Volume 13 — Pennsylvania State Reports

This action was brought for the recovery of the penalty of $50, for taking illegal fees, the defendant being an alderman of the county of Philadelphia. The following is a copy of the notice served on the defendant:. To John Apple, Esq., one of the Justices of the Peace of Philadelphia county.

<p>Error to the District Court of Philadelphia.</p> <p>This was an action for use and occupation of an office, brought by McCutcheon & Collins against the Baltimore and Philadelphia. Steam Boat Company, a corporation incorporated by the State of Maryland, to recover two quarters rent of an office, at the corner of Chesnut street and the wharf, on the Delaware, in the city of, Philadelphia, alledged to have been leased to them. A witness was produced on the part of the plaintiff, who testified, that the office of the Baltimore & Susquehanna Steam Boat Company was, on the wharf, a few doors ' above Chesnut street. A Groves, Jr., was the agent of the company at that time. W. L. Ashmead was the acting president at the time. That W. L. Ashmead rented the office at the corner of Chesnut street and the wharf, from McCutcheon & Collins, at $250 per annum, for the purpose of haying another office for the company, and of keeping an opposition company from getting it. W. L. Ashmead got the key first; we never had the key, until the year was up. I believe the year was from November 1844.</p>

<p>When A takes a lot Cf ground on ground rent, and afterwards makes a parol contract with B for the premises, on ground rent, and B is put into possession of the premises and performs his part of the contract with A; and afterwards A purchases the ground rent and sells the same again to 0, such purchase of the ground rent by A, does not enure to the benefit of B; it is not an extinguishment of the ground rent, nor does the same merge in the fee.</p> <p>In an action of covenant, by an assignee of the ground rent, claiming through prior assignments of the said rent, against A, who took up the lot on ground rent, instituted against A after a parol contract for the ground made by A with B, it is not necessary to notify B as terre tenant; and the sale of the premises, on execution on the judgment, in the said action, divests the title of B, as well as of A.</p> <p>To take a case out of the statute of frauds and perjuries, the parol contract of sale should not only be established by competent proof, but it should be clear, definite and unequivocal.</p>

<p>Since the act of 14 June, 1846. pi-escribing a particular remedy upon the official bonds given by sheriffs and their sureties, as well as before the passage of that act — suit may be maintained on the recognizance of a sheriff against him and his sureties, to recover, for misappropriation of the proceeds of a sheriff's sale of real estate.</p> <p>Where judgment is obtained against one, who was subsequently discharged as an insolvent debtor, but his assignees did not qualify by giving bond, before the issuing of a scire facias to revive the judgment, judgment of revival maybe entered against the debtor alone : and a sale of the land, by execution on such judgment-, passes the title, which existed, in the defendant, at the íendition of the original judgment.</p> <p>It is not necessary to notify, by scire facias, the assignees of an insolvent debtor, who do not qualify by giving bond, before the issuing of the scire facias to revive the lien of the judgment.</p> <p>After the lapse of 17 years, from the discharge of an insolvent debtor, a presumption may arise that his debts have been discharged, and the beneficial interest in his estate, may revest in the insolvent, by way of resulting use, and entitles him to the possession thereof, against the assignee.</p> <p>A sale by a trustee of an insolvent debtor of real estate, which is bound by a judgment, does not discharge the lien of such judgment.</p> <p>After the lapse of 17 years from the discharge of an insolvent, without his trustee having qualified, the appointment by the Court of another trustee in his stead, without exhibiting outstanding debts, requiring the interposition of a trustee, is illegal, and the trustee, so appointed, takes no estate in the property of the insolvent.</p> <p>It may admit of doubt whether a court has power to appoint a trustee of an insolvent debtor, not for the purpose of executing the trust, but in order to raise a party defendant, in a proposed action of partition.</p> <p>An irregularity, in the issuing of execution on a judgment, cannot be taken advantage of, collaterally.</p>

The Commonwealth of Pennsylvania vs. Thomas R. Williams and Jacob T. Williams, Executors, &c. of Mary Williams, dec’d. This case came up from the Nisi Prius.

This was an action brought by George Dodd against Henry Cope and others, co-partners under the firm of H. & A. Cope & Co. to recover eighty dollars, passage money, paid for his passage from Philadelphia to Liverpool, in their ship, the Thomas P. Cope.— The ship sailed on the 25th November, 1846, for Liverpool, and when out four days was struck by lightning and consumed. Dodd, the plaintiff, had some goods with him, a part of which were lost.

<p>One who purchased from a defendant in a judgment, real estate, which had been bound by the judgment, the lien of which had expired at the time of his purchase, and who was subsequently notified, by scire facias, to appear and take defence, but who did not, is not estopped thereby.</p> <p>A terre tenant is one who has purchased the estate, mediately or immediately from the debtor, while it was bound by the judgment.</p>

<p>Error to the Common Pleas of Delaware Qounty.</p> <p>Qase Stated. — Abel Thomas, Castle Griffith and Margaret, his wife, late Margaret Thomas, in right of said Margaret, and William Griffith and Mary his wife, late Mary Thomas, in right of said Mary, vs. Enoch Dowell and Hanna Gorman. — In the Court of Common Pleas of Delaware County. No. 2. Aug. term, 1844.</p> <p>It is agreed that a case be stated for the opinion of the Court, to be considered in' effect as a special verdict, in the following terms, to wit:</p> <p>This action was brought to recover a tract of Land, situate in Upper Providence Township, in the county of Delaware, containing about two hundred acres, being the same described in the writ and declaration.</p> <p>Of this tract, Thomas Jones became’ the fee-simple owner, on the Blst day of May, A. D. 1694, by virtue of a deed of bargain and sale made to him on that day, by David Meredith, and Mary his wife, and died seized thereof, in the month of October, A. D. 1727. (Prout said deed.)</p> <p>On the 13th day of September, A. D. 1727, the said Thomas Jones made his last will and testament in writing, which was proved before the register of Chester County, on the 17th day of October following.</p> <p>By this will, (copy annexed,) he devised as follows: “ I give and bequeath unto my son Peter Jones, all my real estate, and the residue of my personal property, to him, his hems and assigns forever ; he paying all my just debts and legacies herein above named, with my funeral expenses, and keeping and performing all the expressions herein before expressed.”</p> <p>Peter Jones being seized of the said’ tract, by virtue of said .devise, by his last will and testament,- dated the ninth day of the Tenth month, A. D. 1731, and proved*, on the twenty-fifth day of July following, before the register of Chester County, devised the same in the following words: “I give unto my child unborn, all my lands, tenements, hereditaments, if a son, to him, his heirs and assigns forever; and if a daughter, to her and her heirs forever. And whether it be a son or a daughter, to be brought up by the profits of my lands, till they come to the age of man or woman.” (Copy of will annexed.)</p> <p>Ann Jones, the only child of Peter Jones, was born on the first day of March, 1731-2, and intermarried with James Thomas, on the eighth day of December, A. D. 1756. Peter Thomas, the only issue of this marriage, was born on the thirteenth day of October, A. D. 1758, and on the decease of his parents, the said tract of land descended to him, under the intestate laws of the Commonwealth, and he died seized of the same, in the month of July, A. D. 1841, intestate, unmarried, and without issue.</p> <p>By the death of the said Peter Thomas, the lineal and collateral relations of the said Thomas Jones became extinct, so far as the parties hereto know.</p> <p>The said James Thomas, the husband of Ann Jones, was the son of William Thomas, who died leaving issue, besides the said .James Thomas, one son, viz., Amos Thomas, who deceased before .the said Peter Thomas, leaving issue three children, to wit, the said Abel Thomas, Margaret Griffith, and Mary Griffith, the plaintiffs in this action, and who are the next of kin of the said Peter Thomas the intestate.*</p> <p>The question for the opinion of the court is, whether the plaintiffs are entitled to recover the said tract of land. If the plaintiffs are entitled to recover, then judgment to be entered in their favor, for the same, with costs of suit. If the plaintiffs are not entitled to recover, then judgment to be entered for the defendants, with costs of suit.</p> <p>March 10, 1849. Judgment for plaintiffs upon the case stated.</p> <p>Errors asssigned.</p> <p>1. The Court of Common Pleas erred in entering judgment for plaintiffs on the case stated.</p> <p>2. The said court should have entered judgment for the defendants below on the case stated.</p> <p>3. General errors.</p>

<p>In an action to recover a sum of money paid for a promissory note, on which the indorsement was forged, brought by the purchaser of the same, against one, whose name was indorsed upon the note, and where the suit was brought upon a receipt, given by the defendant, acknowledging the receipt of the money, to recover which the action was brought; the maker of the note is a competent witness to contradict the receipt, and to shew that the money stated in the receipt was not in fact received by the defendant, but by the witness; and that the defendant had no interest in the transaction.</p> <p>It is also competent for defendant to shew that he was requested by plaintiff to sign said receipt, as he was a broker, in order, in the view of the parties, to make legal the loan of money, at a higher rate than the legal rate of discount; and not with the view of his being liable.</p>

<p>An order by a landlord on Ms tenant, in favor of a creditor of tbe landlord, to pay to the creditor the rent as it becomes due, which order is subsequently accepted by the tenant, creates a liability by the tenant in favor of the creditor, which can be enforced by action, in the name of the creditor. The liability of the tenant to the action in the name of the creditor, is grounded, not merely on the extinguishment of the liability of the tenant to the landlord, but mainly on the express promise, for which there was, in tMs case, sufficient consideration.</p>

■ This was an appeal from the judgment of a justice of the peace, in an action instituted by Freyman, against Frankenfield, to recover the price of a corn cutting machine, sold and delivered by the plaintiff, to the defendant, or so much as it was reasonably worth.

<p>Error to the District Court, Philadelphia.</p> <p>This was an action on the case brought by Jacob Bilger, the plaintiff below, against James Grier, defendant below, on a promissory note made by Grier, dated 25th January, 1842, for $209, and payable in four months to the order of John McMillan, and by him endorsed. A copy of the note was filed by plaintiff, and an affidavit of defence sworn to by McMillan was filed by Grier.</p> <p>The declaration contains five counts — one on the note, and four common counts, viz: one for work and labor, one for goods sold, &c., one for money paid, &c. and one for money had and received.</p> <p>Defendant pleads specially to the first count and non assumpsit as to the second, third and last.</p> <p>To these pleas plaintiff files separate replications. There is no rejoinder to the first replication. See copy of pleadings.</p> <p>The defence set up in the affidavit of defence and special plea was that the note was an accommodation note given to McMillan by Grier; that he, McMillan, was indebted to one George Metzer, -to whom he gave the note in part payment; that McMillan after-wards paid Metzer the full amount of the note, and that this payment was in full satisfaction and payment of the same; and that Belger, the plaintiff, knew thereof, acquiesced therein, and fully consented thereto.</p> <p>The case was submitted to arbitration after the pleadings above referred to. The arbitrators award in favor of plaintiffs. Exception was taken to the award — see 1st Specification of errors. The exception was overruled. Plaintiff filed a bill of costs for attendance of witnesses, &c. of $78, which was not sworn to nor taxed. This was exclusive of costs of references, $28. Dec. 28, 1848, fieri facias issued for $409 besides interest. Dec. 29,1848, writ of error.</p> <p>Various errors were assigned as to the pleadings, amongst which it was alledged:</p> <p>That the reference was of the matters in controversy in the case, and not of all matters in controversy between the parties. The submission was therefore premature and irregular, because the pleadings had not ascertained the matters in controversy, in the case.</p> <p>The rule of reference was entered before issue was taken on plaintiff’s replication to defendant’s special plea, said replication being bad.</p> <p>The award is bad: Because it does not determine on which count of the declaration the amount awarded was due; because it was not final, and that it decided more than is contained in the submission, &c. &c.</p>

This was an action brought originally before a justice of the peace, by Moses Reifsnyder, in his name alone, against Robert Gue. The case was referred, and the referees made an award, upon which judgment was entered, and from which the defendant appealed. A narr. was filed for money had and received, and defendant pleaded non assumpsit and payment.

This ease was an appeal by Thomas Gillespie, the defendant below, from the judgment of alderman McClain, in favor of the plaintiff below, Jeremiah H. Smith, for $50 42. Appeal filed May 12, 1848, to June term, 1848, May 18,1848. General affidavit of defence, filed under the rule of court. June 6, 1848: copy of plaintiff’s book of original entries filed. It set forth a charge against the defendant below for work and labor amounting to $50 92.

<p>Appeal of John Horton, defendant, from the decree of the Court of Common Pleas of Montgomery county, sitting in Equity, in the case of Sampson Tams and Jacob K. Olwine, plaintiffs vs. the said John Horton, defendant.</p> <p>Statement of facts:</p> <p>John Horton and Samson Tams, went into the iron business at the William Penn Furnace, in Montgomery county, on the 29th of Dec. 1847. By their articles of copartnership, Tams was to furnish the capital $10,000 — including therein, the lease of the furnace as part of said capital at a valuation of $3100. Horton who is an iron master, and the only one having a knowledge of the business of manufacturing iron, was to attend to the business at the Furnace, and keep the same under his personal supervision. Tams was to attend to the sales and to the financial affairs, and to furnish without charge the services of his son to keep the books. By a supplement to the articles, the capital to be furnished by Tams was to be whatever was necessary to carry on the business over and above an advance of $15 per ton, which was to be obtained from a commission merchant.</p> <p>The parties continued together in business until October 24, 1848, when Tams made a transfer on that date of the lease and all has interest in the partnership property to Jacob K. Olwine, one of the complainants in this case. This transfer was' by writing under seal.</p> <p>1% At or about the date of this transfer to Olwine, Tams became insolvent — and Horton having learned the existence of this transfer to Olwine, and Tam’s insolvency, he claimed that they operated as a dissolution of the firm, and went on to work up the stock of ore on hand — individually, and as remaining or solvent partner —and to appropriate the proceeds of the iron to the payment of the creditors of the firm.</p> <p>On the 6th of March, 1849, Tams and Olwine filed a bill in Equity against Horton, in Montgomery county — alledging among other things, that the transfer to Olwine was made with Horton’s knowledge, and was intended as a collateral security for advances, which it charged that Tams procured Olwine to make for the purpose of carrying on the business — that Olwine did make advances accordingly, in cash and acceptances to the amount of $6200; and charging that Horton had assumed the control and ownership of all the assets of the firm, and denied them all access to the books, and all control and management of the business of the furnace, and was carrying on business with the stock at the furnace in his own name, and for his own account.</p> <p>The prayer of the bill was for a general injunction, restraining Horton from all further interference in the administration of the assets of the firm — for the appointment of a receiver — and for general relief.</p> <p>Horton’s answer was filed on the 12th of March, 1849. It denied that Tams had furnished capital according to his agreement; that the transfer to Olwine was made with his knowledge, or that it was intended as a collateral security; and averred that it was a positive transfer, and that Olwine had attempted to assume the place of a partner on the strength of it. It also denied that any advances had been made by Olwine to the firm; declaring that there had been transactions of a private nature between Olwine and Tams, in which an unauthorized use had been made of the firm name, and averring the insolvency of Tams — stating that after such insolvency and transfer, and after Olwine’s attempt to exercise the power of a partner, the respondent had assumed the entire charge and control of the furnace and the stock then on hand there, consisting of iron and ore, with a view of working it up and converting it into money for the purpose of paying the proceeds to the creditors of the firm — and for no other purpose whatever — and that in execution of that purpose, he had realized at the time of the filing of the answer, out of the ore worked up, $6346 97 — out of which he had defrayed the expenses of keeping the' furnace in blast, and the wages of hands, and had appropriated all the balance, viz: $3247 51 to the payment of the firm creditors, excepting the sum of $248 03, which he had then in hand, according to the account annexed to his answer, and denying that he had appropriated or intended to appropriate any part of the assets, except in payment of the creditors of the firm —or that he was carrying on the business on his own account, or for any other purpose than to wind up the concern. He further denied preventing the complainant Tams from having full and free access to the books and accounts — and averred that he was always willing to allow him access to and inspection of the same.</p> <p>The came was heard on hill and ansiver, before the president Judge of said court, alone — and after the hearing the Judge made the decree upon which this appeal is taken. The injunction prayed for in the bill, and the appointment of a receiver were refused, and the judge awarded an injunction not frayed for in the hill, to wit: “to restrain John Horton from preventing Sampson Tams, the plaintiff, from exercising in future all the rights and duties declared in the articles of copartnership subsisting between the parties,” which injunction was accordingly issued and served.</p> <p>The appellant asssigns errors as follows:</p> <p>1. The Judge had no power to order the injunction.</p> <p>2. The Judge erred in not giving full credit to the answer, and in not refusing the injunction.</p> <p>8. The Judge erred in deciding that the assignment from Tams to Olwine did not dissolve the copartnership of John Horton & Co.</p> <p>4. The decree made by the Judge was not warranted by the prayer of the bill, nor by any of the previous proceedings in the cause.</p>

<p>To entitle a party to a mandamus, he must establish a specific legal right, as well as the want of a specific legal remedy.</p> <p>It is the duty of the County Commissioners to hear appeals from assessments, if the persons making them have given due notice of such appeal, and have complied with the provisions of the law.</p> <p>Under the 51st section of the act of 1st April, 1836, Purdon 1094, a freeholder may appeal to the court of common pleas, provided he presents his petition, within thirty days from the period prescribed by that section.</p>

<p>From the Nisi Prius, Philadelphia.</p> <p>This was an action tried before his honor Judge Ro&ers, at Nisi Prius, and was instituted by the commissioners of Kensington vs. the county of Philadelphia, to recover damages for the destruction of a Market House, in Kensington, during the riots in May, 1844. The case was tried in December, 1847, and the jury found in favor of the plaintiffs.</p> <p>The errors assigned which were argued were:</p> <p>1. That the court erred in instructing the jury that the plaintiffs, a municipal corporation, were within the protection of the act of the 81st May, 1841, and entitled to bring suit against the county for damages in consequence of a mob or riot.</p> <p>2. The court erred in instructing the jury that although the plaintiffs had power by law and them ordinances, to establish a police force to prevent and suppress the riot in question, but failed to exercise that power, and did not establish such a police force, they were not, by reason of that failure, prevented from recovering in this suit.</p> <p>3. The court erred in instructing the jury that the failure of the plaintiffs to organize their police force on the 6th or 7th of May, 1844, was not illegal conduct within the meaning of the act which would prevent a recovery.</p> <p>The case turned mainly on the 7th and 8th sections of the act of assembly of 81st May, 1841, (Acts of 1841, p. 418,) which are as follows:</p> <p>“ Sec. 7. In all cases where any dwelling house or other building or property real or personal, has been or shall be destroyed, within the county of Philadelphia, in consequence of any mob or riot, it shall be lawful for the person or persons interested in, and owning such property, to bring suit against the said county where such property was situated, and being for the recovery of such damages as he or they sustained by the reason of the destruction thereof, and the amount which shall be recovered in said action, shall be paid out of the county treasury, on warrants drawn by the commissioners thereof, who are hereby required to draw the same, as soon as said damages are finally fixed and ascertained.</p> <p>“ Sec. 8. No person or persons shall be entitled to the benefits of this act, if it shall appear that the destruction of his or their property was caused by his or their illegal or improper conduct, nor unless it be made to appear that he or they, upon the knowledge had of the intention or attempt to destroy his or their property, or to collect a mob for such purpose, and sufficient time intervening, gave notice thereof to a constable, alderman, or justice of the peace, of the ward, borough, or township, in which, such property may be situated, or to the sheriff of the said county, and it shall be the duty of the said sheriff, alderman, constable, or justice, upon the receipt of such notice, to take all legal means to protect said property so attacked, or threatened to be attacked, and if the sheriff, alderman, constable, or justice of the peace, upon the receipt of such notice, or upon knowledge of such attack or intended riot, or disturbance, shall neglect or refuse to perform his duties in the premises, he or they, so neglecting or refusing, shall be liable for the damages done to such property, to be recovered by an action on the case in the court of common pleas of the proper county, and shall be deemed guilty of a misdemeanor in office, and on conviction thereof by the proper court, his commission shall be void.”</p>

<p>Where a testator devised two tracts of land to different persons, but the devisee of the second tract elected to take the first, and more valuable, by a paramount title, the devisee of the first tract may recover in ejectment the second tract. — - Though where the land elected is of inferior value to the land rejected, compensation may be the rule in equity, which compensation our Orphan’s Court, under the acts of 29th March, 1832, and of 16th June, 1836, may enforce by sequestration, or other process; yet where the value of the land rejected is inferior to the land taken, the land rejected is forfeited by the act of election and may be recovered in ejectment.</p>

In the matter of the estate of Sylvia Leland, deceased; appeal from the Orphan’s Court of Delaware county. This was an appeal from the decree of the orphan’s court of Delaware county, refusing to order a performance of a parol contract, entered into by husband and wife, for the sale of the property of the wife.

<p>Error to the court of Common. Pleas of Schuylkill county.</p> <p>Statement of the plaintiff. — The plaintiff, William Lerch, obtained a judgment against John Bllwood, for $34 75, on the second day of June, in the year 1843, before George Heisler, a justice of the peace of Schuylkill county. An execution was immediately issued and levied upon personal property of the defendant, sufficient to satisfy it. After the levy was made, on the same day, George PI. Stichter, the present defendant, entered into a recognizance of bail for a stay of execution, according to the provisions of the 33d section of the act to abolish imprisonment for debt, passed July 12, 1842, and the execution was superseded. Before the stay of execution expired, all the property owned by John Ellwood, at the date of the recognizance, (and of greater value than the amount of this judgment) was sold by the sheriff of Schuylkill county, under executions issued after the date of the recognizance. When the stay expired the plaintiff issued an execution on his judgment, which was returned Nulla Bona.</p> <p>A scire facias was issued on the recognizance of bail by the justice of the peace, before whom it was taken, and judgment rendered by him against the defendant, George H. Stichter, who appealed to the court of common pleas of Schuylkill county.</p> <p>Upon the trial in the common jileas, the facts above stated having been jiroved and admitted, Kidder, President, charged the jury that the plaintiff having shewn no breach of the condition of the recognizance, could not recover. The plaintiff excepted to the charge of the court, and issued a writ of error.</p> <p>Error assigned:</p> <p>The court erred in charging the jury that the plaintiff could not recover.</p> <p>XXXIII Sec. of the act of July 12, 1842, entitled an act to abolish imprisonment for debt — Pamp. L. 339:</p> <p>“A defendant against whose body, by the provisions of this act, an execution cannot be issued by an alderman or justice of the peace, shall be required, in order to obtain an appeal, stay of execution, or adjournment, to give a bond or recognizance in the nature of special bail, conditioned that no part of the property of the defendant which is liable to be taken in execution, shall be removed, secreted, assigned, or in any way disposed of, except for the necessary support of himself and family, until after the plaintiff’s demand shall be satisfied, or until the expiration of ten days after such plaintiff shall be entitled to have an execution issued on the judgment obtained in such cause, if he shall obtain judgment ; and if the condition of such bond or recognizance be broken, and an execution on such judgment be returned unsatisfied in whole or in part, the plaintiff in an action on such bond or recognizance, shall be entitled to recover the value of the property so removed, secreted, or assigned.” — Dunlop Dig. 868.</p>

This was an action of covenant, brought by Joseph Stilwell vs. Robert McAdams, on an indenture of apprenticeship made by Joseph Stilwell, then a minor, by the consent and advice of his father, Samuel Stilwell, and _ which was signed by Joseph Stilwell, Samuel Stilwell, and Robert McAdams, and witnessed by Jacob E. Lukens.

<p>Error, to the District Court, Philadelphia.</p> <p>Catharine Mary Moore, who survived Jane Moore, vs. William J. Shultz, administrator, &c., of Susan Shultz, terre tenant. Scii;e Facias on a mortgage.</p> <p>This was a scire facias on a mortgage, executed by Robert E. Shultz to Catharine M. Moore and Jane Moore, to secure payment of his bond for $500, in one year, with interest. Defence was taken.</p> <p>The only question was whether the sale, by order of the Orphans’ Court, hereafter referred to, discharged the property from the lien of the mortgage upon it.</p>

<p>This was an action by the Commissioners and inhabitants of the Incorporated district of the Northern Liberties vs. the Rector, wardens and vestrymen of St. John’s Episcopal Church, of the county of Philadelphia, State of Pennsylvania, owners or reputed owners, or whoever may be owners, with notice to terre tenants.</p> <p>It was an action to recover from the defendants the amount of a claim, amounting in all to $1814 28, nearly one-third of which was a charge for the laying of pipes, for the conduit of the Schuylkill water, along the fronts of the defendants’ property, a church.</p> <p>The court below gave judgment in favor of the defendants below.</p>

<p>A legatee under a will, who is also the executor, is a competent witness to prove the execution of the will, he having first renounced and transferred all right, title and interest, in the will or legacy.</p> <p>A contract of guaranty is not to he inferred from the words, “for valuable consideration,” in such transfer.</p>

<p>Error from tbe Common Pleas of Philadelphia.</p> <p>April 3 — scire facias on a municipal claim for water pipes, for $41 20, with interest from October 29, 1829, when the work was done. The claim was filed September, 29, 1845, and the scire facias issued on the 8th October, 1845. George Scott, the terre tenant, appeared and took defence. In 1838 the premises were sold by the sheriff, (under a subsequent judgment,) for $4050, subject to a mortgage thereon for $3000, dated June 10,1834, which mortgage was paid off by the terre tenant on the 19th December, 1840. On the trial of the cause, Kelley, J. charged the jury that “the sheriff’s sale, subject to the mortgage, discharged the land in the hands of the purchaser, from the district lienwhich was here assigned for error.</p>

Error from the Common Pleas of Philadelphia. April 3 — Scire facias on a municipal claim for $93,40, with interest from 1829, for curbing and paving in front of a lot of ground described as “ containing 47 feet in front.” On the trial before Kelly, J., the plaintiffs gave in evidence the claim filed, the admission of which constituted the first bill of exceptions.

