendant’s assumption. The debt having been released by the voluntary act of the creditor, it was completely extinguished, and could not be revived by any subsequent promise. The cases in which effect has been given to a new promise, are those of discharge under bankrupt or Insolvent laws, infancy, or act of limitations; cases in which the operation of a statute or a positive rule of law, has deprived the creditor of his remedy, while the debt remained. It has indeed been said, that wherever there is a moral obligation to pay a debt, without a legal remedy to enforce payment, it is a sufficient consideration for a new promise; but no case can be found in which the rule has been applied to a debt, discharged by a voluntary release; and in speaking of the rule, it is invariably illustrated by reference to the eases already mentioned, to which therefore the principle must be considered as confined. There is good reason for the distinction between a debt barred by operation of law, and a debt extinguished by the act of the creditor himself. In the one case, he is deprived of his remedy by circumstances not under his own control, and to which he never gave his assent, and therefore if the debtor waives bis legal advantage by making a new promise, that promise is binding. But where the release is the voluntary act of the creditor, it must be considered as made upon a consideration equal in legal contemplation, at least, to the debt, and therefore the debt is satisfied and extinguished. 1 Selw. N. P. 43, 51, 52. 1 Com. on Coni. 25. Lloyd v. Lee, 1 Sir. 94. Hammond v. Roll, March, 202. Townsend v. Hunt, Cro. Car. 408. Coe v. Hutton, 1 Serg. & Rawle, 398. '</p> <p>contended, that Mr. Peters was a competent witness, and relied upon the cases of Steele v. Phoenix Insurance Company, 3 Rinn. 306, and Consequa V. Willing, 1 Peters’ Rep. 303, as in point. The argument, he observed, is, that if Peters had no claim, the consideration of Cur-wen’s release failed, and he could support an action against Peters. But Curwen’s release was absolute, upon receiving an assignment of the claim, whatever it might be, and nothing but fraud in Peters could give Curwen an action against him. That Peters had a claim of some sort could not admit of a doubt, and such as it was, Cur-wen was content to make it the foundation of his release. This release was under seal, which alone imports a sufficient consideration. Besides, to give effect to a release, no consideration whatever is necessary. Coc v. Did ton, l Scrg. & Datóte, 338. Addison’s Rep. 56. Longbridge v. Dorviller, 5 Barn. & Aid. 117.</p> <p>2. A moral obligation to pay a debt, on which no suit can he brought, is a sufficient consideration for an assumption, and there is no room for the distinction taken between a debt barred by operation of law, and one discharged by a voluntary release. In the case of bankruptcy, the debt is equally discharged; yet a subsequent promise to pay it is binding.. The principle is the same in both cases, — the existence of the moral dutjr to pay a debt, which has not been actually paid. Here the release was executed, at the request of the plaintiff in error, and be subsequently, when he felt his ability, made a positive promise to pay the balance of the debt; a stronger case of mq^al obligation cannot occur, than the circumstances of this case present. Bull. N. P. 12.9, 147. 7 Johns. 36. 2 Caines, 150, Lord Suffield v. Bruce, 2 Starkie, 175. Townsend v. Hunt, Cro. Cur. 408. Com. on Coni. 22. 1 Font. 345, (33S.) 6 Johns. Ch. Rep, 242.</p>

<p>In an action bn a bill of lading, for a loss in carrying goods, the measure of damages is, the nett value of the goods at the port of destination</p>

<p>The plaintiff and defendant, and eight others, on the 13th of April, 1820, joined in the purchase of lottery tickets, to be paid for by instalments, according to an agreement in writing, as follows; namely, one dollar to be paid by each member at the time of subscribing, and one dollar on each and every ticket weekly till paid for, at twelve dollars each ticket. Any one subscriber, neglecting to pay his weekly dues for three successive weeks, to forfeit to the club his title to the tickets and instalments before paid. The plaintiff paid on the 13th of April, one dollar; on the 27th of April, one dollar, and on the 13th of May, one dollar. On the 25th of May a prize was drawn, and the money divided, excluding the plaintiff. Held, that there was no forfeiture of the plaintiff's right to a share of the prize.</p> <p>A receipt of a weekly payment by a broker, not the agent of the parties, would not amount to a waiver of the forfeiture, if any had existed.</p>

<p>IN ERROR.</p> <p>Writ of error to the District Court for the city and county of Philadelphia, in' an action brought by Joseph M. Eldridge and others, assignees of William Brown, an insolvent debtor, intrust for his creditors, under the insolvent law of Pennsylvania, against Passmore and Sparhawk, auctioneers of the city of Philadelphia4 for the recovery of the proceeds in a quantity of hides, placed in the hands of the defendants for sale, by the said William Brown. The defendants were but stake holders, the real dispute being between the plaintiffs and William and Vincent Robinson, who claimed by a deed from Brown, prior to his discharge under the insolvent law. The plaintiffs gave notice to the defendants of their right to the hides, and warned them not to pay the proceeds to any other person. The deed from Brown to the Robinsons, was dated July 31st, 1818, and was expressed to be for the purpose of securing to the Robinsons, payment of all such sums of money as Brown owed to them respectively, and all such other sums as they, or either of them, might pay, on account of notes endorsed, or obligations entered into for the use or benefit of Brown; and conveyed to the said Robinsons, certain goods, chattels, debts, and effects, enumerated in an inventory annexed to the said deed; in trust, that the said Robinsons should, with all convenient speed, collect the said debts and sell the said goods and chattels, at public or private sale, for the best price that could be got, and, in the first place, pay all sums of money in which Brown was then indebted to the Robinsons, or/either of them, and all such sums as they or either of them might thereafter pay, on account of endorsed notes, or obligations as aforesaid, and return the surplus, if any, to Brown. In the inventory, a number of articles of household furniture, &c. were specified; but there was a large quantity of hides, of which no other description was given, than that they amounted to a certain number of pounds’ weight, and part of them were in the vats. On the trial of the cause, the plaintiffs contended, that the hides placed by Brown in the hands of the defendants, were not included in his deed to the Robinsons; and, if they were, they did not pass to them, because the deed was fraudulent and void, so far as respected the general creditors. The defendants gave in evidence a written paper, addressed to them by Vincent Robinson, dated the 5th of August, 1818, by which they were informed, that by an assignment dated the 31st of July, 1818, Brown had transferred to William and Vincent Robinson, all the property placed by him in the hands of the defendants for sale, and requesting that the defendants would consider the same for the use of the said William and Vincent Robinson, and subject only to their order. Underneath this writing, was another writing, in the words following, — “ I confirm the above,” (signed) William Brown. There was some evidence given, from which the plaintiffs endea-deavoured to satisfy the jury, that the deed from Brown to the Robinsons, was given on a secret trust, that part of the property should be restored to Brown, or that he should have a loan of it, on advantageous terms. Nothing of this kind appeared on the face of the deed, and it was proved that, prior to the execution of the instrument, counsel was consulted, who informed the parties that such an arrangement could not legally be made. The court charged the jury, “that if the assignment to the Robinsons was made, though in consideration of debts due to them, on condition that Brown should receive a benefit, either by a return of part of the property, or a loan of it, on beneficial terms, it was fraudulent and void.” And, that “ The paper signed by Robinson and Brown, dated the 5th of -August, 1818, did not amount to an original appropriation of the property referred to; it was making but a construction of the original assignment, and their construction was no more evidence than that of any other person.”</p> <p>To this charge the counsel of the defendants excepted, and, on the removal of the record to this court,</p> <p>1. That the charge declares, that a general assignment is void, if made upon consideration of any benefit to the assignor, growing out of the property assigned. In support of this exception, they oited, Burd v. Fitzsimmons, 4 Dali. 76. Estwicle v. Caillaud, 5 T. Rep. 420. Nunn v. Wilsmore, 8 T. R. 521. Meux v. Howell, 4 East, 13. Wheaton v. Sexton, 4 Wheat. 503. Marhoy v. Brooks, 7 Wheat. 565. Wittes v. Ferris, 5 Johns. 344. Riggs v. Murray, 15 Johns. 583. Wilt v. Franklin, 1 Binn. 502. Lippincott v. Barker, 2 Binn. 174. M‘Allisterv. Marshall, 6 Binn. 338. Downing v. Kintzing, 2 Serg. & Rawle, 326.</p> <p>2. That the court declared, that an instrument of writing in the nature of an order drawn by the owners of property upon the person with whom it was lodged, does not amount to a transfer or appropriation of the property, or evidence of it. Clemson v. Davidson, 5 Binn. 39S. Row v. Dawson, 1 Vez. sen. 331. Yeates v. Groves, 1 Vez. jr. 281. Peyton v. Hottet, 1 Caines, 363. MiMenomy v. Ferrers, 3 Johns. 71. Crocker v. Whiting, 10 Mass. Rep. 318. Dunn v. Snell, 15 Mass. Rep. 481. Troup v. Wilson, 2 Cowen, 228.</p> <p>3. That the court declared, that the construction put on the assignment by the grantor, was no more evidence against the plaintiffs, than the construction of any other person; although, as the. plaintiffs claimed under the grantor, any act or declaration of his, previous to the assignment, is as binding on the plaintiffs, as it would have been on the grantor himself, Mitford v. Mitford, 9 Vez. 100, 2 JLth. 162. Murray v. Lilburn, 2 Johns. Ch. Rep, 443. Clason v. Morris, 10 Johns. 540. Wain’s Assignees v. Bank of North America, 8 Serg. & Rawle, 88.</p> <p>cited, to the first point, Long on Sales of Personal Property, 64, {Am. Ed.) Martin v. Pewtress, 4 Burr. 2477. Jackson v. Duchaire, 3 T. Rep. 551. Cadogan v. Kennet, Cowp. 432. Reichart v. Castator, 5 Binn. 109. Shannon v. The Commonwealth, 8 Serg. & Rawle, 444.</p> <p>In answer to the third error assigned, they referred to Clow v. Woods, 5 Serg. & Rawle, 282.</p>

<p>A printed copy of an Act of Assembly, published under the authority of the legislature of another state, may be read in evidence.</p> <p>The record of condemnation of a vessel, by two justices of the peace, under an Act of Assembly of JVew Jersey, proved by the oath of a witness, to be the original record, accompanied by evidence, that the signatures of the justices were of their hand-writing, and that the Justice’s Court had no seal, is admissible in evidence.</p> <p>The Acts of Congress, prescribing the mode of authenticating records, do not ex. elude all other evidence.</p> <p>Although a state may not have a right of absolute property in oysters^ it may pass regulations for their preservation.</p> <p>This Court has no right to decide, whether a court of another state has misconstrued an Act of Assembly of that state, or whether such act is constitutional or not.</p> <p>It seems, that the cove opposite the mouth of Maurice river, is within the jurisdiction of the state of Mew Jersey, and forms part of the county of Cumberland.</p>

<p>■Where a defendant, who has sufficient real or personal estate to satisfy the demand, is arrested and imprisoned, on a capias acl satisfaciendum, trespass m et arms, and not trespass on the case, is the proper form of action against the person who issued the writ.</p>

<p>IN ERROR.</p> <p>The plaintiff in error, James Wood, had been indicted in the Mayor’s Court of the city of Philadelphia, for an alleged violation of the act of assémbly of the 39th of March, 1824, (Purd. Pig. 66,) the fourth section of which enacts, that “no auctioner, in either the cities of Philadelphia or Pittsburg, shall, at the same time, have more than one house or store, for the purpose of holding an auction; and every auctioneer in the said city shall designate, in writing, such house or store, and also his partner or partners, if any, engaged with him in his said business, which said writing shall be deposited, by such auctioneer, with the recorder of deeds of the proper city whereof he is appointed; and no auctioneer shall expose to sale, by public auction or vendue, within either of the said cities, any goods, wares, or merchandise, or effects whatsoever, liable to the duty aforesaid, at any other places than in the said houses and stores respectively to be designated, as aforesaid, except goods, wares, and merchandise, which shall be sold in the original package in which they were imported, goods of persons deceased, or of persons who are bona fide declining business, household furniture, and such bulky articles as have usually beeu sold at auction in warehouses, or in the public streets or wharves, at or near the place, than in the respective houses and stores to be designated, as is hereby directed; and if any auctioneer in either of the said cities, shall enter on the execution of his office, or shall permit any person to act on his behalf, without designating bis said house or store, or his said partner or partners, if any, in the manner and form herein prescribed, or shall hold any auction at any other place than the place so designated, except for the sale of the articles hereinbefore excepted, he shall be guilty of a misdemean- or, and, on conviction, shall be fined in a sum not exceeding three hundred dollars,” &c.</p> <p>The following statement of facts was agreed to be considered as a special verdict, and sent with the reeord on a writ of error to the Supreme Court:—</p> <p>“ The defendant was, on the second day of June, 1824, lawfully commissioned as an auctioneer, and on the tenth day of June, in the year aforesaid, the defendant being an auctioneer, and having given the security required by law, did designate in writing his store for the purpose of holding an auction; and did deposit the said writing with George TV. Riter, esquire, recorder of deeds of the city and county of Philadelphia. The said defendant, as such auctioneer, on the day and year last aforesaid, had a store for the purpose of holding an auction, at the house number thirty-two, in South Front street, in the said city. And the said defendant, so being such auctioneer, on the day and year last aforesaid, at the city aforesaid, did open, establish, and have a certain other store, in the house numbered thirty-nine, South Third street, at the corner of Chesnut street, in the said city, for the purpose of holding an auction, of all kinds of household furniture, belonging to all manner of persons who might think proper to employ the said defendant as an auctioneer, as aforesaid, to sell the same; and the said defendant, as such auctioneer, on the day and year aforesaid, at the city aforesaid, and within the jurisdiction of this court, had the two above described stores, for the purpose of holding auctions, as above described, at the same time.</p> <p>“And the said defendant did enter upon the execution of his said office, and did establish and have the said last described store, for the purpose of holding an auction of all kinds of household furniture, as aforesaid, Without' designating in writing his said last mentioned store, and without depositing any such writing, as last mentioned, with the said recorder of deeds. The said last mentioned store, consisted of two large rooms in the second and third stories, rented by the defendant. The rest of the building was oc-cupid by various persons not connected with the defendant. The said store, last mentioned, rented by the defendant, was employed for no other purpose than for the sale of household furniture, as aforesaid, and for receiving and exhibiting it; and no book was kept there but a book for entering sales, which said book contained the names of articles sold, the names of the purchasers, and the prices of sales, and the names of the owners of the articles sold. The articles were generally sold for cash, and the cash was paid at the said last mentioned store, on the spot at the time. The returns of sales were always made to the clerks of the defendant, at the store number thirty-two South Front street, and no accounts were made out at the store, at the north-east corner of Third and Chesnut streets, and no money was paid by the defendant at the said last mentioned store.”</p>

<p>if the goods of the tenant are removed from the demised premises, in the day time, without the knowledge of the landlord, to secure them from distress for rent becoming’ due, such removal is not, independently of other circumstances, a clandestine or fraudulent removal, which will authorize the landlord to follow the goods, and distrain upon them, within thirty days after they- were removed.</p> <p>The clandestine or fraudulent removal of goods by (lie tenant, before the rent is due, gives no right to the landlord to follow them after it becomes due, and. dis-train within thirty days from the time of their removal.</p>

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Quarter Sessions of Philadelphia county; at the September sessions of which court, Nancy James, the plaintiff in error, had been convicted of being a common scold, and thereupon, on the 29th day of October, 1824, adjudged “to be placed in a certain engine of correction, called a cucking, or ducking stool, on Wednesday, the third day of November, then next ensuing, between the hours of ten and twelve o’clock in the morning, and being so placed therein, to be plunged three times into the water; to pay the costs of prosecution, and stand committed till the sentence is complied with.” The error assigned was, “that this judgment is illegal.”</p> <p>In support of this position, Swift, for the plaintiff in error, took three grounds: — First, That it is contrary to the constitution of the United Stales; second, That it is contrary to the constitution of Pennsylvania; and, third, That if the punishment of ducking be in itself lawful, the court below had no authority to direct the prisoner to be “plunged three times into the water.”</p> <p>On the first ground, he argued, that the judgment was forbidden by that article of the constitution, which directs that “cruel and unusual punishments shall not be inflicted.” But the court were of opinion, that the article was intended only for congress and the United States’ courts, and that it docs not extend to the state governments, which are left at liberty to regulate their own criminal codes as they may deem proper, without reference to the laws or constitution of the United Stales.</p> <p>The plaintiff’s counsel therefore passed on to the second position, that this judgment was in contravention of the constitution of Pennsylvania, which declares that “ no cruel punishments shall be inflicted.” In order to ascertain the precise meaning of this phrase in the constitution, he took a general view of the history of Pennsylvania, and of the circumstances in which the colonists migrated to this country. Ducking, he contended was notacom-anon law punishment, but introduced by statute 51 lIen. ~. And even if it were at common law, yet it was one of those barbarous customs, which did not suit the spirit of the times in which our ancestors migrated to this country. It had become nearly obsolete in England, and therefore, according to the general rules of colonization, was not included in that part of the common law, which the first settlers of this country brought With them. To prove that it was disused, even in England, the counsel referred to the case of Regina v. Foxby, 6 Mod. 11, which occurred a few years after the first settlement of this state. Lord HOLT there makes a jest of the matter, and the defendant was permitted to escape on promise of future good behaviour. Later English writers mention clucking as existing only in the memory of a few superannuated persons, and speak of the mouldering ruins of that formidable engine, the ducking slool, as one of the vestiges of a barbarous antiquity.</p> <p>But supposing this punishment existed at common law, was irk full force in England, at the period of William Penn's emigration, and was introduced by his followers into the new province; still the counsel contended the common law had been altered in this particular by the colonists themselves. The attention of the legislature was early attracted to this matter, and we find several laws on this subject in the first years of the infant colony. In 1682, the first year of the settlement, it was enacted by the 34th section of "The great law," that scolding should be punished by "three days' imprisonm~nt.'t In 1683, the punishment of this offence was changed to "gagging or five shillings fine." In 1700, the legislature again altered this punishment to "five days' imprisonment, or gagging, or five shillings fine." It is true, that this last act was repealed by the queen in council; but that revived the act of 1683, which never having been repealed since, is now in force, and theTefóre superseded the provisions of the common law upon this subject. And, moreover, ducking is one of those "cruel" or barbarous punishments of our Brili.s'h ancestors, the inflictior~ of which is expressly forhidde~ by the constitution~</p> <p>As to the third point, he contended that whatever the law might be, there was no precedent or authority for that part of the sentence, which directed the prisoner to be "plunged three ti~'nes into the water." The sheriff would he liable to an action of trespass, if he did not execute the sentence exactly; and if the old woman should die, in consequence of such severe treatment at this inclement sc~son, the judges who had pronounced the illegal Sen. tence, might be held responsible for her death~</p> <p>rFhe Jieputy Attorney General, .Pcttit, for the commonwealth, replied to the second and third positions of the plaintiff in error, the first having been set aside by the court, who decided that the constitution of the UniSed &a~e.~v had nothing to do with the question</p> <p>In answer to the former, he showed that ducking was a common jaw punishment for scolding, and the statute of Henry III. merely applied it to another oifence. Although it was not often carried into execution, it was still in force in England, at the time of the first settlement of Pennsylvania, and therefore, lie argued, brought over by the colonists with the rest of the common law. As to the statutes of the provincial legislature, so much relied on by the plaintiff in error, he said it was evident from the acts themselves, and from the legislative history of that period, that the law of 1683 and of 1700 were intended each to supersede the previous enact-, ments on the subject of scalding; and it never could be supposed that the queen, when she repealed the act of 1700, meant to revive that of 1683, from which it differed so little. Besides, it appeared from the minutes of assembljq, to which the Attorney General referred, that the law of 1683, was by its own limitation temporary, and to continue from session to session, “ until repealed, varied, explained, or added unto.” It was “varied and added unto,” by the act of 1700, and therefore ceased to operate. A different construction, the Attorney General said, might lead to considerable difficulty; for if the law of 1683 is still in force, as to scolding, it is equally so as to all its other provisions, and it might become his official duty to prosecute his brethren of the bar, and perhaps, their honours on the bench for drinking healths, and some other like high crimes and misdemeanors prohibited by that memorable1 act.*</p> <p>If, then, no alteration was effected by these early statutes, it remained to be considered, whether any thing has since occurred to fender this punishment of ducking “ illegal.” It is remarkable, ■that the constitution of Pennsylvania, many of the articles of which are copied literally from that of the United States, has omitted the word iC unusual,” and proscribes only cruel punishments. He submitted to the court, that the phrase “ cruel punishments” here means the torture — the peine forte et dure, and such others as shock the mind of every man possessed of common feeling. In one sense, dqaih is a cruel punishment, and yet no one doubts of its constitutionality. It must be a very glaring and extreme case, to justify the court in pronouncing a punishment unconstitutional on account of its cruelty; and this is not such a case. But, further, the penalty of ducking has actually been inflicted upon scolds in the state of Pennsylvania. The Attorney General produced the records of the Court of Quarter Sessions of Philadelphia county, by which it appeared that there had been at least three instances of conviction of the oifence of being “a common scold,” in two of which the sentence of ducking had been carried into execution. These cases occurred a few years prior to the year 1790, when the assembly sitting in this city, new-modelled the penal code of the state, and after abolishing many of the common law punishments, concluded by declaring, that “ every other felony or misdemeanor whatsoever, not specially provided for by that act, may, and shall be punished as heretofore.” As the offence of “ scolding” is not .specially provided for by the act of 1790, the Attorney General insisted that this was an express legislative sanction of the common law punishment, which had been recently and publicly inflicted in the place where'the assembly was then sitting. Moreover, as this offence is not punishablé by fine or imprisonment at common law, ducking is the only penalty that can be inflicted in the absence of positive enactment.</p> <p>Common scolding has been recognised as an indictable offence in two of our sister states, New York and Massachusetts; and though it was in both held to be punishable only by fine and imprisonment, that might be under peculiar provisions of their laws or constitutions, which would not affect a decision in Pennsylvania.</p> <p>As to the third position of the plaintiff in error, the Attorney General answered, that if ducking were the proper punishment, the court in pronouncing sentence had a right, and in fact were bound to designate the mode in which it should be executed; in the same manner as under the general authority to fine and imprison, they direct the amount and duration of these penalties respectively.</p> <p>In reply, the plaintiff’s counsel insisted, that the law of 1683 was still in force. But the court said, that these old acts were obsolete and could not be relied on. He then answered the argument drawn from the records of the Quarter Sessions, by saying, that none of the judges who pronounced those sentences were lawyers, and that this court was not bound to receive as law, their crude, and ill digested opinions on this subject. As to the rest, he had nothing to add to the remarks he had already submitted to the court.</p> <p>After he had closed, Mr. Duponceau asked and obtained leave, to make a few remarks as amicus curise. lie felt interested, he said, in the question before the court, because he thought the execution of this sentence would be a disgrace to the state of Pennsylvania, and therefore he trusted, the court vrould not feel themselves obliged to pronounce it law. Whatever might be the common law on this subject, it was not brought to this country by the colonists. “The great law,55 as it was called, was originally made in Eng-; land, and therefore had all the authority the royal sanction could give. And if it afterwards was repealed or became obsolete, still it evidenced the intention of its framers, and negatived the presumption that the common law regulations, on the matters contained in it, were adopted by the government of the new settlement. He also referred the court to the act of assembly of the 21st of March, 1806, which he thought conclusive. This act declares that, “in all cases where a remedy is provided or a duty enjoined, or any thing directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted or any thing done agreeably to the provisions of the common law, in such cases, further than shall be necessary for parrying such act or acts into effect.5* He then said, that this punishment had become obsolete in England, and he hoped we would not continue their barbarous customs, after they had themselves disused them.</p> <p>The Attorney General replied, that only part of f‘ The great law,55 had been agree'd upon in England, and that the provision with respect to scolds, among others, was not added until after the arrival in this country; as would he seen, by a reference to the printed copy of the laws agreed upon in England.' As to the act of assembly of 1806, it expressly recognises the common law, and depends upon it in cases not otherwise provided for; and the present is one of those cases, for although it may have been regulated by statutes, they are not now in force, and the common law rules must therefore prevail. He had already referred to some of the latest English elementary writers, to show that ducking is still recognised there, as the punishment for common scolding.</p>

IN ERROR. The plaintiff in error, William Butler, was convicted and sentenced in the Mayor’s Court of the city of Philadelphia, on an indictment, charging him with having uttered and published, a counterfeit note for the payment of money issued by Stephen Gi-rard, a private banker, knowing the same to be counterfeit, with intent to defraud Jinn Mussina. that the offence with which he was charged was not indictable; and referred to the acts of assembly, of the 21st of March,…