<p>In the case of land taken at a valuation, under proceedings in the Orphans’ Court, the thirds left in the land, for the use of the widow of the intestate, as whose estate it was appraised, will not be divested by a sale, under order of Orphans’ Court, as the property of the party who took the same at the appraised value.</p> <p>An Orphans’ Court sale is a jtididal sale, and the principle of caveat emplor applies to the purchaser.</p> <p>The declarations of the crier, when selling lands under an order of Orphans’ Court, are not to be admitted in evidence to contradict the conditions of sale which had been publicly read.</p> <p>If a purchaser be misled by the declarations of the crier, he may apply to the court to set aside the sale.</p> <p>Declarations of an administrator made years after a sale by him, under an order of Orphans’ Court, and after deed made and accepted, are not admissible to contradict the conditions of sale and return; and the understanding of persons present at the sale, attempted to be proved, years after the sale, is not admissible for the same purpose.</p>

This was an appeal from the decree of the court of Common Pleas of Bucles county, distributing monies arising' from the sale of certain stone coal which had been the property of James Perry, a citizen of the State of New Jersey. The money was in court on foreign attachment at the suit of Eldridge Vansyckel vs. James Perry, to April term, 1848, in common pleas of Bucks county.

This was a scire facias issued from the District Court, Philadelphia, in favor of James Woodruff and Samuel Prahl, co-partners, under the firm of Woodruff & Prahl, vs. Andrew R. Chambers, owner, &c. and Henry C. Burtman and George and Hanna, contractors. Scire facias sur. — Apportioned Mechanics’ claim.

<p>Error to the Common Pleas of Philadelphia county.</p> <p>An information in the nature of a quo warranto was filed in the court below on the 19th of May, 1849, by John W. Claghorn and others, to show cause why Peter Cullen and others claimed to enjoy the franchises, &c. of The Equitable Life Insurance Company of Philadelphia. It set forth that a charter was granted in May, 1848, which provided that the corporate powers of the company should be exercised by a board of trustees to consist of six persons, and a secretary to be elected on the second Monday in December, anually, or within forty days thereafter. Until the first election the board of trustees ivas to consist of the seventeen persons named as commissioners to receive subscriptions, and that thereupon the company went into operation, and Claghorn was elected President; that on the 18th of January, 1849, within the forty days after the first election should have been held, a supplement to the charter was passed, which provided that the board of trustees should thereafter consist of seventeen persons and secretary to be elected by the stockholders in the manner prescribed by the charter, and that the board as it consisted on the 1st of January immediately preceding, should be continued in office until the next annual election thereafter; that while the company were in-operation under these two acts, the passage of another supplement was by some persons obtained on the 9th of April, 1849, which declared that the board of trustees should thereafter consist of seventeen persons to be elected in May, annually, the first election to. be held in May, 1849, and repealed the supplement of January; that the act last mentioned had been obtained without the assent of the board of trustees or of the company, and that although certain of the stockholders might have assented to it, such assent had not been given by the trustees nor by the company in meeting duly convened, and that said act was in no way binding; that nevertheless Peter Cullen, vice president of the company, called a general meeting of stockholders, to elect seventeen trustees on the 7th of May; that the board of trustees before the day of election so named, passed resolutions refusing to accept the last supplement declaring the call for the meeting unauthorized, and appointing a committee to attend at the meeting of stockholders, to protest against any proceedings under that call ; that the said Cullen, with others, still persisted in convening the meeting of stockholders at which the defendants were elected trustees, and the parties so elected thereupon ejected the old board of trustees, and usurped the franchises of the company.</p> <p>The answer, after admitting the incorporation of the company and its going into operation, set forth that certain of the defendants who were of the number of commissioners and therefore of the first board of trustees, were not informed by the other members of the board of the intended passage of the supplement of January, 1849, in manner and form as set forth, yet that it was produced by Mr. Claghorn at a meeting of the board on the 24th of January, 1849: and that although no acceptance thereof was ever made either by the board or the stockholders, that the trustees continued to hold their offices under it; that while thus in office the supplement of April was passed, which was not only done with the knowledge of a large number of the trustees, but that the majority in value of the stockholders signed an acceptance of it and held an election in pursuance of its provisions.— The answer set forth at length the proceedings of this election. To this relators demurred.</p> <p>The Court below decided that there had been no such acceptance of either supplement as to render it binding on the corporation, and made the following decree:</p> <p>This cause came on to be heard at the June term, and was argued by counsel; and thereupon, upon consideration thereof, the court do order, decree and adjudge as follows, this twenty-ninth day of September, A. D. 1849, to wit:</p> <p>That judgment of ouster be entered against the defendants, and forasmuch as in the opinion of the court, the relators are not entitled to possess and enjoy the offices and franchises of the said “Equitable Life Insurance Company,” the court do order an election to be held for trustees of said company at a general meeting of the stockholders convened for that purpose by ten days public notice in two or more of the daily papers of the city of Philadelphia, on Thursday the eleventh day of October, A. L. 1849, between the hours of ten A. M. and two P. M., and the court do appoint Frederick Fraley, Charles F. Lex, and William Gr. Alexander, Esquires, trustees to take charge of said corporation until others shall be elected in their stead, pursuant to the laws of this commonwealth, regulating said corporation, and this order of court; and the court do direct that the trustees appointed as aforesaid by this decree, shall give the public notice aforesaid, and shall be the judges at said election and receive the votes of the said stockholders duly qualified to vote, and shall make return to the court on Saturday, October 13, 1849, of the proceedings to be had by virtue of this decree.</p> <p>The relators objected to this decree being entered on the ground that the argument had been directed to the validity of the April supplement, and not to that of January. An argument was then ordered by the court as to the efficacy of the January supplement, and in the meantime no decree was entered. After this argument the decree was entered as above.</p> <p>The relators took out a writ of error of which they notified the three trustees appointed by the corn't, and warned them not to proceed with the election. The court below, under the 15th section of the act of 13th June, 1836, (Pur. 990, quo ivarranto,) then made a decree awarding execution of their former decree, notwithstanding the writ of error. The election was held and six of the defendants elected trustees. These proceedings the court confirmed and authorized the delivery of the property of the corporation by the three trustees appointed by the court, to the trustees thus elected.</p> <p>The relators assigned for error :</p> <p>1. “ That the court below erred in deciding that the relators were not entitled to possess and enjoy the offices and franchises of the Equitable Life Insurance Company.</p> <p>2. That said court erred in ordering that an election for trustees of said company be held on October 11,1849, and in appointing Frederick Fraley, and others, trustees to take charge of the corporation in the interim.”</p>

<p>Though the terms of á sale be cask, a subsequent delivery, without payment, passes the property to the vendee, not only as against all the rest of mankind, but against the vendor himself.</p> <p>In such a case, the only remedy against the vendor is an action on the contract to recover the price.</p> <p>If, on a sale for cash, the vendee takes away the goods without payment, the vendor should immediately retake them, and may do so, when necessary, even by force. By lying by and making no complaint in a reasonable time, he consents to the absolute transfer of the property, and it is consequently complete against all the world.</p> <p>A joint trespasser, if called by the opposite party, may testify against himself; therefore, a constable who made the levy, which is complained of, under an execution, may be a witness, if called on the part of the plaintiff, in the action.</p>

This was an action of trover brought by C. P. Bayard against Thomas Biddle & Co. Judgment below was rendered on the following special verdict: “And now, May 23d, A. D., 1848, a jury being called, find the following special verdict: “ That the plaintiff was the owner of a certificate issued by the Auditor General, No. 229, (prout certified copy thereof,) and casually lost the same on or before the 12th day of September, A. D. 1843.

<p>Where a testator devised real estate to his wife during her life or widowhood, and at her decease or marriage, the estate to descend to and bo enjoyed by Ms children, and their heirs and assigns forever, to have and to hold share and share alike as tenants in common. And in case of the death of either of the said children, Ms or her share or purpart to descend to the children of said child, or if said child shorild die without issue born alive, then the said share to be divided among and be enjoyed by the surviving children, their heirs and assigns forever, share and share alike, as tenants in common.</p> <p>The wife died during the life of the testator.</p> <p>Held, that each of the children on the death of the testator, took an indefeasible estate, in fee simple, under said will. That by the clause, “ in case of the death of either of my said children,” the testator did not mean “ death generally or whenever it might happen;” but that he meant, (his wife having died during his life time,) that the fee should vest absolutely, cm, Ids death, and that it was not defeasible throughout the entire life of the children.</p>

<p>Where the maker of a note, who put it into the hands of a broker, for sale or for advance, is sued by one who had advanced money upon it, he cannot set off a claim alleged to be due to the broker, by the holder, who advanced upon it.</p>

<p>When a fi. fa. is put into the hands of the sheriff, unless he proceeds to levy and sell before the return day of the writ, he is prima facie liable for the amount ikg ¿[ebt, jf tRe property levied on is equal in value to the debt endorsed on the execution, unless he shows sufficient cause why he omitted to perform the duties enjoined by the writ.</p> <p>If a fi. fa. be placed in the sheriff’s hands, without the bona fide intention of selling; or if, when such is the case, if the plaintiff, after a levy made upon the writ, enter into negotiation with the defendants, by which the proceedings are interrupted and the debt lost, the sheriff and his sureties are not liable.</p> <p>It is not necessary to continue the lien of the execution, that the personal property levied on should be taken into actual possession. It is sufficient if it be forthcoming to answer the exigencies of the writ.</p> <p>In a suit on the official bond of the sheriff, where the question at issue is the negligence of the deputy of the sheriff, the deputy himself is not a competent witness for the defendant unless he be released.</p>

<p>Where the dividend committee of a corporation embraced within the terms of the act of 11th June, 1840, (which provides that all such companies shall, “from and after the first day of January next," &c., pay a certain tax upon their “capital stock paid in,”) did, on 31st December, 1840, declare a dividend on the business of the last six months, to be paid to the stockholders on the 4th of January, then next, which declaration of dividend was confirmed by the directors on the 4th of January 1841, and paid to the stockholders on or after the 14th of January, 1841, such dividend is not taxable under the said act of 11th June, 1840.</p>

<p>Error to the District Court of the city and county of Philadelphia.</p> <p>John C. Senderling, one of the defendants, contracted with the other defendant, George W. Farr, and a person of the name of Ward, owners of adjoining lots, to build for them two contiguous houses, one on each lot.</p> <p>The buildings were commenced and carried on together, and Senderling, the contractor, bought lumber of the plaintiffs, Samuel H. Davis and Theophilus Fitter, partners, for the two buildings indiscriminately. Upon his becoming in arrear with the plaintiffs, they divided their bill against the two buildings, and filed a separate lien against each building. By a note at the foot of their account, they apportioned their claim between the two buildings, pro rata.</p> <p>The lien was filed July 1st, 1847.</p> <p>A scire facias was issued to March term, 1848.</p> <p>On the 25th March, Farr, defendant, filed an affidavit of defence, setting forth in substance:</p> <p>1. That the lumber for which the claim was filed on which the scire facias issued, was contracted for and furnished with other lumber indiscriminately for the building of deponent and another building belonging to George W. Ward; aud that no part of said lumber was delivered on the credit of deponent’s said building specifically.</p> <p>2. That the claim being against, and the lumber furnished jointly and indiscriminately for two houses, belonging to different persons, the said claim could not be maintained in law.</p> <p>3. Some partial payments, and a set off.</p> <p>On the 15th April, 1848, defendant’s counsel obtained a rule to shew cause why the scire facias should not be set aside, and the claim stricken from the record; which was made absolute by the court below, May 6th, 1848, on the ground that where materials are furnished, jointly and indiscriminately, for the use of two buildings, owned by different parties, though the contractor be the same, as in this case, no lien can be enforced.</p> <p>The error assigned is, that the court below erred in setting aside the scire facies, and striking the lien from the record.</p>

<p>The decree of an Orphans’ Court ordering a person to file his account as trustee under a will, is interlocutory, and not final, and no appeal lies therefrom.</p>

<p>The holder of a note payable in specific goods, and therefore not strictly negotiable, may bring suit in Ms own name against a payee who has endorsed itpay the bearer,” and transferred it.</p> <p>The action in such a ease may be sustained upon the indebitatus assumpsit counts, as well as upon a count under the special circumstances.</p> <p>Where a defendant who has appealed to the court of Common Pleas from an alderman, or justice of the peace, allows the judgment against Mm to be affirmed there without trial under a rule of coixx’t for default of appearance, when his cause, which had been propex’ly set down on the tx’ial list is called, he cannot, on a writ of ex-rox", object that the action had been misconceived; but the plaintiff will be considered as having obtained all the benefit which he coxild have claimed under the act of 1810, curing defects in form and substance on appeals from justices of the peace, if the question had been raised in the appellate court below.</p> <p>A judgment under the circumstances stated, in pursuance of the preceding rule of court, merely affirms the judgment of the magistrate. It is not rendered upon the pleadings in the case, and no defect in them can be objected, upon a writ of error.</p>

<p>A check payable to A B or bearer, is not evidence of money lent and advanced to A B, by the drawer of the check.</p>

Ekror to the Common Pleas of Hueles county. There were two suits, one by Ford vs. Keen, the other Keen vs. Ford. The parties agreed that the two cases be referred to three persons, the award of whom, or any two of whom, to be final and conclusive, under the 6th section of the act of 16th June, 1836, relating to reference and arbitration. This agreement was filed of record.

<p>"Writ of error to the District Court at Philadelphia.</p> <p>Gable & Hughes, plaintiffs in error, (who were also plaintiffs below) vs. Parry & Randolph, owners, and Ewing, contractor, defendants in error, and defendants below.</p> <p>This was a scire facias sur. Mechanics’ claim issued from the District Court for the city and county of Philadelphia, to recover $221, the amount of a claim for plumbers’ work done by plaintiffs to a dwelling house owned by Parry & Randolph, and erected by Ewing as contractor.</p> <p>Several pleas were filed; but the only material ones to this question, are:</p> <p>1. That plaintiffs never did the work nor furnished the materials in manner and form as alledged.</p> <p>2. Payment.</p> <p>6. That plaintiffs did not do the work and furnish the materials on the credit of the building, but on the credit of the said Jacob O. Ewing.</p> <p>T. That plaintiffs performed the work and furnished the materials for the said Jacob O. Ewing, on his responsibility, and under an agreement with him that the amount should be credited on a bond of the said Hughes of $2224.</p> <p>8. Set-off.</p> <p>At the trial of the cause the plaintiffs made out their claim, and the defendant Ewing offered evidence to establish a set off against Gable & Hughes, for goods sold and delivered by him to them, to the amount of $311. The plaintiffs objected to this evidence, but the objection was overruled.</p> <p>The defendant Ewing having made out his said claim, the plaintiffs offered to establish a claim on their part, (in addition to that covered by the lien,) against Ewing for goods sold to and work done for him by them to an amount exceeding the $311. This offer was overruled.</p> <p>The learned judge was requested by plaintiffs to instruct the jury that the evidence as to the $311 should be disregarded, and that there could be no set off in this form of proceeding; but his honor instructed the jury that if they found the demand of Ewing to be otherwise made out, it could be set off in this proceeding.</p> <p>A verdict was rendered and judgment entered for defendants.</p> <p>To these three points the learned judge sealed bills of exception, and these two decisions and the above charge are now assigned for error.</p> <p>Points:</p> <p>Is evidence of set off, arising out of a totally distinct transaction, admissible in a proceeding of seire facias sur. Mechanics’ claims, to reduce or absorb the plaintiff’s demand ? Plaintiff contends that it is not.</p> <p>If it be receivable, may not the plaintiff show that he has a counter-claim sufficient in amount to balance the demand offered to be set off? Plaintiff contends for the affirmative of this proposition.</p>

From the Nisi Prius. This was an action of trespass against the sheriff and his deputy for taking and selling a quantity of railroad iron and fittings belonging to the plaintiff, under an execution against the Norris-town and Yalley Railroad Company, at the suit of James McFarland. The pleadings were in the usual form. The case was tried at Nisi Prius, before his Honor, Judge Coulter, January 23d, 1848.

<p>Where the copy of tlio bill annexed to a mechanic’s claim, sets forth an impossible date, it is no bar to a recovery, on proof of the real date of furnishing the materials.</p>

<p>Appeal from the final decree of the Orphans’ Court of Philadelphia, confirming the accounts of Matthew 1. Bevan, executor of the will of Greorge Ludlam, deceased.</p> <p>The testator devised to his nephew, James Ludlam, of London, a one thousand dollars of the United States six per cent, stock or loan of the year 1812, standing in my name on the books of the Loan Office, Pennsylvania, as per certificate, No. 269.”</p> <p>The executor filed in the Register’s Office two accounts, in each of which he charged himself with the said stock.</p> <p>After the second account was filed, the executor of the testator wrote to the executrix of the legatee in England, enclosing a copy of his account, as executor, for the information of the heirs of the legatee, and declaring his readiness to pay the amount to which they are entitled, upon receiving the proper legal authority to discharge him from responsibility.</p> <p>The account was afterwards re-committed to an auditor, before whom it had been before.</p> <p>It .appeared that the government loan, bequeathed to James Ludlam, had been paid to the testator, Greorge Ludlam.</p> <p>The auditor, in Ms report, states that Mr. Bevan, the executor, had been under the belief, that the legacies of government loan were not adeemed, and that he considered himself liable therefor to the legatees, but that he consulted counsel, and was advised to the contrary.</p> <p>One question before the auditor was, whether the executor was so committed by his acts and accounts, as not to be in a situation to repair Ms error ? The auditor decided that he was not concluded from alledging that the legacies of government loan were adeemed, by payment during the testator’s life time; and that Ms legacy was specific, and was extinguished by payment of the loans during the life of the testator.</p> <p>This report was excepted to; but the report of the auditor, in tMs respect, was confirmed by the Orphans’ Court.</p>

<p>Certiorari to the Quarter Sessions of Philadelphia city and county.</p> <p>This was a proceeding in rem. on the complaint of two citizens of the county of Philadelphia, against the Northern Liberty Hose Company, for rioting and fighting, under the provisions of the first section of the act of the 7th March, 1848 ; Pamph. Laws 110.</p> <p>The court below sustained the complaint, and gave a decision which, together with all the other essential facts, is fully set forth in the opinion of the court'above.</p> <p>Defendant’s counsel assigned for errors:</p> <p>1. That the complaint was insufficient in stating the complaint in the alternative, and without sufficient particularity.</p> <p>2. That two judges had no jurisdiction, and the order not being made by a majority of the court, was improper and irregular.</p> <p>8. That the sentence exceeded that allowed by law.</p> <p>4. The finding and decree differ from and are not supported by the complaint.</p> <p>5. The proceedings arc unconstitutional in depriving the party of its property without a trial by jury.</p> <p>6. The general errors.</p>