IN ERROR. The record of this case being returned, on a writ of error to the District Court for the city and county of Philadelphia, together with three bills of exceptions to evidence, and a fourth, to the opinion of the court, it appeared, that the plaintiffs in error had brought suit in the court below, against the defendants in error, Henry Kalbach, David Landis, and Abraham Landis, upon three promissory notes, signed, “ Kalbach and Landis,” and their object was to show,…

<p>IN ERROR.</p> <p>Error to Lehigh county, in an ejectment brought by the executors of Frederick Smith, deceased, against Daniel Shuler and Mark Weidnecht. The plaintiffs claimed under a mortgage, given by a certain Jacob Duck to Frederick Smith. The defendants made title under the same Jacob Buck, by conveyance subsequent to the mortgage. The mortgage was given to secure the payment of thirteen hundred pounds, by yearly instalments of one hundred pounds each, with interest. • Three of these instalments were due, and unpaid at the time of the commencement of the suit, and ten were not due. Whether, under these circumstances, an ejectment could be supported, was the question. The court of common Pleas decided, that it could not, and the plaintiffs excepted to their opinion.</p> <p>It is settled, that an ejectment lies on a mortgage in Pennsylvania. Simpson’s Lessee v. Ammons, 1 Binn. 175. At common law, the mortgagee has the right of possession, as soon as there is a forfeiture of the estate, and the estate is forfeited as soon as default is made in any payment; but the mortgagor may regain possession, on payment of the principal and the interest in arrear. Poivel on Mortgages, 225, 227, 975. Newel v. Wright, 3 Mass. Rep. 138.</p> <p>admitted, that at common law, the plaintiffs might recover in this action; but contended, that the act of assembly of 1705, {Purd. Dig. 160,) prescribing the mode of proceeding upon mortgages, precluded a recovery. If the law of England be, that the mortgagee may foreclose after the first default, which seems to be the case, then the act of assembly, forbidding a scire facias to be issued, until after all the payments are due, and coming in the place of foreclosure, must be supposed to have intended to change the law, and to prevent any remedy upon a mortgage until the time at which a scire facias might issue. He cited Powel on Mortages, 205, 1044. Bonham V. Newcomb, 2 Kent. 365, S. C. Kern. 232. 2 Harrison’s Ch. 292. 2 Eden. 197. 2 Johns. Ch. 486. Garforth v. Bradley, 2 Kern. 678.</p>

<p>IN ERROR.</p> <p>A writ of capias ad respondendum, issued out of the District Court, at the suit of Lewis 8. Coryell, William Maris, and Daniel Barry, trading under the firm of Lewis S. Coryell and Co., against William Taylor, Chauncey Belknap, Daniel Belknap, and Stephen Belknap, trading under the firm of Taylor and Belknaps, on which writ William Taylor was arrested, and gave bail to the sheriff. As to the other defendants, the sheriff returned non esv inventus. The declaration in the case, after reciting the arrest of Taylor, and that the other defendants were not found, stated, that certain differences had arisen between the plaintiffs, Lewis S. Co-ryell, William Maris, and Daniel Parry, trading under the firm of Lewis S. Corryell and Co., and the defendants, William Taylor, Chauncey Belkhap, Daniel Belknap, and Stephen Belknap, trading under the firm of Taylor and Belknaps, touching and relating to existing accounts between them, and thereupon, for the putting an end to the said differences, the said Lewis S. Coryell, William Maris, and Daniel Parry, and the said William Taylor, Chauncey Belknap, Daniel Belknap, and Stephen Belknap, heretofore, to wit, on the 16th of January, 1818, at the county aforesaid, respectively submitted themselves to the award and decision of John Naglee, William Britton, and Stephen Simmons, or any two of them, of and concerning the said differences and' accounts. The declaration then stated a promise of the parties to perform the award — that an award was made in favour of Lewis S. Coryell and Co., which award had not been performed by Taylor and Belknaps. The declaration also contained a count upon an insimul computassent, and the money counts. To the declaration the defendant, William Taylor, pleaded non assumpsit, payment, and set-off, &c.</p> <p>To support the allegations in the declaration, the plaintiffs offered in evidence an agreement, signed by Lewis S. Coryell, in the name of Lewis S. Coryell and Co., and by William Taylor, in the name of Taylor and Belknaps, in the following words:</p> <p>“ Differences having arisen between L. S. Coryell and Co. and Taylor and Belknaps, relating to existing accounts between them, it is agreed that all matters in variance between them be referred to the decision of John Naglee, William Britton, and Stephen Simmons, or any two of them, and it is further agreed, that such award shall be considered as made under a rule of court; for which purpose an amicable action shall be considered as entered, and the parties to have the same right to take out execution on the award, as if a rule of court had been entered. The report of said referees to be final and conclusive, and no exception to be filed or-appeal entered by either party.</p> <p>Philada. Jan. 16, 1818, (Signed) L. S. Coryell, &Co.</p> <p>Taylor & BelknapsP</p> <p>The plaintiffs also offered in evidence an award, in the following words:</p> <p>“We, the auditors named in the above agreement, to settle all the matters at variance between Lewis S. Coryll and Co. and Taylor and Belknaps, and to adjust the same, report, that having heard the parties, their allegations and proofs, find a balance due L. S. Coryell and Co. of eight hundred and forty-seven dollars, and eighty-seven cents. (Signed) Stephen Simmons,</p> <p>Philada. Feb. 7th. 1818. William Brittonr</p> <p> John Naglee,’* </p> <p>On the trial of the cause, in the court below, the defendants objected to the admission of the submission and award in evidence, but the court overruled the objection, and the defendants tendered a bill of exceptions to the opinion of the court. On the part of the defendants, one of the arbitrators was then offered as a witness to prove, that in making up their award the arbitrators had made a mistake, which would reduce the amount they had awarded to the plaintiff. The plaintiffs, however, resisted the introduction of his testimony for the purpose for which it was offered, and the court rejected it, and the defendants tendered another bill of exceptions to their opinion. There was no evidence to show that the signing of the agreement to refer, by Lewis S, Coryell, in the name and on behalf of L. S. Coryell and Co., was with the knowledge and consent of his co-partners, nor was there any to show that it was without such consent and knowledge. As to the signing by William, Taylor, in the name and in behalf of Taylor and Belknaps, there was no evidence to show that it was with or without the consent of his co partners, except that it was proved that a person of the name of Belknap attended with Taylor before the referees, but took no part in the discussion.</p> <p>The question upon the first bill of exceptions is, can Coryell support this suit in the name of his partners, or Taylor bind his partners without their consent? The narr. states, that all the partners on each side signed the agreement. The result of all the English authorities is, that one partner cannot bind the others by any agreement to refer to arbitration, but would be himself bound, if he signed it in the partnership name, and would be liable to be separately sued on any award made under it. Kyd on ¿hoards, 42. Strangford v. Green, 2 Mod. 228. Wats. Partn. 445. 1 Roll. Mr. 344. Mbit. 244. 1. 15, 25. Moody v. Osam. Lilt. Rep. 30, Kyd on Awards, 45. 1 Lord Raym. 246. The action is therefore not to be supported by the evidence against all the parties, Taylor being charged in the declaration as on & joint undertaking with his partners. In .this country there has been an express decision, in principle settling this case, upon the ground that in legal proceedings, it is not within the scope of the general authority of a partner to bind his co-partners. Haslet et al. v. Street et al. 2 M‘Cord, 310. (South Carolina.) It was decided in that case expressly, that one partner cannot enter an appearance for the others; it is true the court, in deciding that case, referred to 1 Binn. 214. 2 Binn. 145. 6 Johns. 296, as establishing a contrary doctrine; but those cases, when examined, will be found to involve a very different question. The ease of Tom v. Goodrich, 2 Johns. 213, is an instance of the limited authority of a single partner, in transactions not strictly of a partnership nature. The ease in 2 Mod. 22S, must have been a submission not render seal, because the action wais an action on tire casi?.</p> <p>2. There was error in rejecting the testimony of one of the arbitrators, to prove a mistake in the award, which would reduce its amount. If the agreement had been pursued, an amicable action would have been entered, as the parties intended, and the court would have inquired into the mistake; for that part of the agreement which provides, that neither party should file exceptions, is void. The plaintiffs having brought an action on the ease, on. the award, the defendants may be let in to show, as he might in equity, a mistake; and it is well settled, that the courts in this state sustain defences purely equitable. A plain mistake of law or fact in an award, is ground for relief in equity. Comforth v. Green, 2 Vern. 705, cited and relied upon by the Lord Chancellor, in 3 Jltk. 494.</p> <p>There are two questions to be considered. , 1. Can one partner bind the others by a submission to arbitration ? 2. Can evidence be given of a mistake, on these pleadings ? As to the first question, one partner may bind-the others by a submission not by deed, in matters relating to partnership concerns. There is not one case to the contrary; the cases have all been of arbitration bonds, and were decided upon a principle applicable to such cases alone. The power to bind his co-partners, in a case of this kind, results from the general authority of a partner to transact all matters of partnership business; much inconvenience would ensue, if it were otherwise. It is by virtue of this general authority, that one partner may appoint a clerk to draw, endorse, and accept bills of exchange, without the knowledge of his co-partner, Tillier v. Whitehead, 1 Sail. 269; may admit a debt to be due so as to bind the others, who are not in court, having stood out the process to outlawry, Sangstcr v. Mazzaredo, 1 Stark. 161; or release, by writing under seal, a debt due to the partnership, Salmon v. Davis, 4 Sinn. 375; or assign, by instrument not under seal, the partnership effects, in trust to pay creditors, Harrison v. Sterry, 5 Cranch, 289; though this power has been doubted, under the peculiar circumstances of one case, Pierpont v. Graham, Whart. Dig. 453. Partnership, pi. 12; may institute a suit, or petition for a commission of bankruptcy against another person, per Ship-peist, President. 1 Dali. 389; or compound a debt, 17 Johns. Rep. 58.</p> <p>But at all events, Taylor, who signed the submission, is bound, and cannot, in this suit, where he only was arrested, and to which therefore his co-partners are not parties, avail himself of matter of defence, which being personal, as regards his co-partners, they only are entitled to urge. He could not, if sued in the Circuit Court, together with his partners, have availed himself of a want of jurisdiction as to them, if he alone had been taken upon the process, though if all were arrested, the defect of jurisdiction would have concluded the plaintiff, Craig y. Cummins, X Peters’ Rep. 431, n.. While bound himself, Taylor cannot allege that his co-partners are not bound, Sangster v. Mazzaredo, 1 Stark. 161. The cases where relief has been afforded, are cases of sealed instruments, and the partner who did not seal applied for relief, which was afforded at his instance, and to him alone. Girard v. Basse and Soyer, 1 Ball. Ilf). Green v. Beal, 2 Caines’ Eep. 254; and, therefore, though one partner cannot bind another, by sealed in • strument to submit a matter to arbitration, yet he who signs is personally liable. Buchanan v. Curry, Skinner v. Dayton, 19 Johns. Rep. 137, 513. The question, however, in the court below, was, not as to the operation and effect of this paper, but whether it was evidence to go to the jury, who are judges of the course and customs of trade. .Besides, when it was proved that a person named Belknap attended before the arbitrators, it was a fair inference, that he and the other Belknap had assented to the arbitration; and it is well settled, that even in the case of sealed instruments executed by one partner in the name of the firm, the actual or constructive presence of those who do not seal the instrument, will render it available against all. Ball v. Dun-sterville, 4 Term Rep. 313. Mackay v. Bloodgood, 9 Johns. Rep, 285. The narr. also contains a count upon an account stated; and on such a count, an award may be given in evidence as an admission of a balance. 2 Phil. Evid. 72, 73. Kenjp Bat shore? 1 Esp. Rep. 194. úqpfM'f'--'</p> <p>As to the second question: The evidence of mistake, having regard always to the pleadings in this case, was properly rejected by the court below. No evidence at law can be admitted against an award, unless to prove partiality, corruption, or misbehaviour in the arbitrators. Lucas v. Wilson, 2 Burr. 701. Wittes v. M‘Cbrmick, 2 Wils. Rep. 148. Newland v. Douglass, 2 Johns, Rep. 62. Barlow v. Todd, 3 Johns. Rep. 367. 9 Johns. Rep. 212. 10 Johns. Rep. 143. If the defendant under our practice tended to avail himself of an equitable defence, i. e. mistake, he should have pleaded it specially, or have given notice; the authorities are express, that under- the plea of non assumpsit, the defendant cannot avail himself of an equitable defence. Dunlap v. Miles, 4 Yeates, 366. If the mistake be pleaded, the plea must point out a plain error in point of law, or fact, specifically set forth; and, if it do not, it may be demurred to, as in Williams v. Paschall, 4 Dali. 284, where a demurrer to such a plea was sustained, on the ground that it did not set forth the mistake, alleged to exist, with sufficient certainty; the law being settled, that unless a plain mistake be pointed out, the court will not notice it, 1 Binn. 59. If notice of special matter be the course adopted by the defendant, he must give ten days’ notice of it, otherwise nothing will be received but what is strictly admissible, under the plea of the generál issue. Rule of the District Court, Wharf. Dig. Practice, No. 44.</p>

This cause was tried before Mr. Justice Duncak, at nisi prius in April, 1824, when it appeared that it was a suit brought by Abraham Stewart, against John Coulter and William Day, to recover a compensation for services, as superearcargo of the ship Coromandel, on a voyage from Philadelphia to Antwerp, .thence to Java, back to Antwerp, and thence to Philadelphia.

<p>"Where a question depends on a long correspondence, and a variety of circumstances, it is usual to submit its decision to the jury; and if the counsel on either side ask the opinion of the court, on matters of law and fact thus blended, the judgment cannot be reversed for error in that opinion.</p> <p>Where the plaintiff, in Charleston, having in his hands goods of the defendant nearly sufficient to satisfy his demand, without the permission of the defendant, drew upon him, and the draft was protested for non-acceptance, held, that the plaintiff could not recover of the defendant, the damages which he was compelled to pay in consequence of the draft, being returned protested; especially as the draft was at a much shorter sig’ht, than was the usuid course of bills between Charleston and Philadelphia.</p>

<p>An examined copy of flic boots of an incorporated bant, uncorroborated by any other proof, is not evidence. It seems, that it would be evidence, if accompanied by proof that the original entries were made by an officer of the bank; this proof to be made by the officer himself, if to be found, and, if not, his handwriting' to be proved.</p> <p>The act of 1814, gives'no power to the presidents of the banks, thereby created, to raise money by drafts upon the bunk, nor is any such power given to the president alone, by a resolution of the directors, authorizing the president anti cashier to raise money or obtain discounts for the use of the bank; but if both agree upon a plan of borrowing money, or of obtaining discounts, it is not necessary that both should sign the paper, to carry it into effect.</p> <p>The board of directors have power to authorize the president and cashier to borrow money, or obtain discounts for the use of the bank.</p> <p>Independently of any resolution, the sanction of the directors, to a draft made on the bank by the president, may be inferred from the evidence given on the trial.</p> <p>If the president of a bank who is authorized to borrow money, or oblain discounts for the use of the institution, fraudulently draws a draft 'in favour of one, by Whom it is endorsed to the plaintiff who receives it in the usual course of business fairly, and without notice of the fraud, his right to recover is not affected by collusion between the drawer and endorser.</p>

<p>IN ERROR.</p> <p>On a writ of error to the Court of Common Pleas of Philadelphia county, the case was thus:</p> <p>John Lane, the plaintiff below, brought this action for his wages, as a mariner on board the Brig Milo, of which the defendants, Buck and Krumbhaar, were owners. The plaintiff shipped, as a mariner, on hoard the Milo in Jipril, 1820, on a voyage from Philadelphia to Hamburg, and back to Philadelphia. They arrived at Hamburg on the 35th of May following, when it was agreed to alter the voyage, and proceed to St. Salvador, in Amc-rica, and thence back to Hamburg. The brig arrived at St. Salvador on the 30th of September, where she remained until the 24th of March, 1821, when she sailed for Hamburg, and arrived there on the 1st of August following. At Hamburg the voyage ended, and the brig was sold. It was proved, by the testimony of the mate, that the plaintiff was troublesome and quarrelsome. While the brig was at St. Salvador, on the 23d of October, he demanded his discharge, which the captain refused. He then desisted from his work, until the 26th of October, when he returned to it. In December following, some of the crew were fighting on deck, and, on the captain’s interposing, the plaintiff seized him and threw him down. Not long after this, the captain applied to Mr. Wise, who was acting as Vice Consul of the United Stales at St. Salvador, by whose influence he obtained a guard of soldiers, with whom he came on board the Milo, and took the plaintiff and. another mariner, of the name of Vincent, who had misbehaved, and carried them to prison. After this he hired two hands, in the place of the plaintiff and Vincent. The plaintiff remained in prison till after the brig sailed from St. Salvador, when he was discharged, and returned to the United States, about the time the Milo arrived at Hamburg. It does not appear, that any charge was brought against the plaintiff, while in prison, nor was he brought to any kind of trial. On this evidence, the court charged, that the plaintiff was entitled to his wages to the time of his arrival in the United States, deducting the time when he was in prison, and the counsel of the defendant excepted to the charge.</p> <p>cited, 2 Brown’s Civ. and Mar. Law, 160, 169. Drisdale v. Schooner Rayner, Bee’s Ad. Rep. 148. Thorne v. White, 1 Peters’ Ad. Decisions, 168. Robi-net v. The Exeter, 2 Rob. 216. Relf v. Ship Maria, 1 Peters’ Ad. Decisions, 1S6. Black v. The Louisiana, 2 Id. 270.</p> <p>referred to, Mills v. Kennedy, National Gazette, of July 16, 1824* Thompson V. Bush, C. C. U. S., Penn. District, October, 1823. M. S. Rep.</p>

<p>A deed conveying all debts, dues, and demands, real, personal, or mixed, which are due and owing-, or of right belonging to the grantor, by virtue of inheritance, legacies, bonds, notes, book debts, or otherwise, to the grantee, and his heirs and assigns, passes real estate.</p> <p>Parol evidence of the declaration and intention of the grantor in a deed, is not admissible.</p>

<p>IN ERROR.</p> <p>This was an action on the case, in the nature of waste, brought in the Court of Common Pleas of the county of Philadelphia. The plaintiff below, Hannah Barker, declared for damages done to her reversionary estate, “ by rooting up, pulling up, felling, cutting up, and prostrating divers timber trees, and a large quantity of bushes, to wit, three large apple trees, two honey cherry trees, two cedar trees, and two cart-loads of bushes, of the said plaintiff.” The defendant pleaded non cut, &c., and upon the trial, the counsel for the plaintiff, to prove her interest in the reversion, gave in evidence a lease for the premises, from the plaintiff to the defendant; which lease was the only evidence produced, to show the plaintiff’s title to the premises.</p> <p>The defendant’s counsel contended, that the plaintiff was not entitled to recover, because she had produced no evidence of a re-versionary interest in the estate at the time of bringing suit; and the court thereupon charged the jury, that it was a principle of law that a tenant could not controvert his landlord’s title, and that the lease given in evidence, by its import signifies, that the plaintiff had an ulterior interest in the property described therein, and'that it was evidence of the reversionary interest, sufficient to enable her to support this action.</p> <p>The court further charged the jury, that when any fruit tree is blown down by a tempest, the' trunk or body of such tree belongs to the lessor, and that, although it would have been better for the plaintiff to have omitted the word timber, as expressive of the description of trees in the declaration, yet that word might be rejected, as it appeared by the particular description of the same trees that they were not timber trees; and, of course, it was a mistake in the description not material to the case. The court added, that the plaintiff was not confined to any particular time, but might recover on such parts of the declaration as had been made out in evidence, for any waste committed before the tiine laid in the declaration, provided it was before the bringing of the suit.</p> <p>To this opinion, the counsel for the defendant in error excepted.</p> <p>cited, 1 Saund. 322, note 5. 1 Chitty on PI. 48. Lewis Bowie’s Case, Co. Litt. 81. S Chitty on PI. 344, 391. 2 Saund. 252, note 7. Lesser v. Gif-ford, 4 Burr. 2141. 2 W. JBl. 1111.</p>

<p>IN ERROR,</p> <p>Writ of error to the District Court for the city and county of Philadelphia, in which a bill of exceptions to evidence was returned with the record.</p> <p>In the court below, it was an action of indebitatus assumpsit, brought by the defendant in error, Bela Badger, agaitist Robert Shaw, the plaintiff in error, in which he declared for goods sold and delivered, money had and received, and upon an insimul com-putassent. The,plaititiff proved by Thomas Heiskill, his agent, that he had sold and delivered to the defendant,-five head of cattle for two hundred and seventeen dollars; that he had received part of the money, leaving a balance of one hundred and fifty dollars, and that the defendant had repeatedly acknowledged that he owed that sum, and promised to pay it.</p> <p>The defendant filed an affidavit of defence, admitting one hundred "dollars to be due to the plaintiff, and under the plea of payment, with leave, &e., gave notice of the following special matter, and set-off, viz: That at the same time that Heiskill, as the agent, of the plaintiff, sold the five head of cattle to the defendant, he also sold him thirty-eight sheep, selected out of the flock, at four dollars a-head, and that Heiskill was to keep them a few days for him, but that he subsequently sold them with the remainder of the flock, without selection, at four dollars and twenty-five cents a-head; and, on the cross.examination of Heiskill, the defendant below proposed to ask him if this was not the fact. The evidence was opposed by the counsel for the plaintiff, and the court rejected it.</p> <p>contended, that the sale of the cattle and the sheep, being an entire contract, the set-off, founded upon the non-delivery of the sheep, ought to have been admitted. 2 Starkie, 281,</p> <p>denied that the contract was entire. Although the sales were made at the same time, they were of different articles, and sold in a different manner; the cattle being sold by the pound, and to be delivered immediately, and the sheep by the head, to be delivered some days after. The damages are unliquidated, and therefore cannot be set off</p>

<p>This cause was tried on the 10th of December, 1824, before Justice Gihson, at nisi prius, when a nonsuit was entered. It came before the court in bank, on a motion to take off the nonsuit, and for a new trial.</p> <p>The action was brought against the administrator of Jacob Filler, deceased, late sherilF of the county of Philadelphia, and the sureties in his official bond. The facts which appeared on the trial were these: On the 6th of May, 1817, the auditor general slated an account between the commonwealth and Jacob Filler, late sheriff of the county of Philadelphia, by which twelve thousand, seven hundred and ninety-three dollars, and twenty-five cents, appeared to be due to the commonwealth. The account, as stated, was approved by the state treasurer, but it was admitted that Filler never presented any account for settlement, and that he had no previous notice of the statement of. his account by the accounting officers. It was also admitted, that the sum thus appearing due to the commonwealth, was made up, of what, at the lime, were supposed to be matters properly chargeable to him, and that nothing was passed to his credit by the auditor general, who, in transmitting the account to the deputy attorney general in this city, with directions to bring suit on Filler’s official bond, remarked, that he presumed that the balance .would be reduced, by credits to be produced by Filler, to less than five thousand dollars. On receiving notice of this settlement, Filler opened a correspondence with the auditor general, which, at the end of two yeai-s, or thereabouts, resulted in a reduction of the balance to nearly one-half the original amount; and the question was, whether, on the balance thus reduced, the commonwealth was entitled to interest.</p>