<p>Error to the District Court Philadelphia.</p> <p>This was an action of assumpsit brought by Pennell and others against Percival, administrator of the estate of Edward W. Robinson, deceased.</p> <p>It was brought to recover a sum of money due to the plaintiffs for certain cast iron pipes, furnished to and used in the repair of a furnace near Middletown, Dauphin Co., Pa., in 1840, which they alledged was carried on by the defendant’s intestate, in partnership with the other persons named on the record.</p> <p>The declaration contains the common counts, including a count for merchandize sold and delivered, and also averments of the deaths of Michael Kinsman and Daniel Cohick, and of the discharge of Israel Kinsman, as a bankrupt, under the act of Congress of 19th August, 1841. “Defendant pleads non-assumpsit and payment with leave, &c.</p> <p>1. The first question arises on the following extract from the record, by which it will appear that the court ordered thirteen jurors to be sworn in the cause.</p> <p>“ October 5, 1847.</p> <p>“ A jury being called, came, to wit: — Edward Wheelan, James McCafferty, George Yerkes, Cornelius Baker, Benjamin Wiley, David Tobias, James McGill, William Gwin, Henry A. Hoff, Paul Pohl, Nicholas Wentzell and R. B. Martin, who being duly empannelled, sworn or affirmed according to law, the court direct a nonsuit under the seventh section of the act of eleventh of March, eighteen hundred and thirty-six, James McCafferty being absent, and not appearing in time, John Conlin was called and sworn in his stead, by order of court.”</p> <p>. 2. The second question arises on the following certificate of Israel Kinsman’s discharge as a bankrupt, which was objected to by the defendant, as not properly certified, and was rejected by the court; to which decision of the court the plaintiffs excepted.</p> <p>“ The President of the United States of America,</p> <p>To all to whom, these presents shall come, Gh'eeting:</p> <p>[l. s.] Know ye, that we, having inspected the records and files of the District Court of the United States for the Southern District of New York, do find a certain paper writing there remaining of record, said writing being the certificate of discharge of Israel Kinsman, a bankrupt, and is in words and figures following, to wit:</p> <p>Filed this sixteenth day of February, 1843.</p> <p>1st Bankruptcy. — At a District Court of the United States of America, held for the Southern District of New York, at the City Hall of the city of New York, on Thursday, the sixteenth day of November, in the year one thousand eight hundred and forty-three: Present: Samuel R. Betts, District Judge.</p> <p> In the matter of Israel Kinsman, a Bankrupt: </p> <p>Israel Kinsman, of the city of New York, merchant, a bankrupt, having filed a petition praying to be discharged in full from all his debts, and for his certificate of such discharge, pursuant to the Act of Congress, entitled “ An Act to establish a uniform system of bankruptcy throughout the United States,” passed August 19, 1841.</p> <p>And it appearing to the court upon the said petition, and the report of the clerk and assignee, accompanying the same, that the said bankrupt has hona fide surrendered all his property, and rights of property, (with the exception of such articles as were designated and set apart by the assignee,) and that the said bankrupt has fully complied with and obeyed all the orders and directions which have from time to time been passed by this court, and has otherwise conformed to all the requisites of the said act, and that no written dissent to such discharge has been filed by a majority in number and value of his creditors, who have proved their debts; and no cause being now shown to the court why the prayer of the petitioner be not granted, it is therefore, by virtue of the act aforesaid, ordered, decreed, and allowed by the court, that the said Israel Kinsman be, and he accordingly, hereby, is fully discharged of and from all his debts proveable under the said act, and owing by him at the time of the presentation of his petition to be declared a bankrupt; and it is further ordered that the clerk duly certify this decree, under the seal of this court, and deliver the same to the said bankrupt when demanded. All which we have caused, by these presents, to bo exemplified, and the seal of the said District Court to be hereunto annexed.</p> <p>Witness, the Honorable Samuel It. Betts, Judge of the said Court, at the city of New York, in the Southern District of New York, this sixteenth day of November, in the year of our Lord one thousand eight hundred and forty-five and of our Independence the seventieth. J. W. Metcalp, Oler%.</p> <p>I, Samuel It. Betts, Judge of said District Court, do certify the foregoing exemplification to be correct, and in due form of law.</p> <p>Samuel R. Betts.”</p> <p>The plaintiffs counsel having closed, the counsel for the defendant moved the court to enter a non-suit, on the ground that the plaintiff had not given evidence that Israel Kinsman was discharged as a bankrupt; whereupon,</p> <p>The court ordered a non-suit to be entered, according to the provisions of the act of Assembly of 11th March, 1836, which the court refused to remove, on motion made to that effect.</p> <p>Errors assigned:</p> <p>1. The jury were empannelled and sworn irregularly, and contrary to law.</p> <p>2. The learned Judge erred in rejecting the certificate of Israel Kinsman’s discharge as a bankrupt.</p> <p>3. In directing a non-suit to be entered.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was a scire facias on a mortgage given hy William Perry to Sarah Brinton, the testator of the plaintiff, issued in the name of George Brinton, executor of the will of Sarah Brinton vs. William Perry and Samuel E. Blair, terre tenant.</p> <p>The mortgage, in suit, was dated 15th October, 1886, and was recorded on the same day, and was given to secure payment of the mortgagor’s bond, in five years from the date.</p> <p>The terre tenant Blair made defence:</p> <p>The substance of the defence was, that on the 6th September, 1841, the mortgaged premises were sold hy the sheriff of the city and county of Philadelphia, by virtue of an execution upon a judgment, duly obtained on a writ of scire facias, issued hy the commissioners and inhabitants of the township of Moyamensing, upon á claim duly filed in the said court, against the said William Perry, owner or reputed owner, or whoever may he the owner of the lot of ground therein described, and which was the same in substance as the mortgaged premises for corporation taxes, &c., duly assessed and registered, for the years 1842, 1843, 1844 and 1845, and were purchased by the deponent, who had received a deed from the sheriff, duly acknowledged, &c. The District Court gave judgment for the plaintiff below.</p> <p>The question in the case was of a sheriff’s sale of a lot of land in the county of Philadelphia, by virtue of an execution upon a judgment obtained upon a claim duly entered for municipal taxes, and which were assessed subsequent to the mortgage; whether the mortgage on the premises, given since the passage of the act of 3d February, 1824, is discharged.</p> <p>The claim filed was for corporation taxes, and for conduit laid in front of the mortgaged premises.</p> <p>Errors assigned:</p> <p>1. The court erred in rendering judgment for the plaintiff, upon the rule to shew cause why judgment should not be entered for want of a sufficient affidavit of defence.</p> <p>2. The court below erred in deciding that the mortgage, upon which this suit was brought, continued to bind the property after the sheriff’s sale of September 6, 1847.</p> <p>3. The court below erred in not rendering judgment for the terre tenant, the purchaser at the sheriff sale, upon his affidavit of defence in this case: act of 3d February, 1824, Purdon 1112.</p> <p>Sec. 1. All taxes thereafter assessed on real estate in the city and county of Philadelphia, declared to be a lien on the said real estate. “ And the said lien shall have priority to, and shall he fully paid and satisfied, before any recognizance, mortgage, judgment, debt, obligation or responsibility which the said real estate may become charged with, or hable to, from and after the passing of this act.”</p> <p>Sec. 8. All the provisions of the act applied to taxes assessed by authority of the city of Philadelphia, or of any corporation in the city or county of Philadelphia, (act of 6th April, 1830, Purdon 459,) where lien of mortgage shall be prior to all other liens, except other mortgages, ground rents, and the purchase money due to the Commonwealth, the lien of such mortgage shall not be affected by sale under a venditioni exponas.</p> <p>Sec. 2. Sale under a levari upon the mortgage not to destroy the prior hen of any Other mortgage.</p> <p>After the passage of the act of 6th April, 1830, it was ascertained that the protection intended to be given to mortgages by the act of 6th April, 1830, was in some cases illusory, on account of the provision in the act of February, 1824, making taxes a lien; and the act of 11th April, 1835, provided, that no lien created by act of 3d of February, 1824, should be construed to be within the meaning of the act of April 6,1830, above referred to.</p> <p>The act of 16th April, 1845, Purdon 465, provided, that the provisions contained in the first section of the act to which this is a supplement, (viz: the act of 6th April, 1830,) shall extend, and shall always be deemed and taken to extend to all cases of sales, made by virtue or authority of any writ of execution.</p> <p>Sec. 4. The lien of a mortgage upon any real estate, situate in the city or county of Philadelphia, shall not be destroyed, or in any way affected by any sale of the mortgaged premises under a subsequent judgment, (other than one entered upon a claim, which was a lien on the premises prior to the recording of such mortgage^) by reason of the prior lien of any tax, charge or assessment whatsoever, but the same shall continue as if such prior lien did not exist, and where, by existing laws, the lien of such mortgage would otherwise continue: Provided, That the continuance of the lien of such mortgage shall not prevent the discharge of such prior liens for taxes, charges or assessments, by such sale, or the satisfaction thereof, out of the proceeds of such sale.</p> <p>The sixth section of the act of March 11, 1846, (acts of 1846, p. 115,) provides, that the lien of such claims shall not be divested by any judicial sale, as respects so much thereof, as the proceeds of such sale may be insufficient to discharge and pay.</p> <p>The District Court, Stroud, J., decided that the lien of the mortgage was not destroyed by the sale.</p> <p>He observed, inter alia, the defence relies entirely upon what is argued to be the proper meaning of the words contained in the parenthesis, (meaning in the 4th section of the act of 16th April, 1845,) namely: “a claim which was a lien on the premises prior to the recording of such mortgage.” It is said the expression “the lien prior to the recording of the mortgage, recognizes the retro-active effect given by the act of 3d February, 1824, to the imposition of taxes, and therefore as the mortgage of the plaintiff bears date in 1836, the judgment under which the defendant claims, although for taxes not assessed until 1842, is within the exception provided for by the parenthesis, and that a sale, founded upon it, discharges the lien of the mortgage.</p> <p>But this construction is, I think, plainly against the letter of the exception, and conflicts beyond doubt, not only with the spirit of the • entire section, of which the exception forms a part, but is against the whole scope of legislation on the subject, subsequent to the decision of Willard vs. Norris, 2 Pawle 56, by which it was first authoritatively settled, that a sheriff’s sale, under a junior judgment, destroyed the lien of a prior mortgage.</p>

This was an action brought by Thomas Ridgway and Henry Budd, trading under the firm of Ridgway & Budd, plaintiffs in error, vs. Jacob Day, defendant in error.

<p>This was an appeal from the Common Pleas of Philadelphia county.</p> <p>On the 25th September, 1846, George R. Yanleer, the appellant, filed his petition in the court below, in the usual form, praying for a divorce a vinculo matrimonii from his wife, Sarah Yanleer, on the ground of wilful and malicious absence from his habitation, without just or reasonable cause, for upwards of two years before the filing of said petition.</p> <p>The defendant denied the desertion, and averred in her answer “that the said George R. Vanleer has, without reasonable cause, separated himself from her, and for a length of time made no provision for her support, until, having become a public charge, the guardians of the poor commenced a prosecution against him, which prosecution was settled by the said libellant giving a bond to the said guardians, conditioned for her support and maintenance.”</p> <p>The cause being thus at issue, a jury was empanneled for its trial, before Hon. James M. Campbell. The evidence for the libellant established (it was urged) a case of desertion, as set out in the petition. The respondent produced evidence to negative that position, and (inter alia) the following bond of the libellant, which was excepted to by his counsel, but admitted by the court:</p> <p>The bond was one by Vanleer and another as surety, to the guardians for the relief and employment of the poor of the city of Philadelphia, the District of Southwark, &c. the townships of the Northern Liberties and Penn. It recited that:</p> <p>Whereas, Complainant has been made on oath by Sarah Van-leer, that the above bounden George R. Vanleer, her husband, has without reasonable cause separated himself from her, whereby she has become chargeable to the inhabitants of the city of Philadelphia, the District of Southwark, and the townships of the Northern Liberties and Penn, or some one of them.</p> <p>Now the conditian of this obligation is such, That if the above bounden George R. Vanleer, and Robert Miles, or either of them, their or either of their heirs, executors, or administrators, shall and do, from time to time, and at all times hereafter, fully and clearly acquit, free and discharge, or well and sufficiently save, defend, keep harmless, and indemnify the guardians aforesaid, and their successors, and also the inhabitants of the said city, district, and townships, of and from all manner of expenses, damages, costs, and charges whatsoever, which shall or may at any time hereafter arise, happen, grow, or be imposed upon them, or either or any of them, for or by reason or means of the said desertion, by paying to the said obligees for the support and maintenance of the said wife, the sum of four dollars per week from the fifteenth day of July, last past, and also the sum of twenty dollars to pay for her lying-in expenses, and of and from all other actions, suits, troubles, charges, damages, and demands whatsoever, touching or concerning the same, then the above obligation to be void, otherwise to stand, be and remain, in full force and virtue.</p> <p>The Judge instructed the jury as follows:</p> <p>This case in reality presents nothing for the consideration of the jury; the bond given by the libellant to the guardians of the poor, which is in evidence and is set out in the defendant’s answer, is a bar to the successful prosecution of this proceeding for a divorce and prevents his recovering a verdict. This bond may be viewed as equivalent to an agreement to live separate and apart; or, if not considered in that light, the libellant is at least precluded by it from alledging that the desertion took place from the 6th of July, 1844. In the face of that bond before the libellant can alledge wilful and malicious desertion on his wife’s part, he ought to have communicated to her that his house was open to her, and that he was ready to supply her wants, and conduct himself towards her as a husband ought to do. If, after such notice, she still persisted, then would the desertion have become wilful and malicious, because without any good cause. You will therefore, find a verdict for the respondent.</p> <p>The libellant assigned as errors:</p> <p>1. That the court erred in admitting the bond in evidence.</p> <p>2. In their instructions to the jury, relative to the effect of the bond.</p> <p>3. In withdrawing the whole case from the jury.</p>

<p>Error, to the District Court of the city and county of Philadelphia.</p> <p>Action, trespass vi et armis, &c., agaist Morton McMichael, sheriff, and James Maish, for seizing and selling certain bags of coffee, as the property of Robert A. Mason, which belonged to Caroline A. Mason, the plaintiff below.</p> <p>On the trial, May 9th, 1848, the defendants (below) offered in evidence, in mitigation of damages, a bill for the freight of the coffee levied on, paid by the sheriff out of the proceeds of sale, alleging that he was entitled to credit therefor, as the freight was a lien on the coffee when levied on, and he was obliged to pay it.</p> <p>Plaintiff’s counsel objected, and insisted that the property was plaintiff’s, and that the defendant had no right to make any appropriation whatever of it; and cited Dallam vs. Fitler, 6 W. & S 323.</p> <p>Judge Eindlay, before whom the case was tried, sustained the objection, and rejected the evidence to which defendant’s counsel excepted, and assigned this ruling as error.</p>

<p>The District Court of the city and comity of Philadelphia had no jurisdiction before the passage of the act of 21st April, 1846, of an action of partition between parties taking by descent from one who died sole seized; nor are damages recoverable, in consequence of the passage of the said act, against a party who, having pm-chased real estate sold under proceedings in partition in the said court, before the passage of’ the said act, declined accepting a deed and paying the purchase money, whereby the property was again sold for a less price than it brought at the first sale.</p>

<p>A policy of insurance against fire of a particular building of a commission and forwarding firm, covering “merchandize generally, and without exception, their own, or held in trust or on consignment,” applies to property destroyed by fire in such building consisting of household furniture, wearing apparel, and boohs, received and held in deposit by the said firm, subject to the order of the owner, as well as to the property of the firm, and goods consigned to them on commission; and the owner can recover his proportionate share of the amount covered by the policy and paid over by the Insurance Company to the firm, in an action for money had and received.</p>

$200 00. Twelve months after date, I promise to pay to the order of William Tams, two hundred dollars, without defalcation, for value received. John Tams. Indorsed, William Tams. For value received, I hereby assign the within note to Way & Wilson. Wm. Henry Tams.

The Planters Bank of Mississippi was the owner of certain shares of stock of the Commercial Bank of Natchez. In 1843, it made an assigment to Mandeville, et al., in trust for creditors of certain property, among which are these shares. On the 5th of July, 1844, a certificate for some of these shares was issued to Henderson by the bank of the U. States, at Philadelphia, a transfer agent of the Commercial Bank.

From tbe Common Pleas of Philadelphia : January 17, and four subsequent days, and also re-argued February 12th.

Error from the District Court of Philad,elp\ia:. January 16th, assumpsit by the endorsee of two notes against the drawer. On the trial before Sharswood, P. J., it appeared that the Messrs. Ery were the proprietors of a newspaper, published three times a week, under the name of the “ Country National Gazette,” and a daily paper called the “National Gazette.” On the 30th December, 1841, they made a general assignment to Eoulke, for the benefit of their creditors.

<p>The question of preEminary proof is for the court, but the jury must determine the authenticity of the papers; hence where under a general objection to exparie affidavits, the court permitted them to be read to the jury, as evidence that preliminary proof had been given, it was held not to be a ground of reversal.</p> <p>Where the plea alledges that the fire was occasioned by the fraud of the plaintiff, his previous conversations with strangers, inconsistent with the fraudulent intention are admissable.</p> <p>Unless there was a prayer for specific instructions, it is not error in the court to omit to draw the attention of the jury to the distinction between the goods covered by the pohcy, and those not included therein, which have been destroyed-</p> <p>Where a bill of exceptions was taken, in the Nisi Prius, this court cahnot notice an assignment of error, that the court had refused to grant a motioh for a new trial. Nor has this court the power to review the decision of the Nisi Prius, on a motion for a new trial, on matters of fact.</p>

Error from the Common. Pleas of Philadelphia: This was an ejectment for a strip of land nine inches wide in front, thirteen inches at the rear end, and extending forty feet in depth. The plaintiff was the assignee of a lease for ten thousand years, dated in 1784. Prior to 1807, a frame building was erected upon the lot, the wall of which extended a few inches over the boundary line.

From the Orphans’ Court of Chester county. January 2, 3, 4. — Isaac Pennock, by his will, dated in 1824, “ devised to his wife, Martha Pennock, the use, benefit, and profits of my real estate, during her natural life; and also all my personal estate of every description, including ground-rents, bank stock, bonds, notes, book debts, goods and chattels, absolutely; having full confidence that she will leave the surplus to be divided at her decease justly amongst my children.”…

From tbe Orphans’Court of Philadelphia. April 1. — Fernster, by his will, proved in 1886, devised all his estate to his wife during widowhood; “ at her decease it is my desire, if the majority of my children be agreed, that my executors shall sell all my real estate, (the house in Market street excepted, which house I would not wish to be sold until three years after my wife’s decease, if the majority of my children be agreed,) and give unto my son John $500, money borrowed…

<p>Error, from the District Court of Philadelphia.</p> <p>This was an action of debt on a replevin bond, by Fitler, late sheriff of the county of Philadelphia, for the use of Carr against Boberts.</p> <p>Boberts had brought' replevin against Carr for sundry chattels.’ Defendant pleaded non cepit, property in defendant, and property in plaintiff and defendant jointly. In that action a verdict was rendered for Carr, the defendant, on all the issues. Judgment de retorno habendo was entered, and the sheriff returned the fi. fa. “eloigned as to the goods and chattels.” This action was then brought by Fitter vs. Roberts, on the replevin bond, and the material plea was set off. Under the notice, the defendant offered to prove the payment and advance of various sums of money by himself to the partnership composed of Carr, to whose use this action is brought, and Roberts, the defendant. The rejection of the evidence was the point argued here.</p>

Error, from the Common Pleas of Philadelphia. March 14. — This was an action for use and occupation. The plaintiff was the guardian of John Daly, the younger, and proved that John Daly, the elder, deceased, had formerly been in receipt of the rents, the defendant being the tenant. That after the death of John Daly, the elder, defendant had been called on by plaintiff to pay the rent, which he admitted John Daly, the younger, was entitled to.

Error from the District Court of Philadelphia. Wood brought an action against Yantine on two notes drawn by him, and also declared on the common counts. The defence was that the notes were made in New York, and sold there by Yantine’s agent to Wood; that they were made to be sold, and not in a business transaction; hence, and so was the undisputed evidence, the notes were usurious.

Error from the District Court of Philadelphia: April 24-5, 1849. — The plaintiff’s declaration set out that he had indorsed certain notes for one Stockton, by whom they had been negotiated for value to the defendants; that afterwards Stockton having become insolvent, the defendants, in consideration of the transfer to them of certain property by Stockton, had released and discharged Stockton from all liability on the said notes, which was done without the plaintiff’s…

February 2. — Ejectment. Sylvius died in the year 1793; leaving three sisters, his heirs, living in Germany; one of these died without issue. Elizabeth Hartman, the sole heir of one of the sisters, entered upon the property more than twenty-one years before this suit was brought, in which one of the heirs of a sister of Sylvius was plaintiff. The question was whether there was conclusive evidence of an ouster.

— The bill filed by Yard, executor of Elliott, set forth that Elliott, on the 30th June, 1837, executed a mortgage to Patton, to secure a bond for $13469 : but that in fact it was given to secure Elliott’s notes given for the accommodation of D. Cragg, as appeared by an instrument of the same date, executed by Patton.

Error from the Common Pleas of Philadelphia: January 28th, 29th. — This was a case stated to try the right of the respondent to the office of minister of the African Methodist Episcopal Bethel Church, in the city of Philadelphia, the relators being the trustees of the corporation.

<p>Error from tbe Orphans’ Court of Philadelphia.</p> <p>February 20, 21. — In 1793, Henry Reed, after giving certain legacies, devised all the rest, residue and remainder of his real and personal estate in manner following: One-fourth to his brother James, his heirs, &c.; one-fourth to his sons James and Henry, “ and the other like fourth part thereof unto my son Robert Reed, by Elizabeth Wise, his heirs,” &c. “And for the more speedy payment of the legacies aforesaid, and the more easy distribution of my estate among my residuary legatees and devisees, as aforesaid, I will and direct that all my houses, lots, lands, tenements and hereditaments, be sold by my executors, as aforesaid; and in the meantime, and until such sale shall be made, to let and demise the same for the best and utmost advantage of my residuary legatees and devisees.” And he further directed, that the interest and rents arising from the respective parts or shares of his estate intended for his three sons, should be applied to their maintenance. The testator died shortly afterwards in Philadelphia.</p> <p>In 1812 Robert Reed executed a power of attorney to Pomeroy, empowering him to sue for, recover and receive his equal fourth of the said estate, and to effect a settlement of his share with the executors or their heirs, and to execute all deeds that might be necessary touching his part or share of said estate, and generally to do all other things that the constituent could himself do in the premises. This power was acknowledged before two justices of the peace of Jefferson county, Kentucky, whose official character was certified by the clerk of the county court.— This deed was recorded at Pittsburg, December 22,1812, but had been lost. Whether the certified copy was evidence, was one of the questions.</p> <p>In 1841 the certificate of the clerk of the county court of Jefferson county, was obtained, and a copy of this deed, which had been certified by the recorder of deeds at Pittsburg, setting forth that the two justices, at the date of their certificate, were ex officio judges of the said county court, and that there were no magistrates in said county at that time superior to them, and that there was no incorporated city in said county until 1827. To this was appended the certificate of the presiding judge of the court, and the certificate of the clerk that such person was the judge.</p> <p>On the 24th December, 1812, R. Reed, by his attorney, Pomeroy, executed a deed, reciting that the testator died seised of a house and lot in Pittsburg, and the will devising to said Robert one-fourth thereof; and that the property could not be» divided without injury to the whole; and that the parties had compromised and agreed, in lieu of the fourth of the house and lot, to take seven hundred and fifty dollars, in consideration whereof the one-fourth was conveyed to George Wallace, Jr., in fee.</p> <p>This George Wallace, Jr., was at that time the executor of the surviving executor of the testator, Henry Reed</p> <p>Wallace entered on this property, and continued to hold it, accounting for the three-fourths of the rents, and devising it, as his house, to one under whom this appellant claimed.</p> <p>In 1831, the present appellee, being the administrator d. b. n. c. t. a. of Henry Reed, brought an ejectment in the Circuit Court of the United States, against those claiming under Wallace. Judgment was recovered, and possession delivered under a habere in 1834. In 1835, the appellee sold the house and lot, under the trusts of the will, and the proceeds were brought into the administration account, for distribution.</p> <p>The appellant claimed, as a purchaser, the fourth of the proceeds of the house and lot, or the return of the purchase money. The administrator of Robert Reed claimed the proceeds, alleging it was personalty; and hence the exemplification of the power of attorney was not evidence.</p> <p>On this ground the auditor awarded the fund to the administrator of Robert Reed.</p> <p>January 9th. — Pmlen moved to quash the appeal. The faeis bn which he based his motion, which was heard with the appeal, were these. The report of the auditors was confirmed, June 16, 1846. On the 26th December, an affidavit for an appeal was made in the Orphans’ Court, and the recognizance signed in blank, to be filled up for the proper amount by the clerk. It was proved by parol that the security, which was for costs only, was approved by the court. In January, 1848, the appellee paid over to the administrator of Robert Reed the amount awarded to him by the decree of the court below. On the 28th of March, 1848, a certiorari issued, and the record was removed. At or about this time the recognizance was filled up by the clerk.</p>

<p>Erbob from the Common Pleas .of Philadelphia:</p> <p>January 15, Case stated. — In 1840 certain land was conveyed by a recorded deed reserving a ground rent of $62 25, payable semi-annually on the 1st of May and November. The premises became vested in Kimbal and were levied on and sold under an execution against him on the 7th of July, 1845. On the 1st of May of that year there was due one year’s ground rent. The sheriff’s advertisement recited the ground rent. In the conditions of sale was the following: “arrears of ground rent and taxes, if any, will be paid out of the purchase money if the bills are presented to the sheriff, otherwise they will be paid by the purchaser.” On the 9th of September the sheriff distributed the proceeds to subsequent liens. In November a claim was made on the sheriff for the arrears, but he had no other notice than as already stated.</p> <p>The court gave judgment for the defendant.</p>

<p>A conveyance by one indebted in trust to sell, tbe grantor reserving a power of appointment of the proceeds is fraudulent as to a prior creditor recovering judgment after the grantor had appointed the proceeds to creditors.</p> <p>Where the court had distributed the fund under the trust and the assignee had delivered a check for the dividend of a creditor, but this had been returned, the unpaid dividend is liable to an attachment execution at the suit of a creditor of the assignor.</p>

Jannuary 29, 30th. — The only question argued in this case was whether the statute of limitations had barred the action. It was brought to recover the amount charged by the defendant for commissions as factor in his accounts current.

This was an action of ejectment, brought by Joseph W. Emery against William Harrison, for the undivided half of seventy acres of land, in Pawn township, York county.

<p>When, a testator directs a portion of Ms estate to be vested in a fund, the interest of vvMch shall be paid to Ms widow for her natural life or widowhood, and the fund at the determination of her estate to be distributed among his children, the said fund is taxable for state and county purposes, and the taxes are payable out of the interest of the same.</p> <p>Under the act of April 22,1846, it is not necessary that the party entitled to the present benefit of an investment should have a legal estate or property in the fund, or that there should be a technical trust formally created, in order to make the fund liable to taxation.</p> <p>Particular terms describing the objects of taxation, are to be construed according to popular acceptation.</p> <p>Wherever the law levying an impost employs no distinct language on the subject, the present beneficiary is liable by inevitable implication, if the law contains nothing repugnant to said liability.</p> <p>If taxable for state purposes, the fund is also liable for county taxes.</p>

This was an action by Biesecker vs. McNight, to recover a sum of money, the proceeds of a lottery ticket which plaintiff alleged had been purchased for him, in the city of Baltimore, by the defendant, and upon which the money in dispute had been drawn. Both of the parties lived in Adams county. There was no distinct evidence where the arrangement to purchase the ticket was made; but see charge of the court.