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Philadelphia county, in a feigned issue, directed by the Register’s Court of the county of Philadelphia, to try the validity of a writing purporting to be the last will and testament of John Hooker Reynolds, deceased. John Cowden and others, the executors named in the alleged will, were plaintiffs below, and Sarah Reynolds, the widow of the deceased, defendant. On the trial, the plaintiffs offered to give in evidence the paper in controversy, without other proof than the probate made by two subscribing witnesses in the register’s office. This was objected to by the defendant’s counsel, and the court overruled the evidence. The plaintiff then examined William W. Cress, one of the subscribing witnesses, who, after having proved his own attestation to the paper, testified, that George W. Smith, since dead, and Joseph Rice, who was in court at the time the evidence was given, also subscribed the instrument as witnesses. Having giyen this evidence, the counsel for the plaintiffs again offered the paper in evidence, but the court refused to permit it to be read, it not being, in their opinion, proved by two witnesses, as required by law. Joseph Rice was then called, and examined by the plaintiffs. He swore that the testator was intoxicated at the time he executed the will, and not capable of knowing what he did. Upon this, the counsel for the plaintiffs called and examined Edmund Rogers, the deputy register of wills, who swore, that the writing in question was proved before him by the oaths of the subscribing witnesses, and that the said Joseph Rice took the usual oath administered to witnesses, on the probate of a will; after which the counsel for the plaintiffs produced, and offered to give in evidence the probate before mentioned, made before the said Edmund Rogers, in order to show, that the said Joseph Rice had sworn that the testator was of sound mind, at the time he executed the writing set up as his will. To this evidence the counsel for the defendant objected, and the court sustained the objection, and overruled the evidence.</p> <p>The counsel for the plaintiffs excepted to the opinion of the court On the several points above stated.</p> <p>Dr. Edwin Jl. Jlllee was then called as a witness, who stated such facts as satisfied the court, that the paper ought to go to the jury for their consideration, and it was accordingly read to them.</p> <p>After the evidence on both sides was closed, and the plaintiffs had dismissed their witnesses, the defendant’s counsel called Joseph Rice to give further evidence of what took place in the register’s office, at the time of the probate of the will and of other facts, which need not be stated. The counsel for the plaintiffs objected to the examination of the witness, but a majority of the court, the president dissenting, admitted the evidence, and a bill of exceptions was tendered to their opinion,</p> <p>The requisition of the law, calling for proof of the execution of the paper in controversy as a will, was complied with, when the plaintiffs had proved, by one of the subscribing witnesses to it, that he saw the testator execute it, and that one of the other subscribing witnesses was present, subscribed his name, and was dead. If a subscribing witness be dead, or out of the jurisdiction of the court, his handwriting may be proved. Eystavv.You.ng, 3 Yeates, 514. Walmesly’s Lessee v. Reed, I Sm. L. 40.</p> <p>2. The court below erred, in rejecting the will after two subscribing witnesses had sworn to the execution of it. The circumstance of one of the witnesses having testified, that the testator was intoxicated at the time, ought not to have prevented the paper from being read. How far he was incapacitated to make a will, it was for the jury to determine. Lewis v. Lewis, 6 Serg. & Rawle, 494. The will, it is true, was afterwards permitted to be read, on the production of other evidence; but the plaintiffs were injured by the injurious impressions made upon the minds of the jury by its rejection. If evidence bo improperly admitted, the error is not cured, by the court’s telling the jury not to regard it Nash v, Gilkeson, 5 Serg. & Rawle, 354. Shaeffer v. Kreitser, 6 Binn* 431.</p> <p>3. The plaintiffs clearly had a right to give the probate in evidence, to show that the witness’s oath on the trial was contradicted by the oath he had taken before the register. Phill. Ev. 214.</p> <p>4. After the evidence was closed, and the plaintiffs had dismissed their witnesses, the court ought not to have permitted the defendant to re-examine a witness. It is true, the court possess a discretionary power, in respect to the examination of witnesses; but this discretion is not to be exercised to the manifest injury of a party. 5 Binn. 488.</p> <p>were requested by the court to confine themselves to the third exception. They contended, that it was not competent to the plaintiffs to contradict their own witness, except as to some particular fact. This evidence went to show a general contradiction in the evidence of the witness, which amounted to an attack upon his character for veraeity. This is never permitted. Besides, the probate before the register had no official character, because it was appealed from. If, however, an error was committed, it was cured; as the will, with the probate, afterwards went to the jury.</p>

<p>A notary public may be compelled to testify against the truth of his certificate of protest.</p>

<p>IN SEROS.</p> <p>This action was brought in the District Court for the city and county of Philadelphia, from which it was removed to this court by writ of error. The declaration contained two counts, on a written agreement between the parties, and a third for money had and received, &c. The judge of the District Court charged the jury, that the first two counts were not supported by the evidence, and this opinion was not excepted to. The written agreement was to the following purport: Spademan and Little gave a receipt, in which they acknowledged, “ that they had received of Moore, Myers, and Co. for collection, three bills of exchange (describing them,) drawn by Thompson and Mosely, of Philadelphia, on JBreedlow, Bradford, and Robison, of New Orleans, all endorsed, payable to the order of Spademan and Little, by Moore, Myei's, and Co., to whom the said Spademan and Little engaged to pay two thousand five hundred dollars, on advice of the acceptance of the bills, and the balance, on advice of the payment of the said bills, and not before, without interest.” The defendants remitted these' bills to their agent at New Orleans, William Jllderson, with orders to collect them for their account, advising them of their ac* ceptance or non-acceptance, payment or non-payment. Upon the presentation of the bills at New Orleans. acceptance was refused;. ami they were noted accordingly; and they were all afterwards protested for non-payment. After the protest, one of the bills, for the sum of one thousand, five hundred and ninety-seven dollars, and seventy cents, was paid to Mderson, which was the money demanded in the present suit. This payment was made on the 24th of dlpril, 1820, previous to which, viz. on the 29th of March, 1820, an attachment had been laid in the hands of Mderson, at the suit of Richard Badnell, a British merchant, for a debt due to' him from Moore, Myers, and Co. This attachment was laid, at the instance of the defendants, as agents of Badnell, without his knowledge, but he afterwards affirmed the proceeding, and gave his power of attorney to the defendants to carry on the suit. On the 7th of March, 1820, Moore, Myers, and Co. were insolvent, and executed a general assignment to Mien and Rowley, in trust for their creditors. Moore, Myers, and Co. first, and after-wards their assignees, Mien and Rowley, exhibited petitions to the court of New Orleans, in which the attachment was laid, were admitted as parties to the suit, and put in their several claims to the property attached. The parties having been heard by their counsel, the court decreed that Richard Badnell should recover against Moore, Myers, and Co., the defendants, the sum of one thousand eight hundred dollars, the amount claimed in the plaintiff’s petition. And, further, it was decreed that the garnishee, William Mderson, should pay over to the plaintiff the sum of one thousand, five hundred and eighty dollars, and seventy-nine cents, being the actual balance in his hands, admitted to be the effects of the defendants, and that the said judgment be credited for one. thousand, five hundred and eighty dollars, and seventy-nine cents. And it was further decreed, that the claim of the assignees of Moore, Myers, and Co. should be dismissed. From this judgment, the defendants in the attachment, Moore, Myers, and Co., and also their assignees, who had intervened, entered an appeal, severally, to the Supreme Court of Louisiana, who, after argument, affirmed the judgment with costs.</p> <p>Several exceptions were taken by the counsel for the plaintiffs, to the charge of the court delivered to the jury on the trial.</p>

<p>After pleading to a declaration, charging them as a corporation, ami going to trial as such in the Common Picas, the defendants cannot, on a writ of error, take advantage of the suit having been commenced against them, before the justice, in their individual characters.</p> <p>If a healthy stranger, who meets with an accident, which renders it impossible for-him to be removed, be received into the plaintiff’s house, and taken care of aS the desire of the overseers of the poor, who- employ a physician to attend him, the township is bound to pay &r his board, and other reasonable expenses incurred by the plaintiff', without a previous order of maintenance.</p> <p>The right of the plaintiff to recover under such circumstances, is not affected by his not having given notice, that he had in his house such a person, agreeably to-the 25th section of the act of the 9th of ■March, 1771; nor by the circumstance of the pauper’s name not having been entered in the books of the township.</p>

<p>A commissioner of the township of Moyameming, who is a taxable inhabitant of the same, actually assessed and rated as an inhabitant, and an owner of real estate in the said township, but who has paid all the taxes assessed upon him, is a competent witness for the township, by virtue of the act of tne 2d of April, 1822, in a suit instituted prior to the passage of the act.</p> <p>Unless the facts upon which an alleged error'in the record depends, appear with certainty, the court will not reverse the judgment.</p>

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Philadelphia county.</p>

<p>IN ERROR.</p> <p>A claim filed under the mechanics’ lien law, “ against the owners, or reputed owners, of a three storied brick house, situate on the south side of Walnut street, between Eleventh and Twelfth streets, in the city of Philadelphia, and against all other person or persons, owners or possessors of the said building,” is sufficiently certain.</p> <p>If a lumber merchant, who has separate liens for materials furnished to two houses, receives a payment without actual appropriation by either debtor or creditor, and suffers his lien on one of the houses to expire, he cannot, at the trial of a scire facias upon a claim filed against the other house, appropriate the payment in discharge of bis demand in respect of which his lien had expired, to the injury of a third person, who without notice, had purchased the property against which the lien is sought to be established.</p> <p>General rules in relation to the appropriation of payments.</p> <p>It seems, that a lumber merchant has a lien for lumber furnished to make shelves for a vault which formed part of the original plan of a building.</p> <p>A lumber merchant has a lien for lumber furnished to a building, whether it is used in a usual or necessary manner or not.</p>

<p>The Bank of the Northern Liberties brought an action of debt in this court against James Cresson, the defendant, upon a joint and several bond given to the bank, by the said James Ct'esson find Frederick Feering, for six thousand dollars, conditioned, that Benjamin Williams, during the time he should hold the office of first book keeper, should execute the duties thereof with integrity and fidelity, and faithfully perform and fulfil the trusts thereby reposed in him.</p> <p>The defendant put in seven pleas; on the first four of which issue ■was joined to the country. To the last three, the plaintiffs demurred. They were as follows:—</p> <p><£5. And for further plea in this behalf, by leave of the court, the defendant says, that the said Bank of the Northern Liberties buight not to have or maintain its aforesaid action thereof against him, because he says, that the said Bank of the Northern Liberties is a body politic and corporate in law, and was incorporated by an set of the general assembly of the commonwealth of Pennsylvania, passed the twenty-first day of March, one thousand eight hundred and fourteen, entitled “An act regulating banks;” which act is in the following words, that is to say — (prout act.) And the said body, being so incorporated, the said board of directors afterwards, and before the sealing and delivery of the said supposed writing obligatory, to wit, on the eleventh day of June, in the year one thousand eight hundred and sixteen, ordained certain bylaws, or rules and regulations for the government of the said bank, and, among others, a certain rule and regulation in the following words, that is to say, “Security required of officers. Section 4. The securities which shall be required of the cashier, and the inferior officers, clerks, and servants of the bank, on entering upon the duties of their respective offices, shall be as follows; viz. The cashier shall give bond to The Bank of the Northern Liberties, with one or more sureties, to be approved by the board, in a sum not less than forty thousand dollars, conditioned for good beha-viour and faithful performance of duty; the first teller, fifteen thou-? sand dollars; the second teller, twelve thousand dollars; the first book keeper, six thousand dollars; the second book keeper, five thousand dollars; the discount clerk, five thousand dollars; the as?" sistan-t clerk, five thousand dollars; the runner, four thousand dollars; the porter, two thousand dollars; and the watchman, one thousand dollars: which bonds shall be kept in the eustody of the president.” And the said James Cresson saith, that the said supposed writing obligatory was required and taken by the said Bank of the Northern Liberties, under colour and by pretence of the said act of the general assembly, and of the said rule and regular tion; but the said supposed writing obligatory was not taken, pur? suant to the said act of the general assembly, and to the said rule and regulation, but contrary thereto in this, to wit, that the surety and sureties in the said supposed obligation bound, was and were not approved, according to the said rule and regulation. By reason whereof, the said writing obligatory is void and of no effect in law. And this he is ready to verify. Wherefore, &c.</p> <p>“G. And for further plea in this behalf, by leave of the court obtained, the defendant saith, that the said, The Bank of the North.? ern Liberties, ought not to have or maintain its aforesaid action thereof against him, because he says, that the said Bank of the Northern Liberties is a body politic and corporate in law, and wa$ incorporated by an act of the general assembly of the commonwealth of Pennsylvania, in the said fifth plea recited. And the said body being so incorporated, the said board of directors after-? wards, and before the sealing and delivery of the said supposed writing obligatory, to wit, on the eleventh day of June, 1816, or-? daineS, certain by-laws, or rules and regulations for the government of the said bank; and, among others, a certain rule and regulation in the said fifth plea recited. And the said James Cres-son saith, that the said supposed writing obligatory was required and taken by the said, The Bank of the Northern Liberties, under colour and by pretence of the said act of the general assembly, and. of the said rule and regulation; but the said supposed writing obligatory was not taken, pursuant to the said act of the general assembly, and to the said rule and regulation, but contrary thereto in this, to wit, that the said Benjamin Williams was not party to the said writing obligatory, and did not seal and deliver the same as his act and deed. By reason whereof the said supposed writing obligatory is void and of no effect in law. And this he is ready to verify. Wherefore, &c.</p> <p>“7. And for further plea in this behalf, by leave of the court obtained, the defendant saith, that the said, The Bank of the Northern Liberties ought-not to have or maintain its aforesaid action thereof against bim, because he says that the said Bank of the Northern Liberties is a body politic and corporate in law, and was incorporated by an act of general assembly of Pennsylvania, in the said fifth plea recited. And the said body, being so incorporated, the said board of directors afterwards, and before the sealing and delivery of the said supposed writing obligatory, to wit, on the eleventh day of June, 181G, ordained certain by-laws, or rules and regulations for the government of the said bank, and, among others, a certain rule and regulation in the said fifth plea recited. And the said James Gresson saith, that the said supposed writing obligatory was required and taken by the said, The Bank of the Northern Liberties, under colour and by pretence of the said act of the general assembly, and of the said rule and regulation; but the said supposed writing obligatory was not taken pursuant to the said act of the general assembly, and to the said rule and regulation, but contrary thereto in this, to wit, that the said Benjamin Williams did not seal and deliver to the said bank any bond conditioned for his good behaviour and faithful performance of duty, as first book keeper of the said bank, after his said appointment to, and during his continuance in the said office, alleged in the said declaration; and that the only bond given to the said Bank of the Northern Liberties, after the said appointment, and during the said continuance in office in the said declaration mentioned, conditioned for the good behaviour and faithful performance of duty of the said Benjamia Williams, in the said office of first book keeper, is the said supposed writing obligatory, to which the said Benjamin is not a party, and did not seal and deliver the same as his act and deed. Wherefore the said supposed writing obligatory is void and of no effect in law. And this he is ready to verify. Wherefore, &c.”</p> <p>The fifth article of the seventh section of the “ Act regulating banks,” passed on the 21st of March, 1814, (6 Laws of Pennsylvania, 162,) enacts, that “The board of directors ih each district shall have power to make by-laws for the regulation and government of the corporation, to appoint a cashier and all other officers, clerks, or other persons necessary for executing the business of the company; and it shall be the duty of such board to take a bond of the cashier, with two or more sufficient sureties to the satisfaction of such board, for a sum not less than five thousand, nor more than one hundred thousand dollars, conditioned for the. faithful execution of the duties of his office or appointment; nor shall he be allowed to carry on any other husiness, either directly or indirectly, than that of the bank, unless by permission of the president and board of directors, under the penalty of five thousand dollars, to be recovered by the directors for the use of the bank; and the board shall take such security of their other officers, clerks, or other persons, respectively, as the by-laws shall prescribe,” &c.</p> <p>1. By the averment contained in the fifth plea, that the securities of Benjamin Williams, the first book keeper, were not approved by the board, is meant, a formal approbation by a vote of the board. But this was not necessary. A by-law was made, in pursuance of the act of assembly, and this bond was taken under the by-law. The bond was valid, upon general principles of law, without approbation. It might have been taken, without having been directed by the act of assembly; and the defendant is estopped from controverting the validity of an instrument to which he has put his seal. But the acceptance of the bond, preserving it, and bringing suit upon it, amount to approbation.</p> <p>[After having proceeded thus far in his argument, Mr. Ingersoll moved for leave to withdraw' his demurrer to the fifth plea.]</p> <p>2. and 3. The power of taking security was incident to the corporation, and was not restrained by the mode prescribed by the charter. The power to make by-laws is implied without a grant, for a corporation has general powers in relation to every thing connected with the objects of its creation, and necessary to carry on its business. 1 Kyd on Corp. 70, 71. Co. Litt. 264. 1 Burr. 517. 1 Bl. 475. The charter of the Bank of Pennsylvania contains no authority to take security from any other officer than the cashier, yet they have always taken bonds from the clerks; and the same remark applies to the old Bank of the United States. Two years and three months elapsed from the date of the charter of the bank now in question, before the enactment of the by-law under which this bond was taken; yet, during that interval, they always took security. No express power is given by the charier to take security from any other than the cashier, yet the right to demand it from the other officers of the bank, is not disputed. It is true, that a corporation chartered for one purpose cannot go into a different kind of business. Thus, a bridge company cannot carry on the banking business. But this bears no analogy to taking security from officers whose services are necessary to carry on the business of the institution, and whose fidelity should be secured, This is one of those powers implied in the grant of the charter, as necessary to the operations of the company. The term necessary, is not however to be confined to cases of absolute necessity, but extends to cases of convenience also. People v. Utica Ins. Co. 15 Johns. 338. MiCullough v. State of Maryland, 4 Wheat. 413. Utica Ins. Co. v. Scott, 19 Johns. 1. New York Firemen Ins. Co. v. Sturgis, 2 Cowen, 664. Same v. Ely, 2 Cowen, 678. Leazure v. Hillegas, 7 Serg. & Rawle, 320. Methodist Epis. Church v. Jacques, 17 Johns. 548. The direction of the by-law, that the bond of the officer shall be taken with sureties, does not render a bond by sureties alone, void. A bond voluntarily given under a by-law, is valid, though not strictly conformable to the law. 1 Kyd on Corp. 70, 71. So, a recognizance taken by a jus* tice out of his county is good. 2 Hale, 50, 51. 2 Hawk. 37. Harrison v. Hundred of Backhurst, Cro. Car. 212, 213. A voluntary bond by bail in error is binding, though bail was not necessary. Johnson v. Laserre, 2 Lord Raym. 1459. And a V0t luntary bond given in the'spiritual court is good, though the court has no power to take it. Folkes v. Boeminique, 2 Sfr. 1137. Thus, too, an instrument intended to be a statute staple or a statute merchant, though void as sueh, may be sued as a bond at law. Cro. Eliz. 355, 461, 494, 544. The same principle is established by Murray y. Wilson, 1 Wils. 318. Armstrong v. United States, 1 Peters’ Rep. 46. Smith v. Pillars, 1 Salk. 3. Cromwell v. Grunsdall, 2 Salk. 462. S. C. 5 Mod. 281. Goddard’s Case, 2 Co. 5. The act of assembly regulating arbitrations, directs a bond with sureties to be taken from the appellant, yet this court has decided that the appeal is good, though the appellant be not bound. Cavence v. Butler, 6 Binn. 52. Boyce v. Wilkins, 5 Serg. & Rawle, 329. Where the mode pointed out by the charter trader which the plaintiffs were incorporated is intended to be exclusive, it is expressly said so. For example, the transfer of stock is directed to be made in a certain manner.only. But the power to take bond with sureties is cumulative, not exclusive. A corporation may sue by its name of creation, though an express power may be given by the charter to sue by another name. Prest and College of Physicians, v. Talbois, 1 Lord Raym. 153. Same v. Salmon, Id. 680. A statute in the affirmative, without a negative, express or implied, does not take away the common law. 19 Pin. 510, pi. 1. Id. 513, pi, 1, 2, 3, (notes.) Id. 513, pi. 22.</p> <p>A corporation has not an unlimited power of action. It has no capacity except what is conferred by law. Leazure v. Hillegas, 7 Serg. & Rawle, 318. Head v. Providence Ins. Co. 2 Crunch, 167. 7 Crunch, 299. 4 Serg. & Rawle, 16. The powers of this company are expressly given by the fourth section of the act of incorporation, and all powers affirmatively given, imply a negative as to every other power, 2 Kyd, 100. Green v. Mayor of Bur-ham, 1 Burr. 127. Bex v. Head, A Burr. 2515. Child v. Hudson Bay Co. 2 P. Wms. 209. Phillips v. Bury, Skinner, 513. Beatty v. Marine Ins. Co. 2 Johns. 109. 19 Vin. 511, pi. 7, 9. Slack v. Drinker, Hob. 298. Within v. Baldwin, Sid. 56. Bex v. Staunton, 2 Shower, 30. The power of taking security is very important to banks, and is always particularized in the charter among the fundamental articles. It is declared to be the duty of this corporation to take bond in a certain way, which necessarily negatives any other way. The by-laws are made by the board of directors; but, when made, the board is bound by them. If the directors were permitted to act out of the path prescribed by law, the consequence would be injurious. The defendant had a right to expect that a bond would be taken from the principal, and it might be of great importance to have it taken. The eases cited on the other side of voluntary bonds, not in accordance with a statute, are not in point, because they were between parties capable of giving and receiving the bonds. But here, there was no obligee capable of receiving the bond in question. Our corporations are all special, the time of their duration fixed, and their mode of acting prescribed. The powers necessary for effecting the purposes of the corporation, it is true, are implied, but there can be no implication contrary to the mode of acting pointed out by the charter. A bond made under a statute, but not agreeably to it, is void. 20 Johns. 74.</p>

IN ERROR. On a writ of error to the District Court for the city and county of Philadelphia, it appeared that this action was brought by George and Joseph Hussey, against Thomas G. Armstrong and John Elliot, on a promissory note drawn by Armstrong, in the name of Thomas G. Armstrong and Co. It appeared, by the evidence on the record, that Armstrong and Elliot were partners in trade.

<p>Bequest of the residue of the testator’s personal estate as follows: “ I give to my son Jacob one half thereof, to be paid to him, one year after my decease, and the other half I order my executors to put out on good security, and one half of the interest therefrom, X give to be applied to the support and education of the children of my son Samuel, until they respectively arrive at fourteen years of age, and the interest arising afterwards, I give to the said children of my said sou Samuel, in equal parts or shares, as they respectively arrive to lawful age j the other half of the said interest I give to my 6aid son Samuel, to be paid to him annually during his life, and after his decease, I give the principal, so put to interest, to the children of the said Samuel in equal parts or shares.” Held, that the interest becoming due after the children arrived at the age of fourteen years, should be suffered to accumulate, and, together with the principal, go to the children, on their arrival at the age of twenty-one years: That the bequest to the children, of the other moiety given to Samuel during life, was not immediate, but that they took it as they took the other moiety, and on arriving at the age of twenty-one, they were to receive the principal, and the interest which had accrued since the death of their father,- who died before they were of full age. And, consequently, the guardian of Samuel's children, not being entitled to receive either principal or interest, was not responsible for any loss arising from the insolvency of the executor.</p> <p>The orphans’ court has no power to compel an executor to give security at the instance of one who has a right to the interest of a bequest, but no right to the principal until a future day.</p> <p>tíf the responsibility df a guardian for deficiencies occasioned by negligence.</p>

<p>Where a summons issued against Á. and B., which was returned, “ summoned as to A., and non est as to B.,” and the name of an attorney was entered in the docket opposite the names of the two defendants, but the plaintiff declared against A. alone, averring that the writ had been returned nihil as to B., and on the same day entered a rule of arbitration, and the arbitrators, after having- heard the proofs of the plaintiffs, (the defendants not appearing,) made an award in favour of the plaintiffs, and in no part of the record it was expressly said, that B. appeared or was heard in the cause, held, that the judgment entered on the award was not a judgment against B.</p>

IN ERROR. This aetion, in which Rebecca Black, administratrix of James Black, was plaintiff, and Thomas Davis defendant, was brought in the Court of Common Pleas of Chester county. The plaintiff having entered a rule for arbitration, the cause was proceeded in before arbitrators, who made an award in favour of the plaintiff, which was filed in the prothonotary’s office, on the 28th of June, 1820. On the 14th of July, the defendant gave bail and entered his appeal.

<p>IN ERROR,</p> <p>The questions raised upon the record .of this case, which was returned on a writ of error to the Court of Common Pleas of Chesr t.er county, accompanied by several bills of exceptions as well to evidence, as to the charge of the court,</p>

<p>The act of the 11th of March, 1815. is not to be construed so as to form an immediate bar, by retrospection, to the claims of persons beyond sea, who had been out oí possession t-venty-one years prior to the passing of the act; but such persons were allowed fifteen years from the 11th of March, 1815, for bringing their actions according to the provisions of the 3d section of the act of limitations the 26th of March, 1785.</p> <p>f an act of assembly be a manifest breach of the constitution of the state, it is not only the right, but the duty of the court, to pronounce such act to be void.</p>

<p>If the holder of a note, who, at the time it was discounted, knew that it was drawn for the accommodation of the endorser, give time to the endorser without consulting the drawer, the latter is not discharged thereby.</p>

<p>Where, in a suit before a justice, there is an award of arbitrators that the plaintiff has no cause of action, no appeal lies, if it do not appear in the justice’s docket that the plaintiff's demand exceeded twenty dollars.</p> <p>Want of jurisdiction is not cured by acquiescence.</p>

IN ERROR. In this case, which' was a writ of error to the Court of Common Pleas of Lancaster county, the question was the same as in the preceding case, but the circumstances were different.