<p>Error to the Common Pleas of Adams county.</p> <p>This was an action on the case, brought by Henrietta Melhorn vs. Moritz, for breach of promise of marriage.</p> <p>The narr. contained five counts:</p> <p>1. 14th November, 1848, in consideration that plaintiff promised to marry him when requested, defendant promised to marry her when requested. Breach, 27th March, 1849, defendant married Anna Sliza Monfort.</p> <p>2. In consideration plaintiff promised to marry defendant first week in January, 1849, defendant promised to marry plaintiff first week in January, (next,) 1849. Breach as above.</p> <p>3. In consideration plaintiff promised, with consent of her father; consent averred, of Jacob Melhorn, father, and notice. Breach ut supra.</p> <p>4. In consideration plaintiff promised to marry defendant, and defendant promised, &c. Preach as above.</p> <p>5. Same as last, with request on 1st February, 1849, and refusal. Damages, $5,000.</p> <p>Plea, non-assumpsit.</p> <p>It was proven, on the part of the plaintiff, by her father, that defendant had stated that he and the daughter of witness had agreed to get married.</p> <p>They also proved, by her brother, that he had gone with her to Gettysburg, to buy materials for wedding preparations.</p> <p>And, after objection and exception, on the part of defendant, they proved the declarations of the plaintiff, at the time the witness took her to town to buy clothes, that she wanted them for her wedding clothes.</p> <p>This was the first bill of exceptions.</p> <p>A female witness was offered, to prove that shortly after 14th November, 1848, the plaintiff, in presence of witness, engaged the sister of witness to act as her bridesmaid at her approaching marriage with defendant. Evidence admitted, and defendant excepts. Second bill of exceptions.</p> <p>Plaintiff also offered to prove that the female selected as bridesmaid, in pursuance of this request, made preparations for the wedding. Defendant objected.</p> <p>By the court. — The proof of the promise having been made, and that a time was fixed, the court admit the evidence to show a readiness to perform on the part of the plaintiff. Defendant excepted.</p> <p>It was then proved that defendant afterwards was married to Hanna Eliza Monfort.</p> <p>On the part of defendant, testimony was given, impeaching the character, for truth, of the father of the plaintiff, who had testified as to the statement of defendant, in regard to the promise of marriage.</p> <p>Rebutting evidence was given, in support of it, on the part of the plaintiff.</p> <p>The court, (Lewis, President,) inter alia, instructed the jury, in substance, as follows:</p> <p>1. That the evidence of the marriage of the defendant to Hannah Eliza Monfort, in substance, establishes the breach laid in the declaration which avers a marriage with Anna Eliza Monfort.</p> <p>2. That the assessment of damages, in this action, is the peculiar province of the jury; that the law has prescribed no measure of damages, but leaves the amount to be fixed by the jury; that the jury are not limited to the mere expenses of purchasing the wedding garment, or making the other preparations for the nuptial, but they may give compensation for the injury to the plaintiff’s feelings and her health — for the mortification, degradation and scorn to which she was exposed, by the appointment of a day and the violation of the promise, without previous notice, and without cause; for there was no cause for violating the promise.</p> <p>January 23, 1850. — Verdict for plaintiff for $400.</p> <p>Errors assigned:</p> <p>1. The court erred in admitting the testimony of Henry Mel-horn, as to acts of plaintiff, and her own declarations as to her purchases of clothing; and also, in admitting the testimony of Matilda Johns, as to the engagement of her sister, Julian Johns, as a bridesmaid, by plaintiff, and as to the acts of Julian Johns and the witness, Matilda Johns, done under the direction and at the request of the plaintiff; the said declarations made, and acts done, without the knowledge, privity or consent of the defendant.</p> <p>The acts and declarations of plaintiff inadmissible.</p> <p>2. The court erred in admitting testimony showing a marriage of defendant with Hannah Eliza Monfort, the declaration alleging the marriage to have been with Anna Eliza Monfort.</p> <p>The variance between the averment in the declaration and the’ proof is fatal.</p> <p>■ 3. The court erred in charging the jury that the evidence of the marriage of defendant to Hannah Eliza Monfort, in substance, established the breach in the declaration.</p> <p>4. Court erred in charging the jury peremptorily upon the testimony, and withdrawing entirely from them the question of the strength of the evidence — assuming proof in every particular sufficient to sustain the plaintiff’s case; and in dwelling upon the acts and declarations of plaintiff, and alleging that there was no cause for violating the promise.</p>

Error, to the Common Pleas of Blair county. This was a qui tarn action brought by Eisher -us. Patterson. It was an appeal from the judgment of a justice of the peace, rendered against defendant, Patterson, in April, 1842, for $50, the penalty prescribed by the act of assembly of the 16th April, 1840, entitled “An Act supplementary to the acts regulating hawkers and pedlars.” Narr in debt filed.

<p>Where a vendor of a tract of land, whilst the contract is making, makes a misrepresentation to the vendee, as to the quality of his title, and the vendee is thus induced to purchase, and the land is recovered under a superior title, the vendee may defend, on that account, in an action on the bonds, given for a part of the purchase money; and he is not prevented from so doing, by reason of having taken h deed with special warranty.</p>

<p>A conveyance of real estate to a married woman “during her natural life and after her decease to the heirs of her body and to them and their heirs and assigns forever,” creates an estate tail in such married woman,' which at her death, de~ seends to her eldest son, as heir at common law.</p> <p>The rule in Shelly’s case has always been recognized by this court as the law. The operation of the rule is to give to the ancestor an estate for life, and by force of the devise to his heirs, general or special, the inheritance also, by conferring the remainder on him, as the source from which alone their inheritable blood can spring.</p> <p>In a will, the legal force of the word heirs, may sometimes be controlled by the context, but not so in a deed; it is, in a deed, a term of art.</p> <p>The difference between this case and Shelly’s case is, that here, there is no limitation over, in default of issue; in Shelly’s case there was; but this difference is immaterial. Superadded words of limitation, which import the same course of descent are inoperative in a deed, and perhaps in a will.</p> <p>The want of a limitation over, in Üie event of a failure of issue of the first taker, evinces no more than an intent, that the inheritance should be, in the particular tenant, if he should have issue; and does not imply that the grantor did not design to create an estate tail, in the grantee.</p> <p>An executed conveyance of a legal estate, to a married woman, passes to her a legal and not an equitable estate.</p> <p>An instrument cannot be partly a deed, and partly of a testamentary character; it must be, exclusively, a will, or it is a deed, as distinguished from a will.</p> <p>The construction of a deed is not to be relaxed by any thing in the will of the grantor, which preceded it. It is not competent to shew an actual intention, contrary to the legal effect of the deed.</p>

<p>Error to the Common Pleas of Huntingdon County.</p> <p>This was an ejectment by Elias Hoover vs. John William Lock and Simon Lock, for a tract of land.</p> <p>The defendants claimed under a settlement commenced by John Lock, in or about 1804 or 1805. They showed a warrant by John Lock, in August, 1846, for 400 acres, and surveyed in that month, on the land in dispute. The survey was regularly returned into the land office in August, 1846. The warrant calls for and dates the improvement back to the first of March, 1802, by commencing interest on his purchase from that date.</p> <p>Hoover, the plaintiff, claimed under an improvement by one Ramsey, began in or about 1779. The occupancy, under this improvement, was interrupted. In 1809 or 1810, one McCune, perhaps a tenant of Ramsey, either died on the premises, and his widow and children lived there some time, and left it; or McCune left it before he died, in 1809 or 1810. Eor several years, perhaps till 1815, 1816 or 1817, there was no person residing on the land.</p> <p>In May, 1813, James Ramsey, who was executor, and one of the heirs of John Ramsey, took a surveyor upon the land, claimed by his father, in his life time, and by his heirs, since his death, and had the lines run.</p> <p>Witherow, the administrator of the estate of Ramsey, obtained a warrant, dated 9th October, 1846, for 300 acres, in part surveyed, as the draft from the office of the deputy surveyor shows, on the 28th November, 1846, and completed on the 19th June, 1847 — 330 acres surveyed — improved land. Interest from 1st July, 1800.</p> <p>In 1846, Witherow, the administrator of the estate of Ramsey, sold at public sale 315 acres 38 perches, be the same more or less. It was knocked down to Caldwell, who purchased it for Hoover, the plaintiff. It was advertised as 300 acres of warranted land.</p> <p>Deed by John Witherow, administrator de bonis non, &c., of John Ramsey, to Elias Hoover, 1st April, 1847, for land, describing it by metes and bounds, containing 315 acres 38 perches, &c., be the same more or less; and also, all the right, title, interest, property, claim and demand of John Ramsey, at his death, of, into and out of all the contiguous land outside of said boundaries, which the said John Ramsey or his heirs have paid taxes for, or claimed by virtue of their improvement or possession, in Black Log Valley.</p> <p>James Ramsey — My father had no other land, I believe, in Springfield township.</p> <p>1847, June 15. — Warrant to Elias Hoover for 100 acres improved, &c., Black Log Mountain N. W. John Lock’s improvements S. W. George Cluggage North, known as Ramsey’s improvement, interest from 17th October, 1799.</p> <p>Survey in the name of Elias Hoover for 100 acres, dated 19th June, 1847; surveyed by Samuel Caldwell, D. S.</p> <p>Neither of these surveys on the warrant to Witherow or Hoover were certified from the land office. Samuel Caldwell proved them to be official surveys, made by him in the capacity of deputy surveyor.</p> <p>His Honor, Judge Wilson, observed to the jury: “ The warrant taken by Witherow, administrator of Ramsey, would have located for all that could be surveyed, according to the claim by the warrant, without interfering with the survey of Lock, which had been located. It is in filling the call of the Hoover warrant, which he claimed to have located under his purchase from Witherow, as stated in Ms deed, that occasioned the interference in their location.</p> <p>The court inter alia, charged the jury:</p> <p>The facts of the case are for you. The plaintiff, to authorize his recovery, cannot depend on the later warrants and surveys to make out his title. He must depend on his possession; and whether he has made out an actual, notorious, and distinct and adverse possession of the land in dispute, continued and uninterrupted for a period of twenty-one years previous to the bringing of this suit, you will determine.</p> <p>Verdict was rendered for defendants.</p> <p>There were a number of errors assigned. The material ones appear to have been:</p> <p>The court erred in charging the jury that the plaintiff could not recover, unless he had shown an adverse possession against defendants, uninterrupted for twenty-one years, &c.</p> <p>The court erred in instructing the jury that the statute of limitations of twenty-one years had any application to the case, as it appeared in evidence between the plaintiff and defendants; and that the plaintiff could not recover without bringing himself within the protection of the statute.</p>

<p>Error to the Common Pleas of Blair county.</p> <p>This was an action of ejectment brought by William Summer-ville, James Summerville and others vs. Thomas Jackson and others, for about 167 acres of land in and around Gaysport, in Blair county.</p> <p>Plea not guilty. — Before jury sworn plaintiffs by written disclaimer filed “ disclaim title to any lot or lots in the borough of Gaysport, excepting such as are in the ownership of Thomas Jackson or David R. Porter, or their tenant, M. Criswell.”</p> <p>The plaintiffs claimed as heirs of Ruth Summerville.</p> <p>Defendants claimed under a deed from James Summerville and Ruth his wife, to Thomas Jackson, one of the defendants, dated April 13th, 1830, and a judgment or decree in an action of partition, for a reference to which and various facts testified to in the case, see the following portions of the charge of his Honor, Judge Taylor.</p> <p>The plaintiffs counsel were allowed on the trial to prove certain declarations of Garber, made in the absence of Jackson, which admission was excepted to on part of defendants.</p> <p>A variety of evidence was given in the case.</p> <p>Amongst other matters, it appeared that Jackson conyeyed an undivided third part of the land to Christian Garber, whose executor under the powers vested in him by the will of his testator, sold the interest which Garber had to Wilson and Shoenberger, at a public sale, to whom a deed was made bearing date the 1st day of January, 1848. The heirs of Mrs. Summerville, gave no notice of their claim to the land at this sale.</p> <p>His Honor, Judge Taylor, charged the jury, inter alia.</p> <p>William Holliday, in and by his last will and testament, dated 11th July, 1796, and proven 30th September, following, devised one-half of the tract of land on which he lived — a tract in the name of Thomas Vanbuskirk, and now in possession of the defendants, and in controversy here — to his daughter Ruth; and the ■other half to his daughter Mary. Ruth was married to James Summerville, both of whom are deceased; and the plaintiffs are shewn to be six of the seven of the heirs, and as such, claim their proportion of her undivided interest in the land.</p> <p>The defendants, in answer to this prima facia case of the plaintiffs, produce a deed of James Summerville, and Ruth his wife, dated 13th April, 1830, to Thomas Jackson, for Ruth’s interest and estate in the land in question. And this, of course, if this were the whole case, would be a complete defence ; as it is a conveyance, by the ancestor of the plaintiffs, of the very estate which they here claim as her heirs. It is also shown, as a further part of the defendants’ case, that Mary Holliday, the sister of Ruth, and to whom the other half of the land on which he lived and died was devised by their father, married Adam Galbraith, and died, leaving six children, her heirs; that, on a judgment against Joseph Galbraith, one of these heirs, his interest and estate in his mother’s undivided half of the land, was sold by the sheriff the 30th day of August, 1830, to Thomas Jackson, and the sheriff’s deed acknowledged, 13th January, 1831; and that, subsequently, in an action of partition in the court of Common Pleas, of Huntingdon county, which had been commenced to No. 16, April Term, 1827, by John M’Cahan, who represented three of the Galbraith heirs, against James Summerville and Ruth his wife, and the other Galbraith heirs, and in which judgment was confessed on the 17th November, 1827, Thomas Jackson, by his attorney, in right of James Summerville and Ruth his wife, and others, appeared in court on the 15th day of January, 1831, and accepted the property, (all the parties, on notice, having refused or failed to appear,) at the valuation; and the whole tract of land was decreed to him, his heirs and assigns, on his paying into court on the first Monday of March following, (and which the record shows he did do) one-half of the appraised value of the land, and one-half of the costs.</p> <p>The possession, therefore, of the defendants, is not merely of’ the undivided interest of Ruth Summerville, but of the entire tract, devised by then’ father, William Holliday, to Ruth and Mary, as tenants in common; and the title under which they seek to protect themselves, does not rest solely upon the deed of Summerville and wife to Jackson, but also, upon the decree of the court in the action of partition ; and a possession under both for nearly seventeen years.</p> <p>The title thus shown would prevail against the plaintiffs in this action, and entitle the defendants to a verdict and judgment, unless it has been successfully impeached and overthrown by the plaintiffs, and they have thus removed the insuperable barrier which it would otherwise interpose to their recovery. And this brings us to the consideration of the real points in controversy.</p> <p>It is alleged on the part of the plaintiffs that the deed of Summerville and wife to Jackson, was obtained by means of actual fraud, and is, and from its date, has been void; that the decree of the court, adjudging the land to Jackson, in the action of partition, was based upon that deed, and is also void, as to the plaintiffs, or so far as interferes with, or affects their rights; and that neither the one or the other is a bar to their recovery in this aetion, as heirs of Ruth Summerville. On the other hand, while the alleged fraud is denied by the defendants, it is contended that the judgment and decree in the action of partition, cannot here, in this action, be inquired into, or set aside; but are conclusive upon the rights of all the parties to that action, and their privies. Now, if the defendants are correct in this position, there is an end to the controversy; for, if the decree is conclusive, it furnishes them an impenetrable shield, and a certain protection.</p> <p>1. The first inquiry, therefore is, can the plaintiffs collaterally in this action impeach the decree of the court in the action of partition ? or is it to be taken as conclusive against them ?</p> <p>This is a question of law to be decided by the court. * ‡ * * 5K * ‡ ‡ $</p> <p>Upon the most anxious and careful consideration of the subject, we are therefore of opinion that the law is with the plaintiffs; by which, however, we would be understood to say, or we mean nothing more, than that they are not estopped or concluded by the decree, from going into the inquiry proposed.</p> <p>Another point is raised by the defendants which, if ruled in their favor, would be fatal to the plaintiffs’ action; and that is, that the plaintiffs by receiving’ the money which was the original consideration of the deed to Jackson, at the time, in the manner and under the circumstances disclosed in the evidence, are estopped or precluded now from impeaching the conveyance.</p> <p>We state the facts as they appear in the defendants’ evidence. The deed bears date 13th April, 1830, and acknowledges in the usual form, the payment of the consideration money, — $850. $100 was really paid at the time, and Mr. Jackson’s note taken for the balancé. This, as David Summerville testifies, was held until the 19th October, 1837, and on that day exchanged for Mr. Garber’s note. After Mrs. Summerville’s death, her administrator returned this note as a part of the assets belonging to her estate, in the inventory filed 30th March, 1841; and in his administration account, passed 1st January 1846, he charges himself with the money received upon it, taking credit for sundry small, usual disbursements, and for various sums paid to the different heirs. He received the last of the money from Mr. Garber’s executor, the 21st of January, 1847; and proves that he paid to the various heirs of his mother their respective shares of the balance in his hands as her administrator, “as nearly as he could guess.” It is also proven by Lazarus Lowry, that on the 7th or 8th March, 1832, George Elliott said to Mrs. Summerville, — “Mrs. Summer-ville, Dr. M’Clelland, [who it appears was her relative] says you can get clear of that bargain,” referring to the contract with Jackson; to which she replied, “ why should I wish to get rid of it — they gave me all I asked,” &c. It is also shown that after this, on the 18th October, 1839, she drew an order on Mr. Garber for $90, and upon which that sum was paid; and also shewn, by the testimony of Robert Campbell, that in the fall of 1839, he was solicited by James Summerville one of the plaintiffs, on behalf of his mother, to undertake the management of a suit against Thomas Jackson, for the recovery of this land. And these facts, it is argued, in view especially of the time which has elapsed, and the improvements made on the property, work an equitable estoppel, and bar recovery in this action.</p> <p>The ground, however, we answer, on which the plaintiffs rely, and upon which alone they can recover, if they recover at all, is that of actual, positive fraud, — fraud in deed, and not legal or constructive fraud — in the procurement of the conveyance. In such case it will not be pretended it was incumbent on the plaintiffs to refund, or tender the original consideration money, before bringing their suit; and if they were not bound to refund or tender, could the retaining and using of it work an estoppel ? The contract for the land was complete, when the deed receipted was executed and delivered. The money due upon the note, first of Jackson and afterwards of Garber, was in our view, as if it had been in the hands of some other person on loan, or had remained unused in Mrs. Summerville’s possession until her death, and afterwards passed, as a part of her estate, to her heirs. Knowledge, on the part of the defendants, if the money had actually come into her hands at the date of the deed, that she retained and used it without complaint until her death, would have afforded them as strong evidence and assurance of acquiescence even, as the knowledge that it remained in their own hands. But, if the contract was of the character alleged, it was not the subject of after confirmation by the mere acquiescence, or by acts merely amounting to the acquiescence of the party; and the money in question was the original, and the receipt and use of it as here shown not a new, or in our view, in any sense except one purely fictitious, operating as a new consideration. And, whatever weight the evidence on this point should have on the minds of the jury, as tending to illustrate the character of the original transaction, we are of opinion that it does not estop the plaintiff, and shut out proof of actual, positive fraud.</p> <p>3. The next question, which is one for the jury to determine under the direction of the court, and which now becomes, here, the general turning question in the cause is, — have the plaintiffs shown such clear and satisfactory evidence of actual fraud, as should render the deed of Summerville and wife, and the decree of the court based upon that deed, void, and entitle the plaintiffs to recover ? The evidence relied upon to make out or establish this fraud, embraces or relates to three particulars; and the jury will be assisted in calling to recollection and considering it, as it relates to the allegations.</p> <p>' First. That Jackson and Garber, by fraudulent means, prevented others from becoming purchasers.</p> <p>Second. That they possessed and concealed knowledge in relation to the location or termination of the Pennsylvania canal, and the prospective value of the property from that cause.</p> <p>Third. That Jackson, Garber, and Porter, in view of the prospective valúe of the property, combined and confederated together to procure it; and that they induced Summerville and wife to sell and convey to them her interest at less than its real value by the representation that it was subject to a heavy incumbrance, which they, at the same time knew did not exist.</p> <p>[The court here referred briefly, upon this point, to the different and conflicting statements and opinions of the witnesses; to the valuation put úpon the whole tract by the inquest in the action of partition, and to the peculiarity in finding that it was so valued “ as unincumbered land,” in Connexion with the evidence tending to show that it was within the knowledge of the inquest that about 60 acres of the land was adversely held by William Holliday, and an island of about 7 acres by Peter Hewit — that there was something said by or before them about a lien or incumbrance, &c.]</p> <p>If, upon a candid and careful examination of the whole evidence bearing upon this point, you should be of opinion that the consideration of the deed to Jackson was less than the fair value at that time of the interest purchased, your next inquiry will be, was this result attained, procured, or brought about, by the misrepresentations alleged ? And this involves a two-fold inquiry: First, were the alleged misrepresentations, as to the lien of Peters’ heirs, actually made by Jackson, or Jackson and Garber, or either of them, (for there is no evidence that Mr. Porter had any part in the making of the bargain) to Summerville and wife when the contract was made, and the deed executed and delivered ? And, secondly, were the vendors or grantors misled and deceived by these inisrepresentations, so alleged to have been made, and thereby induced to part with their title ? If such misrepresentations were made, and Summerville and wife were so misled and deceived, and induced to part with their title for less than its value, it was such fraud as would render the contract and the deed, void. On the other hand, if the alleged misrepresentations were not made, — or, though made, if they did not mislead, deceive, and injure, — this conclusion would not follow.</p> <p>Did then, Jackson and Garber, or either of them, make the alleged misrepresentations? Did they, or either of them, at the making of the contract, state or represent to the Summerville», the vendors, that the property was subject to a lien of $1600 to Peters’ heirs ? and did they, at the same time, know that it was not true, and that no such lien was held or claimed.</p> <p>Upon the whole we submit the case to you thus:</p> <p>If you are satisfied from the evidence, that Jackson, or Jackson and Garber, or Jackson, Garber and Porter, who were all interested in the purchase, in order to get the land in view of its prospective value, by procuring the undivided interest of Ruth Summerville, did, by artifice, misrepresentation, falsehood, or any other means, contrary to the plain rules of common honesty, mislead and deceive her and her husband, and induce them to part with her title for less than its value, or for less than they would otherwise have taken, and to their injury, then the plaintiffs have established such a case of actual fraud, as renders void the contract and the deed, and entitles them to recover; and your verdict should be in their favor.</p> <p>If, on the other hand, you are not so satisfied from the evidence, that they were thus misled and deceived by these parties, or some of them, and so induced by them, or some of them, to part with ' her title for an inadequate price, or to her injury — even though you should believe misrepresentations were made at the time — the defendants would be entitled to your verdict.</p> <p>If you find for the plaintiffs, your verdict will be for the undivided 6-7 of that portion of the land described in the writ, and in the possession of the defendants, Thomas Jackson and Michael Criswell, or their tenants, or the tenants of either of them, at the commencement of this suit.</p> <p>If you find for the defendants, your verdict will be a general verdict for the defendants.</p> <p>October, 1849. The jury found for plaintiffs the undivided three-sevenths of the tract of land, embraced in the writ, excepting, &c.</p> <p>To the charge and opinion of the court, the counsel of the defendants accepted.</p> <p>On the part of the plaintiffs in error were assigned the following, with other errors:</p> <p>1. The court erred by admitting the evidence stated in the first bill of exceptions.</p> <p>2. The court erred by admitting the evidence stated in the second bill of exceptions.</p> <p>In the charge:</p> <p>1. The court erred by instructing the jury that the plaintiffs were not concluded by the decree of the court of Common Pleas of Huntingdon county, in the action of partition.</p> <p>2. The court erred by instructing the jury that the plaintiffs were not estopped by the acts of acquiescence, and the collection and receipt of the balance of the purchase money, by Ruth Summerville and themselves, after they had full knowledge of the ground on which they have been permitted to recover the land, for which they received the purchase money.</p> <p>8. The court erred in their instruction of the jury upon the question of the alleged fraud.</p> <p>4. The court erred by instructing the jury to find “the undivided 6-7ths of that portion of the land described in the writ, and in the possession of the defendants, Thomas Jackson and Michael Criswell, or their tenants, or the tenants of either of them, at the commencement of the suit,” embracing the undivided one-third, sold as Christian Garber’s interest, to A. P. Wilson and Dr. Peter Shoenberger, innocent purchasers, without notice of the alleged fraud.</p>