<p>if there are pleas to an indictment of mtrefoits acquit, and not guilty, the formelf issue should be first tried.</p> <p>If a jury is charged with both these pleas at once, and the verdict is guilty in manner and form, &c. no judgment can be rendered, as there is no verdict on one of the pleas.</p> <p>If an act of assembly direct the president, managers, and company of a turnpike .road, to remove a gate, the persons who are president and managers are not individually liable to indictment, if the direction is not performed.</p>

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Common Pleas of Lan~ caster county, in an action on the case for goods sold and delivered, money lent, money paid, laid out, and expended, and money had and received, brought by Jacob Eckert, the plaintiff below and defendant in error, against the plaintiff in error, John Wilson, in which there was a verdict for the plaintiff below for seven hundred dollars.</p> <p>The defendant pleaded non assumpsit, non assumpsit infra sex annos, payment, and set-off. Replication, non solvit, no set-off, and the statute of limitations, and issues were joined.</p> <p>The proof in support of the plaintiff’s claim, which was founded on book account, rested principally upon the testimony of Mrs. Ring wait, who proved, that the defendant Wilson came to the house of her father (the plaintiff,) in March, 1814, with an account against the plaintiff of two hundred aud fourteen pounds, for articles furnished in 179S, 1803, and 1805, and demanded the money. Her father was not at home, but her mother told him she thought there had been a settlement between them. 'He said there had been, but he had balanced the account, and that amount was still coming to him. The witness was then directed by her mother to get her father’s book, for perhaps the defendant had not the whole of the plaintiff’s account. The witness then took the book, and read over to the defendant the items charged against him in the plaintiffs book, (amounting to the sum of one hundred and twenty-one pounds and twelve shillings, for whiefy with interest, this suit was brought.) The first item was a charge of thirty-seven pounds and ten shillings, for one hundred b'ushels of rye delivered to the defendant; the defendant said he never got that much at once: he had got rye, but not that much at once: he got it at twice, to the best of his knowledge. On the second item being read, viz. “ Cash sent by Bob Waters, one hundred and sixty dollars, sixty pounds,” the mother said to the defendant, “ Jacob, you remember getting that,” and he said he did. When the next item, — “thirty-six bushels of oats, four pounds and ten shillings,” was read, the defendant did not deny that: he said nothing either for or against it. So with respect to the next item, — - “ fifty bushels of lime, two pounds and ten shillings.” As to the next item, — “ four thousand feet of pine boards, fifteen pounds,” he said he got boards, but not that many. When the last item, — . “ a wagon, two pounds and two shillings,” was read to him,, he said, “D — h the old wagon; I only bought it for the iron.” The witness said, she could not remember on what account the defendant claimed the two hundred and fourteen pounds, though bo had an account of the articles on which he claimed it. The plaintiff then showed a recovery against him by the defendant in August, 1814, by default for the sum of two hundred and thirty-six pounds, due on a single bill, with interest.</p> <p>The defendant gave in evidence the record of two judgments, recovered before a justice of the peace, on the 25th of September, 1797, by him against Edward Boyle; one for twelve pounds and nineteen shillings, and the other for twelve pounds and one shilling, and offered to prove, “ that John Wilson, the plaintiff, assumed to pay the amount of the said judgments to Jacob Eckert, the defendant, if Edward Boyle would agree to work for the said Wilson fifteen months; that the said Boyle did agree to work, and actually did work for the said Wilson fifteen months, in pursuance of the said agreement, and that the said Wilson assumed the payment of the said judgments to the said Eckert in consideration thereof.” To the admission of this testimony the plaintiff objected, and the court sustained the objection and overruled the evidence; and the defendant excepted. The defendant was. then examined, as to these judgments being laid before the arbitrators, (the ground of the objection being that they had been withheld from the arbitrators, before whom this case had been,) and the same evidence was again offered; but it was again rejected, and an exception taken. This was the first bill of exceptions.</p> <p>Second bill. The defendant then offered to prove, in addition to the testimony already given to the court by Jacob Eckert, by indifferent testimony, that parol testimony was given to the arbitrators, to prove that John Wilson assumed to pay Jacob Eckert, in the year 1797, the sum of twenty-five pounds, the amount of two judgments, which the said Eckert had recovered against Edward Boyle, before David Watson, Esq., provided Edward Boyle would work with him fifteen months. That Edward Boyle then being present with Wilson and Eckert, agreed to work with Wilson fifteen months, that he did so, and that Wilson assumed the payment of the twenty-five pounds.” The plaintiff objected to the admission of the said testimony, and the court overruled it; and the defendant excepted.</p> <p>Third bill. The defendant then offered to prove, that John Wilson assumed to pay Jacob Eckert, in the year 1797, the sum of twenty-five pounds, the amount of two judgments, which the said Eckert had recovered against Edward Boyle, before David Watson, Esq., provided Edward Boyle would work with him fifteen months. That Edward Boyle, then being present with Wilson and Eckert, agreed to work with Wilson fifteen months; that he did so, and that Wilson assumed the payment of the twenty-five pounds to Jacob Eckert in consideration thereof.</p> <p>Fourth bill. The counsel for the defendant then offered to prove, that in the fall of the year 1802, the plaintiff came to the house of Jacob Ecke?'t, the defendant, one evening on his way to Lancastér, and staid one night; that the .next morning the plaintiff, Mr. Wilson, asked the defendant for the loan of some money for a few days, and that the defendant gave Mr. Wilson, the plaintiff, twenty dollars, and he went away after he got the money. To the admission of which testimony, the counsel for the plaintiff objected, and the court, after argument, rejected the same.</p> <p>The court charged, among other things, as follows:</p> <p>“If the declarations made by Jacob Eckert, in the presence of Mary llingwalt, are testimony to charge him, they are also testimony in his favour. The whole must be taken together — therefore his declaration, that he had settled the accounts between Wilson and himself, according to the account which he had with him, and that there was a balance due him of two hundred and fourteen pounds, must be taken together with his alleged admission. It is evidence of his making the demand, and not that that sum was due. The account of Jacob Eckert, and the demand of the amount of it, can have no other operation in this cause, than as it may relate to the question of his acknowledgment of the debt, and to show that he meant to make no such acknowledgment, — of the effect of this you will judge. We have not the account before us; • we have no proof of its contents, nor do we know of what items it consisted.</p> <p>“ We cannot therefore instruct you, as we are requested by the defendant to instruct you, that, taking them together, and even supposing that none of the items of John Wilson's book account had been included by Jacob Eckert in his settlement, the amount of the plaintiff’s demand would be only twenty-seven pounds and twelve shillings, which would be ascertained by deducting the one hundred and twenty pounds, the amount of John Wilson’s single bill to Jacob Eckert, from the two hundred and fourteen pounds, and deducting the balance from the amount of John Wilson's book account.</p> <p>“Now, with respect to the acknowledgment said to be made by the defendant: what acknowledgment, when proved, shall take the case out of the statute of limitations, is a question of law for the court, — whether any, and what acknowledgments are made, is a question of fact for you to decide. The debt claimed in this case is barred, except so far as the debt has been taken out of the statute by such acknowledgments of the defendant, as are not inconsistent with a promise to pay. As the proof of the several articles of the account is founded on his acknowledgments, he is bound so far as he has made these acknowledgments, and no further. So far as the testimony goes to prove that acknowledgments have been made by the defendant not inconsistent with a promise to pay, it is a full answer to the plea of the statute of limitations, and he has no defence under it. And if the jury believe Mrs. Ringwalt’s testimony, the claim on the part of the plaintiff, so far as she has proved it, is supported and established.</p> <p>“ With respect to interest, it is the opinion of the court, that for So much of the debt as is established by the proof on the part of the plaintiff, interest is demandable from the time the original debt became due.”</p> <p>The defendant excepted to the charge of the court.</p> <p>The following errors were assigned:</p> <p>1. The court did not fully answer the second point submitted by the defendant, and so far as they have answered it, their answer is erroneous: they have also erred in charging the jury, “ that if they believed Mrs. Ringwalt’s testimony, the claim on the part of the plaintiff, so far as she has proved it, is supported and established.’7</p> <p>2. The court erred in charging the jury, “that the account of Jacob Eckert, and the demand of the amount of it, can have no other operation in this cause, than as it may relate to the question of his acknowledgment of the debt, and to show that he meant to make no such acknowledgment.” — “ It is evidence of his making the demand, and not that that sum was due ”</p> <p>3. The court erred in not answering the defendant’s first point fully in his favour, and in instructing the jury, that, “ with respect to interest, it is the opinion of the court, that so much of the debt as is established by the proof on the part of the plaintiff, interest is demandable from the time the original debt became due.”</p> <p>4. There is error in each of the defendant’s three first bills of exception.</p> <p>5. There is error in the defendant’s fom’tb bill of exceptions.</p>

IN ERROR. This was a writ of error to the Court of Common Picas of Lancaster county, in an ejectment brought by George Jenkins and Catharine his wife, defendants in error $nd plaintiffs below, against John Stoolfoos, Peter Eckert, Abraham Roger, and John Roger, defendants below and plaintiffs in error, in which a verdict was had in the court below in favour of the plaintiffs there, and judgment was rendered thereon.

IN ERROR. Writ of error to the Court of Common Pleas of Lancaster county.

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Common Pleas of Lancaster county, brought on a judgment rendered in this suit against the plaintiffs in error, Matthias Ranch and Henry Share, defendants below, in favour of the defendant in error, Christian Becker, the plaintiff below.</p> <p>It was an amicable action, and the agreement to enter it was signed by- both the defendants, stating that the suit was conditioned for the payment of ten hundred and sixty-six dollars and sixty-seven cents, with interest. At the instance of the plaintiff, a rule of arbitration was entered against both defendants, and arbitrators were afterwards appointed, and their day of meeting fixed. The record stated, that at the time appointed for choosing the arbitrators, Matthias Ranch appearing, he and the prothonotary agreed on the number of arbitrators, and the names of the arbitrators; and the prothonotary notified him of their time and place of meeting. The arbitrators met at the time and place appointed, November 15th, 1815, and awarded in favour of the plaintiff the sum of eleven hundred and one dollars, thirty-four cents and costs, and judgment was entered thereon. On the 19th of December, 1815, James Duffy became security for the amount of the award and costs.</p> <p>A scire facias was issued to revive the judgment to Jlpril Term, 1819, which was returned served as to Share, and non est inventus as to Ranch. An award of arbitrators was had in favour of the plaintiff, from which -Share appealed, and there was after-wards a trial, and a verdict and judgment were rendered in fa-vour of the plaintiff, and a bill of exceptions to evidence was taken by the defendants, and the proceedings removed, by writ of error, ■ to the Supreme Court. At May Term, 1822, errors were assigned' in this judgment on the scire facias, and it was reversed and a venire facias de novo awarded; but nothing was said by the court respecting the original judgment.</p> <p>moved to quash this writ of error, contending that when the scire facias judgment was reversed, the original judgment was virtually affirmed; and, having been once affirmed, it was now too late to assign errors upon it. He cited Hartop v. Holt, 1 Salk. 263. 1 Lord Raym. 97. S.C. 3 Johns. 557. He also moved to quash it on another ground, namely, that it was sued out contrary to good faith, to prove which he produced his own affidavit, and cited, 4 Yeates, 551. 1 Binn. 75. 6 Binn. 99.</p> <p>was relieved by the court as to the first ground. As to the affidavit of Mr. Hopkins, just now filed, affording new ground for quashing the writ, it is too late, after this writ of error has been a year depending. Besides, this is an attempt to open a wide door for a new system of law. There will be no end to applications to quash writs of error, on implied breaches of faith, where there has been no actual agreement not to bring a writ of error.</p> <p>The court desired the counsel to speak to the errors assigned, and they would consider the motion to quash, and the errors after the argument was over.</p> <p>Two errors had been assigned, but the only one now relied on was, that the rule of reference was served on Ranck alone, and he alone attended, and with the prothonotary chose arbitrator’s, and yet the award is against both as defendants, although it does not appear that Share attended the arbitration, nor did he attend.</p> <p>after stating that the plaintiff did not attend when the arbitrators were chosen, nor did Share, but the prothonotary and Ranck chose the arbitrators, contended that the cases ah’eady adjudged on the point now assigned for error were conclusive in favour of the plaintiffs in error. In Pedan’s Executors v. Cox, 3 Serg. & Rawle, 245, the plaintiff entered a rule of arbitration against two executors, defendants, and served it only on one, and obtained an award and judgment against both; the proceedings were held to be erroneous. In Studebacker v. Moore, 3 Binn. 124, — trespass against three defendants, — the plaintiff and one of the defendants entered into an agreement of arbitration, and an award was made against all three and judgment against them: the judgment was reversed. He also referred to Be-rentzy. Bishop, 5 Serg. & Rawle, 179. Marshall v. Lowry, 6 Serg. & Rawle, 281.</p> <p>averred the fact to be, that Share had notice, and that after the judgment he repeatedly applied for and obtained an indulgence of two years for payment from the plaintiff. He entered bail for stay of execution, and his bail was accepted by the plaintiff, from a belief that there was no danger, as Share himself was very good, and the debt well secured by a lien on his lands. The plaintiff has recovered the debt, and entered satisfaction on the record.</p> <p>But it is denied that there is any error in the record. There is nothing on the record to show that Share had no notice. Ranch appeared at the office of the prothonotary, and joined in the choice of arbitrators: it is to be presumed that Ranch acted as the agent of Share, as it does not appear'that Share was not served. The cases cited on the opposite side are different from the present. In Redan v. Cox and Berentz v. Bishop, it appeared that only one defendant was served. In Sudebacker v. Moore, the record showed that only two of the three defendants agreed to the arbitration. Besides, the defendant entered security for debt and costs, in order to stay the execution. After this he should not be permitted to deny that he was regularly served with notice. The act of the 21st of March, 1806, sect. 7. 4 Sm. L. 929, provides, that if the defendant is not a freeholder, he may obtain a stay of execution by entering security for the amount of debt, interest, and costs.</p> <p>If the court think there is error in the proceedings, I request that they would send the record back, in order to give the Court of Common Pleas an opportunity of amending the record, by inserting in it that notice was given to Share. This course was pursued in Benner v. Oberlander, 1 Binn. 366.</p> <p>alleged that it was for the benefit of the creditors of Share that we seek to reverse this judgment, and obtain restitution.</p> <p>It is contended that there is no error unless it appears on the record that Share had no notice. ■ But the law is just the .reverse: there is error unless it appears he had notice. The act of assembly requires that there shall be an affidavit of the service of notice. The very point has been decided 3 Serg, & Ratole, 3: arbitrators cannot be appointed ex parte, unless it appear on the record, that the absent party had notice. In 6 Serg. & Rawle 281, the same principle is taken for granted. But even if Share had notice, the prothonotary had no right to act both for the plaintiff and for Share, who was absent. The act does not provide for the case. Both defendants are considered as the party. It is objected that security was given for the debt and costs in order to obtain a stay of execution, and that this is virtually a release of error. The act of assembly places the defendant in the same situation as if he were a freeholder, provided he give security for debt and costs, by giving him a stay of execution, which a freeholder is entitled to without security.. There is no inconsistency between the obtaining of a stay of execution by giving security, and a writ of -error. There is nothing like a breach of good faith. Can this court annex a condition to this security which the law did not annex? Might not the defendant take out a writ of error without bail (which is no supersedeas) and then obtain stay of execution, by entering security for debts and costs? May he not pay the judgment; and then reverse it by writ of error? Besides it does not appear by this record, that security was given with Share's knowledge or consent. It only appears that Huffy became security for the defendants.</p> <p>The motion.to send the record back to the Court of Common Pleas, in order to amend it, is too late in point of time. This is the second time of its being in this court. It is ten years since the transaction which it is desired t£> amend, took place. Such a practice in this court will produce ruinous delays. The motion, moreover, is improper in itself. It is an amendment which has no foundation: there is nothing to amend by. The case cited from 1 Binn. 366, is not analogous: there there was something to amend by; the praecipe. But the amendment now suggested, depends on parol testimony, long after the prothonotary who made the entry, (Mr. Bausman,) is out of office. There will be no end to the confusion which the allowance of this motion will produce: records instead of certainty, will contain nothing but uncertainty.</p>