<p>Error to the Common Pleas of Swntingdon county.</p> <p>This was an action of Covenant by McAninch and Mary his wife, late Mary McKee, widow of James McKee, vs. Laughlin, on an article of agreement hereafter stated.</p> <p>Plea, covenants performed, with leave to give the special matters in evidence, and also a special plea.</p> <p>James McKee, of Dublin township, Huntingdon county, bequeathed to his wife Mary, the use and benefit of his whole land, until his youngest son Henry came of the age of twenty-one, “ if she continues my widow, and also for the support of her and the children, and if she does not continue my widow, until the said Henry McKee comes to age, but marries another, I do ratify and allow her for her legacy, one horse and saddle, and one case of drawers, together with bed andbedding.”</p> <p>“ And I further give and devise to my said eldest son, James McKee, and my youngest son Henry McKee, their heirs and assigns forever, all my leasehold estate of and all their messuages or tenements, with the appurtenances, situated in Dublin township, Huntingdon county, equally to be divided between them.” He devised to Ms cMIdren certain personal property, and if one of Ms sons should happen to die, without an heir, he devised his part to the other son — and the residue of his personal estate was to be appraised and sold, within six months after his decease, “ for the good of my wife and family.” He appointed his wife one of the executors of his will. Letters testamentary to the other executors, than the widow, issued in 1809.</p> <p>It was proved that the widow was married to McAninch, in 1815, and continued so for more than 20 years.</p> <p>James McKee, jr., died after his mother married McAninch.— He died in his minority — intestate and without issue. She remained on the land until it came into the hands of Laughlin, eight or nine years ago.</p> <p>Laughlin purchased the land alluded to in the agreement hereafter referred to at sheriff’s sale, when sold as the property of Henry McKee, the surviving son. Henry was younger than James.</p> <p>On the part of the plaintiffs was offered articles of agreement, as follows:</p> <p>Alexander McAninch, intermarried to Mary McKee, the widow and relict of James McKee, late of Dublin township, Huntingdon county, and State of Pennsylvania, deceased, vs. Wm. Laughlin.</p> <p>Witnesseth, that whereas, there never was a writ of partition or valuation had or held on the real estate of the said James McKee, dec’d: And whereas, the aforesaid Wm. Laughlin, has, by a sheriff’s deed, became the owner of the said real estate, subject to the said Mary McKee’s claim to the said real estate, by right of her deceased husband, as above named: Now know all men by these presents, that we, Alexander McAninch, as above stated, and Wm. Laughlin, as above mentioned, have amicably agreed and appointed and chosen Samuel Einley, James Hudson and Robert Campbell, to go on the said premises, and to fix a valuation^-* on the said real estate; and it is further agreed between the said parties, that the said valuation made and agreed upon by the said Samuel Finley, James Hudson, and Robert Campbell, as above named, shall commence on the first day of April, A. D. 1841, and to be final and conclusive, to the decease of the said Mary McKee, now Mary McAninch, the said Wm. Laughlin yielding and binding himself, his heirs and assigns, to pay to the said Alexander McAninch, or Mary his wife, the yearly interest of the one-third part of the said valuation, during her natural life, and no longer. And, we further agree, in these presents, to bind ourselves, our heirs and assigns, executors and administrators, in the penal sum of one thousand dollars, good and lawful money, each to the other, his heirs and executors and administrators, to abide and stand to the said valuation and appraisement, as above stated, as witness our hands and seals, this twenty-eighth day of April, in the year of our Lord one thousand eight hundred and forty-two.</p> <p>Mast McAninch, [l. s.] Alex. McAninch, [l. s.]</p> <p>Wm. P. Laughlin. [l. s.]</p> <p>Subscribing witness called.</p> <p>Benjamin Cross, examined. — Mary McAninch was a married woman when this was signed.</p> <p>Objected to by defendant; that it was not properly acknowledged. It is an agreement in relation to land. Objection overruled and defendant excepts.</p> <p>Article read.</p> <p>Report of said referees written on the back of the article of agreement, read as follows:</p> <p>“ We, the within named Samuel Finley, James Hudson and Robert Campbell, did meet at the request of the within named parties, on the said premises, on the twenty-ninth day of April, 1842, and being organized, did proceed to view the premises within mentioned, and did value and appraise the said plantation at the sum of fifteen hundred dollars, or the yearly rent, or interest of ninety dollars a year, as witness our hands and seals the above date.”</p> <p>Plaintiff also proved after exception by defendant, that Wm. P. Laughlin continued in possession of the premises under this agreement, and that the first year’s rent of $30 was paid by him to-plaintiff, and that defendant expressed himself satisfied with the proceedings and result, and refused an offer to take the land off his hands and pay him the rent fixed hy the referees — and that he has continued in possession of the premises, and that Mary McAninch is still living.</p> <p>Defendant’s counsel offered in evidence the will of Jas. McKee, dated 28th March, 1809, proven 25th April, 1809, to be followed up with proof that the property was sold at sheriff’s sale, as the property of Henry McKee — that he left two sons, one of them named Henry, and that the title to the land vested in him. This offer to show want of consideration, and that she had no interest in the land as set out in this agreement; and that this agreement was entered into by mistake of the parties as to their rights; and that the widow accepted under the will.</p> <p>Objected to, because it proposes to go into the merits of the questions admitted and settled by the article of agreement; and at most the evidence offered only proposes to show a mistake of the parties as to their rights; a mutual mistake of the law, with a full knowledge of the facts.</p> <p>Objection overruled, and plaintiff excepts.</p> <p>This was plaintiffs first bill of exceptions.</p> <p>Evidence was given, on the part of defendant, that on the day of gale of tbe personal property, in 1809, tbe widow got such articles of personal property as she was allowed under the will, except a saddle ; that some other article was spoken of, and not agreed on, and that it might have been the saddle that was not furnished her —nothing said about it at the second sale of personal property. That the will was read in the presence of the widow. That the executors said they were willing to give what was specified in the will to her.</p> <p>The act of assembly in force at the time of the death of James M’Kee, sen’r., in relation to a bequest in lieu of dower, enacts that “if any testator after the passage of this act, (the act of 4th April, 1797,). shall devise or bequeath to his wife, any portion of his estate, such devise or bequest shall be deemed and taken to be in lieu and bar of her. dower, out of the estate of her deceased husband, in like manner as if the same had been so expressed, unless such testator shall, by his last .will and testament declare otherwise, any law, usage, or custom of this commonwealth to the contrary notwithstanding. Provided always, that nothing in this section contained, shall deprive the widow of her choice, either to dower, or the estate so devised or bequeathed.”</p> <p>Wilson, J., charged the jury inter alia, that under this act of assembly, she could not be entitled to both the bequests and the dower in the land, and if she took the property bequeathed to her, after knowing the provisions of the will, it would amount to a choice of the estate bequeathed, and Henry and the purchaser of his estate would take the land discharged from her right of dower. To bar her it must be distinctly shewn she took under the will. That if she accepted, she had no interest in the land, or any right to claim dower; and in this event, defendant would derive no benefit under his contract with her to pay for her claim of dower, and that there would then be no consideration for the agreement by defendant.</p> <p>Verdict was rendered for defendant, Laughlin.</p> <p>It was assigned for error:</p> <p>1st. The court erred in admitting the evidence offered by defendant, constituting the plaintiffs’ first bill of exception. The evidence offered and admitted only went to establish the fact that the defendant was mistaken as to the right of the plaintiffs — “the evidence discloses a case where there was neither fraud, misconception nor surprise, but a mutual mistake, a misconception of law by both parties.”</p> <p>2. The court erred in their charge to the jury, “ it is contended” the court say, “ that ignorance of the legal effect or operation of the agreement entered into between the parties will not serve as a defence. This, as a general principle, is correct, but to it there are exceptions. Contracts based upon a supposed state of things which had no existence in fact, will he relieved against on the ground of mistake; and it is stated in Rankin vs. Mortimer 7 W. 374, that a material mistake of law is an exception to the rule.”</p>

<p>Where a parol partition of lands, ■which had descended to five heirs, was made in the absence of one of them by the other four, and the portions of three of them were set apart by metes and bounds, and at the request of one of the heirs present, the portion of the absent one was added to his, and actual and exclusive possession was taken of the several portions, by those to whom they were allotted — the one who was absent may, after the lapse of sixteen years, at his option, repudiate the division and demand a new partition of the whole tract; or he may adopt all the features of the division, and if it does not overreach mesne rights, acquired by third persons, may recover in ejectment his share of the land from the heir who had it allotted to Idmself, not however claiming for improvements, made upon the land, since the parol partition.</p> <p>The statute of frauds is not a bar to a recovery in the case, even though the defendant, in pursuance of an arrangement with his father, had been in possession of a part of the land allotted to him by the parol partition before the same was made, as Ms entry on the whole division was made in pursuance of the parol partition.</p>

<p>Under the act of 1806, to bring the opinion of the court properly upon the record, it must appear to have been filed by the judge at the express request of a party to the action, preferred before the rendition of the verdict.</p> <p>A party may be required to specify what portions of the charge he asks to be reduced to writing, and when the charge is asked to be filed, it must be pressed to consummation, within a reasonable time, otherwise the judge may disregard it.</p> <p>Under the statute of Westminster 2d, 13 Ewd. 1, when an exception is taken to evidence, or to the charge of the court, it is necessary that the exception should be reduced to writing, at the trial, and presented in form for the seal of the judge, within a reasonable time; when it applies to the charge, embracing as much of the charge as is obj eeted to; if this be omitted, the exception is considered to be waived.</p> <p>In the English practice where a party who on the trial has tendered a bill of exception, brings a writ of error before he has procured the judge’s signature to the bifi, he thereby waives it, and will not be permitted by the court of error to append the bill to the record; but this irregularity is not material in this court.</p>

<p>In a proceeding under the 23rd section of the act of 13th June, 1836, relating to the support and employment of the poor, the record may be brought up by certiorari ; and this court may then correct error in the process, proceedings, judgments and decrees of the court of Quarter Sessions. But in such proceeding, this court -will not examine into the merits of the controversy upon facts.</p> <p>In trials in the Common Pleas, in civil cases,'facts may be brought up by bill of exceptions, stating the evidence, and in the same way, the charge of the court and instruction to the jury upon the evidence, may be made part of the record, and brought up; but neither the opinion of the court, nor the evidence given in the Quarter Sessions, compose any part of the record, or can be made so, by any form of proceeding pointed out by the law.</p> <p>If, in a proceeding such as this, the party complaining has any redress, it is by appeal; but whether an appeal to this court will lie, not decided.</p>

<p>In criminal proceedings, this court will notice only those errors which appear on the record.</p> <p>An indictment for forcible entry should set forth what estate the prosecutor had in the land; for perhaps he is only tenant at will. This court has nothing to do with the manner of the trial, or with the ruling of the court on the trial.</p> <p>An indictment for forcible entry described the premises as “all that piece of land, containing seventy-six acres and one hundred and fifty perches, and the allowance of six per cent., it being a part of a large tract, known as the Peter Jackson improvement, adjoining lands of David Henderson on the east.” This is a sufficient description of the premises, so as to warrant the court in awarding restitution.</p>

<p>Au attachment execution, under the 35th section of the act of 1836, is process to enforce the judgment; it is, in substance, if not in form, an execution. It cannot issue on an award of arbitrators, till the twenty days, allowed for appealing, have expired.</p>

<p>To render valid a mil, made before tbe passage of the act of 27tb of January, 1848, where the testator died before the passage of that act, it must be signed by the testator, at the end thereof, with his name, not his mark, or his name signed thereto by some person, in his presence and by his express direction, and such execution must be proved by two witnesses.</p> <p>Where one witness proved his signature to the will as a witness, and that he signed the name of the testator thereto, at his request; but where the other witness said he put his name to the instrument in the presence of the testator, but though he was brought there to sign as a witness, that the testator did not say any thing to Mm at the time the witness put Ms name thereto, and that the testator did not say any tMng, that he can recollect, when the other witness spoke of sigmng the testator’s name to the mark, tMs is not sufficient proof of the execution of the will.</p>

Error, to the Common Pleas of Bedford county. This was an issue of devisavit vel non, from the Register’s Court of Bedford county, on an instrument of writing, purporting to be the last will and testament of David Long, deceased. Jacob Long, plaintiff vs. Elias L. Zook. August 80, 1849, jury called. Plaintiff produces a paper purporting to be the will oí David Long. (Signed) his Jacob m Long, [seal.] mark.

<p>Error to the Common Pleas of Bedford county.</p> <p>This was an ejectment by the assignee of a mortgage. It was agreed, by the parties, to produce the evidence before the court, without a jury, and the court to state the facts in the nature of a special verdict, and to give judgment on these facts, agreeably to their opinion of the law. Either party to be entitled to a writ of error.</p> <p>The facts were ascertained to be as follows: — The whole tract of land, for part of which this ejectment is brought, was mortgaged, on the 1st of April, 1832, by Christian Snyder, (who was then the legal owner,) to John Piper and John Snyder, administrators of John Snyder, deceased, for $5,087 88, conditioned for the payment of $2,543 91J, in two equal instalments, one on April 1, 1833, and one April 1, 1834.</p> <p>The whole tract of land mortgaged to Snyder’s administrators contained one hundred and eleven acres and three-fourths. On the 12th April, 1842, Christian Snyder conveyed sixty-nine acres and seventy-three perches of it to Daniel Replogle, the plaintiff.</p> <p>After this conveyance, the said mortgage was assigned to Daniel Replogle, the plaintiff, by the surviving mortgagee. The amount due on it was $1,569 05. Replogle paid for it the whole amount due on it.</p> <p>After the transfer of the mortgage to Replogle, viz: in 1845, judgments were obtained against Christian Snyder, execution issued, and the balance of the mortgaged premises, not conveyed to Replogle, was levied and sold, by the sheriff, to William S. Fluck, the present defendant. The sheriff’s deed to Fluck is dated the 14th of November, 1846. Fluck went into possession of the land, and has held it, under that deed, and still holds it. Fluck had notice, at the time of the sheriff’s sale, of the mortgage, and of the balance due on it. The mortgage in question was prior to all other liens upon the same property, and it is, therefore, not asserted, by either party, that the sheriff’s sale discharged the land of the lien.</p> <p>A scire facias was issued, by Replogle, against C. Snyder, with notice to William S. Fluck, tenant in possession, on the 2d of November, 1847, but afterwards discontinued.</p> <p>Divers witnesses were produced, who testified to the comparative value of the part of the mortgaged premises which Replogle and Eluck respectively own.</p> <p>The question, in the court below, was, whether the mortgage must be paid by both the parties, according to the respective value of their parts of the land mortgaged; or whether Eluck, the last purchaser, was bound to pay the whole.</p> <p>Judge Black charged, on the authority of Cowden’s estate, 1 Barr, 267, that the land purchased by Eluck, being the portion last owned by the mortgagor, was liable for the whole balance due on the mortgage, and directed judgment to be entered for plaintiff.</p>

<p>A joint trespasser is a competent witness on the part of the plaintiff, in an action of trespass, against others of the trespassers.</p>

<p>Appeal from the decree of the Court of Common Pleas of Eranklin county.</p> <p>A fi. fa. was issued on the judgment of Richards vs. Garlin, issued 3d April, 1849, returnable on the 9th of April. On the same day, but subsequently, another execution was issued in favor of Keyser, returnable also on the 9th April. A third execution issued on the 10th April, returnable to the August term, in favor of The Bank of Chambersburg.</p> <p>On the two first of these writs, it was indorsed by the attorney of the plaintiffs, “levy at the risk of the plaintiff.” On the third execution, was indorsed, “ the levy made by the sheriff on this writ is to be at the risk of the plaintiff, and of E. Smith and Jacob Heck, the indorsers on the note on which the judgment was obtained.”</p> <p>Another execution was subsequently issued for the county of Eranklin, on which the property, the proceeds of which were in dispute, was sold; but this execution was subsequently set aside.</p> <p>The property levied upon consisted of drugs, medicines and other personal property.</p> <p>It appeared in evidence that Richards told the sheriff that the store was not to be closed, and that he desired the clerk of defendant to attend to the store. It appeared that Richards told the clerk he would be paid out of the proceeds of the store. The store continued open till about the 21st of April, about twelve days after the return day of the two first executions.</p> <p>The nett amount of sales, during the interim, deducting payments, amounted to about $77; above $60 of this, the sheriff directed to be paid to Richards, the plaintiff in the execution. The sheriff never received any orders from Richards not to sell. He understood there was to be a sale, but did not know when. The store was closed at the instance of the person who had charge of the execution for the county of Eranklin — when the sheriff got the key of the store — which he had not had before.</p> <p>The court decreed the money in the sheriff’s hands to be applied first to the execution of Richards, and the balance to the execution of Keyser.</p> <p>This decree was the subject of execution.</p>

This was an appeal from tbe decree of tbe court of Common Pleas of Perry county, distributing money arising from tbe sale of tbe real estate of Postley and of McGowan and McKeeban. Tbe land was situate in Perry county, and consisted of several thousand acres, on a part of wbicb a furnace was erected. Tbe transfers of tbe land were as follows: Power sold to Postley and took a mortgage; Watts obtained a judgment vs. Postley. Postley conveyed to bis sons.

<p>A levy on goods, where they are left in the hands of the debtor, and are used by him, will not amount to a satisfaction of the judgment on which the execution was issued, as against other judgment creditors, though it may generally have that effect as respects a surety.</p> <p>After a levy on personal property of the debtor, the execution creditor, on whose execution the levy has been made, may withdraw the execution, without discharging, thereby, the lien of his judgment on the real estate of the defendant, as it respects other judgment creditors.</p> <p>An assignment of a judgment will earry with it a right to a mortgage, which secured the bond on which the judgment was entered.</p> <p>Where a levy on personal property has been made on an execution, which is not returned, and, after the lapse of two years, the plaintiff assign the balance on the judgment, and the assignee agrees, on receiving a revival of the judgment, that he will have the execution returned, but in fact does not direct the sheriff to return it; such an agreement will not postpone the claim of the said assignee upon a mortgage, which secured the debt for which the execution issued, in favor of one originally bound by the assigned judgment, but who, before execution issued, had sold to the other defendants in the judgment his interest in the real estate in which they were interested, and which was bound by the mortgage and the original judgment.</p>

This was an appeal from the Court of Common Pleas of Perry county, appropriating the proceeds of sale of real estate of John McKeehan, which was sold in October, 1849. The appellant, Topley, was the owner of a judgment in favor of Niblock, as guardian, &c., vs. John McKeehan, No. 46, Nov. T. 1833, entered Nov. 21, 1833. Amicable sci. fa. to Nov. T. 1842, No. 72, Nov. 8, 1842, judgment.

<p>Appeal from the decree of the Common Pleas of Perry county.</p> <p>Kfi.fa. was issued in favor of Wilson, Sieger & Co. vs. McGowan and McKeehan, returnable to April term, 1849, No. 1., issued 6th January, 1849, which was returned “January 11th, 1849, levied on the defendant’s personal property, subject to levy on fi. fa., No. 3 January term, 1848, and other levies, to wit: six gray borses, gears and wagon, five bay horses, gears &c., and all the defendant’s personal property not exempted by law.”</p> <p>Another fi. fa. was issued subsequently, viz : 10th January, 1849, docketed No. 3, April term, 1849, on judgment of L. M. Troutman, on which was returned a levy made March 24th, 1849, on twelve horses and horse gears, four wagons, and a large amount of other personal property, specifying it generally, and all the defendant’s property not exempted by law, subject nevertheless to levies <mfi. fa’s. No. 8 January term 1848; Nos. 42, 68 and 69 of August term 1848; No. 39 October term 1848; No. 1 January term 1849; No. 64 January term 1849, and all former levies remaining on said personal property of defendant’s, and also a large quantity of cord wood and small quantity of iron ore, as the property of McGowan and McKeehan.</p> <p>It appeared by the evidence before the auditors, that a small portion of the wood and ore was acquired by the defendants on the 11th January, 1849, when Wilson Sieger & Co’s, levy was made, but that most of it was acquired between that date and the latter part of March, 1849. Their execution was returnable to April term 1849.</p> <p>The amount in dispute was about $571,07.</p> <p>The court, Black President, decreed the money to the second execution of Troutman.</p> <p>Appeal on the part of Wilson, Sieger & Co.</p>

<p>In 1827 a husband could agree to a voluntary partition of real estate in ■which his wife was interested as an heir; and where equal partition could not be made, the interest of the wife was turned into money, by way of owelty, and could at that time have been reduced into possession .by the husband.</p> <p>Where the agreement to make partition is executed bylines of division, marked upon the ground, followed by a corresponding possession, that is sufficient to perfect it; mere strangers, being judgment creditors of the heir who owned the land, will not be permitted to dispute it.</p> <p>The sum awarded for owelty was a lien on the land, and payable from thepro^ .ceeds of its sale, in preference to subequent liens creditors of the son, who claimed part of the land in his own-right, and part by purchase from others of the heirs.</p> <p>Presumption of payment of the wife’s owelty, from lapse of time, may be rebutted by shewing a payment on account within twenty yearsj and the heir, as whose estate it was sold, and who was bound to pay it, is a competent witness, to prove that the share of the wife has not been paid.</p> <p>When the husband is claiming the balance due on the wife’s share, as the administrator of her estate, he is not estopped -by proof of his declarations that he would not claim the same, there being no proof that the judgment creditors of the defendant in the execution were misled by such declarations.</p>

<p>Error to the Common Pleas of Juniata county.</p> <p>Ejectment for one hundred and fifty acres of land in Greenwood township.</p> <p>Joseph Dish, Emanuel Sanders and Reuben Strausser, plaintiffs in error, vs. Richard Strode, defendant in error.</p> <p>The plaintiff below, defendant in error, claimed title to the land in controversy, under a warrant to Peter Osborne, for one hundred and fifty acres of land, dated 3d June, 1793, in Greenwood township, adjoining Galbreath’s land, .including a spring on north side of said land.</p> <p>Surveyed 5th June, 1793 — one hundred and fifty acres thirty-two perches. Retoned 25th February, 1795.</p> <p>Will of Peter Osborne, devising the land surveyed on this warrant, and deeds of conveyance from the devisees to the plaintiff below, Richard Strode, were given in evidence.</p> <p>The defendants below claimed title by virtue of an actual resident settlement by Edward Reed, commenced in March, 1828; buildings erected upon it in 1829; marking of his boundaries upon the ground, and living upon it from that time until now. A warrant was taken out for the land claimed by the defendants, in the name of William Cox, dated 24th June, 1839, for three hundred acres improved land; interest counted from 1st March, 1828. Survey upon it 12th and 13th November, 1839; returned three hundred and twenty-nine acres one hundred and fifty-five perches. Upon this survey the lines of the Reed improvement were adopted. Cox took out the warrant for Reed, and conveyed the legal title to it to him, 18th March, 1842.</p> <p>Judgments were obtained against Edward Reed, in the Common Pleas of Juniata county, and the land of Reed sold to defendant, Joseph Ulsh, who held a regular sheriff’s title for the property, from 8th May, 1844, when sheriff’s deed was acknowledged.</p> <p>The principal and only question in the cause was as to the location of the Peter Osborne warrant; whether the survey upon it, as located on the ground, included the land, or any portion of it, surveyed on the Cox warrant, which covered the Reed improvement.</p> <p>The action of ejectment was brought to No. 81, September term, 1848; to which the defendants appeared; pleaded not guilty.</p> <p>To sustain the issue on his part, the plaintiff showed the warrant to Peter Osborne’s survey, and the other conveyances, vesting the land surveyed upon that warrant in Richard Strode; and rested.</p> <p>The defendants below then gave testimony.</p> <p>Charge to the jury:</p> <p>This ejectment was brought for one hundred and fifty acres of land, to which the defendants appeared, and pleaded not guilty; and they subsequently limit their defence for that part of the land only which is included within the warrant and survey of William Cox, dated the 24th June, 1839.</p> <p>The only matter in controversy, therefore, is, that the defendants claim title to that part of the land which they allege is included within the warrant and survey of William Cox. Much evidence has been given to the jury on the subject, to show that the warrant of Peter Osborne, under which the plaintiff claims, was not actually located, and the survey actually made upon the ground; and that, therefore, Reed, under whom the defendants claim, had a right to include it within his lines, and take a warrant for it, and have it surveyed, and aj>propriated to himself, in 1829.</p> <p>We instruct you that the evidence in the cause under the pleadings, is sufficient to entitle the plaintiffs to your verdict, unless the defendants have given evidence to satisfy you that it interferes with their title under Reed. If there be any evidence in the cause to satisfy yoiu minds that the survey made upon the warrant of William Cox, interferes with and covers any part of the land included within the plaintiff’s warrant and survey, then the question arises, was the warrant and survey of Peter Osborne actually surveyed upon the ground for which the ejectment was brought? and this we refer to the jury as a question of fact.</p> <p>Is there, then, any evidence in the cause, that these two tracts of land interfere with each other at all, or that the defendants’ survey includes any of the land for which this ejectment is brought? If there is not, and we must say we have not been able to discover any, then the plaintiff is entitled to recover. The only evidence on the subject is the testimony of Adam Wilt, who says: “When we were locating Reed’s claim, he told us to stop, we would go no farther south; that he had heard of a claim of land there, and then we went an east course; I guess we were then on the land now in dispute; I think we were, but I did not know the boundaries of it then.” And whether this included any of the Osborne survey or not, we cannot say. Under the circumstances of this case, it is not for the defendants to dispute the title of the plaintiff, unless it interferes with their rights.</p> <p>This charge excepted to by defendants, and this bill sealed.</p> <p>Frederick Watts, [l. s.]</p> <p>Verdict for plaintiff.</p> <p>Errors assigned.</p> <p>1. The court withdrew the facts from the jury, and instructed them, as matter of law, what should have been submitted to them as one of fact.</p> <p>2. The instruction of the court misled the jury from the real issue between the parties.</p> <p>3. The court imposed the burden of proof upon the defendants below, and required of them to prove what belonged to the plaintiff below, and that which they utterly denied.</p> <p>4. The court erred in saying: “We instruct you that the evidence in the cause under the pleadings is sufficient to entitle the plaintiff to your verdict, unless the defendants have given evidence to satisfy you that it interferes with their title under Reed,” &c.</p> <p>5. And in saying to the jury: “ Is there any evidence in the cause, that these two tracts of land interfere with each other at all, or that the defendants’ survey includes any of the land for which this ejectment was brought? If there is not, and we must say we have not been able to discover any, then the plaintiff is entitled to recover,” &c., &c., as stated in the after part of the charge to the close.</p>

<p>A tenant for life cannot, during Ms occupancy, lawfully remove from the premises buildings of a permanent character, such as a two story brick dwelling house and barn, wMch were erected by Mm, on the same; and, in an action by the remainder man, for such removal, the question is, whether or not, the inheritance has been injured by such removal, and the rule, as to damages, is the amount of the injury.</p> <p>As to whether the cutting of timber upon the premises, by the tenant for life, be waste, will depend on the custom of farmers, the situation of the country, and the value of the timber; and in regard to damages, the ruléis the same as above stated.</p>

This was an action of debt brought by Shower as endorsee of Long, against Kyner endorser upon a note. The parties agree to consider the following facts in the nature of a special verdict, with the right to either party to sue a writ of error without oath or bail. On the 1st Dec. 1847, a draft was drawn by Charles Wharton, jr. & Co., upon P. J. Bujac for $775, payable to their own order at 4 months, and it was indorsed by George Kyner.