<p>IN ERROR.</p> <p>Tais writ of error was issued to the Court of Common Pleas of Lancaster county. The suit was an action of slander brought by John Yundt, the plaintiff in error, and plaintiff below, against Andrew Yundt, defendant in error, in which the plaintiff obtained a verdict for seven hundred dollars, but the court arrested the judgment.</p> <p>The fifth count of the declaration stated, that the defendant charged the plaintiff with the crime of forgery.</p> <p>now insisted that this form of declaring was good, and relied on the cases of Nye v. Otis, 8 Mass. 122, Nelson v. Dixie, Cas. Temp. Hard. 305, 1 Com. Dig. 196, G. No. 6, S. C. 1 Vent. 264, as in point. He also referred to 2 Rich. Pr. K. B. 171. 2 Morg. Prec. 202, 205. Kennedy V. Lowry, 1 Binn. 393. American Prec. 308, 309. 1 Morg. Vad. Mec. 146, 147.</p> <p>cited Ward v. Clark, 2 Johns. 10, where such a mode of declaring was held ill. 3 Bl. Com. 123. Selw» N. P. 1069. B. N P. 5.</p>

IN ERROR. This case came up by writ of error, from the Court of Common Pleas of Lebanon county, where a verdict and judgment were rendered in favour of the defendant in error, who was defendant below, and was argued by

IN ERROR. Weit of error to the Court of Common Pleas of Dauphin county. Ejectment, brought by John Paff, the defendant in error and plaintiff below, against Daniel Ereiden, terretenant, with notice to Jacob Zartman, to recover an undivided third part of a house and lot in Shafferstown.

IN ERROR. Debt in the Court of Common Pleas of Lebanon county, brought by the executors of John Stoever deceased, defendants ira error and plaintiffs below, against Samuel Light and Joseph Lights in which the record and bill of exceptions were brought up, by writ of error. The case was argued by cited Kachlin v. Mulhallen, 2 Fall. 237. 1 Bl. Rep. 394. Cowp. 56. 3 Binn. 169.

<p>One ejectment may be maintained against several defendants, holding under separate titles, who may defend under their respective titles.</p> <p>If the declaration in ejectment, in the old form, by several plaintiffs, set forth a joint demise, and in making out their title it appears, they are tenants in common, they cannot recover.</p>

This cause was tried at nisi prius, on the 15th of February, 1819, before the Chief Justice, and now came before the court on. a motion by the defendants for a new trial.

<p>Insurance on goods at and from Teneriffe to Sourabaya, and thence to Philadelphia, by a policy insuring, among other risks, against “ all unlawful, arrests, restraints, and detainments of all kings, princes,” &.c. and containing a warranty, by the insured, of neutrality. The ship being between sixty and one hundred miles from Sourabaya, was boarded by an officer of a British frigate, belonging to a squadron then blockading the island of Java, and warned not to enter any port in the island of Java or Madura. On the following day the vessel made another attempt to enter the port of Sourabaya, when site was chased off and again taken possession of by the same frigate, and, after a detention of three days, dismissed, with orders to depart immediately, and an assurance that if again found hovering on the coast, the ship would be captured and the crew impressed. She proceeded to the Isle of France, to refit, &c. and then returned to Philadelphia. Held, that if the word “unlawful’ had not been introduced into the policy, the blockade would have been a restraint of princes, &c., which would have entitled the insured to recover for a total loss.</p>

<p>[The subjoined opinion had not come into the hands of the Reporters, when the case in which it was delivered went to press.— See Ante, page 252.]</p>

<p>This was an action of ejectment brought to recover possession of a house and lot situate on the north side of Cedar street in the city of Philadelphia.</p> <p>On the 4th of Jlpril, 1818, Robert Mercer, a man who had acquired considerable property by his own industry, entered into partnership, in the auction business, with John Steel, who had received a commission of auctioneer from the governor of the state. Steel was without any capital and his credit was not good. By the articles of co-partnership, it was stipulated that Steel should within eighteen months pay oif all his private debts, and then bring into the firm, as much money as Mercer should have therein, over and above twenty thousand dollars; and that until Steel should make such advance, and if Mercer in the meantime, should put in for the use of the firm more than twenty thousand dollars, he should be allowed by the firm, legal interest for all over the said twenty thousand dollars, it being understood that Steel’s commission and knowledge of business were to be reckoned as equal to the interest of one half of said twenty thousand dollars.</p> <p>On the'27th of April, 1818, Mercer, executed a conveyance of all his real estate in the city of Philadelphia, including the premises in question in this suit, and estimated at from twenty thousand to twenty-five thousand dollars. Evidence was given to show that Mercer’s whole estate, at th#t time, was worth about forty-five thousand dollars. This deed of April, 27th, ISIS, was to Elizabeth Mercer, (the wife of Robert Mercer,) for the benefit of herself and children, reserving to Robert Mercer, a maintenance for his life. This deed was never acknowledged or recorded.</p> <p>■ Steel and Mercer carried on the auction business together, and Steel became largely indebted to the firm of Steel and Mercer, Mercer, alleging that he improperly and without Mercer’s knowledge, applied the funds of the firm to his private purposes. The firm also contracted debts with other persons. Early in the month of November, ISIS, Steel being very sick, Mercer declared to one of the witnesses, that if Mr. Steel should die at that time, he (Mer-cs')*) would be ruined.</p> <p>On the 28th November, ISIS, Mercer, conveyed to trustees for the benefit of his wife and children, the same property, which he had attempted to convey to his wife in April preceding. This deed was acknowledged on the 1st of December, 181S, and recorded the 25th of March, 1819.</p> <p>Steel and Mercer continued in business until the 13th of August, 1819, when they dissolved partnership, largely indebted to various persons. Several of the creditors obtained judgments against the firm of Steel and Mercer for the amount of their respective debts, and among others Messrs. Grants and Stone, whose judgment was dated September 24th, 1S19, founded on a debt incurred subsequently to the 25th of March, 1819. On this judgment a fieri facias issued returnable to December Term, 1819. Under this writ the whole of the property mentioned in the settlement of. the 28th November, 181S, was levied on and condemned; and on the Sth December 1821, it was sold by the sheriff to Edward Thomson, the plaintiff, who on the 26th of October, 1821, entered into an agreement with some of the judgment creditors of Steel and Mercer to purchase this property at sheriff’s sale in his own name, but for the common benefit of the parties to that agreement. Some of the debts of Steel and Mercer originated previously to the 28th November, 1818, the date of the settlement.</p> <p>On the 25th August, 1819, Mercer made a general assignment for the benefit of his creditors, and on the 19th November, 1825, Edward Thomson also made a general assignment for the use of his creditors.</p> <p>Under these circumstances, the defendant claimed under the settlement of the 28th November, ISIS.</p> <p>Binney and Chauncey, for tljé plantiff, contended that this settlement was void as against creditors, and argued — 1st, That every voluntary settlement, as against existing debts, is void; and if void as against such, and set aside, all subsequent debts are let in, and it is void as to them. And 2d, That voluntary settlements are void as against subsequent creditors in the following cases:</p> <p>1st. Where the party is so much indebted at the time as to raise a presumption of fraud; or ,</p> <p>2d. Where not being indebted, he makes the settlement with an intention to contract debts; or,</p> <p>3d. Where, from the whole transaction, it appears to be with intent to defraud creditors.</p> <p>These principles they applied to the settlement by Mercer on his wife and childern, and insisted that the burden of showing that the creditor was solvent, and did not intend to defraud, is upon those claiming under the settlement, when it is shown that the grantor was indebted at the time of the voluntary conveyance.</p> <p>for the defendant, maintained that the settlement was valid, and insisted,</p> <p>1st. That a voluntary settlement is good if the grantor be, at the time, in solvent circumstances, as Mercer without doubt was on the 28th of November, 1818.</p> <p>2d. That there was no fraud, because Mercer did not intend to contract debts largely, but was entering on a prosperous business, and had a right to set apart something for his family.</p> <p>3d. That if a voluntary conveyance be void, it is only so against creditors at the time, and not against subsequent ones, especially if the debt is contracted after the recording of the deed, which is notice to all the world. And,</p> <p>4th. That the plaintiff, claiming under a subsequent creditor, could not recover.</p> <p>The defendant’s counsel further contended, that the plaintiff could not recover, even if the conveyance of the 28th of November, 1818, were held fraudulent and void. 1st. Because, if the voluntary settlement was void, the property passed under Mercer’s general assignment for the benefit of his creditors: and, 2d. Because the plaintiff’s interest, (if he had any,) had passed to his assignees under the assignment of the 19th of November, 1825.</p> <p>The plaintiff’s counsel replied to the first of these objections, that the property did not pass to Mercer’s general assignees. — 1st. Because it was his clear intention not to pass it to them: and, 2d. Because he was not competent to pass it, the settlement being good against him, though void as against creditors: and, to the second, that the plaintiff’s assignment could not prevent the settlement of the question. 1st. Because he was still entitled to a verdict for damages and costs: and, 2d. Because the property did not pass to the assignees of Thomson, he being'a' mere trustee under the agreement of the 26th of October, 1821, for the benefit of the creditors; and the court could not construe his general assignment so as to make it a violation of his trust.</p> <p>Niter argument by counsel/ the following charge was delivered to the jury by</p>