<p>Error to the Common Pleas of Cumberland, in a case between Elizabeth Dale, widow, plaintiff, and Dale’s executors, defendants, a special verdict was rendered in the case.</p> <p>James J. Dale died in 1847, having made his will, and letters of administration with the will annexed, were granted to defendants. The plaintiff was his widow. The estate of deceased consisted of certain household furniture, which was delivered to the widow, under the will; a house and lot in Mechanicsburg, Cumberland county, now occupied by the widow, under the will; an interest of one-eighth in 300 acres of unimproved land, worth about $350, the interest of which has been received by the widow, and a personal estate of $3000, on which one year’s interest has accrued, to the amount of $180.</p> <p>The question to be determined by the court was, as to the amount the widow is entitled to under the will. She claims, in addition to what she has already received, the interest, during her natural life or widowhood, accruing on the whole personal property — or one-third of the personal property, except that mentioned in the will absolutely. If she is entitled to receive the interest of the personal estate, then judgment to be entered for her, for $180, the amount of said annual interest now on hand; or if entitled to one-third of the personal estate absolutely, then judgment to be entered for her for $1000; if to neither, then judgment to be entered for the defendants.</p> <p>Will of James J. Dale:</p> <p>I, James J. Dale, of the borough of Mechanicsburg, in the county of Cumberland, and state of Pennsylvania, do make and publish this, my last will and testament, hereby revoking and making void ail former wills by me at any time heretofore made.— And first, I direct that all my debts and funeral expenses be paid as soon after my decease as possible, out of the first moneys that shall come into the hands of my executors, from any portion of my estate. Also, I direct that a fair valuation and appraisement be made of all my said estate, including my household furniture. And that all the real estate of which I shall die. seized or possessed, shall be sold by my executors for its reasonable value, and the amount secured in such manner as is usual in like cases to insure the full and punctual payment thereof. And to effectuate this my intention, I do hereby vest in my executors full power and authority to dispose of my real estate, in fee simple or otherwise,, in as full and large a manner in every respect as I could myself do if living. Also, I do direct that the whole of my household furniture shall be and remain the property of my beloved wife, so long as she shall remain my widow. Also, I do direct that the house belonging to me in the borough of Mechanicsburg, &c., is not to be sold for four years from and after my decease, but to be occu pied by my wife and her mother, as tenants in common, for that length of time; and at the expiration of four years, then, if my widow desire, it may be sold, and the proceeds vested so that she shall receive and have the interest thereof, or may occupy the said house herself, and not have it sold, just as she shall choose. It is my will and intention that the proceeds from the sale of my real estate shall be loaned out and amply secured, so that my wife may* get the interest annually, as long as she shall remain my widow, for the support of herself and my daughter; and if at any time she should marry, then and in that case my whole property, principal and interest, to go to my child or children that I leave.”</p> <p>Watts, president, stated, inter alia: “ There are strong reasons to believe that it was the intention of the testator, after the payment of his debts, that his wife should have the interest accruing from his whole estate, real and personal, while she remained his widow, for the maintenance and support of herself and child, and we have made an effort to give his will that interpretation, but we cannot find an expression in it which will justify such a legal conclusion. After giving his household furniture to his widow, and directing the sale of his real estate and the funding of the proceeds “so that my wife may get the interest annually, as long as she shall remain my widow, for the support of herself and my daughter,” the testator adds: “And if at anytime she should marry, then and in that case my whole property, principal and interest, to go to my child or children that I leave.” In no part of the will is there an intimation given of what is to be done with his personal property while his widow remains unmarried. Whether the law will interpret the latter clause to be a present bequest to his child, (for he left but one,) it is not necessary to determine, for if the widow be entitled to no part of it, (she having accepted under the will,) it will go to the child, of course. We are, therefore, of opinion that the plaintiff is not entitled to recover, and, therefore, render a judgment for the defendant.</p> <p>Error assigned:</p> <p>The court erred in not rendering judgment for plaintiff.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action on the case, by Crotzer and Elizabeth, his wife, and Howard Smith, by his next friend, Crotzer, vs. Tritt.</p> <p>It was alleged, in the declaration, that Tritt had received from a certain Nicholas Howard, in his life time, certain moneys, notes, bonds, mortgages and other securities for money, for the nse and benefit of Elizabeth Smith (now Crotzer) and Howard Smith, and to be transferred, assigned and delivered to them, by Tritt, at the decease of said Nicholas Howard.</p> <p>Evidence was given that Nicholas Howard had said, in 1847, that he had handed his money and papers over to Tritt; that he was getting feeble and old; as he was not able to transact his own business, he had given it to Tritt to manage for him; and said the witness might call on Tritt. Witness wanted to borrow some money. Tritt was called on, told what Howard had said, and the -witness said he wanted $300. Tritt stated that if his brother did not need the money, the witness and others could get it. The witness did not get the money.</p> <p>Hr. Wilson was called, who stated that, in 1847, Howard said to him, that he had signed his money and papers to Tritt, for safe-keeping for “my Lizzey and Howard Smith; in the neighborhood of 1,800 or $2,000.”</p> <p>Other testimony was given of admission of Tritt, in 1847, of having money of Howard’s in his hands.</p> <p>After the death of Howard, defendant denied the trust.</p> <p>Howard died in November, 1847.</p> <p>It was proved that Howard said he “wanted to leave his things in such a way, when he was gone the state could not get hold of it; for it was an unjust law, that the state would take five per cent, of a man’s estate.”</p> <p>It was shown, by the evidence, that about the time the money and securities of Howard were assigned to Tritt, that Tritt executed and delivered to Howard, two bonds, each dated 15th August, 1846, and each for the payment of $848 — one payable 1st April, 1847, the other 8th August, 1847; and that, on the same day, Howard executed and delivered to the said Tritt, an instrument of writing, written by himself, the , said Howard, in which he bound himself to defend and indemnify Tritt; that if the mortgage and promissory note upon Derr hold not out to be good for $800, and the judgment upon McCord hold not out to be good for $800, then the said Tritt, his heirs, &c., is not to pay more than what can be recovered of the two men named; and that Tritt, his heirs, &c., shall have a lawful recompense for the trouble they shall be at. And if he (Howard) should not live to have this matter settled, his desire was that these debtors should have two years after his death before they were sued; and that Tritt “is to have four years after my death to pay the money to my heirs, or executors, or administrators.”</p> <p>On these bonds from Tritt to Howard were indorsed certain payments, to wit: on that payable 1st April, 1847, are the following; 2d January, 1847, principal $93 17 — interest for nine months $4 19|-; 5th April, 1847, $50 64J; — on bond due 8th August, 1847, is indorsed, 12th August, 1847, $100 00.</p> <p>The plaintiffs below offered in evidence these indorsements, which were in the handwriting of Tritt, for the special purpose of establishing the fact that the bonds were in Tritt’s possession at the time the payments were made; and the evidence was thus specially admitted by the court. The defendant’s counsel contended that these indorsements, if offered for the plaintiffs, were evidence for every purpose.</p> <p>To the admission of this evidence, a bill of exceptions was sealed.</p> <p>A judgment in favor of Howard vs. McCord, for $852 20 and interest, was given in evidence; and an assignment of $800 of it to Tritt, on 8th August, 1846. 10th August, 1846, receipt of N. Howard, “for $78 88, the amount due on the judgment.” 14th May, 1847, receipt of Tritt for $836 26, in full of debt and interest. Also, $1 12J plaintiff’s costs.</p> <p>Mortgage book E, page 16: mortgage Derr to Howard, in the penalty of §1,800. Condition, payment of §400 1st April, 1835, §100 April, 1836, and so on, each year, till 1840, inclusive. 8th August, 1846, the balance, §706 83, with interest 1st April, 1846, assigned to Tritt.</p> <p>It appeared that Howard was a surety in a note on which sixty dollars were due and unpaid.</p> <p>His funeral expenses amounted to about forty-three dollars and seventy cents.</p> <p>The plaintiffs in the suit are grand-children of Nicholas Howard’s wife, through her first marriage; and it was alleged that defence to a recovery was made by the heirs of said Howard.</p> <p>Defendant’s counsel asked the court to charge jury—</p> <p>1st. That the declarations of Nicholas Howard, made to third persons, and not communicated to Samuel Tritt, nor assented to by him, are not evidence in this suit.</p> <p>2d. That this is- especially so when such declarations are inconsistent with, and contradict the written agreement and declarations of the said Howard, dated the 15th Agust, 1846, and signed and sealed by him, in the presence of two witnesses, wherein he declares how and when the money in controversy is to be paid and distributed.</p> <p>3d. That parol declarations of a trust are to be received with great caution, because they are easily fabricated and difficult to contradict; and for the further reason, that the slightest mistake of recollection may totally alter the effect of the trust.</p> <p>4th. If, therefore, the jury believe the testimony of Dr. Wilson, in 1847, that Howard told him, “that he had signed his money and papers all to Mr. Tritt, for safe-keeping, for my Lizzy and Howard Smith,” the same cannot prevail against the written declaration of the said Howard, executed a few days after said money and papers were assigned to Tritt.</p> <p>5th. That any declarations of Nicholas Howard, that he would leave something to the plaintiffs in this suit, or that he intended to leave them his property, will not entitle them to recover in this action.</p> <p>6th. That there can be no recovery by the plaintiffs in this case, in the face of the paper executed by Nicholas Howard, and delivered to Tritt, in-which it is stipulated that said Tritt is to have four years after said Howard’s death to pay the money claimed by plaintiffs in the present action.</p> <p>7th. That if the jury belive all the evidence on the one side and the other, it is too vague, uncertain and contradictory to establish a legal trust, and plaintiffs cannot recover.</p> <p>8th. If the court are against us on the foregoing points, then we respectfully ask them to charge, that if the jury believe that papers and money were placed in the hands of Tritt, to keep for Elizabeth and Howard Smith; and that the purpose of so placing them was that the state should not receive the collateral inheritance tax; and that the payment of certain liabilities of Nicholas Howard, as the bail of John Moore, should be avoided; and that one of said liabilities still remains unpaid; and other debts of said Howard are/still outstanding; and the fund in controversy is all the estate remaining of said Howard; then his administrator,, and not the present plaintiffs, can alone sustain a suit for its recovery.</p> <p>Watts, President, charged the jury relative to the first and second points, that the declarations of Howard were not sufficient, in law, to charge the defendant with the receipt of the money or choses in action; but if the jury believe, from other independent evidence, that the defendant did receive the money and property of Howard, as a trustee, to be paid to the objects of the bounty of Howard, after his death, then the declarations were admissible as to the persons for whom the trust was created.</p> <p>To the third and fourth points, he charged that a trust may be-proved by parol.</p> <p>As to the fifth, he charged affirmatively.'</p> <p>• To the sixth, he charged that if the paper signed by Howard, by which payment was postponed for four years, was but a part of the plan by which the estate was to be concealed from the commonwealth and her officers, and the defendant was notwithstanding liable to repay the money at any time after his bonds became due to the cestui que trust, for their maintenance and support, or to them directly after his death, or to himself during his life, and the balance to them after his death, that the plaintiffs may recover in this action.</p> <p>To the seventh. — He declined to answer this point in the affirmative ; and to the eighth point, that he did not think there is any thing in this point which will defeat the plaintiffs’ right of action.</p> <p>Errors assigned to the admission of the testimony .referred to in the bill of exceptions; in not answering the defendant’s fourth point; and in the answer of the court to defendant’s sixth, seventh and eighth points.</p>

<p>Error, to the Common Pleas of Cumberland County.</p> <p>This was an ejectment for 80 acres and 67 perches and allowance of land by Duncan vs. Mahon.</p> <p>Mahon, the defendant below, claimed under a warrant to him of 6th February, 1849, and survey by the deputy surveyor in the same month. The land covered by this warrant was alleged, on his part, to lay between two surveys, claimed by Duncan, the plaintiff, viz: between the South line of the William and Thomas Duncan survey of November, 1762, for 250 acres and 140 perches, and returned in 1782, on a warrant for 50 acres, to them, of the 10th June, 1762, and the North line of the William Duncan survey of 4th March, 1767, for 229 acres and 87 perches on his warrant of the 1st of August, 1766. This survey returned in 1789. This last tract was patented to William Duncan in 1789.</p> <p>On a caveat by Duncan, plaintiff below, against Mahon, the board of property in April, 1849, decided that the survey of Ma-hon should be accepted.</p> <p>It was alleged, on the part of Mahon, that according to the calls of the South line of the tract first above referred to, and the North line of the other tract, on a survey being made upon the ground, that there was vacant land between them, and that vacant land was claimed by Mahon, under his warrant and survey. It was also alleged, on his part, that there were marks on the ground of the old returned surveys, and that the marks agreed with the calls of such surveys, and that there were no marks on the ground to show that the two lines of the old surveys, or of either of them, were run at different places from those called for by such returned surveys.</p> <p>It was contended, on the part of Duncan, that those two South and North lines had not been actually run upon the ground. That William Duncan was, in 1776, the owner of the western portion of the Thomas and William Duncan tract, and that owning this, he made application for authority to take up 160 acres, adjoining his other land. That the warrant was placed in the hands of the deputy surveyor, and in that survey there is a call made for other land of William Duncan. That of the land in dispute, two-thirds or more of it are covered with timber, but no cross line or marhs can he found to show that the South line of the survey of 1762, or the North line of that of 1767, had ever been mar Iced on the ground. William Duncan used the two as one tract, beyond the memory of the oldest witness who testified at the trial. It appeared that part of the land in dispute had been cleared so long as to be without stumps — part of it still had some stumps. William Duncan devised the land in dispute to David Duncan, the plaintiff below.</p> <p>Defendant’s counsel put various points to the Court, to some of which Watts, President, charged as follows:</p> <p>The cause is within a narrow compass; and it is so much a matter of fact, that we must submit it to you. If the William and Thomas Duncan warrant, for the use of William Duncan, and the William Duncan warrant were actually run and marked upon the ground, and returned into the land office as not adjoining each other, but with vacant land between them, and whether this was by design of the owners of the warrant or by mistake of the surveyor, and the land in' dispute is the vacancy between them, then the defendant is entitled to the verdict.</p> <p>But if the line was left as an open line, so far as actual running or marks on the ground were concerned, from 1762 until 1766, when the William Duncan warrant was taken out, and until 1767, when that warrant was executed, and the deputy surveyor adopted the actual or ideal line of the Thomas and William Duncan warrant and survey, and intended and did return them as adjoining eaeh other, then the law will reconcile the conflicting elements of these two surveys, and give to the William Duncan warrant the survey upon the William and Thomas Duncan warrant as a definitive boundary. And in this view of the case the plaintiff is entitled to recover.</p> <p>When William Duncan, in 1766, took out his second warrant and had it executed in 1767, he intended to locate it as adjoining his other lands, which he had purchased from the proprietors only four years before, for in his warrant he calls for his other land as adjoining, and when the survey was made by the deputy surveyor, he marks the other land of William Duncan as adjoining. Now, if it was actually so located on the ground as adjoining, and so returned, then the land belongs to the plaintiff, and your verdict should be for him; but if he intended to throw out the land in dispute, and did throw it out, he has now no title, and the defendant should recover. And as we before said, that if the North line of the William Duncan warrant was actually run and marked on the ground, and the South line of the William and Thomas Duncan survey were also actually run and marked on the ground, and they were so returned into the land office, by design or mistake, the plaintiff is not entitled to recover, and your verdict should be for the defendant.</p> <p>This charge excepted to by the plaintiff and defendant, and this bill sealed.</p> <p>April 17, 1850.</p> <p>Verdict for plaintiff, and judgment thereon.</p> <p>The above answers of the court, inter alia, were assigned for error.</p>

<p>Error, to the Common Pleas of Perry county.</p> <p>This was an action of ejectment, by Roland vs. Long, for twenty-seven acres of land, more or less, in Perry county.</p> <p>Long claimed under an application and warrant, in 1815, for fifty acres, and payment of purchase money.</p> <p>The land was described in the warrant as follows:</p> <p>“Fifty acres of land, situate in the township of Toboin, and county of Cumberland, adjoining lands of the heirs of David Reed on the north, George Foust on the east and south, and John •Alexander on the south, Frederick Fought and William Rowlin on the west.”</p> <p>The field notes of the survey made by Clark were indorsed, in his handwriting, on Long’s warrant in the deputy'surveyor’s office.</p> <p>4th September, 1815, receipt to John Long, by State Treasurer, for $18 33, and fees $4 50.</p> <p>22d June, 1849, survey of thirty-six acres ninety-one perches, for John Long.</p> <p>Before Clark was called as a witness, defendant proved, by a certificate of the Surveyor General, under the seal of his office, that upon diligent search in his office, for a return of survey upon John Long’s warrant, dated 4th September, 1815, he could find none made prior to October 24th, 1849.</p> <p>Whether a survey was made on this warrant, was made a question. No return of it was made till 1849.</p> <p>Indorsed on the warrant were notes of survey; and plaintiff produced Clark, who testified that he was deputy surveyor in 1815; that he had Long’s warrant; went upon the ground, and made a survey; that the notes on the warrant are the lines he run; that he made a draft, and recollects making a return; remembers sending it to the land office, with some others; this was his usual way; spoke of this from his habit, &c.; cannot say, distinctly, how he sent it — whether by mail or hand.</p> <p>The admission of Clark’s evidence, as to what he did in returning the survey upon the old warrant, was excepted to on part of plaintiff.</p> <p>Roland, the plaintiff, claimed under a warrant, dated in February, 1849, for twenty-five acres, and survey of twenty-seven acres, &c., in April, 1849, and subsequently returned.</p> <p>Admitted tbat defendant was in possession.</p> <p>For facts, see extract from charge.</p> <p>Wilson, who surveyed the land on Roland’s warrant, said that when he executed the warrant for Roland, there was a small field cleared on the land — two or more acres. Long lived on another tract, but occupies both tracts now, as one farm.</p> <p>Both surveys returned into the land office at the same time, and caveats entered as to the acceptance of each.</p> <p>The counsel for plaintiff requested the court to charge the jury, and file their charge of record on the following point:</p> <p>That no survey having been returned into the land office, by John Long, on his warrant of 4th of September, 1815, until 24th of October, 1849, and then a return of survey, junior, in point of time, to the plaintiff, and having paid no taxes for the land in controversy from the year 1826-7 and ’8, constitute, in law, an abandonment of the land in controversy, and the plaintiff, having taken out a warrant for it on the 26th of February, 1849, and paid the commonwealth the purchase money — had it regularly surveyed by the deputy surveyor of the county, on the 28th of April, 1849, and returned into the land office on the 24th of October, 1849, vests in the plaintiff the legal title to the land in controversy, and entitles him to the verdict of the jury in this action.</p> <p>Charge of the court, Watts, President Judge':</p> <p>The defendant’s title is founded upon a precisely descriptive Warrant, upon which the whole amount of the purchase money and fees were paid, for fifty acres, dated the 4th September, 1815, directed to Robert Clark, Esq., deputy surveyor, which was soon after delivered to him, and upon which he testifies that he made a survey upon the land in dispute while he was in office, and of which he made a draft, and sent it to the land office, and for which Mr. Long paid him his fees. It appears that no such survey and return reached the land office; at least, no evidence of it is to be found. That the survey was actually made upon the ground seems to be clear, for the notes of it are indorsed upon the warrant, in the handwriting of the deputy, Robert Clark, and William Wilson, the present deputy, testifies that he blocked some of the lines on the ground, and found them to correspond with Mr. Clark’s work. Thus the matter remained until the 26th of February, 1849, when the plaintiff makes an application for the same lands, pays the purchase money and fees, and obtains a Warrant also, precisely descriptive for twenty-five acres, and which he puts into the hands of the deputy surveyor, who, on the 28th of April, 1849, makes a survey of the land. About this time or soon after, Mr. Long learns this, he procures the same deputy to make another survey upon his warrant of 1815, which he did on the 22d of June, 1849. Mr. Wilson, as he testifies, knew of the existence of Long’s warrant when he made the survey for Roland; and that the land office might grant the title to him who was entitled to it, he made the return of the surveys upon both warrants, on the 24th of October, 1849, after this suit was brought.</p> <p>It is clearly proven that Roland, when he made his application and obtained his warrant, had full knowledge of John Long’s title, and had known it for many years before.</p> <p>These are the leading features of the respective titles of the parties.</p> <p>If the jury believe that Long obtained his warrant in 1815, delivered it to the deputy surveyor, paid the fees, had the survey made within a short time, then his title is older and better than that of the plaintiff, Roland, unless, from other evidence in the cause, he has abandoned that title, and, from his negligence to perfect it, has justified Roland in obtaining a warrant for the same land.</p> <p>Plaintiff’s first point read. We cannot instruct you that these facts constitute a legal abandonment of the land by Long; for if, when he obtained his warrant, he paid his money in full to the commonwealth, and paid the deputy to make the survey, and it was made, and when he learns that the deputy had not made a return yet, procures it to be done, we instruct you, that there was not such an abandonment as to justify Roland, who had a full and perfect knowledge of Long’s title, to take out a warrant for the same land. The non-payment of taxes by the owner of unseated land, is evidence of abandonment so far as it goes; but it is not conclusive evidence, and may be rebutted by the facts that the warrantee had paid his purchase money, had cleared part of the land, and continued, occasionally, to cultivate it as part of his farm, and used that not cleared by cutting timber upon it when he found it necessary.</p> <p>The facts do not justify us in instructing you that they constitute a legal abandonment of the title by John Long; but if you find, as a matter of fact, that he did abandon his older title, then Roland would be justified in taking a warrant for it.</p> <p>The jury rendered a verdict for the defendant.</p> <p>Errors assigned:</p> <p>1. The court erred in overruling the objections to the testimony of Robert Clark, Esq., as stated in plaintiff’s first bill of exceptions.</p> <p>2. The court erred in telling the jury, that if “Long obtained his warrant in 1815, delivered it to the deputy surveyor, paid the fees, had the survey made within a short time, then his title is older and better than that of Roland, the plaintiff, unless, from other evidence in the cause, he has abandoned that title, and, from negligence to perfect it, has justified Roland in obtaining a warrant for the same land.”</p> <p>8. The court erred in their negative answer to the plaintiff’s point. It should have been answered affirmatively.</p>

<p>To entitle a joint debt against two persons, wbo were in partnership at the time the instrument of indebtedness was executed, to a preference oyer a debt against one of the partners, out of the proceeds of sale of partnership property, it must appear affirmatively that it was contracted on the partnership account.</p>

<p>The lien of a judgment rests on the construction of the statute of Westminster 2d,- and not on any principle of general equity or the common law.</p> <p>A judgment creditor is not entitled to the protection of a purchaser of the legal title, against an equitable owner or his creditors, or to any advantage which his debtor had not.</p> <p>Where land is purchased by a person, who has a deed for the same made to another, in trust for himself, a part of the purchase money being paid by the purchaser, and judgment notes for the balance of the same given by the trustee, and the land is sold on a judgment on one of said notes, the trustee having paid no part of the purchase money, the balance of the proceeds of sale, afterpayment of the purchase money, is payable to judgments against the purchaser, instead of to judgments against the trustee.</p>

<p>Error to the Common Pleas of Perry county.</p> <p>Matthias Rumbaugh and Elizabeth his wife, in right of the said Elizabeth, plaintiffs below and defendants in error, vs. John C. Goodyear, defendant below and plaintiff in error. In the Common Pleas of Perry county, No. 15, April term, 1849. The declaration is the common count in indebitatus assumpsit, for money had and received,laying the indebtedness to be “to the said Matthias Rumbaugh and Elizabeth his wife, in right of the said Elizabeth,” and the promise to the same parties.</p> <p>In the year 1843, Elizabeth Rumbaugh, the wife of Matthias Rumbaugh, loaned John C. Goodyear one hundred dollars, which was her own money. On the 18th November, 1848, Matthias Rumbaugh, the husband, and Goodyear, the defendant, made an amicable settlement of a certain action of ejectment, which was then pending between them, and of all their accounts of every kind. The $100 loaned by Mrs. Rumbaugh to Goodyear, was expressly included in that settlement, and the debt was released by the husband, as part of the consideration of the compromise of the ejectment. The matter in controversy in this suit, is, whether the payment made to the husband (after the passage of the act of April 11, 1848, relative to the rights of married women,) is a bar to a recovery in this suit under the circumstances of the case..</p> <p>The court below, inter alia, charged that this was in law, the action of the wife to recover the money, which was hers.</p> <p>Judgment was rendered for the plaintiffs.</p> <p>Error assigned:</p> <p>The court erred in entering judgment for the plaintiff, on the case stated, instead of for the defendant.</p>

<p>Appeal from tbe decree of tbe Common Pleas of Berks county, for distribution of tbe proceeds of sale of personal property of Pawly. At the time tbe executions issued, Pawly was engaged in tbe stove business, and in tbe manufacture of tin and copper ware, door-locks, and in tbe sale of gas fixtures in Reading. Shenfelder held a judgment against Pawley, entered Feb. 27,1849, payable on tbe next day, entered for $1,500 with stay till day of payment. Fi. fa. issued Feb. 28th, 1849, to April T. 1849, No. 41. This execution went into tbe sheriff’s bands on tbe same day. About a week after receiving tbe execution tbe sheriff made a levy in tbe following manner: He took an inventory of some of tbe goods. A list was banded to tbe sheriff by Mr. Pawly, who levied upon the articles mentioned therein, adding “ and all the rest of defendant’s goods and chattels.” Tbe sheriff was not in tbe view of all tbe goods and chattels at tbe time be made tbe levy, some of them be saw, others be did not see. Pawly made use of several rooms as workshops and ware-rooms, and also a barn or stable at some distance from bis front shop, in which latter place bis wares were deposited for sale, with tbe exception of a number of stoves, &c., which were in said stable. Into some of these rooms tbe sheriff went at tbe time be made tbe levy, into others, including tbe barn, be did not go.</p> <p>Tbe goods levied upon in this manner remained in tbe bands of Morris Pawly, tbe defendant in tbe execution, who carried on bis business which was large, as usual; buying goods and materials in Philadelphia and elsewhere, making up materials into articles fit for sale, and selling; tbe whole stock remaining pretty much the same in value until tbe next execution issued. It seems from tbe evidence that Sbenfelder gave no instructions to tbe sheriff, either as to selling tbe goods, or as to delaying or postponing tbe sale of tbe same. He was frequently in tbe shop and about tbe premises during the time the execution was in the hands of the sheriff. On the 2d June, 1849, the next execution issued, being that of J. S. Richards for use, &c., and went into the sheriff’s hands on the same day. The levy upon this execution was made much in the same manner as that upon Shenfelder’s, excepting that the sheriff did not go into as many of the different rooms, or shops, and no inventory of any kind was taken. The sheriff levied on “ all goods and chattels not subject to prior executions.” On the 12th June, 1849, the execution of E. W. Earl issued, and went into the sheriff’s hands on the same day; upon the receipt of this latter execution, the sheriff closed up the concern, advertised and made sale in due course of time. The sale was held on June 27th, 28th, and 29th, a small lot on July 16.</p> <p>On the 14th June, a fi. fa. in favor of Boas was issued — returned, levied on goods and chattels of defendant, and subject to prior executions and sold,'as per return annexed to 41, April T. 1849. The three last executions were to August T. 1849.</p> <p>It was alleged that the execution of Richards was discharged by a note, which he received from A. Boas, for the amount of his execution, a short time after it was issued. Richards afterwards said his debt was paid but not the costs. The note of Boas was not paid, and the court, in their opinion in relation to this execution, observe that the question seemed “to turn upon the point, whether Mr. Richards took the note of Boas as collateral security, or as payment and satisfaction of the execution?”</p> <p>The court ordered distribution in favor of the execution of Shenfelder and of Richards, and the balance on account of the execution of Earl.</p> <p>Appeals were taken by Earl and Boas.</p> <p>It was assigned for error on the part of Earl, that</p> <p>1. The court erred in assigning any part of the fund in court to Shenfelder—</p> <p>2. Or, to Jno. S. Richards.</p> <p>8. In deciding that the pretended levy on Shenfelder’s execution was a valid levy — or that the lien of it continued, under the circumstances, until the issuing of Earl’s execution.</p> <p>4. The court erred in not decreeing to E. W. Earl the full amount of his execution against Pawly.</p> <p>Errors were also assigned on the part of Boas, as to any part of the fund having been assigned to Shenfelder.</p>

<p>Error to the Common Pleas of Berks county.</p> <p>This was an action of ejectment by Henry Hetrick, junior, against Eyrick and Deppen, for a house and lot of ground.</p> <p>The plaintiff, Henry Hetrick, junior, claimed the house and lot in dispute, under a title as follows:</p> <p>Henry Hetrick, senior, the father of said plaintiff, was the owner of said lot, prior and up to the 30th of December, 1824.</p> <p>The said plaintiff gave in evidence a deed, dated the 30th of December, 1824, to his son, Henry Hetrick, junior, for said lot, to hold the same “for and during the life of John Hetrick, also a son of the grantor, and from and after his decease, to the heirs and legal representatives of the said John Hetrick, their heirs and assigns forever, upon the special trust also that the said Henry Hetrick, junior, and his heirs shall permit and suffer the said John Hetrick to live on and enjoy the rents, issues and profits of the said estate.”</p> <p>The defendants alleged that Henry Hetrick, senior, and John Hetrick, were both insolvent at the time the deed bears date, and that it was given to defraud the creditors of the said Henry Hetrick, the elder, and John Hetrick, and that said deed was never delivered to Henry Hetrick, junior, the plaintiff, nor the trust accepted by him, and that he never knew any thing of it, and that the plaintiff was a lunatic at the time the deed bears date, and that he could not assent to or accept of the trust, and was then unable to transact business, and has continued so from that time to the present, and has not and never had mental capacity to assent to or accept of said trust. That John Hetrick and Henry Hetrick, senior, with other debts,’ were indebted, at the date of said deed, by bond dated 1st day of April, 1814, in the sum of ¿£75 to Philip Smith, and that one of their objects in making said deed was to defraud this particular creditor.</p> <p>That Philip Smith died, and his executors brought suit on the said bond, in the court of Common pleas of Berks county, to November term 1838, against John Hetrick, surviving obligor of Henry Hetrick, senior, deceased, in which suit a judgment was obtained for $275 01, on the 27th of September, 1845.</p> <p>That this lot was levied upon, condemned and sold by the sheriff, to Daniel Deppen, one of the defendants, and that the sheriff duly executed, acknowledged and delivered a deed to him for the same, dated the 13th day of April, 1845.</p> <p>The defendants contended that the deed given in evidence by the plaintiff, having been made to defraud the creditors of Henry Hetrick, senior, and John Hetrick, that the title to the said lot was vested in Daniel Deppen, by virtue of the sheriff’s sale and deed.</p> <p>The defendant’s also contended, that the deed never having been delivered to the plaintiff, nor the trust accepted by him, there could be no recovery in this action.</p> <p>Henry Hetrick, senior, died in 1825 or 1826.</p> <p>The defendant’s below, on the trial, offered, inter alia, in evidence, a deed from Hetrick, senior, to his daughter, for a lot of ground; also, a deed from him to his son Henry, for three lots of ground. Both deeds were dated on the 30th of December, 1824, and were duly recorded; and proposed to follow this with proof of a bill of sale by Plenry Hetrick, senior, of his personal property, dated November 18th, 1824, for the purpose of covering it from his creditors; aand also with proof of a deed of assignment dated the 13th January, 1825, by the said Henry Hetrick, senior, in trust for his creditors; and also with proof that the old man said this deed for the land in dispute was to secure the property for John from his creditors, and that John said the same thing, and that the debt on which this lot was sold, was a debt due from Henry Hetrick, senior, and John, his son, and so set out in the narr. The proceedings, on which it is alleged that the property was sold by the sheriff to Dr. Deppen, one of the defendants, were against John Hetrick alone, and the land was levied on and sold as his land. This was aceompanied.bythe offer to prove that Henry Hetrick, junior, was, at the date of the deed to him, a lunatic, and unable to transact business, and'b'ontinued so from that to the present time.</p> <p>The plaintiff, by his counsel, objected to the admission of said testimony, and the court over-ruled the evidence.</p> <p>The defendants offered to prove that John Hetrick, immediately after the date of the deed, went into possession of the land, claiming it as his own, improving it as his own, building a house and stable on it as his own, renting it and receiving the rents of it as his own. That he and the old man both said it was his, and that the deed was made for the purpose of securing it to Mm; that he paid taxes for it during all that time as Ms own, and that Henry Hetrick, junior, Ms trustee, lived in the immediate neighborhood, was a lunatic at tbe date of tbe deed, and unable to transact any business whatever, and has continued so from that time down to tbe present; that tbe deed was made in Reading, and that Henry Hetrick, junior, was not present, and knew nothing of it.</p> <p>Tbe plaintiff, by bis counsel, objected to tbe admission of said testimony.</p> <p>Tbe court sustained tbe objection, and rejected tbe evidence, and tbe defendant’s counsel excepted.</p> <p>Tbe court charged tbe jury that tbe plaintiff was entitled to a verdict.</p> <p>To which charge tbe defendant’s counsel excepted.</p> <p>Errors assigned:</p> <p>1. Tbe court erred in rejecting tbe evidence, as contained in tbe two bills of exceptions.</p> <p>2. In charging tbe jury that tbe plaintiff was entitled to recover.</p>

This is an appeal from the decree of the Court of Common Pleas of Berks county, distributing certain money arising from the sheriff’s sale of the real estate of John Darrah. On the 25th February, 1848, Geo. G. Barclay, entered up a judgment against the said John Darrah for the sum of $500, with interest from January 16, 1848, in the Court of Common Pleas of Berks county, to January term, 1848, No. 186.

<p>Error to the Common Pleas of Berks county.</p> <p>It was a venire issued on the petition of Boyer, executor of the will of the widow Luther, to assess damages for the construction of the Reading Railroad through land in which she had a life estate. Her husband devised to her a piece of land containing twenty-eight acres during her life. He directed other lands, containing in all about 58 acres, to be sold by his executors, and conveyed in fee simple. Subsequently an agreement was signed by most of the heirs of the testator, including two of them who were executors of the will, to the following effect. There was some evidence of the existence of an heir, who had not signed the agreement. The heirs who were executors did not sign as executors, but individually: ■</p> <p>Know all men that we the subscribers, heirs of Charles Luther, deceased, do remise, release unto his widow during her natural life, all that certain messuage, plantation and tract of land, situate in Amity township, Berks county, bounded by lands of Samuel Herr and others, containing fifty-three acres, more or less, in lieu of a certain other tract in Amity township aforesaid, containing twenty-eight acres which was devised unto said widow during her natural life, in the said Charles Luther’s last will and testatment, which she the said widow and heirs released to be sold. And now know ye, that we the subscribers do hereby release, quit claim unto the said widow during her natural life all our right on the aforesaid tract containing fifty-three acres.</p> <p>Witness our hands this 15th day of December, one thousand eight hundred and twenty-seven.</p> <p>The admission of this agreement was objected to, but it was allowed to be read.</p> <p>Evidence was given of the construction of the railroad through the fifty-three acres in 1836 — the death of the widow in 1847, at the age of eighty-three years — the quality of the land taken by the road — and such damage as is generally occasioned by the construction of a railroad.</p> <p>The counsel for the defendant then requested the court to instruct the jury as follows:</p> <p>1. That the plaintiff’s testatrix, at the time of the alleged injury, &c., had not that ownership in the land injured, which would enable her to maintain her separate action.</p> <p>2. That the plaintiff can only recover such damage as was done to the life estate of Wilhelmina Luther.</p> <p>3. That said life estate having ceased, the jury are not at liberty to estimate any damages which might happen after her death.</p> <p>4. That the buildings not having been burned during her life, no damage to them is to be estimated.</p> <p>The plaintiff’s testatrix was a tenant for life of the premises, for injuries done to which, as they affected the life estate only, damages are sought to be recovered in this proceeding. It has been objected by the defendant, that at the time of the alleged injury, the testratrix had not that ownership in the land injured, which would enable her to maintain her separate action. The 12th section of defendants’ charter provides that “¡"¡the said company shall pay or satisfy the owner or owners of the ground taken or occupied” in the construction of the said rodd, and if the parties cannot agree upon compensation, &c., a venire shall be awarded on application of either of the parties to ascertain the damages sustained by the owner or owners of the ground, with a right of appeal reserved to either. We think that the testratrix was an owner, in respect of her life estate, within the meaning of this charter, and such an one as may maintain^a separate action. This word “ owner” has no technical meaning, and being used as a nomen generalissimum in acts of this kind, should be construed most liberally in favor of the public. It is true that she is not the sole owner. Her estate and the reversion together make entire the fee. But she had a present right to receive the beneficial returns of the land, a right to sue for injuries done to the land, in which her life estate was, by the defendant. This principle was decided in favor of a lessee for years in Lister vs. Lobley, 6 Nev. & Man. 340. The joinder of all the interests which constitute the entire ownership, is not necessary to maintain this proceeding. Those interests are several interests in this case, and, although the injury complained of caused an entire joint damage, the parties holding these several interests may sever in pursuing their remedy for damages.</p> <p>Their second, third and fourth points upon which the defendant requests us to instruct you, we answer in the affirmative.</p> <p>The proper and only subject for your consideration is what damage was done to this life estate — and in estimating that you will observe that its precise duration is no longer matter of supposition, but is determined by the death of the tenant for life. It is admitted that she lived about 12 years after the injuries to this land, complained of in this proceeding.</p> <p>A certain quantity of land was actually taken — how far did the loss of that injure the life estate ? You are not to give its value by the acre, the tenant for life was not entitled to that. But to what amount did the deprivation of that land injure her interest. That is the inquiry. And so with cutting off the communications of the farm — the barn-yard — the garden, obstructing the flow of manure water into the meadow and the like. The removal of the out-buildings — the destruction of old fences and putting up of new ones — any expenses incurred by the tenant on these accounts should be allowed. If any advantages resulted to the life estate of this plaintiff’s testatrix, from the opening of the railroad through this land, you should have a just regard for that — and should take it into account in estimating the damages.</p> <p>To this charge the defendant’s counsel excepted, and at their request the same is reduced to writing and filed.</p> <p>J. Pringle Jones.- [l. s.]</p> <p>Errors assigned :</p> <p>1. The court erred in admitting the will mentioned in plaintiff’s first bill of exceptions.</p> <p>2. The court erred in admitting the agreement mentioned in plaintiff’s second bill of exceptions.</p> <p>3. Court erred in not answering the first point of plaintiff in error in the affirmative — and in its answer to the said point.</p> <p>4. In charging that “ the testatrix (Wilhelmina) was an owner in respect of her life estate, within the meaning of the charter” of the said company, “ and such an one as may maintain a separate action.”</p> <p>5. And in the rule of damages laid down by the court.</p> <p>6. In charging that “the joinder of all the interests which constitute the entire ownership is not necessary to maintain this proceeding” — “ and although the injury complained of caused an entire joint damage, the parties holding these several interests may sever in pursuing their remedy for damages.”</p>

<p>Where a testator devised the one-third of the proceeds of sale of his real and personal property to a trustee, to have and to hold the same for and during the life of testator’s daughter, who was a married woman, he to permit the said daughter to receive and take the interest or income yearly, for her sole and separate use, without any hindrance from her husband or his creditors; and after her decease, the one-tliird to be divided among her children, share and share alike, as they ai-rive at the age of twenty-one years; but in case the said Margaret (the daughter,) should not have any lawful issue or children, and living, then in that case the remaining one-thii'dshall descend to her two sisters, or their heirs forever.</p> <p>Held, that the legacy was contingent, and did not vest in all of the children of the said daughter, living at her death, but that the share of one of them, who died in her minority, after the death of her mother, was payable by the trustee to the other children.</p>

<p>It is not necessary that a contract should be signed by both parties; it may be good if signed by one only; the assent of the other may be inferred from his possession of the paper, and other circumstances. The consideration of defendant’s promise -was a promise or implied agreement by the plaintiff to transfer the stock, which was the subject matter of the contract.</p>

<p>In an action brought against one who afterwards died intestate, and whose administrators were substituted, brought on account of the erection of a dam, and thereby flooding the lands of the plaintiff, and doing other injury, the direction of one of the administrators, who was an heir, whilst the jury were viewing the premises, made to one of the heirs, not a party to the suit, to raise the mill gates and lower the water, saying, “this won’t do, the dam is getting too high,”'and the act of the heir in pursuance thereof, are admissible in evidence.</p> <p>In this suit damages can be recovered for the injury only till the intestate’s death, and the verdict would not be evidence in a suit against the heirs. The 28th section of the act of February24,1834, relative to executors and administrators, commencing and prosecuting certain personal actions which their decedent might have prosecuted, and their liability to suit in certain cases, commented on.</p> <p>In an action for damages for flooding the land of plaintiff, a witness cannot testify as to the right to swell the water — though he may as to the quantum of damages.</p>

Writ of Error to the Court 'of Common Pleas of Berks county. Casper Walter, plaintiff in error and' plaintiff below, vs. George Gernant, defendant in error and defendant below. This was an action of trespass by Casper Walter, against GeorgeGernant, late sheriff, to recover damages from him for seizing and selling the plaintiff’s goods and -chattels, under an execution against George Guenther.

<p>The rights of legatees are fixed at the death of the testator, and the 11th section of the act of 1848, allowing to'a widow who elects not to take under the will her share of the personal estate of her husband, is not to be applied to the estate of a testator, who died before the passage of that act, though the act of election was not made till after its passage.</p> <p>The term dower, in the 11th section of the act of April, 1833, relating to last 'wills and testaments, is to be construed according to its common law meaning; and is therefore different from the share given to the widow by the "first section of the intestate act of April, 1838. Under the claim of dower, the widow of a testator who left no children, is not entitled to any share of the personal estate of her husband, or to a moiety of the profits of his real estate.</p>

<p>Error to the Common Pleas of Berks county.</p> <p>The case came into court on án appeal by Bertolet from the decision of the appraiser of mercantile taxes.</p> <p>.• It appeared on the hearing of the above appeal; that the said Isaac Bertolet was a resident citizen of the township of Oley, in the said county, and that he owned a flour and a grist mill in the said township; that he raised grain on his said farm,, that he bought grain, and that he took tolls for grain ground for customers in his said mill; that he manufactured into flour at his said mill the said grain, and sold flour so manufactured to his customers at at his said mill, and that he sent flour so manufactured by him to the city of Reading and other places by his team from week to week through the year, and sold it out by the hundred to his customers.</p> <p>On this state of facts it was contended by the county, that the said Isaac Bertolet was subject to a mercantile tax under the provisions of the 11th sec. of the act of the 22d- of April, 1846. The section is as follows:</p> <p>That hereafter all dealers in goods, wares and merchandize, the growth, product and manufacture of the United- States, and every person who shall keep a store' or warehouse, for the purpose of vending and-disposing of goods, wares and merchandize, where such person is concerned or interested in the manufacture of such goods, wares and merchandize, shall be classified in the same manner, and required to pay the same annual tax and license fee, as is provided and required in relation to dealers in foreign merchandize : Provided, That mechanics who keep a store or warehouse at their own shop or manufactory for the purpose of vending their own manufactures exclusively, shall not be required to take out any license. ...</p> <p>Bertolet was accordingly rated" in class 14, at $7 00.</p> <p>It was on the contrary contended by the said Isaac Bertolet that he was not subject to a mercantile tax.</p> <p>The court below decided that Bertolet was not liable to be classified and subjected to taxation, or the. payment of license fees.</p> <p>Errors were filed to the decision of the court. ..</p>

.Sarah Fisher vs. Samuel Eberle. Action of dower, to April term, 1850. ' A case was stated for the opinion of the court, to be considered in the nature of a special verdict, and either party to be at liberty to sue out and prosecute a writ of error to the judgment of said court, the same as if it was on the verdict of a jury.

This was an amicable action of ejectment, for nine acres and sixty-five perches of land, in Earl township, Lancaster county. David Bear died in 1848, and leaving eleven children, amongst whom are the parties to Jhis action, and seized of 72| acres of mountain land, including the nine acres and sixty-fiv.e perches, the subject matter ofiathis,;action. • ...

Error, to the Common Pleas of Lancaster County. This was an action of ejectment in the name of Christian Gast, administrator de bonis non, &c., cum testamento annexo of Jacob Hiestand, deceased vs. David R. Porter. It was brought, to recover ten acres of land in West Hempfield township, Lancaster county.

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an action brought by Mylin vs. Good..</p> <p>It was an action on the case for a nuisance, brought to recover damages, for flooding back upon the mills and tail race of the plaintiff below, &c.</p> <p>The case was before the Supreme Court before, and is reported in 8 Barr, 51, 57.</p> <p>After the record was returned from the Supreme Court, the declaration was amended. On the trial, the evidence being .closed by both parties, plaintiff’s counsel addressed the jury.</p> <p>Defendant’s counsel, in his argument to the jury, offered to read to the jury, the opinion of the Supreme Court, delivered, in this case by the Chief Justice, 8 Barr 54, Good vs. Mylin. To this the plaintiff’s counsel objected. The Court then desired the defendant’s counsel to state the purpose for which he proposed to read the opinion, and the points to be proved by it. The counsel thereupon stated, that he proposed to read it to prove all the points contained in it. Whereupon, the Court refused permission to read the opinion to the jury for the purpose stated, because all the points of law contained in the opinion do not now arise on the trial of the issue; the evidence in relation to the ■ sluices having been rejected in conformity to that opinion, and there is no evidence of some of the facts stated and' referred to in the opinion — and also for other reasons not now stated. To' which the defendant’s counsel excepted;</p>

This was an action on the case instituted by Sarah Haines et al., executors of Haines, dec’d., vs. Stauffer, on a promissory note, purporting to be dated December 12, 1848, and alleged to have been given by the defendant to the plaintiff’s testator, for $600 payable at three days.

Augustus Holmes, James Myers and John Strimpler, trading as partners, under the name' and firm of Holmes, Myers & Co. On the 12th day of October, 1842, purchased at public sale from A. E. Roberts, Esq., late sheriff of Lancaster county, a certain piece of ground in the Borough of Columbia, Lancaster county, containing about 4 acres, with a new furnace, stack, &c. thereon erected, and for which they paid the sum of $425.

A case was stated, and the following facts agreed on. On the 26th day of January, 1848, William W. Pennel obtained a judgment against James PI.

This was an amicable action of trespass vi qt armis, on a case stated, in which The Manor Turnpike Road Company was plaintiff, and Jacob Stormfeltz was defendant. The defendant was the supervisor, or street .commissioner, of the city of Lancaster, and acting under a resolution of Councils, removed a turnpike gate erected by the' direction of the company, within the chartered limits of the city of Lancaster.

<p>Error to the District Court, Lancaster.</p> <p>This was an action in the name of Lewis, president of the Orphans’ Court of Lancaster county, for the,use of Christian Eshelman and’ Elizabeth his wife vs. the administrators of Shuman, to recover the wife’s share, under a' recognizance executed by the administrator "of her father’s estate, conditioned' for the payment., of the interest to the widow, during, her life, and the principal sum, viz: one-third part,of the .purchase, money, to the heirs after her death. Christian Stoner, the father, died intestate, and in 1811, in pursuance of a petition to the Orphans’ Court of Lancaster county, certain real estate was valued, and the heirs having-refused to take it at the valuation, the property was sold; the interest on the third part.of the purchase money, exceeding ¡f 10,-000, was to 'be paid to the widow during life, and after her death, the principal sum to the heirs. Shuman, the administrator, executed a recognizance conditioned for its payment. The recognizance entered into in January, 1812. . .</p> <p>In 1827, Eshelman, one of the plaintiffs, petitioned, the Court, of Common Pleas of Lancaster county for the benefit of the insolvent laws; and in September, 1827, he executed an assignment, as follows: “ Know all men by these presents, that I, Christian Eshelman, the within named petitioner, do hereby assign and transfer unto Benjamin Herr, one of my creditors, in 'pursuance of the directions of the act of assembly, all my estate, real, personal and mixed, in trust for himself and my other creditors. In witness,” &c. Dated the 19th September, 1827. . .</p> <p>The widow of Christian Stoner died on the 18th October, 1841. The main question was, whether the assignment passed the wife’s distributive share, under the recognizance, payable after the death of her mother.</p> <p>The defendants plead payment,.and payment with leave,. &c., and also filed a special plea in bar, to the effect that a former suit for the share of the wife, claimed in this suit, had been brought in 1841, after the death of the widow, in the name of Benjamin Chámpneys, Esq., then president Judge of the Orphans’ Court, for the use of Benjamin Herr, trustee of Christian Eshelman, the husband, in which case a verdict and judgment was rendered against Herr, the trustee: '</p> <p>His Honor, Judge Durkee, holding a special court, stated, in his opinion, that in two suits, brought in the District, court of this county, on the same recognizance on which this suit is founded, it was decided by the court below, that the interest of the wife in her father’s estate passed ahd Became vested in the.trustees of her husband, under their assignments on taking the benefit of the insolvent laws, and that these decisions were affirmed by the Supreme Court; he referring to Shuman vs. Reigart, 7 W. & S. 168, and another suit on the same recognizance, in favor of Reigart as assignee of Rakes, who was married to Frances, another daughter of Christian Stoner. And he charged the jury that the right of Elizabeth Eshelman to the money claimed passed by her hus band’s assignment to Herr. He had, therefore, a right to bring suit for it, and having done so, and a judgment rendered against him, he could not maintain a second suit; and that Eshelman and wife had no better right to sue than he-,had. He directed the; jury to render a verdict for the defendants.</p> <p>It was assigned for error:</p> <p>That the court erred in instructing the jury that the interest of Elizabeth Eshelman passed, by the assignment of her husband, under the insolvent laws, for the benefit of creditors. ’</p>

<p>Wliei-e a legacy was left to a married woman to be invested by the executors of the will of testator in real estate, to be- oonveyed to her, for her sole and separate use, and to her heirs and assigns for ever; but not to be liable for the payment of any of the debts of her husband; and a house and lot was purchased, which cost more than the amount payable on the legacy, the balance being made up by the husband and wife; and after the property was conveyed to the husband and wife, for the separate use of the wife, a judgment was entered against the husband, and the property levied on and sold. Held, • that the purchaser c'annot recover the property subject to the condition that he pay the nett amount of the legacy with interest; but the conditional verdict should be, that he hold till defendants pay him the amount of purchase-money advanced by the husband, beyond the amount paid on the legacy.</p> <p>The deed was not in the'nature of a mortgage, and there was no conditional sale to give it that character.'</p> <p>Where necessary repairs are made by the husband to his wife’s'property, a subsequent judgment creditor of the husband may not have a lien on the property for the amount of the repairs.</p>

<p>To entitle an executor to costs in an issue of devisavit vel non, it must appear that his course has been dictated by a regard for the interests of those" eventually found to be entitled to the property. ■ . ‘</p> <p>An executor is not bound to become a party to such an issue, unless those interested will indemnify him against the costs of the .investigation.</p> <p>An executor is probably entitled from the estate, to the expenses incurred in preparing to administer the will* before a contest arise as to its validity. .. He may perhaps sue the administrators of the estate, where such exist, for such costs; but he is not authorized to settle an account merely for the purpose of having such costs allowed.</p>

<p>An advancement is an irrevocable gift by a parent to a child, in anticipation of such child’s future share of the parent’s estate. Debts by the husband cannot be changed into advancements as. against the wife, merely by her admission that, “this we owe to father honestly.”</p> <p>Declarations of a parent, made after debts have been contracted, of an intention to treat them as advancements, are not admissible to produce that effect, where the declarations are not communicated to the child, nor accompanied by an act sufficient to obliterate the obligations as debts. .</p> <p>Such parol declarations are not admissible to convert a loan to the son-iñ-law into an advancement to the daughter, in order to defeat a legacy in favor of the latter, in the will of her father.</p> <p>Where a testator directed that the share of his estate coming to his daughter, then a married woman, shall be kept in'the hands of a trustee for her use, and interest thereon paid to her annually, so long as she remains the wife of her then husband, and in case of the death of the husband, the trust moneys to be paid to her; and in the event of her death, whilst thus married,'then the trustee to pay the mother’s share to her children, the husband-interposing no claim to the interest. Held, that the children are entitled, on the death of their mother, in addition to the principal, to the interest which accrued, during her life, which had not been reduced into possession.</p> <p>Executors are chargeable with interest on the sums ascertained to be in their hands, during the' pendency of exceptions to their accounts.</p> <p>Advancements to all of the heirs should be settled as of the same time, after the death of the testator; and the heirs last paid, are entitled to interest from the time when the other heirs received the balances due them respectively.</p>

This was an appeal from the decree of the Orphans’ Court of Lancaster county, which confirmed the report of auditors as to the account of Withers, as administrator of the estate of McKinney, dec’d. A judgment had been entered against McKinney, in the name of Henry Share & Co., in 1815, for above $3000. A sai. fa. was subsequently issued on this judgment in favor of Mehaffey. See the case reported in 1 W. & S. 276.

<p>A conveyance of real estate made with the intent on the part of the vendor, known to the vendee, to delay, defeat and hinder a particular creditor from obtaining his debt, though made for‘a valuable and full consideration, is fraudulent and void as against such creditor.</p>

<p>A voluntary assignment for the benefit of creditors in the manner authorized by law, is not avoided by the property being left in the possession of the assignor. To avoid the deed, the fraud must be in the assignment itself. On the delivery of the deed the property in the goods vests in the assignees, for the benefit of creditors, and no subsequent fraudulent dealing between the assignor and assignees, can reinvest the goods in the assignor, or render them liable to levy as his property; the execution creditor stands in the same position as the assignees, and there was no bona fide purchaser a party to the suit.</p>

<p>Error to the Common Pleas of Lebanon county.</p> <p>^ This was an ejectment by Abraham and Christian Reist vs. David and Henry Westenberger and Jacob Kreider, for .two-fifths of ai tract of land containing 112 acres 154 perches.</p> <p>The land had been conveyed by a deed dated 30th day of May, 1809, between Abraham Reist, the elder, and Elizabeth his wife, of the one part, and their daughter, intermarried with Christian Bomberger, of the other part. It witnessed, that the said Abraham Reist and wife, for and in consideration of the sum of ¿£2000, which sum, he (Reist) agrees shall be allowed unto his said daughter Barbara, in part of her share of his estate, and for the further sum of five, shillings paid, by the said Barbara, do grant, &c. unto the said Barbara Bomberger, and to her heirs and the assigns of her heirs, a certain plantation, then in the county of Dauphin, composed of various pieces of land, containing in. all above 812 acres — to have and to hold the. same unto the said Barbara her heirs and the assigns of her heirs forever; under and subject to a certain article of agreement of the same date, executed by the said Reist, Bomberger and Barbara his wife; and at the close of the clause of warranty, are the words- “nevertheless, subject as aforesaid.”</p> <p>On the deed is a receipt by Reist for five shillings of Barbara, in full for the consideration money within named, which is at present agreed upon to be paid.</p> <p>The articles of agreement executed and delivered on the same day as the deed was, signed by Abraham Reist and Christian Bomberger and wife, witnessed, that the said Reist doth covenant and agree with Bomberger and wife to convey unto the said Barbara his daughter, and to her heirs, by indenture bearing even date herewith, a certain plantation, viz: the same land described in the deed, which premises the said Reist obligates himself to convey unto Barbara, ■ for the consideration of two thousand pounds, which sum he agrees shall be allowed unto his said daughter as a part of her share of his estate.</p> <p>“And the said Christian Bomberger and Barbara his wife, for themselves, their heirs, executors, administrators,, do ■ covenant, promise and grant to and with the said Abraham Reist, his heirs, executors and administrators, by these presents, that if the'decease of the said Barbara should take place, and she should not leave '•lawful issue or issues, that would live to the age of twenty-one years, that in that case the premises as hereinbefore mentioned, agreed upon to be conveyed to her, shall then descend and come •to the heirs of her said- father, Abraham’ Reist, or to their legal representatives, and that in such case the indenture by which the said premises are granted to the said Barbara, shall cease, deter-.. mine, and become absolutely void to all intent's and purposes whatsoever, but if otherwise, and she should have issue or issues as aforesaid, the said indenture shall be valid, and remain -in full force and virtue.” , . ■ ■</p> <p>In 1823 Bomberger and wife conveyed the premises to Phreaner, the deed expressing it to be for the consideration of five thousand dollars, and also for the purpose of barring the estate tail of which the said Barbara is seized in the lands and premises.</p> <p>. The deed was entered on the records of the court and recorded. Phreaner and wife in 1823, conveyed the property • to Christian Bomberger (the-husband) his heirs and assigns. This deed recorded on the- 21st November; 1823. Barbara had issue, two children, the first born in 1813 or 1814, and lived a few weeks; the other born in May; 1816, and, died in February, 1817.</p> <p>Bomberger died in 1834, having first made his will, dated’ November 26, 1823, by which he directed this land to'be sold after the death of his wife. The executors named in the will renounced,' and letters of administration with the will annexed were issued to Jacob Kreider, one of the defendants. , The widow, Barbara, died in November, 1848. The land was not sold by Kreider, the administrator. . ’</p> <p>Abraham Reist, sen. died prior to the 16th of March, 1813, when his will was proved, which was dated 17th August,, 1810. He left issue six children, to wit: John, Nancy, Elizabeth, Abraham, Barbara, wife of Christian Bomberger, and Christain. ' His son Abraham, one of the plaintiffs in this suit, was appointed one of his executors, and to whom letters testamentary issued.</p> <p>Abraham Reist,-sen. by-his Trill, says, “touching such worldly estate wherewith Hod has blessed me in this life, I give, devise and bequeath the same in the following manner,”- and then’ after disposing of his'personal property and of some real estate, but 'making no mention of, the lands in dispute, says; “ otherwise what my children severally received of me in land, money, and other, articles, I have considered that I have made an equal distribution among them, and shall be no further account or settlement be made of the same after my decease.”</p> <p>The plaintiffs are two of the six children of Abraham Reist, deceased, and claim to recover two undivided fifth parts of the. land conveyed by deed of the 30th May, 1809, and the defendant contends' that they are not entitled to recover any part of the same.</p> <p>The defendants, the Westenbergers, weré the tenants of Kreider, who was administrator''aS before stated.</p> <p>Pearson,-J!y 'charged-the jury, inter alia, that the estate granted to Barbara Bomberger, was but an estate for life, with a fee simple to vest in her surviving heirs who should attain' the age of twenty-one years, and a limitation over in fee simple to the right heirs of the grantor on failure on her part to comply with the condition, that is to leave heirs who should attain the'age of twenty-one years. In the conveyance there are no proper words of procreation to create an estate tail. That the estate limited to her heirs on her death is a fee simple' on condition, and the limitation over on failure of her leaving issue, who-' shall attain the age. of twenty-one years, is express in favor of his own heirs, and is not in the nature of a reversion to them.</p> <p>He instructed the jury that the plaintiffs are entitled to recover.</p> <p>Defendants’ counsel excepted to the opinion;.</p> <p>The jury found for plaintiffs two equal undivided fifths of the land. ' -</p> <p>Assignment of errors:</p> <p>1. The court erred in the charge to the jury, in instructing them that the plaintiffs are entitled to recover two undivided fifth parts of the land conveyed by the deed of the 30th of May, 1809.</p> <p>2. The court erred in not directing the verdict to be rendered in favor of the defendants. '</p>

<p>A negotiable note given for a gaming consideration is void, in tie bands of even an innocent bolder for.value.</p>

<p>The surety in.a replevin bond, executed by the plaintiff in replevin, is answerable, to the extent of the penalty of the bond, for the value of the property, and also for the damages found in favor of the defendant in the replevin suit; and for costs. '</p> <p>In a suit on such replevin bond, which was properly brought in the name of the sheriff, for the use of the defendant in the replevin suit, against the plaintiff in replevin and his surety, the surety, with consent of his principal, may set off a judgment, obtained by his principal, against the defendant in replevin, for whose use the suit trying was brought.</p> <p>In a suit on such bond, the defendant may give evidence of the value of the property, prior and subsequent to the time it was replevied; and the plaintiff in such suit, may, in reply, give evidence of the value of the property, before and at the time it was replevied.</p>

<p>Error to the Common Pleas of Dauphin county.</p> <p>This was an action of debt brought by Andrew J. Jones, for the use of Gilbert S. Parker, against Stephen Miller, James Martin and Perry Martin,, trading under the firm of Miller & Martins, co-promissors in a joint and several promissory note with Atkinson Martin. The plaintiff gave in evidence the following note with its endorsements, viz:</p> <p>“Harrisburg, Feb’y 23, 1842.</p> <p>“$500 00. Thirty days after date, we or either of us promise to pay A. J. Jones, or order, five hundred dollars, for value received, without defalcation.</p> <p>“ATKINSON MARTIN,</p> <p>[endorsed] “MILLER MARTINS.” '</p> <p>“ Harrisburg, July 22d, 1843. I hereby assign and transfer all my right, title and interest in the within note to Gibert S. Parker, and guaranty the payment of the same.</p> <p>“A. J. JONES.”</p> <p>The suit was brought to August T. 1843.. In September, 1843, there was an award in favor of plaintiff. Defendants appealed. In February, 1847, verdict for plaintiff. Judgment nisi; writ of error and judgment reversed.’ April 29th, 1850, trial ordered.</p> <p>On the trial the counsel of defendant contended that the suit should have been brought in the name of Parker, not in the name of Jones for the use of Parker.</p> <p>Pearson, J., charged-:</p> <p>This suit is founded on a promissory note drawn by Atkinson Martin and Miller & Martins, payable to A. J. Jones or order, thirty days after date, for five hundred dollars,-and dated February 23, 1842.' The plaintiff proved the hand writing of the ob7 ligors to the note, and also the endorsement of A. J. Jones to Gilbert S. Parker, dated July 22, 1843, as also the endorsement in blank by A. J. Jones thereon at the same time. ’ . ■</p> <p>The defendants insist that the plaintiff cannot recover. That the suit is not in the name of the proper legal party. We'are of opinion and so instruct you that the objection is fatal. There can be but one legal party to a suit of this kind. The plaintiff has proved the transfer of ’the note to Gilbert S. Parker, which gave him the legal interest therein; suit should have been brought inhis name; he'was the legal holder at the time this suit .was-brought. No action can be sustained in the name of Jones where the indorsement and assignment'over are proved. It has been-objected that this assignment is not .of the character of an indorsement.. We are of opinion it has all the legal forms of an indorsement to carry the right to the note, and enable Parker to sue in his own name,' and is qrfite as efficacious to pass the-legal title as ah indorsement in blank; besides if required there is an indorsement in blank; but if that stood alone it might be struck out, and the action sustained .if the plaintiff thought proper to pursue such a course, which he has not proposed; but on'the- contrary has proved the indorsement as part of his case. It is also argued that being indorsed after due will not pass the legal title. The only difference .between a transfer before and after due is in the right of equitable defence. If a note is originally negotiable, and is regularly assigned after due, the assignee can sue in,, his own name, and if so he is the proper legal party to the action. The plaintiff cannot recover. , ■</p> <p>To this charge the plaintiff excepted.</p>

This -was an action of debt brought by the Commonwealth against Christian F. Haehnlen and others, as sureties on the official bond of Jacob Sallade, late surveyor general of Pennsylvania. The claim of the Commonwealth was for certain fees received by Mr. Sallade as surveyor general, and not paid over to the state treasurer.

<p>Error to the Common Pleas of Dauphin county.</p> <p>This was an action by Zimmerman vs. Updegrove, for slander. It was alleged in the nar. that defendant had said, inter alia, that plaintiff was a thief, that he could prove hirn to be a thief; that Harper says you stole when you were a boy’; that he stole lumber and posts and rails.</p> <p>Defendant plead non.cul.</p> <p>After evidence had been given on the part of plaintiff* in order to sustain the allegations in the nar defendant’s counsel offered to prove by a witness that he had a log of timber on his premises, that plaintiff took it in the day time, and threw it into the canal to float it off, but was detected and charged with larceny. This not to shew guilt, but as tending to excuse defendant in making the charge, and mitigate the damages. Objected to as incompetent evidence of a particular act of guilt: 2 Greenl. 227; Starkie on Slander 130. Defendant cited 9 Barr 312. The court rejected it as a circumstance from which the jury could reasonably infer actual guilt, and can be proved only under a plea of justification.</p> <p>Defendant excepted.</p> <p>Defendant's counsel offered to prove admission by plaintiff, before the speaking of the words laid in the nar. of his having taken in the night time some loose boards from- a raft. Rejected as being links in a chain tending to establish the guilt of plaintiff, and being direct charges of larceny. Defendant excepted. . .</p> <p>Defendant then asked for leave to amend his plea as per writing filed, which is permitted by the court.</p> <p>Defendant accordingly added the plea of “not guilty, and that the words set forth in the several counts of the plaintiff ’s war. so far as they purport to impute to the plaintiff the crime of larceny, were true.” Plaintiff replied to the above plea, “de injuria sui propria absque tali causa;” and the court permitted the damages laid to be increased. •</p> <p>The court ruled the evidence to be then admissible.</p> <p>Defendant then- gave evidence in chief, and plaintiff’s counsel cross-examined.</p> <p>Defendant’s counsel submitted various points.</p> <p>Pearson, J. charged the jury, inter alia. — Where a plea of justification is put in, it is almost a substantial admission of having spoken the words, and therefore slighter evidence might satisfy the jury that the words were spoken as charged. Still, the justification alone would not be sufficient to dispense with the proof of the words.</p> <p>The jury have a right to take into consideration the occasion and manner of speaking the words ,* whether in heat and passion or coolly and deliberately; whether to plaintiff’s face or behind' his back; whether in one place only, or in many places; and whether casually or deliberately and persisted in,</p> <p>If the charge is made out, then has the defendant justified ? substantially proved the charge which he made ? If he has, plaintiff cannot recover. If he has not, then the plea of justification greatly aggravates the case; is strong evidence of malice, and should proportionally increase the damages.</p> <p>Suppose the defendant has not strictly proved all the words true which he spoke, yet has substantially proved the charge, has made out to your satisfaction that the plaintiff is a thief, and had stolen part of the articles he charged him with stealing, yet has not strictly justified, by proving the whole, all the articles charged, then the plaintiff, if entitled to recover, would get but small or nominal damages. He is guilty of the substance of the charge, and has no character to lose — of course cannot recover damages for a loss of character.</p> <p>As to the log: It had floated down the canal; was drawn out by Shaeffer; plaintiff at mid-day took it away; seemed to think because he was lock keeper he could take the log; you will judge whether with the mind of a thief or not. The act does not look like stealing, but a trespass on Shaeffer’s special property, and a jury sitting in the sessions, would scarcely convict him of stealing on this evidence. As to the plane, he directed the jury to judge whether the plane was stolen, and whether the plaintiff was the thief or not. As to the loose boards, that the evidence would be insufficient in a criminal court; but he referred the matter to the jury; and so, as to the hoop poles.</p> <p>The jury found for the plaintiff the- sum of four hundred dollars damages, with-six cents costs. -</p> <p>Errors were assigned to the rejection of the evidence, and to the charge of the court as hereinbefore stated; and that the eharge was contradictory and calculated to mislead the jury.</p>

<p>If the assignee of a moiety ,of a judgment does not have his interest therein marked on the docket, the bond being subsequently in the possession of the obligee, who assigns all his interest in the judgment bond, without notice being had by the second assignee of the former assignment, and notice of assignment to the second assignee is marked on the record, the first assignee will be postponed in favor of the second. .</p> <p>If an attorney does not offer to pay to his client in a reasonable time all the money which he was bound to pay, he is not entitled to compensation for his trouble.</p>

Mills was tried on an indictment for. seduction at an adjourned court of Quarter Sessions for the county of Dauphin, held in October, 1849. The regular sessions for that county are held in the months of January, April, August and November of each year. A true bill was found against Mills at the August Sessions, 1849.

Mills had been tried for an attempt to procure abortion of a female, tried at November sessions, 1849. Defendant was convicted and sentenced to undergo punishment in the Dauphin county prison, by separate confinement at labor, for and during the term -of one year, to commence and -be computed from the expiration of the sentence on the indictment for attempting to procure abortion of another female, &c. It was charged in the indictment as follows : Dauphin county,- ss.

■ Mills had been tried on an indictment for an attempt to procure abortion of C. A. Lutz, August 21, 1849, returned true bill. This indictment contains five counts. The 1st and 3rd counts aver quickness. The 2nd omits that averment.

<p>Error to the Common Pleas of Dauphin county.</p> <p>Issues had been directed on two judgments entered in the Court of Common Pleas of Dauphin county in favor of Joseph Uhrich against Peter Beck for §1,550, being the purchase money, (except §200 paid by Beck) for two tracts of land sold to him by Uh-rich.</p> <p>The issue directed Was between Joseph Uhrich, plaintiff, and Peter Beck, defendant.</p> <p>Peter Beck bought two tracts of land, one of them containing 105 acres and the other 97 acres, of Joseph Uhrich for §1,750. He paid $200 at the time, and gave two judgment bonds for the balance. They were entered up-against him in Dauphin Common Pleas. He afterwards applied to the court to open the judgment on account of a failure of the consideration, alleging in amount that the heirs of George Uhrich, a brother of said Joseph Uhrich, who had sold the land to him as his, own, claimed one-half of it. The land had been sold by John Uhrich to one Christian Hinicka for $6,144; the purchase money secured by bond and mortgage. There were sixteen bonds, of which fifteen were for $400 each, and one for $144. Three of the first bonds due' had been assigned by John Uhrich to Frederick Boas, and he assigned them to David Krause of Lebanon county, who obtained judgment on them in the Common Pleas of Dauphin county, John Uhrich died in the year 1818, leaving only one child, to wit: Joseph Uhrich, and grand-children, being the children of a son, George Uhrich, who died some time before the decease of his father. Joseph Uhrich and Peter Crum were the administrators Of John Uhrich, deceased. Thirteen of the bonds referred to passed into their hands. On the 19th of September, 1820, Peter Crum filed his administration account in the Register’s office of Dauphin county. This account was confirmed. In it credit was taken for the thirteen bonds against Hinicka as not haying been collected..</p> <p>David Krause, the owner of three of the bonds upon which he had obtained judgment, having died, his widow and his son,'Jo-' seph Krause, were appointed his administrators. There seemed to be a difficulty in selling this land, as it was mortgaged to secure not only these bonds but the thirteen bonds which were in the hands of Joseph Uhrich, one of the administrators of John Uhrich, deceased; 'John Krause, one of the administrators of David Krause, deceased; and Joseph Uhrich agreed to have a sale made by the sheriff on the Krause judgment; and Joseph Uhrich was to purchase the property at the sheriff’s sale, and he was to have four-fifths, and Krause was to have the other fifth. The land was sold by the sheriff of Dauphin county, and a deed executed to Joseph Uhrich in January, 1829.</p> <p>On the 4th day of May, 1881, Joseph Uhrich filed, after being repeatedly cited to do so, his administration account on his father’s estate, in which he claims credit for these thirteen bonds as outstanding and recoverable, although he had purchased said Hinicka land, under his agreement with Krause’s administration, with the said bonds.</p> <p>On the trial of the issues, Eldred, J., charged, that if there were no debts against the estate to which the proceeds of the land should be applied, and the land remained unsold in the hands of Joseph Uhrich, that he had no doubt but that George Uhrich’s heirs could follow the land and recover their portion of.it; or if theré were no debts to pay they could perhaps reach a portion of the money due by this defendant, by putting in their claim when the money was made out of the property by the sheriff’s sale. — ■ But he charged that the heirs cannot affect Beck in- the enjoyment of the land. He purchased of Joseph Urich, the plaintiff, who purchased the land at a public sale, and can hold it against the heirs and creditors of John Uhrich, deceased, who must resort to the fund if they have any claims.</p> <p>Defendant excepted to. ¡the charge.'</p> <p>Various matters were assigned for error. The material one was to the effect that the court charged, “But I have come to the conclusion that neither creditors nor heirs, under the circumstances in the case, can follow the land into the hands of a purchaser. Their resort is upon Josepli Uhrich as administrator.”</p>

This was an ejectment for two tracts of land brought by the heirs of Geo. Uhrich, deceased, against Beck and Rymart. The cause was tried upon the same facts as presented in the case of Beck vs. Uhrich, reported in this volume.

This was an action of assumpsit brought by Wilson and Kelly vs. Holland and Porter, on- a promissory note dated 19th May, 1848, signed Holland and Porter, for the payment of $1,479 94 to Wilson and Kelly, at one day after date. The note was signed by Holland with the names of Holland and Porter.' The writ was served on Porter and returned nihil as to Holland. The note was given for groceries, &e., purchased by Holland from Wilson and Kelly, in Baltimore, in 1847.

<p>An administrator, who illegally has caused to he sold at sheriff’s sale, land claimed by his intestate, under articles of agreement, and of which he had possession at his death, is liable to an action by the heir for damages; and the settlement of an account by the administrators, in the Orphan’s Court, in which the proceeds of sale of the land'were not charged, will not bar the action.</p> <p>- The measure of damages is the value of the land at private sale, at the time of its sale by the sheriff, with interest from the time of sale.</p>